Gutierrez v. Ohanian et al

Filing 30

Consent Decree And ORDER, signed by Magistrate Judge Sandra M. Snyder on 2/14/2012. (Fahrney, E)

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Tanya E. Moore, Esq. SBN 206683
K. Randolph Moore, SBN 106933
MOORE LAW FIRM, P.C.
332 North Second Street
San Jose, California 95112
Telephone [phone]
Facsimile [phone]
Email: [e-mail]

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Attorneys for Plaintiff
Natividad Gutierrez

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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NATIVIDAD GUTIERREZ,

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Plaintiff,
vs.
JOHN OHANIAN, AYEDH ALSHOGAA
dba LA ESTRELLA MARKET,
Defendants.

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) No. 1:11-cv-00579-SMS
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) CONSENT DECREE AND ORDER
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INTRODUCTION
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Plaintiff NATIVIDAD GUTIERREZ (“Plaintiff”) filed a complaint in this action

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on April 8, 2011 (“Complaint”) to obtain statutory damages and to enforce provisions of the

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Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101 et seq. (“ADA”), and California

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civil rights laws against Defendants JOHN OHANIAN and AYEDH ALSHOGAA dba LA

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ESTRELLA MARKET (collectively referred to as “Defendants”) (Plaintiff and Defendants

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collectively referred to as the “Parties”), relating to the condition of their public

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accommodations. Plaintiff has alleged that Defendants violated Title III of the ADA and

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sections 51, 52, 54.1 and 55 of the California Civil Code, and sections 19955 et seq. of the

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California Health and Safety Code, by failing to provide full and equal access to the facilities

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located at 449 North Fresno Street, Fresno, California (the “Facility”).

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JURISDICTION

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2.

The Parties to this Consent Decree agree that the Court has jurisdiction of this

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matter pursuant to 28 U.S.C. § 1331 for alleged violations of the ADA, and supplemental

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jurisdiction for alleged violations of California Health & Safety Code § 19955 et seq.,

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including § 19959; Title 24 California Code of Regulations; and California Civil Code §§ 51,

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52, 54, 54.1, 54.3 and 55.

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IT IS HEREBY ORDERED, ADJUDGED AND DECREED AS FOLLOWS:

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REMEDIAL RELIEF

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3.

This Order shall be a full, complete and final disposition and settlement of

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Plaintiff’s claims against Defendants for injunctive relief that have arisen out of the Complaint

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but shall not be construed to be a resolution of Plaintiff’s claim for attorney fees, costs and

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litigation expenses.

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4.

Defendants agree to make the following modifications to the Facility in

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compliance with the standards and specifications set forth in the Americans with Disabilities

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Act Accessibility Guidelines and Title 24 California Code of Regulations:

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Site Entrance Signage

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1) Provide site directional signage at all entrances directing to the accessible entrance

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and route of travel. These signs shall be at each site entrance and walkways entering

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the site directing to the accessible entrance. Signs shall have an accessible symbol

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with arrows pointing in the direction of travel and viewable by persons in a

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wheelchair, preferably 27” maximum height to bottom of sign.

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2) Provide proper tow away warning signage at each entrance to the off-street parking

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facilities.

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Accessible Parking

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3) Provide a minimum of two accessible parking spaces with one being a van

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accessible parking space with proper slopes that do not exceed 2% slope.

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4) Properly stripe and identify accessible parking stalls.
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Exterior Accessible Routes

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5) Provide site directional signage at all non-accessible entrances directing to the

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accessible entrance.

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Accessible Doors

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6) Have all door operation pressures tested by a door professional for 5lbs door

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operational forces and proper signage.

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7) Repair Entrance landings that exceed 2% slope.

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8) Provide a 6” minimum pictorial square sign displaying the International Symbol of

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Accessibility at the accessible entrances.

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9) Provide proper sign on restroom door.

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Accessible Route from Accessible Entrances

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10) Provide a minimum 36” wheelchair space to all functional areas

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Service Counter

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11) Provide at least one service checkout counter to be 34” maximum high and 36”

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minimum in length for all locations that have service counters. Due to the age of the

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building equivalent facilitation may be provided for the accessible counters.

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12) Provide a clear floor area at the counters.

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Uni-Sex Restroom

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13) If restroom is available to the public then a properly configured and identified

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accessible restroom shall be provided, including properly located and configured

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fixtures and accessories.

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5.

months after the date of entry of this Consent Decree and Order.

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The modifications set forth in paragraph 5 shall be completed within six (6)

MONETARY RELIEF
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Defendants shall pay to Plaintiff the total sum of $4,000.00 (“the Settlement

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Payment”). The Settlement Payment shall be made payable to the Moore Law Firm, P.C. Trust

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Account and tendered to the Moore Law Firm, P.C., 332 North Second Street, San Jose,

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California 95112 within ten (10) days of execution of the entry of the Consent Decree and

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Order and shall be in the form of a cashier’s check. The taxpayer identification number for the

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Moore Law Firm is 22- 3978544.

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7.

Tax Liability. Plaintiff takes complete responsibility for any tax liability from

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the receipt of any settlement monies under this Agreement. An IRS 1099-MISC will be issued

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to the Moore Law Firm, P.C. for the Settlement Payment.

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ATTORNEY FEES, LITIGATION EXPENSES AND COSTS
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The Parties have not reached an agreement regarding Plaintiff’s claim for

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attorney fees, litigation expenses and costs. This issue shall be the subject of further motion to

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the Court which date has already been set by the Court to be heard April 11, 2012. Nothing

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herein shall be construed to be a waiver of Plaintiff’s rights to recover attorney fees, litigation

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expenses and costs.

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CONSENT ORDER BINDING ON PARTIES AND SUCCESSORS IN

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INTEREST

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9.

This Consent Decree and Order shall be binding on Plaintiff and Defendants

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and any successors in interest. The Parties have a duty to notify all such successors in

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interest of the existence and terms of this Consent Decree and Order during the period of the

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Court’s jurisdiction over this Consent Decree and Order.

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TERM OF CONSENT DECREE AND ORDER
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This Consent Decree and Order shall be in full force and effect for a period of

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twelve (12) months after the date of entry of this Consent Decree and Order, or until the

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injunctive relief contemplated by this Order is completed, whichever occurs later. The Court

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shall retain jurisdiction of this action to enforce provisions of this Order for twelve (12) months

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after the date of this Consent Decree, or until the injunctive relief contemplated by this Order is

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completed, whichever occurs later.

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SIGNATORIES BIND PARTIES
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Signatories on 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

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counterparts and a facsimile signature shall have the same force and effect as an original

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signature.

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Dated: February 8, 2012

/s/ Natividad Gutierrez
Plaintiff NATIVIDAD GUTIERREZ

Dated: February 7, 2012

/s/ John Ohanian
Defendant JOHN OHANIAN

Dated: February 7, 2012

/s/ Ayedh Alshogaa
Defendant AYEDH ALSHOGAA
dba LA ESTRELLA MARKET

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APPROVED AS TO FORM:

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Dated: February 8, 2012

MOORE LAW FIRM, P.C.

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/s/ Tanya E. Moore
Tanya E. Moore, Attorneys for
Plaintiff Natividad Gutierrez

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Dated: February 6, 2012

MICHAEL WELCH + ASSOCIATES
/s/ Michael D. Welch
Michael D. Welch, Attorney for
John Ohanian and Ayedh Alshogaa
dba La Estrella Market

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ORDER

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Pursuant to the consent of the Parties, and good cause having been shown,

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IT IS SO ORDERED.

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Dated:

February 14, 2012

/s/ Sandra M. Snyder
UNITED STATES MAGISTRATE JUDGE

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DEAC_Signature-END:

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