U.S. DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
December 3, 2009
WILLIAM LAWSON, PLAINTIFF,
CITY OF STOCKTON; AND DOES 1 THROUGH 50, INCLUSIVE, DEFENDANT.
The opinion of the court was delivered by: Frank C. Damrell, Jr. United States District Judge
FULL CONSENT DECREE ORDER AND JUDGMENT
1. Plaintiff WILLIAM LAWSON is a person with a disability whose condition requires the fulltime use of a wheelchair for mobility. Defendant CITY OF STOCKTON owns, operates, controls and maintains the following relevant public rights of way within city limits:
a) The pedestrian and vehicular undercrossing on South Wilson Way between E. Hazelton Ave. and E. Anderson Street (Hereafter referred to as "Wilson Way Undercrossing"), and
b) The pedestrian and vehicular undercrossing on East Charter Way between S. Grant Street and South Airport Way (Hereafter referred to as "Charter Way Undercrossing").
(Hereafter, together, the two undercrossings shall be referred to as the "Subject Undercrossings".)
2. Plaintiff WILLIAM LAWSON filed this action for himself and all other similarly situated members of the public, and against defendant City of Stockton ("Defendant"), to vindicate the public rights under Title II of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12101 et seq.; Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §794; and thru corresponding California law, including Government Code Sections 11135 and 4450-4456; Civil Code Sections 51, 54 and 54.1, et seq.; and Title 24 of the California Code of Regulations.
3. Plaintiff alleges that defendant violated these statutes and their corresponding regulations by failing to provide full and equal access to the pedestrian rights of way at the Subject Undercrossings. Specific identification of the facilities and their deficiencies has been identified by plaintiff through an expert's report and schematic drawings.
4. Plaintiff alleges that the Subject Undercrossing, and the adjoining roadways, have undergone construction triggering the requirement of full compliance with state and federal regulations in the altered areas, and that a further programmatic obligation is imposed on these facilities since the City is qualified government entity regulated by Title II of the ADA, and additionally pursuant to California Government Code Section 11135 and federal Section 504 of the Rehabilitation Act of 1973, which imposes similar obligations on government entities that receive federal, state and/or local public funds.
5. Plaintiff's Qualified Disability. Plaintiff is a qualified person with a physical disability. He requires the fulltime use of a wheelchair for mobility.
6. Plaintiff's Residence and Status as Aggrieved and Potentially Aggrieved. Plaintiff alleges he has standing. He lives approximately 5 miles from the closest undercrossing on Charter Way, which is near businesses that he frequents. He also works less than 2 tenths of a mile from the undercrossing on Wilson Way, which is also near businesses he frequents. While the City does not admit all of the specifics of the foregoing allegations, it agrees that it is aware of sufficient undisputed facts to support plaintiff's qualification as "aggrieved and potentially aggrieved" under the relevant statutes, and to support his standing under Article III of the U.S. Constitution.
7. Ownership, Control, Operation and Maintenance of the Subject Undercrossings. Defendant CITY OF STOCKTON owns, operates, controls and maintains the Subject Undercrossings.
8. Receipt of Federal, State and Local Funding. For purposes of this decree, defendant CITY OF STOCKTON admits that it receives federal, state and local funding, and additionally that such funding has been used to build, alter and maintain the relevant portions of the Subject Undercrossings, including the adjoining vehicular roadways passing under the undercrossing.
9. Construction History. The parties 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 Full Consent Decree Order and Judgment are identified in paragraph 10.
10. Scope of Facilities in Issue. The following are the facilities affected by this Full Consent Decree Order and Judgment: The absence of a vertical means of access to the undercrossing's public sidewalks at each of the seven currently non-compliant locations requiring the pedestrian to ascent a vertical curb or steps to access the walkway; i.e., at every end of the four undercrossing sidewalks which have steps and curbs, but excluding the ramp at the southeast end of Charter Way, which already complies with state and federal access codes.
11. 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 proximity for use of the Subject Undercrossings. 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 San Joaquin County.
12. This Full Consent Decree Order and Judgment is contingent upon Court approval and acceptance of its terms, and the normal retention of jurisdiction to interpret and enforce terms.
13. The parties agree to entry of this Full Consent Decree Order and Judgment in order to resolve the below listed allegations raised in the Complaint filed with this Court on May 20, 2008. Accordingly, they agree to the entry of this Full Consent Decree Order and Judgment 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 Full Consent Decree Order and Judgment, which provides as follows: FULL RESOLUTION OF ISSUES:
14. This Full Consent Decree Order and Judgment 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 personal and bodily injury, and plaintiff's claims for reasonable statutory attorney fees, litigation expenses and costs. This Full Consent Decree Order and Judgment was negotiated and reached through negotiations between the parties. The Court shall retain jurisdiction of this action to enforce and interpret this Full Consent Decree Order and Judgment. The parties agree that if they or any of them seek Court enforcement of this Full Consent Decree Order and Judgment, 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. With respect to the injunctive relief and damage claims resolved by this Order, the parties acknowledge that they waive the provisions of and any benefits that may be conferred by Civil Code section 1542 which reads:
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.
15. As a part of a compromise of global liability, the City of Stockton ["City"] agrees that it will perform the following work to provide disabled access at the Subject Undercrossings:
A. The City has already, or will immediately, post a temporary, but durable sign at the east end of the ramp and sidewalk on the South side of the Charter Way Undercrossing indicating that the sidewalk is not accessible to disabled persons, and in substantially the following manner: The sign shall have an arrow pointing in the westward direction of travel, and use the following language: "Warning Steps at West End of Sidewalk, No Disabled Access."
B. Within 1 year of entry of this Full Consent Decree Order and Judgment, the City shall install a compliant ramp with complaint handrails, compliant landings, a compliant clear width, and compliant wheel guards, etc. (hereafter "Compliant Ramp"), or another compliant means of vertical access to the undercrossing's walkway at the southwest end of the Charter Way Undercrossing, which shall be connected to a compliant cross-walk leading a compliant curb-ramp at the closest adjacent sidewalk.
C. Within 5 years of entry of this Full Consent Decree Order and Judgment, the City shall install a Compliant Ramp or another compliant means of vertical access at each end of one side of the Wilson Way pedestrian undercrossing that is currently accessible only by ascending curbs or steps (i.e., on one side the street only and at the northeast and southeast ends of the sidewalk serving the Wilson Way Undercrossing). These Compliant Ramps shall each be connected to a compliant cross-walk leading to a compliant curb-ramp at the closest adjacent sidewalk.
D. Compromise of Statutory Obligations. The parties stipulate that the forgoing remedial work is strictly a compromise of the City's programmatic services obligations under Section 202 and 204 of the ADA [42 USC §§ 12132 and 12134], shall be deemed work to "Existing Facilities" 28 CFR §35.150, and thus its performance shall not be treated as triggering any additional duties under §35.151 ("alterations")or Government Code Section 4456 ("alterations and structural repairs").
16. Performance Standards. All of the foregoing facilities specified in paragraph 15 shall be brought into full and strict compliance with the performance standards for new construction of the California Code of Regulations, Title 24-2 (2008), and Americans with Disabilities Act Accessibility Guidelines, effective January 26, 1992.
17. Conflict in Performance Standards. The parties acknowledge that each of the architectural features specified in paragraph 15 are regulated in near parallel fashion as "barriers to disabled access" under both Title 24 and the Americans with Disabilities Act Guidelines, and the corresponding statutory remedies. However, in the event of a conflict between the two sets of regulations identified in the proceeding paragraph, the provisions that supply maximum protection and accessibility to the disabled shall apply.
18. Option to Close Facilities. In lieu of making modification to any particular facility or amenity called for by this decree, the defendant may choose to permanently close such facility or amenity from public use. Such facilities shall not be reopened for public use without provision of full disabled access pursuant to the terms of paragraph 15.
19. Time for Compliance. As to all other work, defendant shall submit plans and apply for any necessary permits and complete all work specified in paragraph 15 per the time periods specified therein, allowing for good faith interruptions due to inclement weather, contractor unavailability, and other causes generally recognized under the common law Doctrine of Force Majeure. Permits from the building department shall be secured for all work. Defendant will provide written notice regarding the status of completion within 60 days of after each deadline specified in paragraph 15 thru 18.
20. Enforcement. Should plaintiff in the future become aware of any facts or conditions relating to the Subject Undercrossings that may give rise to a claim that defendant has failed to comply with any of the injunctive relief provisions set forth herein, plaintiff shall, prior to seeking enforcement from this Court, provide notice to the City Attorney's Office. The defendant shall have sixty (60) days, following receipt of such notification to undertake to correct the alleged violation and/or respond to plaintiff's allegations. Any response made by defendant shall be in writing, addressed to plaintiff's counsel, Tim Thimesch of the Thimesch Law Offices, at his then current address registered with the State Bar. Plaintiff's counsel agrees to contribute pro bono up to three hours in any given calendar year toward these informal negotiation efforts. If plaintiff determines, in his own good faith discretion, as constrained by the good faith requirements imposed by Rule 11, that the matter(s) are not resolved by defendant' response, plaintiff shall be permitted to file a noticed motion under the current case number of this action seeking enforcement of this Full Consent Decree Order and Judgment. The prevailing party in such motion proceedings, whether in full or in part, may be entitled to an award of reasonable attorney fees, litigation expenses and costs for such motion, i.e., pursuant to normal prevailing party standards that applied under the subject civil rights statutes before entry of this decree.
21. By this Full Consent Decree Order and Judgment, and in consideration of the global compromise on liability, defendants stipulate that the barriers identified herein for correction, at paragraph 15, supra, constitute past and present violations of plaintiff's rights under Title II of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12101 et seq.; Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §794; and thru corresponding California law, including Government Code Sections 11135 and 4450-4456; Civil Code Sections 51, 54 and 54.1, et seq., and Title 24 of the California Code of Regulations.
22. Plaintiff has filed this action as a public interest lawsuit, specifically alleging on page 1 lines 21 - 22 of his Complaint that he brings the action "on behalf of herself and other similarly situated disabled persons". The parties intend that, this Consent Decree and Order shall additionally be binding upon all persons with disabilities similarly situated to plaintiff, found to be in privity with him, and thus, to permitted by law, shall have the binding effect of res judicata and/or collateral estoppel. See Headwaters. Inc. v. U.S. Forest Service, 399 F.3d 1047 (9th Cir. 2005)
RESOLUTION OF CLAIM FOR REASONABLE STATUTORY DAMAGES:
23. Defendant agrees to pay the amount of $80,000 satisfaction of plaintiff's claims for bodily and personal injury and for statutory damages under Title II of the ADA, and Civil Code Sections 52 and 54.3. A check for this amount shall be made payable to "WILLIAM LAWSON," and delivered into plaintiff counsel's hands within 21 days of defendant' execution of this Full Consent Decree Order and Judgment. If overnight mail is used, defendant shall supply plaintiff's counsel with a tracking number.
24. The parties stipulate that the foregoing amount is intended to be paid in full to plaintiff, and understand that no part of it shall be received by plaintiff's counsel in compensation toward plaintiff's separate claim for reasonable statutory attorney fees, litigation expenses, and costs.
RESOLUTION OF CLAIM FOR REASONABLE STATUTORY ATTORNEYS FEES, LITIGATION EXPENSES AND COSTS:
25. Defendant agree to pay the amount of $125,000 satisfaction of plaintiff's claims for interim and final claims for reasonable statutory attorney fees, litigation expenses and costs under Section 505 of the ADA [42 USC 12205]; Civil Code Sections 52, 54.3, and 55; Health & Safety Code Section 19953; and Code of Civil Procedure Section 1021.5. A check for this amount shall be made payable to "TIM THIMESCH, IN TRUST," and delivered into plaintiff counsel's hands on November 21, 2009. If overnight mail is used, defendant shall supply plaintiff's counsel with a tracking number.
FULL CONSENT DECREE ORDER AND JUDGMENT:
26. This Full Consent Decree Order and Judgment constitutes the entire agreement between the parties on the matters of plaintiff's claims for injunctive relief, statutory and personal injury damages, and reasonable statutory attorney fees, litigation expenses and costs, 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 Full Consent Decree Order and Judgment, shall be enforceable regarding the matters described herein.
FULL CONSENT DECREE ORDER AND JUDGMENT BINDING ON PARTIES AND SUCCESSORS IN INTEREST:
27. The parties agree and represent that they have entered into this Full Consent Decree Order and Judgment voluntarily, under no duress, and wholly upon their own judgment, belief, and knowledge as to all matters related to this Full Consent Decree Order and Judgment, after having received full advice from counsel.
28. This Full Consent Decree Order and Judgment shall be binding on Plaintiff WILLIAM LAWSON, and Defendant CITY OF STOCKTON; and any successors in interest. During the period of this Full Consent Decree Order and Judgment, the parties have a duty to so notify all such successors in interest of the existence and terms of this Full Consent Decree Order and Judgment during the period of the Court's jurisdiction of this Full Consent Decree Order and Judgment.
JOINT PREPARATION AND SEVERABILITY:
29. This Full Consent Decree Order and Judgment is deemed jointly prepared by all parties and shall not be strictly construed against any party as its drafter. If any term of this Full Consent Decree Order and Judgment is determined by any court to be unenforceable, the other terms of this Full Consent Decree Order and Judgment shall nonetheless remain in full force and effect.
SIGNATORIES BIND PARTIES:
30. Signatories on the behalf of the parties represent that they are authorized to bind the parties to this Full Consent Decree Order and Judgment.
SIGNATORIES BIND PARTIES:
31. This Full Consent Decree Order and Judgment may be executed in counterpart signatures, and such signatures may be attached in counterparts, each of which shall be deemed an original, and which together shall constitute one and the same instrument. Such counterparts may be signed as faxed signatures, which shall have the same force and effect as original signatures.
Plaintiff WILLIAM LAWSON
/s/ CITY OF STOCKTON
APPROVED AS TO FORM:
Dated: November __, 2009
THIMESCH LAW OFFICES TIMOTHY S. THIMESCH, ESQ. GENE A. FARBER, ESQ. -- Of Counsel /s/ Attorneys for Plaintiff WILLIAM LAWSON
Dated: November __, 2009
RICHARD E. NOSKY, JR. CITY ATTORNEY SHELLEY L. GREEN ASSISTANT CITY ATTORNEY /s/ Attorneys for Defendant CITY OF STOCKTON
IT IS SO ORDERED.
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