Free Response in Opposition to Motion - District Court of California - California

Case 3:07-cv-02394-LAB-WMC

Document 15

Filed 04/01/2008

Page 1 of 12

RELEASE AND SETTLEMENT AGREEMENT

SECTION 1.1
This Settlement effective

THE PARTIES TO BE BOUND Agreement (the. "Agreement") 1999 is made Date")

the 12th day of February,

("the Effective

by and between

KAREL SPIKES, Plaintiff,

on the one hand and (collectively "the

JOSEPH SCIUTO dba LAMPLIGHTER
Part ies")
.

on the other

SECTION 1.2
A. WHEREAS,

RECITALS

on October 30, 1998, Plaintiff caused to be
and on December 17, 1998 caused to be

filed a civil complaint filed a First Amended Court for the Southern which was entitled

Complaint District

in the United States District of California ("the Court"), et.

SPIKES v. JOSEPH SCIUTO dba LAMPLIGHTER 10, inclusive,

al. and DOES 1 throuGh (hereinafter referred

Case No. 98 cv 1980 K (JAH) The COMPLAINT practices in

to as "the COMPLAINT"). discriminatory

alleged causes of action charging public accommodations
statutes.

under a number

of various theories

and

B.

WHEREAS,

the COMPLAINT

pertained

to a facility

located "the

at 817 West Washington,
PROPERTY.")

San Diego, California,

(hereinafter

C.

NOW THEREFORE,

based on the covenants

and promises

contained below, the parties have agreed to enter into this
3/29/99
Ed.

1

Ex'hthff,

""C,."{."", -

{

---

- -

Case 3:07-cv-02394-LAB-WMC

Document 15

Filed 04/01/2008

Page 2 of 12

Agreement SECTION
A .

on the terms set forth below. SPECIFIC TERMS

2.1
Recitals:

The Recitals Agreement, Agreement.

set forth herein are an integral

part of this of this

and shall be used in any interpretation

B.

Performance Bv the Defendant:
warrants, promises and covenants to undertake

The Defendant the following 1. following

actions

and performances: June 1, 1999, Defendant to bring its facility Disabilities Act shall perform into compliance the

On or before modifications with

with the Americans the California

("ADA") and Title 24 of

Code of Regulations: Defendant shall modify the front entrance by removing a portion of the interior wall which faces the street for the purpose of increasing the turning radius at the entrance. Defendant shall provide seating at the tables in the dining/bar area which are accessible to people in wheelchairs, in compliance with the ADA. Defendant shall offer the same service to people in wheelchairs at these tables as is provided to customers sitting at the bar. Defendant shall train its personnel regarding this policy. Defendant shall modify its bathroom to comply with the ADA including, but not limited to, installing grab bars, installing appropriate 2

a.

b.

c.

3/29/99

Ed.

Exhibit2 .
'-z.,

'..

-- ---.

Case 3:07-cv-02394-LAB-WMC

Document 15

Filed 04/01/2008

Page 3 of 12

signage, providing knee clearance at the lavatory, installing compliant faucet handles, lowering the paper towel dispenser and mirror, installing compliant handles on the bathroom door.

2.

On or before April

15, 1999, Defendant,

JOSEPH SCIUTO

dba LAMPLIGHTER Thousand Dollars

shall pay to the Plaintiff ($4,000.00).

the total sum of Four to resolve The

This sum is intended attorney's

Plaintiff's settlement

claim for damages,

fees and costs.

check shall be made payable

to "the Amy B. Vandeveld

Client Trust Account." C. Performance Bv the Plaintiff and His Counsel: to

The Plaintiff undertake 1. COMPLAINT.

and his counsel promise and covenant actions and performances: Dismissal with prejudice

the following

To file a Stipulated Said Dismissal

of the

shall be filed in the United States District of California upon

District Court for the Southern completion of the above-described

modifications.

D.
1.

Mutual Releases:
For valuable consideration, by, the receipt and adequacy on the one of

which are hereby acknowledged hand, and (b) the Defendant themselves assigns,

(a) the Plaintiff,

on the other hand, on behalf of heirs, executors, employees, directors, administrators,

and their respective

successors,

predecessors,

agents, attorneys, partners and

past, present

and future officers,

3/29/99

Ed.

3

Exhibit

-1. _.

'}

Case 3:07-cv-02394-LAB-WMC

Document 15

Filed 04/01/2008

Page 4 of 12

RELEASE AND SETTLEMEN'l' AGREEMENT

SECTION

1.1

THE PARTIES Agreement

TO BE BOUND (the "Agreement") is made

This Settlement effective

May 27, 2004,

("the Effective

Date") by and between

KAREL SPIKES (hereinafter ~SPIKES"), on the one hand and BOTTLE
SHOP and GARGANO FAMILY TRUST on the. other. BOTTLE SHOP and

GARGANO FAMILY TRUST are hereinafter referred to as ~the Defendants". The Defendants and the Plaintiff are hereinafter

collectively referred to as "the Parties".
SECTION 1.2 RECITALS

A.

WHEREAS, on April 26, 2004, Plaintiff caused to be

filed a Civil Complaint in the United States District Court for
the Southern entitled District of California ("the Court"), which was

SPIKES v. BOTTLE SHOP et al., USDC Case No. 04 cv 0864 J to as "the COMPLAINT")
.

(BLM) (hereinafter referred

.

The

COMPLAINT alleged causes of action charging discriminatory practices and architectural barriers in public accommodations under a number of various theories and statutes.
B. WHEREAS, the COMPLAINT pertains to a facility located "the

at 2447 Fletcher Parkway,
PROPERTY.")

EI Cajon, California,

(hereinafter

C. contained Agreement

NOW THEREFORE,

based on the covenants

and promises

below, the parties

have agreed to enter into this

on the terms set forth below.

Spikes v. Bottle Shop June 21, 2004 Edition

Exhibit L '-' Lf

Case 3:07-cv-02394-LAB-WMC

Document 15

Filed 04/01/2008

Page 5 of 12

SECTION 2.1 A. Reci 121s :

SPECIFIC

TERMS

The Recitals Agreement,
Agreement.

set forth "herein are an integral

part of this of this

and shall be used in any interpretation

B.
1.

Performance Bv Defendants:
Defendants warrant and promise that it shall perform

the following modifications to the PROPERTY which comply with the Americans with Disabilities Act Accessibility Guidelines (~ADAAG") and Title 24 of the California Code of Regulations
(~Title 24"):

a)

Parkinq

Defendants shall modify the parking lot to provide a van accessible parking space reserved for people with disabilities which complies with the Americans with Disabilities Act Accessibility Guidelines (~ADAAG") and Title 24 of the California Code of Regulations (~Title

24")

.

b)

Path of Travel

Defendants shall affix or remove the loose doormat at the front entrance. The ramp from the front entrance to the main dining area shall be modified so that the slope does not exceed 8.33 percent. c) Counter

Defendants shall modify the service counter so that it provides a lowered portion which is a minimum of 36 inches long and between 28 and 34 inches high or, in the alternative, a fold-down shelf which has the same dimensions.

d)

Restrooms

Defendants shall modify the restroom to provide accessibility for people with disabilities, although Plaintiff concedes that full accessibility is not readily
Spikes v. Bottle Shop June 21, 2004 Edition

2

Exhibit

t'

..

5

Case 3:07-cv-02394-LAB-WMC

Document 15

Filed 04/01/2008

Page 6 of 12

achievable. The modifications shall include the following: the paper towel and soap dispenser shall be relocated so that the operable parts are no more than 40 inches from the finished floor. The locking mechanism on the door shall be replaced so that they do not require tight grasping or twisting to operate. The lavatory pipes shall be wrapped. The bottom of the mirror shall be lowered so that it is not higher than 40 inches. The coat hook. shall be relocated so that it is not more than 48 inches from the finished floor. Two compliant grab bars shall be installed. The toilet paper dispenser shall not be more than 12 inches from the front of the commode. 2. On or before June 27, 2004, Defendants shall pay to the

Plaintiff the sum of Two Thousand Dollars ($2,000.00). This sum
is intended including costs. to resolve Plaintiff's claim for statutory attorney's damages,

damages

for physical

injuries,

fees and to

Said payment

shall be by check made payable directly Client Trust Account. and His Counsel: to

the Amy B. Vandeveld C.

Perfor.mance Bv the Plaintiff

The Plaintiff undertake 1.

and his counsel promise and covenant actions and performances: Dismissal with prejudice

the following

To file a Stipulated

of the

COMPLAINT.
District

Said Dismissal shall be filed in the United States
District of California upon

Court for the Southern

receipt of the funds referenced

in Paragraphs

2.1 B. 2 and 3,

above. D.
1.

Mutual Releases:
For valuable consideration, by, the receipt and adequacy on the one of

which are hereby acknowledged hand, and themselves (b) the Defendants

(a) the Plaintiff,

on the other hand, on behalf of heirs, executors, administrators,

and their respective

Spikes v. Bottle Shop June 21, 2004 Edition

3

-.
Exhibit _~ b

Case 3:07-cv-02394-LAB-WMC

Document 15

Filed 04/01/2008

Page 7 of 12

RELEASE AND SETTLEMENT AGREEMENT

SECTION 1.1
This Settlement effective December

THE PARTIES TO BE BOUND Agreement (the "Agreement") ("the Effective uSPIKES"), is made

10, 2003,

Date") by and on the one hand and

between KAREL SPIKES

(hereinafter

SABRI YAKO dba COUNTRY TIME FOOD MARKET (erroneously sued herein
as uCOUNTRY TIME FOOD MARKET, INC. dba DUKE'S LIQUOR (hereinafter DRIVE-IN"), collectively

QAIS SAKO and SUHAM SAEED on the other referred Plaintiff
Parties".

to as Uthe Defendants"). are hereinafter

The Defendants referred

and the

collectively

to as "the

SECTION 1.2 A. WHEREAS,

RECITALS on September 16, 2003, Plaintiff caused to be Court for

filed a Civil Complaint the Southern entitled District

in the United States District ("the Court"),

of California

which was

SPIKES v. COUNTRY TIME FOOD MARKET,

INC. et al., USDC to as "the

Case No. 03 cv 1869 L (LSP) (hereinafter referred COMPLAINT"). discriminatory accommodations B. The COMPLAINT practices

alleged causes of action charging barriers in public

and architectural

under a number of various theories the COMPLAINT pertains

and statutes. located

WHEREAS,

to a facility

at 7029 El Cajon Boulevard,
"the PROPERTY.")

San Diego, California,

(hereinafter

C. contained

NOW THEREFORE,

based on the covenants

and promises

below, the parties have agreed to enter into this

Exhibit)

~ ~w_...

7

Case 3:07-cv-02394-LAB-WMC
I --

Document 15

Filed 04/01/2008

Page 8 of 12

Agreement on the terms set forth below.
SECTION 2.1

SPECIFIC TERMS

A.

Recita1s:

The Recitals set forth herein are an integral part of this
Agreement,
Agreement.

and shall be used in any interpretation

of this

B.

Perfor.mance Bv Defendants: warrant and promise that they have performed the

Defendants

following modifications

at the PROPERTY:

A.

Parkina

On or before April 10, 2004, Defendants shall modify the parking lot to provide a van accessible parking space reserved for people with disabilities which complies with the Americans with Disabilities Act Accessibility Guidelines (~ADAAG") and Title 24 of the California Code of Regulations (~Title 24"). The space shall be located closest to the front entrance so that a person parking in the space will not be required to travel behind a space other than the accessible space to reach the front entrance. The words ~NO PARKING" shall be included in the access aisle, pursuant to Title 24. Signage shall be installed which notifies customers that vehicles illegally parked in accessible spaces will be towed. If the City does not approve the installation of the space, Defendants shall obtain written verification from the City confirming this rejection. The Defendants shall promptly provide a copy of this written verification to Plaintiff's counsel. If the City rejects the installation of an accessible space, Defendants will install bollards or a chain link fence, or some other device to preclude customers from parking in the lot adjacent to the entrance to the facility. If the City precludes Defendants from blocking access to the lot, Defendants shall obtain written verification of the City's position and shall promptly provide a copy of this verification to Plaintiff's counsel.

B.

Path of Travel

Defendants shall ensure that the store aisles have clear widths a minimum of 36 inches if items are

Case 3:07-cv-02394-LAB-WMC
(---

Document 15

Filed 04/01/2008

Page 9 of 12

displayed on one side and 42 inches if items are displayed on both sides. Defendants shall relocate merchandise to provide a clear path of travel to the
restroom.

2.

Defendants shall pay to the Plaintiff the sum of One

Thousand Dollars ($1,000.00). This sum is intended to resolve
Plaintiff's claim for statutory directly damages. Said payment shall be

by check made payable

to "KAREL SPIKES"

and shall be

made in two installments.
before before January 10, 2004. February 10, 2004.

The first installment is due on or
The second installment is due on or

3.
Dollars payment

An additional payment of Two Hundred and Seventy Five
($275.00) shall be made by February shall resolve Plaintiff's 10, 2004. Said Said payment

claim for costs.

shall be made payable to "the Amy B. Vandeveld Account." Plaintiff

Client Trust

agrees to waive his claim for attorney's

fees.
C. Perfor.mance Bv the Plaintiff and His Counsel: and covenant to

The Plaintiff and his counsel promise undertake 1. COMPLAINT. District receipt the following

actions and performances: Dismissal with prejudice of the States upon

To file a Stipulated Said Dismissal

shall be filed in the United District of California in Paragraphs

Court for the Southern of the funds referenced

2.1 B. 2 and 3,

above. D.
1.

Mutual Releases:
For valuable consideration, the receipt and adequacy of

(January

6, 2004 Edition)

3

Exhibit

-~r--'"<; -1

Case 3:07-cv-02394-LAB-WMC

Document 15

Filed 04/01/2008
...

Page 10 of 12

I'

I
I

\
, ,
I

i

.

I

/" ...... "'J'''

.r.;... '.£.. -oJ

(s:. .....I. ISI

n

...... r:J'. '..0 '.... ....

......
I:»

-'

0
I

6

)..1) ......'
;u

.r.;...

yJ ....
f_1l

Gt Gt co

d

Exhibit -~-'/V

Case 3:07-cv-02394-LAB-WMC

Document 15

Filed 04/01/2008

Page 11 of 12

--

-

-

l

.

Case 3:07-cv-02394-LAB-WMC

Document 15

Filed 04/01/2008

Page 12 of 12

-----.

I'
~.
r'

-,;. .....

'.

..

.'

Exhibit