Wadman et al v. Discovery Bay Yacht Harbor, LLC et al, No. 3:2014cv05035 - Document 46 (N.D. Cal. 2015)
Court Description: ORDER GRANTING 45 CONSENT DECREE.(whalc2, COURT STAFF) (Filed on 9/16/2015)
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Wadman et al v. Discovery Bay Yacht Harbor, LLC et al 1 2 3 4 5 6 7 8 9 10 Doc. 46 PAUL L. REIN, ESQ. (SBN 43053) CELIA MCGUINNESS, ESQ. (SBN 159420) CATHERINE CABALO, ESQ. (SBN 248198) LAW OFFICES OF PAUL L. REIN 200 Lakeside Drive, Suite A Oakland, CA 94612 Telephone: 510/832-5001 Facsimile: 510/832-4787 reinlawoffice@aol.com STEVEN L. DERBY, ESQ. (SBN 148372) THE DERBY LAW FIRM P.C. 1255 Treat Blvd. Suite 300 Walnut Creek, CA 94597 Telephone: 925/472-6640 Facsimile: 925/933-3964 derby@derbydisabilitylaw.com Attorneys for Plaintiffs MAX WADMAN and KELLY TOPPING 11 * Defendants’ counsel listed after the caption. 12 IN THE UNITED STATES DISTRICT COURT IN AND FOR THE NORTHERN DISTRICT OF CALIFORNIA 13 14 15 MAX WADMAN and KELLY TOPPING, CASE NO. C14-5035 WHA Civil Rights 16 Plaintiffs, 17 v. CONSENT DECREE AND [PROPOSED] ORDER AS TO INJUNCTIVE RELIEF ONLY 18 19 20 21 22 23 DISCOVERY BAY YACHT HARBOR, LLC; NEW DISCOVERY, INC.; DISCOVERY BAY MARINA PROPERTIES, a California General Partnership; KEN HOFMANN; WALTER L. YOUNG; RONALD DAWSON; WALTER L. YOUNG and MARY C. YOUNG, TRUSTEES OF THE YOUNG REVOCABLE TRUST DATED FEBRUARY 11, 1999; AND DOES 1-100, inclusive, 24 25 Defendants. 26 // 27 // 28 CONSENT DECREE & [PROPOSED] ORDER AS TO INJUNCTIVE RELIEF ONLY Case No. C14-5035 WHA Dockets.Justia.com 1 2 3 4 5 6 7 COX WOOTTON LERNER GRIFFIN & HANSEN LLP RUPERT P. HANSEN (SBN 082302) CHRISTOPHER S. KIELIGER (SBN 209121) JULIETTE B. McCULLOUGH (SBN 278929) 900 Front Street, Suite 350 San Francisco, CA 94111 Telephone: 415.438.4600 Facsimile: 415.438.4601 Attorneys for Defendants DISCOVERY BAY YACHT HARBOR, LLC , KEN HOFMANN, individually, RONALD DAWSON, Individually, and MARY C. YOUNG, Trustee of The Young Revocable Trust 8 9 CONSENT DECREE AND [PROPOSED] ORDER 10 11 1. 12 November 14, 2014, alleging violations of the Americans with Disabilities Act of 1990 ("ADA"), 13 42 U.S.C. sections 12101 et seq., California civil rights laws and common law tort claims against 14 Defendants DISCOVERY BAY YACHT HARBOR, LLC (“DBYH LLC”); NEW DISCOVERY, 15 INC.; DISCOVERY BAY MARINA PROPERTIES, a California General Partnership; KEN 16 HOFMANN; WALTER L. YOUNG; RONALD DAWSON; WALTER L. YOUNG and MARY 17 C. YOUNG, TRUSTEES OF THE YOUNG REVOCABLE TRUST DATED FEBRUARY 11, 18 1999 (collectively, "Defendants") relating to, inter alia, barriers to access at Discovery Bay Yacht 19 Harbor as of March 22, 2014, and continuing. Specifically, Plaintiffs alleged that Defendants 20 failed to provide full and equal access to their facilities at Discovery Bay Yacht Harbor, Discovery 21 Bay, California. 22 2. 23 as TRUSTEE OF THE YOUNG REVOCABLE TRUST DATED FEBRUARY 11, 1999 24 (collectively “Answering Defendants”) were served and answered the Complaint. Answering 25 Defendants do not admit liability to any of the allegations in Plaintiffs’ Complaint filed in this 26 action. 27 3. 28 Plaintiffs MAX WADMAN and KELLY TOPPING filed a Complaint in this action on Defendants DBYH LLC; KEN HOFMANN; RONALD DAWSON; MARY C. YOUNG, Pursuant to Rule 41(a)(1)(A)(ii) of the Federal Rules of Civil Procedure all parties who -2- CONSENT DECREE & [PROPOSED] ORDER AS TO INJUNCTIVE RELIEF ONLY Case No. C14- 5035 WHA 1 have appeared in this lawsuit have stipulated to a Dismissal Without Prejudice of the following 2 Defendants: 3 California General Partnership; RONALD DAWSON; WALTER L. YOUNG; WALTER L. 4 YOUNG and MARY C. YOUNG, TRUSTEES OF THE YOUNG REVOCABLE TRUST 5 DATED FEBRUARY 11, 1999, with each party to bear their own costs. 6 4. 7 Defendants”; collectively with Plaintiffs “the Signing Parties”) hereby enter into this Consent 8 Decree and Order for the purpose of resolving the injunctive relief issues in this lawsuit without 9 the need for protracted litigation and without the admission of any liability. The Signing Parties 10 jointly stipulate and request the Court not dismiss the action because issues of standing, liability, 11 damages and attorney fees, litigation costs and expenses remain to be resolved. NEW DISCOVERY, INC.; DISCOVERY BAY MARINA PROPERTIES, a Plaintiffs and defendants DBYH LLC and KEN HOFMANN (collectively, “the Signing 12 13 JURISDICTION: 14 5. 15 matter pursuant to 28 U.S.C. section 1331 for alleged violations of the Americans with Disabilities 16 Act of 1990, 42 U.S.C. sections 12101 et seq., and pursuant to supplemental jurisdiction for 17 alleged violations of California law. 18 6. 19 Pparties to this Consent Decree agree to entry of this Order to resolve all claims regarding 20 injunctive relief raised in the Complaint filed with this Court. Accordingly, they agree to the entry 21 of this Order without trial or further adjudication of any issues of fact or law concerning Plaintiffs’ 22 claims for injunctive relief. 23 24 The Signing Parties to this Consent Decree agree that the Court has jurisdiction of this In order to avoid the costs, expense, and uncertainty of protracted litigation, the Signing 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: 25 26 SETTLEMENT OF INJUNCTIVE RELIEF: 27 7. 28 This Order shall be a full, complete, and final disposition and settlement of Plaintiffs’ -3- CONSENT DECREE & [PROPOSED] ORDER AS TO INJUNCTIVE RELIEF ONLY Case No. C14- 5035 WHA 1 claims against Signing Defendants DBYH LLC and KEN HOFMANN for injunctive relief that 2 have arisen out of the subject Complaint. The Signing Parties agree that there has been no 3 admission or finding of liability and this Consent Decree and Order shall not be construed as such. 4 8. 5 described in the Remediation Chart attached and incorporated herewith as Exhibit A. As used in 6 this Consent Decree and [proposed] Order, “remediate” and “accessible” mean to construct and 7 maintain in full compliance with the Americans with Disabilities Act Standards and/or California 8 Building Code Title 23-2 (2013), whichever is more stringent for a given element. 9 9. Remedial Measures: Defendant DBYH LLC will remediate each barrier to access as Timing: Defendant DBYH LLC will complete each item by the date stated in the 10 Remediation Chart. 11 10. 12 DBYH LLC will implement written policies as follows: 13 Written Policy: Within 30 days of the Signing Parties signing this Consent Decree, 1. DBYH LLC will check opening force and closing speed of doors at the Harbor Office, 14 public restrooms and accessible gates at least every six months and adjust as necessary to 15 maintain their accessibility. 16 2. Accessible Slips shall be leased as follows: 17 a. If a person or persons with a disability (“PWD”) requests an uncovered berth but an 18 accessible one is not available, a covered berth will be leased at the uncovered berth 19 price. 20 21 22 23 b. Similarly, an accessible long berth will be leased to a PWD at the short berth price, if an accessible short berth is not available. c. The accessible berths shall be reserved for PWD unless and until all other berths are leased, at which time they may be leased to any potential tenant; 24 d. If all non-accessible berths are leased and an accessible berth is therefore leased to a 25 person without a disability, a clause should be inserted in the accessible berth’s lease 26 agreements that should an equally long inaccessible slip subsequently become 27 28 -4CONSENT DECREE & [PROPOSED] ORDER AS TO INJUNCTIVE RELIEF ONLY Case No. C14- 5035 WHA 1 available, the lessee shall be moved to that inaccessible berth, freeing the accessible 2 berth for a potential PWD. 3 3. Upon request, DBYH will provide an accessible key/means of operating gate locks to a 4 PWD. 5 4. The fuel dock and pump-out dock, and the adjacent guest slips will be closed to public 6 access to/from the shore. 7 5. DBYH LLC will (a) check opening force and closing speed of doors at the Harbor Office, 8 public restroom and pier accessible gates at least every six months and adjusting as 9 necessary to maintain their accessibility; (b) maintain all accessible paths of travel free of 10 barriers. 11 6. DBYH LLC will train all relevant employees on these new policies within 30 days of the 12 Signing Parties signing this Consent Decree, will incorporate the policies into its employee 13 handbook and will train relevant new employees on these policies as they are hired. 14 11. Compliance: 15 a. 16 access specialist of its choice to conduct one site inspection by January 31, 2016, to report 17 upon and confirm completion of the remedies specified in paragraph 8 above. DBYH LLC 18 will provide a copy of each report to Plaintiffs’ counsel within 15 days of receipt. In 19 addition, DBYH LLC will retain and pay Gilda Puente-Peters or another certified access 20 specialist of its choice to return by January 31, 2017, to confirm continued compliance 21 with accessibility laws and to advise on any potential barriers to access that have arisen. 22 DBYH LLC will make all readily achievable modifications recommended by said access 23 specialist, in addition to changes necessary to bring DBYH LLC into compliance with this 24 Consent Decree. DBYH LLC will provide a copy of this report to Plaintiffs’ counsel 25 within 15 days of receipt. 26 b. 27 LLC has complied with the terms of this Consent Decree and [proposed] Order, or in case 28 Defendant DBYH LLC will retain and pay Gilda Puente-Peters or another certified In case of dispute between Plaintiffs and Signing Defendants over whether DBYH -5CONSENT DECREE & [PROPOSED] ORDER AS TO INJUNCTIVE RELIEF ONLY Case No. C14- 5035 WHA 1 Plaintiffs dispute the findings of the access specialist, the Signing Parties will meet and 2 confer for not less than 30 days prior to bringing any motion to compel compliance. If the 3 dispute remains, Plaintiffs may bring a motion to compel compliance. 4 ENTIRE CONSENT ORDER: 5 12. 6 A-2 and A-3 to Attachment A, which are incorporated herein by reference as if fully set forth in 7 this document, constitute the entire consent agreement between the Signing Parties on all issues 8 in this case. This Consent Decree and Order, Attachment A to this Consent Decree, and Exhibits A-1, 9 10 CONSENT ORDER BINDING ON SIGNING PARTIES AND SUCCESSORS IN 11 INTEREST: 12 13. 13 in interest. The Signing Parties have a duty to so notify all such successors in interest of the 14 existence and terms of this Consent Decree and Order during the period of the Court's 15 jurisdiction of this Consent Decree and Order. This Consent Decree and Order shall be binding on the Signing Parties and all successors 16 17 TERM OF THE CONSENT DECREE AND ORDER: 18 14. 19 jurisdiction of this action to enforce provisions of this Order through December 31, 2017, or 20 whenever remediation is complete, whichever comes later. This Consent Decree and Order shall be in full force and effect, and the Court shall retain for 90 days following the entry of judgment or dismissal of the entire case. 21 22 SEVERABILITY: 23 15. 24 unenforceable, the other terms of this Consent Decree and Order shall nonetheless remain in full 25 force and effect. 26 SIGNATORIES BIND SIGNING PARTIES: If any term of this Consent Decree and Order is determined by any court to be 27 28 -6CONSENT DECREE & [PROPOSED] ORDER AS TO INJUNCTIVE RELIEF ONLY Case No. C14- 5035 WHA 9/16
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