Wadman et al v. Discovery Bay Yacht Harbor, LLC et al
Filing
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ORDER GRANTING 45 CONSENT DECREE.(whalc2, COURT STAFF) (Filed on 9/16/2015)
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PAUL L. REIN, ESQ. (SBN 43053)
CELIA MCGUINNESS, ESQ. (SBN 159420)
CATHERINE CABALO, ESQ. (SBN 248198)
LAW OFFICES OF PAUL L. REIN
200 Lakeside Drive, Suite A
Oakland, CA 94612
Telephone: 510/832-5001
Facsimile:
510/832-4787
reinlawoffice@aol.com
STEVEN L. DERBY, ESQ. (SBN 148372)
THE DERBY LAW FIRM P.C.
1255 Treat Blvd. Suite 300
Walnut Creek, CA 94597
Telephone: 925/472-6640
Facsimile:
925/933-3964
derby@derbydisabilitylaw.com
Attorneys for Plaintiffs
MAX WADMAN and KELLY TOPPING
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* Defendants’ counsel listed after the caption.
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IN THE UNITED STATES DISTRICT COURT
IN AND FOR THE NORTHERN DISTRICT OF CALIFORNIA
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MAX WADMAN and KELLY
TOPPING,
CASE NO. C14-5035 WHA
Civil Rights
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Plaintiffs,
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v.
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DISCOVERY BAY YACHT HARBOR,
LLC; NEW DISCOVERY, INC.;
DISCOVERY BAY MARINA
PROPERTIES, a California General
Partnership; KEN HOFMANN;
WALTER L. YOUNG; RONALD
DAWSON; WALTER L. YOUNG and
MARY C. YOUNG, TRUSTEES OF
THE YOUNG REVOCABLE TRUST
DATED FEBRUARY 11, 1999; AND
DOES 1-100, inclusive,
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Defendants.
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//
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CONSENT DECREE & [PROPOSED] ORDER
AS TO INJUNCTIVE RELIEF ONLY
Case No. C14-5035 WHA
CONSENT DECREE AND [PROPOSED]
ORDER AS TO INJUNCTIVE RELIEF
ONLY
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COX WOOTTON LERNER GRIFFIN & HANSEN LLP
RUPERT P. HANSEN (SBN 082302)
CHRISTOPHER S. KIELIGER (SBN 209121)
JULIETTE B. McCULLOUGH (SBN 278929)
900 Front Street, Suite 350
San Francisco, CA 94111
Telephone: 415.438.4600
Facsimile: 415.438.4601
Attorneys for Defendants
DISCOVERY BAY YACHT HARBOR, LLC ,
KEN HOFMANN, individually, RONALD DAWSON,
Individually, and MARY C. YOUNG,
Trustee of The Young Revocable Trust
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CONSENT DECREE AND [PROPOSED] ORDER
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1.
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November 14, 2014, alleging violations of the Americans with Disabilities Act of 1990 ("ADA"),
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42 U.S.C. sections 12101 et seq., California civil rights laws and common law tort claims against
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Defendants DISCOVERY BAY YACHT HARBOR, LLC (“DBYH LLC”); NEW DISCOVERY,
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INC.; DISCOVERY BAY MARINA PROPERTIES, a California General Partnership; KEN
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HOFMANN; WALTER L. YOUNG; RONALD DAWSON; WALTER L. YOUNG and MARY
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C. YOUNG, TRUSTEES OF THE YOUNG REVOCABLE TRUST DATED FEBRUARY 11,
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1999 (collectively, "Defendants") relating to, inter alia, barriers to access at Discovery Bay Yacht
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Harbor as of March 22, 2014, and continuing. Specifically, Plaintiffs alleged that Defendants
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failed to provide full and equal access to their facilities at Discovery Bay Yacht Harbor, Discovery
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Bay, California.
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2.
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as TRUSTEE OF THE YOUNG REVOCABLE TRUST DATED FEBRUARY 11, 1999
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(collectively “Answering Defendants”) were served and answered the Complaint. Answering
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Defendants do not admit liability to any of the allegations in Plaintiffs’ Complaint filed in this
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action.
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3.
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Plaintiffs MAX WADMAN and KELLY TOPPING filed a Complaint in this action on
Defendants DBYH LLC; KEN HOFMANN; RONALD DAWSON; MARY C. YOUNG,
Pursuant to Rule 41(a)(1)(A)(ii) of the Federal Rules of Civil Procedure all parties who
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CONSENT DECREE & [PROPOSED] ORDER
AS TO INJUNCTIVE RELIEF ONLY
Case No. C14- 5035 WHA
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have appeared in this lawsuit have stipulated to a Dismissal Without Prejudice of the following
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Defendants:
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California General Partnership; RONALD DAWSON; WALTER L. YOUNG; WALTER L.
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YOUNG and MARY C. YOUNG, TRUSTEES OF THE YOUNG REVOCABLE TRUST
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DATED FEBRUARY 11, 1999, with each party to bear their own costs.
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4.
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Defendants”; collectively with Plaintiffs “the Signing Parties”) hereby enter into this Consent
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Decree and Order for the purpose of resolving the injunctive relief issues in this lawsuit without
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the need for protracted litigation and without the admission of any liability. The Signing Parties
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jointly stipulate and request the Court not dismiss the action because issues of standing, liability,
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damages and attorney fees, litigation costs and expenses remain to be resolved.
NEW DISCOVERY, INC.; DISCOVERY BAY MARINA PROPERTIES, a
Plaintiffs and defendants DBYH LLC and KEN HOFMANN (collectively, “the Signing
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JURISDICTION:
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matter pursuant to 28 U.S.C. section 1331 for alleged violations of the Americans with Disabilities
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Act of 1990, 42 U.S.C. sections 12101 et seq., and pursuant to supplemental jurisdiction for
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alleged violations of California law.
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6.
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Pparties to this Consent Decree agree to entry of this Order to resolve all claims regarding
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injunctive relief raised in the Complaint filed with this Court. Accordingly, they agree to the entry
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of this Order without trial or further adjudication of any issues of fact or law concerning Plaintiffs’
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claims for injunctive relief.
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The Signing Parties to this Consent Decree agree that the Court has jurisdiction of this
In order to avoid the costs, expense, and uncertainty of protracted litigation, the Signing
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:
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SETTLEMENT OF INJUNCTIVE RELIEF:
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7.
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This Order shall be a full, complete, and final disposition and settlement of Plaintiffs’
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CONSENT DECREE & [PROPOSED] ORDER
AS TO INJUNCTIVE RELIEF ONLY
Case No. C14- 5035 WHA
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claims against Signing Defendants DBYH LLC and KEN HOFMANN for injunctive relief that
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have arisen out of the subject Complaint. The Signing Parties agree that there has been no
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admission or finding of liability and this Consent Decree and Order shall not be construed as such.
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8.
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described in the Remediation Chart attached and incorporated herewith as Exhibit A. As used in
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this Consent Decree and [proposed] Order, “remediate” and “accessible” mean to construct and
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maintain in full compliance with the Americans with Disabilities Act Standards and/or California
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Building Code Title 23-2 (2013), whichever is more stringent for a given element.
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9.
Remedial Measures: Defendant DBYH LLC will remediate each barrier to access as
Timing: Defendant DBYH LLC will complete each item by the date stated in the
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Remediation Chart.
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10.
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DBYH LLC will implement written policies as follows:
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Written Policy: Within 30 days of the Signing Parties signing this Consent Decree,
1. DBYH LLC will check opening force and closing speed of doors at the Harbor Office,
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public restrooms and accessible gates at least every six months and adjust as necessary to
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maintain their accessibility.
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2. Accessible Slips shall be leased as follows:
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a. If a person or persons with a disability (“PWD”) requests an uncovered berth but an
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accessible one is not available, a covered berth will be leased at the uncovered berth
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price.
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b. Similarly, an accessible long berth will be leased to a PWD at the short berth price, if
an accessible short berth is not available.
c. The accessible berths shall be reserved for PWD unless and until all other berths are
leased, at which time they may be leased to any potential tenant;
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d. If all non-accessible berths are leased and an accessible berth is therefore leased to a
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person without a disability, a clause should be inserted in the accessible berth’s lease
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agreements that should an equally long inaccessible slip subsequently become
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-4CONSENT DECREE & [PROPOSED] ORDER
AS TO INJUNCTIVE RELIEF ONLY
Case No. C14- 5035 WHA
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available, the lessee shall be moved to that inaccessible berth, freeing the accessible
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berth for a potential PWD.
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3. Upon request, DBYH will provide an accessible key/means of operating gate locks to a
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PWD.
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4. The fuel dock and pump-out dock, and the adjacent guest slips will be closed to public
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access to/from the shore.
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5. DBYH LLC will (a) check opening force and closing speed of doors at the Harbor Office,
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public restroom and pier accessible gates at least every six months and adjusting as
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necessary to maintain their accessibility; (b) maintain all accessible paths of travel free of
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barriers.
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6. DBYH LLC will train all relevant employees on these new policies within 30 days of the
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Signing Parties signing this Consent Decree, will incorporate the policies into its employee
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handbook and will train relevant new employees on these policies as they are hired.
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Compliance:
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a.
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access specialist of its choice to conduct one site inspection by January 31, 2016, to report
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upon and confirm completion of the remedies specified in paragraph 8 above. DBYH LLC
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will provide a copy of each report to Plaintiffs’ counsel within 15 days of receipt. In
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addition, DBYH LLC will retain and pay Gilda Puente-Peters or another certified access
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specialist of its choice to return by January 31, 2017, to confirm continued compliance
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with accessibility laws and to advise on any potential barriers to access that have arisen.
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DBYH LLC will make all readily achievable modifications recommended by said access
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specialist, in addition to changes necessary to bring DBYH LLC into compliance with this
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Consent Decree. DBYH LLC will provide a copy of this report to Plaintiffs’ counsel
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within 15 days of receipt.
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b.
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LLC has complied with the terms of this Consent Decree and [proposed] Order, or in case
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Defendant DBYH LLC will retain and pay Gilda Puente-Peters or another certified
In case of dispute between Plaintiffs and Signing Defendants over whether DBYH
-5CONSENT DECREE & [PROPOSED] ORDER
AS TO INJUNCTIVE RELIEF ONLY
Case No. C14- 5035 WHA
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Plaintiffs dispute the findings of the access specialist, the Signing Parties will meet and
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confer for not less than 30 days prior to bringing any motion to compel compliance. If the
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dispute remains, Plaintiffs may bring a motion to compel compliance.
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ENTIRE CONSENT ORDER:
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A-2 and A-3 to Attachment A, which are incorporated herein by reference as if fully set forth in
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this document, constitute the entire consent agreement between the Signing Parties on all issues
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in this case.
This Consent Decree and Order, Attachment A to this Consent Decree, and Exhibits A-1,
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CONSENT ORDER BINDING ON SIGNING PARTIES AND SUCCESSORS IN
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INTEREST:
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13.
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in interest. The Signing Parties have a duty to so notify all such successors in interest of the
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existence and terms of this Consent Decree and Order during the period of the Court's
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jurisdiction of this Consent Decree and Order.
This Consent Decree and Order shall be binding on the Signing Parties and all successors
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TERM OF THE CONSENT DECREE AND ORDER:
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jurisdiction of this action to enforce provisions of this Order through December 31, 2017, or
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whenever remediation is complete, whichever comes later.
This Consent Decree and Order shall be in full force and effect, and the Court shall retain
for 90 days following the entry of judgment or dismissal of the entire case.
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SEVERABILITY:
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unenforceable, the other terms of this Consent Decree and Order shall nonetheless remain in full
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force and effect.
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SIGNATORIES BIND SIGNING PARTIES:
If any term of this Consent Decree and Order is determined by any court to be
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-6CONSENT DECREE & [PROPOSED] ORDER
AS TO INJUNCTIVE RELIEF ONLY
Case No. C14- 5035 WHA
9/16
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