Opinion
CASE NO. C11-1918 LB Civil Rights.
October 28, 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.
DAVID RUBSAMEN, MICHAEL D. BRUNO, Esq. (SBN 166805), GORDON REES LLP, Embarcadero Center West, San Francisco, CA, Attorneys for Defendants, BRADFORD PRESCOTT, M.D. and ALPHA MEDICAL ASSOCIATES LLC.
CONSENT DECREE AND [PROPOSED ] ORDER
1. Plaintiff DAVID RUBSAMEN filed a Complaint in this action on April 14, 2011, to obtain recovery of damages for his discriminatory experiences, denial of access, and 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 BRADFORD PRESCOTT, M.D. and ALPHA MEDICAL ASSOCIATES LLC, relating to the condition of the public accommodation at 100 N. Wiget Lane in Walnut Creek. Plaintiff has alleged that defendants violated Title III of the ADA, California Civil Code §§ 51, 52, 54, 54.1, 54.3 and 55, and California Health Safety Code §§ 19955 et seq., by failing to provide full and equal access to their facilities at the medical office building at 100 N. Wiget Lane in Walnut Creek, California.
2. Defendants BRADFORD PRESCOTT, M.D. and ALPHA MEDICAL ASSOCIATES LLC, deny the allegations in the Complaint and by entering into this Consent Decree and Order do not admit liability to any of the allegations in Plaintiff's Complaint filed in this action. Plaintiff DAVID RUBSAMEN, defendants BRADFORD PRESCOTT, M.D. and ALPHA MEDICAL ASSOCIATES LLC, and all other current owners as of the date of this agreement of the subject property, hereinafter collectively, "the parties," hereby enter into this Consent Decree and Order for the purpose of resolving this lawsuit without the need for protracted litigation and without the admission of any liability.
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. § 1331 for alleged violations of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101 et seq. and pursuant to supplemental jurisdiction for alleged violations of California Health Safety Code §§ 19955 et seq.; Title 24, California Code of Regulations; and California Civil Code §§ 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 agree to entry of this Order to resolve all claims regarding injunctive relief, damages, and attorney fees, litigation expenses, and costs, raised in the Complaint filed with this Court. Accordingly, they agree to the entry of this Order without trial or further adjudication of any issues of fact or law concerning plaintiff's claims for injunctive relief, damages, and attorney fees, litigation expenses, and costs.
WHEREFORE, the parties to this Consent Decree and Order 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 Consent Decree and 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. The parties agree that there has been no admission or finding of liability or violation of the ADA and/or California civil rights laws, and this Consent Decree and Order should not be construed as such.
6. The parties agree and stipulate that the corrective 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, unless other standards are specifically agreed to in this Consent Decree and Order.
7. Remedial Measures and Timing of Injunctive Relief:
The parties have jointly selected architect George Dedekian based on their knowledge of and respect for Mr. Dedekian's professional knowledge, abilities, experience and integrity, and have further agreed to the following procedures, all to be carried out at defendants' expense:
Mr. Dedekian has conducted an access survey of the subject premises located at 100 N. Wiget Lane in Walnut Creek, California, including the building, and its adjoining grounds and parking areas, and has prepared a comprehensive report and recommendations as to what access barrier removal is needed to make the subject premises fully compliant with current California Title 24 and federal ADAAG access requirements. Defendants will implement all of Mr. Dedekian's recommendations for removal of all identified access barriers within nine months of receipt of Mr. Dedekian's report. A copy of this report has been provided to plaintiff's counsel Paul Rein, and is incorporated into this Consent Decree and Order as Attachment A.
Defendants also agree to thereafter maintain all access features in a safe and usable condition so long as defendants remain owners, operators, lessors or lessees of the subject property.
In the event that unforeseen difficulties prevent defendants from completing any of the agreed-upon injunctive relief, 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 corrective work is completed, and in any case will provide a status report no later than 120 days from the entry of this Consent Decree and Order.
DAMAGES, ATTORNEY FEES, LITIGATION EXPENSES AND COSTS:
8. The parties have reached an agreement regarding plaintiff's claims for damages: defendants have paid $20,000 to plaintiff in full satisfaction of plaintiff's claims for all damages, including personal injury, civil rights, and all other forms of damages. The parties have also reached an agreement regarding plaintiff's claims for attorney fees, litigation expenses, and costs: defendants will pay $17,106 to plaintiff's counsel in full satisfaction of plaintiff's claims for attorney fees, litigation expenses, and costs. Payments are to be received by plaintiff's counsel on or before September 26, 2011.
ENTIRE AGREEMENT:
9. This Consent Decree and Order constitutes the entire agreement between the signing parties on the matters of injunctive relief, damages, and attorney fees, litigation expenses, and costs.
CONSENT DECREE AND ORDER BINDING ON PARTIES AND SUCCESSORS IN INTEREST:
10. This Consent Decree and Order shall be binding on the parties and all successors in interest. The parties 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:
11. 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 which are 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 and Order 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.
12. Except for all obligations required in this Consent Decree and Order, 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:
13. 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, or until the injunctive relief contemplated by this Consent Decree and 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 entry of this Consent Decree and Order, or until the injunctive relief contemplated by this Consent Decree Order is completed, whichever occurs later.
SEVERABILITY:
SIGNATORIES BIND PARTIES: