Leonard v. City of Capitola et al

Filing 30

STIPULATED JUDGMENT AND ORDER (approving 27 ). Signed by Judge Beth Labson Freeman on 8/21/2014. (blflc1, COURT STAFF) (Filed on 8/21/2014)

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PAUL L. REIN, Esq. (SBN 43053)
CELIA MCGUINNESS, Esq. (SBN 159420)
CATHERINE CABALO (SBN 248198)
LAW OFFICES OF PAUL L. REIN
200 Lakeside Drive, Suite A
Oakland, CA 94612
Telephone:
510/832-5001
Facsimile:
510/832-4787
[e-mail]
SHAANA RAHMAN, Esq. (SBN 195519)
RAHMAN LAW PC
369 Pine Street, Suite 600
San Francisco, CA 94104
Telephone:
415/956-9245
Facsimile:
415/956-9246
[e-mail]
Attorneys for Plaintiff
RAE ELLEN LEONARD

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* Defendants City of Capitola's and Capitola Successor Agency's counsel listed after the caption.
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

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RAE ELLEN LEONARD

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CASE NO.

Plaintiff,

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v.

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CITY OF CAPITOLA; CAPITOLA
SUCCESSOR AGENCY; COUNTY OF
SANTA CRUZ; and DOES 1-100, Inclusive,

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STIPULATED JUDGMENT AND
[PROPOSED] ORDER

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Defendants.
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C13-3714 BLF

VINCENT P. HURLEY, Esq. (SBN 111215)
AMANDA M. COHEN, Esq. (SBN 243946)
LAW OFFICES OF VINCENT P. HURLEY
A Professional Corporation
38 Seascape Village
Aptos, CA 95003
Telephone:
831/661-4800
Facsimile:
831/661-4804
[e-mail]
Attorneys for Defendants
CITY OF CAPITOLA and
CAPITOLA SUCCESSOR AGENCY
STIPULATED JUDGMENT & [PROPOSED] ORDER
CASE NO. C13-3714 BLF

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1.

Plaintiff RAE ELLEN LEONARD ("Plaintiff") filed a Complaint in this action on

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August 9, 2013, seeking damages for her alleged discriminatory experiences, denial of access, and

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denial of her civil rights, and seeking to enforce provisions of the Americans with Disabilities Act

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of 1990 ("ADA"), 42 U.S.C. §§ 12101 et seq.; section 504 of the Rehabilitation Act of 1973, 29

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U.S.C. § 794; California Government Code §§ 815.6, 830 et seq., 840 et seq., and 11135; and

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California civil rights laws against defendants CITY OF CAPITOLA ("City"); CAPITOLA

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SUCCESSOR AGENCY ("Successor Agency"); COUNTY OF SANTA CRUZ, and DOES 1-100,

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Inclusive (defendants City and Successor Agency are sometimes referred to collectively as the

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"Defendants"), relating to disabled access and accommodations for Plaintiff and other disabled

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persons on the Rispin Property in Capitola, California as of Plaintiff's visits as alleged in the

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Complaint, and continuing. Plaintiff has also alleged that the Defendants maintained a dangerous

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condition on the Rispin Property, which caused Plaintiff injury.

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2.

As of February 1, 2012, the Redevelopment Agency of the City of Capitola (the

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"Former Agency") dissolved pursuant to California Health & Safety Code Section 34172 and the

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Successor Agency was formed to serve as the successor agency to the Former Agency pursuant to

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California Health & Safety Code Section 34173(d)(3). The Successor Agency may defend and

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settle this action in its own name in accordance with Section 368.5 of the Code of Civil Procedure.

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3.

The City acquired the Rispin Property in 1985 and transferred it to the Former

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Agency in 2003. The ownership of the Rispin Property transferred back to the City in March of

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2011, then to the Successor Agency in April of 2012 and then back to the City in fall of 2012. At

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the time of the alleged injury and alleged violations of Americans with Disability Act requirements,

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the Successor Agency owned the Rispin Property.

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4.

Concurrent with entering into a Court-Enforceable Settlement Agreement and

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General Release (the “Settlement Agreement”) and Attachment B to the Settlement Agreement,

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filed separately with the Court and which are incorporated herein by reference as if fully set forth in

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this document, Plaintiff, the City and the Successor Agency (together sometimes the "Parties")

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hereby enter into this Stipulated Judgment and Order for the purpose of resolving this lawsuit

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without the need for protracted litigation.
STIPULATED JUDGMENT & [PROPOSED] ORDER
CASE NO. C13-3714 BLF

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JURISDICTION:
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The Parties to this Stipulated Judgment and Order agree that the Court has

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jurisdiction of this matter pursuant to 28 U.S.C. § 1331 for alleged violations of the Americans with

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Disabilities Act of 1990, 42 U.S.C. §§ 12101 et seq. and pursuant to supplemental jurisdiction for

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alleged violations of California law.

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6.

In order to avoid the costs, expense, and uncertainty of protracted litigation,

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the Parties to this Stipulated Judgment and Order agree to entry of this Stipulated Judgment and

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Order to resolve all claims raised in the Complaint filed with this Court. Accordingly, the Parties

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agree to the entry of this Order without trial or further adjudication of any issues of fact or law

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concerning Plaintiff's claims.

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WHEREFORE, the Parties to this Stipulated Judgment hereby agree and stipulate to the

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Court's entry of this Stipulated Judgment and Order, which provide as follows:

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SETTLEMENT TERMS:

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7.

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

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Plaintiff’s claims against the City and the Successor Agency that have arisen out of the subject

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Complaint.

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8.

As compensation for all claims of Plaintiff, which includes damages, attorneys fees,

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litigation expenses and costs, Defendants will pay to Plaintiff through the trust account of The Law

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Offices of Paul L. Rein, the total sum of two hundred ninety five thousand dollars ($295,000), to be

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allocated by Plaintiff and her attorneys without further involvement of Defendants. This total sum

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represents $193,598 in personal injury and civil rights damages to Plaintiff and $101,402 in

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attorneys’ fees, litigation expenses, and costs.

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9.

The Parties agree that the corrective work will be performed in compliance with the

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standards and specifications for disabled access as set forth in the California Code of Regulations,

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Title 24-2, and Americans with Disabilities Act Standards for Accessible Design, unless other

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standards are specifically agreed upon.

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a)

Remedial Measures: The corrective work agreed upon by the Parties is set

forth in Attachment B to the Settlement Agreement, the engineering design of civil engineer Joe
STIPULATED JUDGMENT & [PROPOSED] ORDER
CASE NO. C13-3714 BLF

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Akers. The City also agrees to maintain the accessible conditions created by the work detailed in

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Attachment B to the Settlement Agreement. The restrooms shall remain closed unless and until

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they become compliant with the standards and specifications for disabled access as set forth in the

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California Code of Regulations, Title 24-2, and Americans with Disabilities Act Standards for

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Accessible Design.
b)

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Timing of Injunctive Relief: The corrective work agreed upon by the

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Parties will be completed on the following schedule: from the bottom of the bridge crossing Soquel

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Creek to the Nob Hill Shopping Center will be completed within one year of the date that the

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Stipulated Judgment is filed and the accompanying Order is issued ("Order Date"); from the top of

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the bridge to Wharf Road/Clares Street will be completed within two years of the Order Date; the

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bridge itself and the connection from the bridge to Riverview Drive will be completed within four

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years of the Order Date.

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ENTIRE STIPULATED JUDGMENT AND ORDER:

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10.

This Stipulated Judgment and Order, and Settlement Agreement and

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Attachment B to the Settlement Agreement, which are incorporated herein by reference as if fully

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set forth in this document, constitute the entire agreement between the signing Parties and no other

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statement, promise, or agreement, either written or oral, made by any of the parties or agents of any

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of the Parties, that is not contained in this written Stipulated Judgment and Order, Settlement

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Agreement, or Attachment B to the Settlement Agreement, shall be enforceable regarding the

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matters described herein.

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SIGNATORIES BIND PARTIES:

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11.

Signatories on the behalf of the Parties represent that they are authorized to

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bind the Parties to this Stipulated Judgment and Order. This Stipulated Judgment and Order may be

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

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signature.

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STIPULATED JUDGMENT & [PROPOSED] ORDER
CASE NO. C13-3714 BLF

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Dated: August 20, 2014

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LAW OFFICES OF PAUL L. REIN
RAHMAN LAW PC
By:

/s/ Catherine Cabalo
Catherine Cabalo, Esq.
Attorneys for Plaintiff
RAE ELLEN LEONARD

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Dated: August 20, 2014

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LAW OFFICES OF VINCENT P. HURLEY, PC
By:

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/s/ Vincent P. Hurley
Vincent P. Hurley, Esq.
Attorneys for Defendant
CITY OF CAPITOLA and CAPITOLA
SUCCESSOR AGENCY

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ORDER
Pursuant to stipulation, and for good cause shown, the Court shall retain jurisdiction of this

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action to enforce the provisions of the parties’ Court-Enforceable Settlement Agreement and

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General Release (including Attachment B) through completion of injunctive relief and payment of

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Plaintiff’s negotiated damages, attorney fees, litigation expenses, and costs.

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IT IS SO ORDERED.

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Dated: __________, 2014

__________________________________
Honorable Beth Labson Freeman
United States District Judge

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STIPULATED JUDGMENT & [PROPOSED] ORDER
CASE NO. C13-3714 BLF

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FILER'S ATTESTATION

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Pursuant to General Order 45, section X(B), I hereby attest that on August 20, 2014, I,

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Catherine Cabalo, attorney with The Law Office of Paul L. Rein, received the concurrence of

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Vincent P. Hurley in the filing of this document.

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/s/ Catherine Cabalo
Catherine Cabalo

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STIPULATED JUDGMENT & [PROPOSED] ORDER
CASE NO. C13-3714 BLF

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COURT-ENFORCEABLE SETTLEMENT AGREEMENT
AND GENERAL RELEASE
Rae Ellen Leonard v. City of Capitola and Capitola Successor Agency
U.S. Dist. Ct., N.D. Cal., Case No. 13-3714 BLF

This mutual settlement agreement and release (Agreement) is entered into by Plaintiff,
Rae Ellen Leonard (hereafter referred to as “Leonard” or “Plaintiff”), and Defendants, City of
Capitola (“City”) and Capitola Successor Agency (“Successor Agency”), which includes without
limitation their respective legislative bodies, the City Council, Board of Directors, and their
members, and all departments, commissions, agencies, boards, predecessors, successors,
subsidiaries, related entities, past, present, and future employees, elected officials, officers,
directors, managers, agents, representatives, affiliates, assigns, and insurers (hereafter
collectively referred to as “Capitola” or “Defendants”), regarding Leonard’s claims against
Capitola in United States District Court Case Number C13-3714 BLF (the “Lawsuit”).
As of February 1, 2012, the Redevelopment Agency of the City of Capitola (the "Former
Agency") dissolved pursuant to California Health & Safety Code Section 34172 and the
Successor Agency was formed to serve as the successor agency to the Former Agency pursuant
to California Health & Safety Code Section 34173(d)(3). The Successor Agency may defend
and settle the litigation in its own name in accordance with Section 368.5 of the Code of Civil
Procedure.
The Lawsuit alleges that Plaintiff was harmed when she fell on a path in Capitola, on the
Rispin Property, owned at the time of alleged injury by Successor Agency. Leonard and her
attorneys filed suit for both personal injury and for federal and state claims related to alleged
discrimination based on disability and access to public facilities.
The City acquired the Rispin Property in 1985 and transferred it to the Former Agency in
2003. The ownership of the Rispin Property transferred back to the City in March of 2011, then
to the Successor Agency in April of 2012 and then back to the City in fall of 2012. At the time
of the alleged injury and alleged violations of the Americans with Disability Act requirements,
the Successor Agency owned the Rispin Property.
The parties now desire to resolve, fully and forever, any and all actual and potential
grievances, disputes, controversies, claims, actions and lawsuits which exist among them, to
COURT-ENFORCEABLE SETTLEMENT AGREEMENT & RELEASE – Leonard v. City of Capitola et al.
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settle all claims which were or could have been asserted by one against the other; and to dismiss
the Lawsuit with prejudice, in order to avoid the uncertainties and expense of further litigation.
THEREFORE, the parties agree as follows.
TERMS
1.
STIPULATED JUDGMENT AND ORDER. Plaintiff and Capitola will submit
to the Court the Stipulated Judgment and Proposed Order attached hereto as Attachment A.
2.
PAYMENT. As compensation for all claims of Plaintiff, which includes
damages, attorneys fees, litigation expenses and costs, Defendants will pay to Plaintiff through
the trust account of The Law Offices of Paul L. Rein, the total sum of two hundred ninety-five
thousand dollars ($295,000), to be allocated by Plaintiff and her attorneys without further
involvment of Defendants. This total sum represents $193,598 in personal injury and civil rights
damages to Plaintiff and $101,402 in attorneys fees, litigation expenses, and costs. Payments
described in this paragraph shall be made by check payable to “PAUL L. REIN IN TRUST FOR
RAE ELLEN LEONARD.” Payments shall be delivered to The Law Office of Paul L. Rein, 200
Lakeside Drive, Suite A, Oakland, CA 94612. A W-9 from Plaintiff’s attorneys’ office shall be
provided to Defendants for the payments described in this paragraph. The payment will be made
as follows:
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$147,500.00 from the Monterey Bay Area Self Insurance Authority;

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$88,500.00 from the Successor Agency, which amount will be loaned by the City
to the Successor Agency to allow for prompt payment to the Plaintiff and settlement of this
litigation at this time rather than waiting for the Successor Agency to process a request for
payment under the process set forth in the redevelopment dissolution statute; and
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$59,000.00 from the City.

3.
INJUNCTIVE RELIEF. The Parties agree that the corrective work will be
performed in compliance with the standards and specifications for disabled access as set forth in
the California Code of Regulations, Title 24-2, and Americans with Disabilities Act Standards
for Accessible Design, unless other standards are specifically agreed upon. The City shall pay for
fifty percent of the costs of the corrective work and the Successor Agency shall pay for fifty
percent of the costs of the corrective work.
(a) Remedial Measures: The corrective work agreed upon by the Parties is set forth in

COURT-ENFORCEABLE SETTLEMENT AGREEMENT & RELEASE – Leonard v. City of Capitola et al.
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Attachment B, the engineering design of civil engineer Joe Akers. The City also agrees to
maintain the accessible conditions created by the work detailed in Attachment B. The restrooms
shall remain closed unless and until they become compliant with the standards and specifications
for disabled access as set forth in the California Code of Regulations, Title 24-2, and Americans
with Disabilities Act Standards for Accessible Design.
(b) Timing of Injunctive Relief: The corrective work agreed upon by the parties will be
completed on the following schedule: from the bottom of the bridge crossing Soquel Creek to
the Nob Hill Shopping Center will be completed within one year of the date that the Stipulated
Judgment is filed and Order thereon is entered; from the top of the bridge to Wharf Road/Clares
Street will be completed within two years of the date that the Stipulated Judgment is filed and
Order thereon is entered; the bridge itself and the connection from the bridge to Riverview Drive
will be completed within four years of the date that the Stipulated Judgment is filed and Order
thereon is entered.
(c) Unforeseen Difficulties: In the event that unforeseen difficulties prevent Defendants
from completing any of the agreed upon corrective work as scheduled, Defendants or their
counsel will notify Plaintiff’s counsel in writing within 15 days of discovering the delay.
Defendants or their counsel will notify Plaintiff’s counsel when the corrective work is
completed, and in any case will provide Plaintiff’s counsel with a status report no later than 120
days from the entry of the Stipulated Judgment. If Defendants fail to provide injunctive relief
on the agreed upon timetable and/or fail to provide timely written status notification, and
Plaintiff files a motion with the Court to obtain compliance with these terms, Plaintiff reserves
the right to seek additional attorneys’ fees for any compliance work necessitated by Defendants’
failure to keep this agreement. If the Parties disagree, such fees shall be set by the Court.
4.
RELEASE. Except as set forth in Section 3 above, Plaintiff hereby releases and
forever discharges Defendants, and their respective officers, elected officials, directors, all
employees, subsidiaries, agents, attorneys, representatives, successors, heirs and assigns of and
from any and all claims, debt, liabilities, demands, obligations, costs, expenses, liens, damages,
actions and causes of action, of every nature, character and description, known and unknown,
which the parties now own or hold, or have at anytime owned or held, or may at any time own or
hold, by reason of any matter, cause or thing whatsoever incurred, done, omitted or suffered to
be done prior to the date of this Agreement, which Plaintiff may have on account of, or in
anyway related to the Lawsuit.
5.
WAIVER OF CIVIL CODE § 1542. Plaintiff is represented by attorneys at the
time of executing this release. Plaintiff and her attorneys have spent considerable time

COURT-ENFORCEABLE SETTLEMENT AGREEMENT & RELEASE – Leonard v. City of Capitola et al.
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examining the occurrences and transactions which are the subject of this release, and based upon
that examination Plaintiff expressly waives and relinquishes all her respective rights created
under California Civil Code § 1542, which states:
"CERTAIN CLAIMS NOT AFFECTED BY GENERAL RELEASE -- A general
release does not extend to claims which the creditor does not know or suspect to
exist in [her] favor at the time of executing the release, which, if known by [her],
must have materially affected [her] settlement with the debtor."
6.
DISPUTED CLAIMS. This Agreement is a compromise and settlement of
disputed claims, and nothing in this Agreement shall be construed at any time as an admission of
liability on the part of Defendants.
7.
RELIANCE UPON OWN JUDGMENT. Plaintiff relies wholly upon her own
judgment, beliefs and knowledge of the nature, extent and duration of her damages, if any, and
acknowledges that she has not been influenced to any extent whatever in making this agreement
by any representations or statements regarding said damages or any other matters, made by either
Defendants in this case, or by any person or persons representing them.
8.

MEDICARE LIENS.

A.

General Statement for Protection of Medicare’s Interest

This settlement is based upon a good faith determination of the Plaintiff to resolve a
disputed claim. Plaintiff and the Defendants have attempted to resolve this matter in compliance
with both state and federal law. Plaintiff and Defendants have made every effort to adequately
protect Medicare’s interest and incorporate such into the settlement terms, and have not
attempted to shift responsibility of medical treatment to Medicare pursuant to 42 U.S.C. §
1395y(b).
B.

Responsibility for Satisfaction of All Liens-General Statement

Plaintiff represents and warrants that all bills, costs, or liens resulting from or arising out
of Plaintiff’s alleged injuries and all of the facts alleged in Plaintiff’s complaint are Plaintiff’s
responsibility to pay. Plaintiff agrees to assume responsibility for satisfaction of any and all
rights to payment, claims or liens, of any kind, that arise from or are related to payments made or
services provided to Plaintiff, or on such Plaintiff’s behalf, and expenses, costs, or fees incurred
in connection with the claims asserted by Plaintiff related to Plaintiff’s alleged injuries and all of
the facts alleged in Plaintiff’s complaint, including without limitation, all subrogation claims,
COURT-ENFORCEABLE SETTLEMENT AGREEMENT & RELEASE – Leonard v. City of Capitola et al.
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liens, or other rights to payment, relating to medical treatment or lost wages that have been or
may be asserted by any health care provider, insurer, governmental entity, employer, or other
person or entity.
C.

Settlement Funds

Plaintiff warrants and represents that settlement funds will be used to satisfy any
Medicare lien(s) and will be put into a trust to be approved by the court.
D.

Medicare Benefits Reimbursement.

Plaintiff has received Medicare benefits for treatment related to Plaintiff’s claims in this
action.
Plaintiff agrees to provide Defendants with a copy of all letters or other written
correspondence from Plaintiff’s counsel notifying Governmental Entities that Plaintiff’s claims
have settled. Plaintiff and Plaintiff’s counsel further agree to provide attorneys for Defendants:
1. Copies of correspondence from and to CMS/MSPRC relating to Conditional
Payments made by Medicare associated with Plaintiff’s alleged injuries and all of the
facts alleged in Plaintiff’s complaint.
2. Once this settlement is finalized Plaintiff’s counsel will deliver to attorneys for
Defendants a Final Determination letter (FD) issued by CMS/MSPRC regarding
satisfaction of all Conditional Payments within five (5) days of FD being issued.
3. If Plaintiff is unwilling or unable to comply with number (1) above Plaintiff’s
counsel will provide a letter to attorneys for Defendants, authorizing Defendants to
withhold from the settlement monies an amount sufficient to satisfy any potential
Governmental Entities’ liens including Medicare Conditional Payments for past
payments related to Plaintiff’s injuries and/or treatment arising from the facts alleged
in Plaintiff’s complaint, and that the monies so withheld will be used solely for the
purpose of satisfying any Governmental Entities’ liens including Medicare
Conditional Payments until all such liens and Conditional Payments have been
satisfied.
As to future medical payments, Plaintiff and Plaintiff’s counsel agree that it is the
Plaintiff’s sole and continuing responsibility to maintain an accounting of all Medicare-covered
expenses relating to Plaintiff’s claims.

COURT-ENFORCEABLE SETTLEMENT AGREEMENT & RELEASE – Leonard v. City of Capitola et al.
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If the amounts the Plaintiff and Plaintiff’s counsel withhold and set aside for satisfying
any Governmental Entities’ liens including Medicare Conditional Payments and future medical
expenses prove to be insufficient to finally completely satisfy all Conditional Payments and
future medical expenses related to Plaintiff’s claims, Plaintiff agrees to indemnify and hold
Defendants and all of their attorneys harmless from any and all damages, claims and rights to
payment.
9.
ATTORNEYS FEES. Except as set forth in Sections 2 and 3(c), Plaintiff and
Defendants shall bear their own costs and attorneys fees. If it becomes necessary to engage in
legal proceedings to enforce or interpret any of the provisions of this agreement, the prevailing
party will be entitled to recover her or its reasonable attorney's fees incurred in connection with
such proceedings.
10.
WARRANTIES. Plaintiff warrants that the settlement evidenced by this
Agreement and the execution of this Agreement has been approved and authorized by Plaintiff.
The representatives signing for Defendants warrant that the agreement has been approved by the
respective Boards of Defendants.
11.
SEVERABILITY. Should any provision of this Agreement be held invalid or
illegal, such illegality will not invalidate the remainder of this Agreement. Instead, the
Agreement shall be construed as if it did not contain the illegal part, and the rights and
obligations of the parties shall be construed and enforced accordingly.
12.
INTERPRETATION. This Agreement shall be construed and enforced pursuant
to the laws of the State of California.
13.
REPRESENTATION. Plaintiff and Defendants acknowledge that they have been
represented by independent legal counsel of their own choice, that this Agreement was prepared
with the joint input of counsel, and shall not be construed in favor of or against any party to the
Agreement. Plaintiff further acknowledges that this Agreement was executed freely and
voluntarily and with the consent of and on the advice of independent legal counsel. Plaintiff
hereby does authorize and direct her attorney of record to dismiss all Defendants and this lawsuit
with prejudice once all payments described in Paragraph 2 are delivered to Plaintiff’s counsel.
14.
ASSIGNMENT. All parties warrant that no claims or causes of action arising out
of the event or occurrences recited herein have been assigned to any other person or entity,
except to the extent required by law for Medicare.
15.

SUCCESSORS-IN-INTEREST. This Agreement shall be binding on Plaintiff, the

COURT-ENFORCEABLE SETTLEMENT AGREEMENT & RELEASE – Leonard v. City of Capitola et al.
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ORDER
Pursuant to the above Court-Enforceable Settlement Agreement and Release, and for
good cause shown, the Court shall retain jurisdiction of this action to enforce the provisions of
this agreement through completion of injunctive relief and payment of Plaintiff’s negotiated
damages, attorney fees, litigation expenses, and costs.

Dated: __________, 2014

__________________________________
Honorable BETH LABSON FREEMAN
United States District Judge

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