Nevarez et al v. Peacock Gap Holdings LLC et al

Filing 19

STIPULATION AND ORDER re 18 . STIPULATION WITH PROPOSED ORDER Re CONSENT DECREE AND [PROPOSED] ORDER AS TO INJUNCTIVE RELIEF ONLY filed by Priscilla Nevarez, Peacock Gap Holdings LLC, Abdul Nevarez. Signed by Magistrate Judge Kandis A. Westmore on 2/27/18. (sisS, COURT STAFF) (Filed on 2/27/2018)

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1 2 3 4 Catherine Cabalo (CA Bar No. 248198) Peiffer Rosca Wolf Abdullah Carr & Kane 4 Embarcadero Center, 14th Floor San Francisco, CA 94111 Telephone: 415.766.3592 Facsimile: 415.402.0058 Email: ccabalo@prwlegal.com 5 6 Attorneys for Plaintiffs Abdul Nevarez & Priscilla Nevarez 7 8 9 10 11 Jason Gong (CA Bar No. 181298) Law Office of Jason G. Gong 2121 N. California Blvd., Suite 290 Walnut Creek, CA 94596 Telephone: 925.735.3800 Facsimile: 925.735.3801 Email: jgong@gonglawfirm.com 12 13 Attorney for Defendant Defendant Peacock Gap Holdings LLC 14 15 UNITED STATES DISTRICT COURT 16 NORTHER DISTRICT OF CALIFORNIA 17 18 ABDUL NEVAREZ and PRISCILLA NEVAREZ, 19 Plaintiffs, 20 21 22 v. PEACOCK GAP HOLDINGS LLC and DOES 1-15, Inclusive, 23 24 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) Case No. 4:17-cv-03480-KAW Civil Rights CONSENT DECREE AND [PROPOSED] ORDER AS TO INJUNCTIVE RELIEF ONLY Complaint Filed: June 15, 2017 Trial Date: Not assigned 25 26 27 1. Plaintiffs ABDUL NEVAREZ and PRISCILLA NEVAREZ filed a Complaint in this action on June 15, 2017 for injunctive and declaratory relief, damages, and other restitution 28 1 CONSENT DECREE & [PROPOSED] ORDER AS TO INJUNCTIVE RELIEF ONLY Case No. 4:17-cv-03480- KAW 1 for their alleged discriminatory experiences, denial of access, and denial of civil rights, and to 2 enforce provisions of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12101 3 et seq., and California civil rights laws against defendant PEACOCK GAP HOLDINGS LLC 4 (“Defendant”), in connection with or arising out of the condition of the Peacock Gap Golf Club, 5 6 located at or about 333 Biscayne Drive, San Rafael, CA, and related properties and buildings 7 (“Peacock Gap”) as of August 25, 2016 and continuing. Plaintiffs have alleged that Defendant 8 violated Title III of the Americans with Disabilities Act (“ADA”) and the Unruh Civil Rights 9 Act (“Unruh”) by failing to provide full and equal access to the disabled at Peacock Gap. 10 2. Plaintiffs and Defendant (together the “Parties”) hereby enter into this Consent 11 12 Decree and Order for the purpose of resolving injunctive relief issues in this lawsuit without the 13 need for protracted litigation. Issues of damages and attorneys’ fees, costs, and expenses will be 14 the subject of further negotiations and litigation if necessary. 15 16 JURISDICTION: 17 18 3. The Parties to this Consent Decree and Order agree that the Court has jurisdiction 19 of this matter pursuant to 28 U.S.C. section 1331 for alleged violations of the Americans with 20 Disabilities Act of 1990 (“ADA”), 42 U.S.C. sections 12101 et seq. and pursuant to 21 supplemental jurisdiction for alleged violations of Unruh. 22 23 4. To avoid the costs, expense, and uncertainty of litigation, the Parties to this 24 Consent Decree and Order agree to entry of this Consent Decree and Order to resolve all claims 25 and causes of action raised in the Complaint, exclusive of the referenced continuing claims for 26 damages, attorneys’ fees, litigation expenses, and costs. Nothing in this Consent Decree and 27 28 2 CONSENT DECREE & [PROPOSED] ORDER AS TO INJUNCTIVE RELIEF ONLY Case No. 4:17-cv-03480- KAW 1 Order should be considered an admission of liability by Defendant; liability is expressly 2 disclaimed. Accordingly, the Parties agree to the entry of this Consent Decree and Order without 3 trial or further adjudication of any issues of fact or law concerning Plaintiffs’ claims for 4 injunctive relief. 5 6 7 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: 8 9 10 SETTLEMENT OF INJUNCTIVE RELIEF: 5. This Order shall be a full, complete, and final disposition and settlement of 11 12 13 14 15 16 Plaintiffs’ injunctive relief claims against Defendant that have arisen out of the subject Complaint. 6. Remedial Measures: a. ParaGolfer adaptive golf cart: Defendant agrees to order a ParaGolfer adaptive golf cart (“ParaGolfer”) within twenty (20) days of issuance of the Order by the Court 17 18 approving this Consent Decree. This ParaGolfer will be rented to disabled golfers consistent 19 with Peacock Gap’s practices of providing golf carts to able-bodied golfers, including on a first- 20 come, first-served basis, kept in good working condition in accordance with the ParaGolfer’s 21 manufacturer’s specifications and Peacock Gap’s practices and schedule of maintaining carts for 22 23 able-bodied golfers, and will be for the sole use of Peacock Gap (i.e. it will not be lent out to 24 other golf courses). Plaintiffs acknowledge that training regarding the proper use of the 25 ParaGolfer may be required by Defendant as a condition prior to rental or use of the ParaGolfer 26 and shall not constitute a violation of this Consent Decree and Order. As a condition for rental or 27 28 3 CONSENT DECREE & [PROPOSED] ORDER AS TO INJUNCTIVE RELIEF ONLY Case No. 4:17-cv-03480- KAW 1 use of the ParaGolfer, users of the ParaGolfer, including Plaintiff Abdul Nevarez, will be 2 required to execute a standard release and hold harmless agreement which would be substantially 3 similar to any such release and hold harmless agreement required by Peacock Gap from persons 4 who use and/or rent any of its other golf carts. Plaintiffs confirm that they have no economic 5 6 7 interest or incentive from either the manufacturer or distributor of the ParaGolfer or the owner(s) of the company to require Defendant to provide a ParaGolfer adaptive golf cart in this case. 8 9 10 b. Delay or impossibility: Plaintiffs acknowledge that if any of the remedial measures set forth in Paragraph 6(a) are rendered impossible by force majeure or any action, denial, or other restriction imposed by any governmental, quasi-governmental agency, authority, 11 board, body, department, commission, bureau or official, which is not under Defendant’s control, 12 13 14 15 16 Defendant will not be deemed to have violated this Consent Decree and Order, so long as Defendant makes and continue to make a good faith effort to secure the necessary approvals, permits, or explore alternative measures that would resolve the issue or issues causing the unavailability of the ParaGolfer. The Parties further agree that any delays in making the 17 modifications required by Section 6(a) caused by third parties, including but not limited to, the 18 manufacturer of the specified golf cart, shippers, inspectors and others will not be deemed to 19 violate the compliance date set forth herein as long as Defendant makes a good faith effort at 20 implementation as soon as reasonably possible thereafter. 21 difficulty in financing the purchase of the ParaGolfer is not within the scope of this Paragraph 22 6(b). 23 c. The Parties further agree that Notice of other claimed barriers to access and cure period: Subject to 24 the exclusion set forth below, Plaintiffs are required to provide Defendant with written notice of 25 any perceived deficiencies regarding the remedial measures set forth in Section (6)a that 26 Plaintiffs contend they may encounter in the future at Peacock Gap. The written notice shall 27 28 4 CONSENT DECREE & [PROPOSED] ORDER AS TO INJUNCTIVE RELIEF ONLY Case No. 4:17-cv-03480- KAW 1 provide Defendant with twenty (20) calendar days from receipt of Plaintiffs’ written notice of 2 deficiency regarding the availability or maintenance of the ParaGolfer to respond whether it 3 intends to cure the alleged deficiency and forty (40) calendar days thereafter to remediate the 4 claimed deficiency (the “Cure Period”). If the date by which the applicable modification must be 5 completed has elapsed, and if the deficiencies remain uncured, only upon expiration of the Cure 6 7 8 Period may Plaintiffs take further action to enforce this Agreement. If Plaintiffs fail to raise a claim of deficiency within the time period to do so set forth above, the terms of this Agreement shall be deemed to have been satisfied and all remedies available to Plaintiffs shall be deemed to 9 have been waived. However, this provision does not apply to repeated failures by Defendant to 10 11 12 13 furnish a ParaGolfer in good working order if the reasons for noncompliance are within Defendant’s control (for example, the golf cart battery is not consistently charged). d. Compliance: Defendant or its counsel will notify Plaintiffs’ counsel 14 when the ParaGolfer has been ordered and when Peacock Gap has received the ParaGolfer. If 15 16 unforeseen difficulties prevent Defendant from ordering the ParaGolfer, Defendant or its counsel 17 will notify Plaintiffs’ counsel in writing within five (5) days of discovering the delay. Plaintiffs 18 will have twenty (20) days to investigate and meet and confer, and to approve the delay by 19 stipulation or otherwise respond to Defendant’s notice. If the Parties cannot reach agreement 20 21 regarding the delay within an additional twenty (20) days, Plaintiffs may seek enforcement by 22 the Court and reserve the right to seek reasonable attorney’s fees from Defendant for any legal 23 work directly related to this matter necessitated by the failure of Defendant to abide by this 24 Consent Decree and Order. If the Parties disagree on the amount of reasonable attorney's fees, 25 such fees shall be determined by the Court. 26 27 28 5 CONSENT DECREE & [PROPOSED] ORDER AS TO INJUNCTIVE RELIEF ONLY Case No. 4:17-cv-03480- KAW 1 2 3 4 DAMAGES, ATTORNEYS’ FEES, LITIGATION EXPENSES, AND COSTS: 7. The Parties have not yet reached any agreement regarding Plaintiffs’ claims for damages, attorneys’ fees, litigation expenses, and costs. These matters will be the subject of future negotiation or litigation as necessary. The Parties jointly stipulate and request that the 5 6 Court not dismiss the case in its entirety, as these issues remain unresolved. 7 8 9 10 ENTIRE CONSENT DECREE AND ORDER: 8. This Consent Decree and Order constitute the entire agreement between the signing Parties as to injunctive relief and no other statement, promise, or agreement, either 11 12 written or oral, made by any of the Parties or agents of any of the Parties that is not contained in 13 this written Consent Decree and Order, shall be enforceable regarding the matters described 14 herein. There are no intended third-party beneficiaries to this Agreement other than those 15 expressly set forth in this Agreement. 16 17 18 19 CONSENT DECREE AND ORDER BINDING ON PARTIES AND SUCCESSORS IN INTEREST: 9. This Consent Decree and Order shall be binding on Plaintiffs, Defendant, and any 20 21 successors-in-interest. Defendant has a duty to so notify all such successors-in-interest of the 22 existence and terms of this Consent Decree and Order during the period of the Court's 23 jurisdiction of this Consent Decree and Order. 24 25 MUTUAL RELEASE AND WAIVER OF CALIFORNIA CIVIL CODE SECTION 1542 AS TO INJUNCTIVE RELIEF ONLY: 26 27 10. Each of the Parties to this Consent Decree and Order understands and agrees that 28 6 CONSENT DECREE & [PROPOSED] ORDER AS TO INJUNCTIVE RELIEF ONLY Case No. 4:17-cv-03480- KAW 1 there is a risk and possibility that, subsequent to the execution of this Consent Decree and Order, 2 any or all of them will incur, suffer, or experience some further loss or damage with respect to 3 the lawsuit that is unknown or unanticipated at the time this Consent Decree and Order is signed. 4 Except for all obligations required in this Consent Decree and Order, the Parties intend that this 5 6 Consent Decree and Order apply to all such further loss with respect to the lawsuit, except those 7 caused by the Parties subsequent to the execution of this Consent Decree and Order. Therefore, 8 except for all obligations required in this Consent Decree and Order, this Consent Decree and 9 Order shall apply to and cover any and all claims, demands, actions, and causes of action by the 10 Parties to this Consent Decree and Order with respect to the lawsuit, whether the same are 11 12 13 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: 14 15 16 17 18 19 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 OR HER SETTLEMENT WITH THE DEBTOR. This waiver applies to the injunctive relief aspects of this action only and does not 20 21 22 23 24 include resolution of Plaintiffs’ unresolved claims for damages, attorneys’ fees, litigation expenses, and costs. 11. Except for all obligations required in this Consent Decree and Order -- and exclusive of the referenced unresolved claims for damages, attorneys’ fees, litigation expenses, 25 and costs – each of the Parties to this Consent Decree and Order and on behalf of their respective 26 27 agents, representatives, predecessors, successors, heirs, partners, and assigns, releases and 28 7 CONSENT DECREE & [PROPOSED] ORDER AS TO INJUNCTIVE RELIEF ONLY Case No. 4:17-cv-03480- KAW 1 forever discharges each other Party and all officers, directors, shareholders, subsidiaries, joint 2 venturers, stockholders, partners, parent companies, employees, agents, attorneys, insurance 3 carriers, heirs, predecessors, and representatives of each other Party, from all claims, demands, 4 actions, and causes of action of whatever kind or nature, presently known or unknown, arising 5 6 out of or in any way connected with the lawsuit. 7 8 9 10 TERM OF THE CONSENT DECREE AND ORDER: 12. This Consent Decree and Order shall be in full force and effect -- and the Court shall retain jurisdiction of this action to enforce provisions of this Consent Decree and Order -- 11 12 for a period of eighteen (18) months after the date of entry of this Consent Decree and Order by 13 the Court or until the injunctive relief contemplated by this Consent Decree and Order is 14 completed, whichever occurs later. 15 16 SEVERABILITY: 17 18 13. If any term of this Consent Decree and Order is determined by any court to be 19 unenforceable, the other terms of this Consent Decree and Order shall nonetheless remain in full 20 force and effect. 21 22 23 24 SIGNATORIES BIND PARTIES: 14. Signatories on the behalf of the Parties represent that they are authorized to bind 25 the Parties to this Consent Decree and Order. This Consent Decree and Order may be signed in 26 counterparts and a facsimile signature shall have the same force and effect as an original 27 28 8 CONSENT DECREE & [PROPOSED] ORDER AS TO INJUNCTIVE RELIEF ONLY Case No. 4:17-cv-03480- KAW 1 signature. 2 3 4 END OF PAGE. SIGNATURES CONTINUE ON THE NEXT PAGE AND ORDER IS AT THE END OF 5 6 THE DOCUMENT. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 CONSENT DECREE & [PROPOSED] ORDER AS TO INJUNCTIVE RELIEF ONLY Case No. 4:17-cv-03480- KAW 1 Dated: __________, 2018 PLAINTIFF ABDUL NEVAREZ 2 3 ABDUL NEVAREZ 4 5 6 Dated: __________, 2018 PLAINTIFF PRISCILLA NEVAREZ 7 8 9 PRISCILLA NEVAREZ 10 11 Dated: __________, 2018 DEFENDANT PEACOCK GAP HOLDINGS LLC 12 By: _________________________________ 13 14 Print Name: ___________________________ 15 Title: ________________________________ 16 APPROVED AS TO FORM: 17 18 February 22, Dated: __________, 2018 19 PEIFFER ROSCA WOLF ABDULLA CARR & KANE s/ Catherine Cabalo By: _________________________________ Catherine Cabalo Attorneys for Plaintiffs ABDUL NEVAREZ and PRISCILLA NEVAREZ 20 21 22 23 24 25 26 27 Dated: __________, 2018 February 22 LAW OFFICE OF JASON G. GONG s/ Jason Gong By: _________________________________ Jason G, Gong Attorney for Defendant PEACOCK GAP HOLDINGS LLC 28 10 CONSENT DECREE & [PROPOSED] ORDER AS TO INJUNCTIVE RELIEF ONLY Case No. 4:17-cv-03480- KAW 1 2 3 4 5 FILER’S ATTESTATION Pursuant to Civil Local Rule 5-1, I hereby attest that on February 22 _____________, 2018, I, Catherine Cabalo, attorney with Peiffer Rosca Wolf Abdullah Carr & Kane, received the concurrence of Jason G. Gong in the filing of this document. 6 s/ Catherine Cabalo 7 Catherine Cabalo 8 9 10 ORDER 11 12 Pursuant to stipulation, and for good cause shown, IT IS SO ORDERED. 13 14 15 2/27 Dated: __________, 2018 __________________________________ HONORABLE KANDIS A. WESTMORE United States Magistrate Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 11 CONSENT DECREE & [PROPOSED] ORDER AS TO INJUNCTIVE RELIEF ONLY Case No. 4:17-cv-03480- KAW

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