Riker v. Fox & Goose Public House et al

Filing 22

CONSENT DECREE AND ORDER signed by Judge John A. Mendez on 7/16/2009. (Matson, R)

PAUL L. REIN, Esq. (SBN 43053) CELIA MCGUINNESS, Esq. (SBN 159420) 2 LAW OFFICES OF PAUL L. REIN 200 Lakeside Drive, Suite A 3 Oakland, CA 94612 Telephone: [phone] Facsimile: 510/832-4787
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JULIE A. OSTIL, Esq. (SBN 215202) LAW OFFICE OF JULIE OSTIL 6 1989 Santa Rita Road, No. A-405 Pleasanton, CA 94566 7 Telephone: [phone] Facsimile: 925/999-9465
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Attorneys for Plaintiff JEAN RIKER

JOHN R. HALUCK, Esq. (SBN 90956) LAFOLLETTE, JOHNSON, DE HAAS, FESSLER & AMES 11 655 University Avenue, Suite 119 Sacramento, CA 95825 12 Telephone: [phone] Facsimile: 916/565-3704
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Attorneys for Defendants FOX & GOOSE PUBLIC HOUSE; A.C. DALTON, INC.; ALYSON DALTON; 15 FRED DAVID, as an individual and as TRUSTEE OF THE DAVID REVOCABLE 16 INTER VIVOS TRUST
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA JEAN RIKER, Plaintiff, v. CONSENT DECREE and ORDER CASE NO. 2:08-CV-02090 JAM/DAD Civil Rights

FOX & GOOSE PUBLIC HOUSE; A.C. DALTON, INC.; ALYSON 24 DALTON; FRED DAVID, as an individual and as TRUSTEE OF 25 THE DAVID REVOCABLE INTER VIVOS TRUST; and DOES 1-10, 26 inclusive,
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Defendants.

/

PAUL L. REIN
200 L A K E S I D E D R ., S U I T E A O A K L A N D , C A 94612-3503 [phone]

C ONSE NT DECREE AND [PROPOSED] ORDER CASE NO. 2:08-CV-02090 JAM/DAD

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1.

Plaintiff JEAN RIKER filed a Complaint in this action on

September 5, 2008, to obtain recovery of damages for her discriminatory experiences, denial of access, and denial of her civil rights, and to enforce provisions of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12101 et seq., and California civil rights laws against Defendants FOX & GOOSE PUBLIC HOUSE; A.C. DALTON, INC.; ALYSON DALTON; and FRED DAVID, as an individual and as TRUSTEE OF THE DAVID REVOCABLE INTER VIVOS TRUST, relating to the condition of their public accommodations as of Plaintiff's visit on or about March 17, 2008, and continuing. Plaintiff has alleged that Defendants violated Title III of the ADA and sections 51, 52, 54, 54.1, 54.3 and 55 of the California Civil Code, and sections 19955 et seq. of the California Health & Safety Code by failing to provide full and equal access to their facilities at the Fox & Goose Public House in Sacramento, California. 2. Defendants FOX & GOOSE PUBLIC HOUSE; A.C. DALTON, INC.; ALYSON DALTON; and FRED DAVID, as an individual and as TRUSTEE OF THE DAVID REVOCABLE INTER VIVOS TRUST deny the allegations in the Complaint and by entering into this Consent Decree and Order do not admit liability to any of the allegations in Plaintiff's Complaint filed in this action. The parties hereby enter into this Consent Decree and Order for the purpose of resolving this lawsuit without the need for protracted litigation and without the admission of any liability. JURISDICTION: 3. The parties to this Consent Decree agree that the Court has jurisdiction of this matter pursuant to 28 U.S.C. § 1331 for alleged violations of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101 et seq. and pursuant to supplemental jurisdiction for alleged violations of California Health
C ONSE NT DECREE AND [PROPOSED] ORDER CASE NO. 2:08-CV-02090 JAM/DAD

PAUL L. REIN
200 L A K E S I D E D R ., S U I T E A O A K L A N D , C A 94612-3503 [phone]

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& Safety Code §§ 19955 et seq.; Title 24, California Code of Regulations; and California Civil Code §§ 51, 52, 54, 54.1, 54.3, and 55. 4. In order to avoid the costs, expense, and uncertainty of protracted litigation, the parties to this Consent Decree agree to entry of this Order to resolve all claims regarding injunctive relief raised in the Complaint filed with this Court. Accordingly, they agree to the entry of this Order without trial or further adjudication of any issues of fact or law concerning Plaintiff's claims for injunctive relief. WHEREFORE, the parties to this Consent Decree hereby agree and stipulate to the Court's entry of this Consent Decree and Order, which provides as follows: SETTLEMENT OF INJUNCTIVE RELIEF: 5. This Order shall be a full, complete, and final disposition and settlement of Plaintiff's claims against Defendants for injunctive relief that have arisen out of the subject Complaint. The parties agree that there has been no admission or finding of liability or violation of the ADA and/or California civil rights laws, and this Consent Decree and Order should not be construed as such. 6. The parties agree and stipulate that the corrective work will be performed in compliance with the standards and specifications for disabled access as set forth in the California Code of Regulations, Title 24-2, and Americans with Disabilities Act Accessibility Guidelines, unless other standards are specifically agreed to in this Consent Decree and Order. a) Remedial Measures: The corrective work agreed upon by the parties is attached hereto as Attachment A, the report and recommendations of plaintiff's expert Jonathan Adler. Defendants agree to undertake all of the remedial work as set forth therein. b) Timing of Injunctive Relief: Defendants will submit plans
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PAUL L. REIN
200 L A K E S I D E D R ., S U I T E A O A K L A N D , C A 94612-3503 [phone]

C ONSE NT DECREE AND [PROPOSED] ORDER CASE NO. 2:08-CV-02090 JAM/DAD

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for all corrective work to the appropriate governmental agencies within 30 days of the entry of this Consent Decree by the Court. Defendants will commence work within 30 days of receiving approval from the appropriate agencies. Defendants will complete the work within 30 days of commencement. For work not requiring building permits, the work will be completed within 60 days of entry of this Consent Decree and Order by the Court. In the event that unforeseen difficulties prevent Defendants from completing any of the agreed-upon injunctive relief, Defendants or their counsel will notify Plaintiff's counsel in writing within 15 days of discovering the delay. Defendants or their counsel will notify Plaintiff's counsel when the corrective work is completed, and in any case will provide a status report no later than 120 days from the entry of this Consent Decree. DAMAGES, ATTORNEY FEES, LITIGATION EXPENSES AND COSTS: 7. The parties have not reached an agreement regarding Plaintiff's claims for damages, attorney fees, litigation expenses and costs. These issues shall be the subject of further negotiation, litigation, and/or motions to the Court. ENTIRE CONSENT ORDER: 8. This Consent Decree and Order and Attachment A to this Consent Decree, which is incorporated herein by reference as if fully set forth in this document, constitute the entire agreement between the signing parties on the matters of injunctive relief, and no other statement, promise or agreement, either written or oral, made by any of the parties or agents of any of the parties that is not contained in this written Consent Decree and Order shall be enforceable regarding the matters of injunctive relief described herein. This Consent Decree and Order applies to Plaintiff's claims for injunctive relief only and does not resolve Plaintiff's claims for damages, attorney fees, litigation expenses and costs, which shall be the subject of further negotiation and/or litigation.
C ONSE NT DECREE AND [PROPOSED] ORDER CASE NO. 2:08-CV-02090 JAM/DAD

PAUL L. REIN
200 L A K E S I D E D R ., S U I T E A O A K L A N D , C A 94612-3503 [phone]

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CONSENT DECREE AND ORDER BINDING ON PARTIES AND SUCCESSORS IN INTEREST: 9. This Consent Decree and Order shall be binding on Plaintiff JEAN

RIKER; Defendants FOX & GOOSE PUBLIC HOUSE; A.C. DALTON, INC.; ALYSON DALTON; and FRED DAVID, as an individual and as TRUSTEE OF THE DAVID REVOCABLE INTER VIVOS TRUST; and any successors in interest. The parties have a duty to so notify all such successors in interest of the existence and terms of this Consent Decree and Order during the period of the Court's jurisdiction of this Consent Decree and Order. MUTUAL RELEASE AND WAIVER OF CIVIL CODE SECTION 1542 AS TO INJUNCTIVE RELIEF ONLY: 10. Each of the parties to this Consent Decree understands and agrees

that there is a risk and possibility that, subsequent to the execution of this Consent Decree, any or all of them will incur, suffer or experience some further loss or damage with respect to the lawsuit which are unknown or unanticipated at the time this Consent Decree is signed. Except for all obligations required in this Consent Decree, the parties intend that this Consent Decree apply to all such further loss with respect to the lawsuit, except those caused by the parties subsequent to the execution of this Consent Decree. Therefore, except for all obligations required in this Consent Decree, this Consent Decree shall apply to and cover any and all claims, demands, actions and causes of action by the parties to this Consent Decree with respect to the lawsuit, whether the same are known, unknown or hereafter discovered or ascertained, and the provisions of Section 1542 of the California Civil Code are hereby expressly waived. Section 1542 provides as follows: 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
C ONSE NT DECREE AND [PROPOSED] ORDER CASE NO. 2:08-CV-02090 JAM/DAD

PAUL L. REIN
200 L A K E S I D E D R ., S U I T E A O A K L A N D , C A 94612-3503 [phone]

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EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR. This waiver applies to the injunctive relief aspects of this action only and does not include resolution of Plaintiff's claims for damages, attorney fees, litigation expenses and costs. 11. Except for all obligations required in this Consent Decree, and exclusive of the referenced continuing claims for damages, statutory attorney fees, litigation expenses and costs, each of the parties to this Consent Decree, on behalf of each, their respective agents, representatives, predecessors, successors, heirs, partners and assigns, releases and forever discharges each other Party and all officers, directors, shareholders, subsidiaries, joint venturers, stockholders, partners, parent companies, employees, agents, attorneys, insurance carriers, heirs, predecessors, and representatives of each other Party, from all claims, demands, actions, and causes of action of whatever kind or nature, presently known or unknown, arising out of or in any way connected with the lawsuit. TERM OF THE CONSENT DECREE AND ORDER: 12. This Consent Decree and Order shall be in full force and effect for a period of twelve (12) months after the date of entry of this Consent Decree and Order, or until the injunctive relief contemplated by this Order is completed, whichever occurs later. The Court shall retain jurisdiction of this action to enforce provisions of this Order for twelve (12) months after the date of this Consent Decree, or until the injunctive relief contemplated by this Order is completed, whichever occurs later. SEVERABILITY: 13. If any term of this Consent Decree and Order is determined by any court to be unenforceable, the other terms of this Consent Decree and Order shall
C ONSE NT DECREE AND [PROPOSED] ORDER CASE NO. 2:08-CV-02090 JAM/DAD

PAUL L. REIN
200 L A K E S I D E D R ., S U I T E A O A K L A N D , C A 94612-3503 [phone]

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nonetheless remain in full force and effect. SIGNATORIES BIND PARTIES: 14. Signatories on the 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 counterparts and a facsimile signature shall have the same force and effect as an original signature.

Dated: ________, 2009

PLAINTIFF JEAN RIKER __________________________________ JEAN RIKER

Dated: ________, 2009

DEFENDANTS FOX & GOOSE PUBLIC HOUSE; A.C. DALTON, INC.; ALYSON DALTON By: __________________________________ ALYSON DALTON

Dated: ________, 2009

DEFENDANT FRED DAVID, as an individual and as TRUSTEE OF THE DAVID REVOCABLE INTER VIVOS TRUST By: __________________________________ FRED DAVID

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C ONSE NT DECREE AND [PROPOSED] ORDER CASE NO. 2:08-CV-02090 JAM/DAD

PAUL L. REIN
200 L A K E S I D E D R ., S U I T E A O A K L A N D , C A 94612-3503 [phone]

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APPROVED AS TO FORM: Dated: ________, 2009 PAUL L. REIN CELIA McGUINNESS LAW OFFICES OF PAUL L. REIN JULIE OSTIL LAW OFFICE OF JULIE OSTIL

By: _____________________________ Attorneys for Plaintiff JEAN RIKER

Dated: ________, 2009

JOHN R. HALUCK LA FOLLETTE, JOHNSON, DE HASS, FESLER & JAMES By: _____________________________ Attorneys for Defendants FOX & GOOSE PUBLIC HOUSE; A.C. DALTON, INC.; ALYSON DALTON; FRED DAVID, as an individual and as TRUSTEE OF THE DAVID REVOCABLE INTER VIVOS TRUST

PAUL L. REIN
200 L A K E S I D E D R ., S U I T E A O A K L A N D , C A 94612-3503 [phone]

C ONSE NT DECREE AND [PROPOSED] ORDER CASE NO. 2:08-CV-02090 JAM/DAD

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ORDER Pursuant to stipulation, and for good cause shown, IT IS SO ORDERED. Dated: July 16, 2009 /s/ John A. Mendez Honorable JOHN A. MENDEZ United States District Judge

PAUL L. REIN
200 L A K E S I D E D R ., S U I T E A O A K L A N D , C A 94612-3503 [phone]

C ONSE NT DECREE AND [PROPOSED] ORDER CASE NO. 2:08-CV-02090 JAM/DAD

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