CONSENT DECREE FOR INJUNCTIVE RELIEF AND [PROPOSED] ORDER

JESUS G. BERNAL, District 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:

5. Post Remediation Report. On or before August 1, 2020, Defendants shall produce to Plaintiff's counsel a report (the "Remediation Report") from a California Certified Access Specialist ("CASp") that certifies that: (i) all the deviations from Current Access Standards set forth in the ARCOR Report have been remediated and eliminated; (ii) that all of the subject features and elements identified in the ARCOR Report meet Current Access Standards; and (iii) that the work undertaken to remediate all the barriers and deviations from Current Access Standards did not create any new barriers or deviations from Current Access Standards.

NO DISMISSAL OR SETTLEMENT OF DAMAGES, ATTORNEY FEES LITIGATION EXPENSES AND COSTS:

6. The Parties are only settling matters connected with injunctive and equitable relief and they are not yet settling Plaintiff's damages, attorneys' fees, litigation expenses and costs. The Parties agree that by and through this Consent Decree for Injunctive Relief, Plaintiff is deemed to be the "prevailing party" in the action under both Title III of the ADA and California law and shall be entitled to receive statutory damages for at least two (2) incidents for violation of Section 51 of the California Civil Code (one instance of an encounter and one incident of deterrence, as those terms are defined in sections 52 and 55.6 of the Civil Code), as well as reasonable attorneys' fees, litigation expenses and costs pursuant to the ADA and sections 52 and 54.3 of the Civil Code. However, Defendants do not agree as to the amount of attorneys' fees, litigation expenses and costs in this matter or that Plaintiff is entitled to statutory damages for more than two (2) occasions of encounter or deterrence by a barrier or barriers.

ENTIRE CONSENT DECREE AND ORDER:

7. This Consent Decree for Injunctive Relief and Order constitutes the entire agreement between the signing Parties and no other statement, promise, or agreement, either written or oral, made by any of the Parties or agents of any of the Parties that is not contained in this written Consent Decree for Injunctive Relief and Order, shall be enforceable regarding the matters of injunctive relief described herein.

MUTUAL RELEASE AND WAIVER WITH RESPECT TO INJUNCTIVE RELIEF:

9. Except for all obligations required in this Consent Decree for Injunctive Relief and Order and the outstanding issues of Monetary Relief for damages, litigation expenses and costs as set forth above each of the Parties to this Consent Decree for Injunctive Relief and Order, on behalf of each, their respective agents, representatives, predecessors, successors, heirs, partners, and assigns, releases and forever discharges each other Party and all officers, directors, shareholders, subsidiaries, joint venturers, stockholders, partners, parent companies, employees, agents, attorneys, insurance carriers, heirs, predecessors, and representatives of each other Party, from all claims, demands, actions, and causes of action of whatever kind or nature, presently known or unknown, arising out of or in any way connected to obtaining injunctive and equitable relief based on the current condition of the Facility. This release does not extend to any real property or facility other than the Facility and shall not be deemed to apply to any modifications, alterations, structural repairs, additions or new construction subsequent to the remediation efforts required by Sections 3, 4 and 5 above.

10. If any provision of this Consent Decree for Injunctive Relief is held by a court of competent jurisdiction to be void, voidable, unlawful or unenforceable for any reason, in whole or in part, the remaining portions of this Consent Decree for Injunctive Relief will nevertheless continue with full force and effect, and the Parties agree a court of competent jurisdiction will have jurisdiction to reform such provision(s) to the extent necessary to cause it to give maxinnun legal effect to the intention of the Parties as expressed herein and the Parties agree to be bound by such reformation.

11. The Parties acknowledge that their respective attorneys have reviewed and drafted this Consent Decree for Injunctive Relief, and the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting Party shall not be employed in the interpretation of this Consent Decree for Injunctive Relief.

12. This Consent Decree for Injunctive Relief may be executed in counterparts, including electronic signatures and electronic copies such as PDFs, which, when counterparts have been executed by all of the Parties, shall constitute this Consent Decree for Injunctive Relief.

13. The individuals signing this Consent Decree for Injunctive Relief represent that they are authorized to bind their respective Party to this Consent Decree for Injunctive Relief.

PROPOSED] ORDER

Pursuant to the stipulation of the parties, and for good cause shown, IT TS SO ORDERED.

FILER'S ATTESTATION

Pursuant to Local Rule 5-4, I hereby attest that I, Anthony Goldsmith, attorney with Derby McGuinness & Goldsmith, LLP, received the concurrence of Estefan M. Encarnacion in the filing of this document.