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BOLITHO v. VALLEY RADIOLOGY MEDICAL ASSOCIATES

October 18, 2005.

BRIAN BOLITHO, Plaintiff,
v.
VALLEY RADIOLOGY MEDICAL ASSOCIATES, INC.; SOUTH DRIVE MEDICAL ASSOCIATES, INC; PIO V. DEFEO; MARIA E. DEFEO; and DOES 1-25, Inclusive, Defendants.



The opinion of the court was delivered by: MAXINE CHESNEY, District Judge

CONSENT DECREE AND ORDER

CONSENT DECREE AND ORDER

  1. Plaintiff BRIAN BOLITHO filed this action on December 1, 2004, 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, VALLEY RADIOLOGY MEDICAL ASSOCIATES, INC.; SOUTH DRIVE MEDICAL ASSOCIATES, INC; PIO V. DEFEO; MARIA E. DEFEO; and DOES 1 through 25, Inclusive. Plaintiff has alleged that Defendants VALLEY RADIOLOGY MEDICAL ASSOCIATES, INC.; SOUTH DRIVE MEDICAL ASSOCIATES, INC; PIO V. DEFEO; MARIA E. DEFEO violated Title III of the ADA and sections 51, 52, 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 medical clinics located at 285 South Drive, #5, Mountain View, California; and 451 Sherman Ave., #110, Palo Alto, California when plaintiff visited the subject facilities on January 13, 2004, and January 22, 2004.

  2. Defendants VALLEY RADIOLOGY MEDICAL ASSOCIATES, INC.; SOUTH DRIVE MEDICAL ASSOCIATES, INC; PIO V. DEFEO; MARIA E. DEFEO ("Defendants") deny the allegations in the Complaint and by entering into this Consent Decree and Order do not admit liability to any of the allegations in Plaintiff's Complaint filed in this action. The parties hereby enter into this Consent Decree and Order 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; and California Civil Code §§ 51; 52; 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 1, 2004. 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 Decree and 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.

  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, unless other standards are specifically agreed to in this Consent and Order:

  a) Remedial Measures: The injunctive relief agreed upon by the Parties is attached as Attachment A to this Consent Decree, which is incorporated herein by reference as if fully set forth in this document. Defendants agree to undertake all remedial work set forth in Attachment A. As to those items with one or more indicated alternative solutions, defendants may comply by carrying out the alternative of their choice.

  DAMAGES, ATTORNEY FEES, LITIGATION EXPENSES, AND COSTS:

  7. The parties have not reached an agreement regarding plaintiff's claims for damages, attorney fees, litigation expenses and costs. Subject now to attachment are the landlord defendants. Damages/Fees determined there. These issues shall be the subject of further negotiation, litigation, or motions to the Court.

  ENTIRE CONSENT ORDER:

  8. This Consent Order and Attachment A to this Consent Decree, which is incorporated herein by reference as if fully set forth in this document, 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 ...


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