Hendrik Block v. Vartanian et al

Filing 50

CONSENT DECREE, signed by Chief Judge Lawrence J. O'Neill on 4/10/17. CASE CLOSED. (Gonzalez, R)

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1 2 3 4 5 6 7 8 9 10 Tanya E. Moore, SBN 206683 Zachary M. Best, SBN 166035 MISSION LAW FIRM, A.P.C. 332 North Second Street San Jose, California 95112 Telephone: (408) 298-2000 Facsimile: (408) 298-6046 Email: service@moorelawfirm.com Attorneys for Plaintiff, Hendrik Block Michael L. Elder, Esq. (SBN: 238036) 2491 Alluvial Ave., Suite 20 Clovis, CA 93611 T: (559) 323-5337 F: (559) 765-4544 Email: mike@mlelderlaw.com Attorney for Defendants 11 12 UNITED STATES DISTRICT COURT 13 EASTERN DISTRICT OF CALIFORNIA 14 15 HENDRIK BLOCK, Plaintiff, 16 17 vs. 18 19 20 21 22 GARY CHRISTIAN; BONNIE M. CHRISTIAN; AMANDA FLOREZ dba PUBLIC AUCTION R US. Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.: 1:16-CV-00650-LJO-SKO CONSENT DECREE Complaint Filed: May 9, 2016 Judge: Hon. Lawrence J. O’Neill Trial Date: August 15, 2017 Time: 8:30 AM Dept.: Courtroom 4 23 24 25 26 27 28 CONSENT DECREE Page 1 1 As a result of Plaintiff, HENDRIK BLOCK (“PLAINTIFF”), and Defendants, GARY 2 CHRISTIAN; BONNIE M. CHRISTIAN; and AMANDA FLOREZ dba PUBLIC AUCTION 3 R US (“DEFENDANTS,” and together with PLAINTIFF, “the PARTIES”), having engaged in 4 settlement negotiations, the PARTIES agree that this action should be finally resolved by entry 5 of this CONSENT DECREE. This instant CONSENT DECREE was entered into by the 6 PARTIES as an amicable way of resolving liability, and PLAINTIFF’S claims for injunctive 7 relief and damages. 8 9 NOW, THEREFORE, without adjudication of any issue of fact or law, and with the consent of the PARTIES, it is hereby ORDERED, ADJUDGED, and DECREED as follows: 10 1. This Consent Decree is predicated on the Complaint, filed on May 9, 2016, and 11 subsequent pleadings filed in this action in the United States District Court for the Eastern 12 District of California seeking injunctive relief for violations of the Americans with Disabilities 13 Act of 1990, 42 U.S.C. §§ 12181-12189 (“ADA”) and parallel California access laws; damages 14 under state law; and the recovery of attorneys’ fees, costs and litigation expenses as permitted 15 by both state and federal law. DEFENDANTS filed their Answer to the Complaint on August 16 23, 2016. 17 2. DEFENDANTS and PLAINTIFF wish to settle the portion of the case relating 18 to the issues of liability, injunctive relief, and damages, and hereby desire to enter into this 19 CONSENT DECREE. The PARTIES hereby enter into this CONSENT DECREE for the 20 purpose of resolving PLAINTIFF’ lawsuit without the need for further litigation, and to reserve 21 for further settlement discussions or a motion to the Court the amount of attorneys’ fees, costs, 22 and litigation expenses to which PLAINTIFF is entitled. 23 24 JURISDICTION 25 3. All PARTIES agree that the present Court has jurisdiction of this matter for the 26 alleged violations of the ADA under 28 U.S.C. §§ 1331 and 1343, as well as supplemental 27 jurisdiction under 28 U.S.C. §§ 1367, 2201, and 2202 for the alleged violations of California 28 law. CONSENT DECREE Page 2 1 4. In an effort to expedite resolution of the issues, and avoid costs and expenses of 2 xxxxxxxx ongoing litigation, the PARTIES agree to entry of this [Proposed] Order to resolve the claims 3 regarding injunctive relief raised in the above-entitled action. Accordingly, the PARTIES agree 4 xxxxxxx to the entry of the [Proposed] Order related to this CONSENT DECREE without trial or 5 further adjudication of the issues addressed here, with the exception of the motion for 6 attorneys’ fees and costs, pursuant to paragraph 10 of this CONSENT DECREE. 7 8 9 RETENTION OF JURISDICTION FOR FEES MOTION 5. As previously stated, the amount of PLAINTIFF’S entitlement to attorneys’ 10 fees, costs, and litigation expenses remains in contention and, accordingly, the PARTIES 11 request that the Court retain jurisdiction over this matter solely to resolve such claims. 12 13 14 SETTLEMENT OF INJUNCTIVE RELIEF, DAMAGES, AND LIABILITY ISSUES 6. The CONSENT DECREE shall be a full and complete, final disposition and 15 settlement of all PLAINTIFF’S claims against the DEFENDANTS for injunctive relief 16 according to the issues that were addressed and pled in the Second Amended Complaint. 17 Moreover, DEFENDANTS agree to pay statutory damages to PLAINTIFF in the amount of 18 four thousand dollars ($4,000.00). The Settlement Payment shall be made payable to the 19 Mission Law Firm, A.P.C. Trust Account and tendered to the Mission Law Firm, A.P.C., 332 20 North Second Street, San Jose, California 95112 within ten (10) days of execution of the entry 21 of this CONSENT DECREE and shall be in the form of a cashier’s check. This agreement 22 shall serve as an admission of liability for the alleged ADA violation on the part of the 23 DEFENDANTS. 24 7. DEFENDANTS agree that all corrective work required hereunder will be 25 performed in compliance with the standards and specifications set forth in the2010 ADA 26 Standards for Accessible Design and according to California Code of Regulations, Title 24, 27 Part 2, Chapter 11B (known as the California Building Code), unless otherwise specified and 28 agreed to in this CONSENT DECREE. CONSENT DECREE Page 3 1 8. DEFENDANTS agree to undertake all of the remedial work identified as a 2 “Required Modification” as set forth on Exhibit “A” hereto (the Plaintiff’s CASp Inspection 3 Report). 4 9. The remedial measures set forth on Exhibit A shall be completed within six 5 months of the date that this CONSENT DECREE is signed by the Court. In the event that 6 unforeseen difficulties arise and prevent the DEFENDANTS from completing the remedial 7 work within the specified timeframes, DEFENDANTS or their counsel will notify Plaintiff’s 8 counsel, in writing, within thirty (30) days after discovering any such difficulty. Any such 9 notification will only excuse a delay in the timeframe to complete the remedial work, and will 10 not excuse the performance of the remedial work. DEFENDANTS will promptly notify 11 Plaintiff’s counsel upon completion of the corrective work. 12 UNRESOLVED ATTORNEYS’ FEES, COSTS, AND LITIGATION EXPENSES 13 14 10. DEFENDANTS acknowledge that PLAINTIFF is the prevailing party in the 15 action for purposes of his entitlement to attorneys’ fees, costs, and litigation expenses, and 16 agree that they will not dispute PLAINTIFF’S entitlement to such fees, costs, and litigation 17 expenses in opposition to any motion PLAINTIFF may bring for same. 18 11. The PARTIES have not, however, reached an agreement regarding the 19 amount of PLAINTIFF’s attorneys’ fees, costs, and litigation expenses incurred in this action, 20 and which may hereafter be incurred. These unresolved issues shall be subject to further 21 negotiation, settlement, and/or motion to the Court. Should the PARTIES reach an agreement 22 as to the amount of PLAINTIFF’S attorneys’ fees, costs and litigation expenses, the terms of 23 such agreement will be set forth in a new and separate settlement agreement. Nothing set forth 24 here seeks to, in any way, limit the PLAINTIFF’S past, present, or future rights or remedies to 25 recover his attorneys’ fees, costs, and litigation expenses in connection with the allegations set 26 forth in the Second Amended Complaint or otherwise. 27 // 28 // CONSENT DECREE Page 4 1 12. The PARTIES agree, and the Court hereby orders, that the Plaintiff may 2 file a motion for attorneys’ fees, costs, and litigation expenses at any time up to ninety (90) 3 days following the entry of the Court’s Order hereon. 4 5 FULL CONSENT ORDER 6 13. This CONSENT DECREE, including Exhibit “A,” which is incorporated by 7 reference as fully set forth herein, constitutes the entire agreement between the signing 8 PARTIES on all matters of injunctive relief, damages, and liability. No other statement, 9 promise, or agreement, whether oral or written, made by the PARTIES not contained in this 10 CONSENT DECREE shall be enforceable regarding matters of injunctive relief and liability. 11 12 DURATION OF CONSENT DECREE 13 14. This CONSENT DECREE shall be in full force and effect for a period of twelve 14 (12) months after the date of entry of this CONSENT DECREE or until the injunctive relief 15 contemplated by this CONSENT DECREE is completed, whichever occurs later. The Court 16 shall retain jurisdiction of this action to enforce this CONSENT DECREE for twelve (12) 17 months after the date of this CONSENT DECREE, or until the relief contemplated by this 18 CONSENT DECREE is completed, whichever occurs later. The Stipulation as to Liability set 19 forth in Paragraph 6 of this pleading shall survive the termination of the Court’s jurisdiction 20 hereunder. 21 22 SEVERABILITY 23 15. If any term of this CONSENT DECREE is determined by the Court to be 24 unenforceable, all other terms contained herein shall remain nonetheless in full force and 25 effect. 26 // 27 // 28 // CONSENT DECREE Page 5 1 2 SIGNATORIES BINDING PARTIES 16. Signatories on behalf of the PARTIES represent that they are authorized to bind 3 the PARTIES to this CONSENT DECREE. This CONSENT DECREE may be signed in 4 counterparts and a facsimile or e-mail signature shall have the same force and effects as an 5 original signature. 6 7 8 9 AGREEMENT BINDING ON SUCCESSORS 17. The PARTIES agree that the terms of this CONSENT DECREE shall bind them as well as their heirs, assigns, and successors in interest. 10 11 12 FINAL JUDGMENT 18. Upon approval and entry of this CONSENT DECREE by the Court, this 13 CONSENT DECREE shall constitute a final judgment of the Court in favor of PLAINTIFF 14 under Fed. R. Civ. P. 54 and 58. 15 16 April Entered this 10thday of ___________, 2017. ____ 17 /s/ Lawrence J. O'Neill UNITED STATES DISTRICT JUDGE 18 19 20 APPROVED AND CONSENTED TO BY THE PARTIES: 21 22 DATED: April 4, 2017 /s/ Michael L. Elder MICHAEL L. ELDER, ESQ. Attorney for Defendants, Gary Christian; Bonnie M. Christian; and Amanda Florez dba Public Auction R Us DATED: April 4, 2017 MISSION LAW FIRM, A.P.C. 23 24 25 26 27 28 /s/ Zachary M. Best ZACHARY M. BEST Attorneys for Plaintiff, Hendrik Block CONSENT DECREE Page 6

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