Opinion
CASE NO. C10-01867 MEJ Civil Rights.
March 8, 2011
PAUL L. REIN, Esq. (SBN 43053), CELIA McGUINNESS, Esq. (SBN 159420), CATHERINE M. CABALO, Esq. (SBN 248198), LAW OFFICES OF PAUL L. REIN, Oakland, CA, Attorneys for Plaintiff, IRVING GRIFFIN.
DAVID ANDERSON, ESQ. (SBN 167862), BERGQUIST, WOOD ANDERSON, LLP, Walnut Creek, CA, Attorneys for Defendant, WILLOW PASS ONE, LLC.
STEVEN H. BOVARNICK, ESQ. (SBN 99361), LELAND, PARACHINI, STEINBERG, MATZGER MELNICK, LLP, San Francisco, CA, Attorneys for Defendants, JLD-WP, LLC; CALIFORNIA CHECK, CASHING, LLC; CALIFORNIA, CHECK CASHING, INC.
JOHN D. BENGTSON, ESQ. (SBN 110200), Walnut Creek, CA, Attorney for Defendant, CSC PARKING MAINTENANCE, ASSOCIATION.
CONSENT DECREE AND [PROPOSED] ORDER AS TO INJUNCTIVE RELIEF ONLY
1. Plaintiff IRVING GRIFFIN filed a Complaint in this action on April 30, 2010, to obtain recovery of damages for his alleged discriminatory experiences, alleged denial of access, and alleged denial of his civil rights, and to enforce provisions of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12101 et seq., and California civil rights laws against Defendants WILLOW PASS ONE, LLC; JLD-WP, LLC; CALIFORNIA CHECK CASHING, LLC; CALIFORNIA CHECK CASHING, INC.; and CSC PARKING MAINTENANCE ASSOCIATION (together sometimes "Defendants"), relating to the condition of Defendants' public accommodations as of December 4, 2008, and allegedly continuing. Plaintiff has alleged that Defendants violated Title III of the ADA and sections 51, 52, 54, 54.1, 54.3 and 55 of the California Civil Code, and sections 19955 et seq. of the California Health Safety Code by failing to provide full and equal access to their facilities at 1855 Willow Pass Road, Concord, California. Defendants have filed Answers denying liability and asserted Affirmative Defenses.
2. Plaintiff and Defendants (together sometimes the "Parties") hereby enter into this Consent Decree and Order for the purpose of resolving injunctive relief aspects of this lawsuit without the need for protracted litigation. Issues of damages and attorney fees, costs and expenses will be the subject of negotiations and litigation if necessary. Defendants' sole purpose in entering into this Consent Decree is to help resolve this action without protracted litigation and expense. Defendants deny any violations, fault, or liability, including liability for any claimed fees or expenses. The reference or lack of reference in this Consent Decree to any claims in the report of Plaintiff's consultant shall not constitute evidence of the validity or invalidity of such claims. The Parties agree that the liability for all claims alleged in the Complaint is denied by Defendants.
JURISDICTION:
3. The Parties to this Consent Decree and Order agree that the Court has jurisdiction of this matter pursuant to 28 U.S.C. section 1331 for alleged violations of the Americans with Disabilities Act of 1990, 42 U.S.C. sections 12101 et seq. and pursuant to supplemental jurisdiction for alleged violations of California Health Safety Code sections 19955 et seq.; Title 24, California Code of Regulations; and California Civil Code sections 51, 52, 54, 54.1, 54.3, and 55.
4. In order to avoid the costs, expense, and uncertainty of protracted litigation, the Parties to this Consent Decree and Order agree to entry of this Consent Decree and Order to resolve all claims regarding injunctive relief raised or which could have been raised in the Complaint filed with this Court. Accordingly, the Parties agree to the entry of this Order without trial or adjudication of any issues of fact or law concerning Plaintiff's claims for injunctive relief.
WHEREFORE, the Parties to this Consent Decree hereby agree and stipulate to the Court's entry of this Consent Decree and Order, which provides as follows:
SETTLEMENT OF INJUNCTIVE RELIEF:
5. This Order shall be a full, complete, and final disposition and settlement of Plaintiff's claims against Defendants for injunctive relief that have arisen out of the subject Complaint.
6. The Parties agree and stipulate that the required work will be performed in compliance with the standards and specifications for disabled access as set forth in the California Code of Regulations, Title 24-2, and Americans with Disabilities Act Accessibility Guidelines ("ADAAG"), unless other standards are specifically agreed to in this Consent Decree and Order. In any instance(s) where Title 24-2 and ADAAG conflict, the Parties agree that the more strict regulation (i.e. that providing more access) shall apply.
a) Required Work: The required work agreed upon by the Parties includes the following recommendations described in Plaintiff's access consultant Karl J. Danz's report, titled "Draft Site Accessibility Survey of July 28th, 2010, attached hereto as Attachment A:
Item Nos. 1.001 through 1.021;
Item Nos. 2.001 through 2.006; and
Item Nos. 2.011 through 2.012
Defendants JLD-WP, LLC; CALIFORNIA CHECK CASHING, LLC; CALIFORNIA CHECK CASHING, INC. agree to undertake and complete the required work identified in Item No. 1.002 in Attachment A. Defendant CSC PARKING MAINTENANCE ASSOCIATION agrees to undertake and complete the required work identified in Item Nos. 1.001, 1.003 through 1.021, 2.001 through 2.006, and 2.011 through 2.012 in Attachment A.
Regarding Item Nos. 2.011 through 2.012, the vertical changes in elevation and slope issues shall be resolved for the areas identified in Item Nos. 2.011 and 2.012 (i.e. level the asphalt-to-sidewalk transition depicted in Attachment A photos DSC_0404.jpg to DSC_0407.jpg and remedy cross slopes in the accessible parking stall and unloading zone) or the cross slope issues in the accessible parking stall and unloading zone be remedied and an alternative compliant path of travel be provided from the accessible parking space (which may include moving the accessible parking space to another location).
b) Timing of Required Work: Defendants will submit plans for all required work to the appropriate governmental agencies within 60 days of the entry of this Consent Decree by the Court. Defendants will commence work within 30 days of receiving approval from the appropriate agencies. Defendants will complete all required work within 90 days of commencement of work. In the event that unforeseen difficulties prevent Defendants from completing any of the agreed-upon required work, Defendants or their counsel will notify Plaintiff's counsel in writing within 15 days of discovering the delay. Defendants or their counsel will notify Plaintiff's counsel when the required work is completed, and in any case will provide a status report no later than 120 days from the entry of this Consent Decree.
c) Defendants will notify Plaintiff in writing at the end of 120 days from the Parties' signing of this Consent Decree and Order as to the current status of agreed-to required work, and every 90 days thereafter until all access is provided.
d) Defendant CSC PARKING MAINTENANCE ASSOCIATION will make reasonable good faith efforts to obtain permits and authorizations that may be required under local law, ordinance, or other applicable law in order to accomplish the modifications required under this Order. If a city or other applicable state or local authority does not provide the permits or authorizations in a timely manner, and such delay impacts Defendant CSC PARKING MAINTENANCE ASSOCIATION's ability to make any of the modifications set forth in the Order within any of the time periods set forth herein, the applicable time period(s) for Defendant CSC PARKING MAINTENANCE ASSOCIATION to make the modification(s) at issue shall be automatically extended by the period of the delay.
7. Plaintiff, for himself and his heirs successors and anyone else who may purport to have an interest by and through Plaintiff, 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 Defendants related to the allegations in Plaintiff's Complaint in this case, and release each of the Released Parties from any such equitable relief claims arising out of Plaintiff's visit to the Park and Shop Shopping Center and California Check Cashing Store from the beginning of time to the date that this agreement is executed by Plaintiff.
DAMAGES, ATTORNEY FEES, LITIGATION EXPENSES AND COSTS:
ENTIRE CONSENT DECREE AND ORDER:
The Parties jointly stipulate and request that the Court not dismiss the case as these issues remain unresolved.
10. This Consent Decree is executed without reliance upon representation by either the Parties or any of their representatives.
CONSENT DECREE AND ORDER BINDING ON PARTIES AND SUCCESSORS IN INTEREST:
11. This Consent Decree and Order shall be binding on Plaintiff, Defendants, and any successors in interest. Defendants have a duty to so notify all such successors in interest of the existence and terms of this Consent Decree and Order during the period of the Court's jurisdiction of this Consent Decree and Order.
MUTUAL RELEASE AND WAIVER OF CIVIL CODE SECTION 1542 AS TO INJUNCTIVE RELIEF ONLY:
12. Each of the Parties to this Consent Decree and Order understands and agrees that there is a risk and possibility that, subsequent to the execution of this Consent Decree and Order, any or all of them will incur, suffer or experience some further loss or damage with respect to the lawsuit that is unknown or unanticipated at the time this Consent Decree and Order is signed. Except for all obligations required in this Consent Decree and Order, the Parties intend that this Consent Decree and Order apply to all such further loss with respect to the lawsuit, except those caused by the Parties subsequent to the execution of this Consent Decree and Order. Therefore, except for all obligations required in this Consent Decree and Order, this Consent Decree and Order shall apply to and cover any and all claims, demands, actions and causes of action by the Parties to this Consent Decree with respect to the lawsuit, whether the same are known, unknown or hereafter discovered or ascertained, and the provisions of Section 1542 of the California Civil Code are hereby expressly waived. Section 1542 provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
This waiver applies to the injunctive relief aspects of this action only and does not include resolution of the Parties' claims for damages, attorney fees, litigation expenses and costs.
13. Except for all obligations required in this Consent Decree and Order — and exclusive of the referenced continuing claims for damages, statutory attorney fees, litigation expenses and costs — each of the Parties to this Consent Decree and Order, on behalf of each, their respective agents, representatives, predecessors, successors, heirs, partners and assigns, releases and forever discharges each other Party and all officers, directors, shareholders, subsidiaries, joint venturers, stockholders, partners, parent companies, employees, agents, attorneys, insurance carriers, heirs, predecessors, and representatives of each other Party, from all claims, demands, actions, and causes of action of whatever kind or nature, presently known or unknown, arising out of or in any way connected with the lawsuit.
TERM OF THE CONSENT DECREE AND ORDER:
14. This Consent Decree and Order shall be in full force and effect for a period of twelve (12) months after the date of entry of this Consent Decree and Order by the Court, or until the injunctive relief contemplated by this Order is completed, whichever occurs later. The Court shall retain jurisdiction of this action to enforce provisions of this Consent Decree and Order for twelve (12) months after the date of entry of this Consent Decree and Order by the Court, or until the required work contemplated by this Order is completed, whichever occurs later.
SEVERABILITY:
15. If any term of this Consent Decree and Order is determined by any court to be unenforceable, the other terms of this Consent Decree and Order shall nonetheless remain in full force and effect.
SIGNATORIES BIND PARTIES:
16. Signatories on the behalf of the Parties represent that they are authorized to bind the Parties to this Consent Decree and Order. This Consent Decree and Order may be signed in counterparts and a facsimile signature shall have the same force and effect as an original signature.
MISCELLANEOUS:
17. Plaintiff agrees to execute any and all documents necessary to carry out the terms and provisions of this Consent Decree.
18. Plaintiff has carefully read each and every term of this Consent Decree and has received advice of counsel as to the nature and extent of each of the terms and provisions hereof.