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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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: [phone]
Facsimile: [phone]
Email: [e-mail]
Attorneys for Plaintiff,
Hendrik Block
Michael L. Elder, Esq. (SBN: 238036)
2491 Alluvial Ave., Suite 20
Clovis, CA 93611
T: [phone]
F: [phone]
Email: [e-mail]
Attorney for Defendants

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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HENDRIK BLOCK,
Plaintiff,

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vs.

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GARY CHRISTIAN; BONNIE M.
CHRISTIAN; AMANDA FLOREZ dba
PUBLIC AUCTION R US.
Defendants.

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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

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CONSENT DECREE

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As a result of Plaintiff, HENDRIK BLOCK (“PLAINTIFF”), and Defendants, GARY

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CHRISTIAN; BONNIE M. CHRISTIAN; and AMANDA FLOREZ dba PUBLIC AUCTION

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R US (“DEFENDANTS,” and together with PLAINTIFF, “the PARTIES”), having engaged in

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settlement negotiations, the PARTIES agree that this action should be finally resolved by entry

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of this CONSENT DECREE. This instant CONSENT DECREE was entered into by the

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PARTIES as an amicable way of resolving liability, and PLAINTIFF’S claims for injunctive

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relief and damages.

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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:

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1.

This Consent Decree is predicated on the Complaint, filed on May 9, 2016, and

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subsequent pleadings filed in this action in the United States District Court for the Eastern

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District of California seeking injunctive relief for violations of the Americans with Disabilities

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Act of 1990, 42 U.S.C. §§ 12181-12189 (“ADA”) and parallel California access laws; damages

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under state law; and the recovery of attorneys’ fees, costs and litigation expenses as permitted

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by both state and federal law. DEFENDANTS filed their Answer to the Complaint on August

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23, 2016.

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2.

DEFENDANTS and PLAINTIFF wish to settle the portion of the case relating

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to the issues of liability, injunctive relief, and damages, and hereby desire to enter into this

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CONSENT DECREE. The PARTIES hereby enter into this CONSENT DECREE for the

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purpose of resolving PLAINTIFF’ lawsuit without the need for further litigation, and to reserve

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for further settlement discussions or a motion to the Court the amount of attorneys’ fees, costs,

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and litigation expenses to which PLAINTIFF is entitled.

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JURISDICTION

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3.

All PARTIES agree that the present Court has jurisdiction of this matter for the

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alleged violations of the ADA under 28 U.S.C. §§ 1331 and 1343, as well as supplemental

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jurisdiction under 28 U.S.C. §§ 1367, 2201, and 2202 for the alleged violations of California

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law.
CONSENT DECREE

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4.

In an effort to expedite resolution of the issues, and avoid costs and expenses of

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xxxxxxxx
ongoing litigation, the PARTIES agree to entry of this [Proposed] Order to resolve the claims

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regarding injunctive relief raised in the above-entitled action. Accordingly, the PARTIES agree

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xxxxxxx
to the entry of the [Proposed] Order related to this CONSENT DECREE without trial or

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further adjudication of the issues addressed here, with the exception of the motion for

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attorneys’ fees and costs, pursuant to paragraph 10 of this CONSENT DECREE.

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RETENTION OF JURISDICTION FOR FEES MOTION
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As previously stated, the amount of PLAINTIFF’S entitlement to attorneys’

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fees, costs, and litigation expenses remains in contention and, accordingly, the PARTIES

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request that the Court retain jurisdiction over this matter solely to resolve such claims.

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SETTLEMENT OF INJUNCTIVE RELIEF, DAMAGES, AND LIABILITY ISSUES
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The CONSENT DECREE shall be a full and complete, final disposition and

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settlement of all PLAINTIFF’S claims against the DEFENDANTS for injunctive relief

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according to the issues that were addressed and pled in the Second Amended Complaint.

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Moreover, DEFENDANTS agree to pay statutory damages to PLAINTIFF in the amount of

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four thousand dollars ($4,000.00). The Settlement Payment shall be made payable to the

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Mission Law Firm, A.P.C. Trust Account and tendered to the Mission Law Firm, A.P.C., 332

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North Second Street, San Jose, California 95112 within ten (10) days of execution of the entry

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of this CONSENT DECREE and shall be in the form of a cashier’s check. This agreement

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shall serve as an admission of liability for the alleged ADA violation on the part of the

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DEFENDANTS.

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7.

DEFENDANTS agree that all corrective work required hereunder will be

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performed in compliance with the standards and specifications set forth in the2010 ADA

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Standards for Accessible Design and according to California Code of Regulations, Title 24,

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Part 2, Chapter 11B (known as the California Building Code), unless otherwise specified and

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agreed to in this CONSENT DECREE.
CONSENT DECREE

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8.

DEFENDANTS agree to undertake all of the remedial work identified as a

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“Required Modification” as set forth on Exhibit “A” hereto (the Plaintiff’s CASp Inspection

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Report).

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9.

The remedial measures set forth on Exhibit A shall be completed within six

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months of the date that this CONSENT DECREE is signed by the Court. In the event that

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unforeseen difficulties arise and prevent the DEFENDANTS from completing the remedial

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work within the specified timeframes, DEFENDANTS or their counsel will notify Plaintiff’s

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counsel, in writing, within thirty (30) days after discovering any such difficulty. Any such

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notification will only excuse a delay in the timeframe to complete the remedial work, and will

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not excuse the performance of the remedial work. DEFENDANTS will promptly notify

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Plaintiff’s counsel upon completion of the corrective work.

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UNRESOLVED ATTORNEYS’ FEES, COSTS, AND LITIGATION EXPENSES

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10.

DEFENDANTS acknowledge that PLAINTIFF is the prevailing party in the

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action for purposes of his entitlement to attorneys’ fees, costs, and litigation expenses, and

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agree that they will not dispute PLAINTIFF’S entitlement to such fees, costs, and litigation

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expenses in opposition to any motion PLAINTIFF may bring for same.

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11.

The PARTIES have not, however, reached an agreement regarding the

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amount of PLAINTIFF’s attorneys’ fees, costs, and litigation expenses incurred in this action,

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and which may hereafter be incurred. These unresolved issues shall be subject to further

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negotiation, settlement, and/or motion to the Court. Should the PARTIES reach an agreement

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as to the amount of PLAINTIFF’S attorneys’ fees, costs and litigation expenses, the terms of

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such agreement will be set forth in a new and separate settlement agreement. Nothing set forth

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here seeks to, in any way, limit the PLAINTIFF’S past, present, or future rights or remedies to

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recover his attorneys’ fees, costs, and litigation expenses in connection with the allegations set

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forth in the Second Amended Complaint or otherwise.

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CONSENT DECREE

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12.

The PARTIES agree, and the Court hereby orders, that the Plaintiff may

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file a motion for attorneys’ fees, costs, and litigation expenses at any time up to ninety (90)

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days following the entry of the Court’s Order hereon.

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FULL CONSENT ORDER

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13.

This CONSENT DECREE, including Exhibit “A,” which is incorporated by

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reference as fully set forth herein, constitutes the entire agreement between the signing

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PARTIES on all matters of injunctive relief, damages, and liability. No other statement,

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promise, or agreement, whether oral or written, made by the PARTIES not contained in this

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CONSENT DECREE shall be enforceable regarding matters of injunctive relief and liability.

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DURATION OF CONSENT DECREE

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14.

This CONSENT DECREE shall be in full force and effect for a period of twelve

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(12) months after the date of entry of this CONSENT DECREE or until the injunctive relief

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contemplated by this CONSENT DECREE is completed, whichever occurs later. The Court

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shall retain jurisdiction of this action to enforce this CONSENT DECREE for twelve (12)

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months after the date of this CONSENT DECREE, or until the relief contemplated by this

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CONSENT DECREE is completed, whichever occurs later. The Stipulation as to Liability set

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forth in Paragraph 6 of this pleading shall survive the termination of the Court’s jurisdiction

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hereunder.

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SEVERABILITY

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15.

If any term of this CONSENT DECREE is determined by the Court to be

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unenforceable, all other terms contained herein shall remain nonetheless in full force and

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effect.

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CONSENT DECREE

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SIGNATORIES BINDING PARTIES
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Signatories on behalf of the PARTIES represent that they are authorized to bind

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the PARTIES to this CONSENT DECREE. This CONSENT DECREE may be signed in

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counterparts and a facsimile or e-mail signature shall have the same force and effects as an

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original signature.

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AGREEMENT BINDING ON SUCCESSORS
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The PARTIES agree that the terms of this CONSENT DECREE shall bind them

as well as their heirs, assigns, and successors in interest.

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FINAL JUDGMENT
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Upon approval and entry of this CONSENT DECREE by the Court, this

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CONSENT DECREE shall constitute a final judgment of the Court in favor of PLAINTIFF

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under Fed. R. Civ. P. 54 and 58.

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April
Entered this 10thday of ___________, 2017.
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/s/ Lawrence J. O'Neill
UNITED STATES DISTRICT JUDGE

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APPROVED AND CONSENTED TO BY THE PARTIES:

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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.

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/s/ Zachary M. Best
ZACHARY M. BEST
Attorneys for Plaintiff,
Hendrik Block
CONSENT DECREE

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