CONSENT DECREE AND [PROPOSED] ORDER FOR INJUNCTIVE RELIEF, DAMAGES, AND ATTORNEY FEES, LITIGATION EXPENSES, AND COSTS

MARIA-ELENA JAMES, Magistrate Judge.

1. Plaintiff JAMES LLEWELLYN filed a Complaint in this action on October 31, 2016, 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 recovery of damages for discriminatory experiences, denial of access, and denial of civil rights against Defendants HARDEV SINGH dba THE GREENERY RESTAURANT; DIABLO HILLS GOLF ASSOCIATES, INC (the "Defendants"), relating to disability discrimination at Defendant's public accommodations as of September 2 and 14, 2016. Plaintiff has alleged that Defendants violated Titles III of the ADA; sections 51, 52, 54, 54.1, 54.3, and 55 of the California Civil Code, sections 17200 et seq. of the Business & Professions Code, and sections 19953 et seq. of the Health and Safety Code by failing to provide full and equal access to the patrons of the Greenery Restaurant located at 1551 Marchbanks Drive, Walnut Creek, California, at the Diablo Hills Golf Course. Defendants dispute Plaintiff's claims.

2. In order to avoid the costs, expense, and uncertainty of protracted litigation, Plaintiff and Defendants (together, the "Parties") agree to entry of this Consent Decree and Order to resolve all claims regarding injunctive relief, damages, and attorneys' fees, litigation expenses and costs, raised in the Complaint without the need for protracted litigation. Accordingly, the Parties agree to the entry of this Order without trial or further adjudication of any issues of fact or law concerning all of Plaintiff's claims for relief.

JURISDICTION:

3. The Parties to this Consent Decree and Order agree that the Court has jurisdiction of this matter pursuant to 28 U.S.C. § 1331 for alleged violations of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101 et seq. and pursuant to supplemental jurisdiction for alleged violations of California Civil Code sections 51, 52, 54, 54.1, 54.3, and 55.

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

SETTLEMENT OF INJUNCTIVE RELIEF:

4. This Order shall be a full, complete, and final disposition and settlement of Plaintiff's claims against Defendants for injunctive relief and damages that have arisen out of the subject Complaint.

5. The Parties agree and stipulate that the corrective work will be performed in compliance with the standards and specifications for disabled access as set forth in the California Code of Regulations, Title 24-2, and Americans with Disabilities Act Standards for Accessible Design, unless other standards are specifically agreed to in this Consent Decree and Order.

a. Remedial Measures: The corrective work agreed upon by the Parties to be performed is set forth in Attachment A, a set of plans proposed by defendants and red-line edited by Plaintiff's architect and expert, Gary Waters, and incorporated herewith. Defendants represent that the building under construction will be completed in full compliance with the California Building Code and access requirements. Defendants agree to undertake all of the respective remedial work as described by the red line edits of the plans. In the alternative, defendants may, at their discretion use alternative, fully compliant construction design and work under current standards of the California Building Code ("Title 24"), and approved by the relevant building department, to satisfy the requirement of this Consent Decree.

b. Training: Defendants agree that within 30 days after the re-opening of the restaurant, Defendants will make the following policy commitments: All staff, including managers, will be trained to offer reasonable accommodations for disabled persons, including affirmatively inquiring with disabled patrons as to whether they may need any reasonable accommodations. Defendants agree to make reasonable accommodations in their policies and practices when interacting with disabled patrons.

c. Timing: Defendants shall have until the restaurant re-opens to comply with the remedial requirements of section 5(a) above. Defendants shall have until 30 days after the restaurant re-opens to complete the training requirements of section 5(b) above. In the event that unforeseen difficulties prevent Defendants from completing any of the agreed-upon injunctive relief, Defendants or their counsel will notify Plaintiff's counsel in writing within five days of discovering the delay. Plaintiff will have thirty (30) days to investigate and meet and confer, and to approve the delay by stipulation or otherwise respond to Defendants' notice. If the Parties cannot reach agreement regarding the delay within that time period, Plaintiff may seek enforcement by the Court. Defendants or their counsel will notify Plaintiff's counsel when the corrective work is completed, and, whether completed not, will provide a status report to Plaintiff's counsel no later than 120 days from the Parties' signing of this Consent Decree and Order.

d. Defendants will notify Plaintiff in writing at the end of 120 days from the Parties' signing of this Consent Decree and Order as to the current status of agreed-to injunctive relief, and every 60 days thereafter until all access is provided. If Defendants fail to comply with the terms of this Consent Decree and Order on the agreed upon timetable and/or fail to provide timely written status notification, and Plaintiff files a motion with the Court to obtain compliance with these terms, Plaintiff reserves the right to seek additional attorney fees for any compliance work necessitated by Defendants' failure to comply with this agreement. If the Parties disagree, such fees, if any, shall be set by the Court.

DAMAGES, ATTORNEYS' FEES, LITIGATION EXPENSES, AND COSTS:

6. Defendants agree to pay Plaintiff a total of $21,000 for Plaintiff's damages. Defendant agrees to pay for Plaintiff's attorney fees, litigation expenses, and costs in the amount of $34,000. These respective amounts shall be paid in installments as follows. The first installment of $27,500 shall be delivered by noon on July 7, 2017. Additional $27,500 installment will be delivered to Paul Rein's office by noon on August 4, 2017. Each installment shall be paid by check payable to "PAUL L. REIN IN TRUST FOR JAMES LLEWELYN" and delivered to Plaintiff's counsel's office, located at 200 Lakeside Drive, Suite A, Oakland California.

ENTIRE CONSENT DECREE AND ORDER:

7. This Consent Decree and Order and Attachment A constitute the entire agreement between the signing Parties on the matters of injunctive relief, 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 and Order, shall be enforceable regarding the matters of injunctive relief described herein. The Court will retain jurisdiction to enforce this decree. When Defendants notify Plaintiff's attorney that all work on the restaurant is complete, Plaintiff's attorney may, at his option, seek a cooperative site inspection if he makes such a request within 30 days of receiving notice from Defendants of completion of the work. No fees or costs for Plaintiff's work will be charged for such an inspection, if any is done.

CONSENT DECREE AND ORDER BINDING ON PARTIES AND SUCCESSORS IN INTEREST:

8. This Consent Decree and Order shall be binding on Plaintiff, Defendant, and any successors-in-interest. Defendant has a duty to so notify all such successors-in-interest of the existence and terms of this Consent Decree and Order during the period of the Court's jurisdiction of this Consent Decree and Order.

MUTUAL RELEASE AND WAIVER OF CIVIL CODE SECTION 1542:

9. Each of the Parties to this Consent Decree and Order understands and agrees that there is a risk and possibility that, subsequent to the execution of this Consent Decree and Order, any or all of them will incur, suffer, or experience some further loss or damage with respect to the lawsuit that is unknown or unanticipated at the time this Consent Decree and Order is signed. Except for all obligations required in this Consent Decree and Order, the Parties intend that this Consent Decree and Order apply to all such further loss with respect to the lawsuit, except those caused by the Parties subsequent to the execution of this Consent Decree and Order. Therefore, except for all obligations required in this Consent Decree and Order, this Consent Decree and Order shall apply to and cover any and all claims, demands, actions, and causes of action by the Parties to this Consent Decree with respect to the lawsuit, whether the same are known, unknown, or hereafter discovered or ascertained, and the provisions of Section 1542 of the California Civil Code are hereby expressly waived. Section 1542 provides as follows:

A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.

10. Except for all obligations required in this Consent Decree and Order each of the Parties to this Consent Decree 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 with the lawsuit.

TERM OF THE CONSENT DECREE AND ORDER:

11. This Consent Decree and Order shall be in full force and effect for a period of sixty (60) months after the date of entry of this Consent Decree and Order by the Court.

SEVERABILITY:

12. If any term of this Consent Decree and Order is determined by any court to be unenforceable, the other terms of this Consent Decree and Order shall nonetheless remain in full force and effect.

SIGNATORIES BIND PARTIES:

13. Signatories on the behalf of the Parties represent that they are authorized to bind the Parties to this Consent Decree and Order. This Consent Decree and Order may be signed in counterparts and a facsimile signature shall have the same force and effect as an original signature.

Approved as to form:

ORDER

Pursuant to stipulation, and for good cause shown, IT IS SO ORDERED.