Galpern v. City of Berkeley et al

Filing 17

ORDER ON AMENDED CONSENT JUDGMENT. Signed by Judge Maxine M. Chesney on October 14, 2011. (mmclc2, COURT STAFF) (Filed on 10/14/2011)

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1 2 3 4 5 BRUCE NYE, SBN 77608 MYTHILY SIVARAJAH, SBN 252494 ADAMS | NYE | BECHT LLP 222 Kearny Street, Seventh Floor San Francisco, California 94108-4521 Telephone: (415) 982-8955 Facsimile: (415) 982-2042 Attorneys for Plaintiff ANDREW GALPERN 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 11 12 15 16 17 18 AMENDED CONSENT JUDGMENT Plaintiff, 13 14 No. CV 10-04689 MMC ANDREW GALPERN, vs. CITY OF BERKELEY, a public entity; TOM BATES, in his office capacity as Mayor; LINDA MAIO, DARRYL MOORE, MAX ANDERSON, JESSE ARREGUIN, LAURIE CAPITELLI, SUSAN WENGRAFF, KRISS WORTHINGTON, GORDON WOZNIAK, in their office capacities as members of the Berkeley City Council; MICHAEL K. MEEHAN, in his official capacity as Chief of Police, City of Berkeley, DOES 1 through 100, 19 Defendants. 20 21 22 23 It is hereby stipulated by and between the parties hereto as follows, and the Parties jointly ask the Court to enter Judgment under the terms described herein: 24 1. INTRODUCTION 25 1.1 The Parties 26 This Consent Judgment is entered into by and between plaintiff ANDREW GALPERN 27 (“Galpern” or “Plaintiff”) and defendants CITY OF BERKELEY; TOM BATES; LINDA MAIO, 28 DARRYL MOORE, MAX ANDERSON, JESSE ARREGUIN, LAURIE CAPITELLI, SUSAN 1 CONSENT JUDGMENT 1 WENGRAFF, KRISS WORTHINGTON, GORDON WOZNIAK; and MICHAEL K. MEEHAN, 2 (collectively or “Defendants”), with Galpern and Defendants collectively referred to as the “parties.” 3 City of Berkeley is referred to herein as “the City.” 4 1.2 5 Galpern is an individual residing in the State of California who uses a wheelchair for mobility, 6 and is a “qualified person with a disability” and a “person with a disability” within the meaning of all 7 applicable statutes and regulations, including 42 U.S.C. §12131(2), 28 C.F.R. §35.104 and 29 U.S.C. 8 §705. 9 10 Andrew Galpern 1.3 Defendants Defendant Tom Bates is the Mayor of the City. Linda Maio, Darryl Moore, Max Anderson, 11 Jesse Arreguin, Laurie Capitelli, Susan Wengraf, Kriss Worthington and Gordon Wozniak are 12 members of the Berkeley City Council. The parties stipulate that the Mayor and the City Council 13 members are legally responsible for compliance with this Consent Judgment, and bound thereby, in 14 their official capacities only. Michael K. Meehan is Chief of Police of the City of Berkeley, and the 15 parties stipulate that he is legally responsible for compliance with this Consent Judgment, and bound 16 thereby, in his official capacity only. 17 1.4 18 The City is a local government entity with the responsibility of providing Plaintiff with access General Allegations 19 to its public facilities, programs, services, and activities. The City is responsible for constructing, 20 maintaining, repairing, and regulating the system of pedestrian rights of way within the City. 21 Presently, and at all times relevant to this Complaint, the City has been a public entity within the 22 meaning of Title II of the ADA and has received federal financial assistance within the meaning of the 23 Rehabilitation Act as well as state financial assistance within the meaning of Government Code 24 Section 11135. 25 1.5 26 The Defendants’ obligations to be performed under this Consent Judgment relate to pedestrian Subject Area 27 rights of way located in the area bounded by the east side of Eastshore Frontage Road and Fourth, 28 Camelia and Gilman Streets, referred to hereinafter as “the Subject Area.” 2 CONSENT JUDGMENT 1 1.6 2 On September 15, 2010, Galpern filed a complaint in the Superior Court in and for the County Complaint 3 of Alameda against the Defendants alleging violations of Title II of the Americans with Disabilities 4 Act, 42 U.S.C. §12131, et seq. and its accompanying regulations (“ADA”), Section 504 of the 5 Rehabilitation Act, 29 U.S.C. § 794 et seq. and its accompanying regulations (“the Rehabilitation 6 Act”), as well as analogous state statutes including California Government Code § 11135, California 7 Civil Code § 51, et seq., and California Government Code § 4450. Defendants removed the matter to 8 this Court on October 18, 2010. 9 1.7 10 Galpern’s and Defendants’ Allegations Galpern contends that Defendant City’s pedestrian rights of way in the Subject Area have not 11 been readily accessible to or usable by him or other persons with mobility disabilities. Galpern further 12 contends that by failing in their mandatory duty to remove physical access barriers caused by illegally 13 parked vehicles and placement of industrial materials and objects in the subject area, Defendants have 14 discriminated against disabled persons by failing to provide access to these rights of way to disabled 15 persons on an equal basis with the access available to other persons. Defendants deny these 16 allegations, and contend that they have complied with all applicable laws in the Subject Area. 17 1.8 18 Defendants deny the material, factual and legal allegations contained in the Complaint and No Admission 19 maintain that they have been at all times in compliance with applicable law. Nothing in this Consent 20 Judgment shall be construed as an admission by Defendants of any fact, finding, issue of law, or 21 violation of law, nor shall compliance with this Consent Judgment constitute or be construed as an 22 admission by Defendants of any fact, finding, conclusion, issue of law, or violation of law. However, 23 this section shall not diminish or otherwise affect Defendants’ obligations, responsibilities, and duties 24 under this Consent Judgment. 25 1.9 26 For purposes of this Consent Judgment only, the parties stipulate that this Court has 27 jurisdiction over Defendants as to the allegations contained in the Complaint, that venue is proper in 28 /// Consent to Jurisdiction 3 CONSENT JUDGMENT 1 the United States District Court for the Northern District of California and that this Court has 2 jurisdiction to enter and enforce the provisions of this Consent Judgment. 3 1.10 4 For purposes of this Consent Judgment, the term “Effective Date” shall mean September 26, 5 Effective Date 2011. 6 2. REMEDIAL RELIEF 7 2.1 Parking Enforcement 8 Within thirty (30) day of the effective date, the City will begin a thirty (30) day process of 9 providing notice to businesses in the subject area of the City's plan to issue citations for, or tow, 10 vehicles parked on City sidewalks or otherwise parked illegally. No later than sixty (60) days after 11 City Council approval of this Consent Judgment, the City will begin scheduling traffic enforcement 12 patrols with the same frequency as patrols are scheduled in like parts of the City, but no less 13 frequently than twice daily, six days per week excluding Sundays and holidays and days when parking 14 enforcement is less than fully staffed, will cite all vehicles parked on City sidewalks in the Subject 15 Area and, in the absence of extraordinary circumstances, will cite all other illegally parked vehicles. 16 To the extent allowable by law, the City will arrange for the towing of repeat offenders of its parking 17 laws in the Subject Area. 18 2.2 19 Beginning no later than thirty (30) days after the effective date, the City will commence Removal of Unlawful Structures 20 informal efforts to achieve removal of all structures in the subject area that violate Municipal Code 21 section 14.48.020. If these informal efforts are not successful, then the City shall within 60 days of 22 entry of Council approval commence and vigorously prosecute administrative agency actions to 23 achieve such removal. If such administrative remedies are not successful, then the City shall within 24 180 days of Council approval commence and vigorously prosecute a civil action against the person or 25 persons responsible for such obstructions. While the parties agree that the City cannot guarantee that it 26 will prevail in any such effort to have the structures removed, it will make best efforts to succeed in 27 this regard. 28 /// 4 CONSENT JUDGMENT 1 2.3 2 Beginning thirty (30) days after the effective date, whenever the city code enforcement unit Unlawful Obstruction of Sidewalks 3 receives a complaint concerning unlawful obstruction of its sidewalks in the Subject Area by 4 industrial materials or other objects other than vehicles, the City code enforcement unit shall 5 reasonably investigate, determine, if practicable, the person or persons responsible for the obstruction, 6 and issue citations to such person or persons. 7 2.4 8 For the two (2) years after entry of this Consent Judgment, the City shall provide to Plaintiff, 9 Reporting through his counsel, quarterly reports showing the following: 10 2.4.1 Dates and frequency of traffic patrol in the Subject Area 11 2.4.2 Dates and times of parking violation citations issued in the Subject Area 12 2.4.3 Dates, times, circumstances and the nature of complaints and responses to all 13 complaints received concerning industrial materials or objects obstructing the sidewalk in the subject 14 area or illegally parked cars in the Subject Area. 15 2.4.4 A narrative description, including copies of all relevant non-privileged documents, 16 whether electronic, hard copy or otherwise, concerning the City's efforts to achieve removal of 17 structures encroaching on City sidewalks in the Subject Area. 18 3. SETTLEMENT PAYMENTS 19 3.1 Payment of Damages 20 No later than twenty-one (21) days from the Effective Date, City shall pay to Galpern 21 the sum of $30,000 as damages in this matter. Payment will be made by check payable to Adams | 22 Nye | Becht LLP, Trustees. 23 24 3.2 Payment of Attorneys’ Fees and Costs The parties acknowledge that Galpern and his counsel offered to resolve this dispute 25 without reaching terms on the amount of fees and costs to be reimbursed to them, thereby leaving this 26 fee issue to be resolved after the material terms of the agreement had been settled. Defendants then 27 expressed a desire to resolve the fee and cost issue shortly after the other settlement terms had been 28 finalized. The parties reached an accord on the compensation due to Galpern and his counsel under all 5 CONSENT JUDGMENT 1 applicable law, including the private attorney general doctrine codified at California Code of Civil 2 Procedure (CCP) §1021.5. No later than twenty-one (21) days from the Effective Date, City shall 3 reimburse Galpern and his counsel $30,000 for fees and costs incurred as a result of investigating, 4 bringing this matter to Defendants’ attention, litigating and negotiating a settlement. This figure also 5 includes Galpern’s future fees and costs including attorney’s fees to be incurred in seeking judicial 6 approval of this Consent Judgment as well as any other legal work performed after the execution of 7 this Consent Judgment incurred in an effort to obtain finality of the case. A check for fees and costs 8 shall be made payable to Adams | Nye | Becht LLP. Adams | Nye | Becht LLP’s EIN is 94-3173216. 9 4. DISMISSAL AND RELEASES 10 4.1 11 This Consent Judgment is a full, final and binding resolution between Plaintiff and 12 Defendants, of any claims for relief or causes of action that were asserted or that could reasonably 13 have been asserted arising out of Plaintiff’s allegations of denial of access to pedestrian rights of way 14 in the Subject Area. Full, Final and Binding Resolution of Claims 15 4.2 16 The parties hereby stipulate, through their counsel, that after the City Manager’s execution of 17 this Consent Judgment, the Complaint herein may be dismissed with prejudice as to Defendants City 18 of Berkeley, Tom Bates, Linda Maio, Darryl Moore, Max Anderson, Jesse Arreguin, Laurie Capitelli, 19 Susan Wengraf, Kriss Worthington and Gordon Wozniak. Defendant Michael Meehan, Chief of 20 Police, will also be dismissed with prejudice after he executes this Consent Judgment. Galpern’s Dismissal of City, Mayor, City Council and Chief of Police 21 4.3 22 Plaintiff Andrew Galpern on behalf of himself, his past and current agents, representatives, Galpern’s Release of Defendants 23 attorneys, successors, and/or assignees hereby waives all rights to institute or participate in, directly or 24 indirectly, any form of legal action and releases all claims, including, without limitation, all actions, 25 and causes of action, in law or in equity, suits, liabilities, demands, obligations, damages, costs, fines, 26 penalties, losses, or expenses, including, but not limited to, investigation fees, expert fees, and 27 attorneys’ fees, against Defendants, limited to and arising under denial of access to pedestrian rights 28 6 CONSENT JUDGMENT 1 of way in the Subject Area. 2 4.4 3 Bruce Nye and Adams | Nye | Becht LLP (“Plaintiff’s attorneys”) on behalf of themselves, Galpern’s Counsel’s Release of Defendants 4 their past and current agents, representatives, attorneys, successors, and/or assignees hereby waive all 5 rights to institute or participate in, directly or indirectly, any form of legal action and releases all 6 claims, including, without limitation, all actions, and causes of action, in law or in equity, suits, 7 liabilities, demands, obligations, damages, costs, fines, penalties, losses, or expenses, including, but 8 not limited to, investigation fees, expert fees, and attorneys’ fees, against Defendants, limited to and 9 arising under additional fees and costs described in Paragraph 3.2 herein. 10 4.5 11 Defendants on behalf of themselves, their past and current agents, representatives, attorneys, Defendants’ Release of Galpern 12 successors, and/or assignees, hereby waive any and all claims against Plaintiff, his attorneys and other 13 representatives, for any and all actions taken or statements made (or those that could have been taken 14 or made) by Plaintiff and his attorneys and other representatives, whether in the course of 15 investigating claims or otherwise seeking to enforce the statutes and regulations that are the subject of 16 this suit. 17 4.6 18 The parties and counsel acknowledge that they have read, are familiar with, understand and Waiver of Civil Code Section 1542 19 waive the provisions of Civil Code section 1542, which provides as follows: 20 A general release does not extend to claims which the creditor does not know or suspect to exist in his 21 or her favor at the time of executing the release, which if known by him or her must have materially 22 affected his or her settlement with the debtor. 23 5. 24 This Consent Judgment is not effective until it is approved and entered by the Court and shall 25 be null and void if, for any reason, it is not approved and entered by the Court within one year after it 26 has been fully executed by all parties. If it is not approved by the Court, any payments made to 27 Galpern or his attorneys shall be refunded to the City. 28 COURT APPROVAL AND TERMINATION OF CONSENT JUDGMENT This Consent Judgment and the Court’s jurisdiction of the matter shall terminate two years 7 CONSENT JUDGMENT 1 after the Effective Date. 2 6. COURT WILL RETAIN JURISDICTION 3 The Court will retain jurisdiction to enforce the terms of this Consent Judgment. 4 7. 5 If, subsequent to the execution of this Consent Judgment, any of the provisions of this Consent 6 Judgment are held by a court to be unenforceable, the validity of the enforceable provisions remaining 7 shall not be adversely affected. SEVERABILITY 8 8. 9 The terms of this Consent Judgment shall be governed by the laws of the State of California 10 GOVERNING LAW and apply within the State of California. 11 9. NOTICES 12 Unless otherwise specified herein, all correspondence and notices required to be provided 13 pursuant to this Consent Judgment shall be in writing and personally delivered or sent by: (i) first- 14 class, (registered or certified mail) return receipt requested; or (ii) overnight courier on any party by 15 the other party at the following addresses: 16 17 To Defendants: Mark Zembsch Deputy City Attorney City of Berkeley 2180 Milvia Street Berkeley, CA 94704 18 19 20 21 To Plaintiffs: Bruce Nye, Esq. Adams | Nye | Becht LLP 222 Kearny Street, Seventh Floor San Francisco, CA 94108-4521 22 23 24 Any party, from time to time, may specify in writing to the other party a change of address to 25 which all notices and other communications shall be sent. 26 /// 27 /// 28 /// 8 CONSENT JUDGMENT IT IS SO ORDERED. October 14, 2011 DATED: _________________ _______________________________ Maxine M. Chesney Senior District Judge, US District Court

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