Green v. Eastmont Oakland Associates, LLC. et al

Filing 38

CONSENT DECREE AND ORDER. Signed by Judge ARMSTRONG on 12/20/10. (lrc, COURT STAFF) (Filed on 12/20/2010)

Green v. Eastmont Oakland Associates, LLC. et al

Doc. 38

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LAW OFFICES OF

PAUL L. REIN, Esq. (SBN 43053) CELIA McGUINNESS, Esq. (SBN 159420) CATHERINE CABALO (SBN 248198) LAW OFFICES OF PAUL L. REIN 200 Lakeside Drive, Suite A Oakland, CA 94612 Telephone: [phone] Facsimile: 510/832-4787 Attorneys for Plaintiff CHERYL GREEN WILLIAM MILLER, Esq. (SBN 216289) BUCHHALTER NEMER 333 Market Street, 25th Floor San Francisco, CA 94105-2126 415/227-0900 415/227-0770 Attorneys for Defendant BANK OF AMERICA, NA UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA CHERYL GREEN, Plaintiff, v. EASTMONT OAKLAND ASSOCIATES, LLC; SCANLANKEMPERBARD COMPANIES; BANK OF AMERICA, NA; AND DOES 1-40, INCLUSIVE, Defendants. / CONSENT DECREE and [PROPOSED] ORDER CASE NO. C09-03682 SBA Civil Rights

1.

Plaintiff CHERYL GREEN filed a Complaint in this action on

August 12, 2009, 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. sections 12101 et seq., and California civil rights laws against Defendants
CONSENT DECREE AND [PROPOSED] ORDER CASE NO. 09-3682 SBA

PAUL L. REIN
200 LAKESIDE DR., SUITE A OAKLAND, CA 94612-3503 [phone]

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Dockets.Justia.com

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LAW OFFICES OF

EASTMONT OAKLAND ASSOCIATES, LLC; SCANLANKEMPERBARD COMPANIES; BANK OF AMERICA, NA, relating to the condition of their public accommodations as of plaintiff''s visit on or about January 21, 2009, 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 Bank of America in Eastmont Mall, located at 6900 Bancroft Avenue in Oakland, California, including visits in the interior of the bank and parking in the parking facilities surrounding the bank. 2. Defendant BANK OF AMERICA, NA denies the allegations in the Complaint and by entering into this Consent Decree and Order does not admit liability to any of the allegations in plaintiff's Complaint filed in this action. Plaintiff and defendant BANK OF AMERICA, NA only (hereinafter the "Parties") hereby enter into this Consent Decree and Order for the purpose of resolving this lawsuit as to BANK OF AMERICA, NA only without the need for protracted litigation and without the admission of any liability. JURISDICTION: 3. The Parties to this Consent Decree and Order agree that the Court has jurisdiction of this matter pursuant to 28 U.S.C. section 1331 for alleged violations of the Americans with Disabilities Act of 1990, 42 U.S.C. sections 12101 et seq., and pursuant to supplemental jurisdiction for alleged violations of California Health & Safety Code sections 19955 et seq.; and California Civil Code sections 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 and Order agree to entry of this Consent Decree and Order to resolve all claims against defendant BANK OF AMERICA, NA raised in the Complaint filed with this Court. Accordingly, the
CONSENT DECREE AND [PROPOSED] ORDER CASE NO. 09-3682 SBA

PAUL L. REIN
200 LAKESIDE DR., SUITE A OAKLAND, CA 94612-3503 [phone]

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LAW OFFICES OF

Parties agree to the entry of this Consent Decree and Order without trial or further adjudication of any issues of fact or law concerning plaintiff's claims against defendant BANK OF AMERICA, NA. WHEREFORE, the Parties to this Consent Decree and Order 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 Consent Decree and Order shall be a full, complete, and final disposition and settlement of plaintiff's claims against defendant BANK OF AMERICA, NA for injunctive relief that have arisen out of the subject Complaint. The Parties agree that there has been no admission or finding of liability for 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 comprises the recommendations of plaintiff's expert Barry Atwood in his report, attached hereto as Attachment A, except as to his recommendations concerning the vault. Defendant BANK OF AMERICA, NA agrees to undertake all of the remedial work as set forth therein, except that defendant does not have to modify the entrance to its vault. b) Timing of Injunctive Relief: For work not requiring building permits, defendant BANK OF AMERICA, NA will complete the work within 60 days of entry of this Consent Decree and Order by the Court. For work requiring
CONSENT DECREE AND [PROPOSED] ORDER CASE NO. 09-3682 SBA

PAUL L. REIN
200 LAKESIDE DR., SUITE A OAKLAND, CA 94612-3503 [phone]

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LAW OFFICES OF

building permits, defendant BANK OF AMERICA, NA will complete all corrective work within six months of entry of this Consent Decree and Order by the Court. In the event that unforeseen difficulties prevent Defendant BANK OF AMERICA, NA from completing any of the agreed-upon injunctive relief, defendant BANK OF AMERICA, NA or its counsel will notify plaintiff's counsel in writing within 15 days of discovering the delay. Defendant BANK OF AMERICA, NA or its counsel will notify plaintiff's counsel in writing when all 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 and Order. c) Defendant BANK OF AMERICA, NA will notify plaintiff in writing at the end of 120 days as to the current status of agreed-to injunctive relief, and every 90 days thereafter until all access is provided. If defendant BANK OF AMERICA, NA fails to provide injunctive relief on the agreed-to timetable and/or fails to provide timely written status notification, and plaintiff files a motion with the Court to obtain compliance with these terms, plaintiff reserves the right to seek additional attorney fees for all compliance work necessitated by defendant BANK OF AMERICA, NA's failure to keep its agreement. DAMAGES, ATTORNEY FEES, LITIGATION EXPENSES AND COSTS: 7. Defendant BANK OF AMERICA, NA has also reached agreement with plaintiff for payment of damages and attorney fees, litigation expenses and costs, which settlement will be memorialized in a separate settlement agreement, and, when executed, will constitute a full, complete, and final disposition and settlement of plaintiff's claims against defendant BANK OF AMERICA, NA for damages and attorney fees, litigation expenses and costs with regard to this lawsuit. // ENTIRE CONSENT ORDER:
CONSENT DECREE AND [PROPOSED] ORDER CASE NO. 09-3682 SBA

PAUL L. REIN
200 LAKESIDE DR., SUITE A OAKLAND, CA 94612-3503 [phone]

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LAW OFFICES OF

8.

This Consent Decree and Order and Attachment A to this Consent

Decree and Order, which is incorporated herein by reference as if fully set forth in this document, constitute the entire agreement between the signing Parties as to injunctive relief. Other than the aforementioned settlement agreement regarding damages and attorney fees, litigation expenses and costs, 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, damages, attorney fees, and/or litigation expenses and costs as to defendant BANK OF AMERICA, NA only. The Parties stipulate that the Court will not dismiss the case, as claims regarding other defendants are still before the Court. CONSENT DECREE AND ORDER BINDING ON PARTIES AND SUCCESSORS IN INTEREST: 9. This Consent Decree and Order shall be binding on plaintiff

CHERYL GREEN and upon defendant BANK OF AMERICA, NA and any successors in interest. Defendant BANK OF AMERICA, NA has 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 and Order understands and

agrees that there is a risk and possibility that, subsequent to the execution of this Consent Decree and Order, 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 and Order is signed. Except for all
CONSENT DECREE AND [PROPOSED] ORDER CASE NO. 09-3682 SBA

PAUL L. REIN
200 LAKESIDE DR., SUITE A OAKLAND, CA 94612-3503 [phone]

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LAW OFFICES OF

obligations required in this Consent Decree and Order, the Parties intend that this Consent Decree and Order 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 and Order. Therefore, except for all obligations required in this Consent Decree and Order, this Consent Decree and Order shall apply to and cover any and all claims, demands, actions and causes of action by the Parties to this Consent Decree and Order 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 EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR. This waiver applies to plaintiff's claims against defendant BANK OF AMERICA, NA only. 11. Except for all obligations required in this Consent Decree and Order, each of the Parties to this Consent Decree and Order, on behalf of themselves, 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:
CONSENT DECREE AND [PROPOSED] ORDER CASE NO. 09-3682 SBA

PAUL L. REIN
200 LAKESIDE DR., SUITE A OAKLAND, CA 94612-3503 [phone]

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LAW OFFICES OF

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 Consent Decree and Order is completed and payment for damages, attorney fees, and litigation expenses and costs is made in full, whichever occurs later. The Court shall retain jurisdiction of this action to enforce provisions of this Consent Decree and Order for twelve (12) months after the date of this Consent Decree and Order, or until the injunctive relief contemplated by this Consent Decree and Order is completed and payment for damages, attorney fees, and litigation expenses and costs is made in full, 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 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: June __, 2010
CONSENT DECREE AND [PROPOSED] ORDER CASE NO. 09-3682 SBA

PLAINTIFF CHERYL GREEN
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PAUL L. REIN
200 LAKESIDE DR., SUITE A OAKLAND, CA 94612-3503 [phone] G:\SBALC2\Keith\Civil\09-3682 - Green - Consent Decree and Order.wpd

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LAW OFFICES OF

______________________________________ CHERYL GREEN

Dated: June __, 2010

DEFENDANT BANK OF AMERICA, NA By: __________________________________ Print name:_________________________________ Title/position: ______________________________

APPROVED AS TO FORM: Dated: June __, 2010 LAW OFFICES OF PAUL L. REIN __________________________________ By PAUL L. REIN Attorneys for Plaintiff CHERYL GREEN Dated: June __, 2010 BUCHALTER NENER _______________________________________ By WILLIAM MILLER, ESQ. Attorneys for Defendant BANK OF AMERICA, NA

ORDER
CONSENT DECREE AND [PROPOSED] ORDER CASE NO. 09-3682 SBA

PAUL L. REIN
200 LAKESIDE DR., SUITE A OAKLAND, CA 94612-3503 [phone]

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Any disputes arising under the Consent Decree and Order, pursuant to paragraph 12 above, shall be referred to the Chief Magistrate Judge or her designee for disposition or report and recommendation, depending on the nature of the relief being sought. Otherwise, pursuant to stipulation, and for good cause shown, IT IS SO ORDERED. Dated: December 20, 2010 __________________________________ Honorable SAUNDRA B. ARMSTRONG United States District Judge

PAUL L. REIN
200 LAKESIDE DR., SUITE A OAKLAND, CA 94612-3503 [phone]

CONSENT DECREE AND [PROPOSED] ORDER CASE NO. 09-3682 SBA

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