Yates v. Auto City 76 et al

Filing 65

ORDER by Judge Edward M. Chen Granting 59 Plaintiff's Motion for Leave to Amend. (emcsec, COURT STAFF) (Filed on 11/7/2013)

1
2
3
4
5

UNITED STATES DISTRICT COURT

6

NORTHERN DISTRICT OF CALIFORNIA

7
8

CRAIG YATES,

9

Plaintiff,
v.

11
For the Northern District of California

United States District Court

10

No. C-10-3932 EMC

AUTO CITY 76, et al.,

12

ORDER GRANTING PLAINTIFF’S
MOTION FOR LEAVE TO AMEND

Defendants.
___________________________________/

(Docket No. 59)
13
14
15

Plaintiff Craig Yates has filed suit against Defendants Auto City 76; R.A.T. Oil, Inc.; and

16

Canadian American Oil Co., asserting claims for disability discrimination. More specifically, Mr.

17

Yates claims that Defendants have discriminated against persons with disabilities by failing to

18

remove architectural barriers structural in nature at their public accommodation known as Auto City

19

76. Currently pending before the Court is Mr. Yates’s motion for leave to amend his complaint. Mr.

20

Yates wishes to amend in order to add new factual allegations. In particular, he “seeks to amend . . .

21

to include fifteen (15) post-complaint visits to AUTO CITY 76 wherein on a majority of these visits

22

he encountered architectural barriers and as a result suffered an adverse experience.” Mot. at 1-2.

23

Having considered the parties’ briefs and accompanying submissions, as well as the oral

24

argument of defense counsel,1 the Court hereby GRANTS the motion to amend but orders the

25

parties to meet and confer as provided below.

26
27
28

1

Counsel for Mr. Yates failed to make an appearance at the hearing.

1
2

I.
A.

3
4

FACTUAL & PROCEDURAL BACKGROUND

Original Complaint
Mr. Yates initiated this lawsuit on September 1, 2010. In his original complaint, he alleged

as follows.

Mr. Yates visited Auto City 76 on the following dates “for purposes of fueling and the purchasing of

7

sundries,” Compl. ¶ 13:

8

(1)

February 28, 2010;

9

(2)

March 24, 2010;

10

(3)

May 2, 2010;

11
For the Northern District of California

Mr. Yates is a triplegic who requires the use of a wheelchair to travel about. See Compl. ¶ 5.

6

United States District Court

5

(4)

June 22, 2010;

12

(5)

July 28, 2010;

13

(6)

August 2, 2010; and

14

(7)

August 10, 2010.

15

See Compl. ¶¶ 2, 13.

16

According to Mr. Yates, on all or some of these dates, he encountered various architectural

17

barriers that prevented him from using the public accommodation. Those barriers are identified as

18

follows:

19

(1)

“lack of directional signage to show accessible routes of travel, i.e., to restrooms”2;

20

(2)

“lack of the requisite type and number of disabled parking stall(s)”;

21

(3)

“lack of disabled van accessible parking stall(s)”;

22

(4)

“lack of tow-a-way signage”;

23

(5)

“lack of a handicapped-accessible women’s public restroom”;

24
25
26
27
28

2

See, e.g., Compl. ¶ 18 (alleging that one restroom could not be accessed from the mini mart
because of a step down and that another restroom inside the mini mart could not be accessed because
of a step up).

2

1

(6)

“lack of a handicapped-accessible men’s public restroom”3;

2

(7)

“lack of a policy and procedure to assist the disabled in pumping fuel when more than one

3
4

employee was present”; and
(8)

5

“other public facilities and elements too numerous to list were improperly inaccessible for
use by persons with disabilities.”

6

Compl. ¶ 22.

7

B.

8
9

Proposed Amended Complaint
Approximately a year after filing the original complaint, Mr. Yates moved to file a first

amended complaint (“FAC”). In the proposed FAC, Mr. Yates sought to make allegations regarding
fifteen additional visits to Auto City 76, each of which took place after the filing of the original

11
For the Northern District of California

United States District Court

10

complaint:

12

(1)

September 27, 2010;

13

(2)

September 14, 2011;

14

(3)

November 29, 2011;

15

(4)

December 8, 2011;

16

(5)

January 25, 2012;

17

(6)

April 9, 2012;

18

(7)

May 1, 2012;

19

(8)

May 4, 2012;

20

(9)

May 28, 2012;

21

(10)

June 5, 2012;

22

(11)

June 19, 2012;

23

(12)

June 26, 2012;

24

(13)

June 30, 2012;

25

(14)

June 12, 2013; and

26
27
28

3

See, e.g., Compl. ¶ 19 (alleging that the men’s restroom was not compliant with the
Americans with Disabilities Act Accessibility Guidelines (ADAAG) – e.g., the “restroom door was
narrow and restroom elements were nonconforming”).

3

1

(15)

2

See Prop. FAC ¶ 2.

3

June 20, 2013.

On some visits, Mr. Yates did not encounter any architectural barriers but, on most, he did.

4

Some of the barriers were the same as those experienced on his previous visits covered by the

5

original complaint – e.g., a too-narrow restroom door. But a significant number of new barriers

6

were also identified. For instance, there are now complaints about:

7

(1)

the service counter being too high, see, e.g., Compl. ¶¶ 22-24;

8

(2)

the restroom door having “no strike side clearance to exit,” the door pressure being “very

9
(3)

11
For the Northern District of California

United States District Court

10

high,” and the locks being difficult to use, see, e.g., Compl. ¶¶ 26-27, 29, 31;
the placement of the toilet paper dispenser (i.e., “just over the top of the side grab bar which
made it difficult for plaintiff . . . to adjust himself in his wheelchair”), Compl. ¶ 27;

12

(4)

the restroom door being “hung wrong,” Compl. ¶ 32;

13

(5)

lack of signage for the restrooms, see Compl. ¶ 36;

14

(6)

placement of the flush control on the toilet, see Compl. ¶ 36;

15

(7)

placement of the water closet in the restroom, see Compl. ¶ 36;

16

(8)

various dispensers and hooks in the restroom being too high, see Compl. ¶ 36; and

17

(9)

accessibility of the entrance. See Compl. ¶ 36.

18
19
20

II.
A.

DISCUSSION

Legal Standard
Federal Rule of Civil Procedure 15 governs amended and supplemental pleadings. Under

21

Rule 15(d), “[o]n motion and reasonable notice, the court may, on just terms, permit a party to serve

22

a supplemental pleading setting out any transaction, occurrence, or event that happened after the

23

date of the pleading to be supplemented.” Fed. R. Civ. P. 15(d) (emphasis added); see also Eid v.

24

Alaska Airlines, Inc., 621 F.3d 858, 874 (9th Cir. 2010) (noting that “Rule 15(d) provides a

25

mechanism for parties to file additional causes of action based on facts that didn’t exist when the

26

original complaint was filed”).

27
28

A trial court has broad discretion in deciding whether to permit a supplemental pleading. See
Keith v. Volpe, 858 F.2d 467, 473 (9th Cir. 1988). In deciding whether to permit a supplemental

4

402 (9th Cir. 1997) (stating that the goal of Rule 15(d) is to promote judicial efficiency). In essence,

3

Rule 15(d) “enabl[es] a court to award complete relief, or more nearly complete relief, in one action,

4

and to avoid the cost, delay and waste of separate actions which must be separately tried and

5

prosecuted.” Keith, 858 F.2d at 473. However, factors such as prejudice to the defendant, laches, or

6

futility may weigh against allowing a supplemental pleading. See id. 474-75; Ally Bank v. Castle,

7

No. 11-CV-896 YGR, 2012 U.S. Dist. LEXIS 118449, at *4 (N.D. Cal. Aug. 20, 2012); see also

8

Athena Feminine Techs., Inc. v. Wilkes, No. No. C 10-4868 SBA, 2013 U.S. Dist. LEXIS 16249, at

9

*5 (N.D. Cal. Feb. 6, 2013) (stating that “[t]he legal standard for granting or denying a motion to

10

supplement under Rule 15(d) is the same as the standard for granting or denying a motion under

11
For the Northern District of California

pleading, a court’s focus is on judicial efficiency. See Planned Parenthood v. Neely, 130 F.3d 400,

2

United States District Court

1

Rule 15(a)”).4 Furthermore, a court must bear in mind that, even though supplemental pleadings are

12

favored, they “cannot be used to introduce a ‘separate, distinct and new cause of action.’”5 Planned

13

Parenthood, 130 F.3d at 402.

14

In the instant case, Defendants argue against the supplemental pleading on several grounds:

15

(1) undue delay; (2) prejudice; (3) bad faith; and (4) futility.

16

B.

Undue Delay

17

Defendants’ argument of undue delay is not without any basis. Most of the new visits that

18

Mr. Yates wishes to add in took place between September 2010 and June 2012. As to those visits,

19

Mr. Yates has failed to explain why he delayed for a year or more in adding the factual allegations to

20

the lawsuit.

21
22

However, two of the new visits did take place in June 2013, and, arguably, it would make
little sense to allow Mr. Yates to litigate these visits, along with the original visits from February to

23
4

24
25
26

Other courts have also analogized Rule 15(d) to Rule 15(a). See, e.g., Franks v. Ross, 313
F.3d 184, 198 n.15 (4th Cir. 2002) (“[T]he standards used by a district court in ruling on a motion to
amend or on a motion to supplement are nearly identical.”); Glatt v. Chicago Park Dist., 87 F.3d
190, 194 (7th Cir. 1996) (“Although these are cases under Fed. R. Civ. P. 15(a), not Rule 15(d), . . .
the standard is the same.”).
5

27
28

Of course, a supplemental pleading need not arise out of the same transaction as the
original pleading. See Keith, 858 F.2d at 474 (stating that “some relationship must exist between the
newly alleged matters and the subject of the original action, [but] they need not all arise out of the
same transaction”).

5

1

August 2010, but not those from September 2010 to June 2012. Furthermore, as indicated above,

2

some courts have analogized the Rule 15(d) standard to the Rule 15(a) standard and, under Rule

3

15(a), undue delay by itself is not enough to deny an amendment to a pleading; there must also be,

4

e.g., prejudice, bad faith, or futility. See Bowles v. Reade, 198 F.3d 752, 758 (9th Cir. 1999) (stating

5

that “[u]ndue delay by itself . . . is insufficient to justify denying a motion to amend”; adding that

6

denial of a motion to amend has been reversed “where the district court did not provide a

7

contemporaneous specific finding of prejudice to the opposing party, bad faith by the moving party,

8

or futility of the amendment”). The Court therefore gives little weight to Defendants’ undue delay

9

argument.
C.

11
For the Northern District of California

United States District Court

10

Prejudice
Defendants do argue prejudice. But the prejudice identified by Defendants is not the kind of

12

prejudice that is usually cognizable. Defendants claim prejudice “on the basis that the proposed

13

amendments are not explained or justified.” Opp’n at 3. But usually, a court evaluates prejudice in

14

terms of, e.g., whether discovery cut-offs have passed, how close trial is, and so forth. In this

15

regard, it is difficult for Defendants to argue prejudice because, in the case at bar, the fact discovery

16

cut-off is March 27, 2014, and trial is not set to begin until September 15, 2014. See Docket No. 58

17

(order).

18

D.

19

Bad Faith
Defendants’ argument of bad faith is also problematic. Defendants seem to argue that Mr.

20

Yates has acted in bad faith because he failed to disclose to the Court all of the amendments sought.

21

See Opp’n at 2. But if that is Defendants’ argument, it is off the mark once again. The question is

22

whether the supplemental pleading is in bad faith; not whether there are defects with Mr. Yates’s

23

motion.

24

E.

Futility

25

This leaves Defendants with the argument of futility.

26

1.

27

In its papers, Defendants argued that the supplemental pleading is futile because any claims

28

Statute of Limitations

based on the new visits would be time barred. See Opp’n at 3. Defendants’ position is predicated on

6

1

there being a one-year statute of limitations for all of Mr. Yates’s claims. In response, Mr. Yates

2

argues that there is a two-year statute of limitations, and therefore all of the new visits are not time

3

barred except for two (i.e., the visits in September 2010 and September 2011) which can be saved

4

through equitable tolling or relation back.

5

The Court largely agrees with Mr. Yates. The current statute of limitations for personal

6

injury causes of action is two years, not one.6 See Cal. Code Civ. Proc. § 335.1 (providing for a two-

7

year limitations period for “[a]n action for assault, battery, or injury to, or for the death of, an

8

individual caused by the wrongful act or neglect of another”). Therefore, at most, the visits in

9

September 2010 and September 2010 fall outside the limitations period.
While the Court sees no basis for equitable tolling for these two visits, see McDonald v.

11
For the Northern District of California

United States District Court

10

Antelope Valley Comm. College Dist., 45 Cal. 4th 88, 100 (2008) (stating that, “[b]roadly speaking,

12

the doctrine applies when an injured person has several legal remedies and, reasonably and in good

13

faith, pursues one”) (internal quotation marks omitted); Santa Maria v. Pacific Bell, 202 F.3d 1170,

14

1178 (9th Cir. 2000) (stating that “[e]quitable tolling may be applied if, despite all due diligence, a

15

plaintiff is unable to obtain vital information bearing on the existence of his claim”), overruled in

16

part as stated in Bojorquez v. Gutierrez, No. 09-03684 SI, 2010 U.S. Dist. LEXIS 75205, at *13 n.1

17

(N.D. Cal. July 26, 2010), relation back is applicable.

18

Rule 15(c) provides in relevant part as follows:

19

(1)

When an Amendment Relates Back. An amendment to a
pleading relates back to the date of the original pleading when:

20
....
21
(B)
22
23

///

24

the amendment asserts a claim or defense that arose out
of the conduct, transaction, or occurrence set out – or
attempted to be set out – in the original pleading . . . .

///

25
26
27
28

6

The Court notes that, for some of Mr. Yates’s claims, an argument could be made that there
is a three-year statute of limitations – i.e., for an action upon a liability created by statute. See Cal.
Code Civ. Proc. § 338 (providing for a three-year statute of limitations for “[a]n action upon a
liability created by statute”). However, because Mr. Yates did not make that argument, the Court
deems it waived.

7

1

Fed. R. Civ. P. 15(c)(1)(B). Relation back can apply to supplemental pleadings, and not just

2

amended pleadings. See, e.g., United States v. CMA, Inc., 890 F.2d 1070, 1073-74 (9th Cir. 1989)

3

(explaining why there was relation back for a supplemental pleading in a prior case but why relation

4

back for a supplemental pleading would be improper in the case under consideration); Davis v. Piper

5

Airport Corp., 615 F.2d 606, 609 n.3 (4th Cir. 1980) (stating that, “[s]o long as the test of Fed. R.

6

Civ. P. 15(c) is met, a supplemental pleading should ordinarily be given the same relation back

7

effect as an amended pleading”); see also 3-15 Moore’s Fed. Prac. – Civ. § 15.30 (stating that “[a]

8

supplemental pleading may relate back to the date of the original complaint if the requirements

9

under Rule 15(c) for relation back are satisfied”).
“The rationale of allowing an amendment to relate back is that once a party is notified of

11
For the Northern District of California

United States District Court

10

litigation involving a specific factual occurrence, the party has received all the notice and protection

12

that the statute of limitations requires.” 3-15 Moore’s Fed. Prac. – Civ. § 15.19[1]; see also Percy v.

13

San Francisco Gen. Hosp., 841 F.2d 975, 980 (9th Cir. 1988 ) (noting that, “[i]n cases in which the

14

relation back doctrine has been applied, the defendant was given adequate notice by the prior

15

pleading of the facts that caused the injury alleged in the amended pleading”); Wright & Miller, Fed.

16

Prac. & Proc. § 1497 (noting that, “[a]lthough not expressly mentioned in the rule, the courts also

17

inquire into whether the opposing party has been put on notice regarding the claim or defense raised

18

by the amended pleading”).

19

“In the typical case of an amendment to the plaintiff’s original complaint, the amended

20

complaint relates back when the claims asserted in the amendment arise out of the same facts or

21

course of conduct as the claims stated in the original complaint.”7 Moore’s § 15.19[2] (emphasis

22

added). For example, in Tiller v. Atlantic Coast Line Railroad Co., 323 U.S. 574 (1945), the

23

plaintiff had originally asserted a claim for relief under the Federal Employers’ Liability Act.

24

Subsequently, the plaintiff amended her complaint after the limitations period had expired to add a

25
26
7

27
28

But “[b]ecause the rationale of the relation-back rule is to ameliorate the effect of the
statute of limitations, rather than to promote the joinder of claims and parties, the standard for
determining whether amendments qualify under Rule 15(c) is not simply an identity of transaction
test.” Wright & Miller § 1497.

8

1

claim based on the Federal Boiler Inspection Act. The Supreme Court held that the amendment

2

related back, noting as follows:

3

The original complaint in this case alleged a failure to provide a
proper lookout for deceased, to give him proper warning of the
approach of the train, to keep the head car properly lighted, to warn
the deceased of an unprecedented and unexpected change in the
manner of shifting cars. The amended complaint charged the failure to
have the locomotive properly lighted. Both of them related to the
same general conduct, transaction and occurrence which involved the
death of the deceased. There was therefore no departure. The cause
of action now, as it was in the beginning, is the same – it is a suit to
recover damages for the alleged wrongful death of the deceased. “The
effect of the amendment here was to facilitate a fair trial of the
existing issues between plaintiff and defendant.” There is no reason to
apply a statute of limitations when, as here, the respondent has had
notice from the beginning that petitioner was trying to enforce a claim
against it because of the events leading up to the death of the deceased
in the respondent’s yard.

4
5
6
7
8
9

11
For the Northern District of California

United States District Court

10

12
13

Id. at 581.
The instant case, of course, is different from Tiller in that here, Mr. Yates is seeking to add in

14

subsequent events. With respect to subsequent events, some courts have taken a hard line on

15

relation back. See, e.g., Abramson v. Boedeker, 379 F.2d 741, 744 (5th Cir. 1967) (stating that “[i]t

16

is perfectly obvious whether on general principles or on F.R. Civ. P. 15(c) that allegations

17

concerning events occurring subsequent to the filing of the original petition cannot possibly relate

18

back to the earlier date of filing”). But the Ninth Circuit has not held that a subsequent event is

19

automatically barred from relation back. Rather, the Ninth Circuit has held that a subsequent event

20

is barred from relation back only where it is unrelated to the events as pled in the original complaint.

21

See, e.g., Percy, 841 F.2d at 980 (stating that plaintiff’s “first amended complaint implicated an

22

entirely new set of actors who are alleged to have injured [him] in a proceeding which occurred

23

subsequent to, and independent of, the events on which [he] based his original Title VII

24

discrimination claims”; adding that, “[e]ven the most liberal reading of Percy’s original complaint

25

fails to provide the City with notice that, in addition to the circumstances surrounding his discharge

26

based upon alleged racial discrimination, the City should have been prepared to defend a claim of a

27

denial of due process in a subsequent Civil Service Commission hearing”); CMA, 890 F.2d at 1073-

28

74 (not allowing relation back where the supplemental pleading introduced “what is essentially a

9

1

new party pursuing a new claim based on different facts”; noting that “[t]he supplemental complaint

2

alleges a cause of action arising out of a completely different transaction”).

3

Here, there is little dispute that the new visits at issue in the amended complaint have at least

4

some “relatedness” to the old visits as pled in the original complaint. Indeed, the new visits in

5

September 2010 and September 2011 reference at least one alleged violation that was also

6

referenced for the old visits – i.e., a too-narrow restroom door. See, e.g., Prop. FAC ¶¶ 19, 21-23;

7

Moore’s § 15.30 (indicating that indicate that “ a court will allow relation back . . . when the

8

violations alleged in the supplemental complaint are a continuation of the initial violations alleged in

9

the original complaint”) (emphasis added); Wright & Miller § 1508 (stating that, “if the original
pleading gave notice that the conduct, transaction, or occurrence is of a continuing nature, defendant

11
For the Northern District of California

United States District Court

10

should be prepared to defend against all claims arising out of it, whether they arose before or after

12

the original complaint was filed[;] [t]here is little basis to distinguish an amended and a

13

supplemental pleading for purposes of relation back if defendant had notice of the subject matter of

14

the dispute and was not prejudiced in preparing a defense”) (emphasis added). Although the new

15

visits also make mention of an alleged violation that was not referenced for the old visits – i.e., a

16

too-high service counter, see Prop. FAC ¶¶ 22-23 – the Court does not see this as a reason to prevent

17

relation back. The new violation still relates to the same broader issue of equal access to the facility

18

for a person with a disability such as Mr. Yates who uses a wheelchair.

19

2.

20

For the reasons discussed above, the Court rejects Defendants’ argument of futility based on

Equitable Relief Settlement Agreement

21

the statute of limitations. At the hearing, however, Defendants raised a second argument of futility –

22

i.e., that, to the extent Mr. Yates is seeking equitable or injunctive relief based on the new visits,

23

such relief is barred by the parties’ “Equitable Settlement Agreement and Release,” signed in July

24

2012.

25
26

As a preliminary matter, the Court notes that Defendants never raised this futility argument
in their papers, and therefore Mr. Yates has not had an opportunity to respond, at least in writing. Of

27
28

10

1

course, had he appeared for the hearing on the motion (his own motion), Mr. Yates could have

2

provided at least some thoughts as to the merits of this futility argument.8

3

Taking into account these circumstances, the Court concludes that the best way to proceed is

4

to permit Mr. Yates to file his amended complaint; however, the parties shall thereafter be obligated

5

to meet and confer to determine whether they can reach agreement as to whether

6

equitable/injunctive relief based on the new visits is precluded based on the settlement agreement of

7

July 2012. If the parties are able to reach an agreement, then they may submit a joint stipulation and

8

proposed order. If not, then Defendants may file a motion to dismiss in which they can argue that

9

equitable/injunctive relief for all or at least some of the new visits is barred based on the settlement
agreement.

11
For the Northern District of California

United States District Court

10

In meeting and conferring, the parties shall take note of the following:

12

The settlement agreement is dated July 2012. All of the new visits took place before July

13

2012, except for two in June 2013. As to the two new visits in June 2013, one of them did not

14

involve Mr. Yates running into any architectural barriers. See Prop. FAC ¶ 33. For the other visit in

15

June 2013, Mr. Yates did purport to run into architectural barriers – more specifically, even though

16

“[t]he men’s restroom door had been changed out and there was strike side clearance, . . . the door

17

had been hung wrong and it created significant pressure to open.” Prop. FAC ¶ 32. Also, “[a]t the

18

service counter, Plaintiff CRAIG YATES had to stretch and stress himself to give the cashier his

19

card[;] [a]nother employee told the cashier to use the lowered section of the counter, which she then

20

did to complete the transaction.” Prop. FAC ¶ 32.

21

It appears that the settlement agreement resolves at least all claims for equitable/injunctive

22

relief that pre-date the July 2012 settlement agreement. The parties shall discuss whether the

23

settlement agreement resolves all claims for equitable/injunctive relief – even if based on the June

24

2013 visits that post-date the settlement agreement. See, e.g.:

25
26
27
28

8

The Court hereby warns Mr. Yates that he risks being sanctioned for a failure to appear at a
hearing on a noticed motion, without leave of the Court. Sanctions could constitute either monetary
sanctions or preclusion-type sanctions, if so warranted.

11

1

•

Settlement Agreement, Recitals ¶ B (“The parties desire to settle and compromise all

2

equitable claims, only as they relate to injunctive relief, that were or could have been raised

3

in the subject action.”);

4

•

Settlement Agreement § 5 (“505 SOUTH VAN NESS AVENUE PARTIES shall notify

5

YATES counsel . . . in writing . . . when the modifications have been completed [all

6

modifications to be completed by October 31, 2012] to make the premises accessible as set

7

forth in paragraph 3. Thereafter YATES or his representative shall have forty five (45) days

8

with in [sic] which to inspect the premises and notify Released Parties in writing of any

9

objection to the modifications by notification to counsel for Released Parties in writing. If

11
For the Northern District of California

United States District Court

10

no objection is made, YATES waives any objection to the modifications.”);
•

Settlement Agreement § 6 (“YATES . . . further agree[s] that no claim will be made in the

12

future for equitable relief or remedial measures to be undertaken as a result of any alleged

13

discrimination and/or other wrongful conduct by 505 SOUTH VAN NESS AVENUE

14

PARTIES and release each of the Released Parties from any such equitable relief claims

15

arising out of YATES visits to the subject AUTO CITY 76, located at/near 505 South Van

16

Ness Avenue, San Francisco, California, on or about all dates stated in the complaint[9] and

17

up to and including the date this agreement is executed by CRAIG YATES.”); and

18

•

Settlement Agreement § 8 (“Releasor acknowledges and understands that there is a risk that,

19

subsequent to the execution of this Agreement, Yates may have Claims which shall in some

20

conceivable way arise out of, shall be caused by, or shall relate to the matters released in this

21

Agreement and which are unknown and unanticipated at the time this Agreement is signed,

22

and that any Claims that are known or should be known may become more serious than they

23

now expect or anticipate. Nevertheless, Releasor hereby expressly waives all rights that he

24

may have in such unknown and unexpected consequences or results.”).

25
26
27
9

28

Under Recital ¶ C, “[w]henever the word[] ‘complaint’ [is] used, [it] include[s] any and all
amended complaints.” Settlement Agreement, Recital ¶ C.

12

1
2

III.

CONCLUSION

For the foregoing reasons, the Court grants the motion to amend. However, the parties are

3

ordered to meet and confer by November 21, 2013, to determine whether they can reach an

4

agreement as to whether equitable/injunctive relief is barred for the new visits based on the terms of

5

the parties’ settlement agreement. If the parties are able to reach an agreement, then they shall

6

submit a joint stipulation and proposed order by November 21, 2013. If the parties are unable to

7

reach an agreement, then Defendants shall file a motion to dismiss the request for

8

equitable/injunctive relief with respect to the new visits by December 5, 2013.

9

This order disposes of Docket No. 59.

11
For the Northern District of California

United States District Court

10
IT IS SO ORDERED.

12
13

Dated: November 7, 2013

14

_________________________
EDWARD M. CHEN
United States District Judge

15
16
17
18
19
20
21
22
23
24
25
26
27
28

13