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Russell Peterson v. Paso Robles Ventures LLC; Marshall Fields

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


December 7, 2011

RUSSELL PETERSON, PLAINTIFF,
v.
PASO ROBLES VENTURES LLC; MARSHALL FIELDS, INC.; BRINKER RESTAURANT CORPORATION DBA CHILI'S GRILL AND BAR; RICHARD D. GOLDSTEIN AS TRUSTEE OF THE GOLDSTEIN FAMILY TRUST; AND DOES 1-10, INCLUSIVE, DEFENDANTS.

The opinion of the court was delivered by: Hon. George H. WU District Judge

[Counsel listed on following page]

CONSENT DECREE AND ORDER FOR INJUNCTIVE RELIEF UNDER TITLE III OF THE AMERICANS WITH DISABILITIES ACT

Plaintiff Russell Peterson and defendants Paso Robles Ventures LLC, Brinker Restaurant Corp. dba Chili's Grill and Bar, and Richard D. Goldstein as Trustee of the Goldstein Family Trust ("Defendants"), (collectively "the Parties"), hereby consent to this decree and order to perform the remedial action set forth below with respect to that certain real property located in the City of Paso Robles, California and identified by the following Assessor Parcel Numbers: 009-841-001; 009-841-019; 009-841-020; 001-841-039; and 009-841-047 through 009-841-055, and more generally known as The Crossings shopping center, at 2001, 2101, 2201 and 2307 Theatre Drive, Paso Robles, CA ("the Center").

1. Defendant Paso Robles Ventures LLC and Richard D. Goldstein as Trustee of the Goldstein Family Trust shall be responsible for completing the following remedial actions to the specific facilities as numbered on the map attached as Exhibit A.

No. Description Action

1 Signs Signs to be posted as required by law 120 Slope of sidewalk To be made compliant with applicable law 121 Parking spaces To be made compliant with applicable law 122 Goods obstructing sidewalk Store management to be notified 123 Cracks in parking lot surface To be patched to make even surface 123 Parking spaces To be made compliant with applicable law 124 Interior ramp To be made compliant with applicable law 125 Interior ramp To be made compliant with applicable law 126 Interior ramp To be made compliant with applicable law 127 Slope of sidewalk To be made compliant with applicable law 128 Wheel stops To be installed as needed to ensure adequate walkway 129 Wheel stops To be installed as needed to ensure adequate walkway 130 Wheel stops To be installed as needed to ensure adequate walkway 131 Transition from ramp Uneven surface to be removed 132 Slope of sidewalk To be made compliant with applicable law 132 Gap To be patched to make even surface 133 Interior ramp To be made compliant with applicable law 201 Parking spaces To be made compliant with applicable law 203 Utility cover Uneven surface to be removed 204 Interior ramp To be made compliant with applicable law 205 Parking spaces To be made compliant with applicable law 205 Wheel stops To be installed as needed to ensure adequate walkway 206 Interior ramp To be made compliant with applicable law 206 Transition from ramp To be made compliant with applicable law 207 Wheel stops To be installed as needed to ensure adequate walkway 208 Wheel stops To be installed as needed to ensure adequate walkway 209 Interior ramp ‐‐ A02 To be made compliant with applicable law 209 Transition from ramp Uneven surface to be removed 210 Interior ramp ‐‐ A02 To be made compliant with applicable law 210 Slope of sidewalk ‐‐ A06 To be made compliant with applicable law 211 Interior ramp To be made compliant with applicable law 212 Parking spaces To be made compliant with applicable law 213 Goods obstructing sidewalk Store management to be notified 217 Missing signage Signs to be posted as required by law 218 Slope of sidewalk To be made compliant with applicable law 219 Slope of sidewalk To be made compliant with applicable law 301 Slope of sidewalk To be made compliant with applicable law 302 Parking spaces To be made compliant with applicable law 304 Parking spaces To be made compliant with applicable law 305 Utility cover Uneven surface to be removed 306 Parking spaces To be made compliant with applicable law 307 Wheel stops To be installed as needed to ensure adequate walkway 308 Wheel stops To be installed as needed to ensure adequate walkway 309 Slope of sidewalk ‐‐ A04 To be made compliant with applicable law 309 Wheel stops To be installed as needed to ensure adequate walkway 310 Interior ramp ‐‐ A02 To be made compliant with applicable law 310 Transition from ramp ‐‐ A07 Uneven surface to be removed 311 Interior ramp To be made compliant with applicable law 312 Interior ramp To be made compliant with applicable law 314 Interior ramp ‐‐ A02 To be made compliant with applicable law 314 Roadway cross‐slope ‐‐ A08 To be made compliant with applicable law 401 Parking spaces To be made compliant with applicable law 406 Slope of roadway crossing To be made compliant with applicable law 407 Fence obstructing sidewalk Fence to be removed 408 Interior ramp To be made compliant with applicable law 409 Slope of roadway crossing To be made compliant with applicable law 410 Interior ramp To be made compliant with applicable law 412 Handrail Handrail to extend to sidewalk

2. Defendants Paso Robles Ventures LLC, Richard D. Goldstein as Trustee of the Goldstein Family Trust and Brinker Corporation will be responsible for completing the following remedial actions to the specific facilities as numbered on the map attached as Exhibit A.

No. Description Action

101 Parking spaces To be made compliant with applicable law 102 Slope of ramps To be made compliant with applicable law 103 Slope of ramps To be made compliant with applicable law 104 Slope of ramps To be made compliant with applicable law 105 Slope of sidewalk To be made compliant with applicable law 106 Slope and width of ramp To be made compliant with applicable law 107 Entrance door To be made compliant with applicable law 109 Restroom door To be made compliant with applicable law 110 Slope of floor To be made compliant with applicable law 111 Restroom facilities To be made compliant with applicable law 112 Restroom facilities To be made compliant with applicable law 113 Restroom facilities To be made compliant with applicable law

3. The foregoing remedial actions shall be completed no later than 18 months after the entry of this Consent Decree.

4. The Court has subject matter jurisdiction of this action pursuant to 28 U.S.C. section 1331 for alleged violations of Section 504 of the Rehabilitation Act of 1973 and of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et. seq. Pursuant to supplemental jurisdiction, attendant and related causes of action, arising from the same facts also brought under California law, including, but not limited to violations of California Government Code §§ 4450 el seq.; California Code of Regulations, Title 24; and California Civil Code §§ 51, 54, and 54. 1. Under the doctrine of supplemental jurisdiction, this Court has jurisdiction over Plaintiff's claims arising under California state law.

5. This Consent Decree constitutes a final disposition and settlement of all of Plaintiff's claims for injunctive relief in this action. The Parties agree to the entry of this Consent Decree without trial or further adjudication of any issues of fact or law concerning Plaintiff's claims for injunctive relief. The Parties jointly request that, following entry of this Consent Decree, and subject to the Court's continuing jurisdiction and authority as set forth below, the Court enter final judgment dismissing with prejudice all of Plaintiff's claims for injunctive relief in this action.

6. The Court shall retain jurisdiction of this action to enforce provisions of this Consent Decree for two years from the date of entry, or ninety days following notice by any Defendant to Plaintiff's counsel that all of the terms of this Consent Decree have been completed, whichever is latest. The Parties consent to the Court's continuing jurisdiction and authority to conduct any further proceedings in this case to enforce any provisions of the Consent Decree and, in the event of a dispute between the parties as to the remedial action undertaken or proposed to be undertaken, to determine whether the actual or proposed remedial action is required under this Consent Decree.

7. (a) For the consideration set forth in this Consent Decree, Plaintiff, for himself, his successors, heirs and assigns, children, agents, employees, representatives, affiliates, partners, related entities, officers, directors, shareholders, insurers, and attorneys fully and forever releases, acquits and forever discharges the Defendants, and each and every one of their successors, heirs and assigns, parents, children, agents, employees, representatives, affiliates, partners, related entities, officers, directors, shareholders, insurers, and attorneys of and from all claims, actions, causes of action, in law or in equity, legal or administrative, demands, rights, obligations, liabilities, arising from or related to the injunctive relief sought in this action, whether known or unknown, foreseen or unforeseen, which the undersigned have now or which may hereafter accrue, and which include all claims for injunctive relief which are or which could have been alleged in the Lawsuit or before any public or private agency, except for claims to enforce this Consent Decree.

(b) For the consideration set forth in this Consent Decree, Defendants, for themselves, their successors, heirs and assigns, parents, children, agents, employees, representatives, affiliates, partners, related entities, officers, directors, shareholders, insurers, and attorneys fully and forever release, acquit and forever discharge the Plaintiff, and each and every one of his successors, heirs and assigns, children, agents, employees, representatives, affiliates, partners, related entities, officers, directors, shareholders, insurers, and attorneys of and from all claims, actions, causes of action, in law or in equity, legal or administrative, demands, rights, obligations, liabilities, arising from or related to the injunctive relief sought in this action, whether known or unknown, foreseen or unforeseen, which the undersigned have now or which may hereafter accrue, and which include all claims for injunctive relief which are or which could have been alleged in the Lawsuit or before any public or private agency, except for claims to enforce this Consent Decree. Notwithstanding anything else in this Consent Decree to the contrary, this release specifically excludes any arguments Defendants may have or positions Defendants may take in any dispute over the Defendants' compliance with the terms of this Consent Decree, or in any proceedings on Plaintiff's claims for damages, attorneys' fees, litigation expenses and costs, which shall be subject to further agreement of the parties or court order. The previous sentence does not relieve the Defendants of their obligation to perform remedial work at each location specified in this Consent Decree.

(c) The foregoing releases are intended as a full and complete release and discharge of any and all claims for injunctive relief that the undersigned may or might have against each other, except for claims to enforce this Consent Decree.

All rights under Section 1542 of the Civil Code of the State of California are hereby expressly waived. The undersigned understands that said Section 1542 of the Civil Code provides 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 signing the Consent Decree, the Parties agree and understand that they (1) intend to and hereby do waive all rights each of them has or may have under California Civil Code Section 1542 and any other statute or common law principle of similar effect and (2) intend to and hereby do waive any and all claims of whatever kind or nature, anticipated or unanticipated, known or unknown, suspected or unsuspected, arising on or before the date of the execution of this Consent Decree, as it relates to Plaintiff's claims for injunctive relief against Defendants.

8. The parties bound by this Consent Decree shall notify all successors in interest of the existence and terms of this Consent Decree and Order during the period of the Court's jurisdiction of this Consent Decree and Order.

9. In the event that either of the parties believes that the other party has not complied with the terms of this Consent Decree and Order, Counsel will inform the party whose compliance is in question to notify the party of the alleged breach, and allow for thirty (30) days to negotiate a resolution. A motion to compel enforcement may be filed in the event that the parties are unable to resolve their alleged breach of the terms of the Consent Decree following the 30-day notice and good faith attempts at resolution. Plaintiff's right to attorneys' fees in any proceedings to enforce this Consent Decree shall be governed by applicable law. SO STIPULATED

DATED: November____, 2011 Plaintiff Russell Peterson

DATED: November____, 2011 BARBOSA, METZ & HARRISON, LLP

By:

Jeff A. Harrison Attorneys for Plaintiff Russell Peterson

DATED: November____, 2011 Defendant Paso Robles Ventures LLC

By: Melinda Ellis Evers, Partner, Ellis Partners, Inc., General Partner of EPI Investors V, L.P., General Partner of CEP Investors V, L.P., Managing member of Paso Robles Ventures LLC

[Signatures continued on following page]

DATED: November____, 2011 Defendant Goldstein Family Trust

By:

Richard D. Goldstein, Trustee

DATED: November____, 2011 LightGabler LLP

By:

Glenn J. Dickinson Gannon Elizabeth Johnson Attorneys for Defendants Paso Robles Ventures LLC and Richard

D. Goldstein as Trustee of the Goldstein Family Trust

DATED: November____, 2011 Defendant Brinker Restaurant Corp. dba

Chili's Grill and Bar

By: Name:_Alisha Danchak__________________ Title:__Corporate Counsel________________

DATED: November____, 2011 Pettit Kohn Ingrassia & Lutz, PC

By:

Kelly M. Douglas Attorneys for Brinker Restaurant Corp. dba Chili's Grill and Bar

IT IS SO ORDERED

20111207

© 1992-2011 VersusLaw Inc.



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