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Whitbread v. Gadis Bar & Grill

United States District Court, C.D. California

December 18, 2019

JOHN WHITBREAD, Plaintiff,
v.
GADI'S BAR & GRILL, a business form unknown, GADI'S RESTAURANT AND BAR, a California corporation; GDALYAHU OKEVI, an individual and DOES 1 through 11 and 12-20, Inclusive Defendants.

          DERBY, McGUINNESS & GOLDSMITH, LLP ANTHONY GOLDSMITH, ESQ Attorneys for Plaintiff JOHN WHITBREAD

          FIDELIS LAW APC ESTEFAN M ENCARNACION, Esq Attorneys for Defendant, GADI'S RESTAURANT AND BAR, INC and Gdalyahu Okevi

          CONSENT DECREE FOR INJUNCTIVE RELIEF AND [PROPOSED] ORDER

          HONORABLE JESUS G. BERNAL U.S. DISTRICT COURT JUDGE

         Plaintiff JOHN WHITBREAD filed a Complaint in this action on February 5, 2019, to enforce provisions of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12101 et seq., and California civil rights laws and to obtain injunctive relief and the recovery of damages for alleged discriminatory experiences, denial of access, and denial of civil rights against Defendants relating to disability discrimination at Defendants' public accommodations as of October 24, 2018 and continuing. Plaintiff filed a First Amended Complaint on July 3, 2019 to include an additional Defendant Ghalyahu Okevi, who waived service through counsel on July 24, 2019.

         Plaintiff has alleged that Defendants violated Titles III of the ADA and sections 51, 54 and 54.1 of the California Civil Code by creating and/or failing to remove physical barriers to disability access at the Gadi's Bar & Grill restaurant and related facilities and real property located at 56193 Twentynine Palms Highway, Yucca Valley, California (the restaurant and associated realty including all parking areas serving the restaurant shall hereinafter be referred to as “the Facility” or “the Restaurant”). Without agreeing to any of Plaintiff's allegations as set forth above or in the operative complaint in this matter except as admitted in Defendant Gadi's Restaurant and Bar, Inc.'s answer or as set forth herein, Plaintiff and Defendants Gadi's Restaurant and Bar, Inc and Gdalyahu Okevi, (together, “the Parties”) agree that it is in the Parties' best interests, and Plaintiff believes it is in the public interest, to fully and finally resolve injunctive and equitable relief in this matter on mutually agreeable term. The Parties have not resolved the amount of monetary relief and do not seek dismissal of the action.

         Therefore, Plaintiff and Defendants hereby agree and stipulate to the following Consent Decree for Injunctive Relief, which the Court will retain jurisdiction to enforce for forty-eight (48) months after the date it is signed.

         WHEREFORE, the Parties to this Consent Decree for Injunctive Relief hereby agree and stipulate to the Court's entry of this Consent Decree for Injunctive Relief and Order, which provide as follows:

         JURISDICTION AND VENUE:

         1. The Court has jurisdiction of this matter pursuant to 28 U.S.C. §§1331 and 1345, and 42 U.S.C. §12188(b). Venue is appropriate in this District pursuant to 28 U.S.C. §1391.

         2. This Order shall be a full, complete, and final disposition and settlement of Plaintiff's claims against Defendants for injunctive and equitable relief but does not serve to resolve Plaintiff's claims for statutory damages, attorneys' fees litigation expenses and costs (“Monetary Relief'). It is agreed that the Parties will seek to resolve issues connected with Monetary Relief through negotiation, mediation or further litigation.

         INJUNCTIVE RELIEF:

         3. Standards: Unless an earlier date is set forth below, Defendants shall remediate each and every barrier identified in the Partial Disabled Access Report of ARCOR Inc., dated July 23, 2019 (the “ARCOR Report”) on or before July 1, 2020. A copy of the ARCOR Report is attached hereto as Exhibit “A” and by this reference incorporated herein and made a part hereof. Provided, however that the Defendants shall only be required to create one men's restroom that is complaint with the below described Current Access Standards. All work shall conform to the 2010 Americans with Disabilities Act Accessibility Standards applicable to new construction as set forth in 28 C.F.R. Part 36 (“ADAS”) and the currently enforceable provisions of Chapter 11B of the California Building Code (the “CBC”) (collectively, “Current Access Standards”).

         4. Timelines. All barriers at the Facility and deviations from Current Access Standards identified in Exhibit “A” shall be eliminated on before July 1, 2020 unless an earlier date is set forth below:

a. All barriers and deviations from the Current Access Standards with respect to parking spaces, passenger access aisles and related features (including surface conditions, signs and surface identification), as set forth in the ARCOR Report, shall be remediated no later than March 1, 2020 so that the parking at the ...

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