Shaw v. Karan & N. Inc et al

Filing 37

ORDER on 36 Consent Decree. Signed by Magistrate Judge Howard R. Lloyd on June 11, 2013. (hrllc1, COURT STAFF) (Filed on 6/11/2013)

*E-FILED: June 11, 2013*
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Tanya E. Moore, SBN 206683
K. Randolph Moore, SBN 106933
MOORE LAW FIRM, P.C.
332 North Second Street
San Jose, California 95112
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Attorneys for Plaintiff
Cecil Shaw

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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) No. 5:12-CV-04687-HRL
)
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Plaintiff,
) CONSENT DECREE; [PROPOSED]
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vs.
) ORDER
KARAN & N, INC. dba SYLVAN LIQUORS; )
)
KAPTAN GHIMIRE; LORENA SOTO
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MAYOR DEFLORES aka LORENA SOTO )
DEFLORES dba LOS JALAPENOS;
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CORINNE R. WAGNER, TRUSTEE OF THE )
CORINNE R. WAGNER 2002 REVOCABLE )
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TRUST, SYLVAN PLAZA, LLC,
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Defendants.
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)
CECIL SHAW,

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INTRODUCTION
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Plaintiff, Cecil Shaw (“Plaintiff”), filed a complaint in this action on September

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7, 2012, and a First Amended Complaint on January 25, 2013 (the “Complaint”), to obtain

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statutory damages and to enforce provisions of the Americans with Disabilities Act of 1990, 42

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U.S.C. §§ 12101, et seq. (“ADA”), and California civil rights laws, against Defendants Karan

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& N, Inc. dba Sylvan Liquors, Kaptan Ghimire, Lorena Soto Mayor Deflores, Corinne R.

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Wagner, Trustee of the Corinne R. Wagner 2002 Revocable Trust, and Sylvan Plaza, LLC

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(“Defendants”) (Plaintiff and Defendants collectively referred to as the “Parties”), relating to
CONSENT DECREE; [PROPOSED] ORDER

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the condition of their public accommodations. Plaintiff has alleged that Defendants violated

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Title III of the ADA and sections 51, 52, 54.1 and 55 of the California Civil Code, and sections

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19955 et seq. of the California Health and Safety Code, by failing to provide full and equal

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access to the businesses known as Sylvan Liquors and Los Jalapenos restaurant, both located at

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820 East El Camino Real, Sunnyvale, California (collectively the “Facilities”).

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2.

Defendants deny the allegations in the Complaint and by entering into this

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Consent Decree and Order do not admit liability for any of the allegations in the Complaint.

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The Parties hereby enter into this Consent Decree and Order for the purpose of resolving this

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lawsuit without the need for protracted litigation.

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JURISDICTION
3.

The Parties to this Consent Decree agree that the Court has jurisdiction of this

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matter pursuant to 28 U.S.C. §§ 1331 and 1343 for alleged violations of the ADA, and

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supplemental jurisdiction under 28 U.S.C. § 1367 for alleged violations of California Health &

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Safety Code § 19955 et seq., including § 19959; Title 24 California Code of Regulations; and

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California Civil Code §§ 51, 52, 54, 54.1, 54.3 and 55.

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IT IS HEREBY ORDERED, ADJUDGED AND DECREED AS FOLLOWS:

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REMEDIAL RELIEF
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This Order shall be a full, complete and final disposition and settlement of

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Plaintiff’s claims against Defendants for injunctive relief that have arisen out of the Complaint.

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The Parties agree that there has been no admission or finding of liability or violation of the

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ADA and/or California civil rights laws, and this Consent Decree and Order should not be

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construed as such.

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5.

Defendants agree to make the following modifications to the Facilities in

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compliance with the standards and specifications set forth in the 2010 Americans with

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Disabilities Act Standards for Accessible Design and Title 24 California Code of Regulations:

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CONSENT DECREE; [PROPOSED] ORDER

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Exterior Areas

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a) Properly worded, configured and located tow-away warning signage shall be

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posted;

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b) Two properly configured and identified accessible parking spaces and

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access aisles shall be provided, including a minimum of one van accessible

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parking space and access aisle (parking spaces which are not fully

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accessible shall not be designated in any way as accessible parking spaces);

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c) A properly identified and configured accessible route shall be provided from

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the accessible parking to the Sylvan Liquor store;

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Sylvan Liquor

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d) Provide and maintain proper wheelchair clearances throughout all public

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areas of the store;

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Los Jalapenos

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e) Defendants hereby represent that the business known as Los Jalapenos has

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permanently ceased doing business. Based upon this express representation,

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and as a material inducement to entering into this Consent Decree, Plaintiff

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is not requiring any modifications to the interior of the Los Jalapenos

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facility.

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6.

The modifications set forth in paragraph 5 shall be completed within twelve (12)

months after the date of entry of this Consent Decree and Order.

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MONETARY RELIEF

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7.

Defendants shall pay to Plaintiff the total sum of Six Thousand Dollars

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($6,000.00) representing statutory damages under California law. The Settlement Payment

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shall be made payable to the Moore Law Firm, P.C. Trust Account and tendered to the Moore

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Law Firm, P.C., 332 North Second Street, San Jose, California 95112 within ten (10) days of

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execution and entry of the Consent Decree and Order and shall be in the form of a cashier’s

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check.

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CONSENT DECREE; [PROPOSED] ORDER

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ATTORNEY FEES, LITIGATION EXPENSES AND COSTS
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The Parties have not reached an agreement regarding Plaintiff’s claim for

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attorney fees, litigation expenses and costs. This issue shall be the subject of further motion to

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the Court. For purposes of the attorney fees motion, Defendants agree that Plaintiff is deemed

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the prevailing party in this action within the meaning of the ADA and the California statutes

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relating to the recovery of reasonable fees, costs and expenses.

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MUTUAL RELEASE AND WAIVER
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Each of the Parties to this Consent Decree understands and agrees that there is a

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risk and possibility that, subsequent to the execution of this Consent Decree, any or all of them

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will incur, suffer, or experience some further loss or damage with respect to this action which

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are unknown or anticipated at the time this Consent Decree is signed. Except for all

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obligations required under this Consent Decree, the Parties intend that this Consent Decree

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apply to all such further loss with respect to the action, except for those caused by the Parties

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subsequent to the execution of this Consent Decree. Therefore, except for and subject to all

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obligations required in this Consent Decree, this Consent Decree shall apply to and cover any

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and all claims, demands, actions and causes of action by the Parties to this Consent Decree

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with respect to the action, whether the same are known, unknown or hereafter discovered or

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ascertained, and the provisions of Section 1542 of the California Civil Code are hereby

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expressly waived. Section 1542 provides as follows:

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A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE

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CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER

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FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF

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KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS

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OR HER SETTLEMENT WITH DEBTOR.

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10.

Except for and subject to all obligations required in this Consent Decree, and

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exclusive of the statutory attorney fees, litigation expenses and costs, each of the Parties to this

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Consent Decree, on behalf of each of their respective agents, representatives, predecessors,

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successors, heirs, partners and assigns, releases and forever discharges each other Party and all
CONSENT DECREE; [PROPOSED] ORDER

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officers, directors, shareholders, subsidiaries, joint ventures, stockholders, partners, parent

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companies, employees, agents, attorneys, insurance carriers, heirs, predecessors, and

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representatives of each other Party, from all claims, demands, actions, and causes of action of

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whatever kind or nature, presently known or unknown, arising out of or in any way connected

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with this action.

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CONSENT ORDER BINDING ON PARTIES AND SUCCESSORS IN INTEREST
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This Consent Decree and Order shall be binding on Plaintiff and Defendants

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and any successors in interest. The Parties have a duty to notify all such successors in interest

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of the existence and terms of this Consent Decree and Order during the period of the Court’s

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jurisdiction over this Consent Decree and Order.

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TERM OF CONSENT DECREE AND ORDER
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This Consent Decree and Order shall be in full force and effect for a period of

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twenty-four (24) months after the date of entry of this Consent Decree and Order. The Court

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shall retain jurisdiction over this action to enforce provisions of this Order for twenty-four (24)

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months after the date of entry of this Consent Decree and Order.

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SEVERABILITY
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If any term of this Consent Decree and Order is determined by any court to be

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unenforceable, the other terms of this Consent Decree and Order shall nonetheless remain in

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full force and effect.

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SIGNATORIES BIND PARTIES
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Signatories on behalf of the Parties represent that they are authorized to bind the

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Parties to this Consent Decree and Order. This Consent Decree and Order may be signed in

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counterparts and a facsimile signature shall have the same force and effect as an original

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signature.

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Dated: March 18, 2013

/s/ Cecil Shaw
Plaintiff, Cecil Shaw

Dated: May 6, 2013

/s/ Kaptan Ghimire
Defendant, Karan & N, Inc. dba
Sylvan Liquors

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CONSENT DECREE; [PROPOSED] ORDER

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Dated: May 13, 2013

/s/ Kaptan Ghimire
Defendant, Kaptan Ghimire

Dated: May 7, 2013

/s/ Lorena Soto Mayor Deflores
Defendant, Lorena Soto Mayor Deflores

Dated: March 19, 2013

/s/ Corinne R. Wagner
Defendant, Corinne R. Wagner, Trustee
of the Corinne R. Wagner 2002 Revocable
Trust

Dated: April 1, 2013

/s/ Cyrus Parvini
Defendant, Sylvan Plaza, LLC

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APPROVED AS TO FORM:

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Dated: March 18, 2013

MOORE LAW FIRM, P.C.

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/s/ Tanya E. Moore
Tanya E. Moore, Attorneys for
Plaintiff Cecil Shaw

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Dated: April 16, 2013

/s/ Mark R. Carlquist
Mark R. Carlquist, Attorney for
Defendant, Corinne Wagner,
Trustee of the Corinne R. Wagner
2002 Revocable Trust

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Pursuant to Local Rule 5-1(i)(3), I hereby certify that the concurrence in the filing
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of this document has been obtained by all parties who are signatories hereto, and that I
maintain the original signature (as defined herein) of each signor to this Consent Decree.

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Dated: May 14, 2013

/s/ Tanya E. Moore
Tanya E. Moore

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CONSENT DECREE; [PROPOSED] ORDER

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ORDER

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Pursuant to the consent of the Parties, and good cause shown,
IT IS SO ORDERED.

Dated: June 11, 2013 .

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United States Magistrate Judge
HOWARD R. LLOYD

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CONSENT DECREE; [PROPOSED] ORDER

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