June 12, 2013
PATRICIA BERNE, Plaintiff,
THE REGENTS OF THE UNIVERSITY OF CALIFORNIA; DOES 1 through 10, inclusive, Defendant.
PAUL L. REIN, Esq., (SBN 43053) CELIA McGUINNESS, Esq., (SBN 159420) LAW OFFICES OF PAUL L. REIN, Oakland, CA, Attorneys for Plaintiff, PATRICIA BERNE.
MICHAEL D. BRUNO, (SBN 166805) GORDON & REES LLP, San Francisco, CA, Attorneys for Defendant, THE REGENTS OF THE UNIVERSITY OF CALIFORNIA.
CONSENT DECREE AND [PROPOSED] ORDER Pursuant to General Order 56
DONNA M. RYU, Magistrate Judge.
1. Plaintiff PATRICIA BERNE filed a Complaint in this action on February 22, 2011 to obtain recovery of damages for her alleged discriminatory experiences, denial of access, and denial of her civil rights, and to enforce provisions of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. sections 12101 et seq., and California civil rights laws against Defendant The REGENTS OF THE UNIVERSITY OF CALIFORNIA relating to the condition of its public accommodations as of March 4, 2009, and continuing. Plaintiff has alleged that Defendants violated Title III of the ADA and sections 51, 52, 54, 54.1, 54.3 and 55 of the California Civil Code, and sections 19955 et seq. of the California Health & Safety Code by failing to provide and equal access to their facilities at Zellerbach Hall Auditorium, located on the University of California campus at Berkeley, California.
2. Defendant The REGENTS OF THE UNIVERSITY OF CALIFORNIA denies the allegations in the Complaint and by entering into this Consent Decree and Order does not admit liability for any of the allegations in Plaintiffs Complaint filed in this action. Plaintiff and defendant, hereinafter collectively, "the parties, " hereby enter into this Consent Decree and Order for the of resolving this lawsuit without the need for protracted litigation and without the admission of any liability.
3. The parties to this Consent Decree agree that the Court has jurisdiction of this matter pursuant to 28 U.S.C. section 1331 for alleged violations of the Americans with Disabilities Act of 1990, 42 U.S.C. sections 12101 et seq., and pursuant to supplemental jurisdiction for alleged violations of California Health & Safety Code sections 19955 et seq.; Title 24, California Code of Regulations; and California Civil Code sections 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, damages, and attorney fees, litigation expenses, and costs, raised in the Complaint filed with this Court. Accordingly, they agree to the entry of this Order without trial or further adjudication of any issues of fact or law concerning Plaintiffs claims for injunctive relief. Issues of damages, and attorney fees, litigation expenses, and costs have not been resolved and will be the subject of further negotiation and/or litigation.
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 Defendant 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 242, and the Americans with Disabilities Act Accessibility Standards, unless other standards are specifically agreed to in this Consent Decree and Order.
7. Remedial Measures: Defendants agree to perform corrective work at the Zellerbach Hall Auditorium, where, Berkeley, California. The scope of the corrective work, and the schedule for it, agreed upon by the parties is delineated in Attachment A. As indicated, defendant represents some of the work has already been completed. Defendant shall provide a a status report to plaintiff's counsel 180 days after this Consent Decree is signed by the Court. Thereafter, defendant will provide status reports every 180 days until the remedial measures are constructed.
8. Timing of Injunctive Relief: The parties shall complete the corrective work on the schedule delineated in Attachment A. In recognition of the comprehensive construction project known as the Lower Sproul Plaza Renovation, the parties acknowledge that completing the work set forth in Attachment A prior to December 31, 2013 may be unreasonably difficult or inefficient, and that the schedule may need to be redirected. In the event that such difficulties prevent Defendant from completing any of the agreed upon injunctive relief by the end of 2013, Defendant or its counsel will notify Plaintiff's counsel in writing within 15 days of discovering such a circumstance. This communication shall contain an explanation for the delay and propose an extension of time within which the work shall be completed. Plaintiffs counsel shall consider the reasons stated, as well as the proposed extension, and respond in writing. Within 15 days of plaintiffs writing, the parties shall confer by phone. If the parties are unable to reach an agreement through this process, Defendant shall be entitled to make a motion to the Court requesting an extension of this deadline. Nothing in this Consent Decree shall prevent plaintiffs counsel from demanding payment of reasonable attorney fees incurred in connection with a request from defendant for additional time to complete the remedial measures set forth in Exhibit A.
9. The parties have not yet reached an agreement regarding Plaintiffs monetary claims for damages.
ATTORNEY FEES, LITIGATION EXPENSES AND COSTS:
10. No agreement has been reached yet on these issues. They will be the subject of further negotiation and/or litigation. The parties jointly stipulate and request that the Court not dismiss the case as these significant issues remain unresolved.
11. If Defendant fails to perform the injunctive relief, or fails to perform in the time frame stated and the parties cannot come to a negotiated resolution through the mechanism set forth in paragraph 8, Defendants will pay all plaintiffs reasonable fees, litigation expenses and costs involved in enforcing this agreement.
ENTIRE CONSENT ORDER:
12. This Consent Decree and Order and Attachment A to this Consent Decree and Order, which is incorporated herein by reference as if fully set forth in this document, constitute the entire agreement between the signing parties on the matters of injunctive relief, issues of damages and attorney fees, litigation expenses, and costs are specifically excluded and shall be the subject of further negotiations and/or litigation.
CONSENT ORDER BINDING ON PARTIES AND SUCCESSORS IN INTEREST:
13. This Consent Decree and Order shall be binding on the parties and all successors in interest. The parties have a duty to so notify all such 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.
MUTUAL RELEASE AND WAIVER OF CIVIL CODE SECTION 1542 AS TO INJUNCTIVE RELIEF ONLY:
14. Each of the parties to this Consent Decree understands and agrees that there is a risk and possibility that, subsequent to the execution of this Consent Decree, any or all of them will incur, suffer or experience some further loss or damage with respect to the lawsuit which are unknown or unanticipated at the time this Consent Decree is signed. Except for all obligations required in this Consent Decree, the parties intend that this Consent Decree apply to all such further loss with respect to the lawsuit, except those caused by the parties subsequent to the execution of this Consent Decree. Therefore, except for all obligations required in this Consent Decree, this Consent Decree shall apply to and cover any and all claims, demands, actions and causes of action by the parties to this Consent Decree with respect to the lawsuit, whether the same are known, unknown or hereafter discovered or ascertained, and the provisions of Section 1542 of the California Civil Code are hereby expressly waived. Section 1542 provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST TN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
15. 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, subsidiaries, joint venturers, partners, employees, agents, attorneys, insurance carriers, heirs, predecessors, and representatives of each other Party, from all claims, demands, actions, and causes of action of whatever kind or nature, presently known or unknown, of or in any way connected with the lawsuit.
TERM OF THE CONSENT DECREE AND ORDER:
16. This Consent Decree and Order shall be in full force and effect for a period of (48) months after the date of entry of this Consent Decree and Order, or until the relief contemplated by this Order is completed, whichever occurs later. The Court jurisdiction of this action to enforce provisions of this Order for forty-eight (48) after the date of this Consent Decree, or until the injunctive relief contemplated by this completed, whichever occurs later.
17. If any term of this Consert Decree and Order is determined by any court to be the other terms of this Consent Decree and Order shall nonetheless remain in full effect.
SIGNATORIES BIND PARTIES:
Signatories on the behalf of the parties represent that they are authorized to bind to this Consent Decree and Order. This Consent Decree and Order may be signed in and a facsimile signature shall have the same force and effect as an original signature.
Pursuant to stipulation, and for good cause shown, IT IS SO ORDERED.