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Murray v. Park Management Corp.

United States District Court, E.D. California

June 5, 2017

CAROL MURRAY, Plaintiff,
v.
PARK MANAGEMENT CORP., dba SIX FLAGS DISCOVERY KINGDOM, Defendant.

          MISSION LAW FIRM, A.P.C. TANYA E. MOORE Attorneys for Plaintiff CAROL MURRAY

          SHEPPARD, MULLIN, RICHTER & HAMPTON LLP HAYLEY S. GRUNVALD Attorneys for Defendant PARK MANAGEMENT CORP., dba SIX FLAGS DISCOVERY KINGDOM

          ORDER

          Troy L. Nunley United States District Judge.

         I.

         BACKGROUND AND SCOPE OF CONSENT DECREE

         1. Plaintiff Carol Murray (“Plaintiff”) filed a Complaint in this action on October 8, 2015 (“the Action”), alleging violations of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. sections 12101 et seq., California's Unruh Civil Rights Act, California Civil Code section 51, and California's Health and Safety Code sections 19955(a), 19959 and 19953, against Defendant Park Management Corp., dba, Six Flags Discovery Kingdom (“Defendant, ” and together with Plaintiff, “the Parties”) relating to, inter alia, physical and policy barriers to access at Six Flags Discovery Kingdom as of April 9, 2015, and continuing. Specifically, Plaintiff alleged that Defendant failed to provide her full and equal access to its amusement park located at: 1001 Fairgrounds Drive, Vallejo, CA 94589 (“the Park”). Defendant denies the allegations in the Complaint and by entering into this Consent Decree does not admit liability to any of the allegations in Plaintiff's Complaint filed in the Action. The Parties hereby enter into this Consent Decree for the purpose of resolving the injunctive relief issues in this lawsuit without the need for protracted litigation and without the admission of any liability. The Parties have entered into a separate settlement agreement resolving all of Plaintiff's monetary claims.

         II.

         JURISDICTION

         2. The Parties to this Consent Decree agree that the Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1331 and 1343 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 law pursuant to 28 U.S.C. § 1367.

         3. To avoid the costs, expense, and uncertainty of protracted litigation, the parties to this Consent Decree agree to resolve all claims regarding injunctive relief raised in the Action. Accordingly, they agree to the entry of this Consent Decree without trial or further adjudication of any issues of act or law concerning Plaintiff's claims for injunctive relief.

         4. The Parties have resolved the monetary relief and attorneys' fees and costs portion of Plaintiff's Action which resolution has been memorialized in a separate and confidential settlement agreement.

         WHEREFORE, the Parties to this Consent Decree hereby consent as follows:

         III.

         SETTLEMENT OF INJUNCTIVE RELIEF

         5. This Consent Decree 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 and this Consent Decree shall not be construed as such.

         6. Barrier Removal: Defendant will remediate each barrier to access identified in the chart attached and incorporated hereto as Exhibit A. As used in this Consent Decree, “remediate” and “accessible” mean to modify and/or construct, and maintain, in full compliance with the 2010 Americans with Disabilities Act Standards for Accessible Design and/or Title 24 of the California Code of Regulations, Part 2, Chapter 11B (2016), whichever is more stringent for a given element.

         7. Timing: As set forth on Exhibit A, the timing for the remediation efforts has been staggered based on the complexity of the remediation and in consideration of the Park's season and the need to conduct many of the remediations when the Park is closed to the public.

         8. Entire Consent Decree: This Consent Decree and Exhibit A hereto, which is incorporated herein by reference as if fully set forth in this document, constitute the entire consent agreement between the signing parties on all issues relating to injunctive relief in this Action.

         9. Terms of the Consent Decree: This Consent Decree and shall be in full force and effect, and the Court shall retain jurisdiction of this Action to enforce provisions of this Consent Decree, through December 21, 2021, or whenever remediation is complete, whichever comes later.

         10. Force Majeure: Defendant shall be excused from performance and shall not be in default in respect of any obligation hereunder to the extent that the failure to perform such obligation is due to a Force Majeure Event as defined Section

11.11. Force Majeure Event:Force Majeure Event means an event beyond the control of Defendant, which prevents Defendant from complying with its obligations under this Consent Decree, including, but not limited to:
11.1.1 act of God (such as, but not limited to, fires, explosions, earthquakes, drought, tidal waves and floods);
11.1.2 war, hostilities (whether war be declared or not), invasion, act of foreign enemies, mobilization, requisition, or embargo;
11.1.3 rebellion, revolution, insurrection, or military or usurped power, or civil war;
11.1.4 contamination by radio-activity from any nuclear fuel, or from any nuclear waste from the combustion of nuclear fuel, radio-active toxic explosive, or other hazardous properties of any explosive nuclear ...

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