Johnson v. Diggler & Wad, L.L.C et al

Filing 34

CONSENT DECREE and ORDER signed by Senior Judge Morrison C. England, Jr on 08/09/22 CASE CLOSED(Licea Chavez, V)

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Center for Disability Access
Amanda Seabock, Esq., SBN 289900
Dennis Jay Price, II, Esq., SBN 279082
100 Pine St., Ste 1250
San Francisco, CA 94111
Tel: [phone]; Fax:[phone]
Email: [e-mail]
Attorneys for Plaintiff

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Christopher K. Eley, Esq., SBN 90897
221 Tuxedo Court, Suite E
Stockton, CA 95204
Tel: [phone]; Fax: [phone]
Email: [e-mail]
Attorney for Defendant DIGGLER and WAD, LLC
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA

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Case No. 2:14-cv-02296-MCE-KJN

Scott Johnson,
Plaintiff,

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CONSENT DECREE AND ORDER

v.
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Diggler & Wad, L.L.C., a California
Limited Liability Company;
Hyphy Smokers Club Inc., a
California Corporation; and Does 110,

Hon. Morrison C. England, Jr.
Hon. Kendall J. Newman

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Defendants.
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TO THE COURT, ALL INTERESTED PARTIES AND ATTORNEYS OF RECORD:

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1.

Plaintiff SCOTT JOHNSON, filed this action (known as Case No. 2:14-cv-02296-

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MCE-KJN) against Defendants seeking money damages and injunctive relief for,

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inter alia, violations of the Americans with Disabilities Act of 1990 (the "ADA"),

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Unruh Civil Rights Act and corresponding state law claims, as well as common

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law claims, in the United States District Court for the Eastern District of

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California on October 1, 2014. Dkt. 1.

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2.

Defendant Hyphy Smokers Club Inc. has been dismissed from this matter. Dkt.
15.
CONSENT DECREE AND ORDER
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3.

Plaintiff filed a motion for summary judgment against Defendant Diggler & Wad

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LLC on March 6, 2020, seeking money damages in the amount of $16,000 and an

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Order to make the parking, door hardware, transaction counter(s), and restroom(s)

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accessible.1 Dkt. 22.

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4.

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On March 25, 2020, Defendant filed a statement with the court accepting the
$16,000 award against it. Dkt. 24.

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Defendant and Plaintiff (collectively sometimes referred to herein as the “Parties” or

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separately as a “Party”) wish to settle and hereby desire to enter into this Consent Decree. The

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Parties hereby enter into this Consent Decree and Order for the purpose of resolving the lawsuit

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without the need for protracted litigation, and without the admission of any liability by either

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Party whatsoever, including but not limited to liability as to the issues of damages and/or fees.

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JURISDICTION:

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5.

Plaintiff asserts that the Court has jurisdiction of this matter for alleged violations

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of the Americans with Disabilities Act of 1990, 42 U.S.C. 12101, et seq., pursuant

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to supplemental jurisdiction under California’s Unruh Civil Rights Act, and 28

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U.S.C. §1331, §1343(a)(3) and (a)(4) and §1391(b).
6.

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In order to avoid the costs, expense, and uncertainty of protracted litigation, the

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Parties agree to entry of this Order to resolve all claims raised in the above-

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entitled Action. Accordingly, the Parties agree to the entry of the proposed Order

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related to this Consent Decree without trial or further adjudication of the issues

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addressed herein.
WHEREFORE, the Parties hereby agree and stipulate to the Court’s entry of this

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Consent Decree and Order, which provides as follows:

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This is more fully set forth in Exhibit A, attached hereto.
CONSENT DECREE AND ORDER
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SETTLEMENT OF INJUNCTIVE RELIEF:

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

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Plaintiff’s claims against Defendants and any other parties for damages, fees, and

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injunctive relief that have arisen out of the acts and/or omissions alleged, or which

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could have been alleged, in the subject Complaint.

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compliance with Exhibit “A” attached hereto

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The Parties agree and stipulate that the corrective work will be performed in

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Timing of Injunctive Relief: Exhibit “A” also includes the estimated timeframe

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for completing the work described therein. In the event that unforeseen difficulties

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prevent Defendants from completing any of the agreed-upon injunctive relief

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

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counsel, in writing, within fifteen (15) days after discovering any such difficulties.

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Defendants, or their counsel, will promptly notify Plaintiff’s counsel when the

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corrective work is complete, and in any case, will provide a status report on or

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before December 31, 2022.

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ISSUES RELATED TO DAMAGES, ATTORNEYS FEES, LITIGATION
EXPENSES, AND COSTS:
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Per the Response filed by Defendant and the Joint Motion for Relief, the

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defendant will pay to plaintiff the amount of $16,000 in full and complete

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settlement of all claims for damages and/or fees and costs of any kind

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whatsoever. This payment shall be made as follows: Defendant will pay to

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Plaintiff $1,500 per month, beginning August 15, 2022, and continuing on the

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15th day of every month thereafter through February 15, 2023; Defendant shall

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make a final payment to Plaintiff of $1,000 on March 15, 2023. In the event a

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payment is not made timely, Plaintiff will notify counsel for Defendant via

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email. Defendant will have ten (10) days to cure. If Defendant fails to cure, the

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entire amount will be due immediately. Plaintiff reserves the right to seek all fees

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and costs related to the enforcement of this Consent Decree and Order.
CONSENT DECREE AND ORDER
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ENTIRE CONSENT ORDER:

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This Consent Decree and Order and Exhibit “A” to the Consent Decree, which is

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incorporated herein by reference as if fully set forth in this document, constitute

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the entire agreement between the signing Parties on all matters and no other

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statement, promise, or agreement, either written or oral, made by any of the

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Parties or agents of any of the Parties, that is not contained in this written Consent

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Decree and Order, shall be enforceable regarding the matters of injunctive relief

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specifically described herein.
TERM OF THE CONSENT DECREE AND ORDER:

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12.

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This Consent Decree and Order shall be in full force and effect for a period of

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twenty-four (24) months after the date of entry of this Consent Decree and Order,

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or until the injunctive relief contemplated by this Order is completed, whichever

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occurs later. The Court shall retain jurisdiction of this action to enforce provisions

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of this Order for twenty-four (24) months after the date of this Consent Decree, or

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until the relief contemplated by this Order is completed, whichever occurs later.

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SEVERABILITY:

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If any term of this Consent Decree and Order is determined by any court to be

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unenforceable, all other terms of this Consent Decree and Order shall nonetheless

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remain in full force and effect.

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CONSENT DECREE AND ORDER
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SIGNATORIES BIND PARTIES:

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Signatories on the behalf of the Parties represent that they are authorized to bind

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the Parties to this Consent Decree and Order. This Consent Decree and Order may

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be signed in counterparts and a facsimile or e-mail signature shall have the same

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force and effect as an original signature.

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Electronic signatures may also bind the Parties and/or their representative(s) as set

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forth in all applicable Local Rules. The undersigned counsel for Plaintiff does

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hereby attest that all electronic signatures are affixed only with the express written

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permission of the signatory.

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Respectfully Submitted,

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Dated: July 27, 2022

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CENTER FOR DISABILITY ACCESS
By:

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/s/ Amanda Seabock
Amanda Seabock, Esq.
Attorney for Plaintiff

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Dated: July 27, 2022
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By:
/s/ Christopher K. Eley
Christopher K. Eley, Esq.
Attorney for Defendant
DIGGLER and WAD, LLC

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IT IS SO ORDERED.
Dated: August 9, 2022

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CONSENT DECREE AND ORDER
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