Mendoza v. McDonald's Corporation et al
Filing
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ORDER Granting 36 CONSENT DECREE. Signed by Judge Claudia Wilken on 6/24/2011. (ndr, COURT STAFF) (Filed on 6/24/2011)
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PAUL L. REIN, Esq. (SBN 43053)
CELIA MCGUINNESS, Esq. (SBN 159420)
CATHERINE M. 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
Attorneys for Plaintiff
PETER MENDOZA
*Defendants and their respective are counsel listed after the caption.
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IN THE UNITED STATES DISTRICT COURT
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IN AND FOR THE NORTHERN DISTRICT OF CALIFORNIA
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PETER MENDOZA,
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Case No. C09-04122 CW
Civil Rights
Plaintiff,
v.
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MCDONALD’S CORPORATION;
MICHAEL D. MAGRUDER;
17 SYED HUSSAIN; and DOES 1-10,
Inclusive,
CONSENT DECREE AND
ORDER
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Defendants.
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/
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CATHY L. ARIAS, ESQ. (SBN 141989)
ANDREW R. SHALAUTA, ESQ. (SBN 186821)
BURNHAM BROWN
P.O. Box 119
Oakland, CA 94604
1901 Harrison St # 1100
Oakland, CA 94612-3643
Telephone: 510/444-6800
Facsimile: 510/835-6666
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Attorneys for Defendant
27 SYED ALI HUSAIN
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CONSENT DECREE &
[PROPOSED] ORDER
Case No. C09-04122 CW
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BENJAMIN M. GLICKMAN, ESQ. (SBN 247907)
GIBSON, DUNN & CRUTCHER LLP
2 1881 Page Mill Road
Palo Alto, CA 94304
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Facsimile: 650/849-5333
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Attorneys for Defendant
MCDONALD’S CORPORATION
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1.
Plaintiff PETER MENDOZA filed a Complaint in this action on
September 4, 2009, to obtain recovery of damages for his discriminatory
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experiences, denial of access, and denial of his civil rights, and to enforce
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provisions of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§
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12101 et seq., and California civil rights laws against Defendants MCDONALD’S
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CORPORATION and SYED HUSAIN (collectively referred to as “Defendants”),
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relating to the condition of Defendants’ public accommodations as of June 14,
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2009, and continuing. Plaintiff has alleged that Defendants violated Title III of the
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ADA and sections 51, 52, 54, 54.1, 54.3 and 55 of the California Civil Code, and
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sections 19955 et seq. of the California Health & Safety Code by failing to provide
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full and equal access to their facilities at 7340 Redwood Blvd., Novato, California.
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Defendants do not concede liability in this Action.
2.
The parties hereby enter into this Consent Decree and Order for the
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purpose of resolving this lawsuit without the need for protracted litigation. The
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parties fully understand that this Action involves arguable and disputed questions
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of fact and law, that the liability of Defendants for the alleged occurrences,
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transactions, or events, is doubtful and disputed and that the agreement for relief
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herein is not to be construed as an admission of liability, which is expressly denied,
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and that this Agreement arises from compromise.
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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
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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.; Title 24, California Code of
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Regulations; 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
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Consent Decree and Order to resolve all claims raised in the Complaint filed with
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this Court. Accordingly, the parties agree to the entry of this Order without trial or
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further adjudication of any issues of fact or law concerning Plaintiff's claims.
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WHEREFORE, the parties to this Consent Decree hereby agree and stipulate
to the Court's entry of this Consent Decree and Order, which provide as follows:
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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 Plaintiff's claims against Defendants for injunctive relief that have
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arisen out of the subject Complaint.
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The parties agree and stipulate that the corrective work will be
performed in compliance with the standards and specifications for disabled access
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as set forth in the California Code of Regulations, Title 24-2, and Americans with
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Disabilities Act Accessibility Guidelines, unless other standards are specifically
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agreed to in this Consent Decree and Order.
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a)
Remedial Measures: Defendant McDonald's Corporation (or
one of its affiliates) will perform the corrective work at 7340 Redwood Blvd.,
Novato, California. The scope of the corrective work is:
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i.
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Site Access:
(1)
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Replace 3-foot-long section where asphalt meets the
sidewalk to comply with slope requirements;
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(2)
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Paint a 48"-wide path from the sidewalk on the north side
of the driveway adjacent to Redwood Blvd. to connect to
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the curb ramp leading to the front entrance marking the
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path of travel.
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ii.
Parking
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(1)
Building Code (“CBC”) 1129B.4.
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Install “Tow Away” signage specified in California
(2)
Relocate the speed bump that is next to one of the two
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accessible parking spaces or remove that portion of the
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bump where it borders the accessible parking space.
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iii.
Front Entrance:
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(1)
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Adjust the door opener or replace it if necessary so that the
door reaches a fully open position no faster than four (4)
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seconds total time, from fully closed to fully open.
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(2)
Install power door signage required by CBC 1133B.2.3.2.
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(3)
Remove floor mats.
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iv.
Men’s Restroom:
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(1)
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Adjust the door closer or replace it if necessary so that
maximum effort to operate the exterior and interior doors
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do not exceed five (5) pounds.
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(2)
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Adjust the door closer or replace it if necessary so that the
door closes no faster than three (3) seconds from an open
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position of 70 degrees to a point 3-inches from the latch.
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(3)
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Replace toilet fixture so that it is between 17" and 19"
above the finished floor measured to the top of the toilet
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seat.
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(4)
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Replace the toilet paper dispenser with a smaller unit in
order to ensure that the grab bar can be freely grasped and
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the toilet paper can be grasped at a height no lower than
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19" above the floor, providing at least a 1-1/2" clearance
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around the grab bar.
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(5)
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Lower the lavatory to a height between 28" to 34" above
the finished floor and provide 29" of knee space.
v.
Women’s Restroom:
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(1)
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Adjust the door closer or replace it if necessary so that
maximum effort to operate the exterior and interior doors
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do not exceed five (5) pounds.
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(2)
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Adjust the door closer or replace it if necessary so that the
door closes no faster than three (3) seconds from an open
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position of 70 degrees to a point 3-inches from the latch.
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(3)
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Replace the toilet paper dispenser with a smaller unit in
order to ensure that the grab bar can be freely grasped and
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the toilet paper can be grasped at a height no lower than
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19" above the floor, providing at least a 1-1/2" clearance
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around the grab bar.
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vi.
Exterior Playground: Exterior playground will be removed.
b)
Timing of Injunctive Relief: Defendant McDonald's
Corporation (or one of its affiliates) will perform the corrective work based on
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McDonald’s position that the Franchise Agreement for the restaurant at 7340
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Redwood Blvd., Novato, California expired on December 26, 2009, which Syed
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Ali Husain disputes and does not agree with including as set forth in his filings in
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Husain v. McDonald’s Corporation, Case No. 096177, Marin Superior Court of the
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State of California. Defendant McDonald's Corporation (or one of its affiliates)
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will submit plans for all corrective work to the appropriate governmental agencies
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within 90 (ninety) days of the entry of this Consent Decree by the Court.
Defendant McDonald's Corporation (or one of its affiliates) will commence work
within 90 (ninety) days of receiving approval from the appropriate agencies.
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Defendant McDonald's Corporation (or one of its affiliates) will complete all work
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within 120 (one hundred and twenty) days of commencement. In the event that
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unforeseen difficulties prevent Defendant McDonald's Corporation (or one of its
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affiliates) from completing any of the agreed-upon injunctive relief, Defendant
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McDonald's Corporation or its counsel will notify Plaintiff's counsel in writing
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within 15 days of discovering the delay. Defendant McDonald's Corporation or its
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counsel will notify Plaintiff's counsel in writing when the corrective work is
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completed.
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c)
If the corrective work is not completed according to the terms
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of this agreement, then Plaintiff reserves the right to file a motion to obtain
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compliance and seek available remedies.
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DAMAGES, ATTORNEY FEES, LITIGATION EXPENSES AND COSTS:
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7.
The parties have also reached an agreement regarding Plaintiff's
claims for damages, attorneys’ fees, litigation expenses and costs. Defendant Syed
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Husain (“Husain”) shall pay to Plaintiff a total of $12,500 for Plaintiff’s alleged
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damages for personal injuries and civil rights violations, with payment to be made
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to “PAUL L. REIN IN TRUST FOR PETER MENDOZA.” Defendant Husain
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shall also pay a total of $70,000 for Plaintiff’s attorney fees, litigation expenses,
and costs, with payment to be made to “PAUL L. REIN.” Defendant Husain
agrees to deliver full payment of Plaintiff’s $12,500 damages and $70,000 for
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Plaintiff’s attorney fees, litigation expenses, and costs to the Law Offices of Paul
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L. Rein, 200 Lakeside Drive, Suite A, Oakland, CA 94612 on or before April 29,
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2011.
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ENTIRE CONSENT DECREE AND ORDER:
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This Consent Decree and Order constitutes the entire agreement
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between the signing parties on the matters of injunctive relief, damages, attorney
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fees, litigation expenses and costs and no other statement, promise or agreement,
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either written or oral, made by any of the parties or agents of any of the parties that
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is not contained in this written Consent Decree and Order shall be enforceable
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regarding the matters of injunctive relief, damages, attorney fees, litigation
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expenses, and/or costs described herein.
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[PROPOSED] ORDER
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CONSENT DECREE AND ORDER BINDING ON PARTIES AND
SUCCESSORS IN INTEREST:
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This Consent Decree and Order shall be binding on Plaintiff;
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Defendants MCDONALD’S CORPORATION and SYED HUSAIN to the extent
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of their obligations as set forth herein; and any successors in interest. Defendants
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have 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.
RELEASE AND WAIVER OF CIVIL CODE SECTION 1542:
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Plaintiff understands and agrees that there is a risk and possibility
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that, subsequent to the execution of this Consent Decree and Order, that he will
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incur, suffer or experience some further loss or damage with respect to the lawsuit
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that is unknown or unanticipated at the time this Consent Decree and Order is
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signed. Except for all obligations required in this Consent Decree and Order,
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Plaintiff intends that this Consent Decree and Order apply to all such further loss
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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
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apply to and cover any and all claims, demands, actions and causes of action by
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Plaintiff with respect to the lawsuit, whether the same are known, unknown or
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hereafter discovered or ascertained, and the provisions of Section 1542 of the
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California Civil Code are hereby expressly waived. Section 1542 provides as
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follows:
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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.
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11.
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Effective upon Plaintiff’s receipt of the payments required under
paragraph 7, and except for all obligations required in this Consent Decree and
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Order, , Plaintiff and his respective agents, representatives, predecessors,
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successors, heirs, partners and assigns, releases and forever discharges and holds
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harmless Defendants and their officers, directors, shareholders, subsidiaries, joint
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venturers, stockholders, partners, parent companies, affiliates, employees, agents,
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attorneys, insurance carriers, heirs, predecessors, and representatives from all
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claims, demands, actions, and causes of action of whatever kind or nature,
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presently known or unknown, arising out of or in any way connected with the
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lawsuit.
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12. Effective upon Plaintiff’s receipt of the payments required under
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paragraph 7, and except for all obligations required in this Consent Decree and
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Order, Defendants and their officers, directors, shareholders, subsidiaries, joint
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venturers, stockholders, partners, parent companies, affiliates, employees, agents,
attorneys, insurance carriers, heirs, predecessors, and representatives release, hold
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harmless and forever discharge Plaintiff and his respective agents, representatives,
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predecessors, successors, heirs, partners and assigns from all claims, demands,
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actions, and causes of action of whatever kind or nature, presently known or
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unknown, arising out of or in any way connected with the lawsuit.
13. This Consent Decree and Order, and settlement, does not apply to
claims, causes of action, demands, accounts, obligations, proceedings, losses, or
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liabilities, whether now known or unknown, whether based on contract, tort,
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statute, or other legal or equitable theory of recovery, which McDONALD'S
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CORPORATION and SYED HUSAIN can, shall or may have against each other.
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TERM OF THE CONSENT DECREE AND ORDER:
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This Consent Decree and Order shall be in full force and effect for a
period of eighteen (18) months after the date of entry of this Consent Decree and
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Order by the Court, or until the injunctive relief contemplated by this Order is
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completed, whichever occurs later. The Court shall retain jurisdiction of this
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action to enforce provisions of this Consent Decree and Order for eighteen (18)
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months after the date of entry of this Consent Decree and Order by the Court, or
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until the injunctive relief contemplated by this Order is completed, whichever
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occurs later.
SEVERABILITY:
15.
If any term of this Consent Decree and Order is determined by any
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court to be unenforceable, the other terms of this Consent Decree and Order shall
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nonetheless remain in full force and effect.
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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 the parties to this Consent Decree and Order. This Consent
Decree and Order may be signed in counterparts and a facsimile signature shall
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have the same force and effect as an original signature.
Dated: May ___, 2011
PLAINTIFF PETER MENDOZA
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__________________________________
PETER MENDOZA
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Dated: May ___, 2011
DEFENDANT MCDONALD’S CORPORATION
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By: __________________________________
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Print name: ____________________________
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Title: __________________________________
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Dated: May ___, 2011
DEFENDANT SYED ALI HUSAIN
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__________________________________
SYED ALI HUSAIN
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APPROVED AS TO FORM:
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Dated: May ___, 2011
LAW OFFICES OF PAUL L. REIN
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By: _____________________________
Catherine M. Cabalo, Esq.
Attorneys for Plaintiff
PETER MENDOZA
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Dated: May ___, 2011
GIBSON, DUNN & CRUTCHER LLP
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By: __________________________________
Benjamin M. Glickman, Esq.
Attorneys for Defendant
McDonald’s Corporation
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Dated: May ____, 2011
BURNHAM BROWN
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By: __________________________________
Cathy L. Arias, Esq.
Attorneys for Defendant
Syed Ali Husain
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ORDER
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Pursuant to stipulation, and for good cause shown, IT IS SO ORDERED.
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June 24
Dated: __________, 2011
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__________________________________
Honorable CLAUDIA WILKEN
United States District Court Judge
1079876
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Case No. C10-03258-EMC
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