United States District Court, Northern District of California
August 15, 2003
KITTY CONE, AN INDIVIDUAL AND DISABILITY RIGHTS ENFORCEMENT, EDUCATION SERVICES:HELPING YOU HELP OTHERS, A CALIFORNIA PUBLIC BENEFIT CORPORATION, PLAINTIFFS
SONOMA CHEESE FACTORY, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY; SONOMA FOODS, INC., A CALIFORNIA CORPORATION; LAWRENCE P. VIVIANI AND JACQUELYN R. VIVIANI, TRUSTEES, DEFENDANTS
The opinion of the court was delivered by: Elizabeth LaPORTE, District Judge
STIPULATION OF DISMISSAL AND ORDER THEREON
Plaintiffs KITTY CONE and DISABILITY RIGHTS ENFORCEMENT, EDUCATION SERVICES, by and through their counsel, and defendants SONOMA CHEESE FACTORY, LLC, LAWRENCE P. VIVIANI and JACQUELYN R. VIVIANI, by and through their counsel, stipulate to dismissal of this action in its entirety without prejudice pursuant to Fed.R.Civ.P.41(a)(1). Outside of the terms of the Mutual Settlement Agreement and Release ("Agreement") herein, each party is to bear its own costs and attorneys' fees. A true and correct copy of the subject Agreement is attached hereto and incorporated herein as Exhibit "A." [ Page 2]
THEREFORE, IT IS HEREBY STIPULATED by and between parties to this action through their designated counsel that the above-captioned action be and hereby is dismissed without prejudice pursuant to Federal Rules of Civil Procedure section 41(a)(1).
IT IS HEREBY FURTHER STIPULATED that upon full satisfaction of the terms of the Mutual Settlement Agreement and Release the parties shall file an Acknowledgment of Satisfaction with the Court and this action shall then be deemed dismissed with prejudice.
This stipulation may be executed in counterparts, all of which together shall constitute one original document.
IT IS SO ORDERED. [ Page 3]
[EDITORS NOTE: THIS PAGE CONTAINS "CERTIFICATE OF SERVICE"]
SETTLEMENT AGREEMENT AND RELEASE
1. Parties: The parties to this Settlement Agreement and Release ("Agreement") are Kitty Cone ("Cone") and Disability Rights Enforcement, Education Services: Helping You Help Others ("DREES") on the one hand, and Sonoma Cheese Factory, LLC, Lawrence P. Viviani and Jacquelyn R. Viviani, Trustees ("Defendants") on the other hand (collectively referred to herein as "the Parties"). There are no intended beneficiaries of this Agreement other than as specifically stated herein.
2. Recitals: This Agreement is made with reference to the following facts:
2.1. The Viviani Defendants own the improved real property located at 2 Spain Street, Sonoma, California, Defendant Sonoma Cheese Factory, LLC operates a business at 2 Spain Street, Sonoma, California. This property, which is the subject of the disputes between the Parties referenced in paragraphs 2.2 and 2.3 below, is hereinafter referred to as the "Facility"
2.2. Certain disputes and controversies "(the "Disputes") have arisen between the Parties hereto.
2.3. The Disputes include, but are not limited to, the claims, complaints, demands and causes of action set forth by Cone and DREES in a civil action currently pending in the United States District Court for the Northern District of California, entitled Cone and DREES v. Sonoma Cheese Factory, et al., Case No. C 02-4536 EDL (the "Lawsuit").
2.4. In the Lawsuit, Cone and DREES claim, inter alia, that the facility does not comply with the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq., California Civil Code § 54, 54.1 and 54.3, et seq., California Health and Safety Code § 19955, et seq., the Unruh Act, Cal. Civil Code § 51, et seq., and that Defendants violated California Business and Professions Code § 17200, et seq., and other statutes. Defendants have denied, and continue to deny, these claims.
2.5. It is the intention of the Parties to settle and dispose of, fully and completely, the Disputes and any and all claims, potential claims, complaints, demands, and causes of action reflected in the Lawsuit or relating to the Facility, or which may have arisen prior to the effective date of this Agreement from the same operative facts as those alleged in the Lawsuit. Now, therefore, the Parties agree as follows:
3. Compliance: Plaintiffs agree that Defendants have caused to be made improvements to the Facility which render the Facility in complete compliance with all applicable federal and state access requirements. The improvements Defendants have caused to be made to the Facility include, but are not limited to, the following:
a. The provision of a handicapped-accessible women's
b. The provision of a handicapped-accessible men's
c. The provision of an ADAAG-compliant sales counter;
d. The provision of all necessary
handicapped-accessible directional and identifying
e. The provision of an ADAAG-compliant ramp to the
sales area entrance; and
f. The provision of an ADAAG-compliant ramp to the
handicapped accessible public restrooms.
4. Dismissal: Within ten (10) days of receipt of the final payment as set forth in paragraph 5 of this Agreement, Cone and DREES shall dismiss the Lawsuit with prejudice, each Party bearing its own attorneys' fees, expert fees and costs. Each Party hereby irrevocably authorizes and directs its attorneys of record to execute and deliver to the Court a Stipulation for Dismissal, so that the same may be filed with the Court, in accordance with this Agreement.
5. Payment: Upon receipt of this Agreement executed by Cone and DREES, and as a condition to Cone and DREES' duty to dismiss, Defendants shall pay the total sum of $35,000 to Cone, DREES and their counsel in the form of checks made payable to the Frankovich Group in trust for Kitty Cone and Disability Rights Enforcement, Education Services: Helping You Help Others. Defendants will make a total of six payments to Plaintiffs; the first five will be in the amount of $6,000 and the sixth payment will be in the amount of $5,000. Payments will be due commencing July 1, 2003 or within five business days after the execution of this Agreement by the Parties, in the event this Agreement is not executed by July 1, 2003. Five subsequent payments shall be due on August 1, 2003, September 1, 2003, October 1, 2003, November 1, 2003 and December 1, 2003, respectively. Defendants will be in default of their payment obligations under this Agreement in the event payment is not mailed by Defendants by the seventh day of the month in which the payment is due. There shall be no other payment by or to any Party.
6. Releases and Covenants: In consideration of the mutual releases contained herein, and for other good and valuable consideration, the receipt of which is acknowledged by each Party, the Parties promise, agree and release as follows:
6.1. Except as to such rights or claims as may be created by this Agreement, Cone and DREES hereby release, remise, and forever discharge each other Party hereto from any and all claims, potential claims, demands, and cause or causes of action reflected in the Lawsuit, and any other claims, demands or causes of action which may have arisen from the incident of April 4, 2002.
6.2. Except as to such rights or claims as may be created by this Agreement, Cone and DREES agree that they shall refrain from filing any action or complaint against each other Party hereto for any claims, potential claims, demands and/or causes of action relating in any way to the Facility unless the other Parties are first provided written notice of the claims and given one hundred eighty (180) days from the receipt of said notice to address and remedy such claims. In no event shall Cone or DREES be entitled to the
recovery of any attorneys' fees, costs and/or expert witness fees they incur from the other Parties prior to the expiration of the aforementioned one hundred eighty (180) day period.
6.3. The Parties waive, in connection with this settlement, the benefit of the provisions of § 1542 of the Civil Code of the State of California, which provides as follows:
"A general release does not extend to claims which the
creditor does not know or suspect to exist in his
favor at the time of executing the release, which if
known by him must have materially affected his
settlement with the debtor."
7. Representations and Warranties: Each of the Parties to this Agreement represents, warrants and agrees as to itself/herself/himself as follows:
7.1. Each Party has received independent legal advice from its/hers/his attorneys, with respect to the advisability of making the settlement provided for herein, with respect to the import of Civil Code § 1542, and with respect to the advisability of executing this Agreement.
7.2. No Party (nor officer, agent, employee, representative, or attorney of or for any Party) has made any statement or representation to any other Party regarding any fact relied upon in entering into this Agreement, and neither Party relies upon any statement, representation or promise of any other Party (nor officer, agent, employee, representative, or attorney of or for any Party), in executing this Agreement, or in making this settlement provided for herein, except as expressly stated in this Agreement.
7.3. Each Party to this Agreement has made such investigation of the facts pertaining to this settlement and this Agreement and all of the matters pertaining thereto as it/she/he deems necessary.
7.4. Each Party or responsible manager or officer thereof, has read this Agreement and understands the contents hereof. Each of the managers or officers executing this Agreement on behalf of their respective corporations is empowered to do so and thereby binds her/his respective corporation.
7.5. In entering into this Agreement and the settlement provided for herein, each Party assumes the risk of any misrepresentation, concealment, or mistake. If any Party should subsequently discover that any fact relied upon by it in entering into this Agreement was untrue, or that any fact was concealed from it, or that its understanding of the facts or the law was incorrect, such Party shall not be entitled to any relief in connection therewith, including, without limitation on the generality of the foregoing, any alleged right or claim to set aside or rescind this Agreement. This Agreement is intended to be, and is, final and binding between the Parties, regardless of any claims of misrepresentation, promise made that the intention performing, concealment of fact, mistake of fact or law, or of any other circumstances whatsoever.
7.6. Each Party has not heretofore assigned, transferred, or granted or purported to assign, transfer, or grant, any of the claims, potential claims, demands, and cause or causes of action disposed of by this Agreement
7.7. Each term of this Agreement is contractual and not merely recital.
7.8. Each Party is aware that it/she/he may hereafter discover claims or facts in addition to or different from those it/she/he now knows or believes to be true with respect to the matters related herein. Nevertheless, it is the intention of the Parties to fully, finally, and forever settle and release the matters related hereto. In furtherance of such intention, the releases given herein shall be and remain in effect as full and complete mutual releases of all such matters, notwithstanding the discovery or existence of any additional or different claims or facts relative thereto.
7.9. The Parties will execute all such further and additional documents as shall be reasonable, convenient, necessary or desirable to carry out the provisions of this Agreement.
8. Settlement: This Agreement affects the settlement of claims which are denied and contested and nothing contained herein shall be construed as an admission by any Party hereto of any liability of any kind to any other Party. Each of the Parties denies any liability in connection with any claims and intends merely to avoid litigation and buy its peace.
9. Severance: If any provision of this Agreement is held to be illegal or invalid by a court of competent jurisdiction, such provision shall be deemed to be severed and deleted; and neither such provision, nor its severance and/or deletion, shall effect the validity of the remaining provisions.
10. Confidentiality: This Agreement and the terms thereof shall be maintained in strict confidence by all Parties. This Agreement and the terms thereof shall be maintained in strict confidence by all parties. Each party hereby agrees not to disclose the settlement terms in any newspaper, magazine or television program including, but not limited to, publications in the business of providing attorneys with settlement, arbitration, mediation and verdict statistics (such as Jury Verdicts Weekly, Trial Digest, Veradictum Juris, Tri-Valley Services, the Daily Journal, etc.) or to disclose the amount by means of any type of press conference. The terms of this Agreement shall only be disclosed pursuant to the lawful process or judicial order and/or to spouses and legal and tax advisers.
11.1. It is expressly understood and agreed by and between the Parties that the U.S. District Court of the Northern District of California will retain jurisdiction over the settlement of this action if necessary to carry out the terms of this Mutual Settlement Agreement and Release and the accompanying Stipulated Judgment.
11.2. This Agreement is the entire Agreement between the Parties with respect to the subject matter hereof and supercedes all prior and contemporaneous oral or written agreements and discussions. This Agreement may be amended only by an agreement in writing, executed by all Parties hereto.
11.3. This Agreement is binding upon and shall inure to the benefit of the Parties hereto, their respective agents, attorneys, employees, representatives, officers, directors, divisions, subsidiaries, affiliates, tenants, assigns, heirs, spouses, sons, daughters, predecessors, dealers, franchisees, successors-in-interest and shareholders.
11.4. Each Party has cooperated in the drafting and preparation of this Agreement. Hence, in any construction being made of this Agreement, the same shall not be constructed against any Party.
11.5. This Agreement may be executed in counterparts and/or by facsimile, and when each Party has signed and delivered at least one such counterpart, each counterpart shall be deemed an original and, when taken together with other signed counterparts, shall constitute one Agreement, which shall be binding upon and effective as to all Parties.
11.6. This Agreement is made and entered into and is effective as of the date last signed below by the Parties hereto.
Dated: July 19, 2003 Jacquelyn R.Viviani, Trustee
SONOMA CHEESE FACTORY, LLC
Dated: July 19, 2003 By:
Lawrence P. Viviani
Approved as to form: FRANKOVICH GROUP
By: Jennifer L. Steneberg
Attorneys for Plaintiff
O'BRIEN WATTERS & DAVIS, LLP
By: Kathleen C. Miller
Attorneys for Defendants
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