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Berne v. Regents of University of California

United States District Court, Ninth Circuit

June 12, 2013

PATRICIA BERNE, Plaintiff,
v.
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.

JURISDICTION:

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 ...


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