Lawson v. City of Stockton

Filing 28

FULL CONSENT DECREE ORDER AND JUDGMENT signed by Judge Frank C. Damrell, Jr on 12/3/09. (Kaminski, H)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
158 HILLTOP CRESCENT WALNUT CREEK, CA 94597-3452 [phone]

TIMOTHY S. THIMESCH, ESQ. (No. 148213) GENE FARBER, ESQ. (No. 44215) ­ Of Counsel 158 Hilltop Crescent Walnut Creek, CA 94597 Direct: [phone] Facsimile: [phone] [e-mail] [e-mail] Attorney for Plaintiff WILLIAM LAWSON RICHARD E. NOSKY, JR., City Attorney State Bar No. 130726 SHELLEY L. GREEN, Assistant City Attorney State Bar No. 161521 425 N. El Dorado Street, Second Floor Stockton, California 95202 Telephone: [phone] Attorneys for Defendant CITY OF STOCKTON

U.S. DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA WILLIAM LAWSON, Plaintiff, v. CITY OF STOCKTON; and DOES 1 through 50, Inclusive, Defendant. / Case No. 2:08-CV-01101-FCD-JFM Civil Rights FULL CONSENT DECREE ORDER AND JUDGMENT

FULL CONSENT DECREE ORDER AND JUDGMENT 1. disability wheelchair Plaintiff whose for WILLIAM LAWSON requires Defendant is the CITY a person with use of a a

condition

fulltime OF

mobility.

STOCKTON

owns,

operates, controls and maintains the following relevant public rights of way within city limits:

Consent Decree Judgment and Order: Case No. 2:08-CV-01101-FCD-JFM

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
158 HILLTOP CRESCENT WALNUT CREEK, CA 94597-3452 [phone]

a)

The pedestrian and vehicular undercrossing on

South Wilson Way between E. Hazelton Ave. and E. Anderson Street (Hereafter referred to as "Wilson Way Undercrossing"), and b) The pedestrian and vehicular undercrossing on

East Charter Way between S. Grant Street and South Airport Way (Hereafter referred to as "Charter Way Undercrossing").

(Hereafter, together, the two undercrossings shall be referred to as the "Subject Undercrossings".)

2.

Plaintiff

WILLIAM

LAWSON

filed

this

action

for

himself and all other similarly situated members of the public, and against defendant City of Stockton ("Defendant"), to

vindicate the public rights under Title II of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12101 et seq.; Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §794; and thru Code 54 corresponding Sections and 11135 et California and seq.; law, including Civil 24 of Code the

Government Sections

4450-4456; and Title

51,

54.1,

California Code of Regulations. 3. statutes Plaintiff and their alleges that defendant regulations violated by these to

corresponding

failing

provide full and equal access to the pedestrian rights of way at the Subject Undercrossings. facilities and their Specific identification of the has been identified by

deficiencies

plaintiff through an expert's report and schematic drawings. 4. Plaintiff alleges that the Subject Undercrossing, and
2

Consent Decree Judgment and Order: Case No. 2:08-CV-01101-FCD-JFM

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
158 HILLTOP CRESCENT WALNUT CREEK, CA 94597-3452 [phone]

the adjoining roadways, have undergone construction triggering the requirement in of the full compliance areas, with and state that and a federal further

regulations

altered

programmatic obligation is imposed on these facilities since the City is qualified government entity regulated by Title II of the ADA, and additionally pursuant to California Government Code Section 11135 and federal Section 504 of the

Rehabilitation Act of 1973, which imposes similar obligations on government entities that receive federal, state and/or local public funds.

STIPULATIONS 5. Plaintiff's Qualified Disability. Plaintiff is a

qualified person with a physical disability. fulltime use of a wheelchair for mobility. 6. Plaintiff's Residence and Status

He requires the

as

Aggrieved

and He

Potentially Aggrieved.

Plaintiff alleges he has standing.

lives approximately 5 miles from the closest undercrossing on Charter Way, which is near businesses that he frequents. He

also works less than 2 tenths of a mile from the undercrossing on Wilson Way, which is also near businesses he frequents. While the City does not admit all of the specifics of the foregoing allegations, it agrees that it is aware of sufficient undisputed "aggrieved facts and to support plaintiff's qualification the as

potentially

aggrieved"

under

relevant

statutes, and to support his standing under Article III of the U.S. Constitution. 7. Ownership, Control, Operation and Maintenance of the
3

Consent Decree Judgment and Order: Case No. 2:08-CV-01101-FCD-JFM

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
158 HILLTOP CRESCENT WALNUT CREEK, CA 94597-3452 [phone]

Subject

Undercrossings.

Defendant

CITY

OF

STOCKTON

owns,

operates, controls and maintains the Subject Undercrossings. 8. Receipt of Federal, State and Local Funding. For

purposes of this decree, defendant CITY OF STOCKTON admits that it receives federal, state and local funding, and additionally that such funding has been used to build, alter and maintain the relevant portions of the Subject Undercrossings, including the adjoining vehicular roadways passing under the

undercrossing. 9. facilities Construction History. The parties stipulate that all in issue have undergone sufficient and recent

alteration and/or new construction to require at least some level of compliance with the requirements of the 1998 Edition of Title 24, Part 2, of the California Code of Regulations and the Americans With Disabilities Act Access Guidelines published in 1992. Full The scope of facilities to be corrected under this Decree Order and Judgment are identified in

Consent

paragraph 10. 10. facilities Scope of Facilities in Issue. affected by this Full The following are the Decree Order and

Consent

Judgment: The absence of a vertical means of access to the undercrossing's public sidewalks at each of the seven currently non-compliant locations requiring the pedestrian to ascent a vertical curb or steps to access the walkway; i.e., at every end of the four undercrossing sidewalks which have steps and curbs, but excluding the ramp at the southeast end of Charter Way, which already complies with state and federal access

codes.
Consent Decree Judgment and Order: Case No. 2:08-CV-01101-FCD-JFM

4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
158 HILLTOP CRESCENT WALNUT CREEK, CA 94597-3452 [phone]

JURISDICTION 11. are The facts requisite to federal jurisdiction and venue This Court has jurisdiction pursuant to 28

admitted.

U.S.C. § 1331 for the alleged violations of the ADA, 42 U.S.C. §§ 12101, et seq. Article III jurisdiction is proper due to

the plaintiff's continued exposure and proximity for use of the Subject Undercrossings. Pendant jurisdiction of the state law

claims arises from a common nucleus of fact and is proper. Venue and intra-district jurisdiction is proper as the property in issue is located in San Joaquin County. 12. This Full Consent Decree Order and Judgment is

contingent upon Court approval and acceptance of its terms, and the normal retention of jurisdiction to interpret and enforce terms. 13. The parties agree to entry of this Full Consent

Decree Order and Judgment in order to resolve the below listed allegations raised in the Complaint filed with this Court on May 20, 2008. Accordingly, they agree to the entry of this

Full Consent Decree Order and Judgment without trial or further adjudication of any issues of fact or law concerning the issues specified herein. WHEREFORE, the parties hereby agree and stipulate to the Court's entry of this Full Consent Decree Order and Judgment, which provides as follows:

FULL RESOLUTION OF ISSUES: 14. This Full Consent Decree Order and Judgment shall be

a full, complete, and final disposition and settlement of the
Consent Decree Judgment and Order: Case No. 2:08-CV-01101-FCD-JFM

5

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
158 HILLTOP CRESCENT WALNUT CREEK, CA 94597-3452 [phone]

below claims that have been or could have been alleged in the Complaint, including for injunctive relief, declaratory relief, statutory and compensatory damages, including personal and

bodily injury, and plaintiff's claims for reasonable statutory attorney fees, litigation expenses and costs. This Full

Consent Decree Order and Judgment was negotiated and reached through negotiations between the parties. The Court shall

retain jurisdiction of this action to enforce and interpret this Full Consent Decree Order and Judgment. The parties agree

that if they or any of them seek Court enforcement of this Full Consent Decree Order and Judgment, any such enforcement will be by noticed motion, application or other appropriate request for an order for specific performance and that a contempt citation or decree will not be sought by any party. With respect to the

injunctive relief and damage claims resolved by this Order, the parties acknowledge that they waive the provisions of and any benefits that may be conferred by Civil Code section 1542 which reads: 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 OR HER SETTLEMENT WITH THE DEBTOR.

INJUNCTIVE RELIEF 15. City of As a part of a compromise of global liability, the Stockton work to ["City"] provide agrees that it will at perform the the

following

disabled

access

Subject
6

Consent Decree Judgment and Order: Case No. 2:08-CV-01101-FCD-JFM

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
158 HILLTOP CRESCENT WALNUT CREEK, CA 94597-3452 [phone]

Undercrossings: A. The City has already, or will immediately, post

a temporary, but durable sign at the east end of the ramp and sidewalk on the South side of the Charter Way Undercrossing indicating that the sidewalk is not accessible to disabled

persons, and in substantially the following manner: The sign shall have an arrow pointing in the westward direction of

travel, and use the following language: "Warning Steps at West End of Sidewalk, No Disabled Access." B. Within 1 year of entry of this Full Consent

Decree Order and Judgment, the City shall install a compliant ramp with complaint handrails, compliant landings, a compliant clear width, and compliant or wheel guards, etc. (hereafter of vertical

"Compliant

Ramp"),

another

compliant

means

access to the undercrossing's walkway at the southwest end of the Charter Way Undercrossing, which shall be connected to a compliant cross-walk leading a compliant curb-ramp at the

closest adjacent sidewalk. C. Within 5 years of entry of this Full Consent

Decree Order and Judgment, the City shall install a Compliant Ramp or another compliant means of vertical access at each end of one side of the Wilson Way pedestrian undercrossing that is currently accessible only by ascending curbs or steps (i.e., on one side the street only and at the northeast and southeast ends of the sidewalk serving the Wilson Way Undercrossing). These Compliant Ramps shall each be connected to a compliant cross-walk leading to a compliant curb-ramp at the closest

adjacent sidewalk.
Consent Decree Judgment and Order: Case No. 2:08-CV-01101-FCD-JFM

7

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
158 HILLTOP CRESCENT WALNUT CREEK, CA 94597-3452 [phone]

D. stipulate compromise

Compromise of Statutory Obligations. The parties the the forgoing City's remedial work is strictly a

that of

programmatic

services

obligations

under Section 202 and 204 of the ADA [42 USC §§ 12132 and 12134], shall be deemed work to "Existing Facilities" 28 CFR §35.150, and thus any its performance shall duties Section not be treated as

triggering

additional Government Code

under 4456

§35.151

("alterations")or

("alterations

and structural repairs"). 16. Performance Standards. All of the foregoing

facilities specified in paragraph 15 shall be brought into full and strict compliance with the performance standards for new construction of the California Code of Regulations, Title 24-2 (2008), and Americans with Disabilities Act Accessibility

Guidelines, effective January 26, 1992. 17. Conflict in Performance Standards. The parties

acknowledge that each of the architectural features specified in paragraph to 15 are regulated access" in near parallel Title fashion 24 and and as the the

"barriers Americans

disabled

under Act

both

with

Disabilities

Guidelines,

corresponding statutory remedies.

However, in the event of a

conflict between the two sets of regulations identified in the proceeding paragraph, the provisions that supply maximum

protection and accessibility to the disabled shall apply. 18. Option to Close Facilities. In lieu of making

modification to any particular facility or amenity called for by this decree, the defendant may choose to permanently close such facility or amenity from public use.
Consent Decree Judgment and Order: Case No. 2:08-CV-01101-FCD-JFM

Such facilities
8

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
158 HILLTOP CRESCENT WALNUT CREEK, CA 94597-3452 [phone]

shall not be reopened for public use without provision of full disabled access pursuant to the terms of paragraph 15. 19. Time for Compliance. As to all other work, defendant

shall submit plans and apply for any necessary permits and complete periods all work specified therein, to in paragraph allowing 15 for weather, per the time faith

specified due

good

interruptions

inclement

contractor

unavailability, and other causes generally recognized under the common law Doctrine of Force Majeure. Permits from the

building department shall be secured for all work. Defendant will provide written notice regarding the status of completion within 60 days of after each deadline specified in paragraph 15 thru 18. 20. aware of Enforcement. any facts Should plaintiff in the future become or conditions relating to the Subject

Undercrossings that may give rise to a claim that defendant has failed to comply with any of the injunctive relief provisions set forth herein, plaintiff shall, prior to seeking enforcement from this Court, provide notice to the City Attorney's Office. The defendant shall have sixty (60) days, following receipt of such notification to undertake to correct the alleged violation and/or respond to plaintiff's allegations. by defendant shall be in writing, Any response made to plaintiff's

addressed

counsel, Tim Thimesch of the Thimesch Law Offices, at his then current address registered with the State Bar. Plaintiff's

counsel agrees to contribute pro bono up to three hours in any given calendar year toward these informal negotiation efforts. If plaintiff determines, in his own good faith discretion, as
Consent Decree Judgment and Order: Case No. 2:08-CV-01101-FCD-JFM

9

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
158 HILLTOP CRESCENT WALNUT CREEK, CA 94597-3452 [phone]

constrained by the good faith requirements imposed by Rule 11, that the matter(s) are not resolved by defendant' response, plaintiff shall be permitted to file a noticed motion under the current case number of this action seeking enforcement of this Full Consent Decree Order and Judgment. The prevailing party in such motion proceedings, whether in full or in part, may be entitled to an award of reasonable attorney fees, litigation expenses and costs for such motion, i.e., pursuant to normal prevailing party standards that applied under the subject civil rights statutes before entry of this decree.

DECLARATORY RELIEF 21. in By this Full Consent Decree Order and Judgment, and of the global compromise on liability,

consideration

defendants stipulate that the barriers identified herein for correction, at paragraph 15, supra, constitute past and present violations of plaintiff's rights under Title II of the

Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12101 et seq.; Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §794; and thru corresponding California law,

including Government Code Sections 11135 and 4450-4456; Civil Code Sections 51, 54 and 54.1, et seq., and Title 24 of the California Code of Regulations. 22. Plaintiff has filed this action as a public interest

lawsuit, specifically alleging on page 1 lines 21 - 22 of his Complaint that he brings the action "on behalf of herself and other similarly situated disabled persons". The parties intend that, this Consent Decree and Order shall additionally
10

be

Consent Decree Judgment and Order: Case No. 2:08-CV-01101-FCD-JFM

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
158 HILLTOP CRESCENT WALNUT CREEK, CA 94597-3452 [phone]

binding upon all persons with disabilities similarly situated to plaintiff, found to be in privity with him, and thus, to

permitted by law, shall have the binding effect of res judicata and/or collateral estoppel. See Headwaters. Inc. v. U.S. Forest Service, 399 F.3d 1047 (9th Cir. 2005)

RESOLUTION OF CLAIM FOR REASONABLE STATUTORY DAMAGES: 23. Defendant of agrees to pay the for amount bodily of and $80,000 personal

satisfaction

plaintiff's

claims

injury and for statutory damages under Title II of the ADA, and Civil Code Sections 52 and 54.3. be made payable to "WILLIAM hands A check for this amount shall LAWSON," 21 and days delivered of into

plaintiff

counsel's

within

defendant' If

execution of this Full Consent Decree Order and Judgment. overnight mail is used, defendant shall supply

plaintiff's

counsel with a tracking number. 24. The parties stipulate that the foregoing amount is

intended to be paid in full to plaintiff, and understand that no part of it shall be received by plaintiff's counsel in

compensation toward plaintiff's separate claim for reasonable statutory attorney fees, litigation expenses, and costs.

RESOLUTION OF CLAIM FOR REASONABLE STATUTORY ATTORNEYS FEES, LITIGATION EXPENSES AND COSTS: 25. Defendant agree to pay the amount of $125,000

satisfaction of plaintiff's claims for interim and final claims for reasonable statutory attorney fees, litigation expenses and costs under Section 505 of the ADA [42 USC 12205]; Civil Code
Consent Decree Judgment and Order: Case No. 2:08-CV-01101-FCD-JFM

11

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
158 HILLTOP CRESCENT WALNUT CREEK, CA 94597-3452 [phone]

Sections 52, 54.3, and 55; Health & Safety Code Section 19953; and Code of Civil Procedure Section 1021.5. A check for this amount shall be made payable to "TIM THIMESCH, IN TRUST," and delivered 2009. If into plaintiff mail counsel's is used, hands on November shall 21,

overnight

defendant

supply

plaintiff's counsel with a tracking number.

FULL CONSENT DECREE ORDER AND JUDGMENT: 26. This Full Consent Decree Order and Judgment

constitutes the entire agreement between the parties on the matters of plaintiff's claims for injunctive relief, statutory and personal injury damages, and reasonable statutory attorney fees, litigation expenses and costs, and no other statement, promise, or agreement, either written or oral, made by any of the parties in or agents of any of the parties, that is not and

contained

this

written

Full

Consent

Decree

Order

Judgment, shall be enforceable regarding the matters described herein.

FULL CONSENT DECREE ORDER AND JUDGMENT BINDING ON PARTIES AND SUCCESSORS IN INTEREST: 27. entered The into parties this under agree and represent Decree and that they have

Full no

Consent duress,

Order

and

Judgment own

voluntarily,

wholly

upon

their

judgment, belief, and knowledge as to all matters related to this Full Consent Decree Order and Judgment, after having

received full advice from counsel. 28. This Full Consent Decree Order and Judgment shall be
12

Consent Decree Judgment and Order: Case No. 2:08-CV-01101-FCD-JFM

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
158 HILLTOP CRESCENT WALNUT CREEK, CA 94597-3452 [phone]

binding

on

Plaintiff

WILLIAM

LAWSON,

and

Defendant

CITY

OF

STOCKTON; and any successors in interest.

During the period of

this Full Consent Decree Order and Judgment, the parties have a duty to so notify terms all of such this successors Full in interest Decree of the and

existence

and

Consent

Order

Judgment during the period of the Court's jurisdiction of this Full Consent Decree Order and Judgment.

JOINT PREPARATION AND SEVERABILITY: 29. jointly This Full Consent Decree Order and Judgment is deemed prepared by all parties and shall not be strictly

construed against any party as its drafter.

If any term of

this Full Consent Decree Order and Judgment is determined by any court to be unenforceable, the other terms of this Full Consent Decree Order and Judgment shall nonetheless remain in full force and effect.

SIGNATORIES BIND PARTIES: 30. that they Signatories on the behalf of the parties represent are authorized to bind the parties to this Full

Consent Decree Order and Judgment.

SIGNATORIES BIND PARTIES: 31. This Full Consent Decree Order and Judgment may be

executed in counterpart signatures, and such signatures may be attached in counterparts, each of which shall be deemed an original, and which together shall constitute one and the same instrument. Such counterparts may be signed as faxed
13

Consent Decree Judgment and Order: Case No. 2:08-CV-01101-FCD-JFM

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
158 HILLTOP CRESCENT WALNUT CREEK, CA 94597-3452 [phone]

signatures,

which

shall

have

the

same

force

and

effect

as

original signatures.

Dated: /s/ Plaintiff WILLIAM LAWSON

Dated: /s/ CITY OF STOCKTON APPROVED AS TO FORM: Dated: November __, 2009 THIMESCH LAW OFFICES TIMOTHY S. THIMESCH, ESQ. GENE A. FARBER, ESQ. ­ Of Counsel

/s/ Attorneys for Plaintiff WILLIAM LAWSON

Dated: November __, 2009

RICHARD E. NOSKY, JR. CITY ATTORNEY SHELLEY L. GREEN ASSISTANT CITY ATTORNEY /s/ Attorneys for Defendant CITY OF STOCKTON

IT IS SO ORDERED. Date: December 3, 2009 FRANK C. DAMRELL, JR. UNITED STATES DISTRICT JUDGE

Consent Decree Judgment and Order: Case No. 2:08-CV-01101-FCD-JFM

14