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Riker v. Distillery

July 28, 2009

JEAN RIKER, PLAINTIFF,
v.
DISTILLERY; RONALD ALVERNAZ; JAMES DUNPHY, JR.; [JAMES DUNPHY, SR.], AND DOES 1 THROUGH 50, INCLUSIVE, DEFENDANTS.



Civil Rights

CONSENT DECREE JUDGMENT AND ORDER

1. Plaintiff JEAN RIKER is a person with a disability whose condition requires the full time use of a wheelchair for mobility. Defendants DISTILLERY; RONALD ALVERNAZ; JAMES DUNPHY, JR. are the owners, operators and lessors of the Distillery located at 2105-07 L Street, in Sacramento, California.

2. Plaintiff JEAN RIKER filed this action for herself and all other similarly situated members of the public to vindicate their alleged rights under the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12101 et seq., and corresponding California law, including enforcement of Title 24 of the California Code of Regulations, against defendants DISTILLERY; RONALD ALVERNAZ; JAMES DUNPHY, JR., et al. ("Defendants").

3. Plaintiff alleges that defendants violated these statutes by failing to provide full and equal access and related facilities, including, but not limited to, an accessible main entrance, accessible public restrooms, accessible dining and counter facilities, and accessible paths of travel connecting each of the foregoing facilities. Specific identification of the facilities at issue and their alleged deficiencies has been identified by the parties through an exchange of reports by consultants. Defendants deny these allegations and intend to continue their alleged policy of not discriminating against the disabled

4. Plaintiff alleges that the subject building has undergone construction triggering the requirement of full compliance with regulations in the altered areas, and that further defendants could easily afford to makes its facilities and services accessible without significant difficulty or expense. Defendants deny that such construction has occurred and that not all remediations are readily achievable. However, in an effort to resolve the current dispute, the parties have entered a settlement agreement as set forth below.

STIPULATIONS

5. Plaintiff's Qualified Disability. Plaintiff is a qualified person with a physical disability. She requires the full time use of a wheelchair for mobility.

6. Plaintiff's Residence and Status as Aggrieved and Potentially Aggrieved. Plaintiff alleges she has standing, and that she lives less than two and half miles from the restaurant and the general downtown Sacramento area where it is situated, her church is located a few doors from the restaurant, she regularly dines out, and she has patronized the restaurant on several past occasions relative to the complaint. While the defendants do not admit all of the foregoing allegations, they agree that sufficient undisputed facts exist to support plaintiff's qualification as "aggrieved and potentially aggrieved" under the relevant statutes, and to support her standing under Article III of the U.S. Constitution.

7. Ownership, Operation and Lease of the Restaurant. Defendant RONALD ALVERNAZ is the owner-operator-lessee of the restaurant and building comprising the Distillery, which includes the scope of facilities identified in paragraph 12, below. Defendant JAMES DUNPHY, JR. is the owner-lessor of the building.

8. Qualified Facilities The Restaurant qualifies as a "public accommodation" and "commercial facility" under all applicable statutes and regulations.

9. Construction History. While the parties disagree as to the extent of construction and required compliance, they stipulate that all facilities in issue have undergone sufficient and recent alteration and/or new construction to require at least some level of compliance with the requirements of the 1998 Edition of Title 24, Part 2, of the California Code of Regulations and the Americans With Disabilities Act Access Guidelines published in 1992. The scope of facilities to be corrected under this Consent Decree Judgment and Order are identified in paragraph 12.

10. Non-Admission of Liability. Defendants' agreements to remediate shall not constitute an admission that said remediations were required. However, after considering the substantial expense and uncertainty associated with this litigation, defendants have agreed to the scope of remediations set forth in paragraph 12.

11. No Other Actions. Plaintiff acknowledges that she has no actions at law or administrative proceedings currently pending against Defendants other than the action described in this Consent Decree.

12. Scope of Facilities in Issue. The following are the facilities affected by this Consent Decree Judgment and Order:

(a) The main entrance on the south side of the restaurant;

(b) The dining table and bar counter facilities;

(c) The path of travel to the public restrooms and emergency exits;

(d) The public restrooms;

(e) The path of travel from the interior to the outdoor terrace facilities; and

(f) Access to ATM and vending machines.

All of the foregoing facilities are facilities available for use by patrons of the restaurant.

JURISDICTION

13. The facts requisite to federal jurisdiction and venue are admitted. This Court has jurisdiction pursuant to 28 U.S.C. § 1331 for the alleged violations of the ADA, 42 U.S.C. §§ 12101, et seq. Article III jurisdiction is proper due to the plaintiff's continued exposure and use of the restaurant for dining. Pendant jurisdiction of the state law claims arises from a common nucleus of fact and is proper. Venue and intra-district jurisdiction is proper as the property in issue is located in Sacramento County.

14. This Consent Decree Judgment and Order is contingent upon Court approval and acceptance of its terms, and the normal retention of jurisdiction to interpret and enforce terms.

15. The Consent Decree Judgment and Order is further contingent upon the conservator of Defendant James Dunphy Jr. obtaining authorization from the Probate Court to enter this settlement agreement. Should the Probate Court not provide this authority, this Consent Decree Judgment and Order shall not be effectuated. The Petition to the Probate Court for authorization shall be filed with 21 days of execution of this Order by counsel, approving the document "as to form". The parties agree to enter a stipulation and proposed order to stay all litigation while the probate petition is under submission, and to seek an extension of all pending dates and dates, including, but not limited to, those related to discovery and discovery motions, expert disclosures, dispositive motions, pretrial deadlines and filings, etc., as well as the date set for trial.

16. The parties agree to entry of this Consent Decree Judgment and Order in order to resolve the below listed allegations raised in the Complaint filed with this Court on February 26, 2008. Accordingly, they agree to the entry of this Consent Decree Judgment and Order without trial or further adjudication of any issues of fact or law concerning the issues specified herein.

WHEREFORE, the parties hereby agree and stipulate to the Court's entry of this Consent Decree Judgment and Order, which provides as follows:

PARTIAL RESOLUTION OF ISSUES:

17. This Consent Decree Judgment and Order shall be a full, complete, and final disposition and settlement of the below claims that have been or could have been alleged in the Complaint, including for injunctive relief, declaratory relief, statutory and compensatory damages, including any and all claims for personal and bodily injury. This Consent Decree Judgment and Order was negotiated and reached through negotiations between the parties. The Court shall retain jurisdiction of this action to enforce and interpret this Consent Decree Judgment and Order. The parties agree that if they or any of them seek Court enforcement of this Consent Decree Judgment and Order, any such enforcement will be by noticed motion, application or other appropriate request for an order for specific performance and that a contempt citation or decree will not be sought by any party.

18. Mutual Waiver and Release. Except as to the claims provided in paragraph 19, next, the Parties understand and expressly agree that this Agreement extends to any and all claims of every kind and nature whatsoever, known or unknown, suspected or unsuspected, past or present, disclosed or undisclosed, which the Parties may have against each other; thus, all rights under Section 1542 of the California Civil Code are hereby expressly waived by the Parties. Such section reads as follows:

A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.

By initialing below, the Parties hereby waive the provisions of section 1542 solely in connection with the matters which are the subject of the foregoing waivers and releases.

Initials:

JEAN RIKER RONALD ALVERNAZ CONSERVATOR

19. Claims Reserved from Release. The provisions in paragraph 17 and 18, supra, shall not, however, affect plaintiff's outstanding claim for reasonable statutory attorney fees, litigation expenses and costs, including any available enhancement, which are specifically reserved for disposition by motion, as set forth below at paragraphs 31 through 34.

20. Nothing contained in this Consent Decree shall be admissible in evidence in any judicial, administrative, or other legal proceeding other than a proceeding for the breach of this Consent Decree, plaintiffs' motions for attorney's fees, and the pending probate petition described above to approve this settlement.

21. If any proceeding is brought to enforce or interpret any of the provisions of this Consent Decree, except as otherwise provided in paragraphs 31 through 34.

INJUNCTIVE RELIEF

22. As a part of a compromise of global liability, the defendants agree that they have or will perform the following work to provide ...


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