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MANNICK v. KAISER FOUNDATION HEALTH PLAN

September 20, 2005.

JOHN MANNICK Plaintiff,
v.
KAISER FOUNDATION HEALTH PLAN, INC.; KAISER FOUNDATION HOSPITALS; and DOES 1-50, Inclusive, Defendants.



The opinion of the court was delivered by: PHYLLIS HAMILTON, District Judge

CONSENT DECREE AND ORDER

CONSENT DECREE AND ORDER

  1. Plaintiff JOHN MANNICK filed this action seeking to enforce provisions of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12101 et seq., and California civil rights laws against Defendants, KAISER FOUNDATION HEALTH PLAN, INC. and KAISER FOUNDATION HOSPITALS ("Defendants"). Plaintiff has alleged that Defendants violated Title III of the ADA and sections 54.1 and 55 of the California Civil Code, and sections 19955 et seq., of the California Health and Safety Code by failing to provide full and equal access to their facilities at the Kaiser Hospital in Oakland when plaintiff was hospitalized at the subject facilities, from January 2, 2003, to January 8, 2003.

  2. Defendants KAISER FOUNDATION HEALTH PLAN, INC.; KAISER FOUNDATION HOSPITALS; deny these allegations and by entering into this Consent Decree and Order do not admit liability to the allegations in Plaintiff's Complaint filed in this action. The parties have reached an agreement of the claims asserted by Plaintiff for the purpose of resolving this lawsuit without the need for protracted litigation, and without the admission of any liability.

  JURISDICTION:

  3. The parties to this consent decree agree that the Court has jurisdiction of this matter pursuant to 28 USC § 1331 for violations of the Americans with Disabilities Act of 1990, 42 USC 12101 et seq. and pursuant to pendant jurisdiction for violations of California Health & Safety Code § 19955 et seq., including § 19959; Title 24 California Code of Regulations (hereinafter, "Title 24-2"); and California Civil Code §§ 54; 54.1; § 54.3; and 55.

  4. In order to avoid the costs, expense, and uncertainty of protracted litigation, the parties to this consent decree agree to entry of this Order to resolve all claims regarding injunctive relief raised in the Complaint filed with this Court on December 31, 2003. Accordingly, they agree to the entry of this Order without trial or further adjudication of any issues of fact or law concerning plaintiff's claims for injunctive relief.

  WHEREFORE, the parties to this consent decree hereby agree and stipulate to the Court's entry of this Consent Order, which provides as follows:
SETTLEMENT OF INJUNCTIVE RELIEF:
  5. This Order shall be a full, complete, and final disposition and settlement of Plaintiff's claims against Defendants for injunctive relief that have arisen out of the subject Complaint. The parties agree that there has been no admission or finding of liability or violation of the ADA and/or California civil rights laws, and this Consent Decree and Order should not be construed as such. Moreover, this Consent Decree cannot be used as evidence by Plaintiff to prove the damages portion of his case.

  6. The parties agree and stipulate 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 Accessibility Guidelines, ADAAG, and related state or federal regulations for hospital facilities, unless other standards are specifically agreed to in this Consent and Order or otherwise required by the California Office of Statewide Health Planning and Development ("OSHPD"). In the event of a conflict between the requirements of this Consent Decree and the requirements of OSHPD for the work to be performed by Defendants, Defendants shall be given 30 days to petition the Court for ruling and order to either modify this Consent Decree or otherwise resolve any such future conflict. Such an order may also extend the time for Defendant's performance herein and may include an award of plaintiff's attorney fees and costs.

  a) Remedial Measures: The injunctive relief agreed upon by the Parties is attached as Attachment A to this Consent Decree, and is incorporated herein by reference as if fully set forth in this document. Defendants agree to undertake the injunctive relief on the terms as set forth in Attachment A.

  DAMAGES, ATTORNEY FEES, LITIGATION EXPENSES, AND COSTS:

  7. The parties have not reached an agreement regarding Plaintiff's claims for statutory, actual, treble and personal injury damages in this matter and for Plaintiff's claims for attorney fees, litigation expenses and costs. These issues shall be the subject of further negotiation, litigation, or motion to the Court. ENTIRE CONSENT ORDER:

  8. This Consent Order, and any appendices attached, constitutes the entire agreement between the parties on the matters of injunctive relief, and no other statement, promise, or agreement, either written or oral, made by any of the parties or agents of any of the parties, that is not contained in this written Consent Order, shall be enforceable regarding the matters of injunctive relief described herein. This consent decree applies to Plaintiff's claims for injunctive relief only and does not resolve Plaintiff's claims for monetary damages, attorney's fees, litigation expenses and costs, which shall be the subject of further negotiation and/or litigation.

  CONSENT ORDER BINDING ON PARTIES AND SUCCESSORS IN INTEREST:

  9. This Consent Order shall be binding on Plaintiff JOHN MANNICK, Defendants, KAISER FOUNDATION HEALTH PLAN, INC.; KAISER FOUNDATION HOSPITALS; and any successors in interest. The parties have a duty to so notify all such successors in interest of the existence and terms of this Consent Order during the period of the Court's jurisdiction of this consent decree.

  MUTUAL RELEASE AND WAIVER OF CIVIL CODE SECTION 1542 AS TO INJUNCTIVE RELIEF ONLY:

  10. Except for all obligations required in this Consent Decree, each of the parties to this Consent Decree, on behalf of each, their respective agents, representatives, predecessors, successors, heirs, partners and assigns, releases and forever discharges each other Party and all officers, directors, shareholders, subsidiaries, joint venturers, stockholders, partners, parent companies, employees, agents, attorneys, insurance carriers, heirs, predecessors, and representatives of each other Party, from all claims, ...


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