Yates v. Hong Kong Lounge et al

Filing 23

***Civil Case Terminated., STIPULATION AND ORDER. Signed by Magistrate Judge Donna M. Ryu on 3/21/2012. (dmrlc2, COURT STAFF) (Filed on 3/21/2012)

Download PDF
Case4:11-cv-06649-DMR Document20 Filed03/09/12 Page1 of 17 1 Olittnesch cltrw Cffices 4 TIMOTHY S. THIMESCH, ESQ., No. 148213 tim@thimeschlaw.coin 158 Hilltop Crescent Walnut Creek, CA 94597-3452 Tel: 925/588-0401 Fax: 888/210-8868 5 Attorneys for Plaintiff CRAIG YATES 6 JASON G. GONG, ESQ. No. 181298 LAW OFFICE OF JASON G. GONG A Professional Corporation 2121 N. California Blvd., Suite 290 Walnut Creek, CA 94f , 96 Telephone: (925) 735-3800 Facsimile: (925) 735-2801 Email: jgong@gonglavfirm.com 2 3 7 8 9 10 11 Attorney for Defendalts HONG KONG LOUNGE; M & V INVESTMENT, INC.; YAO LU WU; LI ZHEN ZHANG; PETER Y. ZHANG; LUCY KUNG; ROBERT LI; JUDY L. CHEONG 12 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA 13 14 15 CRAIG YATES, CASE NO. C 11-06649 DMR Civil Rights Plaintiff f, 16 [Proposed] FULL CONSENT DECREE ORDER AND JUDGMENT 17 v. 18 HONG KONG LOUNGE; M & V INVESTMENT, INC.; YAO LU WU; LI ZHEN ZHANG; PETER Y. ZHANG; LUCY KUNG; ROBERT LI; JUDY L. CHEONG; and DOES 1 through 50, Inclusive, 19 20 21 Defendants. 23 24 25 26 27 28 aTtitritedl (law 158 HILLTOP CIZESCENT WALNUT CREEK, CA 94597-3452 (925)588-0401 Full Consent Decree Order and Judgment: Case No. C 11 06649 DMR - Case4:11-cv-06649-DMR Document20 Filed03/09/12 Page2 of 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 TABLE OF CONTENTS 1 INTRODUCTION STIPULATIONS Plaintiffs' Qualified Disability Plaintiff's Status a s Aggrieved and Potentially Aggrieved Qualified Facilities Alteration History Scope of Facilities in Issue JURISDICTION SCOPE OF SETTLEMENT AGREEMENTS CONCERNING INJUNCTIVE RELIEF Specific Agreed R.emediations Performance Stan Jards Option to Close Ficilities Time for Compliance Enforcement AGREEMENT CONCERNING DECLARATORY RELIEF RESOLUTION OF REMAINING MONETARY CLAIMS Resolution of Plaintiffs' Claim for Statutory Damages Resolution of Clam for Reasonable Statutory Attorneys Fees, Litigation Expenses liicl Costs CONSENT DECREE BINDING ON PARTIES AND SUCCESSORS IN INTEREST JOINT PREPARATION AND SEVERABILITY SIGNATORIES BIN D PARTIES 2 2 2 2 2 2 3 3 9 9 9 10 10 11 11 12 12 12 16 17 18 19 20 21 22 23 24 25 26 27 28 afrianesoft RIsS C 158 HILLTOP CRE WALNUT CREEK, CA 94597-3452 (925)588-0401 IT Full Consent Decree Order and Judgment: Case No. C 11-06649 DMR — ii — Case4:11-cv-06649-DMR Document20 Filed03/09/12 Page3 of 17 FULL CONSENT DECREE ORDER AND JUDGMENT 2 INTRODUCTION 1. 3 4 Plaintiff CRAIG YATES is a person with a disability whose condition requires the full time use of a wheelchair for mobility 2. 5 Defendants YAO LU WU; LI ZHEN ZHANG; PETER Y. ZHANG; LUCY 6 KUNG; ROBERT LI; JUDY L. CHEONG (hereafter "Landlords") are the owners of the real 7 property housing the public accommodation Hong Kong Lounge, located at or near 5322 Geary 8 Boulevard in San Francisco, California (hereafter, "Subject Restaurant"). They lease the 9 property to Defendant M & V INVESTMENT, INC., who shall be referred to herein as 10 Tenant. Together, the subject Tenants and Landlord shall be referred to as Defendants; and 11 together Plaintiff and the Defendants shall be referred to collectively herein as the Parties. 3. 12 Plaintiff filed this action for himself and all other similarly situated members of 13 the public to vindicate their rights under the Americans with Disabilities Act of 1990 ("ADA"), 14 42 U.S.C. §§ 12101 et seq., and Civil Code Section 54 and 54.1. 4. 15 Plainti ff alleges that Subject Defendants and the Hong Kong Lounge violated 16 these statutes by failing to provide full and equal access and related facilities, including an 17 accessible route front the public sidewalk to all elements of the building, and to the main 18 entrance, dining facilities, the bar, dining tables and public restrooms. Specific identification of 19 the facilities and their deficiencies were identified in the Complaint filed on December 27, 20 2011. 5. 21 Plaintiff alleges that the subject building and site has undergone construction 22 triggering the requirement of full compliance with regulations in the altered areas, and that 23 further Defendants cpuld easily afford to makes its facilities and services accessible without 24 significant difficulty Dr expense. 6. 25 The Parties enter this Full Consent Decree Order and Judgment (hereafter 26 "Consent Decree") iri order to fully resolve the issues, claims and defenses in this case. 27 //// 28 Mims& claw 158 HILLTOP CREiftT t WALNUT CREEK, CA 94597-3452 (925) 588-0401 Full Consent Decree Order and Judgment: Case No. C 11-06649 DMR Case4:11-cv-06649-DMR Document20 Filed03/09/12 Page4 of 17 STIPULATIONS 7. Plaintiff's Qualified Disability. Plaintiff qualifies as a "person with a physical disability" as defined ly the relevant statutes. 8. Plaintiff's Status as Aggrieved and Potentially Aggrieved. Plaintiff CRAIG YATES alleges he has standing to bring this action, that he lives in Terra Linda; that he grew up in the Richmond District, and he regularly returns there to shop, dine and conduct personal affairs, and that he has been a repeat customer of this restaurant. While the Defendants do not admit all of the foregoing allegations, they agree that they possess sufficient facts support Plaintiff's qualification as "aggrieved and potentially aggrieved" under the relevant statutes, and his individual standing under Article III of the U.S. Constitution. 9. Qualified Facilities. The Hong Kong Lounge qualifies as a "public accommodation" and "commercial facility" under all applicable statutes and regulations. 10. Alteration History. The parties stipulate that all facilities in issue have undergone sufficient and recent alteration and/or new construction to require compliance with the Americans With Disabilities Act Access Guidelines published in 1992, as it applies to altered facilities, and that the restaurant is otherwise subject to the requirements of Civil Code Section 54.3 and Title; 24, Part II, of the California Code of Regulations. 11. Scope of Facilities in Issue. The following are the facilities at the Subject Restaurant affected by this Consent Decree: including, but not limited to: the accessible route from the public sidewalk and boundary of the site to the main entrance of the restaurant, the main entrance, the dining table facilities, the service counter, and the public restrooms. JURISDICTION 12. The facts requisite to federal jurisdiction are admitted. This Court has jurisdiction pursuant to 28 U.S.C. §1331 for the alleged violations of the ADA, 42 U.S.C. §§ 12101, et seq. Article III jurisdiction is proper due to the Plaintiff's continued exposure and use of the restaurant for dining. Pendant jurisdiction of the state law claims arises from a common nucleus of fact and is proper. Milan& cla 158 HILLTOP CRESCENT WALNUT CREEK, CA 94597-3452 (925)588-0401 Full Consent Decree Order and Judgment: Case No. C 11-06649 DMR —2— Case4:11-cv-06649-DMR Document20 Filed03/09/12 Page5 of 17 1 13. This Court shall have continuing jurisdiction to interpret and enforce this 2 Consent Decree until defendants have fulfilled all conditions hereunder. This agreement is 3 contingent upon Court: acceptance of this continuing jurisdiction. 4 14. The parties agree to entry of this Consent Decree in order to resolve the below 5 listed allegations raiied in the Complaint filed with this Court on December 27, 2011. 6 Accordingly, the parties agree to this Consent Decree without trial or further adjudication of 7 any issues of fact or law concerning the issues specified herein Full Consent Decree Judgment 8 and Order. 9 15. In entering this Consent Decree, Defendants agree this Consent Decree fully 10 vindicates Defendants' violation of Plaintiffs' rights under the Americans with Disabilities Act 11 and Civil Code Secticn 54 and 54.1. 12 13 WHEREFORE, the parties hereby agree and stipulate to the Court's entry of this Full Consent Decree Judgment and Order, which provides as follows: 14 15 16 SCOPE OF SETTLEMENT 16. This Consent Decree shall be a full, complete, and final disposition and 17 settlement of the below claims that have been or could have been alleged in the Complaint, 18 including for injunctive relief, declaratory relief, statutory and compensatory damages, 19 including personal and bodily injury, and Plaintiff's claims for reasonable statutory attorney 20 fees, litigation expenses and costs. This Consent Decree was reached through negotiations 21 between the Parties. The Court shall retain jurisdiction of this action to enforce and interpret 22 this Full Consent Decree Judgment and Order. The parties agree that if they or any of them 23 seek Court enforcement of this Full Consent Decree Judgment and Order, any such 24 enforcement will be by noticed motion, application or other appropriate request for an order for 25 specific performance, and that a contempt citation or decree will not be sought by any party. 26 27 28 tk, Ck 158 HILLTOP CRESCENT WALNUT CREEK, CA 94597-3452 (925)588-0401 AGREEMENTS CONCERNING INJUNCTIVE RELIEF 17. Specific Agreed Remediations. As a part of a compromise of global liability, Full Consent Decree Order and Judgment: Case No. C 11-06649 DMR —3— Case4:11-cv-06649-DMR Document20 Filed03/09/12 Page6 of 17 1 the Defendants each agree that they shall be jointly and severally responsible to perform the 2 following work to pro vide disabled access at the Subject Restaurant: 1) 3 The landing on the exterior of the main entrance is not level within 2% 4 maximum as required by code. (2007-CBC §1133B.2.4.2; and ADAAG at §4.13.6 & Figure 5 25. Defendants shall provide a compliant landing in compliance with CBC and ADAAG 6 Requirements. 2) 7 The previous condition additionally causes a cross-slope in the required 8 24 inch strike edge clearance for this door. (2007-CBC §1133B.2.4.2; and ADAAG at §4.13.6 9 & Figure 25.) Defendants shall provide a compliant landing in compliance with CBC and 10 ADAAG Requirements. 11 3) The landing on the interior of the main entrance is not level within 2% 12 maximum as required by code. (2007-CBC §1133B.2.4.2; and ADAAG at §4.13.6 & Figure 13 25.) Defendants sha 11 provide a compliant landing in compliance with CBC and ADAAG 14 Requirements. 15 4) The push side of the main entrance door (the door swings out to the 16 sidewalk) does not rave a 10 inch high smooth uninterrupted surface as required by code. 17 Compliance with this requirement allows the door to be opened by a wheelchair footrest 18 without creating a ti ap or hazardous condition. (2007-CBC §1113A.5.) Defendants shall 19 provide a 10 inch kick plate or other compliance surface in conformance with CBC 20 requirements. 21 5) The push pressure on the main entrance door exceeds the 5 lbs. 22 maximum permitted by code. (2007-CBC §1133B.2.5.) This barrier discriminates against 23 persons with disabilil ies whose physical condition requires the use of a wheelchair for mobility 24 by making it more difficult to impossible to go through the door without assistance. Plaintiff 25 encountered this condition and was discriminated against in just such a manner. Defendants 26 shall adjust these entrances so that the amount of push pressure required to operate is no more 27 than 5 lbs. 28 6) The interior vestibule door has a Maitre Di stand on the exterior side of aritimorscli9sw 158 HILLTOP CRPA" NT WALNUT CREEK, CA 94597-3452 (925) 588-0401 Full Consent Decree Order and Judgment: Case No. C 11-06649 DMR — 4— Case4:11-cv-06649-DMR Document20 Filed03/09/12 Page7 of 17 1 the door at a distance of approximately 40 inches from the face of the closed door, which is in 2 the 48 inch minimum door landing. (2007-CBC §1126A.3.2.1 and Figure 11A-8A, and 3 ADAAG § 4.13.6 Figure 25(a).) Defendants shall eliminate the obstruction in 4 conformance with CBC and ADAAG requirements. 5 7) On information and belief, the distance between the doors serving either 6 end of the entry vestibule is less than the 48 inch minimum required by code. This condition 7 discriminates as described in the previous paragraph. Defendants shall provide a compliant 8 door landing in compliance with CBC and ADAAG requirements. 9 8) The entry vestibule does not contain a 30X48 inch clear floor space that 10 is situated outside of :he required exit way for the restaurant. Defendants shall reconfigure the 11 space to provide a compliant clear floor space for wheelchair users to use the waiting area. 12 9) The interior vestibule door lacks required strike edge clearance. (2007- 13 CBC §1133B.2.4.3; and ADAAG at §4.13.6 & Figure 25.) This barrier discriminates against 14 wheelchair users by making it difficult to impossible to position the wheelchair a location 15 where the door can swing upon without striking the chair, and makes it much more difficult, if 16 not impossible, to go through the door independently. Defendants shall reconfigure the 17 vestibule, or the swing of the door, to provide required strike side clearance, and in full 18 conformance with CBC and ADAAG requirements. 19 10) The interior vestibule door lacks a 10 inch high smooth uninterrupted 20 surface on its push side. Compliance with this requirement allows the door to be opened by a 21 wheelchair footrest without creating a trap or hazardous condition. (2007-CBC §1113A.5.) 22 Defendants shall provide a 10 inch kick plate or other compliance surface in conformance with 23 CBC requirements. 24 11) The push pressure on the interior vestibule door exceeds the 5 lbs. 25 maximum permitted by code. (2007-CBC §1133B.2.5.) This barrier discriminates against 26 persons with disabilities whose physical condition requires the use of a wheelchair for mobility 27 by making it more difficult to impossible to go through the door without assistance. 28 Defendants shall adjust these entrances so that the amount of push pressure required to operate now& item 158 HILLTOP CRESCENT WALNUT CREEK, CA 94597-3452 (925) 588-0401 Full Consent Decree Order and Judgment: Case No. C 11-06649 DMR —5— Case4:11-cv-06649-DMR Document20 Filed03/09/12 Page8 of 17 1 2 is no more than 5 lbs. 12) The height of the typical 2-4 person table is adequate, but the knee space 3 projects under the table only approximately 12 inches instead of the 19 inches required, and the 4 clear floor space under the table is only 19 inches wide between the legs. (2007-CBC 5 §1122B.3; and ADAAG §4.32.3.) Defendants shall provide access to at least 5% of the tables, 6 and in each seating section, that in conformance with CBC/ADAAG requirements, ensuring 7 that none of such designated accessible tables has a pedestal, pedestal base or other obstruction 8 located within the 19 inch minimum depth required for knee space dimension. 9 13) The aisle width between tables ranges from approximately 36-38 inches 10 between the chairs in the pushed-in position to 30 inches between chairs in their occupied 11 position. When the ypical table is equipped with a banquet table-top on demand, there is no 12 longer a 36 inch path of travel through the restaurant. Defendants shall survey the restaurant by 13 a licensed CASp consultant and provide a minimum 36 inch path of travel to all facilities. 14 14) The work area outside the public restrooms is covered with walk-off 15 mats that are not firmly attached to the floor, and buckle under the wheelchair as it moves 16 across the mats. All ground and floor surfaces along an accessible route are required to be 17 stable, firm and slip resistant. (2007-CBC §1124B.1; and ADAAG §4.5.1.) Defendants shall 18 firmly attach the mat; in conformance with CBC and ADAAG requirements. 19 15) In the interior of the men's public restroom, there are three floor mats on 20 the interior of the re5 troom: one in front of the sink, one in front of the urinal, and one in front 21 of the toilet in the designated accessible stall. These mats are also not firmly attached, and also 22 buckle and tangle under the wheelchair's wheels as the user moves 23 Defendants shall remove or firmly attach these mats. 24 16) across the floor. The knee-space under the sink at the front face of the sink is 25 approximately 27 imhes above the finished floor instead of the 29 inches required by code. 26 (2007-CBC §11158.4.3(2); and ADAAG §4.19.2.) Defendants shall raise the sink in 27 compliance with CBC and ADAAG requirements. 28 17) There's a large semi-rectangular wicker basket under the sink that &Menu& law 158 HILLTOP CRETENT WALNUT CREEK, CA 94597-3452 (925)588-0401 Full Consent Decree Order and Judgment: Case No. C 11-06649 DMR —6— Case4:11-cv-06649-DMR Document20 Filed03/09/12 Page9 of 17 obstructs the clear floar space under one entire sink, and a portion of the second, leaving a clear 2 floor space under the sink that has a width of approximately 27 inches, which is less than the 30 3 inch minimum required by code. Defendants shall remove the obstacle to comply with CBC 4 and ADAAG requirements. 5 18) The sinks themselves are rectangular bowls set on top of the counter. On 6 information and belief, the height of the top of the bowls is set at a height that exceeds the 34 7 inch maximum specified by code. (2010-CBC Figure 11 B-1 D; and ADA Stds at Figure 31.) 8 Defendant shall have this facility surveyed by a licensed CASp consultant, and if the overall 9 height exceeds 34 inches, Defendants shall reposition the counter to be at or below the 10 11 compliant maximum neight in conformance with the CBC and ADAAG requirements. 19) The controls for the sink must be reached across the obstruction of the 12 bowl, which, since it is higher than the maximum of 34 inches, creates a barrier that individuals 13 using wheelchairs must reach across. Defendant shall have the sink surveyed and adjusted as 14 provided in the preceding paragraph. 15 20) The height of the two paper towel dispensers mounted on wing walls on 16 either side of the sink counter are approximately 50 inches above the finished floor, which 17 exceeds the 40 inch maximum specified by code. (2007-CBC §1115B.8.3; and ADAAG §§ 18 4.27.3 and 4.2.5 & 6.) Defendants shall reposition the paper towel holder to comply with CBC 19 and ADAAG requirements. 20 21) The turn-around space in front of the sink is approximately 45 inches, 21 and in front of the urinals, is approximately 55 inches. Hence, the bathroom lacks a 60 inch 22 turn around space (2007-CBC §1115B.3.1; and ADAAG §4.23.3). Defendants shall provide 23 compliant clear floor and turning space meeting the requirements of the CBC and ADAAG. 24 22) The toilet is mounted at 19 inches on center instead of the 18 inches 25 exact on-center dimension specified by code. (2010-CBC §1115B.4.1(1); and ADAAG 4.17.3 26 and Fig. 30.) Defendants shall remount the toilet to the exact specified dimension to conform 27 to code, or provide an appropriately sized backer-board behind the side grab bar. 28 23) The distance in front of the toilet is 54 inches instead of the 60 inches amuck 49W 158 HILLTOP CRESCENT WALNUT CREEK, CA 94597-3452 (925) 588-0401 Full Consent Decree Order and Judgment: Case No. C 11-06649 DMR —7— Case4:11-cv-06649-DMR Document20 Filed03/09/12 Page10 of 17 1 required for a side approach toilet stall. (2007-CBC § 1115B.4.1(2); and ADAAG §4.16.2 and 2 Fig. 28.) Defendants shall reconfigure the room to provide front transfer space that 3 compliant with CBC a nd ADAAG requirements. 4 24) is The distance beside the toilet is 28 inches instead of the 32 inches 5 minimum required. Additionally, the is a water hose bib mounted on the floor in the side 6 transfer space at a &stance of approximately 14 inches from the edge of the toilet, 7 projects off the wall approximately 6 inches into the required clear floor space beside the toilet, 8 which further reduces the clear floor space and the flexibility that the user has to position their 9 chair appropriately to make a side transfer in this space. (2007-CBC §1115B.4.1(1); and 10 ADAAG §4.16.2.) Defendants shall reconfigure the side transfer space in conformance with 11 CBC/ADAAG requirements. 12 25) and it On information and belief, the stall is less than the 60 inch minimum 13 required inside a stall when the stall-door swings into the stall space. The stall door opens 14 inside the stall, and there is insufficient room inside the stall to place a 30 X 48 inch rectangular 15 clear floor space to pt the stall door closed. Finally, the stall door is set at approximately 40 16 inches from the wall that the toilet is mounted upon, instead of the 54 inch minimum required 17 by code. Defendants shall reconfigure the space in conformance with ADAAG and CBC 18 requirements. 19 26) The toilet paper is further than 36 inches from the wall that the toilet is 20 mounted upon, and it is further than 12 inches beyond the front face of the toilet. (2007-CBC 21 §1115B.8.4; and ADAAG Figure 30.) Defendants shall reposition the toilet paper holder in 22 conformance with CBC/ADAAG requirements. 23 27) The centerline of the grab bars are set a height of 36 inches above the 24 finished floor, instetd of the 33 inch on-center dimension specified by code. (2010-CBC 25 §1115B.7 and Figure 11B-1A.) Defendants shall remount the grab bar to conform to the CBC 26 and ADAAG requirements. 27 28 28) The centerline height of the dispensing portion of the sanitary seat cover dispenser greatly exceeds the 40 inch maximum specified by code. (2010-CBC §1115B.8.3 alitintsch clew T 158 HILLTOP CRIRIV6 WALNUT CREEK, CA 94597-3452 (925)588-0401 Full Consent Decree Order and Judgment: Case No. C 11 06649 DMR - —8— Case4:11-cv-06649-DMR Document20 Filed03/09/12 Page11 of 17 1 and ADAAG §4.27.3 , 4.2.5&6.) Defendants shall lower the dispenser in conformance with 2 C BC and ADAAG requirements 3 29) Defendants shall reconfigure and enlarge the layout of the restroom to 4 incorporate portions of adjacent areas outside the restroom to create a fully compliant single- 5 occupancy restroom. The enlarged restroom shall provide compliant turning space and transfer 6 spaces in front of and beside the toilet. The restroom shall fully comply as to all requirements 7 for a newly constructed accessible restroom, and provide compliant clear floor spaces, a path of 8 travel to fixtures and amenities, place all amenities within a compliant reach range, have an 9 accessible sink, provide compliant grab bars, proper signage, etc. 10 30) Defendants shall hire a professional CASp certified consultant to ensure 11 and supervise all the foregoing work, and upon completion, to provide certification to 12 Plaintiff's counsel all was completed in strict conformance with the literal requirements under 13 California law for altered facilities, and without regard to any alleged defenses unreasonable 14 hardship, undue hardship, legal and physical constraint, technical infeasibility, 20% cost-cap, 15 etc. 16 18. Performance Standards. All of the foregoing facilities shall be brought into 17 full and strict compliance with the literal performance standards for altered facilities under the 18 Americans with Disabilities Act Accessibility Guidelines, effective January 26, 1992, and 19 under California's Title 24, (2008), whichever, for any particular element, provides the 20 strongest level of prc tection to persons with disabilities. Defendant hereby release all alleged 21 claims defenses to literal compliance such as unreasonable hardship, undue hardship, legal and 22 physical constraint, technical infeasibility. 23 19. Optic) a to Close Facilities. In lieu of making modification to any particular 24 facility or amenity called for by this decree, the Defendant may choose to permanently 25 close/remove such facility, element or amenity from public use. Such facility, element or 26 amenity shall not be reopened or re-provided for public use without provision of full disabled 27 access pursuant to th , . terms of paragraphs 17 and 18. 28 20. Time for Compliance. As to all other work, Defendant shall submit plans and Mims& giov 158 HILLTOP CRESCENT WALNUT CREEK. CA 94597-3452 (925) 588-0401 Full Consent Decree Order and Judgment: Case No. C 11-06649 DMR —9— Case4:11-cv-06649-DMR Document20 Filed03/09/12 Page12 of 17 1 apply for any necessary permits for this work within 60 days of the entry of this Order on the docket of the court, arid complete all such work within 120 days of receiving permits, allowing 3 for good faith interniptions due to inclement weather, contractor unavailability, and other 4 causes under the Doctrine of Force Majeure. These plans shall be submitted to Plaintiff's 5 counsel for their review before submission to the Building Department. Permits from the 6 building department -than be secured for all work. Defendant will provide written notice 7 regarding the status of completion within 240 days after entry of this Order. Defendant shall 8 then notify Plaintiff, and provide his attorneys and consultants with physical access to inspect, 9 measure and photograph the facilities to verify that the completed work complies with the 10 terms herein. Such i ispection shall take place within 90 days of Defendants' notification of 11 completion of work. 12 promptly request that the Court dismiss its retained jurisdiction. 13 21. If Defendants comply with the terms of this Decree, Plaintiff shall Enforcement. Should Plaintiff in the future become aware of any facts or 14 conditions relating tc the subject public accommodation that may give rise to a claim that 15 Defendants have failed to comply with any of the injunctive relief provisions set forth herein at 16 paragraph 17, Plaintiff shall be permitted to file a noticed motion under the current case number 17 of this action seeking enforcement of this Consent Decree. The "prevailing party" in such 18 motion proceedings, whether in full or in part, may be entitled to an award of reasonable 19 attorney fees, litigation expenses and costs for such motion, i.e., the fee recovery shall be 20 pursuant to the normal prevailing party standards that applied under the subject statutes before 21 entry of this decree., under the subject fee shifting statutes named in the complaint and 22 Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978). Thus, Defendants may be entitled 23 to recovery of attorney's fees in such proceeding only upon proof that Plaintiff's motion is 24 frivolous or brought in bad faith. 25 ") 6 27 28 alititsch clew 158 HILLTOP CRESCENT WALNUT CREEK, CA 94597-3452 (925)588-0401 AGREEMENT CONCERNING DECLARATORY RELIEF 22. In resolution of Plaintiff's claim for declaratory relief, Defendants hereby stipulate, that by this Consent Decree, the barriers identified herein for correction, at paragraph Full Consent Decree Order and Judgment: Case No. C 11-06649 DMR — 10 — Case4:11-cv-06649-DMR Document20 Filed03/09/12 Page13 of 17 1 17, supra, constitute past and present violations of each Plaintiff's rights under the Title III of 2 the Americans with Disabilities Act of 1990, and Civil Code Section 54 and 54.1. Defendants 3 agree that Plaintiffs claim for statutory damages is inextricably intertwined with his claims for 4 injunctive relief. Defendants have agreed to conduct the barrier removals herein as a result of 5 the settlement of this action as provided in this Consent Decree. 6 7 8 RESOLUTION OF STATUTORY DAMAGE CLAIMS 23. Defendants agree to pay Plaintiff the amount of $8,000 in full satisfaction of his 9 claims for bodily anc personal injury and for statutory damages under Title II of the ADA, and 10 Civil Code Sections 52 and 54.3. A check for this amount shall be made payable to "TIM 11 THIMESCH, In Trust," and delivered into Plaintiff counsel's hands by March 12, 2012. If 12 overnight mail is used, Defendants shall supply Plaintiff's counsel with a tracking number. 13 24. The parties stipulate that the foregoing amount is intended to be paid in full to 14 Plaintiffs, and unde -stand that no part of it shall be received by Plaintiffs' counsel in 15 compensation toward each Plaintiff's separate claim for reasonable statutory attorney fees, 16 litigation expenses, and costs. 17 18 RESOLUTION OF CLAIM FOR REASONABLE STATUTORY ATTORNEYS FEES, 19 LITIGATION EXPENSES AND COSTS: 20 25. Defendants agree to pay Plaintiff's counsel the amount of $18,500 in full 21 satisfaction of his claims for interim and final claims for reasonable statutory attorney fees, 22 litigation expenses ar d costs under Section 505 of the ADA [42 USC 12205]; and Civil Code 23 Sections 52 and 54.3. A check for this amount shall be made payable to "TIM THIMESCH, IN 24 TRUST," and delivered into Plaintiff counsel's hands by March 12, 2012. If overnight mail is ") 5 used, Defendant shall supply Plaintiff's counsel with a tracking number. 26 27 28 FULL CONSENT DECREE JUDGMENT AND ORDER: 26. This Consent Decree constitutes the entire agreement between the parties on the ous& clsw 158 HILLTOP CREPAS T WALNUT CREEK, CA 94597-3452 (925)588-0401 Full Consent Decree Order and Judgment: Case No. C 11-06649 DMR — 11 — Case4:11-cv-06649-DMR Document20 Filed03/09/12 Page14 of 17 1 matters of Plaintiff's claims for injunctive relief, statutory and personal injury damages, and 2 reasonable statutory attorney fees, litigation expenses and costs, and no other statement, 3 promise, or agreement, either written or oral, made by any of the parties or agents of any of the 4 parties, that is not contained in this written Full Consent Decree Judgment and Order, shall be 5 enforceable regarding the matters described herein. 6 7 CONSENT DECREE BINDING ON PARTIES AND SUCCESSORS IN INTEREST: 27. 8 9 10 The parties agree and represent that they have entered into this Consent Decree voluntarily, under no duress, and wholly upon their own judgment, belief, and knowledge as to all matters related to this Consent Decree, after having received full advice from counsel. 28. 11 This Consent Decree shall be binding on Plaintiffs and Defendants and any 12 successors in interest. During the period of this Consent Decree, the parties have a duty to so 13 notify all such successors in interest of the existence and terms of this Consent Decree during 14 the period of the Court's jurisdiction of this Consent Decree. 15 16 JOINT PREPARATION AND SEVERABILITY: 17 29. This Consent Decree is deemed jointly prepared by all parties and shall not be 18 strictly construed against any party as its drafter. If any term of this Consent Decree is 19 determined by any , ::ourt to be unenforceable, the other terms of this Consent Decree shall 20 nonetheless remain in full force and effect. 21 22 SIGNATORIES BEND PARTIES: 23 30. Signatories on the behalf of the parties represent that they are authorized to bind 24 the parties to this Consent Decree. 25 //// 26 27 28 amok glew 158 HILLTOP CRSCENT WALNUT CREEK, CA 94597-3452 (925)588-0401 Full Consent Decree Order. and Judgment: Case No. C 11-06649 DMR -- 1 — 02/29/2012 20:49 FAX Case4:11-cv-06649-DMR 1 001 Document20 Filed03/09/12 Page15 of 17 SIGNATORIES BIND PARTIES: 2 31. This Consent Decree may be executed in counterpart signatures, and such 3 I signatures may be attached in counterparts, each of which shall be deemed an original, and 4 which together shall constitute one and the same instrument. Such counterparts may be si gned 5 as faxed signatures, which shall have the same force an:Sect as original signatures. 6 7 Dated: ,--et 8 IG YATES 9 10 Dated: M13-1` / 11 12 By: 13 Officer's Title: 14 LA cft"‹. 15 16 Dated: 17 YAO LU WU 18 19 Dated: 20 LI ZHEN ZHANG 21 22 Dated: 23 PETER Y. WANG 24 25 Dated: 26 LUCY KUNG 27 28 poot, 158 HILLTOP CRESCENT WALNUT CREEK, CA 94597-1452 (925) 5880401 Vuli Consent Decree Order Si nd and Csssc No. C 11-06649 DIAR — 13-- Case4:11-cv-06649-DMR Document20 Filed03/09/12 Page16 of 17 SIGNATORIES BIND PARTIES: 31. 2 This Consent Decree may be executed in counterpart signatures, and such 3 signatures may be attached in counterparts, each of which shall be deemed an original, and 4 which together shall constitute one and the same instrument. Such counterparts may be signed 5 as faxed signatures, which shall have the same force an ect as original signatures. 6 7 Dated: 7eog.' 8 AIG YATES 9 10 Dated: 11 M & V INVESTMENT, INC. 12 By: 13 Officer's Title: 14 15 16 Dated: 17 alatt-e Gal AO LU WU 18 19 Dated: 7it-oofr 20 LI ZHEN ZHANG 21 22 Dated: 23 24 25 Dated: 26 27 L CY KUNG 28 Mimed' ciinv Offices 158 HILLTOP CRESCENT WALNUT CREEK, CA 94597-3452 (925)518-0401 Full Consent Decree Order send Judgment: Cue No. C 11-06649 AMR —13--- Case4:11-cv-06649-DMR Document20 Filed03/09/12 Page17 of 17 f 1 Dated: 2 ROBERT L 3 4 Dated: Gk e o 5 JUDY L. CHEONG 6 7 APPROVED AS TO FORM: 8 Dated: Mar. , 2012 THIMESCH LAW OFFICES TIMOTHY S. THIMESCH, ESQ. 9 /s/ Timothy S. Thimesch, Authorized Signed Attorneys for Plaintiff CRAIG YATES 10 11 12 Dated: Mar. , 2012 JASON G. GONG, ESQ. LIVINGSTON LAW FIRM 13 /s/ Authorized Signed Attorneys for Defendants HONG KONG LOUNGE; M & V INVESTMENT, INC.; YAO LU WU ; LI ZHEN ZHANG; PETER Y. ZHANG Lucy KUNG; ROBERT LI; and JUDY L. CHEONG 14 15 ; 16 17 18 ORDER 23 24 NO 25 Date: March 21, 2012 RT 26 28 u a M. Ry onn Judge D E DONNA M. RYU HON.R C N MAGISTRATE JUDGE O F D IS T IC T U.S. DISTRICT COURT R H 27 D RDERE OO IT IS S R NIA UNIT ED 22 RT U O S 21 S DISTRICT TE C TA FO IT IS SO ORDERED. LI 20 A 19 rfattalch 'troy (Mom 3 HILLTOP CRESCENT WALNUT CREEK, CA 94597-3452 (925) 588-0401 Full Consent Decree Order ar d Judgment: Case No. C 11-06649 DMR 14—

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?