Yates v. Miway, LLC et al, No. 4:2011cv01273 - Document 34 (N.D. Cal. 2011)
Court Description: ORDER GRANTING 32 Proposed Order filed by Ikuko Miura, You See Sushi, Miway, LLC, Craig Yates. Signed by Judge Beeler on 8/26/11. (lblc2, COURT STAFF) (Filed on 8/26/2011)
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Yates v. Miway, LLC et al Doc. 34 1 4 TIMOTHY S. THIMESCH, ESQ., No. 148213 tim@thimeschlaw.com 158 Hilltop Crescent Walnut Creek, CA 94597-3452 Tel: 925/588-0401 Fax: 888/210-8868 5 Attorneys for Plaintiff CRAIG YATES 6 LAW OFF. OF FRANKIE F. YEUNG FRANKIE F. YEUNG, ESQ., No. 265014 frankie.yeung.esq@gmail.com 1121 Vicente Street San Francisco, CA 94116 Tel: (415) 632-6382 Fax: (415) 753-0310 2 3 7 8 9 10 11 Attorney for Defendants YOU SEE SUSHI; and IKUKO MIURA dba YOU SEE SUSHI THE BIERNAT LAW GROUP JAMES D. BIERNAT, ESQ., No. 75839 jbiernat@jdblawyers.com LISA L. PAN, ESQ., No. 188442 lpan@jdblawyers.com 345 Shoreway Road, Suite 101 San Carlos, California 94070-2708 Tel: (650) 802-0410 Fax: (650) 802-8997 Attorneys for Defendant MIWAY, LLC 12 13 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA 14 15 CRAIG YATES, 16 CASE NO. CV11-1273 LB Civil Rights Plaintiff, 17 v. 18 19 MIWAY, LLC; YOU SEE SUSHI; IKUKO MIURA; and DOES 1 through 50, Inclusive, 20 Defendants. CONSENT DECREE ORDER AND JUDGMENT / 21 22 23 24 INTRODUCTION AND ALLEGATIONS OF PARTIES 1. Plaintiff CRAIG YATES alleges he is a person with a disability whose condition 25 requires the full time use of a wheelchair for mobility. Plaintiff further alleges that he qualifies 26 as a “person with a physical disability” as defined by the relevant statutes. 27 28 158 HILLTOP CRESCENT WALNUT CREEK, CA 94597-3452 (925) 588-0401 2. Plaintiff CRAIG YATES further alleges he has standing to bring this action, that he lives in Terra Linda, that he however regularly conducts personal affairs in San Francisco Full Consent Decree Order and Judgment: Case No. CV11-1273 LB Dockets.Justia.com 1 including the general area where the subject restaurant is located, which activity includes 2 dining and shopping, and that he has been a repeat customer of this restaurant. While the 3 Defendants do not admit all of the foregoing allegations, they agree that sufficient undisputed 4 facts exists, including Plaintiff’s admitted multiple past uses of the restaurant as a paying 5 customer, and his ties to the area, to support Plaintiff’s qualification as “aggrieved and 6 potentially aggrieved” under the relevant statutes, and his individual standing under Article III 7 of the U.S. Constitution. In the event of an evidentiary inquiry into Plaintiff’s standing, 8 Defendants will stipulate to Plaintiff’s admitted multiple past uses of the restaurant as a paying 9 customer, and will otherwise not seek to oppose or cross-exam Plaintiff’s evidentiary 10 11 submissions. 3. Defendants YOU SEE SUSHI; and IKUKO MIURA ( “Tenants”) are the owners, 12 operators, and lessees of the public accommodation You See Sushi, located at or near 94 Judah 13 Street, San Francisco, California ( “Subject Restaurant”). 14 Defendants MIWAY, LLC, (“Landlord”). Together, the subject Tenants and Landlord shall be 15 referred to as Defendants; and together Plaintiff and the Defendants shall be referred to 16 collectively herein as “the Parties.” 17 18 19 4. Plaintiff alleges that the Subject They lease the property from Restaurant qualifies as a “public accommodation” and “commercial facility” under all applicable statutes and regulations. 5. Plaintiff filed this action for himself and all other similarly situated members of 20 the public to vindicate their rights under the Americans with Disabilities Act of 1990 (“ADA”), 21 42 U.S.C. §§ 12101 et seq., and Civil Code Section 54 and 54.1, titled Craig Yates v. Miway 22 LLC, You See Sushi, Ikuko Miura and Does 1-50, Inclusive, U.S. District Court, Northern 23 District of California, CV 11-1273 LB (“the Lawsuit”). 24 6. Plaintiff alleges that Defendants violated these statutes by failing to provide full 25 and equal access and related facilities, including an accessible route from the public sidewalk to 26 all elements of the building, and to the main entrance, dining facilities, the counter, dining 27 tables and public restrooms. Specific identification of the facilities and their deficiencies were 28 identified in the Complaint filed on March 16, 2011. 158 HILLTOP CRESCENT WALNUT CREEK, CA 94597-3452 (925) 588-0401 Full Consent Decree Order and Judgment: Case No. CV-10-4842 EMC 2 1 7. Plaintiff alleges that the subject building and site has undergone construction 2 triggering the requirement of full compliance with regulations in the altered areas, and that 3 further Defendants could easily afford to makes its facilities and services accessible without 4 significant difficulty or expense. Defendants deny Plaintiff’s allegations and, by entering into 5 this Consent Decree and Judgment (“Consent Decree”), in no way admit to any liability 6 whatsoever. Without limitation, Defendants do not waive defenses such as, but not limited to, 7 unreasonable hardship, undue hardship, legal and physical constraint, technical infeasibility, 8 and the 20% cost-cap. Defendants also expressly deny that the subject building and site have 9 undergone construction triggering the requirement of full compliance with regulations in the 10 11 altered areas. 8. Notwithstanding the disputed issues, the Parties enter into this Consent Decree to 12 amicably resolve all issues, claims and defenses in the Lawsuit without the need for further 13 protracted litigation and to resolve all allegations raised in the Complaint on file herein. The 14 Parties agree that resolution of these matters without further litigation is in the public interest 15 and that this Consent Decree is the most appropriate means of resolving these matters. 16 Accordingly, the Parties agree to this Consent Decree with respect to the matters covered 17 herein without trial or further adjudication of any issues of fact or law, except reserving to the 18 court jurisdiction to fix the amount of reasonable attorneys’ fees, costs and litigation expenses . WHEREFORE, the Parties hereby agree as follows: 19 20 21 22 SCOPE OF SETTLEMENT 9. The following are the facilities at the Subject Restaurant affected by this Consent 23 Decree: the accessible route from and along the public sidewalk and boundary of the site to the 24 main entrance of the restaurant, the main entrance, the dining table facilities, the counter, and 25 the public restrooms. 26 27 28 158 HILLTOP CRESCENT WALNUT CREEK, CA 94597-3452 (925) 588-0401 CONSENT DECREE 10. In entering this Consent Decree, Plaintiff agrees that this Consent Decree fully Full Consent Decree Order and Judgment: Case No. CV-10-4842 EMC 3 1 vindicates Defendants’ alleged violation of Plaintiffs’ rights under the Americans with 2 Disabilities Act and Civil Code Section 54 and 54.1 and any and all disabled-access codes, 3 guidelines, laws and regulations.. 11. 4 Except as to reasonable attorneys’ fees, litigation expenses and costs, which 5 shall be fixed by the court, this Consent Decree shall be a full, complete, and final disposition 6 and settlement of the below claims that have been or could have been alleged in the Complaint, 7 including but not limited to, claims for injunctive relief, declaratory relief, damages of any kind 8 (including, but not limited to, statutory and compensatory damages including personal and 9 bodily injury, consequential and punitive damages), administrative proceedings, and Plaintiff’s 10 claims for attorney fees, litigation expenses and costs. This Consent Decree was reached 11 through negotiations between the Parties. 12 13 JURISDICTION 14 12. The Parties agree that the Court has and shall retain jurisdiction to enforce the 15 provisions of this Consent Decree for one year after the Defendants’ issuance of the Notice of 16 Completion identified in this Consent Decree. 13. 17 In accordance with the provisions of Title 28, U.S.C. Section 636(c), each 18 undersigned Party in the above-captioned civil matter hereby voluntarily consents to have a 19 United States Magistrate, as may be assigned by the court and consented to by the parties, to 20 conduct any and all further proceedings in the case related to enforcement of this Consent 21 Decree. Appeal from such enforcement orders shall be taken directly to the United States 22 Court of Appeals for the Ninth Circuit. 14. 23 The Parties agree that if they or any of them seek Court enforcement of this 24 Consent Decree, any such enforcement will be by noticed motion, limited to an order for 25 specific performance of this Consent Decree, and that a contempt citation or decree will not be 26 sought by any Party. 27 //// 28 158 HILLTOP CRESCENT WALNUT CREEK, CA 94597-3452 (925) 588-0401 Full Consent Decree Order and Judgment: Case No. CV-10-4842 EMC 4 1 2 AGREEMENTS CONCERNING INJUNCTIVE RELIEF 15. Specific Agreed Remediations. As a part of a compromise of global liability, 3 the Defendants each agree that they shall be jointly and severally responsible to perform the 4 following work to provide disabled access at the Subject Restaurant (“Specific Agreed 5 Remediations”): a. Upon full remediation of the premises as outlined herein, display the 6 7 international symbol of accessibility at both entrances; b. Adjust the closers for both entrance doors so that the amount of push 8 9 pressure required to operate is no greater than 5 lbs; 10 c. Ensure that the push side of both entrance doors have a push plate or other 11 uninterrupted surface along the bottom surface of the door that is a minimum of 10 inches high 12 above the finished floor; 13 d. Subject to reasonable construction tolerances, create fully-compliant level 14 door landings on each side of both entrances to the restaurant. On both the push and pull sides 15 of these doors the landings shall be kept clear and shall be configured level within 2 %. On the 16 push side of both doors, the landings shall extend a minimum of 48 inches beyond the face of 17 the closed door (measured perpendicular to the face of the closed door) and shall also extend a 18 minimum of 12 inches beyond the strike edge of the door. On the pull side, the landings shall 19 extend a minimum of 60 inches beyond the face of the closed door (measured perpendicular to 20 the face of the closed door) and shall extend a minimum of 24 inches beyond the strike edge of 21 the door; 22 e. Create an accessible circulation route throughout the restaurant that is 23 maintained at a 36 inches minimum between tables, counters and other chairs and objects while 24 placed in their usual occupied position (e.g., seats by seated customers); 25 26 f. Install a flip-up counter or use a clip board for customers to use to review/sign documents; 27 g. Provide one (1) accessible dining table located on accessible route and with 28 clear floor space that is located outside the general path of travel. Such table shall provide knee 158 HILLTOP CRESCENT WALNUT CREEK, CA 94597-3452 (925) 588-0401 Full Consent Decree Order and Judgment: Case No. CV-10-4842 EMC 5 1 space underneath that is a minimum of 30 inches wide, 27 inches high, and projects back 2 underneath the table a minimum of 19 inches. No pedestal support or pedestal base shall be 3 located anywhere within the rectangular dimension of the foregoing clear space; 4 h. Reconfigure and enlarge the layout of the restroom to incorporate portions of 5 adjacent areas outside the restroom to create a fully compliant single-occupancy restroom. The 6 enlarged restroom shall provide compliant turning space and transfer spaces in front of and 7 beside the toilet. 8 constructed accessible restroom, and provide compliant clear floor spaces, a path of travel to 9 fixtures and amenities, place all amenities within a compliant reach range, have an accessible 10 sink, provide compliant grab bars, proper signage, etc. (See Example of Title 24 Compliant 11 Design for Single Occupancy Restroom at Exhibit A) 12 reconstruction of the existing restroom in conformance with Oris Design Floorplan Exhibit B 13 will constitute full compliance with the requirements of this paragraph.) 14 16. The restroom shall fully comply as to all requirements for a newly- The Parties stipulate that the Performance Standards. Defendants shall perform the tasks and injunctive 15 relief work set forth in Exhibit B hereto, which is incorporated by reference herein as if set 16 forth in full, in accordance with the standards and specifications of the Americans with 17 Disabilities Act Accessibility Guidelines, effective January 26, 1992, and under California’s 18 Title 24, (2008), whichever, for any particular element, provides the strongest level of 19 protection to persons with disabilities. 20 may be made to the work set forth in Exhibit B, so long as they meet or exceed the 21 requirements of the forgoing paragraph and the standards and specifications identified in this 22 paragraphs. 23 17. The Parties agree that as work commences, changes The Defendants may, but are not required to, perform the work in compliance 24 with the 2010 ADA Standards for Accessible Design, which standards do not go into effect 25 until March 15, 2012. 26 18. Option to Close Facilities. In lieu of making modification to any particular 27 facility or amenity called for by this decree, the Defendant may choose to permanently 28 close/remove such facility, element or amenity from public use. Such facility, element or 158 HILLTOP CRESCENT WALNUT CREEK, CA 94597-3452 (925) 588-0401 Full Consent Decree Order and Judgment: Case No. CV-10-4842 EMC 6 1 amenity shall not be reopened or re-provided for public use without provision of full disabled 2 access pursuant to the terms of any applicable codes, regulations or guidelines for disabled 3 access applicable to the type of public use (if any) to which the property is put. 19. 4 As to all other work, Defendant shall submit plans and apply for any necessary 5 permits for this work within 60 days of the entry of this Consent Decree, and complete all such 6 work within 180 days of receiving permits, allowing for good faith interruptions due to 7 inclement weather, contractor unavailability, and other causes under the Doctrine of Force 8 Majeure. 9 permits. Defendants will provide written notice (“Notice of Completion”) by mail or facsimile 10 regarding the completion within thirty (30) days after completion of the work. Notice of 11 Completion shall be sent to Plaintiff c/o Plaintiff’s counsel as follows: Permits from the building department shall be secured for all work requiring TIMOTHY S. THIMESCH, ESQ., No. 148213 158 Hilltop Crescent Walnut Creek, CA 94597-3452 Fax: 888/210-8868 Attorneys for Plaintiff CRAIG YATES 12 13 14 20. 15 After providing Notice of Completion, Defendants shall then provide, upon 16 request (“Request for Inspection”). Plaintiff, his attorneys and consultants with physical access 17 to inspect, measure and photograph the facilities to verify that the completed work complies 18 with the terms herein. Any Request for Inspection shall be sent, via facsimile to counsel at the 19 fax numbers set forth in the following paragraph, fifteen (15) days of Plaintiff’s receipt of the 20 Notice of Completion, or said Request for Inspection is waived. If Plaintiff makes a Request 21 for Inspection, the parties shall cooperate to schedule the inspection on a reasonable date and 22 time, and the inspection shall be conducted so as not to interfere with Defendants’ business. If 23 following inspection, Plaintiff determines that Defendants are in violation of the Specific 24 Agreed Remediations of this Consent Decree, Plaintiff shall, within thirty (30) days of the 25 inspection, serve a Notice of Non-Compliance Following Inspection upon Defendants setting 26 forth with particularity the deficiencies, in accordance with the procedures set forth in the 27 following Section. 28 //// 158 HILLTOP CRESCENT WALNUT CREEK, CA 94597-3452 (925) 588-0401 Full Consent Decree Order and Judgment: Case No. CV-10-4842 EMC 7 1 2 NOTICE AND OPPORTUNITY TO CURE 21. Notice and Opportunity to Cure. Subject to the time limitations for a Request for 3 Inspection and Notice for Compliance Following Inspection as set forth in the preceding 4 paragraph, if at any time during which the court has jurisdiction to enforce this Consent Decree, 5 Plaintiff contends that Defendants have failed to comply with any aspect of this Consent 6 Decree, Plaintiff or his counsel shall promptly notify Defendants in writing, by first-class U.S 7 mail and facsimile, of perceived non-compliance, and give Defendants a sufficient opportunity 8 to cure any alleged deficiencies (“Notice of Non-Compliance”). Such Notice of Non- 9 Compliance from Plaintiff shall specify with particularity the perceived non-compliance and be 10 verified by Plaintiff. All Notices to Defendants shall be sent to both Defendants as follows: 11 22. 12 16 LAW OFF. OF FRANKIE F. YEUNG FRANKIE F. YEUNG, ESQ., No. 265014 1121 Vicente Street San Francisco, CA 94116 Fax: (415) 753-0310 Attorney for Defendants YOU SEE SUSHI; and IKUKO MIURA dba YOU SEE SUSHI 17 23. 13 14 15 THE BIERNAT LAW GROUP JAMES D. BIERNAT, ESQ., No. 75839 LISA L. PAN, ESQ., No. 188442 lpan@jdblawyers.com 345 Shoreway Road, Suite 101 San Carlos, California 94070-2708 Fax: (650) 802-8997 Attorneys for Defendant MIWAY, LLC Defendants shall be allowed sixty (60) days from the date of receipt of Plaintiff’s 18 Notice of Non-Compliance to meet and confer with Plaintiff and/or his representatives to 19 address any alleged deficiencies, non-compliance with disabled access laws or discrimination 20 (the “Initial Conference”) Defendants will then have thirty (30) days from the date of the 21 Initial Conference to dispute or sixty (60) days thereafter to commence correcting the 22 deficiencies or otherwise address Plaintiff’s concerns; provided, however, if Defendants cannot 23 reasonably correct the deficiencies or non-compliance within such time period, Defendants 24 shall have such reasonably longer period of time as is necessary to correct such deficiencies or 25 non-compliance (the “Cure Period”). 26 24. Notice of Non-Compliance to Defendants as provided above, the Initial 27 Conference and the Cure Period described above shall be prerequisites to Plaintiff taking any 28 judicial action for specific performance under this Consent Decree. 158 HILLTOP CRESCENT WALNUT CREEK, CA 94597-3452 (925) 588-0401 Full Consent Decree Order and Judgment: Case No. CV-10-4842 EMC 8 1 25. Covenant Not to Sue Subject to Plaintiff’s right to seek specific performance as 2 provided above, Plaintiff, and those acting on behalf of Plaintiff (including heirs, beneficiaries, 3 defendants, executors, administrators, successors and assigns) agrees not to file, or cooperate 4 with others in the filing of, lawsuits or administrative complaints for any claims regarding 5 disabled access or discrimination of any kind against Defendants and the Releasees, concerning 6 the Subject Restaurant, or any part thereof, that is the subject of the Lawsuit, in any state or 7 federal court or before any administrative body without first providing Defendants the Notice 8 of Non-Compliance, completion of the Initial Conference, and an opportunity to cure in 9 accordance with the Notice and Opportunity to Cure provisions of this Consent Decree. 10 11 12 AGREEMENT CONCERNING DECLARATORY RELIEF 26. In resolution of Plaintiff’s claim for declaratory relief, Defendants hereby 13 stipulate, that by this Consent Decree, the barriers identified herein for correction, at 14 paragraph 15, supra, constitute past and present violations of each Plaintiff’s rights under the 15 Title III of the Americans with Disabilities Act of 1990, and Civil Code Section 54 and 54.1. 16 Defendants agree that Plaintiff’s claim for statutory damages is inextricably intertwined with 17 his claims for injunctive relief. Defendants have agreed to conduct the barrier removals herein 18 as a result of the settlement of this action. 19 20 21 RESOLUTION OF STATUTORY DAMAGE CLAIMS 27. Although Defendants dispute that Plaintiff is entitled to recover damages in this 22 action, in compromise of Plaintiff’s claim, Defendants agree to pay Plaintiff the amount of 23 $12,000 in full satisfaction of all of Plaintiff’s claims for damages of any kind under Title III of 24 the ADA, and Civil Code Sections 52 and 54.3 or any other disabled-access law. One or more 25 checks totaling this amount shall be made payable to “TIM THIMESCH, In Trust,” and 26 delivered into Plaintiff counsel’s hands within 10 days of Parties’execution of this Consent 27 Decree. Defendants shall not be obligated to issue checks under this paragraph unless and 28 until Plaintiff first provides to defendants his counsel’s W-9. Plaintiff agrees to indemnify the 158 HILLTOP CRESCENT WALNUT CREEK, CA 94597-3452 (925) 588-0401 Full Consent Decree Order and Judgment: Case No. CV-10-4842 EMC 9 1 Defendants, and each of them, against any and all tax liability arising out of the settlement. 2 3 RESOLUTION OF CLAIM FOR ATTORNEYS FEES, LITIGATION EXPENSES AND 4 COSTS: The issue of Plaintiff’s attorneys’ fees, costs and litigation expenses shall be 28. 5 6 resolved by Plaintiff filing a motion for reasonable attorneys’ fees, costs and litigation expenses 7 with the court. 29. 8 Plaintiff shall be deemed the “prevailing party” to whom the court may award a 9 reasonable attorneys’ fee within the meaning of 42 U.S.C. §12205. Specifically the Parties 10 stipulate that Plaintiff has achieved a material alteration of the legal relationship of the parties, 11 and that, by permitting the court to retain jurisdiction to enforce this Consent Decree, that 12 alteration has been judicially sanctioned. see, Jankey v. Poop Deck, 537 F.3d 1122 (9th Cir. 13 2008). 14 30. Further, notwithstanding any statement in this Consent Decree regarding 15 Defendants’ dispute of the allegations and/or non-admission and denial of liability, the Parties 16 stipulate that Plaintiff has been denied rights under Cal. Civil Code §51(f) and is therefore 17 entitled to an award of reasonable attorneys’ fees under Cal Civil Code §52. Doran v. N. State 18 Grocery, Inc., 137 Cal. App. 4th 484, 486, 39 Cal. Rptr. 3d 922, 923 (Cal. Ct. App. 2006) 19 31. Defendants hereby stipulate in this action to the reasonableness of Plaintiff 20 counsel’s hourly rates of $465 per hour for attorney Timothy S. Thimesch, $450 per hour for 21 attorney Gene A. Farber, and $365 per hour for attorney Suzanna Farber, and that Defendants 22 will make no attempt to oppose such rates, and that these stipulated-rates shall be used by the 23 Court in calculating the lodestar in the fee motion. 24 32. The Parties have already exchanged redacted attorneys’ and cost invoices and 25 other supporting documentation. Following execution of this Consent Decree, Plaintiff shall, at 26 his option, disclose invoice entries setting forth the actual legal services rendered, or 27 alternatively, Plaintiff may submit the timesheets en camera for Court review. Plaintiff may, 28 but it not required to, redact specific details to protect attorney-client and work-product 158 HILLTOP CRESCENT WALNUT CREEK, CA 94597-3452 (925) 588-0401 Full Consent Decree Order and Judgment: Case No. CV-10-4842 EMC 10 1 privileged communications. Further, following execution of this Consent Decree, and upon 2 request of the opposing Party, the Parties will, at their option (without formal discovery) 3 documentation of their attorney’s and paralegal’s fees, litigation expenses and costs, as well as 4 hourly rates, incurred in this action up to the time of the hearing. 5 33. During the proceedings herein stated, the parties shall make no motion seeking 6 dismissal of any supplemental claims under 28 USC 1367, and further stipulate that on no 7 occasion following the execution of this Consent Decree shall they allege that grounds 8 supporting such a motion exist in the present case. 9 34. Plaintiff’s motion for reasonable attorneys’ fees, litigation expenses and costs 10 incurred to obtain the relief agreed upon herein shall be filed within 21 days of the execution of 11 this Consent Decree. In the event Plaintiff later seeks attorneys fees/costs to enforce this 12 Consent Decree, any such motion shall be filed in accordance with FRCP 54(d)(2)(B)(i) and 13 LR 54-1 through 54-5, or as the parties may stipulate at the time of the enforcement motion. 14 35. Joint and Several Liability. Defendants agree they are jointly and severally 15 liable for any amounts awarded by the court on Plaintiff’s outstanding and unresolved claim for 16 statutory attorney’s fees, litigation expenses and costs. The parties hereby reserve this claim 17 for resolution by the court. 18 19 36. Full Rights of Review Retained. The decision by the District Court shall be subject to appeal by all parties. 20 21 22 RELEASE AND WAIVER OF CIVIL CODE SECTION 1542 37. Except for all obligations required in this Consent Decree, Plaintiff, on behalf of 23 himself, and his predecessors, successors, heirs, partners and assigns, releases and forever 24 discharges each Defendant and his/her or its partners, managers, members, employees, agents, 25 attorneys, heirs, predecessors, and representatives (collectively “Releasees”), from all claims, 26 demands, damages, actions, and causes of action of whatever kind or nature, presently known 27 or unknown, arising out of or in any way connected with the Lawsuit. 28 158 HILLTOP CRESCENT WALNUT CREEK, CA 94597-3452 (925) 588-0401 38. Plaintiff understands and agrees that there is a risk and possibility that, Full Consent Decree Order and Judgment: Case No. CV-10-4842 EMC 11 1 subsequent to the execution of this Consent Decree, he will incur, suffer, or experience some 2 further loss or damage with respect to the Lawsuit that is unknown or unanticipated at the time 3 this Consent Decree is entered. 4 39. Except for all obligations required in this Consent Decree, the Parties intend that 5 this Consent Decree apply to all past, present or future loss with respect to the Lawsuit, except 6 those caused by the Parties subsequent to the execution of this Consent Decree. Therefore, 7 except for all obligations required in this Consent Decree, this Consent Decree shall apply to 8 and cover any and all claims, demands, actions and causes of action by Plaintiff with respect to 9 the Lawsuit, whether the same are known, unknown or hereafter discovered or ascertained, and 10 the provisions of Section 1542 of the California Civil Code are hereby expressly waived. 11 Section 1542 provides as follows: 12 A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE 13 CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR 14 AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR 15 HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT 16 WITH THE DEBTOR. 17 18 19 20 NONDISPARAGEMENT 40. The Parties shall not make any disparaging comments and/or statements about the other. 21 22 COOPERATION 23 41. Each Party, without further consideration, and upon request of the other Party, 24 agrees to execute and deliver such other documents and to take such other action as may be 25 necessary or appropriate to give full force and effect to the terms and intent of this Consent 26 Decree. The duty to cooperate includes, but is not limited to, preparing, executing and filing 27 any and all documents necessary to effect the dismissal of the Lawsuit with prejudice as 28 contemplated hereby. 158 HILLTOP CRESCENT WALNUT CREEK, CA 94597-3452 (925) 588-0401 Full Consent Decree Order and Judgment: Case No. CV-10-4842 EMC 12 1 CONSENT DECREE BINDING ON PARTIES AND SUCCESSORS IN INTEREST 42. 2 The Parties agree and represent that they have entered into this Consent Decree 3 voluntarily, under no duress, and wholly upon their own judgment, belief, and knowledge as to 4 all matters related to this Consent Decree, after having received full advice from counsel. 43. 5 This Consent Decree shall be binding on Plaintiff and Defendants and any 6 successors in interest. Consent Decree. The Parties have a duty to so notify all such successors 7 in interest of the existence and terms of this Consent Decree during the period of the Court’s 8 retains jurisdiction to enforce this Consent Decree. 9 10 JOINT PREPARATION AND SEVERABILITY: 44. 11 This Consent Decree is deemed jointly prepared by all Parties and shall not be 12 strictly construed against any Party as its drafter. If any term of this Consent Decree is 13 determined by any court to be unenforceable, the other terms of this Consent Decree shall 14 nonetheless remain in full force and effect. 15 16 SIGNATORIES BIND PARTIES: 45. 17 18 Signatories on the behalf of the Parties represent that they are authorized to bind the Parties to this Consent Decree. 46. 19 This Consent Decree may be executed in counterpart signatures, and such 20 signatures may be attached in faxed or .PDF counterparts, each of which shall be deemed an 21 original, and which together shall constitute one fully executed Consent Decree. The Effective 22 Date of the Consent Decree shall be the date on which the last of any Party’s signature is 23 affixed to the Consent Decree and delivered to counsel for the other Parties. 47. 24 This Consent Decree shall be deemed executed on the date on which the final 25 signature of the Parties is affixed hereto. 26 //// 27 28 158 HILLTOP CRESCENT WALNUT CREEK, CA 94597-3452 (925) 588-0401 Full Consent Decree Order and Judgment: Case No. CV-10-4842 EMC 13 08/11/2011 11:55 1 I4I 00 1 FAX FULL CONSENTDECRy. 2 48. This Consent Decree constitutes the entire agreement between the Parties on the 3 matters of Plaintiff's claims for injunctive relief declaratory relief, demages, and attorney fees, 4 litigation expenses and costs, and no other statement, promise, or agreement, either written or 5 oral, made by any of the Parties or agents of any of the Parties, that is not contained herein. 6 shall be enforceable regarding the matters described 7 8 Dated: /IC!i ..1/, V II Dated: CkJA.kf.! I', -!Oll 9 10 11 12 13 By: Marilyn Habeeb, Manager 14 15 Dated: _ 16 YOUSEESusm 17 By: _ 18 Title:, 19 _ 20 21 Dated: 22 _ IKUKO MIURA 23 24 1/11 25 26 27 28 tJroIoMD'LrwOlllaa ~HlLLTOPCIu!Ifl:EHr \1fALNUrCRl!l!l:, CA 94597.,]4Sl (925)~-t Fd COUIIltDeeree Order ••• Jadplelat: Cae No. CV-I0484Z EMC -14- a001 08/11/2011 11:55 FAX 1 FULL CONSENT DECREE 2 48. This Consent Decree constitutes the entire agreement between the Parties on the 3 matters of Plaintiff's claims for injunctive relief declaratory relief, damages, and attorney fees, 4 litigation expenses and costs, and no other statement, promise, or agreement, either written or 5 oral, made by any of the Parties or agents of any of the Parties, that is not contained herein, 6 shall be enforceable regarding the matters described 7 8 Dated: 41. 6" /1- 2•"/ , 9 10 11, Dated: Weal" qy Ae t a-;, )1axarii 12 MIWAY, 13 By Marilyn Habeeb, Manager' 14 15 Dated: 16 YOU SEE SUSHI 17 By: 18 Title: 19 OcArityv 20 21 Dated: 22 /1 'V- 73 2c (/ IKUKO MIURA 23 24 //// 25 26 27 28 IMHILLTOPCILET WALNUTCREEK, CA 94591-3452 (925y522-04M FEN Consent Decree Order sad admen& Case No. CV-10-41142 MC --14 1 2 APPROVED AS TO FORM: Dated: Aug. __, 2011 THIMESCH LAW OFFICES 3 4 /s/ Authorized Signed TIMOTHY S. THIMESCH, ESQ. Attorneys for Plaintiff CRAIG YATES 5 6 7 Dated: Aug. __, 2011 LAW OFF. OF FRANKIE F. YEUNG 8 9 /s/ Authorized Signed FRANKIE F. YEUNG, ESQ., Attorneys for Defendants YOU SEE SUSHI; and IKUKO MIURA dba YOU SEE SUSHI 10 11 12 13 Dated: Aug. 12 2011 __, THE BIERNAT LAW GROUP 14 15 /s/ Authorized Signed 16 Attorneys for Defendant MIWAY, LLC LISA L. PAN, ESQ., 17 18 ORDER 19 20 IT IS SO ORDERED. 21 22 23 24 . 25 26 27 26, Date: August 2011 HON. LAUREL BEELER MAGISTRATE JUDGE U.S. DISTRICT COURT 28 158 HILLTOP CRESCENT WALNUT CREEK, CA 94597-3452 (925) 588-0401 Full Consent Decree Order and Judgment: Case No. CV-10-4842 EMC 15 EXHIBIT A A EXHIBIT B B
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