Opinion
Case No. CO 1-04006 MMC
August 4, 2003
ORDER APPROVING SETTLEMENT AGREEMENT AND GENERAL RELEASE OF ALL CLAIMS
The Parties having met and negotiated regarding resolution of the above-referenced matter, having submitted to the Court a Settlement Agreement and General Release of All Claims ("Settlement Agreement") detailing a resolution and/or procedure for resolution of all claims in this matter, the Court having reviewed said Settlement Agreement, and finding GOOD CAUSE:
IT IS HEREBY ORDERED that the Settlement Agreement, attached hereto as Exhibit A and incorporated herein by reference, shall be and is the Order of the Court. The Court retains jurisdiction for one (1) year, from the below date, to enforce the provisions of the Settlement Agreement.
Dated: August 4, 2003
SETTLEMENT AGREEMENT AND GENERAL RELEASE OF ALL CLAIMS
This Settlement Agreement and General Release of All Claims ("Agreement") is made and entered into as of April 2, 2003, by and between Plaintiff JUDY SHAPIRO on behalf of herself, and all of her heirs, representatives, agents, assigns, attorneys, and all other successors-in-interest (hereinafter jointly and collectively referred to as " PLAINTIFF"), on the one hand, and Defendants BALBOA THEATER; GEM THEATRES; JULLANNE T. LEE; LANTON LEE; and L S THEATER COMPANY (hereinafter jointly and collectively referred to as " DEFENDANTS"), on the other hand, for the purpose of settling any and all claims between them, as more specifically described below. ( PLAINTIFF and DEFENDANTS are hereinafter sometimes jointly and collectively referred to as the "Parties".)
In consideration of the mutual promises and covenants contained herein, and in consideration of other good and valuable consideration, the adequacy of which is hereby acknowledged, the Parties covenant and agree as follows:
1. Claims Pending And Agreement Not To Pursue Claims.
a. On or about October 24, 2001, PLAINTIFF instituted an action in the United States District Court for the Northern District of California entitled: Judy Shapiro v. Balboa Theater, Gem Theatres, Julianne T. Lee, Lanton Lee, L S Theater Company, et al., Civil Action No. C01-04006 MCC ("Civil Suit"). The Civil Suit alleges that DEFENDANTS are in violation of the American Disabilities Act of 1990, as amended, 42 U.S.C. § 12101, et seq., ("ADA"), California Health and Safety Code Sections 19952, 19953 and 19955, et seq. and California Civil Code Sections 54, 1 and 55 et seq., by not providing PLAINTIFF access at the Balboa Theater, located at 3630 Balboa Street, San Francisco, California. ("Civil Suit").
b. Other than the Civil Suit, PLAINTIFF represents that she does not have pending against DEFENDANTS; against any of DEFENDANTS' present and former parents, subsidiaries, affiliates, owners, officers, directors, trustees, partners, and employees; against any DEFENDANTS' agents, representatives, attorneys and insurers (solely with respect to insurance coverage of DEFENDANTS in this Civil Suit); and/or against any of the predecessors or successors, of any of the DEFENDANTS, and each of them (hereinafter jointly and collectively referred to " RELEASEES"), any lawsuit, claim, complaint, grievance, charge, petition, demand and/or action, in or with any court or administrative agency (federal, state or local). PLAINTIFF further represents that if there are pending any such lawsuits, claims, complaints, grievances, charges, petitions, demands and/or actions, PLAINTIFF shall take all necessary action to withdraw same with prejudice.
c. RELEASEES, and each of them, totally and completely deny that they have acted in any way contrary to law, ordinance or regulation with respect to any of PLAINTIFF's allegations and/or with respect to access at the Balboa Theater, and deny that any of DEFENDANTS' actions or failure to act were in any way wrongful.
d. PLAINTIFF and RELEASEES, and each of them, wish to resolve any and all lawsuits, disputes, claims, complaints, grievances, charges, actions, petitions and/or demands between them as defined herein, including any and all claims from or in any way related to access at the Balboa Theater and/or in any way related to PLAINTIFF's claims for damages from any RELEASEE. The Parties agree, therefore, that this Agreement shall be a full, complete, and final disposition and settlement of all of PLAINTIFF's claims for injunctive relief, damages, and/or attorneys' fees and costs that are related to and/or have arisen out of the Civil Suit. The Parties further agree that there has been no admission or finding of liability or violation of the ADA and/or of any California civil rights laws, and this Agreement should not be construed as such.
e. Only to enforce provisions of this Agreement, the Court shall retain jurisdiction of this Civil Suit for one (1) year from the date of Court approval of this Agreement.
f. PLAINTIFF agrees and represents that, except as set forth below in Paragraph 2, she shall not further file or cause to be filed and shall not prosecute in any manner any lawsuits, claims, complaints, grievances, charges, actions, demands and/or petitions against RELEASEES, or any of them, at any time hereinafter with respect to the Balboa Theater, the Civil Suit or any claim released in this Agreement; and that if any agency or court assumes jurisdiction of any such lawsuit, claim, complaint, grievance, charge, action, demand and/or petition against RELEASEES, or any of them, shall request that such agency or court dismiss such matter with prejudice, or if applicable, shall opt out of any actual or purported class action, and agrees that, in any event, she shall not accept any remedy obtained through the efforts of any such agency or court.2. Settlement of Access Issues. a. Access Modifications. The Parties agree to resolve PLAINTIFF's claims for access as set forth in the revised plans of defense consultant George Dedekian and dated February 18, 2003, and which are incorporated herein by reference as Attachment One to this Agreement ("Access Modifications"). These Access Modifications are summarized as follows:
(i) Entry and Lobby: Defendants will install an automatic door opener and signage and renovate entry doors, concession counters and telephones as set forth in Attachment 1, Sheet 3.
(ii) Work In Theater and Seating: Defendants will renovate the interior slopes, adapt theater doors and install accessible, companion and semi-accessible seating in Theaters 1 and 2, as set forth in Attachment 1, Sheets 2 and 3.
(iii) Accessible Unisex Restroom Facility: Defendants will install an accessible unisex restroom with signage as set forth in Attachment 1, Sheet 4.
b. Time for Renovation of The Balboa Theater: For any renovations or corrective work of the Access Modifications that does not require building permits or other governmental approval, the work is to be completed no later than seventy-five (75) calendar days after Court approval of this Agreement, or July 31, 2003, whichever date is later. For renovations or corrective work of the Access Modifications that require building permits or other governmental approval, DEFENDANTS will submit such plans to the appropriate governmental agencies within thirty (30) calendar days after the Date of Execution and approval by the Court of this Agreement, and will complete the work, as soon as feasible, but no later than seven (7) months after all of the necessary permits and/or other government approvals are issued. In the event that DEFENDANTS, or any of them, determine to close the Balboa Theater as a "public accommodation" prior to the dates for completion of the Access Modifications set forth in this Agreement, DEFENDANTS will not be responsible for completing any unfinished Access Modifications at the Balboa Theater. However, if DEFENDANTS later reopen the Balboa Theater as a "public accommodation," disabled access will be provided. In the event that unforeseen difficulties prevent DEFENDANTS from completing any of the agreed upon Access Modifications, DEFENDANTS' counsel will notify PLAINTIFF's counsel in writing no later than thirty (30) calendar days after discovering the difficulty or difficulties. PLAINTIFF agrees not to file a motion to compel enforcement until the parties conduct a meet and confer to negotiate resolution of the remaining Access Modifications needed, including an extension of time to complete the work or the modification of the renovation or corrective work required. The parties will conduct the "meet and confer" within twenty (20) calendar days of DEFENDANTS' notification of the difficulty or difficulties.3. Settlement of Plaintiff's Claims For Damages And Tax Liability.
a. The Parties agreed to settle PLAINTIFF's claims for statutory, special, compensatory, punitive and all other damages by payment to PLAINTIFF in the sum of Seven Thousand, Five Hundred Dollars ($7,500) as full payment for any and all of her claims to damages ("Settlement Funds"). Payment will be delivered to PLAINTIFF's counsel in the form of a check payable to "Paul L. Rein in Trust For Judy Shapiro," forthwith after the Date of Execution and approval by the Court of this Agreement.
b. PLAINTIFF understands and agrees that both (i) she and her attorneys are liable for any and all of their respective tax obligations arising from payment of the Settlement Funds set forth above in Paragraphs 3(a) and the attorneys' fees and costs set forth below in Paragraph 6 of this Agreement, and (ii) RELEASEES are not liable to the appropriate state, federal and/or local tax authorities for any such tax obligation with respect to the sums paid pursuant to this Agreement to PLAINTIFF, her attorneys and/or her experts. PLAINTIFF and her attorneys further agree and understand that in the event that there is any further federal, state or local tax to be levied against any or all of the Settlement Funds set forth above in Paragraph 3(a) and/or the attorneys' fees and costs set forth below in Paragraph 6, including penalties, deficiencies, levies, interest, assessments, and attorneys' fees thereon, PLAINTIFF, her attorneys and/or her experts solely shall be responsible for their respective taxes, penalties, deficiencies, levies, interest, assessments, and attorneys' fees thereon.
c. IRS 1099-MISC forms will be issued to the PLAINTIFF, to her attorneys and to her experts, for the payment of the Settlement Funds set forth above in Paragraph 3(a) and for the attorneys' fees and costs set forth below in Paragraph 6.4. Dismissal of Lawsuit.
The Court shall retain jurisdiction as set forth above in Paragraph 1(e). Upon payment to PLAINTIFF of the Settlement Funds as set forth above in Paragraph 3, and the attorneys' fees and costs (either as agreed to or as ordered by the Court) as set forth below in Paragraph 6, PLAINTIFF, through her counsel of record, shall, within seven (7) calendar days, provide counsel for DEFENDANTS with a fully executed Stipulation of Dismissal with Prejudice as to all DEFENDANTS of the entire Civil Suit.
5. Release.
a. Release of Claims. PLAINTIFF, individually, and on behalf of her predecessors, successors, assigns, heirs, estates, executors, representatives, attorneys, agents, and each of them, voluntarily, irrevocably and unconditionally, does hereby expressly release, acquit, waive, relinquish and forever discharge RELEASEES, and each of them, from any and all charges, complaints, claims, promises, agreements, controversies, suits, demands, costs, losses, debts, actions, causes of action, damages, judgments, obligations, liabilities, and expenses of whatever kind and character, known or unknown, suspected or unsuspected, including any claims for attorneys' fees and costs which PLAINTIFF now has, owns, holds or claims to have, own or hold, or may have claimed, owned or held against the RELEASEES, or any of them, regarding events that have occurred in connection with and/or related to the Civil Suit, access to the Balboa Theater, PLAINTIFF's claims for damages and/or injunctive relief, and/or the institution and maintenance of litigation thereon, including, without limitation, any and all claims under the California Civil Rights Act, Civil Code Sections 51, 54, 54.1 and 55 et seq., the California Health and Safety Code Sections 1952 et seq., as well as any and all claims under the ADA and any and all state and federal laws and/or regulations pertaining to the access rights of individuals with disabilities, including but not limited to, all matters and claims, whether raised or not, related to and/or arising from the Civil Suit.
b. Section 1542 Waiver. PLAINTIFF agrees that any and all of her rights under Section 1542 of the Civil Code of California which are related or in any manner incidental to the claims encompassed by the Agreement are hereby waived. PLAINTIFF represents that she fully understands the significance and consequences of such specific waiver of Section 1542. Section 1542 of the Civil Code of California states as follows:
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.
Thus, notwithstanding the provisions of Section 1542, and for the purpose of implementing a full and complete release and discharge of all RELEASEES, and each of them, PLAINTIFF expressly acknowledges that this Agreement is also intended to include in its effect, without limitation, any and all claims which she does not know or suspect to exist at the time of execution hereof, and that this Agreement contemplates the extinguishment of any such claim or claims.
6. Attorneys' Fees and Costs.
a. The Parties have reached a partial agreement as to PLAINTIFF's claims for attorneys' fees, costs and litigation expenses associated with bringing her Civil Suit. It is agreed that forthwith after Court approval of this Agreement, DEFENDANTS shall deliver, to the Law Offices of Paul Rein, a check in the amount of Six Thousand Three Hundred Forty-Seven Dollars ($6,347), jointly payable to "Paul L. Rein in Trust for Jonathan Adler," in full resolution of any and all claims for expert/consultant costs.
b. Any other claims for litigation expenses and costs and any claim for attorneys' fees will be resolved by the Parties at a further settlement conference to be scheduled as soon as possible before Magistrate Judge James Larson. To allow the Parties to attempt to resolve such claims without the assistance of the Court, PLAINTIFF will provide to DEFENDANTS and to Magistrate Larson, in advance of the settlement conference, appropriate documentation to support all unresolved claims for attorneys' fees, litigation expenses and costs. If such settlement conference is not successful in resolving any or all of said claims, PLAINTIFF will proceed with a noticed motion, to be heard by the Honorable Maxine Chesney, in accord with Local Rules of the Court, for any such unresolved claim(s).7. No Further Proceedings.
Except as provided above in Paragraph 2, PLAINTIFF and PLAINTIFF's counsel agree that neither of them will hereafter pursue against RELEASEES, or any of them, any claims, causes of action, lawsuit, liability, damage, cost, expense, attorneys' fees, amount, right, obligation, or any other thing of any nature whatsoever released under this Agreement, including but not limited to access issues at the Balboa Theater.
8. Dispute Resolution.
a. If any dispute arises related to and/or arising from inadequate compliance with or breach of the terms of this Agreement ("Breach"), the Party alleging Breach shall provide to the other thirty (30) calendar days' advance written notice of the alleged Breach. PLAINTIFF hereby authorizes her counsel of record, Paul L. Rein, to accept service of process on PLAINTIFF's behalf of any such dispute. Such notice shall be provided to DEFENDANTS by facsimile or regular mail to the following location:
BURTON F. BOLTUCH, ESQ. Fisher Phillips, LLP City Center 501 Fourteenth Street, Suite 200 Oakland, CA 94612 (510) 763-4418 (facsimile)
DEFENDANTS hereby authorize their counsel of record, Fisher Phillips LLP, to accept service of process on behalf of DEFENDANTS, or any of them, of any such dispute. Such notice shall be provided to PLAINTIFF by facsimile or regular mail to the following address:
PAUL L. REIN, ESQ. Law Offices of Paul L. Rein 200 Lakeside Drive, Suite A Oakland, California 94612 (510) 832-4787 (facsimile)
b. The Party complained against shall have twenty-one (21) calendar days following the receipt of the notification described above in Paragraph 8(a) to respond to the alleged Breach.
c. Any motion to enforce this Agreement will be brought in the Court in which this Civil Suit is currently pending. Sanctions will not be available, unless there is non-compliance with a Court imposed enforcement order.9. No Assignment.
The Parties represent and warrant that they have not assigned, transferred or purported to assign or transfer all or any part of the claims, causes of actions, lawsuits, liability, damages, costs, expenses, attorneys' fees, amounts, rights, obligations, or any other things of any nature whatsoever released under this Agreement and that no other person or entity has any interest therein. The Parties warrant that they have the right and power to enter into this Agreement:
10. No Admission of Liability.
This Agreement affects the settlement of claims, charges and disputes, all of which are denied and contested by DEFENDANTS. The Parties agree that nothing in this Agreement shall be construed as an admission by any of the Parties of the validity or invalidity of any claims, causes of actions, lawsuits, liability, damages, costs, expenses, attorneys' fees, amounts, rights, obligations, or any other things of any nature whatsoever released under this Agreement, nor shall this Agreement, or the contents thereof, be introduced as evidence, or used for any reason in connection with this Action, except as specified above in Paragraph 2.
11. Voluntary Agreement And Legal Counsel.
The Parties agree and represent that they enter into this Agreement voluntarily, under no duress, and wholly upon their own judgment, belief, and knowledge as to all matters related to this Agreement, after having received full advice from counsel of their choice with regard to this Agreement and all such matters, and without reliance on any statement, representation or promise of any person except as expressly set forth in this Agreement, and that no promise, inducement or agreement not expressly set forth in this Agreement has been made to them. The Parties have made such investigation of matters pertaining to this Agreement as each deems necessary. PLAINTIFF expressly warrants and agrees that she has had the opportunity to be represented by counsel and that she has been supplied with, has read, and has had an opportunity, if she so desired, to discuss the terms of this Agreement with her own legal counsel. PLAINTIFF further warrants and agrees that she fully understands the contents and effect of this document, approves and voluntarily accepts the terms and provisions of the Agreement with full knowledge of their significance, agrees to be bound by the Agreement, and signs with the express intention affecting the extinguishment of any and all claims.
12. Binding Contract.
The Parties intend the terms of this Agreement as binding contractual obligations, and not merely recitals. This Agreement contains the entire agreement between the Parties respecting its subject matter, including claims for injunctive relief and damages, attorneys' fees and costs. All prior negotiations and understandings, verbal or written, between the Parties have been merged herein. Except by a further written agreement signed by the Parties, this Agreement may not be amended, altered, modified or changed in any way and no provisions may be waived.
13. Representation.
The Parties hereto, and each of them, acknowledge that there has been no promise, representation or warranty whatsoever, express or implied, not contained herein concerning the subject matter hereof, to induce them, or any of them, to execute this Agreement, and acknowledge that they, and each of them, have not executed this Agreement in reliance on any such promise, representation, or warranty not contained herein.
14. Successors and Assigns.
This Agreement shall be binding upon, and shall inure to the benefit of, the heirs, administrators, executers, representatives, successors, and assigns of each of the Parties.
15. Preparation of Agreement.
Counsel for each of the Parties has participated in the preparation and/or negotiation or review of this Agreement. Therefore, this Agreement shall not be construed against any Party on the grounds of that Party's participation in the preparation of this Agreement.
16. Severability.
Should any terms, clause or provision of this Agreement be determined by a final decision of any court to be wholly or partially void, illegal or invalid, the validity of the remaining terms, clauses, and provisions shall not be affected thereby, and said void, illegal or invalid term, clause or provision shall be deemed not to be part of this Agreement.
17. Counterparts.
This Agreement may be executed in its original version or in any copies, counterparts, or other duplicates, and thus all signatures need not appear in the same documents.
18. Facsimile Signature.
This Agreement will be binding notwithstanding that a Party's signature is displayed only on a facsimile copy of the signature page.
19. Headings.
The headings preceding the paragraphs of this Agreement are for convenience only and shall not be considered in any interpretation, construction, or application of this Agreement.
20. Execution.
Each of the undersigned agrees and represents that he, she or it has read this Agreement from beginning to end and fully understands all of it, and has signed it on the date indicated below on behalf of the respective parties. The date PLAINTIFF signs the Agreement shall be deemed the Date of Execution.
21. Failure to Enforce.
Failure by any Party to enforce at any time, over a period of time, any provision of this Agreement shall not be construed to be a waiver of such provisions or the right to enforce such provision or any other provision in this Agreement.
22. Disjunctive.
The Parties agree that whenever the term "or" is used in this Agreement, it shall be deemed as if "and/or" was used.
23. Choice of Law.
The Parties agree that California law will apply to any dispute or claim arising out of or relating to this Agreement.
PLEASE READ THIS SETTLEMENT AGREEMENT AND GENERAL RELEASE OF ALL CLAIMS COMPLETELY AND CAREFULLY BEFORE YOU SIGN IT, AS IT INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS THAT YOU HAVE AGAINST DEFENDANTS BALBOA THEATER; GEM THEATRES; JULIANNE T. LEE; LANTON LEE; L S THEATER COMPANY AND THE OTHERS RELEASED HEREIN.
DATED:__4/4/03_________ By:_______________________ JUDY SHAPRIO
DATED:__4/4/03_________ LAW OFFICES OF PAUL L. REIN
By:_______________________ Paul L. Rein Attorneys for Plaintiff JUDY SHAPIRO
DATED: __5/3/03________ BALBOA THEATER
By:_______________________ Irma Levin
DATE: __5/14/03________ GEM THEATRES:
By:_______________________ Gary Meyer
DATE: __April 7, 2003__ By:_______________________ JULIANNE T. LEE
DATE: __April 7, 2003__ By:_______________________ LATON LEE
DATE: __May 10, 03_____ L S THEATER COMPANY:
By:_______________________ Irma Levin
APROVED AS TO FORM:
DATE: ___4/2/03________ FISHER PHILLIPS, LLP
By:_______________________ BURTON F. BOLTUCH ESQ. Attorneys for Defendants BALBOA THEATER; GEM THEATRES; JULIANNE T. LEE; LANTON LEE AND L S THEATER COMPANY
CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California.That on August 5, 2003, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an lee delivery receptacle located in the Clerk's office.
Paul L. Rein Patricia Barbosa Law Offices of Paul L. Rein 200 Lakeside Dr., Suite A Oakland, CA 94612
Burton F. Boltuch Law Offices of Burton F. Boltuch 555 The City Center Building 555 — 12th Street, Suite 1440 Oakland, CA 94607-4046
Dated: August 5, 2003