1 PAUL L. REIN, Esq., (SBN 43053) PATRICIA BARBOSA, Esq., (SBN 125865)
2 JULIE MCLEAN, Esq. (SBN 215202) LAW OFFICES OF PAUL L. REIN
3 200 Lakeside Drive, Suite A Oakland, CA 94612
4 (510) 832-5001

5 Attorneys for Plaintiff ERNESTINA SALDANA-NEILY
6

7

UNITED STATES DISTRICT COURT

8

NORTHERN DISTRICT OF CALIFORNIA

9

10 ERNESTINA SALDANA-NEILY

11

Plaintiff,

12 v.
13

14 TACO BELL OF AMERICA, INC.;

DOROTHY M. HIURA TRUST; and

15 DOES 1-25; HEDIA PETROLEUM,

INC., dba CAMPBELL UNION

16 76; BOZORGHADAD TRUST; and

DOES 26-50, Inclusive,

17

Defendants.

18

/

CASE NO. Civil Rights
COMPLAINT FOR DENIAL OF ACCESS RIGHTS TO DISABLED PERSONS IN VIOLATION OF TITLE III OF THE AMERICANS WITH DISABILITIES ACT OF 1990, AND OF CALIFORNIA LAWS GUARANTEEING FULL AND EQUAL ACCESS TO PUBLIC FACILITIES; INJUNCTIVE RELIEF AND DAMAGES PER 42 USC 12101 et seq.; CALIFORNIA CIVIL CODE §§ 51, 52, 54, 54.1, 54.3 AND 55; CALIFORNIA HEALTH AND SAFETY CODE §§ 19955-19959
DEMAND FOR JURY TRIAL

19

20

Plaintiff ERNESTINA SALDANA-NEILY complains of Defendants

21 TACO BELL OF AMERICA, INC.; DOROTHY M. HIURA TRUST; HEDIA

22 PETROLEUM, INC., dba CAMPBELL UNION 76; BOZORGHADAD TRUST; and DOES

23 1-50, Inclusive, and alleges as follows:

24

25

FIRST CAUSE OF ACTION: DAMAGES AND INJUNCTIVE RELIEF

FOR DENIAL OF FULL AND EQUAL ACCESS TO A PUBLIC

26

ACCOMMODATION: PUBLIC FACILITIES IN A PUBLIC FACILITY

(§§19955 Et Seq., Health & Safety Code, §§54, et seq. Civil Code)

27

28
L A W O F F I C ES O F
PAUL L. REIN
200 L A K E S ID E D R ., S U I T E A O A K L A N D, C A 94612-3503
(510) 832-5001

1. SUMMARY: This case involves the denial of accessible

COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES

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1 parking, accessible paths of travel, and accessible restroom

2 facilities, to Plaintiff ERNESTINA SALDANA-NEILY at a Taco Bell

3 Restaurant located in Campbell, California, and accessible

4 facilities at the Campbell Union 76 Station located down the

5 street, resulting in a humiliating bodily functions accident.

6 Plaintiff ERNESTINA SALDANA-NEILY is a physically disabled person

7 who requires the use of a wheelchair and is unable to use public

8 facilities which are not accessible to disabled members of the

9 public. ERNESTINA SALDANA-NEILY was denied her Civil Rights to

10 full and equal access at these facilities, under both California

11 law and federal law, because they were not, and are not now,

12 properly accessible to physically disabled persons who use

13 wheelchairs. Plaintiff seeks injunctive relief to require

14 Defendants to make these facilities accessible to disabled persons,

15 and to ensure that all disabled patrons will be provided accessible

16 parking, entry, paths of travel, and restroom facilities.

17 Plaintiff also seeks recovery of damages for her personal injuries

18 and discriminatory experiences and for the continuing day-to-day

19 denial of access which results from defendants’ failure to provide

20 accessible facilities. Plaintiff ERNESTINA SALDANA-NEILY also

21 seeks recovery of statutory attorney fees, litigation expenses and

22 costs.

23

2. JURISDICTION: This Court has jurisdiction of this action

24 pursuant to 28 USC §1331 for violations of the Americans with

25 Disabilities Act of 1990, 42 USC 12101 et seq. Pursuant to pendant

26 jurisdiction, attendant and related causes of action arising from

27 the same facts are also brought under California law, including but

28 not limited to violations of California Government Code §4450 et

L A W O F F I C ES O F
PAUL L. REIN
200 L A K E S ID E D R ., S U I T E A O A K L A N D, C A 94612-3503
(510) 832-5001

COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES

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1 seq., Health & Safety Code §19955 et seq., including §19959; Title

2 24 California Code of Regulations; and California Civil Code §§ 51,

3 52, 54, 54.1 and 55.

4

3. VENUE: Venue is proper in this court pursuant to 28 USC

5 1391(b) because the subject property is located in this district

6 and Plaintiff’s causes of action arose here.

7

4. INTRADISTRICT: This case should be assigned to the San

8 Jose intradistrict where the subject property is located and is

9 where plaintiff’s causes of action arose.

10

5. PARTIES: Plaintiff ERNESTINA SALDANA-NEILY is a

11 “qualified” physically disabled person who cannot walk and who

12 requires use of a “power” wheelchair. Defendants TACO BELL OF

13 AMERICA, INC.; DOROTHY M. HIURA TRUST; and DOES 1-25, located at

14 1546 Camden Ave., Campbell, California, and HEDIA PETROLEUM, INC.,

15 dba CAMPBELL UNION 76; BOZORGHADAD TRUST; and DOES 26-50,

16 Inclusive, located at 3145 S. Bascom Ave., Campbell, are the

17 owners, operators, lessors, and lessees of the subject properties,

18 buildings and facilities. The restaurant and gas station operated

19 as a “Taco Bell” and the “Campbell Union 76” are each a “public

20 accommodation and/or business entity” subject to the requirements

21 of California Health & Safety Code §19955 et seq. and of California

22 Civil Code §54 et seq. Each of these facilities have, since July

23 1, 1970, undergone construction and/or “alterations, structural

24 repairs, or additions” requiring disabled access per §§19955-19959,

25 et seq. of the California Health & Safety Code.

26

6. The true names and capacities of Defendants Does 1

27 through 50, Inclusive, are unknown to plaintiff who therefore sues

28 said Defendants by such fictitious names. Plaintiff is informed

L A W O F F I C ES O F
PAUL L. REIN
200 L A K E S ID E D R ., S U I T E A O A K L A N D, C A 94612-3503
(510) 832-5001

COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES

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1 and believes that each of the defendants herein designated as a Doe

2 is legally responsible in some manner for the events and happenings

3 herein referred to and caused injury and damages proximately

4 thereby to plaintiff; plaintiff prays leave of Court to amend this

5 Complaint to show such true names and capacities when the same have

6 been ascertained.

7

7. Defendants TACO BELL OF AMERICA, INC.; DOROTHY M. HIURA

8 TRUST; and DOES 1-25, located at 1546 Camden Ave., Campbell,

9 California, and HEDIA PETROLEUM, INC., dba CAMPBELL UNION 76;

10 BOZORGHADAD TRUST; and DOES 26-50, Inclusive, located at 3145 S.

11 Bascom Ave., Campbell, are and were the owners, operators, lessors

12 and lessees of the subject properties buildings, and facilities at

13 all relevant times. Plaintiff is informed and believes that each

14 of the defendants herein is the agent, employee or representative

15 of each of the other defendants, and performed all acts and

16 omissions stated herein within the scope of such agency or

17 employment or representative capacity and is responsible in some

18 manner for the acts and omissions of the other defendants in

19 proximately causing the damages complained of herein.

20

8. Plaintiff ERNESTINA SALDANA-NEILY and other similarly

21 situated mobility disabled persons are unable to use public

22 facilities on a “full and equal” basis unless each such facility

23 is in compliance with the provisions of California Health & Safety

24 Code §19955 et seq. Plaintiff is a member of that portion of the

25 public whose rights are protected by the provisions of §19955 et

26 seq. Health & Safety Code.

27

9. Sections 19955 and 19955.5 Health & Safety Code were

28 enacted “To ensure that public accommodations or facilities

L A W O F F I C ES O F
PAUL L. REIN
200 L A K E S ID E D R ., S U I T E A O A K L A N D, C A 94612-3503
(510) 832-5001

COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES

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1 constructed in this state with private funds adhere to the

2 provisions of Chapter 7 (commencing with §4450) of Division 5 of

3 Title 1 of the Government Code.” Section 19955 also requires that

4 “When sanitary facilities are made available for the public,

5 clients, or employees ..., they shall be made available for persons

6 with disabilities.” Title 24, California Code of Regulations,

7 formerly known as the California Administrative Code, was in effect

8 at the time of each alteration which occurred at such public

9 facility since July 1, 1982, requiring access complying with the

10 specifications of Title 24 whenever any construction, alteration,

11 structural repair or addition” was performed. Further, any

12 construction alterations, structural repairs, or additions which

13 occurred between July 1, 1970 and July 1, 1982, required access

14 pursuant to the A.S.A. (American Standards Association) Regulations

15 then in effect, per §4450ff Government Code. All such

16 constructions and/or alterations were carried out by the current

17 defendant owners or operators, or by their predecessors in

18 interest, whose acts and omissions are the continuing and current

19 responsibility of all current owners, operators, lessors and

20 lessees.

21

10. On or about May 15, 2004, plaintiff and her husband were

22 returning to their home in Santa Cruz after a drive. They decided

23 to leave the freeway to buy lunch and pulled in at the Taco Bell

24 restaurant at 1546 Camden Ave., Campbell. They parked and

25 disembarked their disabled licensed van, entered the restaurant,

26 and ordered food and beverages. While waiting for their food,

27 plaintiff felt a need to use the restroom and inquired of an

28 employee behind the counter, “Where is the accessible bathroom?”

L A W O F F I C ES O F
PAUL L. REIN
200 L A K E S ID E D R ., S U I T E A O A K L A N D, C A 94612-3503
(510) 832-5001

COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES

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1 The employee advised that the public restrooms were outside, in the

2 back of the restaurant. Plaintiff exited the restaurant in her

3 wheelchair and went to the back of the restaurant, but discovered

4 that the women’s restroom door was too narrow for her to enter in

5 her wheelchair. (The men’s restroom door also appeared too narrow

6 for entry in a wheelchair.) Plaintiff returned to the restaurant

7 and let her husband know that the restrooms were inaccessible.

8 Plaintiff returned to the same employee and requested if there was

9 any other restroom available, and was referred to the restaurant

10 manager, who identified herself as “Maria,” and who also advised

11 that no restrooms at the restaurant were accessible for disabled

12 persons. The Taco Bell staff stated that they did not know of any

13 other nearby restaurant with accessible restroom facilities,

14 although the manager advised that there was a Kentucky Fried

15 Chicken in the area.

16

11. Plaintiff’s physical discomfort from her need to use the

17 restroom increased so that she became extremely physically

18 uncomfortable and determined to try to use a restroom at a nearby

19 Union 76 service station. Plaintiff traveled on the sidewalk and

20 across the street to the Union 76 station and inquired of an

21 attendant whether they had an accessible restroom. The employee

22 advised that there was one inside the service station. However,

23 the entrance into the service station was blocked to wheelchair

24 entry by a rack with some form of merchandise. The employee

25 managed to move the rack of merchandise out of the way, which

26 apparently was difficult for the employee because of its weight.

27 Finally the employee moved the rack out of the way where it blocked

28 entrance into the building, and pointed to the rear toward the

L A W O F F I C ES O F
PAUL L. REIN
200 L A K E S ID E D R ., S U I T E A O A K L A N D, C A 94612-3503
(510) 832-5001

COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES

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1 restroom. With some difficulty, plaintiff reached and entered the

2 restroom, which entry was also blocked by merchandise, but was

3 unable to reach the toilet before she had a bodily functions

4 accident resulting in her soiling of her clothes, to her severe

5 humiliation and embarrassment. She cleaned herself up as best she

6 could with paper hand towels, left the restroom and left the Union

7 76 service station. She returned to the Taco Bell and motioned to

8 her husband to come outside, where she told him what had happened

9 and that she needed to return home immediately. After assisting

10 Ernestina back into the van, her husband returned to the Taco Bell

11 and told the manager, Maria, what had happened. Because there had

12 been a disabled accessible parking place outside the Taco Bell,

13 plaintiff had expected that the restrooms would be accessible, and

14 was extremely upset when she found out, when plaintiff had the need

15 to use the restroom, that there were no accessible restrooms at the

16 Taco Bell; nor were there any warnings to patrons that there were

17 no accessible restrooms on the premises. Plaintiff and her husband

18 left the Taco Bell with plaintiff physically uncomfortable and

19 emotionally distraught.

20

12. On information and belief both the Taco Bell Restaurant

21 and the Union 76 service station lacked the following accessible

22 public facilities contrary to legal requirements under both

23 California law and federal law: proper accessible and van

24 accessible parking, fully accessible entrances, properly accessible

25 paths of travel, properly accessible women’s (and men’s) restrooms.

26 Additionally, on information and belief each of these public

27 facilities is inaccessible to persons with disabilities in other

28 aspects, including but not limited to the following: lack of proper

L A W O F F I C ES O F
PAUL L. REIN
200 L A K E S ID E D R ., S U I T E A O A K L A N D, C A 94612-3503
(510) 832-5001

COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES

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1 disabled accessible signage throughout the exterior and interior

2 of each the properties; lack of accessible door hardware; and lack

3 of fully accessible restrooms including (at the 76 Station) lack

4 of path of travel to the restrooms due to product displays blocking

5 entry, towel racks and mirrors mounted too high for disabled use,

6 lack of properly positioned, sized and configured grab bars in each

7 restroom, lack of full sized strike edge clearance upon exiting

8 restrooms, all rendering such facilities inaccessible to and

9 unuseable by plaintiff and other mobility disabled persons. All

10 facilities must be brought into compliance with all applicable

11 federal and state code requirements.

12

13. Further, each and every violation of the Americans With

13 Disabilities Act of 1990, (as pled in the Third Cause of Action,

14 the contents of which are repled and incorporated herein, word for

15 word, as if separately repled), also constitutes a separate and

16 distinct violation of §54(c) California Civil Code, thus

17 independently justifying an award of damages and injunctive relief

18 pursuant to California law, including but not limited to §§ 54.3

19 and 55 Civil Code.

20

14. Further, each and every violation of the Americans With

21 Disabilities Act of 1990, (as pled in the Third Cause of Action,

22 the contents of which are repled and incorporated herein, word for

23 word, as if separately repled), also constitutes a separate and

24 distinct violation of §54.1(d) California Civil Code, thus

25 independently justifying an award of damages and injunctive relief

26 pursuant to California law, including but not limited to §§ 54.3

27 and 55 Civil Code.

28

15. INJUNCTIVE RELIEF: Plaintiff seeks injunctive relief to

L A W O F F I C ES O F
PAUL L. REIN
200 L A K E S ID E D R ., S U I T E A O A K L A N D, C A 94612-3503
(510) 832-5001

COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES

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1 prohibit the acts and omissions of Defendants as complained of

2 herein which are continuing on a day-to-day basis and which have

3 the effect of wrongfully excluding Plaintiff and other members of

4 the public who are physically disabled wheelchair users from full

5 and equal access to these public facilities. Such acts and

6 omissions are the cause of humiliation and mental and emotional

7 suffering of Plaintiff ERNESTINA SALDANA-NEILY in that these

8 actions continue to treat her as an inferior and second class

9 citizen and serve to discriminate against her on the sole basis

10 that she is a person with disabilities who requires the use of a

11 wheelchair for movement in public places. Plaintiff is unable, so

12 long as such acts and omissions of defendants continue, to achieve

13 equal access to and use of these public facilities. The acts of

14 Defendants have proximately caused and will continue to cause

15 irreparable injury to plaintiff if not enjoined by this Court.

16

16. Wherefore plaintiff ERNESTINA SALDANA-NEILY asks this

17 Court to preliminarily and permanently enjoin any continuing

18 refusal by Defendants to grant full and equal access to herself and

19 other disabled persons in the respects complained of and to require

20 defendants to comply forthwith with the applicable statutory

21 requirements relating to access for disabled persons. Such

22 injunctive relief is provided by §19953 California Health & Safety

23 Code and California Civil Code §55, and other law. Plaintiff

24 further requests that the court award damages pursuant to Civil

25 Code §54.3 and other law and attorney fees, litigation expenses,

26 and costs pursuant to §19953 Health & Safety Code, Civil Code §54.3

27 and 55, Code of Civil Procedure §1021.5 and other law, all as

28 hereinafter prayed for.

L A W O F F I C ES O F
PAUL L. REIN
200 L A K E S ID E D R ., S U I T E A O A K L A N D, C A 94612-3503
(510) 832-5001

COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES

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1

17. DAMAGES: As a result of the denial of full and equal

2 access to the facility and due to the acts and omissions of

3 Defendants and each of them in owning, operating, leasing,

4 constructing, altering, and maintaining the subject facilities,

5 plaintiff suffered a violation of her Civil Rights including but

6 not limited to rights under §§ 54 and 54.1 Civil Code, all to her

7 damages as hereinafter stated. Defendants’ actions and omissions

8 to act constitute discrimination against plaintiff on the sole

9 basis that she was and is physically disabled and unable, because

10 of the architectural barriers created and/or maintained by the

11 defendants in violation of the subject laws, to use the public

12 facilities on a full and equal basis as other persons.

13

18. FEES AND COSTS: As a result of defendants’ acts,

14 omissions, and conduct, plaintiff has been required to incur

15 attorney fees, litigation expenses, and costs as provided by

16 statute, in order to enforce plaintiff’s rights and to enforce

17 provisions of the law protecting access for disabled persons and

18 prohibiting discrimination against disabled persons. Plaintiff

19 therefore seeks recovery of all reasonable attorney fees,

20 litigation expenses, and costs, pursuant to the provisions of §§

21 54.3 and 55 Civil Code. Additionally, plaintiff’s lawsuit is

22 intended to force the defendants to make their facilities

23 accessible to all disabled members of the public, justifying

24 “public interest” attorney fees, litigation expenses and costs

25 pursuant to the provisions of §1021.5 Code of Civil Procedure and

26 other applicable law.

27

Wherefore plaintiff prays for relief as hereinafter

28 stated:

L A W O F F I C ES O F
PAUL L. REIN
200 L A K E S ID E D R ., S U I T E A O A K L A N D, C A 94612-3503
(510) 832-5001

COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES

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1

SECOND CAUSE OF ACTION:

VIOLATION OF UNRUH CIVIL RIGHTS ACT

2

CALIFORNIA CIVIL CODE SECTIONS 51 AND 52,

ON THE BASIS OF DISABILITY

3

4

19. Plaintiff repleads and incorporates by reference, as if

5 fully set forth again herein, the factual allegations contained in

6 Paragraphs 1 through 18, above, and incorporates them herein by

7 reference as if separately repled hereafter.

8

20. At all times herein mentioned, the Unruh Civil Rights

9 Act, California Civil Code §51(b), provided that:

10

All persons within the jurisdiction of this state are

free and equal, and no matter what their sex, race,

11

color religion, ancestry, national origin, disability or

medical condition are entitled to the full and equal

12

accommodations, advantages, facilities, privileges, or

services in all business establishments of every kind

13

whatsoever.

14 Per §51(f),

15

A violation of the right of any individual under the

Americans With Disabilities Act of 1990 (Public Law 101-

16

336) shall also constitute a violation of this section.

17

21. Plaintiff suffered damages as above described as a result

18 of defendants’ violation of California Civil Code §§ 51(b) and

19 51(f) in multiple records, including but not limited to violations

20 of the ADA, as described in the Third Cause of Action, infra, the

21 contents of which cause of action is incorporated herein as if

22 separately repled. California Civil Code §52(a) provides that each

23 such violation entitles plaintiff to “the actual damages, and any

24 amount that may be determined by a jury, or a court sitting without

25 a jury, up to a maximum of three times the amount of actual damage

26 but in no case less than four thousand dollars ($4,000), and any

27 attorney’s fees that may be determined by the court in addition

28 thereto...”

L A W O F F I C ES O F
PAUL L. REIN
200 L A K E S ID E D R ., S U I T E A O A K L A N D, C A 94612-3503
(510) 832-5001

COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES

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1

WHEREFORE, plaintiff prays for damages and injunctive

2 relief as hereinafter stated.

3

4

THIRD CAUSE OF ACTION:

VIOLATION OF THE AMERICANS WITH DISABILITIES ACT OF 1990

5

42 USC §12101FF

6

22. Plaintiff repleads and incorporates by reference, as if

7 fully set forth again herein, the allegations contained in

8 Paragraphs 1 through 21 of this Complaint, and incorporates them

9 herein as if separately repled.

10

23. Pursuant to law, in 1990 the United States Congress made

11 findings per 42 USC §12101 regarding physically disabled persons,

12 finding that laws were needed to more fully protect “some 43

13 million Americans [with] one or more physical or mental

14 disabilities;” that “historically society has tended to isolate and

15 segregate individuals with disabilities;” that “such forms of

16 discrimination against individuals with disabilities continue to

17 be a serious and pervasive social problem;” that “the Nation’s

18 proper goals regarding individuals with disabilities are to assure

19 equality of opportunity, full participation, independent living and

20 economic self sufficiency for such individuals;” and that “the

21 continuing existence of unfair and unnecessary discrimination and

22 prejudice denies people with disabilities the opportunity to

23 compete on an equal basis and to pursue those opportunities for

24 which our free society is justifiably famous...”

25

24. Congress stated as its purpose in passing the Americans

26 with Disabilities Act (42 USC §12101(b))

27

It is the purpose of this act

28

(1) to provide a clear and comprehensive national

L A W O F F I C ES O F
PAUL L. REIN
200 L A K E S ID E D R ., S U I T E A O A K L A N D, C A 94612-3503
(510) 832-5001

COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES

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1

mandate for the elimination of discrimination against

individuals with disabilities;

2

(2) to provide clear, strong, consistent, enforceable

3

standards addressing discrimination against individuals with

disabilities;

4

(3) to ensure that the Federal government plays a central

5

role in enforcing the standards established in this act on

behalf of individuals with disabilities; and

6

(4) to invoke the sweep of Congressional authority, including

7

the power to enforce the 14th Amendment and to regulate

commerce, in order to address the major areas of

8

discrimination faced day to day by people with disabilities.

(Emphasis added)

9

10

25. As part of the Americans with Disabilities Act, Public

11 Law 101-336, (hereinafter the “ADA”), Congress passed “Title III -

12 Public Accommodations and Services Operated by Private Entities”

13 (42 USC 12181ff). The subject properties and facilities are among

14 the “private entities” which are considered “public accommodations”

15 for purposes of this title, per ADA §301(7)(B), which includes any

16 “a restaurant, bar, or other sales or rental establishment serving

17 food or drink,” and §301(7)(f) “ a ... gas station ... or other

18 service establishment.”

19

26. Pursuant to §302, 42 USC §12182, “No individual shall be

20 discriminated against on the basis of disability in the full and

21 equal enjoyment of the goods, services, facilities, privileges,

22 advantages, or accommodations of any place of public accommodation

23 by any person who owns, leases, or leases to, or operates a place

24 of public accommodation.”

25

27. Among the specific prohibitions against discrimination

26 were included:

27 §302(b)(2)(A)(ii): “A failure to make reasonable modifications in

28 policies, practices or procedures when such modifications are

L A W O F F I C ES O F
PAUL L. REIN
200 L A K E S ID E D R ., S U I T E A O A K L A N D, C A 94612-3503
(510) 832-5001

COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES

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1 necessary to afford such goods, services, facilities, privileges,

2 advantages or accommodations to individuals with disabilities...;”

3 §302(b)(A)(iii): “a failure to take such steps as may be necessary

4 to ensure that no individual with a disability is excluded, denied

5 service, segregated, or otherwise treated differently than other

6 individuals because of the absence of auxiliary aids and

7 services...;”

8 §302(b)(2)(A)(iv): “A failure to remove architectural barriers, and

9 communication barriers that are structural in nature, in existing

10 facilities... where such removal is readily achievable;”

11 §302(b)(2)(A)(v): “Where an entity can demonstrate that the removal

12 of a barrier under clause (iv) is not readily achievable, a failure

13 to make such goods, services, facilities, privileges, advantages,

14 or accommodations available through alternative methods if such

15 methods are readily achievable.” The acts and omissions of

16 Defendants set forth herein were in violation of Plaintiff’s rights

17 under the ADA, Public Law 101-336, and the regulations promulgated

18 thereunder, 28 CFR Part 36ff.

19

28. The removal of each of the barriers complained of by

20 Plaintiff as hereinabove alleged, were at all times herein

21 mentioned “readily achievable” under the standards of the Americans

22 With Disabilities Act. As noted hereinabove, removal of each and

23 every one of the architectural barriers complained of herein were

24 also required under California law. Further, on information and

25 belief, alterations, structural repairs or additions since January

26 26, 1992 have also independently triggered requirements for removal

27 of barriers to access for disabled persons per §303 of the ADA.

28

29. On information and belief, as of the date of plaintiff’s

L A W O F F I C ES O F
PAUL L. REIN
200 L A K E S ID E D R ., S U I T E A O A K L A N D, C A 94612-3503
(510) 832-5001

COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES

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1 encounter at each of the premises and as of the filing of this

2 Complaint, each premises have denied and continue to deny full and

3 equal access to plaintiff and to other disabled persons, including

4 wheelchair users, in other respects, which violate plaintiff’s

5 rights to full and equal access and which discriminate against

6 plaintiff on the basis of her disability, thus wrongfully denying

7 to plaintiff the full and equal enjoyment of the goods, services,

8 facilities, privileges, advantages and accommodations, in violation

9 of §302 of the ADA, 42 USC §12182.

10

30. Pursuant to the Americans with Disabilities Act, 42 USC

11 12188ff, §308, Plaintiff is entitled to the remedies and procedures

12 set forth in §204(a) of the Civil Rights Act of 1964, 42 USC

13 2000(a)-3(a), as plaintiff is being subjected to discrimination on

14 the basis of disability in violation of this title or has

15 reasonable grounds for believing that she is about to be subjected

16 to discrimination in violation of §302 and §303. On information

17 and belief, defendants have continued to violate the law and deny

18 the rights of plaintiff and other disabled persons to access these

19 public accommodations since on or before defendant’s encounters as

20 previously described. Pursuant to §308(a)(2), “In cases of

21 violations of §302(b)(2)(A)(iv) and §303(a)... injunctive relief

22 shall include an order to alter facilities to make such facilities

23 readily accessible to and usable by individuals with disabilities

24 to the extent required by this title.”

25

31. Plaintiff seeks relief pursuant to remedies set forth in

26 §204(a) of the Civil Rights Act of 1964, (42 USC 2000(a)-3(a), and

27 pursuant to Federal Regulations adopted to implement the Americans

28 with Disabilities Act of 1990. Plaintiff is a qualified disabled

L A W O F F I C ES O F
PAUL L. REIN
200 L A K E S ID E D R ., S U I T E A O A K L A N D, C A 94612-3503
(510) 832-5001

COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES

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S:\SLR\TACO BELL\PLEADINGS\TACO BELL.CMP.wpd

1 person for purposes of §308(a) of the ADA who is being subjected

2 to discrimination on the basis of disability in violation of Title

3 III and who has reasonable grounds for believing she will be

4 subjected to such discrimination each time that she may attempt to

5 use the property and premises.

6

Wherefore plaintiff prays for relief as hereinafter

7 stated:

8

PRAYER

9

Plaintiff ERNESTINA SALDANA-NEILY prays that this Court:

10

1. Issue a preliminary and permanent injunction directing

11 Defendants TACO BELL OF AMERICA, INC.; DOROTHY M. HIURA TRUST; and

12 DOES 1-25; HEDIA PETROLEUM, INC., dba CAMPBELL UNION 76;

13 BOZORGHADAD TRUST; and DOES 26-50, Inclusive, as current owners,

14 operators, lessors, and/or lessees of the two described subject

15 properties and premises to modify the above described property and

16 premises and related facilities so that each provides full and

17 equal access to all citizens, including persons with disabilities;

18 and issue a preliminary and permanent injunction directing

19 Defendants to provide facilities usable by Plaintiff and similarly

20 situated persons with disabilities, and which provide full and

21 equal access, as required by law;

22

2. Retain jurisdiction over the Defendants until such time

23 as the Court is satisfied that Defendants’ unlawful policies,

24 practices, acts and omissions, and maintenance of inaccessible

25 public facilities as complained of herein no longer occur, and can

26 not recur;

27

3. Award to Plaintiff ERNESTINA SALDANA-NEILY all

28 appropriate damages, including but not limited to statutory

L A W O F F I C ES O F
PAUL L. REIN
200 L A K E S ID E D R ., S U I T E A O A K L A N D, C A 94612-3503
(510) 832-5001

COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES

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S:\SLR\TACO BELL\PLEADINGS\TACO BELL.CMP.wpd

1 damages, general damages and treble damages in an amount within the

2 jurisdiction of the Court, all according to proof;

3

4. Award to Plaintiff all reasonable attorney fees,

4 litigation expenses, and costs of this proceeding as provided by

5 law; and

6

5. Grant such other and further relief as this Court may

7 deem just and proper.

8

9 Dated: October __, 2004 10 11

PAUL L. REIN PATRICIA BARBOSA JULIE MCLEAN LAW OFFICES OF PAUL L. REIN

12

13

Attorneys for Plaintiff

ERNESTINA SALDANA-NEILY

14

15

16

DEMAND FOR JURY TRIAL

17

Plaintiff hereby demands a jury for all claims for which

18 a jury is permitted.

19

20 Dated: October __, 2004 21 22

PAUL L. REIN PATRICIA BARBOSA JULIE MCLEAN LAW OFFICES OF PAUL L. REIN

23

24

Attorneys for Plaintiff

ERNESTINA SALDANA-NEILY

25

26

27 ///

28 ///

L A W O F F I C ES O F
PAUL L. REIN
200 L A K E S ID E D R ., S U I T E A O A K L A N D, C A 94612-3503
(510) 832-5001

COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES

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S:\SLR\TACO BELL\PLEADINGS\TACO BELL.CMP.wpd

1

CERTIFICATION OF INTERESTED ENTITIES OR PARTIES

2

Pursuant to Civil L.R. 3-16, the undersigned certifies

3 that as of this date, other than the named parties, there is no

4 such interest to report.

5

6 Dated: October __, 2004 7 8

PAUL L. REIN PATRICIA BARBOSA JULIE MCLEAN LAW OFFICES OF PAUL L. REIN

9

10

Attorneys for Plaintiff

ERNESTINA SALDANA-NEILY

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

L A W O F F I C ES O F
PAUL L. REIN
200 L A K E S ID E D R ., S U I T E A O A K L A N D, C A 94612-3503
(510) 832-5001

COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES

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S:\SLR\TACO BELL\PLEADINGS\TACO BELL.CMP.wpd

 
 Case4:04-cv-04571-PJH Document15 Filed12/03/04 Page1 of 10

1 JEFFREY H. DASTEEL (State Bar No. 110405) SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
2 300 South Grand Avenue, Suite 3400 Los Angeles, California 90071-3144
3 Telephone: (213) 687-5000 Facsimile: (213) 687-5600
4
5 Attorneys for Defendant TACO BELL OF AMERICA, INC.
6

7

8

THE UNITED STATES DISTRICT COURT

9

FOR THE NORTHERN DISTRICT OF CALIFORNIA

10 ERNESTINA SALDANA-NElLY

) Case No. 04-CV-04571 JF )

11

Plaintiff,

) DEFENDANT TACO BELL OF

) AMERICA, INC.'S ANSWER TO

12

v.

) PLAINTIFF'S COMPLAINT

)

13 TACO BELL OF AMERICA, INC.;

) Hon. Jeremy Fogel

DOROTHY M. HIURA TRUST; and DOES ) Action Filed: October 28, 2004

14 1-25; HEDIA PETROLEUM, INC., dba

) Trial Date: Not Yet Set

CAMPBELL UNION 76; BOZORGHADAD )

15 TRUST; and DOES 26-50, INCLUSIVE,

)

)

16 -------------------D-e-fe-n-d-an-ts-.----)

17

Defendant Taco Bell Corp. ("Taco Bell" or "Defendant"), on behalf of itself, by and

18 through its attorneys, answers the allegations set forth in Plaintiff Ernestina Saldana-Neily's

19 ("Plaintiff') Complaint (the "Complaint") and admits, denies, and alleges as follows:

20

1. Defendant lacks sufficient knowledge or information to form a belief as to the truth of

21 the allegations contained in Paragraph 1, Page 1:28-2:9 of the Complaint, and on that basis denies

22 the allegations. Defendant responds that the allegations contained in Paragraph 1, Page 2:9-2: 13 of

23 the Complaint set forth legal conclusions and therefore no response is required. Finally, Defendant

24 responds that Paragraph 1, Page 2:13-2:22 of the Complaint constitutes a prayer for relief and

25 therefore no response is required.

26

2. Defendant responds that the allegations contained in Paragraph 2 of the Complaint set

27 forth legal conclusions and therefore no response is required.

28
TACO BELL'S ANSWER Case No. 04-CV-04S71 IF

, I

Case4:04-cv-04571-PJH Document15 Filed12/03/04 Page2 of 10

1

3. Defendant responds that the allegations contained in Paragraph 3 of the Complaint set

2 forth legal conclusions and therefore no response is required.

3

4. Defendant lacks sufficient knowledge or information to form a belief as to the truth of

4 the allegations contained in Paragraph 4 of the Complaint, and on that basis denies the allegations.

5 Defendant further responds that the allegations contained in Paragraph 4 of the Complaint set forth

6 legal conclusions and therefore no response is required.

7

5. Defendant lacks sufficient knowledge or information to form a belief as to the truth of

8 the allegations contained in Paragraph 5, Page 3:10-12 and certain portions of Page 3:14-25 of the

9 Complaint, and on that basis denies the allegations. Defendant further responds that the allegations

10 contained in Paragraph 5 of the Complaint set forth legal conclusions and therefore no response is

11 required. Defendant admits that it leases and operates the Taco Bell restaurant located at 3145 S.

12 Bascom Ave., Campbell, California (the "Restaurant"). Defendant further admits that the

13 Restaurant is a public accommodation.

14

6. Defendant responds that the allegations contained in Paragraph 6 of the Complaint set

15 forth legal conclusions and therefore no response is required.

16

7. Defendant responds that the allegations contained in Paragraph 7 of the Complaint set

17 forth legal conclusions and therefore no response is required, except that Defendant admits that it

18 leases and operates the Restaurant. Defendant lacks sufficient knowledge or information to form a

19 belief as to the truth of the allegations contained in Paragraph 7 relating to Defendants Dorothy M.

20 Riura Trust, Redia Petroleum, Inc., and Bozorghadad Trust (hereinafter "Union 76") and on that

21 basis denies the allegations. To the extent a further response is required, Defendant denies the

22 allegations contained in Paragraph 7 of the Complaint.

23

8. Defendant lacks sufficient knowledge or information to form a belief as to the truth of

24 the allegations contained in Paragraph 8 of the Complaint, and on that basis denies the allegations.

25

9. Defendant responds that the allegations contained in Paragraph 9 of the Complaint set

26 forth legal conclusions and therefore no response is required. Defendant lacks sufficient

27 knowledge or information to form a belief as to the truth ofthe allegations contained in Paragraph

28 TACO BELL'S ANSWER Case No. 04-CV-04S71 JF
2

Case4:04-cv-04571-PJH Document15 Filed12/03/04 Page3 of 10

1 9 relating to Union 76 and on that basis denies the allegation. To the extent a further response is

2 required, Defendant denies the allegations contained in Paragraph 9 of the Complaint.

3

10. Defendant lacks sufficient knowledge or information to form a belief as to the truth of

4 the allegations contained in Paragraph 10 of the Complaint, and on that basis denies the allegations.

5 To the extent a further response is required, Defendant denies the allegations contained in

6 Paragraph 10 of the Complaint.

7

11. Defendant lacks sufficient knowledge or information to form a belief as to the truth of

8 the allegations contained in Paragraph 11 of the Complaint, and on that basis denies the allegations.

9 To the extent a further response is required, Defendant denies the allegations contained in

10 Paragraph 11 of the Complaint.

11

12. Defendant lacks sufficient knowledge or information to form a belief as to the truth of

12 the allegations contained in Paragraph 12 of the Complaint, and on that basis denies the allegations.

13 To the extent a further response is required, Defendant denies the allegations contained in

14 Paragraph 12 of the Complaint.

15

13. Defendant responds that the allegations contained in Paragraph 13 of the Complaint set

16 forth legal conclusions and therefore no response is required. Defendant further responds that the

17 allegations contained in Paragraph 13, Page 8:15-19 of the Complaint constitute a prayer for relief

18 and therefore no response is required.

19

14. Defendant responds that the allegations contained in Paragraph 14 of the Complaint set

20 forth legal conclusions and therefore no response is required. Defendant further responds that the

21 allegations contained in Paragraph 14, Page 8:23-27 of the Complaint constitute a prayer for relief

22 and therefore no response is required.

23

15. Defendant lacks sufficient knowledge or information to form a belief as to the truth of

24 the allegations contained in Paragraph 15 of the Complaint, and on that basis denies the allegations.

25 To the extent a further response is required, Defendant denies the allegations contained in

26 Paragraph 15 of the Complaint. Defendant further responds that the allegations contained in

27 Paragraph 15 of the Complaint constitute a prayer for relief and legal conclusion and therefore no

28 TACO BELL'S ANSWER Case No. 04-CV-04S71 JF
3

Case4:04-cv-04571-PJH Document15 Filed12/03/04 Page4 of 10

1 response is required. Defendant lacks sufficient knowledge or infonnation to fonn a belief as to

2 the truth of the allegations contained in Paragraph 15 relating to Union 76 and on that basis denies

3 the allegations.

4

16. Defendant responds that the allegations contained in Paragraph 16 of the Complaint

5 constitute a prayer for relief and legal conclusions and therefore no response is required; to the

6 extent a response is required, Defendant denies that Plaintiff is entitled to seek attorneys' fees under

7 California Health & Safety Code Section 19953, California Civil Code Sections 54.3 and 55,

8 California Code of Civil Procedure Section 1021.5, or any other laws.

9

17. Defendant responds that the allegations contained in Paragraph 17 of the Complaint

10 constitute a prayer for relief and legal conclusions and therefore no response is required.

11

18. Defendant responds that the allegations contained in Paragraph 18 of the Complaint set

12 forth legal conclusions and therefore no response is required. Defendant further responds that the

13 allegations contained in Paragraph 18 of the Complaint constitute a prayer for relief and therefore

14 no response is required; to the extent a response is required, Defendant denies that Plaintiff is

15 entitled to seek attorneys' fees under California Civil Code Sections 54.3 and 55 or California Code

16 of Civil Procedure Section 1021.5.

17

19. Defendant repeats, realleges, and incorporates herein by this reference, each of its

18 respective statements, admissions andlor denials, as the case may be, to Paragraphs 1 through 18,

19 inclusive, of the Complaint.

20

20. Defendant responds that the allegations contained in Paragraph 20 of the Complaint set

21 forth legal conclusions and therefore no response is required.

22

21. Defendant responds that the allegations contained in Paragraph 21 of the Complaint set

23 forth legal conclusions and therefore no response is required. Defendant further responds that the

24 allegations contained in Paragraph 21 of the Complaint constitute a prayer for relief and therefore

25 no response is required; to the extent a response is required, Defendant denies that Plaintiff is

26 entitled to seek attorneys' fees under California Civil Code Section 52(a).

27

28 TACO BELL'S ANSWER
Case No. 04-CV-04S71 JF
4

Case4:04-cv-04571-PJH Document15 Filed12/03/04 Page5 of 10

1

22. Defendant repeats, realleges, and incorporates herein by this reference, each of its

2 respective statements, admissions and/or denials, as the case may be, to Paragraphs 19 through 21,

3 inclusive, of the Complaint.

4

23. Defendant responds that the allegations contained in Paragraph 23 of the Complaint set

5 forth legal conclusions and therefore no response is required.

6

24. Defendant responds that the allegations contained in Paragraph 24 of the Complaint set

7 forth legal conclusions and therefore no response is required.

8

25. Defendant responds that the allegations contained in Paragraph 25 of the Complaint set

9 forth legal conclusions and therefore no response is required.

10

26. Defendant responds that the allegations contained in Paragraph 26 of the Complaint set

11 forth legal conclusions and therefore no response is required.

12

27. Defendant responds that the allegations contained in Paragraph 27 of the Complaint set

13 forth legal conclusions and therefore no response is required.

14

28. Defendant lacks sufficient knowledge or information to form a belief as to the truth of

15 the allegations contained in Paragraph 28 of the Complaint, and on that basis denies the allegations.

16 To the extent a further response is required, Defendant denies the allegations contained in

17 Paragraph 28 of the Complaint. Defendant further responds that the allegations contained in

18 Paragraph 28 of the Complaint set forth legal conclusions and therefore no response is required.

19

29. Defendant lacks sufficient knowledge or information to form a belief as to the truth of

20 the allegations contained in Paragraph 29 of the Complaint, and on that basis denies the allegations.

21 To the extent a further response is required, Defendant denies the allegations contained in

22 Paragraph 29 of the Complaint. Defendant further responds that the allegations contained in

23 Paragraph 29 of the Complaint constitute a prayer for relief and therefore no response is required.

24

30. Defendant lacks sufficient knowledge or information to form a belief as to the truth of

25 the allegations contained in Paragraph 30 of the Complaint, and on that basis denies the allegations.

26 To the extent a further response is required, Defendant denies the allegations contained in

27 Paragraph 30 of the Complaint. Defendant further responds that the allegations contained in

28 TACO BELL'S ANSWER
Case No. 04-CV-04571 JF
5

Case4:04-cv-04571-PJH Document15 Filed12/03/04 Page6 of 10

1 Paragraph 30 of the Complaint constitute a prayer for relief and legal conclusions and therefore no

2 response is required.

3

31. Defendant lacks sufficient knowledge or information to form a belief as to the truth

4 of the allegations contained in Paragraph 31 of the Complaint, and on that basis denies the

5 allegations. To the extent a further response is required, Defendant denies the allegations

6 contained in Paragraph 31 of the Complaint. Defendant further responds that the allegations

7 contained in Paragraph 31 of the Complaint constitute a prayer for relief and legal conclusions and

8 therefore no response is required.

9

ANSWER TO PRAYERS FOR RELIEF

10

1. In response to pages 16-17 of the Complaint, paragraphs 1-5, these paragraphs

11 constitute prayers for relief and therefore no response is required. Nonetheless, Defendant denies

12 Plaintiff is entitled to any injunctive relief, preventative relief, or any other relief pursuant to 42

13 U.S.c. Section 12205, California Civil Code Section 52, California Civil Code Section 55, or

14 California Health and Safety Code Section 19953, or any other statute; Defendant denies Plaintiff

15 is entitled to any damages, statutory damages, general damages, or treble damages; Defendant

16 denies Plaintiff is entitled to any attorney's fees, litigation expenses and/or costs of this suit; and

17 Defendant denies that Plaintiff is entitled to any other relief under his Complaint.

18

AFFIRMATIVE DEFENSES TO PLAINTIFF'S COMPLAINT

19

Defendant alleges the following affirmative defenses with respect to the claims alleged in

20 the Complaint, without assuming the burden of proof where the burden of proof rests on Plaintiff:

21

FIRST AFFIRMATIVE DEFENSE

22

1. This court lacks subject matter jurisdiction over this matter because there is no

23 actionable wrong arising under the Americans with Disabilities Act of 1990,42 U.S.c. § 12101 et

24 seq. 25

SECOND AFFIRMATIVE DEFENSE

26

2. This court lacks pendant jurisdiction over all claims arising under California state law,

27 including, but not limited to, claims under California Health and Safety Code § 19955 ~ ~,

28 TACO BELL'S ANSWER
Case No. 04-CV-04S71 JF 6

, ,

Case4:04-cv-04571-PJH Document15 Filed12/03/04 Page7 of 10

1 California Civil Code §§ 51, 51.5, 54 et seq., and California Business and Professions Code §

2 17200 et seq., because there is no actionable wrong arising under the Americans with Disabilities

3 Act of 1990,42 U.S.C. §12101 et seq.

4

THIRD AFFIRMATIVE DEFENSE

5

3. This court lacks subject matter jurisdiction over this matter because there is no

6 actionable wrong arising under California Health and Safety Code §19955 et seq.

7

FOURTH AFFIRMATIVE DEFENSE

8

4. This court lacks subject matter jurisdiction over this matter because there is no

9 actionable wrong arising under California Civil Code §§ 54,54.1,54.3 et seq.

10

FIFTH AFFIRMATIVE DEFENSE

11

5. This court lac.ks subject matter jurisdiction over this matter because there is no

12 actionable wrong arising under the Unruh Civil Rights Act, Cal. Civ. Code §§ 51. 51.5 et seq.

13

SIXTH AFFIRMATIVE DEFENSE

14

6. Defendant is performing all readily achievable architectural barrier removal, within its

15 control, required by law, and therefore Plaintiffs Complaint against Defendant is barred.

16

SEVENTH AFFIRMATIVE DEFENSE

17

7. Defendant is performing all repairs to any architectural barrier with alternative methods

18 of access as required by law, and therefore Plaintiffs Complaint against Defendant is barred.

19

EIGHTH AFFIRMATIVE DEFENSE

20

8. Plaintiffs claims are barred, in whole or in part, by the doctrines of estoppel, waiver,

21 laches, and unclean hands. 22

NINTH AFFIRMATIVE DEFENSE

23

9. Some or all of Plaintiffs claims for relief are moot, and are therefore barred.

24

25

26

27

28 TACO BELL'S ANSWER
Case No. 04-CV-04S71 JF
7

I I

Case4:04-cv-04571-PJH Document15 Filed12/03/04 Page8 of 10

1

TENTH AFFIRMATIVE DEFENSE

2

10. Plaintiff has failed to state a claim upon which relief may be granted with respect to all

3 counts alleged in the Complaint.

4

ELEVENTH AFFIRMATIVE DEFENSE

5

11. Plaintiff has not suffered any loss or harm as a result of any act or omission of

6 Defendant and, therefore, Plaintiffs Complaint against Defendant is barred.

7

TWELFTH AFFIRMATIVE DEFENSE

8

12. Plaintiff has failed to mitigate his damages, if any, and therefore Plaintiffs Complaint

9 against Defendant is barred.

10

THIRTEENTH AFFIRMATIVE DEFENSE

11

13. At all relevant times, Defendant has met all federal and state statutory and regulatory

12 obligations owed to Plaintiff and all other individuals with disabilities, including individuals in

13 wheelchairs, if any, and therefore Plaintiffs Complaint against Defendant is barred.

14

FOURTEENTH AFFIRMATIVE DEFENSE

15

14. At all relevant times, Defendant has complied with all of the Americans with

16 Disabilities Act final rules and Accessibility Guidelines, 28 C.F.R. Ch.1, Part 36, and therefore

17 Plaintiffs Complaint against Defendant is barred.

18

FIFTEENTH AFFIRMATIVE DEFENSE

19

15. Plaintifflacks standing to sue for alleged violations that were not directly experienced

20 by Plaintiff. 21

SIXTEENTH AFFIRMATIVE DEFENSE

22

16. As a separate and additional affirmative defense, Defendant alleges and avers that the

23 imposition of any punitive or exemplary damages in this matter would violate Defendant right to

24 due process of law in violation of the California Constitution and the United States Constitution.

25

SEVENTEENTH AFFIRMATIVE DEFENSE

26

17. Plaintiffs claims for injunctive and monetary relief under the Americans with

27 Disabilities Act, 42 U.S.C. §12101 ~~, California Civil Code §§ 54, 54.1, 54.3 ~~, and the

28 TACO BELL'S ANSWER Case No. 04-CV-04571 IF 8

, I

Case4:04-cv-04571-PJH Document15 Filed12/03/04 Page9 of 10

1 Unruh Civil Rights Act, Cal. Civ. Code §§ 51. 51.5 et seq. (collectively, the "ADA Claims"), are

2 duplicative of the claims asserted in the first-filed action entitled Moeller v. Taco Bell Corp., Case

3 No. C02 5849 MJJ (N.D. Cal. Dec. 17,2002) (the "Moeller Action"), a certified mandatory class

4 action of which Plaintiff is a class member, and therefore Plaintiffs' ADA Claims against

5 Defendant are barred. 6

EIGHTEENTH AFFIRMATIVE DEFENSE

7

18. This court lacks federal question jurisdiction over all claims arising under California

8 state law, including, but not limited to, claims under California Health and Safety Code § 19955 et

9 seq., California Civil Code §§ 51,51.5,54 et seq., California Civil Code §§ 54,54.1,54.3 et seq.,

10 because Plaintiff's claims under the Americans with Disabilities Act of 1990,42 U.S.C. §12101 et

11 ~,are barred by the first-filed Moeller Action.

12

NINETEENTH AFFIRMATIVE DEFENSE

13

19. Plaintiffis a member of the certified mandatory class in the Moeller Action and his

14 ADA Claims against Defendant are duplicative and substantially identical to the claims asserted

15 against Defendant in the Moeller Action, and therefore Plaintiffs' ADA Claims against Defendant

16 should be dismissed or stayed in favor of the Moeller Action.

17

RESERVED

18

20. Defendant presently has insufficient knowledge or information upon which to form a

19 belief as to whether it may have additional, as yet unstated, affirmative defenses available.

20 Defendant hereby gives notice that it intends to rely upon any other defenses that may become

21 available or apparent during the discovery proceedings in this matter and hereby reserve its right to

22 amend the Answer and to assert any such affirmative defense(s).

23

WHEREFORE, Defendant prays for judgment as follows:

24

1. That the Court dismiss Plaintiff's Complaint with prejudice, orders that Plaintiff take

25 nothing by this action, and enters judgment in Defendant' favor;

26

2. That the Defendant be awarded all of its litigation costs and attorneys' fees in this

27 action; and

28 TACO BELL'S ANSWER
Case No. 04-CV-04S71 JF
9

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Case4:04-cv-04571-PJH Document15 Filed12/03/04 Page10 of 10

1

3. That the Court award such other and further relief as it deems just and equitable.

2 3 DATED: December 3,2004

SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP

4 5

By: ~th~

6

Attorneys for Defendant

Taco Bell of America, Inc.

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 TACO BELL'S ANSWER
Case No. 04-CV-04S71 JF
10
37865\.0 \-Los Angeles Server 2A - MSW

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 Case4:04-cv-04571-PJH Document18 Filed12/08/04 Page1 of 10

1 JEFFREY H. DASTEEL (State Bar No. 110405) SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
2 300 South Grand Avenue, Suite 3400 Los Angeles, California 90071-3144
3 Telephone: (213) 687-5000 Facsimile: (213) 687-5600
4
5 Attorneys for Defendant TACO BELL OF AMERICA, INC.
6

7

8

THE UNITED STATES DISTRICT COURT

9

FOR THE NORTHERN DISTRICT OF CALIFORNIA

10 ERNESTINA SALDANA-NElLY

) Case No. 04-CV-04571 JF )

11

Plaintiff,

) DEFENDANT TACO BELL OF

) AMERICA, INC.'S FIRST AMENDED

12

v.

) ANSWER TO PLAINTIFF'S ) COMPLAINT

13 TACO BELL OF AMERICA, INC.;

)

DOROTHY M. HIURA TRUST; and DOES ) Hon. Jeremy Fogel

14 1-25; HEDIAPETROLEUM, INC., dba

) Action Filed: October 28, 2004

CAMPBELL UNION 76; BOZORGHADAD ) Trial Date: Not Yet Set

15 TRUST; and DOES 26-50, INCLUSIVE,

)

)

16

Defendants.

)

----------------~~=====----

17

Defendant Taco Bell of America, Inc. ("Taco Bell" or "Defendant"), on behalf of

18 itself, by and through its attorneys, answers the allegations set forth in Plaintiff Ernestina Saldana-

19 Neily's ("Plaintiff') Complaint (the "Complaint") and admits, denies, and alleges as follows:

20

1. Defendant lacks sufficient knowledge or information to form a belief as to the truth of

21 the allegations contained in Paragraph 1, Page 1:28-2:9 of the Complaint, and on that basis denies

22 the allegations. Defendant responds that the allegations contained in Paragraph 1, Page 2:9-2: 13 of

23 the Complaint set forth legal conclusions and therefore no response is required. Finally, Defendant

24 responds that Paragraph 1, Page 2:13-2:22 of the Complaint constitutes a prayer for relief and

25 therefore no response is required.

26

2. Defendant responds that the allegations contained in Paragraph 2 of the Complaint set

27 forth legal conclusions and therefore no response is required.
28
TACO BELL OF AMERICA, INC'S FIRST AMENDED ANSWER Case No. 04-CV-04S71 JF

I I

Case4:04-cv-04571-PJH Document18 Filed12/08/04 Page2 of 10

1

3. Defendant responds that the allegations contained in Paragraph 3 of the Complaint set

2 forth legal conclusions and therefore no response is required.

3

4. Defendant lacks sufficient knowledge or information to form a belief as to the truth of

4 the allegations contained in Paragraph 4 of the Complaint, and on that basis denies the allegations.

5 Defendant further responds that the allegations contained in Paragraph 4 of the Complaint set forth

6 legal conclusions and therefore no response is required.

7

5. Defendant lacks sufficient knowledge or information to form a belief as to the truth of

8 the allegations contained in Paragraph 5, Page 3:10-12 and certain portions of Page 3:14-25 of the

9 Complaint, and on that basis denies the allegations. Defendant further responds that the allegations

10 contained in Paragraph 5 of the Complaint set forth legal conclusions and therefore no response is

11 required. Defendant admits that it leases and operates the Taco Bell restaurant located at 3145 S.

12 Bascom Ave., Campbell, California (the "Restaurant"). Defendant further admits that the

13 Restaurant is a public accommodation.

14

6. Defendant responds that the allegations contained in Paragraph 6 of the Complaint set

15 forth legal conclusions and therefore no response is required.

16

7. Defendant responds that the allegations contained in Paragraph 7 of the Complaint set

17 forth legal conclusions and therefore no response is required, except that Defendant admits that it

18 leases and operates the Restaurant. Defendant lacks sufficient knowledge or information to form a

19 belief as to the truth of the allegations contained in Paragraph 7 relating to Defendants Dorothy M.

20 Riura Trust, Redia Petroleum, Inc., and Bozorghadad Trust (hereinafter "Union 76") and on that

21 basis denies the allegations. To the extent a further response is required, Defendant denies the

22 allegations contained in Paragraph 7 of the Complaint.

23

8. Defendant lacks sufficient knowledge or information to form a belief as to the truth of

24 the allegations contained in Paragraph 8 of the Complaint, and on that basis denies the allegations.

25

9. Defendant responds that the allegations contained in Paragraph 9 of the Complaint set

26 forth legal conclusions and therefore no response is required. Defendant lacks sufficient

27 knowledge or information to form a belief as to the truth of the allegations contained in Paragraph

28 TACO BELL.OF AMERICA, INC.'S FIRST AMENDED ANSWER
Case No. 04-CV-04571 JF
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1 9 relating to Union 76 and on that basis denies the allegation. To the extent a further response is

2 required, Defendant denies the allegations contained in Paragraph 9 of the Complaint.

3

10. Defendant lacks sufficient knowledge or information to form a belief as to the truth of

4 the allegations contained in Paragraph 10 of the Complaint, and on that basis denies the allegations.

5 To the extent a further response is required, Defendant denies the allegations contained in

6 Paragraph 10 of the Complaint.

7

11. Defendant lacks sufficient knowledge or information to form a belief as to the truth of

8 the allegations contained in Paragraph 11 of the Complaint, and on that basis denies the allegations.

9 To the extent a further response is required, Defendant denies the allegations contained in

10 Paragraph 11 of the Complaint.

11

12. Defendant lacks sufficient knowledge or information to form a belief as to the truth of

12 the allegations contained in Paragraph 12 of the Complaint, and on that basis denies the allegations.

13 To the extent a further response is required, Defendant denies the allegations contained in

14 Paragraph 12 of the Complaint.

15

13. Defendant responds that the allegations contained in Paragraph 13 of the Complaint set

16 forth legal conclusions and therefore no response is required. Defendant further responds that the

17 allegations contained in Paragraph 13, Page 8:15-19 of the Complaint constitute a prayer for relief

18 and therefore no response is required.

19

14. Defendant responds that the allegations contained in Paragraph 14 of the Complaint set

20 forth legal conclusions and therefore no response is required. Defendant further responds that the

21 allegations contained in Paragraph 14, Page 8:23-27 of the Complaint constitute a prayer for relief

22 and therefore no response is required.

23

15. Defendant lacks sufficient knowledge or information to form a belief as to the truth of

24 the allegations contained in Paragraph 15 of the Complaint, and on that basis denies the allegations.

25 To the extent a further response is required, Defendant denies the allegations contained in

26 Paragraph 15 of the Complaint. Defendant further responds that the allegations contained in

27 Paragraph 15 of the Complaint constitute a prayer for relief and legal conclusion and therefore no

28 TACO BELL OF AMERICA, INC.'S FIRST AMENDED ANSWER Case No. 04-CV-04571 JF
3

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Case4:04-cv-04571-PJH Document18 Filed12/08/04 Page4 of 10

1 response is required. Defendant lacks sufficient knowledge or infonnation to fonn a belief as to

2 the truth of the allegations contained in Paragraph 15 relating to Union 76 and on that basis denies

3 the allegations.

4

16. Defendant responds that the allegations contained in Paragraph 16 of the Complaint

5 constitute a prayer for relief and legal conclusions and therefore no response is required; to the

6 extent a response is required, Defendant denies that Plaintiff is entitled to seek attorneys' fees under

7 California Health & Safety Code Section 19953, California Civil Code Sections 54.3 and 55,

8 California Code of Civil Procedure Section 1021.5, or any other laws.

9

17. Defendant responds that the allegations contained in Paragraph 17 of the Complaint

10 constitute a prayer for relief and legal conclusions and therefore no response is required.

11

18. Defendant responds that the allegations contained in Paragraph 18 of the Complaint set

12 forth legal conclusions and therefore no response is required. Defendant further responds that the

13 ailegations contained in Paragraph 18 of the Complaint constitute a prayer for relief and therefore

14 no response is required; to the extent a response is required, Defendant denies that Plaintiff is

15 entitled to seek attorneys' fees under California Civil Code Sections 54.3 and 55 or California Code

16 of Civil Procedure Section 1021.5.

17

19. Defendant repeats, realleges, and incorporates herein by this reference, each of its

18 respective statements, admissions and/or denials, as the case may be, to Paragraphs 1 through 18,

19 inclusive, of the Complaint.

20

20. Defendant responds that the allegations contained in Paragraph 20 of the Complaint set

21 forth legal conclusions and therefore no response is required.

22

21. Defendant responds that the allegations contained in Paragraph 21 of the Complaint set

23 forth legal conclusions and therefore no response is required. Defendant further responds that the

24 allegations contained in Paragraph 21 of the Complaint constitute a prayer for relief and therefore

25 no response is required; to the extent a response is required, Defendant denies that Plaintiff is

26 entitled to seek attorneys' fees under California Civil Code Section 52(a).

27

28 TACO BELL OF AMERICA, !NC.'S FIRST AMENDED ANSWER
Case No. 04-CV-04571 JF
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1

22. Defendant repeats, realleges, and incorporates herein by this reference, each of its

2 respective statements, admissions and/or denials, as the case may be, to Paragraphs 19 through 21,

3 inclusive, of the Complaint.

4

23. Defendant responds that the allegations contained in Paragraph 23 of the Complaint set

5 forth legal conclusions and therefore no response is required.

6

24. Defendant responds that the allegations contained in Paragraph 24 of the Complaint set

7 forth legal conclusions and therefore no response is required.

8

25. Defendant responds that the allegations contained in Paragraph 25 of the Complaint set

9 forth legal conclusions and therefore no response is required.

10

26. Defendant responds that the allegations contained in Paragraph 26 of the Complaint set

11 forth legal conclusions and therefore no response is required.

12

27. Defendant responds that the allegations contained in Paragraph 27 of the Complaint set

13 forth legal conclusions and therefore no response is required.

14

28. Defendant lacks sufficient knowledge or information to form a belief as to the truth of

15 the allegations contained in Paragraph 28 of the Complaint, and on that basis denies the allegations.

16 To the extent a further response is required, Defendant denies the allegations contained in

17 Paragraph 28 of the Complaint. Defendant further responds that the allegations contained in

18 Paragraph 28 of the Complaint set forth legal conclusions and therefore no response is required.

19

29. Defendant lacks sufficient knowledge or information to form a belief as to the truth of

20 the allegations contained in Paragraph 29 ofthe Complaint, and on that basis denies the allegations.

21 To the extent a further response is required, Defendant denies the allegations contained in

22 Paragraph 29 of the Complaint. Defendant further responds that the allegations contained in

23 Paragraph 29 of the Complaint constitute a prayer for relief and therefore no response is required.

24

30. Defendant lacks sufficient knowledge or information to form a belief as to the truth of

25 the allegations contained in Paragraph 30 of the Complaint, and on that basis denies the allegations.

26 To the extent a further response is required, Defendant denies the allegations contained in

27 Paragraph 30 of the Complaint. Defendant further responds that the allegations contained in

28 TACO BELL OF AMERICA, INC.'S FIRST AMENDED ANSWER
Case No. 04-CV-04S71 JF
5

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Case4:04-cv-04571-PJH Document18 Filed12/08/04 Page6 of 10

1 Paragraph 30 ofthe Complaint constitute a prayer for relief and legal conclusions and therefore no

2 response is required.

3

31. Defendant lacks sufficient knowledge or information to form a belief as to the truth

4 of the allegations contained in Paragraph 31 of the Complaint, and on that basis denies the

5 allegations. To the extent a further response is required, Defendant denies the allegations

6 contained in Paragraph 31 of the Complaint. Defendant further responds that the allegations

7 contained in Paragraph 31 of the Complaint constitute a prayer for relief and legal conclusions and

8 therefore no response is required.

9

ANSWER TO PRAYERS FOR RELIEF

10

1. In response to pages 16-17 of the Complaint, paragraphs 1-5, these paragraphs

11 constitute prayers for relief and therefore no response is required. Nonetheless, Defendant denies 12 Plaintiffis entitled to any injunctive relief, preventative relief, or any other relief pursuant to 42 13 U.S.c. Section 12205, California Civil Code Section 52, California Civil Code Section 55, or

14 California Health and Safety Code Section 19953, or any other statute; Defendant denies Plaintiff

15 is entitled to any damages, statutory damages, general damages, or treble damages; Defendant

16 denies Plaintiff is entitled to any attorney's fees, litigation expenses and/or costs of this suit; and

17 Defendant denies that Plaintiff is entitled to any other relief under his Complaint.

18

AFFIRMATIVE DEFENSES TO PLAINTIFF'S COMPLAINT

19

Defendant alleges the following affirmative defenses with respect to the claims alleged in

20 the Complaint, without assuming the burden of proof where the burden of proof rests on Plaintiff:

21

FIRST AFFIRMATIVE DEFENSE

22

1. This court lacks subject matter jurisdiction over this matter because there is no

23 actionable wrong arising under the Americans with Disabilities Act of 1990,42 U.S.C. § 12101 et

24 seq.

25

SECOND AFFIRMATIVE DEFENSE

26

2. This court lacks pendant jurisdiction over all claims arising under California state law,

27 including, but not limited to, claims under California Health and Safety Code § 19955 ~ ~,

28 TACO BELL OF AMERICA, INC.'S FIRST AMENDED ANSWER
Case No. 04-CV-04571 JF
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Case4:04-cv-04571-PJH Document18 Filed12/08/04 Page7 of 10

1 California Civil Code §§ 51, 51.5, 54 et~, and California Business and Professions Code §

2 17200 et seq., because there is no actionable wrong arising under the Americans with Disabilities

3 Act of 1990, 42U.S.C. §12101 etseq.

4

THIRD AFFIRMATIVE DEFENSE

5

3. This court lacks subject matter jurisdiction over this matter because there is no

6 actionable wrong arising under California Health and Safety Code §19955 et seq.

7

FOURTH AFFIRMATIVE DEFENSE

8

4. This court lacks subject matter jurisdiction over this matter because there is no

9 actionable wrong arising under California Civil Code §§ 54,54.1,54.3 et seq.

10

FIFTH AFFIRMATIVE DEFENSE

11

5. This court lacks subject matter jurisdiction over this matter because there is no

12 actionable wrong arising under the Unruh Civil Rights Act, Cal. Civ. Code §§ 51. 51.5 et seq.

13

SIXTH AFFIRMATIVE DEFENSE

14

6. Defendant is performing all readily achievable architectural barrier removal, within its

15 control, required by law, and therefore Plaintiffs Complaint against Defendant is barred.

16

SEVENTH AFFIRMATIVE DEFENSE

17

7. Defendant is performing all repairs to any architectural barrier with alternative methods

18 of access as required by law, and therefore Plaintiffs Complaint against Defendant is barred.

19

EIGHTH AFFIRMATIVE DEFENSE

20

8. Plaintiffs claims are barred, in whole or in part, by the doctrines of estoppel, waiver,

21 laches, and unclean hands. 22

NINTH AFFIRMATIVE DEFENSE

23

9. Some or all of Plaintiffs claims for relief are moot, and are therefore barred.

24

25

26

27

28 TACO BELL OF AMERICA, INC.'S FIRST AMENDED ANSWER
Case No. 04-CV-04S71 JF
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Case4:04-cv-04571-PJH Document18 Filed12/08/04 Page8 of 10

1

TENTH AFFIRMATIVE DEFENSE

2

10. Plaintiff has failed to state a claim upon which relief may be granted with respect to all

3 counts alleged in the Complaint.

4

ELEVENTH AFFIRMATIVE DEFENSE

5

11. Plaintiff has not suffered any loss or harm as a result of any act or omission of

6 Defendant and, therefore, Plaintiffs Complaint against Defendant is barred.

7

TWELFTH AFFIRMATIVE DEFENSE

8

12. Plaintiff has failed to mitigate his damages, if any, and therefore Plaintiffs Complaint

9 against Defendant is barred.

10

THIRTEENTH AFFIRMATIVE DEFENSE

11

13. At all relevant times, Defendant has met all federal and state statutory and regulatory

12 obligations owed to Plaintiff and all other individuals with disabilities, including individuals in

13 wheelchairs, if any, and therefore Plaintiffs Complaint against Defendant is barred.

14

FOURTEENTH AFFIRMATIVE DEFENSE

15

14. At all relevant times, Defendant has complied with all of the Americans with

16 Disabilities Act final rules and Accessibility Guidelines, 28 C.F.R. Ch.1, Part 36, and therefore

17 Plaintiffs Complaint against Defendant is barred.

18

FIFTEENTH AFFIRMATIVE DEFENSE

19

15. Plaintifflacks standing to sue for alleged violations that were not directly experienced

20 by Plaintiff. 21

SIXTEENTH AFFIRMATIVE DEFENSE

22

16. As a separate and additional affirmative defense, Defendant alleges and avers that the

23 imposition of any punitive or exemplary damages in this matter would violate Defendant right to

24 due process oflaw in violation of the California Constitution and the United States Constitution.

25

SEVENTEENTH AFFIRMATIVE DEFENSE

26

17. Plaintiffs claims for injunctive and monetary relief under the Americans with

27 Disabilities Act, 42 U.S.C. §12101 et seq., California Civil Code §§ 54, 54.1, 54.3 et seq., and the

28 TACO BELL OF AMERICA, INC.'S FIRST AMENDED ANSWER
Case No. 04-CV-04S71 JF
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Case4:04-cv-04571-PJH Document18 Filed12/08/04 Page9 of 10

1 Unruh Civil Rights Act, Cal. Civ. Code §§ 51. 51.5 et seq. (collectively, the "ADA Claims"), are

2 duplicative ofthe claims asserted in the first-filed action entitled Moeller v. Taco Bell Corp., Case

3 No. C02 5849 MJJ (N.D. Cal. Dec. 17,2002) (the "Moeller Action"), a certified mandatory class

4 action ofwhich Plaintiff is a class member, and therefore Plaintiffs' ADA Claims against

5 Defendant are barred. 6

EIGHTEENTH AFFIRMATIVE DEFENSE

7

18. This court lacks federal question jurisdiction over all claims arising under California

8 state law, including, but not limited to, claims under California Health and Safety Code § 19955 et

9 seq., California Civil Code §§ 51, 51.5, 54 et seq., California Civil Code §§ 54,54.1,54.3 et seq.,

10 because Plaintiffs claims under the Americans with Disabilities Act of 1990,42 U.S.c. §12101 et

11 seq., are barred by the first-filed Moeller Action.

12

NINETEENTH AFFIRMATIVE DEFENSE

13

19. Plaintiffis a member of the certified mandatory class in the Moeller Action and his

14 ADA Claims against Defendant are duplicative and substantially identical to the claims asserted

15 against Defendant in the Moeller Action, and therefore Plaintiffs' ADA Claims against Defendant

16 should be dismissed or stayed in favor of the Moeller Action.

17

RESERVED

18

20. Defendant presently has insufficient knowledge or information upon which to form a

19 belief as to whether it may have additional, as yet unstated, affirmative defenses available.

20 Defendant hereby gives notice that it intends to rely upon any other defenses that may become

21 available or apparent during the discovery proceedings in this matter and hereby reserve its right to

22 amend the Answer and to assert any such affirmative defense(s).

23

WHEREFORE, Defendant prays for judgment as follows:

24

1. That the Court dismiss Plaintiffs Complaint with prejudice, orders that Plaintiff take

25 nothing by this action, and enters judgment in Defendant' favor;

26

2. That the Defendant be awarded all of its litigation costs and attorneys' fees in this

27 action; and

28 TACO BELL OF AMERICA, INC.'S FIRST AMENDED ANSWER Case No. 04-CV-04571 JF
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Case4:04-cv-04571-PJH Document18 Filed12/08/04 Page10 of 10

1

3. That the Court award such other and further relief as it deems just and equitable.

2 3 DATED: December 8, 2004

SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP

4 5

BY:~~~'1f:-~~~Y4~st~~

6

Attorneys for Defendant

Taco Bell of America, Inc.

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 TACO BELL OF AMERICA, !NC.'S FIRST AMENDED ANSWER
Case No. 04-CV-04571 JF
10
378651.01-Los Angeles Server2A - MSW

I I

 
 Case4:04-cv-04571-PJH Document23 Filed01/03/05 Page1 of 12

1 Richard G. Grotch, Esq. - SBN 127713 CODDINGTON, HICKS & DANFORTH
2 A Professional Corporation, Lawyers 555 Twin Dolphin Drive, Suite 300
3 Redwood City, California 94065-2133 Tel. (650) 592-5400
4 Fax. (650) 592-5027

5 ATTORNEYS FOR Defendants HEDIA PETROLEUM, INC., d/b/a
6 CAMPBELL UNION 76 and BOZORGHADAD TRUST
7

8

UNITED STATES DISTRICT COURT

9

NORTHER DISTRICT OF CALIFORNIA

10

11 ERNESTINA SALDANA-NEILY,

No. C 04 4571 MJJ

12 13 vs.

Plaintiff,

HEDIA PETROLEUM INC.’S AND BOZORGHADAD TRUST’S ANSWER TO PLAINTIFF’S COMPLAINT

14 TACO BELL OF AMERICA, INC.; DOROTHY M. HIURA TRUST; and
15 DOES 1-25; HEDIA PETROLEUM INC., dba CAMBELL UNION 76;
16 BOZORGHADAD TRUST; AND DOES 26-50-Inclusive,
17 Defendants.
18 /
19 COME NOW defendants HEDIA PETROLEUM, INC., d/b/a CAMPBELL UNION 76 and
20 BOZORGHADAD TRUST (hereinafter referred to as “The Union 76 Defendants”) and in response
21 to the complaint of plaintiff on file herein, herewith admit, deny, and aver as hereinafter set forth.
22 I.
23 Responding to paragraph 1 of the complaint, these responding defendants aver that to the
24 extent the allegations purport to recite the damages and other relief to which plaintiff claims to be
25 entitled, no response is required; responding to the remaining allegations therein contained, these
26 responding defendants lack sufficient information to form a belief as to the truth of the allegations
27 therein contained and on that basis deny those allegations.
28

Answer to Complaint – C 04-4571 MJJ

Case4:04-cv-04571-PJH Document23 Filed01/03/05 Page2 of 12

1

II.

2

Responding to paragraph 2 of the complaint, these responding defendants aver that the

3 allegations are merely legal conclusions and that no response is therefore required; to the extent a

4 further, substantive response is required, these defendants deny the remaining allegations therein

5 contained.

6

III.

7

Responding to paragraph 3 of the complaint, these responding defendants aver that the

8 allegations are merely legal conclusions and that no response is therefore required.

9

IV.

10

Responding to paragraph 4 of the complaint, these responding defendants aver that the

11 allegations are merely legal conclusions and that no response is therefore required.

12

V.

13

Responding to paragraph 5 of the complaint, these responding defendants admit that Campbell

14 Union 76 is located at 3145 S. Bascom Ave., Campbell, California; responding to the remaining

15 allegations therein contained, these responding defendants lack sufficient information to form a

16 belief as to the truth of the allegations therein contained and on that basis deny those allegations.

17

VI.

18

Responding to paragraph 6 of the complaint, these responding defendants aver that the

19 allegations are merely legal conclusions and that no response is therefore required.

20

VII.

21

Responding to paragraph 7 of the complaint, these responding defendants admit that

22 Bozorghadad Trust owns the real property located at 3145 S. Bascom Ave., Campbell, California,

23 and that Hedia Petroleum, Inc. operates a business commonly known as Campbell Union 76 at that

24 location; responding to the remaining allegations therein contained, these responding defendants

25 lack sufficient information to form a belief as to the truth of the allegations therein contained and

26 on that basis deny those allegations.

27 ///

28 ///

CODDINGTON, HICKS & DANFORTH

2

A Professional Corp., Lawyers

555 Twin Dolphin Drive, #300

Redwood City, CA 94065 (650) 592-5400

Answer to Complaint – C 04-4571 MJJ

Case4:04-cv-04571-PJH Document23 Filed01/03/05 Page3 of 12

1

VIII.

2

Responding to paragraph 8 of the complaint, these responding defendants lack sufficient

3 information to form a belief as to the truth of the allegations therein contained and on that basis deny

4 those allegations.

5

IX.

6

Responding to paragraph 9 of the complaint, these responding defendants aver that to the

7 extent the allegations are merely legal conclusions, no response is required; to the extent the

8 allegations relate to the Taco Bell defendants, these responding defendants lack sufficient

9 information to form a belief as to the truth of the allegations therein contained and on that basis deny

10 those allegations; to the extent that a further response to paragraph 9 of the complaint is required,

11 these defendants deny the allegations therein contained.

12

X.

13

Responding to paragraph 10 of the complaint, these responding defendants lack sufficient

14 information to form a belief as to the truth of the allegations therein contained and on that basis deny

15 those allegations.

16

XI.

17

Responding to paragraph 11 of the complaint, to the extent the allegations relate to the acts

18 and/or omissions of the plaintiff and/or the Taco Bell defendants, these responding defendants lack

19 sufficient information to form a belief as to the truth of the allegations therein contained and on that

20 basis deny those allegations; to the extent that a further response to paragraph 11 of the complaint

21 is required, these defendants deny the allegations therein contained.

22

XII.

23

Responding to paragraph 12 of the complaint, to the extent the allegations relate to the Taco

24 Bell defendants, these responding defendants lack sufficient information to form a belief as to the

25 truth of the allegations therein contained and on that basis deny those allegations; to the extent that

26 a further response to paragraph 12 of the complaint is required, these defendants deny the allegations

27 therein contained.

28 ///

CODDINGTON, HICKS & DANFORTH

3

A Professional Corp., Lawyers

555 Twin Dolphin Drive, #300

Redwood City, CA 94065 (650) 592-5400

Answer to Complaint – C 04-4571 MJJ

Case4:04-cv-04571-PJH Document23 Filed01/03/05 Page4 of 12

1

XIII.

2

Responding to paragraph 13 of the complaint, to the extent the allegations are merely legal

3 conclusions, no response is required; to the extent that a further response to paragraph 13 of the

4 complaint is required, these defendants deny the allegations therein contained.

5

XIV.

6

Responding to paragraph 14 of the complaint, to the extent the allegations are merely legal

7 conclusions, no response is required; to the extent that a further response to paragraph 14 of the

8 complaint is required, these defendants deny the allegations therein contained.

9

XV.

10

Responding to paragraph 15 of the complaint, these responding defendants aver that to the

11 extent the allegations purport to recite the damages and other relief to which plaintiff claims to be

12 entitled, and to the extent the allegations are merely legal conclusions, no response is required;

13 responding to the remaining allegations therein contained, these responding defendants lack

14 sufficient information to form a belief as to the truth of the allegations therein contained and on that

15 basis deny those allegations.

16

XVI.

17

Responding to paragraph 16 of the complaint, these responding defendants aver that to the

18 extent the allegations purport to recite the damages and other relief to which plaintiff claims to be

19 entitled, and to the extent the allegations are merely legal conclusions, no response is required;

20 responding to the remaining allegations therein contained, these responding defendants lack

21 sufficient information to form a belief as to the truth of the allegations therein contained and on that

22 basis deny those allegations.

23

XVII.

24

Responding to paragraph 17 of the complaint, these responding defendants aver that to the

25 extent the allegations purport to recite the damages and other relief to which plaintiff claims to be

26 entitled, and to the extent the allegations are merely legal conclusions, no response is required; to

27 the extent the allegations relate to the Taco Bell defendants, these responding defendants lack

28 sufficient information to form a belief as to the truth of the allegations therein contained and on that

CODDINGTON, HICKS & DANFORTH

4

A Professional Corp., Lawyers

555 Twin Dolphin Drive, #300

Redwood City, CA 94065 (650) 592-5400

Answer to Complaint – C 04-4571 MJJ

Case4:04-cv-04571-PJH Document23 Filed01/03/05 Page5 of 12

1 basis deny those allegations; to the extent that a further response to paragraph 17 of the complaint

2 is required, these defendants deny the allegations therein contained.

3

XVIII.

4

Responding to paragraph 18 of the complaint, these responding defendants aver that to the

5 extent the allegations purport to recite the damages and other relief to which plaintiff claims to be

6 entitled, and to the extent the allegations are merely legal conclusions, no response is required; to

7 the extent the allegations relate to the Taco Bell defendants, these responding defendants lack

8 sufficient information to form a belief as to the truth of the allegations therein contained and on that

9 basis deny those allegations; to the extent that a further response to paragraph 18 of the complaint

10 is required, these defendants deny the allegations therein contained.

11

XIX.

12

Responding to paragraph 19 of the complaint, these responding defendants reallege and

13 reincorporate their averments, denials and allegations in paragraphs 1 through 18, inclusive, as

14 though fully set forth at this point.

15

XX.

16

Responding to paragraph 20 of the complaint, these responding defendants aver that the

17 allegations are merely legal conclusions and that no response is therefore required.

18

XXI.

19

Responding to paragraph 21 of the complaint, these responding defendants aver that to the

20 extent the allegations purport to recite the damages and other relief to which plaintiff claims to be

21 entitled, and to the extent the allegations are merely legal conclusions, no response is required.

22

XXII.

23

Responding to paragraph 22 of the complaint, these responding defendants reallege and

24 reincorporate their averments, denials and allegations in paragraphs 19 through 21, inclusive, as

25 though fully set forth at this point.

26 ///

27 ///

28 ///

CODDINGTON, HICKS & DANFORTH

5

A Professional Corp., Lawyers

555 Twin Dolphin Drive, #300

Redwood City, CA 94065 (650) 592-5400

Answer to Complaint – C 04-4571 MJJ

Case4:04-cv-04571-PJH Document23 Filed01/03/05 Page6 of 12

1

XXIII.

2

Responding to paragraph 23 of the complaint, these responding defendants aver that the

3 allegations are merely legal conclusions and that no response is therefore required.

4

XXIV.

5

Responding to paragraph 24 of the complaint, these responding defendants aver that the

6 allegations are merely legal conclusions and that no response is therefore required.

7

XXV.

8

Responding to paragraph 25 of the complaint, these responding defendants aver that the

9 allegations are merely legal conclusions and that no response is therefore required.

10

XXVI.

11

Responding to paragraph 26 of the complaint, these responding defendants aver that the

12 allegations are merely legal conclusions and that no response is therefore required.

13

XXVII.

14

Responding to paragraph 27 of the complaint, these responding defendants aver that the

15 allegations are merely legal conclusions and that no response is therefore required.

16

XXVIII.

17

Responding to paragraph 28 of the complaint, these responding defendants aver that to the

18 extent the allegations are merely legal conclusions, no response is required; the extent the allegations

19 relate to the Taco Bell defendants, these responding defendants lack sufficient information to form

20 a belief as to the truth of the allegations therein contained and on that basis deny those allegations;

21 to the extent that a further response to paragraph 28 of the complaint is required, these defendants

22 deny the allegations therein contained.

23 ///

24 ///

25 ///

26 ///

27 ///

28 ///

CODDINGTON, HICKS & DANFORTH

6

A Professional Corp., Lawyers

555 Twin Dolphin Drive, #300

Redwood City, CA 94065 (650) 592-5400

Answer to Complaint – C 04-4571 MJJ

Case4:04-cv-04571-PJH Document23 Filed01/03/05 Page7 of 12

1

XXIX.

2

Responding to paragraph 29 of the complaint, these responding defendants aver that to the

3 extent the allegations are merely legal conclusions, no response is required; the extent the allegations

4 relate to the Taco Bell defendants, these responding defendants lack sufficient information to form

5 a belief as to the truth of the allegations therein contained and on that basis deny those allegations;

6 to the extent that a further response to paragraph 28 of the complaint is required, these defendants

7 deny the allegations therein contained.

8

XXX.

9

Responding to paragraph 30 of the complaint, these responding defendants aver that to the

10 extent the allegations are merely legal conclusions, and to the extent the allegations purport to recite

11 the damages and other relief to which plaintiff claims to be entitled, no response is required; the

12 extent the allegations relate to the Taco Bell defendants, these responding defendants lack sufficient

13 information to form a belief as to the truth of the allegations therein contained and on that basis deny

14 those allegations; to the extent that a further response to paragraph 30 of the complaint is required,

15 these defendants deny the allegations therein contained.

16

XXXI.

17

Responding to paragraph 31 of the complaint, these responding defendants aver that to the

18 extent the allegations are merely legal conclusions, and to the extent the allegations purport to recite

19 the damages and other relief to which plaintiff claims to be entitled, no response is required.

20

XXXII.

21

In response to plaintiff’s prayer for relief, these responding defendants aver that the allegations

22 constitute prayers for relief and therefore no response is required. Nonetheless, these responding

23 defendants deny that plaintiff is entitled to any injunctive relief, preventative relief, or any other

24 relief pursuant to 42 U.S.C. § 12205, California Civil Code § 52, California Civil Code § 55, or

25 California Health and Safety Code § 19953, or any other statute; these responding defendants deny

26 that plaintiff is entitled to any damages, statutory damages, general damages, or treble damages;

27 these responding defendants deny that plaintiff is entitled to any attorneys fees, litigation expenses

28 and/or costs of this suit; and these responding defendants deny that plaintiff is entitled to any other

CODDINGTON, HICKS & DANFORTH

7

A Professional Corp., Lawyers

555 Twin Dolphin Drive, #300

Redwood City, CA 94065 (650) 592-5400

Answer to Complaint – C 04-4571 MJJ

Case4:04-cv-04571-PJH Document23 Filed01/03/05 Page8 of 12

1 relief pursuant to her complaint.

2

AFFIRMATIVE DEFENSES

3

XXXIII.

4

AS A FIRST, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON

5 FILE HEREIN, these answering defendants allege that plaintiff’s complaint, and each cause of

6 action thereof, fails to state facts sufficient to constitute a cause of action against these defendants.

7

XXXIV.

8

AS A SECOND, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON

9 FILE HEREIN, these answering defendants allege that this court lacks subject matter jurisdiction

10 over this matter because there is no actionable wrong arising under the Americans with Disabilities

11 Act of 1990, 42 U.S.C. § 12101 et seq.

12

XXXV.

13

AS A THIRD, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON

14 FILE HEREIN, these answering defendants allege that this court lacks pendant jurisdiction over all

15 claims arising under California state law, including, but not limited to, claims under California

16 Health and Safety Code § 19955 et seq., California Civil Code §§ 51, 51.5, 54 et seq., and California

17 Business and Professions Code § 17200 et seq., because there is no actionable wrong arising under

18 the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq.

19

XXXVI.

20

AS A THIRD, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON

21 FILE HEREIN, these answering defendants allege that this court lacks subject matter jurisdiction

22 over this matter because there is no actionable wrong arising under California Health and Safety

23 Code § 19955 et seq.

24 ///

25 ///

26 ///

27 ///

28 ///

CODDINGTON, HICKS & DANFORTH

8

A Professional Corp., Lawyers

555 Twin Dolphin Drive, #300

Redwood City, CA 94065 (650) 592-5400

Answer to Complaint – C 04-4571 MJJ

Case4:04-cv-04571-PJH Document23 Filed01/03/05 Page9 of 12

1

XXXVII.

2

AS A FOURTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON

3 FILE HEREIN, these answering defendants allege that this court lacks subject matter jurisdiction

4 over this matter because there is no actionable wrong arising under California Civil Code §§ 54,

5 54.1, 54.3 et seq.

6

XXXVIII.

7

AS A FIFTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON

8 FILE HEREIN, these answering defendants allege that this court lacks subject matter jurisdiction

9 over this matter because there is no actionable wrong arising under the Unruh Civil Rights Act, Cal.

10 Civ. Code §§ 51, 51.5 et seq.

11

XXXIX.

12

AS A SIXTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON

13 FILE HEREIN, these answering defendants allege that defendants are performing all readily

14 achievable architectural barrier removal, within their control, required by law, and therefore

15 plaintiff’s complaint against these defendants is barred.

16

XL.

17

AS A SEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON

18 FILE HEREIN, these answering defendants allege that defendants are performing all repairs to any

19 architectural barrier with alternative methods of access as required by law, and therefore plaintiff’s

20 complaint against defendants is barred.

21

XLI.

22

AS AN EIGHTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON

23 FILE HEREIN, these answering defendants allege that plaintiff’s claims are barred, in whole or in

24 part, by the doctrines of estoppel, waiver, laches, and unclean hands.

25 ///

26 ///

27 ///

28 ///

CODDINGTON, HICKS & DANFORTH

9

A Professional Corp., Lawyers

555 Twin Dolphin Drive, #300

Redwood City, CA 94065 (650) 592-5400

Answer to Complaint – C 04-4571 MJJ

Case4:04-cv-04571-PJH Document23 Filed01/03/05 Page10 of 12

1

XLII.

2

AS A TENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON

3 FILE HEREIN, these answering defendants allege that plaintiff has not suffered any loss or harm

4 as a result of any act or omission of these defendants and, therefore, plaintiff’s Complaint against

5 defendants is barred.

6

XLIII.

7

AS AN ELEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT

8 ON FILE HEREIN, these answering defendants allege that plaintiff failed subsequent to the

9 occurrence described in the complaint properly to mitigate her damages and thereby is precluded

10 from recovering those damages which could have reasonably been avoided by the exercise of due

11 care on her part.

12

XLIV.

13

AS A TWELFTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT

14 ON FILE HEREIN, these answering defendants allege, on information and belief, that no removal

15 of barriers or alternative methods of modification are or were “readily achievable” as defined in Title

16 III of the Americans with Disabilities Act of 1990 (42 U.S.C. §12101 et seq., including but not

17 limited to §12818) and 28 C.F.R. Part 36.104.

18

XLV.

19

AS A THIRTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT

20 ON FILE HEREIN, these answering defendants allege that at all relevant times, defendants have met

21 all federal and state statutory and regulatory obligations owed to plaintiff and all other individuals

22 with disabilities, including individuals in wheelchairs, if any, and therefore plaintiff’s complaint

23 against defendants is barred.

24

XLVI.

25

AS A FOURTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE

26 COMPLAINT ON FILE HEREIN, these answering defendants allege that the imposition of any

27 punitive or exemplary damages in this matter would violate defendants’ rights to due process of law

28 in violation of the California Constitution and the United States Constitution.

CODDINGTON, HICKS & DANFORTH

10

A Professional Corp., Lawyers

555 Twin Dolphin Drive, #300

Redwood City, CA 94065 (650) 592-5400

Answer to Complaint – C 04-4571 MJJ

Case4:04-cv-04571-PJH Document23 Filed01/03/05 Page11 of 12

1

XLVII.

2

AS A FIFTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT

3 ON FILE HEREIN, these answering defendants allege that plaintiff failed prior to commencement

4 of this action to exhaust all necessary administrative remedies and therefore plaintiff is precluded

5 from maintaining this action.

6

XLVIII.

7

AS A SIXTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT

8 ON FILE HEREIN, these answering defendants allege that named and/or unnamed third parties

9 were careless, negligent or at fault for the matters alleged in the complaint; that said carelessness,

10 negligence or fault of said named and/or unnamed third parties proximately contributed to the

11 happening of the incident and to the injuries, loss and damage complained of by plaintiff, if any

12 there were; that should plaintiff recover damages, these answering defendants are entitled to have

13 the amount thereof abated, reduced or eliminated to the extent that said named and/or unnamed third

14 parties caused or contributed to plaintiff’s injuries, if any.

15

AS A SEVENTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE

16 COMPLAINT ON FILE HEREIN, these answering defendants allege that plaintiff was herself

17 careless, negligent and at fault for the matters alleged in the complaint; that said carelessness,

18 negligence or fault on plaintiff’s own part proximately contributed to the happening of the incident

19 and to the injuries, loss and damage complained of, if any there were; that should plaintiff recover

20 damages, defendants are entitled to have the amount thereof abated, reduced or eliminated to the

21 extent that plaintiff caused or contributed to her injuries, if any.

22

AS AN EIGHTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE

23 COMPLAINT ON FILE HEREIN, these answering defendants allege that plaintiff acted with full

24 knowledge of all the facts and circumstances surrounding her injuries and assumed the risk of the

25 matters causing her injuries, and that said matters of which plaintiff assumed the risk proximately

26 contributed to the happening of the incident at bar and proximately caused her injuries, if any.

27 ///

28 ///

CODDINGTON, HICKS & DANFORTH

11

A Professional Corp., Lawyers

555 Twin Dolphin Drive, #300

Redwood City, CA 94065 (650) 592-5400

Answer to Complaint – C 04-4571 MJJ

Case4:04-cv-04571-PJH Document23 Filed01/03/05 Page12 of 12

1

WHEREFORE, these answering defendants pray for judgment as follows:

2

1. That plaintiff take nothing by virtue of her complaint on file herein and that this action

3 be dismissed;

4

2. For costs of suit herein incurred;

5

3. For reasonable attorneys’ fees incurred;

6

4. That plaintiff’s requested injunction be denied; and

7

5. For such other and further relief as the Court may deem just and proper.

8 Dated: January 3, 2005

CODDINGTON, HICKS & DANFORTH

9

/s/

10

By:

11

Richard G. Grotch

Attorneys for Defendants

12

Hedia Petroleum, Inc. d/b/a Campbell Union 76

and Bozorghadad Trust

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

CODDINGTON, HICKS & DANFORTH

12

A Professional Corp., Lawyers

555 Twin Dolphin Drive, #300

Redwood City, CA 94065 (650) 592-5400

Answer to Complaint – C 04-4571 MJJ

 
 Case4:04-cv-04571-PJH Document29 Filed01/21/05 Page1 of 32

1 JAMES McMANIS (40958) WILLIAM FAULKNER (83385)
2 SHARON KIRSCH (157157) McMANIS FAULKNER & MORGAN
3 A Professional Corporation 50 West San Fernando Street, 10th Floor
4 San Jose, California 95113 Telephone: 408-279-8700
5 Facsimile: 408-279-3244

6 Attorneys for Defendant DOROTHY M. HIURA TRUST
7

8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

10 ERNESTINA SALDANA-NElLY,

C04-4571 MJJ

11 12 vs.

Plaintiff,

DEFENDANT, DOROTHY M. HIURA TRUST'S, ANSWER TO PLAINTIFF'S

13 TACO BELL OF AMERICA, INC.;

COMPLAINT, AND CROSS CLAIM AGAINST TACO BELL

14

DOROTHY M. HIURA TRUST; and DOES CORPORATION 1-25; HEDIA PETROLEUM, INC., dba

15

CAMPBELL UNION 76; BOZORGHADAD TRUST; and, DOES 26-

16 50, Inclusive,

Hon. Martin J. Jenkins

17

Defendants.

Action Filed: October 28, 2004

Trial Date: Not Yet Set

~~~==~~==~~~=-------~

18 DOROTHYM. HIURA TRUST,

19 20 vs.

Cross-Claimant,

Jury Trial Demanded

21 TACO BELL CORPORATION; and DOES 1-20, inclusive,
22 Cross-Defendant
23

24

25

26

27

28

DEFENDANT, DOROTHY M. HIURA TRUST'S, ANSWER TO PLAINTIFF'S COMPLAINT AND CROSS- CLAIM, Case No. C04-4571 MJJ

Case4:04-cv-04571-PJH Document29 Filed01/21/05 Page2 of 32

1

ANSWER

2

Defendant, DOROTHY M. HIURA TRUST ("Defendant"), on behalf of itself, by and

3 through its attorneys, answers the allegations set forth in Plaintiff, Ernestina Sa1dana-Neily's

4 ("Plaintiff') Complaint (the "Complaint"), and admits, denies, and alleges as follows:

5

1. Defendant lacks sufficient knowledge or information to form a belief as to the

6 truth of the allegations contained in Paragraph 1, Page 1:28-2:9 of the Complaint and on that

7 basis denies the allegations. Defendant responds that the allegations contained in Paragraph 1,

8 Page 2:9-2: 13 of the Complaint set forth legal conclusions and therefore no response is required.

9 Finally, Defendant responds that Paragraph 1, Page 2:13-2:22 ofthe Complaint constitutes a

10 prayer for relief and therefore no response is required.

11

2. Defendant responds that the allegations contained in Paragraph 2 of the

12 Complaint set forth legal conclusions and therefore no response is required.

13

3. Defendant responds that the allegations contained in Paragraph 3 of the

14 Complaint set forth legal conclusions and therefore no response is required.

15

4. Defendant lacks sufficient knowledge or information to form a belief as to the

16 truth of the allegations contained in Paragraph 4 of the Complaint, and on that basis denies the

17 allegations. Defendant further responds that the allegations contained in Paragraph 4 of the

18 Complaint set forth legal conclusions and therefore no response is required.

19

5. Defendant lacks sufficient knowledge or information to form a belief as to the

20 truth of the allegations contained in Paragraph 5, Page 3:10-12 and certain portions of Page 3:14-

21 25 of the Complaint and on that basis denies the allegations. Defendant further responds that the

22 allegations contained in Paragraph 5 ofthe Complaint set forth legal conclusions and therefore

23 no response is required. Defendant admits that it is the owner and lessor of the real property

24 located at 1546 Camden Avenue, Campbell, California ("the Restaurant"). Defendant further

25 admits that the Restaurant is a public accommodation.

26

6. Defendant responds that the allegations contained in Paragraph 6 of the

27 Complaint set forth legal conclusions and therefore no response is required.

28
2 DEFENDANT, DOROTHY M. HIURA TRUST'S, ANSWER TO PLAINTIFF'S COMPLAINT AND CROSS- CLAIM, Case No. C04-4571 MJJ

Case4:04-cv-04571-PJH Document29 Filed01/21/05 Page3 of 32

1

7. Defendant responds that the allegations contained in Paragraph 7 of the

2 Complaint set forth legal conclusions and therefore no response is required, except that

3 Defendant admits that it is the owner and lessor of the Restaurant. Defendant is informed and

4 believes that Taco Bell Corp., a California corporation, is the lessee of the Taco Bell restaurant

5 located at 3145 S. Bascom Avenue, Campbell, California. Defendant lacks sufficient knowledge

6 or information to form a belief as to the truth of the allegations contained in Paragraph 7 relating

7 to Defendant, Taco Bell of America, Inc., or to Defendants, Redia Petroleum, Inc. and

8 Bozorghadad Trust (hereafter jointly "Union 76), and on that basis denies the allegations. To the

9 extent a further response is required, Defendant denies the allegations contained in Paragraph 7

10 of the Complaint.

11

8. Defendant lacks sufficient knowledge or information to form a belief as to the

12 truth of the allegations contained in Paragraph 8 of the Complaint and on that basis denies the

13 allegations.

14

9. Defendant responds that the allegations contained in Paragraph 9 of the

15 Complaint set forth legal conclusions and therefore no response is required. Defendant lacks

16 sufficient knowledge or information to form a belief as to the truth of the allegations contained in

17 Paragraph 9 relating to Union 76 and on that basis denies the allegation. To the extent a further

18 response is required, Defendant denies the allegations contained in Paragraph 9 of the

19 Complaint.

20

10. Defendant lacks sufficient knowledge or information to form a belief as to the

21 truth of the allegations contained in Paragraph 10 of the Complaint and on that basis denies the

22 allegations. To the extent a further response is required, Defendant denies the allegations

23 contained in Paragraph 10 of the Complaint.

24

11. Defendant lacks sufficient knowledge or information to form a belief as to the

25 truth of the allegations contained in Paragraph 11 of the Complaint and on that basis denies the

26 allegations. To the extent a further response is required, Defendant denies the allegations

27 contained in Paragraph 11 of the Complaint.

28 III
3 DEFENDANT, DOROTHY M. HIURA TRUST'S, ANSWER TO PLAINTIFF'S COMPLAINT AND CROSS- CLAIM, Case No. C04-4571 MJJ

Case4:04-cv-04571-PJH Document29 Filed01/21/05 Page4 of 32

1

12. Defendant lacks sufficient knowledge or information to form a belief as to the

2 truth of the allegations contained in Paragraph 12 of the Complaint, and on that basis denies the

3 allegations. To the extent a further response is required, Defendant denies the allegations

4 contained in Paragraph 12 of the Complaint.

5

13. Defendant responds that the allegations contained in paragraph 13 of the

6 Complaint set forth legal conclusions and therefore no response is required. Defendant further

7 responds that the allegations contained in Paragraph 13, Page 8: 15-19 of the Complaint

8 constitute a prayer for relief and therefore no response is required.

9

14. Defendant responds that the allegations contained in Paragraph 14 of the

10 Complaint set forth legal conclusions and therefore no response is required. Defendant further

11 responds that the allegations contained in Paragraph 14, Page 8:23-27 ofthe Complaint

12 constitute a prayer for relief and therefore no response is required.

13

15. Defendant lacks sufficient knowledge or information to form a belief as to the

14 truth of the allegations contained in Paragraph 15 of the Complaint, and on that basis denies the

15 allegations. To the extent a further response is required, Defendant denies the allegations

16 contained in Paragraph 15 of the Complaint. Defendant further responds that the allegations

17 contained in Paragraph 15 of the Complaint constitute a prayer for relief and legal conclusion

18 and therefore no response is required. Defendant lacks sufficient knowledge or information to

19 form a belief as to the truth of the allegations contained in Paragraph 15 relating to Union 76 and

20 on that basis denies the allegations.

21

16. Defendant responds that the allegations contained in Paragraph 16 of the

22 Complaint constitute a prayer for relief and legal conclusions and therefore no response is

23 required; to the extent a response is required, Defendant denies that Plaintiff is entitled to seek

24 attorneys' fees under California Health and Safety Code Section 19953, California Civil Code

25 Sections 54.3 and 55, California Code of Civil Procedure Section 1021.5, or any other laws.

26

17. Defendant responds that the allegations contained in Paragraph 17 of the

27 Complaint constitute a prayer for relief and legal conclusions and therefore no response is

28 required.
4 DEFENDANT, DOROTHY M. HIURA TRUST'S, ANSWER TO PLAINTIFF'S COMPLAINT AND CROSS- CLAIM, Case No. C04-4571 MJJ

Case4:04-cv-04571-PJH Document29 Filed01/21/05 Page5 of 32

1

18. Defendant responds that the allegations contained in Paragraph 18 of the

2 Complaint set forth legal conclusions and therefore no response is required. Defendant further

3 responds that the allegations contained in Paragraph 18 of the Complaint constitute a prayer for

4 relief and therefore no response is required; to the extent a response is required, Defendant

5 denies that Plaintiff is entitled to seek attorneys' fees under California Civil Code Sections 54.3

6 and 55 or California Code of Civil Procedure Section 1021.5.

7

19. Defendant repeats, realleges, and incorporates herein by this reference, each of its

8 respective statements, admissions andlor denials, as the case may be, to Paragraphs I through 18,

9 inclusive, of the Complaint.

10

20. Defendant responds that the allegations contained in Paragraph 20 of the

11 Complaint set forth legal conclusions and therefore no response is required.

12

21. Defendant responds that the allegations contained in Paragraph 21 of the

13 Complaint set forth legal conclusions and therefore no response is required. Defendant further

14 responds that the allegations contained in Paragraph 21 of the Complaint constitute a prayer for

15 relief and therefore no response is required; to the extent a response is required, Defendant

16 denies that Plaintiff is entitled to seek attorneys' fees under California Civil Code Section 52(a).

17

22. Defendant repeats, realleges, and incorporates herein by this reference, each of its

18 respective statement, admissions and/or denials, as the case may be, to Paragraphs 19 through 21,

19 inclusive, of the Complaint.

20

23. Defendant responds that the allegations contained in Paragraph 23 of the

21 Complaint, set forth legal conclusions and therefore no response is required.

22

24. Defendant responds that the allegations contained in Paragraph 24 of the

23 Complaint set forth legal conclusions and therefore no response is required.

24

25. Defendant responds that the allegations contained in Paragraph 25 of the

25 Complaint set forth legal conclusions and therefore no response is required.

26

26. Defendant responds that the allegations contained in Paragraph 26 of the

27 Complaint set forth legal conclusions and therefore no response is required.

28 III
5 DEFENDANT, DOROTHY M. HIURA TRUST'S, ANSWER TO PLAINTIFF'S COMPLAINT AND CROSS- CLAIM, Case No. C04-4571 MJJ

Case4:04-cv-04571-PJH Document29 Filed01/21/05 Page6 of 32

1

27. Defendant responds that the allegations contained in Paragraph 26 of the

2 Complaint set forth legal conclusions and therefore no response is required.

3

28. Defendant lacks sufficient knowledge or information to form a belief as to the

4 truth of the allegations contained in Paragraph 28 of the Complaint, and on that basis denies the

5 allegations. To the extent a further response is required, Defendant denies the allegations

6 contained in Paragraph 28 of the Complaint. Defendant further responds that the allegations

7 contained in Paragraph 28 of the Complaint set forth legal conclusions and therefore no response

8 is required.

9

29. Defendant lacks sufficient knowledge or information to form a belief as to the

10 truth of the allegations contained in Paragraph 29 of the Complaint, and on that basis denies the

11 allegations. To the extent a further response is required, Defendant denies the allegations

12 contained in Paragraph 29 of the Complaint. Defendant further responds that the allegations

13 contained in Paragraph 29 of the Complaint constitute a prayer for relief and therefore no

14 response is required.

15

30. Defendant lacks sufficient knowledge or information to form a belief as to the

16 truth of the allegations contained in Paragraph 30 of the Complaint, and on that basis denies the

17 allegations contained Paragraph 30 of the Complaint. Defendant further responds that the

18 allegations contained in Paragraph 30 of the Complaint constitute a prayer for relief and legal

19 conclusions and therefore no response is required.

20

31. Defendant lacks sufficient knowledge of information to form a belief as to the

21 truth of the allegations contained in Paragraph 31 of the Complaint, and on that basis denies the

22 allegations. To the extent a further response is required, Defendant denies the allegations

23 contained in Paragraph 31 of the Complaint. Defendant further responds that the allegations

24 contained in Paragraph 31 of the Complaint constitute a prayer for relief and legal conclusions

25 and therefore no response is required.

26

ANSWER TO PRAYERS FOR RELIEF

27

1. In response to pages 16-17 of the Complaint, paragraphs 1-5, these paragraphs

28 constitute prayers for relief and therefore no response is required. Nonetheless, Defendant
6 DEFENDANT, DOROTHY M. HIURA TRUST'S, ANSWER TO PLAINTIFF'S COMPLAINT AND CROSS- CLAIM, Case No. C04-4571 MJJ

Case4:04-cv-04571-PJH Document29 Filed01/21/05 Page7 of 32

1 denies Plaintiff is entitled to any injunctive relief, preventative relief, or any other relief pursuant

2 to 42 U.S.C. Section 12205, California Civil Code Section 52, California Civil Code Section 55,

3 or California Health and Safety Code Section 19953, or any other statute; Defendant denies

4 Plaintiff is entitled to any damages, statutory damages, general damages, or treble damages;

5 Defendant denies Plaintiff is entitled to attorney's fees, litigation expenses and/or costs of this

6 suite; and Defendant denies Plaintiff is entitled to any other relief under his Complaint.

7

AFFIRMATIVE DEFENSES TO PLAINTIFF'S COMPLAINT

8

Defendant alleges the following affirmative defenses with respect to the claims alleged in

9 the Complaint, without assuming the burden ofproof where the burden of proof rests on

10 Plaintiff:

11

FIRST AFFIRMATIVE DEFENSE

12

1. This court lacks subject matter jurisdiction over this matter because there is no

13 actionable wrong arising under the Americans with Disabilities Act of 1990,42 U.S.C. § 12101

14 et~

15

SECOND AFFIRMATIVE DEFENSE

16

2. This court lacks pendant jurisdiction over all claims arising under California state

17 law, including, but not limited to, claims under California Health and Safety Code § 19955 et

18 seq., California Civil Code §§ 51, 51.5, 54 et ~ and California Business and Professions Code

19 § 17200 et ~ because there is no actionable wrong arising under the Americans with

20 Disabilities Act of 1990,42 U.S.C. § 12101, et seq.

21

THIRD AFFIRMATIVE DEFENSE

22

3. This court lacks subject matter jurisdiction over this matter because there is no

23 actionable wrong arising under California Health and Safety Code § 19955 et seq.

24

FOURTH AFFIRMATIVE DEFENSE

25

4. This court lacks subject matter jurisdiction over this matter because there is no

26 actionable wrong arising under California civil Code §§ 54, 54.1, 54.3 et seq.

27 III

28 III
7 DEFENDANT, DOROTHY M. HIURA TRUST'S, ANSWER TO PLAINTIFF'S COMPLAINT AND CROSS- CLAIM, Case No. C04-4571 MJJ

Case4:04-cv-04571-PJH Document29 Filed01/21/05 Page8 of 32

1

FIFTH AFFIRMATIVE DEFENSE

2

5. This court lacks subject matter jurisdiction over this matter because there is no

3 actionable wrong arising under the Unruh Civil Rights Act, Cal. Civ. Code §§ 51, 51.5 et seq.

4

SIXTH AFFIRMATIVE DEFENSE

5

6. Defendant is performing all readily achievable architectural barrier removal,

6 within its control, required by law, and therefore Plaintiffs Complaint against Defendant is

7 barred.

8

SEVENTH AFFIRMATIVE DEFENSE

9

7. Defendant is performing all repairs to any architectural barrier with alternative

10 methods of access as required by law, and therefore Plaintiff s Complaint against Defendant is

11 barred.

12

EIGHTH AFFIRMATIVE DEFENSE

13

8. Plaintiffs claims are barred, in whole or in part, by the doctrines of estoppel,

14 waiver, laches, and unclean hands.

15

NINTH AFFIRMATIVE DEFENSE

16

9. Some or all of Plaintiffs claims for relief are moot, and are therefore barred.

17

TENTH AFFIRMATIVE DEFENSE

18

10. Plaintiff has failed to state a claim upon which relief may be granted with respect

19 to all counts alleged in the Complaint.

20

ELEVENTH AFFIRMATIVE DEFENSE

21

11. Plaintiff has not suffered any loss or harm as a result of any act or omission of

22 Defendant and, therefore, Plaintiffs Complaint against Defendant is barred.

23

TWELFTH AFFIRMATIVE DEFENSE

24

12. Plaintiff has failed to mitigate her damages, if any, and therefore Plaintiffs

25 Complaint against Defendant is barred.

26

THIRTEENTH AFFIRMATIVE DEFENSE

27

13. At all relevant times, Defendant has met all federal and state statutory and

28 regulatory obligations owed to Plaintiff and all other individuals with disabilities, including
8 DEFENDANT, DOROTHY M. HIURA TRUST'S, ANSWER TO PLAINTIFF'S COMPLAINT AND CROSS- CLAIM, Case No. C04-4571 MJJ

Case4:04-cv-04571-PJH Document29 Filed01/21/05 Page9 of 32

1 individuals in wheelchairs, if any, and therefore Plaintiffs Complaint against Defendant is

2 barred.

3

FOURTEENTH AFFIRMATIVE DEFENSE

4

14. At all relevant times, Defendant has complied with all of the Americans with

5 Disabilities Act final rules and Accessibility Guidelines, 28 C.F.R. Ch. 1, Part 36, and therefore

6 Plaintiffs Complaint against Defendant is barred.

7

FIFTEENTH AFFIRMATIVE DEFENSE

8

15. Plaintiff lacks standing to sue for alleged violations that were not directly

9 experienced by Plaintiff.

10

SIXTEENTH AFFIRMATIVE DEFENSE

11

16. As a separate and additional affirmative defense, Defendant alleges and avers that

12 the imposition of any punitive or exemplary damages in this matter would violate Defendant's

13 right to due process of law in violation of the California Constitution and of the United States

14 Constitution.

15

SEVENTEENTH AFFIRMATIVE DEFENSE

16

17. Plaintiffs claims for injunctive and monetary relief under the Americans with

17 Disabilities Act, 42 U.S.C. §12101 et ~ California Civil Code §§ 54, 54.1, 54.3 et ~ and

18 the Unruh Civil Rights Act, Cal. Civ. Code §§ 51, 51.5 et seq. (collectively, the "ADA Claims"),

19 are duplicative of the claims asserted in the first-filed action entitled Moeller v. Taco Bell Corp.,

20 Case No. C02 5849 MJJ (N.D. Cal. Dec. 17,2002) (the "Moeller Action"), a certified mandatory

21 class action of which Plaintiff is a class member, and therefore Plaintiffs' ADA Claims against

22 Defendant are barred.

23

EIGHTEENTH AFFIRMATIVE DEFENSE

24

18. The court lacks federal question jurisdiction over all claims arising under

25 California state law, including, but not limited to, claims under California Health and Safety

26 Code § 19955 et ~ California Civil Code §§ 51, 51.5, 54 et seq., because Plaintiffs claims

27 under the Americans with Disabilities Act of 1990,42. U.S.C. §12101 et ~ are barred by the

28 first-filed Moeller Action.
9 DEFENDANT, DOROTHY M. HIURA TRUST'S, ANSWER TO PLAINTIFF'S COMPLAINT AND CROSS- CLAIM, Case No. C04-4571 MJJ

Case4:04-cv-04571-PJH Document29 Filed01/21/05 Page10 of 32

1

NINETEENTH AFFIRMATIVE DEFENSE

2

19. Plaintiff is a member of the certified mandatory class in the Moeller Action and

3 her ADA Claims against Defendant are duplicative and substantially identical to the claims

4 asserted against Defendant in the Moeller Action, and therefore Plaintiffs' ADA Claims against

5 Defendant should be dismissed or stayed in favor of the Moeller Action.

6

RESERVED

7

20. Defendant presently has insufficient knowledge or information upon which to

8 form a belief as to whether it may have additional, as yet unstated, affirmative defenses

9 available. Defendant hereby gives notice that it intends to rely upon any other defenses that may

10 become available or apparent during the discovery proceedings in this matter and hereby reserve

11 its right to amend the Answer and to assert any such affirmative defenses(s).

12

13

CROSS-CLAIM

14

PARTIES

15

1. Cross-claimant DOROTHY M. HIURA TRUST ("the Hiura Trust") is, and at all

16 times herein mentioned was, a trust organized and existing under the laws of the State of

17 California. Dorothy M. Hiura ("Ms. Hiura") is the trustor of the Hiura Trust.

18

2. Cross-claimant is informed and believes, and thereon alleges, that cross-defendant

19 Taco Bell Corporation ("Taco Bell") is, and all times herein mentioned was, a corporation

20 organized and existing under the laws of the State of California with its principal place of

21 business in Irvine, Orange County, California, and that Taco Bell of America, Inc., a named

22 defendant in the complaint, is a subsidiary of Taco Bell Corporation.

23

3. Cross-claimant is ignorant of the true names and capacities of cross-defendants

24 DOES 1-20, inclusive, and therefore cross-claims against these cross-defendants by such

25 fictitious names. The Hiura Trust will amend this cross-claim to allege their true names and

26 capacities when ascertained.

27

GENERAL ALLEGATIONS

28

4. The Hiura Trust is the current owner of real property located at 1546 Camden

10 DEFENDANT, DOROTHY M. HIURA TRUST'S, ANSWER TO PLAINTIFF'S COMPLAINT AND CROSS- CLAIM, Case No. C04-4571 MJJ

Case4:04-cv-04571-PJH Document29 Filed01/21/05 Page11 of 32

1 Avenue, County of Santa Clara, California ("the Restaurant" or "the Property"). The Hiura Trust

2 obtained ownership ofthe property in or about 1990. Up until that time, the property was owned

3 by Ms. Hiura.

4

5. On March 18, 1969, Ms. Hiura and Taco Bell entered into a lease agreement for

5 the Property. A copy of the lease agreement is attached hereto as Exhibit A and incorporated by

6 reference. The parties understood that Taco Bell would use the property for a Taco Bell retail

7 food outlet. The lease was to run for twenty (20) years, beginning on the day that Taco Bell

8 opened the store for business to the public.

9

6. Pursuant to paragraph 5 of the lease, Taco Bell has the right to make

10 "improvements, additions, or alterations to the premises as it desires[.]"

11

7. Pursuant to paragraph 6 of the lease, Taco Bell will, at its own expense, will

12 "maintain and keep in an orderly condition and in good state of repair all drive-in restaurant

13 areas, both interior and exterior of demised premises and parking areas[.]"

14

8. There have been a total of five (5) amendments to the original lease agreement.

15 None of these amendments altered or modified the provisions of paragraphs 5 or 6 as set forth in

16 the original lease agreement.

17

9. The Complaint alleges that the Restaurant fails to comply with provisions of the

18 laws of the State of California and the United States, relating to disabled persons access.

19

10. Taco Bell is a corporation with numerous retail food outlets throughout

20 California, as well as the United States. As a national company, Taco Bell should be well aware

21 of the requirements, mandates, and prohibitions, of the applicable law.

22

11. During the period that Taco Bell has leased the property, it has undertaken

23 upgrades, improvements, and remodels of the retail food outlet located on the property.

24

12. Taco Bell, as the lessee, had the right to made alterations to the property.

25

13. Taco Bell, as the lessee, was required to maintain and keep in a good state of

26 repair, both the interior and exterior locations of the property, including the parking lot.

27

14. Maintaining the property in a good state of repair and keeping it in an orderly

28 condition required Taco Bell to comply with applicable law.
11 DEFENDANT, DOROTHY M. HIURA TRUST'S, ANSWER TO PLAINTIFF'S COMPLAINT AND CROSS- CLAIM, Case No. C04-4571 MJJ

Case4:04-cv-04571-PJH Document29 Filed01/21/05 Page12 of 32

1

15. If it is determined in the original action that, under applicable law, improvements,

2 alterations and additions were or are required to comply with applicable law, Taco Bell has failed

3 to make such improvements, alterations and additions.

4

FIRST CAUSE OF ACTION

5

Indemnity

6

(Against Cross-Defendant Taco Bell Corporation)

7

16. Cross-claimant hereby incorporates by reference paragraphs 1 through 15 of this

8 cross-claim as if fully set forth herein.

9

17. On or about October 28,2004, Ernestina Saldana-Neily ("plaintiff'), brought an

10 action against defendant and cross-claimant, The Riura Trust, in the United States District Court

11 for the Northern District of California, Case No. C04-4571 MJJ. Plaintiffs complaint asks for

12 both injunctive relief and damages pursuant to 42 U.S.C. §§ 12101 et seq., California Civil Code

13 §§ 51, 52, 54, 54.1, 54.3, and 55, and California Realth and Safety Code §§ 19955-19959.

14 Plaintiff also asks for attorney's fees and costs.

15

18. As lessor, The Riura Trust has performed all the conditions and obligations to be

16 performed on its part as set forth under the lease agreement with Taco Bell.

17

19. As lessee, Taco Bell failed to perform all the conditions and obligations to be

18 performed on its part under the terms of the lease agreement as heretofore alleged if it is

19 determined that, under applicable law, improvements, alterations and additions were or are

20 required to comply with applicable law, and that Taco Bell has failed to make such

21 improvements, alterations and additions.

22

20. By reason of the foregoing, cross-claimant is entitled to be indemnified by cross-

23 defendant for any sum awarded to plaintiff to be paid by The Riura Trust.

24

21. The Riura Trust has incurred, and continues to incur, necessary and reasonable

25 attorney's fees and other legal costs in prosecuting the action against Taco Bell. The Riura Trust

26 is entitled to recover these fees and costs from Taco Bell. The Riura Trust does not know the

27 full amount thereof at this time and will move to amend this cross-claim to state the amount

28 when it becomes known to it, or on proof thereof.
12 DEFENDANT, DOROTHY M. HIURA TRUST'S, ANSWER TO PLAINTIFF'S COMPLAINT AND CROSS- CLAIM, Case No. C04-4571 MJJ

Case4:04-cv-04571-PJH Document29 Filed01/21/05 Page13 of 32

1

WHEREFORE, Cross-claimant prays for judgment as set forth below.

2

PRAYER FOR RELIEF

3

WHEREFORE, Defendant and The Hiura Trust, prays for judgment as follows:

4

1. That the Court dismiss Plaintiffs Complaint with prejudice, orders that Plaintiff

5 take nothing by this action, and enters judgment in Defendant's favor;

6

2. For an amount, according to proof, as indemnity by Cross-defendant for liability

7 incurred as alleged above;

8

3. For attorney's fees and costs incurred in defending and resolving the claim of

9 Ernestina Saldana-Neily;

10

4. For attorney's fees and costs herein incurred for the prosecution of the cross-claim

11 against Taco Bell; and

12

5. For such other and further relief such other and further relief as the Court deems

l3 just and equitable.

14 DATED: January 21,2005
15

McMANIS FAULKNER & MORGAN

16

17

WILLIAM FAULKNER

18

Attorneys for Defendant

DOROTHY M. HIURA TRUST

19

20

DEMAND FOR JURY TRIAL

21 To the extent permitted by law, defendant and cross-claimant, Dorothy M. Hiura Trust,
22 respectfully demands a trial by jury in the above-entitled cause.
23

24 DATED: January 21,2005 25

McMANIS FAULKNER & MORGAN
~~

26

WILLIAM FAULKNER

27

Attorneys for Defendant

DOROTHY M. HIURA TRUST

28

13 DEFENDANT, DOROTHY M. HIURA TRUST'S, ANSWER TO PLAINTIFF'S COMPLAINT
AND CROSS- CLAIM, Case No. C04-4571 MJJ

Case4:04-cv-04571-PJH Document29 Filed01/21/05 Page14 of 32
EXHIBIT A

Case4:04-cv-04571-PJH

. ........ _._ ......."""'..~,....-.:.-:--..............". . ,

I ." ~' .

!..

Document29

1t~(, I,Lll. f. (,u,r::I:.. C'. ,: ;;,:,rl(::

Filed01/21/05 Page15 of 32

1':.6,1

C;; l' f'; _~!'~_f!~ra ______-:-_._.•• St.le c! _ Callfomla _______ , (\t'scribc:d

! !:' ., f;, I I ~,:,: _14t .~.dl.t.J!!!c:.! No •. 64'!t_.9~piQ Tra~~~-,._l_.,--_~_
.----- ---_ _ .... ._--------------
.,- " .-- ---_.._-----_._-----
._.-..... --. -" ----- -----------,------

. - o ..~ ;:.-':':'; =. ::::...:.c:.::..=-.-==-===:.::=--==::::-:::- --..-.------------

t":,, •!"'f "j!;, ;,11 .::ppurtCI'I..:OCl:s. e,,!.Cf;lcnts, ~lhd rI9ht~·of~.w~! t~t~~'~~'~~~;:iI~~<~~~~~

y ..-. "ne! r.,,·, ': f,.,r t 1cIJ1"r) dc~crlb··d In r)<hlbh,·'A'I·proyld~: ~Y:'~e,,~o(~ ~:.~~~~~:~-i;~~

lot .-do <,::1 ,.h.:'~ il pilrt hereof.

. , .~' ...,.... <,:>~'~'~,;~" .:.t:.~}~~:.,~~Iil
,- ':". ';'~.~"'>. ~~; !,. ,~ .:. ," •••-'.,....

.. 2. J£..ruj: The tcrr.'l of this leueosholtl !l1I'for •. 'perfod Or·
';. .: .....

l_.20_) i't"M"S, cC';"lIcnclns un tilt' first cay 0' the "Jrllt clIJtnd.r InOIHh

II,!: l;.,~ ""'OIl(' of P~foscssl(ln". The "dilte 0'. possessIon" shlll1 b~ dcfln~:'~~·.'

ci.-::{' Ui':Jil I/hic'" lp.sser' c.'p~'ns It~ Herc for bu~lness .to the pub) Ie.'

3.

III a r..::m(hly

sh~11 be p~ld by

Case4:04-cv-04571-PJH Document29 Filed01/21/05 Page16 of 32

" b ,_ t,:,i',it

".'~, r " \
, "'.

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II, ':> .. (i ',: Ill .• [;.II;I~il "C" i~ 'I~t 1'I'I',>::Jrl: .,,: rloo.')' tv I.,-':;t-t,c.lv,'r~ n, II q~

p"'rL

c.i

t: i:

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lh:I,

lhi!.

•. :.;r\·r::,:'~iit l:il,1

n~'h·rlt,,;'lc~·:.

bL'

C'r~~th·,·. U;

{I'l.l':,

;:,:'

lC'$! ~:: \'1 i II f u rr. i sh the SJ j cJ riot' r' Ic):l to Lcs!o\)rpr,i¥O~: .:l.~\~!.~~:.~Ci':-~~6f~,e~.~:~~:~:~:~,:. 'J.~'~{i>

(C,;;q rI.'c.1 iOI' h,;/I'in pro..-Jdc.,d for. Thr::.P.lo(PI ~n wrH :b~':pWpn':cd '~iilie'.'t.~#"~;;.~£j~~~:

• -", ,..:

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.~~ ~'~. ••.

::1.0',,:.

'.~~'~lr~~~'~~;~i~~i~

'-r)(~ fl':,-,i~h·;: to the: les~or, .md· shall be Inltl&lJc~by:c~~~'~~~~;P&r..!!c~;>~Y~~~~~;:::-~~tr

~Ij(! ntL'::h"d to lbi!. I,,~~e lJ9rccr,Wllt ~s E>:hlt1lt uClI, The cos'i:~'r t~;'b~'i'1d'lri~j,:~:~~:/~:?·!::

.

'"

. '.' '. ". ". .';, .~.;~.~.~.~ ~~ ';'~:~>:~I:~i-:

.:·nd i:,;H(",'(:,,(:i;h 5hu ll inclut!;: tl\" cost'o( the Ll.Illcllog·.pcrJ:llt. D rea$onyblc ··>:.,~:.';·:~,·i;
, ,,' ,: ~ ".~' .. ,.. ", ~;'. '. :, ,'.:. ~'. ,:,;,';.~t::;·~'i'''~r,;.~:~·:.J::~·!'~·2. ~:.~

. c:l"r:.;,-'

(or

tr.e

1'1 il:'!!l

lIIIU

sp!"cif Icot tons" .' : '.

ilrc.:l~()~flbl~ ch~nl",for. thc<~$t 'o'pt~<~: ::.,:.i, '" '.! .,:~"'." :~":><' .~~ ~.:~ ·~'~·~:'·~·<'>~:·~·~~~:~;~)<~:>~~~:.{7-;-'~'~~~'·:~-;:":~~:'~,~~

P:'j"'tiCJ:, l:f the PI,.t !'I,m. <Inri (l contractor1 s completlon ,bond.;,:'~:::·<.":·':::,,;.';,:~;';,:.~~:""~:
......,-..',....
b. l!'S~l)r ilgrc~:s to con~truct Dnd p"y fo'r the cost of brInging ;)'11 ,

l't iIi t ;,,' tl) th. J" ::;~i!'''~, Pil'/ f('r ,"lilY ne:ct's:;ary street Irnjlrovcm~mt c.osts IncJuc!h'9

t : •. j' I •• ;'
r' I ' !"'. t. Ii .(1" ','H'" lo put th': sid(! 101 In .:' CQllclltlon ",hereby th\: builc!in!ls t\nd

c, Lcc.!(,( ~hdl (ir~t CI~taln' If'S!.l·(·'S \'/I'llLt'n ui'l'rL1V,,1 ("( ,1,(, ,'on· ~ ~~:.:.i:'.1 ((" cri,l.~ cntcrc.,~ inte, by Le~sor for the construction of $i'ld buildIngs

,p.

,

UI~I\ I' \: ~:.id c(~nlri:Ct.. lc~~or shalJ pily for the entIre .cost or the c.onstfue&l.on::..

......

or C(: ;'l kt ie" I.:jn.:~. In the event that the CJ.Jst of the construct Ion the bul JdlnSI

'.

"

or .;::n~ i,~:'r'-,v(: :lIts exceeds the sUr.! thirty-five thousand~d.;;;o~lI;,;a~.rs.;-._ _ _ _ _ _ dollcrs.

($...35~OOO.....QQ. ___ - - - ) ,

after

deduct ing

all

of

t.le

costs

.. nd

expenses
,

dC5" CrJ.bC'd:.

"
~

in ~ub-p:r~sr~ph (~) <lGovc, then the said rcnt~J in Par<l9r~?h 3 shall be Incrra~cd

r.;c>nthly 'by <In ,,:!'ount e:jual to 1/l2th of 10% 0' sc:lid excess (or the ~n:lrc term of

thi!> Ie,'!>£!. Lesst:c shall not be L.Jund to ;lny Increase In. rcn~~il unlcn Ith&ls' .' cj'lj')ro ... ~d the ccnstruction contr.:tct and ~Il chc:>n9t! orders In wrlt~'ng:~o'r shdl It

be bound to Jny incrca~c in the event the construction co~ts exceed the c:ontr~ct

C. Lr5Scc shall at all tim~s have the right to in~?:Cl the ?rozrc~s of CQ",,::.:c:t;O;l of if:l,:HovC'~'~r'lS uS prodded herein. If l,:,~s('c 51-.,,1' !Jive lc~sor f\Otic(

Case4:04-cv-04571-PJH Document29 Filed01/291/05 Page17 of 32

,C. " ;"':~" . -.., I. ",J "., ",," II,."

O. ,'," 0",'' ,:.'.;" ;0, f , •..• "< f

;;;,," '.'"

";"~ I'i,;," PL.: rl. ". fc"~('I,' i:~jI(:"~ (0 Ci·Il!." Its r.(lntl;>C'!or5 or ~1'!'C(·I'F~lOI:. te.

•

'3' L " ,

.... .

prc,";,;iy ".·.k.: c{/rrl·ction~. 1l0~J"vl!T. ncllhrr thl." prlvlll'gc herc-In !)ri'n~lO le'H~ .,'.... .

10 ....

r;: •• I..'
~ I·.-·j

!.lldl in~I>·::ction!:. v.~r ur ~rly right

n
or

or th...
le~scc

nl.)ldn~.of. ~uch l·iupcctlo~~'by'··i~~s~i».•"~\:tPt;';J·~:.· to r~~ q"u, lIr'e g~,d..~..~.n'd:~.~.>. ~:,r:'~!...~. :?,"~'\.'~·:..r'..:~:..~:..~ :,tJ~..i...,"~.'~~~t.:~...~~:-=:-~~\~!;~.~~{7i.~.~~

i"i""·,:.,,IIts 1:'1 <:c led in acc:ordi:,"c.c- with Ll.e $,,1I'.p':I"5 ·lInd.·specltlclt r6tl'r.·.~,.·.t.HJI)F.!;''!!,~,t~,.

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. - . . :', . ",' •. £.~(.-~ lil~1t it lIill pcrfN~' II( C.lusa to be per~ornied·~~! ..wOrlt,ii~ii ..ihepre'!'rs~t~~.?:t~.!f.>;"
>::~'::" ~ :.~.,,:.:':':'~." :"~. :"'~'~;' ,~~~.:.-~./!~~:..~;::..;;~~.~ .

t:·kr ~·.(I· ~tcr~· .~~ r,,;JY be' rq,d~lte to deliver the premises ~o lI;ss~" l'n .Ju.JJ1·'.'.~i;,;\ir· .

-~- :'.~:;!; ~~:~ ~>. ::7' .::.,... :-,:' ::;'·~";:··~··,;.~·~~~:~·~~~·~,,~1;~~~1t ~~...:.

<. cC·:,de'··!! "(''''litio;· n'ddy (or the ICJ~iful U$C and Qecup~nc"i..:~' ~ r:e~taur"'!t.~I(;::~>'·.~;;;o:t.:;·1·~··'·

. .

. ~..... :.::~~~~.':';~~":,~". :_·~.:':,.~:'.J:~~.:"V~···. !~.::-:·.;..~~~ :

. .{. · . "'.((,1'<:;.. ,( " Iii." "II <lIJP I i 'ill:, I.; I'M!'. or'" Inonces .andllcC:;1151nt~"-". cori'.CI1~·;rt-qul~~~~·~~::;·?: . ", .......:......:~...:;~ .....:. ,:.~::.1:~·~-:': ',;:~ .....·':':....':·.~r;!':~

"".r tl,(· ~l.'n'::m:.~ nt.,bl islwel h~' ll'5~eC for Its res~llur,'nt ,nd"ln ~~1I"i~4t"hh>:':";;:~~_;

.

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r"'r; I I,,' lh, t.·..l1q,u::1 i:.':: \.of ,II" l!.ell l:lll. rl·~I"lJrl"'1 Ix·; .dlll~. 1:~-.IC'\'C'r.
90 C\· .,~ I· '.~· ..·r "'J"~ 1.1), U~'I ilk ;) I.,oj I,' ;,,~ ,)cr,.lll \/llhln ....c1i'y) of """Cllllon "t

"II.' . :,--, I·' ,'"'' l"~"cc shid I h.1\''' tlar' Ojl! ion tn c.;nccl this 1":11$'" Lf'uor .~rt'f's II.., ~

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after

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l

n

l. n

s

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bul I~IhJ

fUllh, .~~ -..11.1.. ·:":<, ·'

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descriptio;') of the premises. and &Jny c.l~cnJ'!nt'. encumb~Clnc:es or othcr.·~tten; ...,~ <.' ,~.

aff('ctin!)lhc title to s.:irl pror;rty. \.Iithi" 30 days after the execution of thl'

Il_

lo~l'C

Lessee',
cot to".Y,JC:XXS

expa~~e

II

Survey

of

s:Jid

prc:".i~.C~S~~

-)-

_.-_._ Case4:04-cv-04571-PJH Document29

................. _........._ ....w...;w..;;..

..-:-........................:.&..i._.___ •.•.•. -.'

'.

Filed01/21/05 Page18 of 32
, ..,..,:

I
I
I

1

'. ~ '.~ .~.~ .~!, ..: .• ",' .'
h. Ll'ss("c sh.:!11 provide et lu c;';I'cnSQ klteh~~~ equlplll~nt 'Mld ~ttilo,.:,.:· . . .:. . .,' ~.: ..;:~ .:..... ,',:., .: <. 't. ••J:.".-.~.. ~.~ ~
ord in(<.:rior Sigll$ required by Lessee. llo\~cver, lessor $h~J.I pay.for: tho.JnU.n.uoa\.

th:.-rt:of

C:~

p.. rt

of

• hIS

• construction

. . contr<lct.

.;':':

.. .:-.

. '. :-: ".: ..... 10:;0,.': ""'. ;.,';':':'" .'

~ .

',:.:~'..;.'~:;.:.:~:('"..r'.~•".":;~";';0',::' ';:,'"

L~s~.e~ ~~:.~~;~·:~h.{:~.~!~d~·~r..~f~~~Jo~~.;r~~~ S. USE OF DEMISED PREMISES:

--

•

..

,'.

..'...

;," I"

.' - '1; ., ..... "', -,':::!ii ..,., •.

..' '. . . .' .. ~.: ·.:It jS .... :':"Il .: ..:..~.::.... :.--""~..::.. !':' :.·...;.oI.J"'~!~~!.: ~~~

cC'-~7.:.-rci ill purpose. It Is understood ~h4l~ .bs$e~-:.~~~H.:~,~.~.;~,,~~.f.~!.~~~~~~~q,~t:;;.~~

CELL

rc·t.,n

f('od

outlet

ilOd

Lessor

'.
wa.mmts

•tha.~.t.~.t"~,"e:~·.";p,":."'~,":e.I:ro"<!oII~m·',:1Dy:' ,~•.:'~~·~:,.~...''..'~..C...?,.!~;::~.."...J~:J~" J••~".""~J~'.~"~~~w~t:.;..'/i.~U?~:

;

... ,':",:' of';, : ......... ··!~.... ~·.j.~.: ~~·i.::;· ~. t~,..'f-:i~.4.~~..;~;.;

purp.,:;e and is sultOible for this use CIS proVided In. 0111 appJlC:ilb~, .~ci':lI~9 '!·r~Jn~~.*:;~·::·:·

" ,"

.:: .' :<': ':.: r" :/,:.::::':7.;>~~f-'. .:.:;\:~.:~ .,~.\~. ;..~:.. ~.~"

~

or otncr govcrnml!l'Ital rcguliltions. Lessoe 'shun ha~e the rlghr:t.o lIIOIitO:.JI,lcJ\:. '..

. ~.,>:.'; .. :',"--.":;".',.:.,.: I"~:U':";';" i",;>roV~:::~l'Its. additions, or olleratioi-u. to th~ premises as It deslres~: .ncf·sh.~;Y_"~~"J
h(lve tne right to rem-.)ve thern (rolll the premises up~n~h:·~~·~rnT~a;I~~:~/·~·~'~~~;:I)~e~.~.
provided they have not been InQde a tubslaAtlal part of the bUilding and can k~~..~t.~tcbilo~' lcs$ce Shill} keep the demised premises free fi'or.1.ny.ltenlorrsrnS;oU~.of.·,eny~~r)r·:.;;"S.':"

. '.

' : ' . ," . .

• --:':~' ••'.... :: I,,", ..>:~ ;',: . :;:';'.': :«.1 .... ~

pcrforr.;!d. m"lcrl.::JI furnished, or obll~iltJons In~urrcdby less~e.'·

. . . .-. . . .

6. MJ\JlfTftlMICE AlID p.~: ", ';-
cost ilnri (")<"(·nsc,, at ill I t Imc~ durin!] the term of thIs Ic~se to In.llnt.Tn end keep:
.m or in orderly cOI,dition an;! III g,oud state repaIr ~I' drlve·ln res'Ulur~nt .are',·s,

both interior "nd ('xtNlor of d("nlscd premises lind parkIng .rea~; provl:'cd how\""C'r~

th(ll lC';sor '.'grc(·' to correct any drrcct~ In construct Ion "'hieh O'pPCilr wIthIn one

Y·:M ..,rtcr'co,.lidcticm of th-:o im[lrOVlO\l:nt~ hrrcln descrlhed.

j
I
I
.-J

Case4:04-cv-04571-PJH Document29 Filed01/2n 1/05 Page19 of 32
~~! ='

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'Olive lIi::iHih t',,'l

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d:J/"~ ,;.,Raul i~:ll.1 III1I
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(:,f.;'/tl."litl::l.(I 'rcto,and ~I III .,1ld(;:I.Il'IfY Lc•"•c"':"~~~i'"I'nst "- ','Y d.1'ni4,,;',--~~;',n' W"nil c"',"~:r:~"

\,:.jth L<'!.~'·C' ".JY suffer by reil!::,m of ilny Ilcn, cncur::bnmcc, re5lrlcq:an or C:rr(. ct~. ',' ~'"
, , \:t , " , , ' .,.... ,' "

in II',~ title· or C:c.:!>criptloll h.:rt'in of th~ prC'f,lIsc:s, if at .:I"Y ttmc~C5$url,'tlC.~et;"~'"

or (\; ri~:ht lr. rrcei",: rent Ill'r<,untlcr Is disputed,

" .G ' ' , : ,";"',.'~:",:,
'there Is a ,change ,of, ,~ar5hl'p',}~<~~':"

rf l.c,:"" .. 'l- c:~l\!l(' by act of the pilrtie~ or oj>criltlon of hVI.'Lc~~ee mily',,/lth.~ld'~.~~.~..~..;•.~.;'.~.'.,'

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9. l!!.~Jl.:!;llC~: LI's~,·(' h~reb~' cov:;n.::nls and "Slr~C'. "t ell \lIIItJ ~lId"t, .,'

tI,. t!l~ t, Iq bel.:.-of to c.bt.:!in vnd m.tint<:11I lind kec.:p In force fot

"",t",,1 b""etl& of

Lc~~~r ~nd le~s(:e general publ Lc Ilubi I itylnsurClnce 0I9Dlnst c.ll/lm (or pc-ttonal

injury. t!cillh or property di:lm~gc: occurring In, on or about ,the! Ico.e~ p~""!;I'O~'~'::':j"

•

•••

"

~. ~". ~ ~ •.'-:11. i"O' :-"':""~"~ ••'7 -

,f.

,.... ,si (!C'.:.J Jks 0 r pr('miscs <ldJ acent to the Ieilsed premise' ,In thelollawrng 'aaioUft,tli On ,:':'; ", ,';"

b,,~:i Iy injury pN <lccio('nt, $100,000: one or rore bodily Injury per "cclden~:~: ."r,"s,~:""

" ,
S3()u.o~n: property dolrr.agC per one accident, $25,000. 'Lessee, shall provl.dO,flrtJ~~~~7JI

insu r<.nccpnd extended cOYeraSe In amount equal to 100% value of impro~fI, ~P'lptoV ,"~ ,',

to Lessor. In event of cancellation, Lessor shall be notified 30 dcrya prior to' cancellation In wrlt1ns~'

10. PUBLIC lITlliTlES: Lessee agrees to pay all dlargcs for ~ilt..e.~r;;..'... gili,

;

electricity, or other public utilities Incurred by It In 'c.on~ctlon ",lUi' the 'demIsed

. .

'. ~, . -~:.' .. :' ·~·I··· .

. .•.••

pre-mise'S.

"

.. '-. ~-:,':: ! -

;'

II.

Less~e agrees to keep the premIses free An~ cl.a~

of ;lOY I ien or cncunlbr<:nc(' of any kind whiltsocvcr created by less,eels leU or orJlulon~.

I -" .

It Is understood thtlt Lcss~'h' In the'

bu.incss or franchIsing TACO firLL loeiltlons to frilnchlsces, for their Indlvfdu31

op:'riJl;"n. Lrss!:."~ sh,J1I h,JV~ thl' rIght to as~19n Clr sublet thl: laid prC1:lhl", to

-5-

I

---- - . ~-- ..

..

i ....

," J . 'fI' ., , 't

Case4:04-cv-04571-PJH Document29 Filed01/21/05 Page20 of 32
il:.:

'S"

' _ _ _ _ . _ . : · .~"'';'i_''

i ~ : ...... ; .. '.," . J o~ t:1

.. ,
< \ jI ,'.<'

.,- :.- <.

I·· ....

J

·1

~IJ.;~; tcnn·~f70~~~t'. Ir ",: ," -J (.j I.: I y

15.

.

cr, Any holding over after the expiratIon the

·1'
.' .:
Ii

to 'roM:,:;': t!,j~ 1('.15,;' IIi th the C('''~('nl o( the lcs!.or 511.~. 11 be construed

be • tCMnc),

'

'~'i>~ I

n:on:i,

t .... r.::-nth

0:1

the

scm~

terms

end conditions

here In

' spedf ied

so

far

,liS

,
4Ipp

Jl:,u:,, bl::'':.:'~~,">,~;:~-.:i;,,,:~:".

~n~ i l th~ l~st pr~v~iJlng rcnt~l.

...~ ..:

IC. ELn~L'llGI:T -'~.U~USAl: In the event Lessor sha" negot tate. nle of (I,,· d,,:,j~c'c premise'S during th!' term of tit; .. lea!>e, Lessor ~h,," first offer In

t,'ri l i',r...._ t:I / '

~i'i'c I)P..·uis,. •..

t,·
u

l ('S~N' ,'I"O!l

I
tIt'

5",",0:'

terms

ilnd condltons

as

the:

pro.

t,·:,~.·c· !.h.. 11 hilV/" tl.,.. ri~ht to J'urchilsc the ,nld I.rcnlscs ~pon the

In ti, ... I:Vl'II! th.,! l.cssce do(:s no: l'xcrcl,e thTs ,rt!)h\

_-_ -_ - - - ---' -_ .... --. ....

..........-...- ._'. - -. .. ._..

•.- -_ _ _ oJ

_ - .-----. Case4:04-cv-04571-PJH Document29

...~ . - ' " .

-

•.1 -..

• • • • . - -"

,'. '.
17.

Filed01/21/05 Page21 of 32

n. ,Ii. r Ii.· ,:. '''',u l
~. I • ,: •

. "-.' .,. ....

bllil~;i;J~i or buildings w!1('rc:in tiot: cfelillsed premhn lire lo~tod ShDfJ III My.IIIII....:. ~

.

. . . . . ........ '...::.;":"......,-.

".cod,· ovril.S) the tcmlor this le.:lsc be d<lm;)gcd by rlre,

lOr':1~.do •. or b)'·~fif~.J~~~.;~t;,~ ;

or olhcrwlsr, lhe lessee !oh.Ii 1 !Ilv!' prcmpt.""t'u ,t~~rc/()' to ·t.h~·'c..~f~~.~"",~~:,~l~~~iji~\j

. ' .~: .".; .~<.... .~.>!.>. -' '.: .... '.. ..:: ··;·~':i,\~~~~~~~·~~;:.~·~~~~tt{!t;r,;~..·!,·:

It~ (1·...11 C:-;>CIl~C, ItS spcl,dlly DS circumstances permit·..· repair s.Jdd_.g.. anl;re,~or.,;:~~,.'

.

• •.• ..i . .;~{": .:::~~~-:·;;·:'i*;'·~'';~~~:~ .::'

tilt-

C:ri:"ls,·cJ

prcmi5t'S

Olnd

such

bulldl~9

0~buildin95 . '.,

to

their .

orl5Inlll,concl1tJ~;:}:~:':"":~ ...:., . ."~;.~"~~:~(:~;'. ~:'::..... ~'~~·~;~.f~ ::'.

providecf, h'~/~"cr. thut In the event the lessor shall f.lI tD~nce sDIcCrepal,r.' ~::~'. ,~

.. . .;..... .

.'.~" ':::'~ ~:t> ':'. ":~*. '.>..~;.~

within thirty d;oys cmd corroplcle said rep.,lrs within nInety days or $A'ld dcstructlon·.. ·-.:~·.

~~<~ :.;-r,~'..'~...:~~.:

the Lrs~C"c. may CIt its o.,tion, terrllinatc: this '.lease. "lessee shall be entItled t~·,:,;_-.~,::,-

.., .

. ..

. : ' " ..;. ... ":' '-'~'7 ~.'~-'.'"''

- iln

~biltc:'l('nt

of

rent

for

the

period

durIng which

th~demlsc:d

pr'e,ais~s

IIr~.rcndefc:J·-//:
, ":. ~::..,,; '.

untrn~nt~ble or Inc~pable of uSe as a TACO 8ElL restaurant. In the event thot •

p~rl only of the dl'mlsed premlscs Is rendered untemmt.1ble or inc.:lpDble of such v'se,
or, the rent sh.:J11 be rt'duccd In the pro~ort Ion which the noor an'D of s~ part the-.

den.1 sed prl",.,1 !o,:s b('MS to tht' floor DrCA of the cnt Ire clemlsed rrel:lhcs. I.. the ' :,,--:

ever.t that the d,,·.l<l~C sh.. 11 be such IS to InCll:e It lrnprDcticiJl to conduct the nOM;:",

of ttw L<:!·sc·c.
-7-

.,,____ .__ ,,J

Case4:04-cv-04571-PJH Document29 Filed01/21/05 Page22 of 32

, .
"

'. ·I"(Y· .. . :-:-

- _. .(",..,-1',_.. . .... . . I. ~. '. '. l' ,

Q l'!~' ".. rd'i· !l,.-nt

I

t

,·.i" li.

t.: "':';I.:l;t"In I,,:rt·o(, III'"n the ~il.,~ lc";.S ilnll cOI.dltlOrl!O ,'5 1,;01011: n (..-VII·'

". .,'

t
\'

Lessor t~il, I, ";"';l lOotic.,· in ,·:ritin, to the

of Le~S.~CI.s..!:~;t~nC:I~'~'·'~'~.:t.~},~~;:.»~;;:~]:~t&­

II~r.·(r, ~ ·"'::':·':·::':'~:·~~:;·'~;~;,~:~fl~:f~~;~. ~;:i(' r·. ; ;').1, giv,'" I'!l Ic •• ,l ninety (~o) days prlo~. to. tbc·e~plr~t·Jo,;. o~~;~e!'i:.J';-~~~i.~~~.~~, .

:<), l:;".r.'JlL..QL~~:;~'':~: H l,,~see ~h.~11 ~iilkc .CM.1Ult with rcsr:('c:~;t~i.~ny.:.:.i ~>.:,;:'

pcrfor~e-d ~y f~'~i'~~ ~·~;~t~~~~0·:~i:: c.:.. 1i,;. ; :,"',. (:) .... Ol:·nt!. or i!·;r(·cri'!nts to be

lesste, u. set'
. ........... ' . ....... . ,.'.: ~'..~ ~'..-:.;,'.:='.~'...,.: 'i~:~!'!~''''~ '"':. '!1"~

i'nd

ii

s·t-.:h

dC";i'ult

be

not

cured

by

LC$Sccwlthln
.

thlJ:tY. (30)

"

.' '.

d4JY.~.f.t-.<.i..f...j...t..~-::s::C::.;.::~.':":.t~i:a

_.:;.~~i,
.

lIo~iiil-:: l,.:'!-;'c' ill \';rjtlr:~ of such cfcf4Jul"t'les$orl'lay'or~~;~lth rc·cnter upon~;1'~~aIT~~~F;~f1

p P(.

. ,.:i~.,.~
r' i' t !,

;

,.N,s; u•o• :cwhco.t~eivcrm:errdo!otrfccaon;'n;y1d)b'itrireoianschshhtsahollarlcloraCnft'fliIenccdutyeoIprnraoflvut ielclrl tfa:odnryeb.tyaenrIdmQwoe'r~0.'cl~t'i1t~wrii,olehnlnrie1Ps\tpI:efptc~ltl'irtdoe~aQds'fe-t),f'oQ~rtnChoIerr

existing or;>IlU:.bseFqfU_C',C!n...:...:..~.s~.'c.h~._.'fhlel_r~c:of.III

th"

c\'\'nl

thf.t

t·lther

pill·ty

co-r::~~n'r.!>

iln

. .octi""

-'
·6·
j ~ ~.
l'
..1 ft•;
f,. , f ;.
f

Case4:04-cv-04571-PJH Document29 Filed01/21/05 Page23 of 32
o

27. MISCELLANEOUS: The Inte'p,elotion of th4 ' - thoJl be ~.., -..

IOWI of the SlQte of CoU'o,nto.

In the event thot ony partion of thi. 1801e i. found to be 1......lId .. -'orceable.

the <emoinde, of the I..... sholl .tlll b. an enro,ceable a;......nl """_ the p:art'-. .

28. GROSS RENT: Anything 10 lhe conlroty notwl!haICltldi",. oddliloftol ,...101 ,.,
_I".,. 81*0""" the leGsed,premiWls sholl be 5% or Ihe _IInl or Less..... g'ou 10'" 1_ tile
laUe" _ t a . ....,thly ~ntol prevla",l), paid by \.as..., Ie.. amounb paid by I.uoH 'or

.1., Soid amount shall b. paid quarte,ly and adjll,ted onnllOlIy. In the ..-ent. ofl., grgA

0l'I

owragec:t r.... the 1_ year, \.e.... h", paid Leuor more oddilionol ,entol .han called fvt '"

.thia I...... I.e.... shall opply said overall. agoinst the ...,,1 minim..... rentol pa)'l"t""; "' ....
e,!",nl. ofle, gro.....Ie. are overaged (0' Ihe leola yeo" Leue. Dwgl \.euor oddlll_1 ""lal,
,_ sholl be paid with Ih. next ,entol paymenl.

the' 29. CONPITI0l.i. The obUgation of the I:ellor to 1....

property herein described shaUbe spedfl, cally contl~ent upon .~

satisfactory

"

Lessor obtaIning Alreleaae and aurrender of the premia.. Flor to

COllllleocemeot of cOl1Structlon of the Improve!IIenta thereon.,

"

30.

Paragraph

an lncrea.. increment of ~IFTY DOLIAl.S ($50.00) ••ch ,at' th.expirlUoa, '
- of every fivi (5), yearl 10 that the firat ..celation In rent al:iaU be .' '"
effeetlve fIve (5) yean frCII data of cClllllencement 'of thla le... Ind ~.ch>

five (S) years thereafter therl Ihall be an Increment of FIFTY DOLLAlS

(S50.00) over and above the pre~iou. rental amount.

llSSOR:
:!".;
...... -
.'

lESS£EI TACO BelL, A CALIfORNIA CORPO~"lION

""
.•..':1:

..'

Case4:04-cv-04571-PJH Document29 Filed01/2~1...../-0..5-. Page24 of 32

R.CORDI NC REQUES:D !Y
Esc.:-ol; I:o. ':IG 06903 THX/sl Receipt ~o~ 413-22-~2ij Code A:es. 01-7
WHEN RECORDeD M.~ll TO
RETURN TO, WILLO\'I GLEN

VALLEY TITLE COMPANY

GRA.NT DEED

By rhis instrument doted January 20, 1965

,for o valuable consid!;rolion,

YASUTO KA TO AND Tm:uKO DOROTHY KATO, his ~'rife, and

HEI:RY Y. KATO AND lflAY U. KATO, his wife

Affix IRS $ none

he:-:by GRANT IS) 10 THOl-:AS A. HIURA ar,d DORO-:r:HY l'i. HIURA, his "rife, as community-property

The rollowing describ!:-d Reol Property in the .Stote of Coliiornio, County of..S.""a"'n,...t.:;a=--=Cc:l:.::il;.::r""a=-_______

All of Lot 11, as shol'ln upon that certain Map cnt:!.tled,
"Tract No. 640", \...hich Map I'las filed for record in t;he office of the Recorder of the County of Santa Cl&ra, State 'cf California, on Ja,!luary 30, 1950 in Book 26 of
YAps, at page 15.

.--,
,r.~
X ·7/ { -<- '''-'''-
"MAY U. KjTO
STATE OF CALIFORNIA COUNTY OF
Sant'a Clara

YASUTO KATO

TOl,iIKO DOROTHY KA TO .~~ -

o. February 4, 1965

;.cI . bol..o mo. 0 Not.ry Publ;'. i.

I.,. ..id

}

...

, eoun'" ,.cI S"'" ~...c••lly ''!P0.,.d H~':RY Y. :CATO, Ko\.Y U. KATO, YASUTO KATO l'.!W TomKO DOROTHY KATO

s..... .._ i"o..." to ""'. to h. tft. p.,sO!t S _ho~ ".me

a.r.~_ s.wb"ribeci to the withift iratrvml"t

Y-... ."d .d"owl.d9_d to ''''D th.t ....~ •.

tJ.ec",;'d tft. 1''''0.

-.----1.-' .. IN WITNBS W~EReO'; I ....... "".,.,,,.to s.tt my ltl"d ."tl .Ifj~.d '"Y oFlici.1 •••1 j,.

~.:,:(;;'~'~";i~;;-;~~~~ ~~;::, 01 ... _s..~~.~~._.~;?:

IJ~ III.

cI y• ., i. Ih;,

.J. _-..Lb'},,,,'-. ~t.'~.....\

Nat."Y PubE:, i,. "I~ ;;;<~id Co..,."" .:14 St.ta ,' ......

....

.__e .e Case4:04-cv-04571-PJH Document29 Filed01/21/05 Page25 of 32 .•. -r.'
..--..' .
..
o o o

. "

•

•

-
--.j

at. u". (.,..card", ct..t c:erc.Jn 1.... Clae.., ilardi

't... ~c~·_'\."'" ~;\r.ntY !:. !'I~~ her.' .....

r.f_~ te ..........

Le._. .. •.,.: T: ,1.' BELL. herdnaft... r.'.rnd te ..

~

t·..r ".1'bl!': 4er.bO!Cl J:'r....h .. 10eae.. at 1'" c:.... . . .

Jo~. ta11forn1a.

/,s aet fc:rel, 1n P.r.rra"" ,_ of ..... , ..... ...

..tnl.:;u:! <:IOndll,. untal r.,...,u .lIall .. beT. . . . . . _ . . . . .

eoorp",1 to l/12tb of Un. on .11 ru..t. - e n " " .. _

..

U5.(lCO.OO.

.,....s ,., .... "-- Ie 1. heraby

l.ue-r .........

.a. that aat. __ to be _14ft.. ,. tid, I .... - ' - ..

Le.... ____. .
$13.066.... aod ..1' a_ .hall be pd• ..,. ....... . . •• d1...

1:1_ of .dd p.,..t ..,.

Ie la ......c.e.I ...,.I.~.

u,." ce .11.. ..ene.1 .....u b. here.... fn. '72'.00 Ie ••n .......'.a••
........ ; $775.00 to ,SI3.39 .Ie.... fh.. , . . .• •

""1'.; third fl"

$I7S.00 to $t13.19 f...cII fl... ,.....•

_ c " . • ffec:t:1v••• of date 1.... ten.

U:.i..iOlt.:
')/ ("7}.I'-

L£.>JU:

/?z;r D.ce: __~5_'_·~?~-__~_·__________ DaC.,

t 1 < %' z.J

.. _ - - - - - - - - -

• Case4:04-cv-04571-PJH Document29 Filed01/21/05 Page26 of 32

'!HIS ~ AMEmMEm' is :made en this 4th day of ~r,

1889, by am between J:XR7IlN M. HIURA, hereinafter referred to ~::.; "Les-

sor", am Taco Bell COl:p., a california OO%pOl:atial, hereinafter ~erred

to as "Lessee".

~

WHEREAS, IBssor am lessee entered into that certain Lease Agreement dated Mardl 18, 1969 (the "Lease") in lIIhic:h Lessee leased frail lessor that certain real prcprt:y in the City of ~, County of Santa Clara, state of california, generally described as 1546 cauoen Avenue.
WHEREl!.S, the prima term of the I.ease expires February 28,
1990, am allows for one (1) five-year renewal. optioo, the Lessor am
Lessee desire to amend the tease.
~, 'lHERE:FCRE, in CXlllSi.deratiOO of the JIIlbJal agreements
herein c:a'ltained, Lessor am Lessee hereby agree as follows:

1. Tenu

Tenu of lease shall be an additiCXlal. two year pericd,
t.rcm March 1, 1990 to February 28, 1992.

2. ~ian F\lrtller, Isssor shall provide Lessee with the right to renew the tease for three (3) additional one year
c:ptioo periods.

3. Rent

Lessee shall pay to Lessor a fixed m::nthly rent of $1,200.00, VB. 5% of gross sales, thrcughtc:ut the term, and any optioo pericd thereafter.

4. Notice Lessee IIIlSt notify the Lessor of its desire to exercise any one of the one (1) year cpt:icn
periods at least one lnmdred fifty (ISO) days prior to the expiratioo of the tenD beiIq extemed.

5. M:xii.fica.tions

Except as expressly provided in the re.ase .AmeI"rlment,

the
am

Lease shall effect.

remain

UllIICldified

am

in

full

force

lCSSOR: ooroIHY M. HIURA

By,4~/71'~

Do

M. Hiura

LESSEE: TACO BErL CDRP.
:~
Its: Divisicn Vice President

Case4:04-cv-04571-PJH Document29 Filed01/21/05 Page27 of 32
File 1567 Campbell. CA

TlDRD AMENDMENT TO
STANDARD FORM LEASE AGREEMENT

This Third Amendment To Standard Form Lease Agreement (the "Third Amendment"), dated the 19th day of December, 1994, is made and entered into by
and between DOROTHY M. HIt.JRA. a married woman ("Lessor") and TACO
BELL CORP.• a California corporation ("Lessee"), and amends that certain Standard Form Lease Agreement dated March 18, 1969, as amended by Addendum to Lease Agreement executed May 7, 1970 and May 13, 1970 by Lessor and Lessee, respectively, as further amended by Lease Amendment dated December 4, 1989 (hereinafter collectively referred to as the "Lease"), with reference to the following:

RECITALS:

A) Pursuant to the terms of the Lease. Lessee leases from Lessor that certain
real property and improvements situated thereon commonly known as 1546 Camden Avenue, City c;f ~':'k.pbell, County of Santa Clara, State of California (the "Demised Premises"); for a term that commenced March 1, 1970 and after exercise of all granted renewal options, will expire February 28, 1995; and

B) Lessor and Lessee mutually desire to (i) extend the Term of the Lease, (ii) provide for one (1) renewal period of five years, (iii) grant to Tenant an option to terminate the Lease, and (iv) eliminate payment of percentage rents.

NOW THEREFORE. with reference to the foregoing Recitals. all of which are incorporated herein and made a part of this Third Amendment. Lessor and Lessee hereby agree as follows:

I.

EXTENSION OF TERM

Article 2 of the Lease is amended in its entirety to read as follows:

The term of the Lease shall be deemed automatically extended for a period of five (5) years, commencing March 1, 1995 through and including February 28, 2000 - (the "Extended Term").

II. OPTION TO RENEW

Article 22 of the Lease has expired and shall be deemed to be deleted in its entirety to read as follows:

"22. Provided Lessee is not then in default under any terms and conditions of the Lease. and provided Lessee has NOT notified Lessor, in writing, on or before December 28, 1999 to the contrary, the Extended Term shall be deemed

File *567/jac[l2f2Ol94J Campbell, CA

'. Case4:04-cv-04571-PJH Document29 Filed01/21/05 Page28 of 32
File 1567 CampbellCA

automatically extended for a period of five (5) years commencing on March 1, 2000 through and including February 2'8.2005 (the "Option Period").

III. RENT

~~...," ~

Commencing March 1, 1995, Articles 3, ~8 and 30)0f the Lease shall be

deemed deleted in their entirety, and Article 3 of the Lease shall be deemed to read

as follows:

"3. Lessor and Lessee acknowledge and agree that the fIXed base rent
CRent") payable during the Extended Term (as defined in Article I above) and during the Option Period (as defined in Article II above), if exercised, shall be payable in advance on the first day of each calendar month, without setoff,
deduction or offset of any kind whatsoever, at such place as may be designated from time to time by Lessor, as follows:

3.1 The Rent payable during the Extended Term shall be at the rate of Four Thousand Eight Hundred Sixty-Five Dollars ($4,865) per month.

3.2 The Rent payable during the Option Period, if so exercised, shall be at the rate of Five Thousand Three Hundred Fifty Dollars ($5,350) per month

If the Extended Term or the Option Period, if exercised, commences other than on the first day of the month, or ends other than on the last day of the month, the Rent for such month(s) shall be prorated on a thirty (30) days basis."

IV. RIGHT OF EARLY TERMINATION

Provided Lessee is not then in default of any term or provision of this Lease, Lessee shall have the right to terminate this Lease upon Lessee's delivering to Lessor its sixty (60) days' written notice of Lessee's election to so terminate the Lease and the stated date of vacating the Property.

V. RIGHT OF FIRST REFUSAL

Article 16 of the Lease is hereby amended in its entirety to read as follows:

"16. If Lessor elects to offer to transfer the Demised Premises by sale or exchange ("Offer"), Lessor shall notify Lessee of the terms of the proposed Offer. -. Lessee shall have forty-five (45) days within which to accept the Offer on all tenus stated in the notice to Lessee, or such other terms to which Lessor and Lessee agree. If Lessee fails to accept the Offer within the 46-day period, Lessor shall be free to make the Offer available to others and conclude a sale or exchange on the terms stated in the Offer. If Lessor desires to change a material term of an Offer, Lessor shall again notify Lessee and Lessee shall have 45-days within which to accept the changed offer or such other terms to which Lessor and Lessee agree to sell or convey the Demised Premises.

2

.'..~.

\. ~

Case4:04-cv-04571-PJH Document29

Filed01/21/05 Page29 of 32
File 1567 CampbeliCA

VI. NOTICES

Article 25 of the l.ease is hereby amended in its entirety to read as fonows:
"25. All notices and demands of any kind which Lessor or Lessee may require to be served upon the other shall be given by depositing one copy of same in the United States mail, postage prepaid, certified or registered mail, return receipt requested, addressed "as fonows, or by personal delivery or a national overnight delivery service, addressed:

TO LESSOR:
Mrs. Dorothy M. Hiura 1167 Janis Way San Jose, CA 95125

TO LESSEE:
Taco Bell Corp.
do PepsiCo Real Estate RE#567
17901 Von Karman Irvine, CA 92714-6212

The place to which said notices shall be sent may be changed by written notice given as hereinabove provided. All such mailed notices shall become effective on the third (3rd) day after the date of postmark. Personally delivered notices shall become effective immediately upon delivery.
VII. NO FURTHER MODIFICATION

Except as specifically modified herein, all terms and conditions set forth in the Lease shall remain in full force and effect. Any conflict between the Lease and this Third Amendment shall be resolved in favor of this Third Amendment.
IN WITNESS WHEREOF, the parties have executed this Third Amendment as of the dates set forth below their respective signatures to be effective as of March
1, 1995.

LESSOR:
4!'u'~7J1. /~
Dorothy . Hiura
Date: /~-.A.f-f'~

LESSEE:

TACOBELL~

Californi.a"'CO atl

It'"' BY.~/

~

EVERSON

Its Ntllonel VIc. President

01 0I'i4iriiifii

Date: J-J- V-f~

Reviewed bv:;t .:...JO ANN COWNIE Date: /-.,1 J ~$-

3

Case4:04-cv-04571-PJH Document29 Filed01/21/05 Page30 of 32

Tricon~
~
November 30, 1999

Tricon Global Reslllur.mL~. Inc.
PO Box 32220 Louisville. KY 40232-2220
Tel 502 874 1000

Mrs. Dorothy M. Hiura 1167 Janis Way
San Jose, CA 95125

Re: Taco 8ell #567 1546 Camden Avenue Campbell, CA

Dear Mrs. Hiura:

The Lease Agreement dated March 18, 1969 and any amendments thereto ("Lease Agreement") for the above referenced restaurant expires on February 28, 2000. This letter is to advise you that Taco Bell Corp., a California corporation, as Lessee, would like to extend said Lease Agreement subject to your agreement, as Lessor. of the following terms and conditions:

1. Lessor and Lessee, by execution hereof, agree that the five (5) year option to extend said Lease Agreement is hereby exercised and the Lease is extended for a period of five (5) years commencing March 1. 2000 and ending 'February 28. 2005 ("Extension Period")_

2. Fixed Base Rent payable during the Extension Period will be $48,000 annually
paid in'monthly installments of $4,000.

3. It is hereby acknowledged that all other terms and conditions of said Lease and of any previous modifications thereof shall remain unchanged and in full force and effect.

This letter constitutes an amendment to the Lease Agreement which will be binding upon both parties' mutual execution ("Letter Amendment"). Please confirm your agreement to the aforementioned by executing the signature line below on both of the enclosed originals. Upon full execution of both of the enclosed originals please return one fully executed original Letter-Amendment to the undersigned.

Should you have any questions or comrtrents please call me at (502) 874-2189.

Sincerely,
a TA BELL CORP.
~""-If~O~

ACKNOWLEDGED and AGREED this
3 day of j)ge6tftMI!- 1999.

By: A~ 'n7 .1~

Name: , ./)tM4T#t H !I/WM

Title:

O(UN£~

Q

.~."essor"

TACO IBIELlL.

~,,_ r-

, ..

Case4:04-cv-04571-PJH Document29 Filed01/21/05 Page31 of 32

Yuml
November 18, 2004

Yum! Brands, Inc. , 1900 Colonel Sanders Lane
Louisville, KY 40213
Phone 502-874-8300
Fax 502-874-8848

Mrs. Dorothy M. Hiura 1167 Janis Way San Jose, CA 95125
Re: Taco Bell Restaurant #567 1546 Camden Avenue Campbell, CA
Dear Lessor:
The Lease Agreement dated March 18, 1969 and any amendments thereto ("Lease Agreement") for the above referenced restaurant expires on February 28, 2005. This letter is to advise you that Taco Bell Corp. a California corporation, as Lessee, would like to extend said Lease Agreement subject to your agreement, as Lessor, of the following terms and conditions:
1. Lessor and Lessee, by execution hereof, agree that the Lease Agreement is extended for a period of five (5) years commencing March 1, 2005 and ending February 28, 2009 ("Extension Period").
2. Fixed Base Rent payable during the Extension Period will be $50,400 annually paid in monthly installments of $4,200.
3. It is hereby acknowledged that all other terms and conditions of said Lease and of any previous modifications thereof shall remain unchanged and in full force and effect.
This letter constitutes an amendment to the Lease Agreement which wi" be binding upon both parties' mutual execution ("Letter Amendment"). Please confirm your agreement to the aforementioned by executing the signature line below on both of the enclosed originals. Upon full execution of both of the enclosed originals please return

~
Au AIllfRIC.lII foOD'

(.
TACO BELL:

Case4:04-cv-04571-PJH Document29 Filed01/21/05 Page32 of 32

November 18, 2004 Page 2

one fully executed original Letter Amendment to the undersigned in the enclosed selfaddressed envelope.
Should you have any questions or comments please call me at (502) 874-2189.

Sincerely, Taco Bell Corp, a California corporation

ACKNOWLEDGED and AGREED this
;l.'l day of Mp'.£/t".eg 2004.

Cathy Bis p Asset Manager

By: ~II-<d~ zn. /~

Name: lJ0&fl7l;Y d dn."IM

Title:

/.E€s<7JIL

"Lessor"

 
 Case4:04-cv-04571-PJH Document39 Filed03/01/05 Page1 of 8

1 JEFFREY H. DASTEEL (State Bar No. 110405) T. JEAN MOONEY (State Bar No. 211747)
2 K. LUCY ATWOOD (State BarNo. 222745) SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
3 300 South Grand Avenue, Suite 3400 Los Angeles, California 90071-3144
4 Telephone: (213) 687-5000 Facsimile: (213) 687-5600
5 Attorneys for Defendants
6 TACO BELL OF AMERICA, INC. and Cross-Defendant TACO BELL CORP.
7

8

THE UNITED STATES DISTRICT COURT

9

FOR THE NORTHERN DISTRICT OF CALIFORNIA

10 ERNESTINA SALDANA-NElLY

) Case No. C 044571 MJJ

)

11

Plaintiff,

) CROSS-DEFENDANT TACO BELL

) CORP.'S ANSWER TO DEFENDANT

12

v.

) AND CROSS-CLAIMANT DOROTHY ) M. HIURA TRUST'S CROSS-

13 TACO BELL OF AMERICA, INC.;

) COMPLAINT

DOROTHY M. HIURA TRUST; and DOES )

14 1-25; HEDIAPETROLEUM, INC., dba

) Hon. Martin J. Jenkins

CAMPBELL UNION 76; BOZORGHADAD ) Action Filed: October 28, 2004

15 TRUST; and DOES 26-50, INCLUSIVE,

) Trial Date: Not Yet Set

)

16

Defendants.

)

DOROTHY M. HIURA TRUST,

)

17

)

Defendant and Cross-Claimant,

)

18

)

v.

)

19

)

TACO BELL CORP.,

)

20

)

Cross-Defendant.

)

21

22

23

24

25

26

27

28
CROSS-DEFENDANT TACO BELL CORP.'S ANSWER TO CROSS-COMPLAINT Case No. CV-04-04S71 MJJ

Case4:04-cv-04571-PJH Document39 Filed03/01/05 Page2 of 8

1

ANSWER TO CROSS-CLAIM

2

Defendant Taco Bell Corp. ("Taco Bell"), on behalf of itself, by and through its

3 attorneys, answer the allegations set forth in Defendant and Cross-Claimant the Dorothy M. Riura

4 Trust's ("Riura") Cross-Complaint (the "Cross-Complaint") and admit, deny, and allege as follows:

5

1. Taco Bell lacks sufficient knowledge or information to form a belief as to the truth of

6 the allegations contained in Paragraph 1 of the Cross-Complaint, and on that basis denies the

7 allegations. Taco Bell further responds that the allegations contained in Paragraph 1 of the Cross-

8 Complaint set forth legal conclusions and therefore no response is required.

9

2. Except as expressly admitted, Taco Bell denies each and every allegation contained in

10 Paragraph 2 of the Cross-Complaint. Taco Bell further responds as follows: "Taco Bell Corp." is a

11 corporation organized and existing under the laws of the State of California with its principal place

12 of business in Irvine, California; Taco Bell of America, Inc. is a defendant named in Plaintiff

13 Ernestina Saldana-Neily's Complaint which is the subject of this action (the "Complaint"); and

14 Taco Bell of America, Inc. is a wholly-owned subsidiary of Taco Bell Corp.

15

3. Taco Bell lacks sufficient knowledge or information to form a belief as to the truth of

16 the allegations contained in Paragraph 3 of the Cross-Complaint, and on that basis denies the

17 allegations.

18

4. Taco Bell lacks sufficient knowledge or information to form a belief as to the truth of

19 the allegations contained in Paragraph 4 of the Cross-Complaint, and on that basis denies the

20 allegations, except admits that the Riura Trust is the current lessor and Taco Bell is the current

21 lessee of the property located at 1546 Camden Avenue, Campbell, California (the "Property").

22

5. Taco Bell admits that it entered into a Standard Form Lease Agreement with Dorothy

23 M. Riura in 1969 relating to the Property (the "Contract"). Except as expressly admitted, Taco Bell

24 denies the remaining allegations contained in Paragraph 5 of the Cross-Complaint on the grounds

25 that the Contract speaks for itself.

26

6. Taco Bell denies the allegations contained in Paragraph 6 of the Cross-Complaint on the

27 grounds that the Contract speaks for itself.

28 CROSS-DEFENDANT TACO BELL CORP.'S ANSWER TO CROSS-COMPLAINT
Case No. CV-04-04S71 MJJ
1

Case4:04-cv-04571-PJH Document39 Filed03/01/05 Page3 of 8

1

7. Taco Bell denies the allegations contained in Paragraph 7 of the Cross-Complaint on the

2 grounds that the Contract speaks for itself.

3

8. Taco Bell lacks sufficient knowledge or information to form a belief as to the truth of

4 the allegations contained in Paragraph 8 of the Cross-Complaint, and on that basis denies the

5 allegations.

6

9. Taco Bell admits that the Complaint alleges, among other things, that the Property fails

7 to comply with certain disability-related laws promulgated by the State of California and the

8 United States of America. Except as expressly admitted, Taco Bell denies each and every

9 allegation contained in Paragraph 9 of the Cross-Complaint.

10 10. Taco Bell admits that it owns and operates more than one food outlet throughout

11 California and the Untied States. Taco Bell further responds that the allegations contained in

12 Paragraph 10 of the Cross-Complaint set forth legal conclusions and therefore no response is

13 required; to the extent a response is required and except as expressly admitted, Taco Bell denies the

14 allegations.

15

11. Taco Bell lacks sufficient knowledge or information to form a belief as to the truth of

16 the allegations contained in Paragraph 11 of the Cross-Complaint, and on that basis denies the

17 allegations.

18

12. Taco Bell responds that the allegations contained in Paragraph 12 of the Cross-

19 Complaint set forth legal conclusions and therefore no response is required; to the extent a

20 response is required and except as expressly admitted, Taco Bell denies the allegations and states

21 that the Contract speaks for itself.

22

13. Taco Bell responds that the allegations contained in Paragraph 13 of the Cross-

23 Complaint set forth legal conclusions and therefore no response is required; to the extent a

24 response is required and except as expressly admitted, Taco Bell denies the allegations and states

25 that the Contract speaks for itself.

26

14. Taco Bell responds that the allegations contained in Paragraph 14 of the Cross-

27 Complaint set forth legal conclusions and therefore no response is required; to the extent a

28 CROSS-DEFENDANT TACO BELL CORP.'S ANSWER TO CROSS-COMPLAINT Case No. CV-04-04S71 MJJ 2

Case4:04-cv-04571-PJH Document39 Filed03/01/05 Page4 of 8

1 response is required and except as expressly admitted, Taco Bell denies the allegations and states

2 that the Contract speaks for itself.

3

15. Taco Bell denies each and every allegation contained in Paragraph 15 of the Cross-

4 Complaint.

5

16. Taco Bell realleges, repeats and incorporates by reference Paragraphs 1 through 15,

6 inclusive, of this Answer as though they were fully set forth herein.

7

17. Taco Bell admits the allegations contained in Paragraph 17 of the Cross-Complaint,

8 except notes that Plaintiffs suit was originally numbered as Case Number C 04 4571 PVT and later

9 removed and renumbered as Case Number C 04-4571 MJJ. Except as expressly admitted, Taco

10 Bell denies each and every allegation contained in Paragraph 17 of the Cross-Complaint.

11

18. Taco Bell responds that the allegations contained in Paragraph 18 of the Cross-

12 Complaint set forth legal conclusions and therefore no response is required; to the extent a

13 response is required and except as expressly admitted, Taco Bell denies the allegations.

14

19. Taco Bell responds that the allegations contained in Paragraph 19 of the Cross-

15 Complaint set forth legal conclusions and therefore no response is required; to the extent a

16 response is required and except as expressly admitted, Taco Bell denies the allegations.

17

20. Taco Bell responds that the allegations contained in Paragraph 20 of the Cross-

18 Complaint set forth legal conclusions and therefore no response is required; to the extent a

19 response is required and except as expressly admitted, Taco Bell denies the allegations.

20

21. Taco Bell lacks sufficient knowledge or information to form a belief as to the truth of

21 the allegations contained in the first and third sentences of Paragraph 21 of the Cross-Complaint,

22 and on that basis denies the allegations. Taco Bell responds that the allegations contained in the

23 third sentence of Paragraph 21 ofthe Cross-Complaint set forth legal conclusions and therefore no

24 response is required; to the extent a response is required and except as expressly admitted, Taco

25 Bell denies the allegations.

26

27

28 CROSS-DEFENDANT TACO BELL CORP.'S ANSWER TO CROSS-COMPLAINT
Case No. CV-04-04S71 MJJ
3

Case4:04-cv-04571-PJH Document39 Filed03/01/05 Page5 of 8

1

ANSWER TO PRAYERS FOR RELIEF

2

1. Taco Bell responds that the allegations contained in the Paragraph 1 of the Cross-

3 Complaint's prayer for relief set forth legal conclusions and therefore no response is required.

4

2. Taco Bell denies that Riura is entitled to indemnity from Taco Bell.

5

3. Taco Bell denies that Riura is entitled to attorneys' fees or costs incurred in defending

6 or resolving any of Plaintiff Ernestina Saldana-Neily's claims.

7

4. Taco Bell denies that Riura is entitled to attorneys' fees or costs incurred in defending

8 or resolving any of Plaintiff Ernestina Saldana-Neily's claims.

9

5. Taco Bell denies that Riura is entitled to attorneys' fees or costs incurred in prosecuting

10 the cross-claims against Taco Bell.

11

6. Taco Bell denies that Rirua is entitled to any other relief under its Cross-Complaint.

12

AFFIRMATIVE DEFENSES TO PLAINTIFF'S CROSS-COMPLAINT

13

Taco Bell allege the following affirmative defenses with respect to the claims alleged in the

14 Cross-Complaint, without assuming the burden of proof where the burden of proof rests on

15 Plaintiff:

16

FIRST AFFIRMATIVE DEFENSE

17

1. All the counts in Riura's Cross-Complaint are barred by its own breach of the agreement

18 with Taco Bell which excuses any further performance on behalf of Taco Bell

19

SECOND AFFIRMATIVE DEFENSE

20

2. Taco Bell alleges that any contractual obligations of Taco Bell have been excused and

21 discharged by material failure of consideration in that Riura failed to perform the express and

22 implied terms of the agreement upon which the Cross-Complaint is founded.

23

TRIRD AFFIRMATIVE DEFENSE

24

3. Taco Bell alleges that it performed, satisfied and discharged any contractual obligations

25 it may have owed to Riura arising out of the agreement upon which the Cross-Complaint is

26 founded.

27

28 CROSS-DEFENDANT TACO BELL CORP.'S ANSWER TO CROSS-COMPLAINT
Case No. CV-04-04571 MJJ
4

Case4:04-cv-04571-PJH Document39 Filed03/01/05 Page6 of 8

1

FOURTH AFFIRMATIVE DEFENSE

2

4. Taco Bell alleges that all of the counts alleged in Hiura's Cross-Complaint are barred in

3 that conditions precedent to Taco Bell's obligations have not been satisfied.

4

FIFTH AFFIRMATIVE DEFENSE

5

5. Taco Bell alleges that all of the counts alleged in Hiura's Cross-Complaint are barred in

6 that conditions subsequent to Taco Bell's obligations have not been satisfied.

7

SIXTH AFFIRMATIVE DEFENSE

8

6. Taco Bell alleges that all of the counts alleged in Hiura's Cross-Complaint are barred in

9 that any failure of Taco Bell to perform any contractual obligations alleged in the Cross-Complaint

10 was caused by the conduct ofHiura such that the obligations of Taco Bell to perform were

11 excused.

12

SEVENTH AFFIRMATIVE DEFENSE

13

7. Taco Bell alleges that if Hiura suffered any damages then Taco Bell is entitled to a set-

14 off due to harm suffered by Taco Bell as a result of Hiura's breach of contract and tortious conduct.

15

EIGHTH AFFIRMATIVE DEFENSE

16

8. Taco Bell alleges that any damages arising from the counts alleged in Hiura's Cross-

17 Complaint were proximately caused by the negligence of Hiura and/or its agents in failing to

18 exercise the proper care which a prudent person under the same or similar circumstances would

19 have exercised. Hiura's damages, if any, must accordingly be reduced in proportion to the amount

20 ofnegligence of fault attributable to Hiura or its agents.

21

NINTH AFFIRMATIVE DEFENSE

22

9. Taco Bell alleges that all of the counts in Hiura's Cross-Complaint are barred by the

23 applicable statute of limitations.

24

TENTH AFFIRMATIVE DEFENSE

25 10. Hiura's claims are barred, in whole or in part, by the doctrines of estoppel, waiver,

26 laches, and unclean hands.

27

28 CROSS-DEFENDANT TACO BELL CORP.'S ANSWER TO CROSS-COMPLAINT Case No. CV-04-04571 MJJ
5

Case4:04-cv-04571-PJH Document39 Filed03/01/05 Page7 of 8

1

ELEVENTH AFFIRMATIVE DEFENSE

2

11. Taco Bell alleges that Hiura has, by virtue of its own acts, omissions, conduct, and

3 statements, waived any and all claim(s) against Taco Bell.

4

TWELFTH AFFIRMATIVE DEFENSE

5

12. Hiura has failed to state a claim upon which relief may be granted with respect to all

6 counts alleged in the Cross-Complaint.

7

THIRTEENTH AFFIRMATIVE DEFENSE

8

13. Hiura has not suffered any loss or harm as a result of any alleged act or omission of

9 Taco Bell or its agents, and therefore Hiura's Cross-Complaint against Taco Bell is barred.

10

FOURTEENTH AFFIRMATIVE DEFENSE

11

14. Hiura has failed to mitigate its damages, if any, and therefore Hiura's Cross-Complaint

12 against Taco Bell is barred.

13

FIFTEENTH AFFIRMATIVE DEFENSE

14

15. Should Hiura recover damages from Taco Bell, Taco Bell is entitled to indemnification,

15 either in whole or in part, from the persons whose negligence and/or fault proximately contributed

16 to Hiura's alleged damages, if any.

17

SIXTEENTH AFFIRMATIVE DEFENSE

18

16. At all relevant times, Taco Bell has met all federal and state statutory and regulatory

19 obligations owed to Plaintiff and all other individuals with disabilities, including sight and hearing

20 impaired individuals and individuals in wheelchairs, if any, and therefore Hiura's Cross-Complaint

21 against Taco Bell is barred.

22

SEVENTEENTH AFFIRMATIVE DEFENSE

23

17. At all relevant times, Taco Bell has complied with all of the Americans with Disabilities

24 Act final rules and Accessibility Guidelines, 28 C.F.R. Ch. 1, Part 36, and therefore Hiura's Cross-

25 Complaint against Taco Bell is barred.

26

27

28 CROSS-DEFENDANT TACO BELL CORP.'S ANSWER TO CROSS-COMPLAINT Case No. CV-04-04571 MJJ
6

Case4:04-cv-04571-PJH Document39 Filed03/01/05 Page8 of 8

1

RESERVED

2

18. Taco Bell presently has insufficient knowledge or information upon which to form a

3 belief as to whether it may have additional, as yet unstated, affirmative defenses available. Taco

4 Bell hereby gives notice that it intends to rely upon any other defenses that may become available

5 or apparent during the discovery proceedings in this matter and hereby reserves its right to amend

6 the Answer and to assert any such affirmative defense.

7

WHEREFORE, Defendant Taco Bell prays for judgment as follows:

8

1. That the Court dismiss Hiura's Cross-Complaint with prejudice, orders that Hiura

9

take nothing by this action, and enters judgment in Defendant Taco Bell's favor;

10

2. That Taco Bell be awarded all of its litigation costs and attorneys' fees in this

11

action; and

12

3. That the Court award such other and further relief as it deems just and equitable.

13
14 Dated: March 1, 2005

SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP

15

16

BY:_~-TIf7'+--1f~--I:;-""--;6Jf----l~~':V-';-tvk------

e

asteel

17

ttorneys for Cross-Defendant

Taco Bell Corp.

18

19

20

21

22

23

24

25

26

27

28 CROSS-DEFENDANT TACO BELL CORP.'S ANSWER TO CROSS-COMPLAINT
Case No. CV-04-04571 MJJ
7
38495 1.0 I-Los Angeles Server 2A - MSW

 
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1 2 3 4
5 6
7 8 9 10 11 12 13 14 15 16 17 18
19 20 21 22 23 24 25 26 27 28
LAW OFFICES OF
PAULL. REIN
200 LAKESIDE DR-, SUITE A OAKLAND, CA 94612-3503
(510) 832-5001

PAUL L. REIN, Esq. (SBN 43053) PATRICIA BARBOSA, Esq. (SBN 125865) JULIE MCLEAN, Esq. (SBN 215202) LAW OFFICES OF PAUL L. REIN 200 Lakeside Dr., Suite A Oakland, CA 94612 Tel: (510) 832-5001 Fax: (510) 832-4787
Attorney for Plaintiff: ERNESTINA SALDANA-NElLY

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

ERNESTINA SALDANA-NElLY,
Plaintiff,
v.
TACO BELL OF AMERICA, INC.; DOROTHY M. HIURA TRUST; and DOES 1 through 25; HEDIA PETROLEUM, INC., dba CAMPBELL UNION 76; BOZORGHADAD TRUST; and DOES 26-50, Inclusive,
Defendants

CASE NO. C04-4571 MJJ civil Rights
CONSENT DECREE AND ORDER AS TO CAMPBELL UNION 76, HEDIA PETROLEUM INC. AND BOZORGHADAD TRUST ONLY

DOROTHY M. HIURA TRUST, Cross-claimant
v.
TACO BELL OF AMERICA, INC.; and DOES 1-20, Inclusive,
Cross-defendant _______________________1

Consent Decree and Order: Case No. C04-4571 MJJ

- 1-

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
LAW OFFICES Of
PAULL. REIN
200 LAKESIDE DR., SUITE A OAKLAND, CA 94612-3503
(510) 832-5001

CONSENT DECREE AND ORDER 1. Plaintiff ERNESTINA SALDANA-NElLY filed a Complaint in this action on October 28, 2004, to enforce provisions of the Americans with Disabilities Act of 1990 (nADA n), 42 U.S.C. §§ 12101 et seq., and California civil rights laws against Defendants, TACO BELL OF AMERICA, INC.; DOROTHY M. HIURA TRUST; and DOES 1 through 25; HEDIA PETROLEUM, INC., dba CAMPBELL UNION 76; BOZORGHADAD TRUST; and DOES 26-50, Inclusive. Plaintiff has alleged that Defendants HEDIA PETROLEUM, INC., dba CAMPBELL UNION 76 and BOZORGHADAD TRUST violated Title III of the ADA and sections 51, 52, 54.1, and 55 of the California
Civil Code, and sections 19955 et seq., of the California Health and Safety Code by failing to provide full and equal access to their facilities at the Union 76 Station located at 3145 S. Bascom Ave., Campbell, California when plaintiff visited the subject facility on May 15, 2004.
2. Defendants HEDIA PETROLEUM, INC., dba CAMPBELL UNION 76 and BOZORGHADAD TRUST; ("Defendants") deny the allegations in the Complaint and by entering into this Consent Decree and Order do not admit liability to any of the allegations in Plaintiff's Complaint filed in this action. The parties hereby enter into this Consent Decree and Order for the purpose of resolving this lawsuit without the need for protracted litigation, and without the admission of any liability.

JURISDICTION: 3. The parties to this consent decree agree that the
Court has jurisdiction of this matter pursuant to 28 USC §1331

Consent Decree and Order: Case No. C04-4571 MJJ

- 2-

S:\jmIC....'ITIToeo !lell· Union 76'~l....D"'\lJmon 76 Con=,D== 12-5-<]5 do<

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
LAW OFFICES OF
PAULL. REIN
200 LAKESIDE DR., SUI'rn A OAKLAND, CA 94612_3503
(510) 832-5001

for violations of the Americans with Disabilities Act of 1990, 42 USC 12101 e·t seq. and pursuant to pendant jurisdiction for violations of California Health & Safety Code §19955 et seq., including §19959; Title 24 California Code of Regulations; and California Civil Code §§51; 52; 54; 54.1; §54.3; and 55.
4. In order to avoid the costs, expense, and uncertainty of protracted litigation, the parties to this consent decree agree to entry of this Order to resolve all claims regarding injunctive relief and damages raised in the Complaint filed with this Court on October 28, 2004. Accordingly, they agree to the entry of this Order without trial or further adjudication of any issues of fact or law concerning plaintiff's claims for injunctive relief or damages.
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:

SETTLEMENT OF INJUNCTIVE RELIEF:

5. 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. The parties agree that there has

been no admission or finding of liability or violation of the

ADA and/or California civil rights laws, and this Consent

Decree and Order should not be construed as such.

6.

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

Consent Decree and Order: Case No. C04-4571 MJJ

- 3-

,Dc.,.. S:~m"C...'ITIT..o Ben • Union 76',pl,oOl'g,IUmoD 76 Co....

12·5.(15.000

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
LAW OFFICES OF
PAULL. REIN
200 LAKESIDE DR, SUITE A OAKLAND, CA94612-3503
(510) 832_500\

California Code of Regulations, Title 24-2 and Americans with Disabilities Act Accessibility Guidelines, unless other standards are specifically agreed to in this Consent and Order:
a) Remedial Measures: The injunctive relief agreed upon by the Parties is attached as Attachment A to this Consent Decree, the Disabled Access Evaluation performed by plaintiff's consultant Jonathan Adler, which is incorporated herein by reference as if fully set forth in this document. Defendants agree to undertake all remedial work (identified as "Recommendations") set forth in Attachment A. Defendants further agree to institute and maintain a policy that all accessible routes and paths of travel will be maintained clear of any obstacles. All employees shall be trained in this policy.
b) Timing of Injunctive Relief: Defendants will submit plans for all corrective work within 30 days of entry of this consent decree and order by the court, will commence work within 30 days of receiving approval from the building department, and will complete work within 60 days of commencement. 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 30 days of discovering the delay. Defendants or their counsel will notify plaintiff's counsel when the corrective work is completed, and in any case will provide a status report no later than 120 days from the entry of this consent decree.

Consent Decree and Order: Case No. C04-4571 MJJ

- 4-

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1
2
3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
LAW OFFICES OF
PAULL. REIN
200 LAKESIDE DR., srnTEA OAKLAND, CA 94612~3503
(5\0) 832-5001

DAMAGES, ATTORNEY FEES, LITIGATION EXPENSES, AND COSTS: 7. The parties have not reached an agreement
regarding plaintiff's claims for attorney fees, litigation expenses and costs. These issues shall be the subject of further negotiation, litigation, or motions to the Court. Defendants agree to pay $10,000 for all personal injury, civil rights, or any other form of damages to plaintiff, such payment to be made by check to "Paul L. Rein in trust for Ernestina Saldana-Neilly" within 60 days of this agreement. Such settlement is subject to a "good faith" stipulation and court order from Taco Bell as to the amount of damages or a "good faith" finding by the Court pursuant to defendants' motion.

ENTIRE CONSENT ORDER: 8. This Consent Order and Attachment A to this Consent
Decree, which is incorporated herein by reference as if fully set forth in this document, constitutes 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 Order, shall be enforceable regarding the matters of injunctive relief described herein. This consent decree applies to plaintiff's claims for injunctive relief and damages as to the Union 76 station only and does not resolve plaintiff's claims for attorney's fees, litigation expenses and costs, or to plaintiff's claims at the Taco Bell 1546 Camden Ave., Campbell, California, which shall be the subject of further negotiation

Consent Decree and Order: Case No. C04-4571 MJJ

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
LAW OFFICES OF
PAULL. REIN
200 LAKESIDE DR., SillTE A OAKLAND, CA 94612-3503
(5\0) 832-5001

and/or litigation.

CONSENT ORDER BINDING ON PARTIES AND SUCCESSORS IN INTEREST: 9. This Consent Order shall be binding on Plaintiff
ERNESTINA SALDANA-NElLY, Defendants, REDIA PETROLEUM, INC., dba CAMPBELL UNION 76; BOZORGHADAD TRUST; and any successors in interest. The parties have a duty to so notify all such successors in interest of the existence and terms of this Consent Order during the period of the Court's jurisdiction of this consent decree.

MUTUAL RELEASE AND WAIVER OF CIVIL CODE SECTION 1542 AS TO DAMAGES AND INJUNCTIVE RELIEF ONLY:
10. Each of the parties to this Consent Decree understands and agrees that there is a risk and possibility that, subsequent to the execution of this Consent Decree, any or all of them will incur, suffer, or experience some further loss or damage with respect to the Lawsuit which are unknown or unanticipated at the time this Consent Decree is signed. Except for all obligations required in this Consent Decree, the parties intend that this Consent Decree 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. Therefore, except for all obligations required in this Consent Decree, this Consent Decree 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

Consent Decree and Order: Case No. C04-4S71 MJJ

- 6-

S,ljm\C...,ITlTo<o Den· Union 75'",I..alog.\Umon 76 Co.,.., D,,,,,,, 12.5.<>5 doo

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
LAW OFFICES OF
PAULL-REIN
200 LAKESIDE DR., SUITEA OAKLAND, CA 94612-3503
(510) 832-5001

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 FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR. This waiver applies to the injunctive relief and damages aspects of this action in regards to the Campbell Union 76 station only and does not include resolution of plaintiff's claims for attorney fees, litigation expenses and costs, or claims for injunctive relief with regard to the Taco Bell restaurant located at 1546 Camden Ave., Campbell, California. 11. Except for all obligations required in this Consent Decree, and exclusive of the referenced continuing claims for statutory attorney fees, litigation expenses and costs, each of the parties to this Consent Decree, 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.

Consent Decree and Order: Case No. C04-4571 MJJ

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p.2

1 TElIH or :!:EE CONSER:!: oaDU:

2

12. This Consent Order shall be in full force and effect

3 for a period of twelve (12) months after the date of entry of 4 this Consent Order, or until the injunctive relief contemplated

5 by this Order is completed, whichever occurs later. The Court
6 shall retain jurisdiction of this action to enforce provisions
7 of this Order for twelve (12) months after the date of this
B Consent Decree, or until the injunctive relief contemplated by
9 this Order is completed, whichever occurs later.

10

11 SEVEEIAB:II.:t'rY:

12

13. If any term of this Consent Decree and Order is

1'3 determined by any court to be unenforceable, the other terms of

14 this Consent Decree and Order shall nonetheless remain in full

15, force and effect. 16

17 S:tGNA!rOlUBS BIND PAR'rJ:ES;

18

14 . Signatories on the behalf of the parties represent

19 tha~ they are authorized to bind the parties to this Consent

20 Decree and Order.

21 22 Dated: December __, 2005

23

24

1_ ,,_0"

25 Dated: ' December

26

27

, 2005

INC. ,

28
lAW OFl1ca OF
PAUL L. REIN
ZOO~tm..SlIl'J':EA
0I!.f<l..AN0, c... 94612~)503
(510) &3~50{l1

Consene Daczaa and O:dar: case NO. C04-457L MJJ

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17
18
19 20 21 22 23 24 25 26 27 28
LAW ()FF[CES OF
PAULL. REIN

TERM OF THE CONSENT ORDER: 12. This Consent Order shall be in full force and effect
for a period of twelve (12) months after the date of entry of this Consent Order, or until the injunctive relief contemplated by this Order is completed, whichever occurs later. The Court shall retain jurisdiction of this action to enforce provisions of this Order for twelve (12) months after the date of this Consent Decree, or until the injunctive relief contemplated by this Order is completed, whichever occurs later.

SEVERABILITY: 13 . 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: 14. Signatories on the behalf of the parties represent
that they are authorized to bind the parties to this Consent Decree and Order.

Ge, Dated: December

2005

Dated: December , 2005

b~ °tJ.b
Plaintif ERNESTINA SALDANA-NElLY

Defendant HEDIA PETROLEUM, INC., dba CAMPBELL UNION 76

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1 2 3 4 5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
LAW OFFICES OF
PAULL. REIN
200 LAKESIDE OR_, SUITE A OAKLAND, CA 94612-3503
(510) 832-5001

Dated: December __ , 2005

Defendant BOZORGHADAD TRUST

APPROVED AS TO FORM:
Dated: December~, 2005

PAUL L. REIN PATRICIA BARBOSA JULIE MCLEAN LAW OFFICES OF PAUL L. REIN

Dated: December __ , 2005

for Plaintiff SALDANA-NElLY
RICHARD G. GROTCH, Esq. CODDINGTON, HICKS & DANFORTH

Attorneys for Defendants HEDIA PETROLEUM, INC. ·dba CAMPBELL UNION 76; BOZORGHADAD
TRUST

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

Dated: ______, 2005

Han. Martin J. Jenkins United States District Judge

Consent Decree and Order: Case No. C04-4571 MJJ

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UNITED S
ALIFORNIA

OURT NORTH

January 11

TATES DISTRICT C APPROVED
Judge Martin J. Jenkins ERN DISTRICT OF C

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Union 76 - 3145 S. Bascom. - Campbell, CA Disabled Access Evaluation: Inventory of Architectural Barriers

Inspection Date: 3/29/05
The following Inventory of Barriers lists the architectural features that do not meet the regulatory standards for disabled access. The third column titled REQUIREMENT lists the code citation from the CA Building Code (Title 24 Part 2 - Volume 1) or from The
. Americans with Disabilities Act (Title 111- 28 CFR Part 36, Appendix A ) where the requirement can be found for that corresponding
feature.
SUNey performed~~SA ~____
Jonathan Adler, Principal ACCESS COMPLIANCE SERVICES ICBO Accessibility Inspector/Plans Examiner #0886919-21 CA Contractor Lie. #707965 (831) 429-4191

Signage: rSA Signage that reserves the space for persons with disabilities is not posted.

Accessible parking spaces shall De designated as reserved by a sign showing the symbol of accessibility (.see 4.30.7).

4.6.4

Spaces complying with Van spaces shall have an additional sign 'Van-Accessible" mounted below the symbol of accessibilit
OSX:ACS Clients'Client Lisl:ACS ClieQts Paul Rein Lew:Union~76 Campbell:REPORT:Barrier Description.doc

Install the required parl<lng space I Photo 01
signage on a post or the walr with the bottom edge 80" above the ground.
1

# Barrier Description

Requirement

Code

Signage: Enforcement

Tow-Away signage must be

1129B.5

Tow-Away signage is not posted installed at each entrance to the

as required

lot or visible from each parking

space Sign must be min. 17" x

22", with min. 1" tall letters, and

state:

2

"Accessible spaces not displaying

distinguishing placards or license plates

iss (Jed for persons with disabilities may be

towed away at owner's expense. Towed

vehicles may be recleimed at ____ or by

telephoning _ ~ ____ M

BIlmk spaces must be filled in with

appropriate

4.6.3

Access Aisle

Parking spaces and access aisles

A "built-up" curb ramp that slopes must be level with surface slopes

between 7.9% and 11.9%%

not exceeding 1'.50 (2%) in all

projects 5'-8"ft. into the access

directions

aisle

NOTE: While curb ramps are not

allowed to project into the access

aisle, even where curb ramps are

allowed they may not slope more

steeply than 8.3%,

3

OSX:ACS Clients:Clienl Lisl:ACS Clients Paul Rein Law:Union·76 Campbe1J:REPORT:Barrier Description.doc

Recommendation Install tow-away signage at each entrance to the parking lot or at a location clearly visible from the parking space.

Graphic No Photo

,

Remove the built-up asphalt curb ramp from inside of the access aisle.
A) The section of walkway that connects the curb ramp t" the raised walkway slopes at a shallow pitch of 4%, It can be rebuilt as steeply as 8.3% in order to ramp down to the parking lot level. That would eliminate the rise in level that the built-up ramp provided.

Photo 02

8) Alternatively, the ramp could remain but the accessible parking space would have to move laterally so that it was fully 8-ft away from the built-up ramp. The area between the newly located parking space and the existing curb ramp would have to be striped to prohibit parking. This would require QivinQ up one parkinQ space.
2

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Persons with disabilities who travel

Exterior Route to Store

from the parking area to the store

Entrance

must make a U-Turn around the

The efltry door, when held open leadiflg edge of the open door.

by an internal mechanism,

Both the eBC and ADMG require

projects at a 90-degree angle from that the route at this point must be

the building, That leaves only a

minimum 48-in, wide because it is

42-in, wide route between the

the first turn of a tight U-Turn, A

door's leading edge and the outer tight U-Turn is one that tums

edge of the raised walkway,

around an object that is less than

4

48" wide, The door, which is

approximately 2" wide is much

less than 48-in,

so that it continues to swing
out but would be hinged on the opposite side as where it presently is hinged,

DWG-01

Furthermore, esc standards
require that walkways be 48" wide,
A door that encroaches into this
required width while it is open in a fixed position is in conflict with this standard,

Entrance Summary; VV11i1e the entry door into the store is able to swing in two directions, into the store or away from it, for purposes of entering the store it is not accessible regardless of the directiofl of SWiflg, That is because product displays on both sides of the door encroach iflto the clear floor areas that are required for maneuvering at the doors,
VV11en the door swings inward, a candy rack preveflts the door from opening widely enough, That effectively leaves pulling the door
outward from the exterior as only means of entering the store, The problem is that immovable product displays block an accessible

an

Refrigerated beverage cases

exterior door swings, the level

beside the entrance limit the clear landiflg that extends beyond the

5

width of the space next to the door's strike-edge to only 5-in,

strike-edge of the door must be minimum 24 inches wide,

Nofe: The strike-edge is the Side of
OSX:ACS Clients;ClieIl! Lisl:ACS Clients Paul Rein Law:Union-76 Campbell:REPORT:Barrier Description.doc

is re-hung per the recommendation on Line 4,

I DWG-Ol

that is, the beverage cases

may remain if the door is

hinged from the opposite side,

3

area must have a clear

A candy display on the east wall of length opposite the direction of

4.13.6

the store is onll! 27-in. from the

door swing (Le. the "push-side") of 1133B.2.4.2

face of the door in its closed

48 inches.

position. It therefore encroaches

6

I 21-in into the prescribed ciear
area of the door landing
Note: The candy display also

IWhen a door is open 90-degrees

prevents the door from fully

there must be a clear opening at I 4.13.5

opening gO-degrees, resulting in a least 32-in. wide

clear path that is only 27-in. wide

he door is swun in.

to Restroom

The minimum clear width of an

4.3.3

A) On 7/4/04, 9/16/04 and

accessible route must be 36 'In

Fig. 7a and 7b

10/15/04, prior to the noticed

except at doors, especially when

inspection on 3/29/05, the route

navigating a gO-degree turn

outside of the restroom was

reduced to only 27-in. wide

7

I by the placement of product displays (Red Bull)

B) During the Noticed

Inspection

on 3/29/05, removing the "Red

Bull" display had widened the

.. route, however it was still only 33'
wide.
-

Door Hardware Round doorknob is provided

Hardware must be operable with a single effort by lever-lype

6
Strike-Edge Clearance The clear floor area of the door 9 I landing is limited by the proximity of the toilet. The door landing
9-1/2"

11ClJUWi::Ilt' Uldl Uue'~ .rUL (t;:I..jUIlt;:
tight grasping, pinching or twisting of the wrist On the side toward which an interior door swings, 1B" of clear space is required beyond the strike-edge (latch side) of the door

4.13.6 1133B.2.4.

03X:ACS Clienls:Client List:ACS Clients Paul Rein Law:Union-76 Carnpbell:REPORT:Barrier Description.doc

Remove the product display and maintain a clear 48" deep landing on the interior side of the door.

Photo 05 (encroachment)
DWG2 (Door opens only part way)

Move the refrigerated case

Photo 06

that is in front of the restroom (7/4/04)

door and along the east wall,

a minimum of 3-inches away
from the restroom. Maintain I DWG 02

minimum 36-inch routes to the

restroom.

Replace the round with lever-s1yle hardware.

Perform either A or B:

Photo 07

A) Install a power door opener

I DWG 03

B) Relocate the door to the

east wall (exterior wall) whe,

4

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# Barrier Description beyond the edge of the door.

Requirement

Code

Side Transfer to Toilet

11158.7.2

The clear space between the toilet A clear 28-in. wide space is

10 and the lavatory is only 21-1/2"

required beside the toilet to

wide

facilitate safe transferring from a

wheelchair to the fixture.

Side Grab Bar at Toilet

The grab bar adjacent to the toilet 11158.8

The length of wall area next to the must be minimum 42-in. long and 4.16.4

toilet where a grab bar can fit is

extend at least 24" beyond the

limited by the door's location. The leading edge of the toilet.

grab bar is therefore only 24" long

11

and extends approximately 4 " beyond the leading edge of the

toilet fixture.

Mirror

12

The bottom edge of the mirror is 44-1/2" above the floor

Paper Towel The paper towel outlet is 51" above the floor.
13

Pipes under Lavatory

14

None of the pipes under the lavatory are wrapped with

insulation.

Mirrors must be mounted with the bottom edge of the reflecting surface no higher than 40 in. above the fin'lsh floor
Where towel, sanitary napkins, waste receptacles, and other similar dispensing and disposal fixtures are provided, at least one of each type must be located with all operable parts, including coin slots, within 40 inches from the finished floor.
Hot water and drain-pipes under lavatories must be insulated or otherwise configured to protect against contact.

4.19.6 11158.9.1 11158,9.2
4.19.4

Recommendation it would not have obstructions in the required door landinq.
Relocate the lavatory to the northeast corner of the room,

Graphic
Photo 08 OWG03

Perform either A or B:

I
Photo 09

A) Add a second grab bar onto the door if the door remains where it is and a power opener is installed per recommendation A at line 9

8) Replace the 24" long grab bar with a 42" bar if the door is moved per recomm endation 8 at line 9.
Lower the mirror to 40'

Photo 10

Lower the mirror to 40"

Photo 11

Wrap the pipes with inSUlation Photo 08

OSX:A.CS Clienls:Clienl Lisl:ACS Clients Paul Rein Law:Union·76 CampbelJ:REPORT:Barrier Description.doc

5

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Summary of Recommendations:
1) Parking: a) Remove the "built-up" curb ramp from the access aisle and rebuild the sloping section of walkway as needed in order to compensate b) Post signage to identify the parking space and also enforcement to warn about towing away unauthorized vehicles.
2) Route to Entrance and the Entry Door: a) Hinge the entry door from the opposite door jamb. b) Move product displays on the interior provide a clear door landing (48-inch of clear space perpendicular to the door when it is closed).
3) Rou Ie to Restroom a) Move the refrigerated case on the east wall in order to provide a continuous 36-inch wide route
4) Restrooms: a) Replace the round doorknob with lever hardware b) Relocate the door to provide required strike..,dge maneuvering space or install a power door opener to mitigate the lack of space. c) Install 42-in. of grab bar on the wall that flanks the toilet, insuring that it extends minimum 24·ln beyond the leading edge of the toilet. d) Move the lavatory to provide maneuvering space for transferring to the toilet. e) Lower the papers towel dispenser and the mirror, and also insulate the pipes under the sink.

OSX:ACS Clienu;;Clien1 Lisl:ACS Clients Paul Rein Law·Union·76 Campbell:REPORT;Barrier Description.doc

6

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Photo 01.JPG

Photo 02.psd

Photo 03.JPG

~" '.'.' "
..........}.•;.,.~;.5;'.. :..

Photo 05.JPG

Photo 04.JPG Photo 06 (july 4-2004).jpg

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Photo 07.JPG

Photo 08.psd

Photo 09.JPG

Photo 10.JPG

PhOto 11.JPG

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Union 76 campbell, CA
DRAWING 01
Route from Parking to Store

STORE

EXISTING
a) Curb ramp encroaches into access aisle b) Route around entry door is 42" wide

. :~-.

STORE

RECOMMENDATION
a) Remove the curb ramp and rebuild the 4% sloped section of walkway more steeply in order to descend to the level of the parki ng lot. b) Reverse the swing of the entry door.

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Union 76

31455. Bascom, 5J

.

DRAWING 02

21"
, (Encroachment)

Store
- - - Entrance I I I I Door I Landing I Ii I I I I I
, -T-l I I

,.•.. .. -~.'~.-.-.~-

~-

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.. .. .. _.-.-....... ,.-~

~,.-.,

~. ~ ' - -

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l

",
VI

!

'>" U«l
CII al

..... Previous ,/

':::;I:),'

Location

i""

of Red Bu II

0'

33" ! \ '

I

_I:II_! III
-- - 10.- 27"

,

i

~W40" I I

I

!

I

Ii .j
i

Product Display

I

i

,

i

,

I

I

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~.

'

.. .: \ .....

. -~

, ...

.-.---- ...

r "T ,-""'i I

I I
I ~I ,UI ~

I
,

I
I

i

! I J

I

I
I

I

I

Beverage Case

I !
1

I ,

I
I

, I

i

1

I

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: I

i

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i I

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Restroom

I I

I I

I

I

9" --+I---+I

r--o
Y'J
'--'

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Grab bar is only 24" long (42" required)

~ q-.::::~2:2:":..[~Uj

-

g"
---+-

UNIIJN 76
Campbell, CA
DRAWING 03

EXISTING CONDITIONS
r

RECOMMENDATION-A • Move lavatory to create side-transfer space • Install power door opener to mitigate the lack of strike-edge clearance.
• Add grab to Inside of door

~u
"::1
~

[J

RECOMMENDATION -8 • Move lavatory to create side-transfer space • Relocate door to allow full-length grab bar and to provide required strike-edge clearance on the pull-side of the door.

 
 United States District Court, N.D. California.
SALDANA-NEILY, Plaintiff, v.
TACO BELL OF AMERICA, INC. et al, Defendant. No. C04-04571 MJJ.

Plaintiff Ernestina Saldana-Neily sued the Taco Bell Defendants and the Union 76 Defendants for disability discrimination under federal and state law. The Union 76 Defendants settled with Ms. Saldana-Neily, with the latter receiving injunctive and compensatory relief. Ms. Saldana-Neily now moves the Court for an award of attorney's fees, litigation expenses, and costs. Having considered the parties' briefs and accompanying submissions, as well as the oral argument of counsel, the Court hereby recommends that the motion be GRANTED.

March 24, 2008.

I. FACTUAL & PROCEDURAL BACKGROUND

Julie Ostil, Patricia Barbosa, Paul Leslie Rein, Law Offices of Paul L. Rein, Oakland, CA, for Plaintiff.
Gregory F. Hurley, Richard Hidehito Hikida, Esq., Greenberg Traurig LLP, Irvine, CA, William Faulkner, McManis, Faulkner & Morgan, San Jose, CA, Richard Grotch, Coddington, Hicks & Danforth, Redwood City, CA, for Defendant.
ORDER ADOPTING REPORT AND RECOMMENDATION
MARTIN J. JENKINS, District Judge.

In the complaint, Ms. Saldana-Neily alleges that she is a physically disabled person who cannot walk and who requires the use of a wheelchair. See Compl. ¶ 5. According to Ms. SaldanaNeily, on or about May 15, 2004, she and her husband were returning home after a drive when they decided to leave the freeway to buy lunch. See Compl. ¶ 10. They stopped at a Taco Bell restaurant, and, while waiting for their food, Ms. Saldana-Neily felt the need to use the restroom. See Compl. ¶ 10. The restaurant's restroom, however, was not accessible as the restroom door was too narrow for Ms. Saldana-Neily to enter in her wheelchair. See Compl. ¶ 10. The Taco Bell manager subsequently advised Ms. Saldana-Neily that there were no restrooms at the restaurant that were accessible for disabled persons. See Compl. ¶ 10.

*1 Pending before the Court is Plaintiff Saldana-Neily's Motion for Attorney's Fees, Litigation Expenses, And Costs As Against Defendants Hedia Petroleum, Inc., d/b/a Campbell Union 76 And Bozorghadad Trust Only (“Motion”). (Doc. No. 75.) On March 4, 2008, Magistrate Judge Chen issued a Report and Recommendation (“R & R”) granting the Motion. (Docket No. 97.) The Court has considered the R & R and agrees with the Magistrate Judge's reasoning. Accordingly, the Court ADOPTS the R & R and GRANTS Plaintiff's Motion for attorney's fees, litigation expenses, and additional costs and fees in the amount of $48,392.80.
IT IS SO ORDERED.

Because Ms. Saldana-Neily was experiencing physical discomfort from the need to use the restroom, she determined to try to use a restroom at a nearby Union 76 service station. See Compl. ¶ 11. Ms. Saldana-Neily was told by an employee there that there was a restroom inside the service station, but Ms. Saldana-Neily was not able to access the restroom because the entrance into the station was blocked to wheelchair entry by a rack with some form of merchandise. See Compl. ¶ 11. The employee, after some difficulty, was able to move the rack out of the way but, when Ms. Saldana-Neily reached the restroom, that entry was also blocked by merchandise, and she was unable to reach the toilet before she had a bodily functions accident resulting in the soiling of her clothes. See Compl. ¶ 11.

REPORT AND RECOMMENDATION GRANTING PLAINTIFF'S MOTION FOR
ATTORNEY'S FEES
EDWARD M. CHEN, United States Magistrate Judge.

*2 Based on the above allegations, Ms. Saldana-Neily sued both the Taco Bell Defendants and the Union 76 Defendants for disability discrimination. She filed her complaint on October 28, 2004. See Docket No. 2 (complaint). On December 3, 2004, the Taco Bell Defendants answered the complaint, see Docket No. 15, and, on January 3, 2005, the Union 76 Defendants

answered. See Docket No. 23 (answer). In a joint case management conference dated February 1, 2005, the Union 76 Defendants denied the allegations in the complaint and stated that they were in “compli[ance] with all applicable laws governing accessibility.” Docket No. 32, at 14 (joint case management conference statement).
On February 28, 2005, all parties entered into a stipulation in which they agreed that Ms. Saldana-Neily's claims for injunctive relief against the Taco Bell Defendants would be stayed; that all formal discovery would be stayed except for a site inspection of the facilities at issue; and that, after the site inspection, a settlement conference with a magistrate judge would be scheduled. See Docket No. 38 (stipulation). Judge Jenkins subsequently signed the parties' stipulation. See Docket No. 41 (order).
On July 12, 2005, a settlement conference with a magistrate judge was held. No settlement was reached at that time, and the conference was continued to a later date. See Docket No. 53 (minute order). Approximately two weeks later, another settlement conference was held on July 29, 2005. As above, no settlement was reached at that time. See Docket No. 56 (minute order). On October 26, 2005, a third settlement conference was held, at which time the case settled with respect to the claims for damages and injunctive relief against the Union 76 Defendants. See Docket No. 63 (minute order). Several days later, Ms. Saldana-Neily and the Union 76 Defendants submitted to Judge Jenkins a proposed consent decree and order. See Docket No. 64 (proposed consent decree and order).
Subsequently, on January 6, 2006, Ms. Saldana-Neily and the Union 76 Defendants withdrew the proposed consent decree and order and submitted a revised one in its stead. See Docket Nos. 70-71 (proposed consent decree and order; stipulation and proposed order). Judge Jenkins permitted the withdrawal and signed the revised consent decree and order on January 11, 2006. See Docket Nos. 72-73 (stipulated order; consent decree and order). Under the revised consent decree and order, the parties agreed that the Union 76 Defendants would undertake all remedial work as set forth in the Disabled Access Evaluation performed by Jonathan Adler, Ms. Saldana-Neily's consultant. See Docket No. 73, at 4. The parties also agreed that the Union 76 Defendants would pay $10,000 to Ms. Saldana-Neily as damages. See Docket No. 73, at 5. The parties did not, however, reach an agreement regarding Ms. Saldana-Neily's claims for attorney's fees, litigation expenses, and costs. See Docket No. 73, at 5.

*3 Approximately one year and nine months later, on October 29, 2007, Ms. Saldana-Neily filed the currently pending motion for fees, expenses, and costs. According to Ms. Saldana-Neily, she delayed filing the motion because she was hoping that the Taco Bell part of the case would also settle so that she could make one motion for all attorney's fees, litigation expenses, and costs. See Mot. at 5-6.
II. DISCUSSION
A. Legal Standard
The Americans with Disabilities Act (“ADA”) provides that, “[i]n any action or administrative proceeding commenced pursuant to this Act, the court or agency, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee, including litigation expenses, and costs ....“ 42 U.S.C. § 12205. In addition, under California Civil Code § 55, “[t]he prevailing party in [an action for violation of California Civil Code § 54. 1, which provides that individuals with disabilities shall be entitled to full and equal access,] shall be entitled to recover reasonable attorney's fees.” Cal. Civ.Code § 55. Finally, under California Code of Civil Procedure § 1021.5,
a court may award attorneys' fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest if: (a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement, or of enforcement by one public entity against another public entity, are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any.
Cal.Code Civ. Proc. § 1021.5.
Ms. Saldana-Neily argues that an award of attorney's fees, litigation expenses, and costs is appropriate pursuant to all three statutes. The Union 76 Defendants do not contest the applicability of the statutes, focusing largely on the argument that the fees sought are not reasonable. The Court analyzes Ms. Saldana-Neily's motion under the ADA standard, especially since the federal statute, unlike the state statutes, explicitly provides for not only attorney's fees but also litigation expenses and costs.

B. Prevailing Party

to the lawsuit, not the predecessor owners of the service station.

There is no real dispute that Ms. Saldana-Neily was the prevailing party in her action against the Union 76 Defendants. The action was resolved by a court-ordered consent decree pursuant to which she obtained significant injunctive relief and received compensatory damages in the amount of $10,000. See Buckhannon Bd. & Care Home v. West Va. Dep't of Health & Human Res., 532 U.S. 598, 604, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001) (“[E]nforceable judgments on the merits and court-ordered consent decrees create the ‘material alteration of the legal relationship of the parties' necessary to permit an award of attorney's fees.”); Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) (“[P]laintiffs may be considered prevailing parties for attorney's fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.”) (internal quotation marks omitted). The Court therefore turns to the issue of whether attorney's fees, litigation expenses, and costs should be awarded and, if so, in what amount.
C. Attorney's Fees

Second, the Union 76 Defendants' contention that the case would have been quickly resolved but for the conduct of counsel for Ms. Saldana-Neily is not borne out by the record. Whether or not counsel for Ms. Saldana-Neily appropriately advised the Union 76 Defendants that they should hire an attorney, the bottom line is that the case was prolonged in part because the Union 76 Defendants denied liability and, for whatever reason, it took three settlement conferences before a magistrate judge to resolve the dispute. There is no evidence prolonged nature of the settlement discussions was due to counsel for Ms. Saldana-Neily making unreasonable settlement demands. Indeed, it appears that counsel for Ms. Saldana-Neily made some effort to limit the incurring of fees, e.g., by entering into a stipulation that formal discovery would be stayed except for a site inspection of the facilities at issue.
Because there are no special circumstances that would make an award of fees unjust, the only remaining question for the Court is what is a reasonable fee.

1. Special Circumstances

2. Lodestar

*4 As a preliminary matter, the Union 76 Defendants argue that no fees should be awarded at all because there are special circumstances that would make an award unjust. See Opp'n at 2-3 (citing Hensley, 461 U.S. at 429 (“[A] prevailing plaintiff should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust.”) (internal quotation marks omitted)). They identify two alleged special circumstances: (1) that they are small business owners who had owned the service station for only a short time before the incident at issue and (2) that they tried to get early resolution of the case but were “beaten back by plaintiff's counsel.” Opp'n at 2.

Reasonable attorney's fees are determined by first calculating the lodestar. See Jordan v. Multnomah County, 815 F.2d 1258, 1262 (9th Cir.1987). The lodestar is calculated by multiplying the number of hours the prevailing party reasonably expended on the litigation by a reasonable hourly rate. See Morales v. City of San Rafael, 96 F.3d 359, 363 (9th Cir.1996). According to Ms. Saldana-Neily, the proper lodestar is $45,530 (excluding fees incurred for preparation of the reply brief for the fee motion). See Mot. at 25. The Court addresses the issues of reasonable hourly rate and reasonable number of hours below.
a. Hourly Rate

The Court does not find either argument convincing. First, the Union 76 Defendants cite no authority in support of their proposition that the size of a business is a special circumstance that can immunize it from liability for fees. As for the fact that the Union 76 Defendants may have owned the service station for only a short time before the incident at issue, that is, at best, of marginal relevance with respect to the issue of fees (as opposed to, e.g., the issue of liability). The bulk of the fees at issue were incurred after the complaint was filed-i.e., the fees were incurred because of how the Union 76 Defendants reacted

*5 Ms. Saldana-Neily was represented by the Law Offices of Paul L. Rein. Three attorneys from that law firm worked on her case: Mr. Rein himself, Patricia Barbosa, and Julie Ostil.
Mr. Rein, a graduate of Boalt Hall of the University of California, Berkeley, has been a lawyer for more than 38 years since his admission to the California State Bar in 1969. See Rein Decl. ¶ 1. He has represented disabled

persons in civil rights disability access lawsuits for the past 32 years and has successfully litigated cases that have helped define the parameters of disability access law in California. See Rein Decl. ¶¶ 1, 31, 33 37-52. He has published multiple articles on disability access issues and participated as a lecturer for multiple attorney groups and law schools on the same. See Rein Decl. ¶¶ 34-36. Ms. Saldana-Naily argues that a reasonable hourly rate for Mr. Rein is $435.
Ms. Barbosa has been an attorney for more than 20 years. See Barbosa Decl. ¶ 2. Prior to joining the Rein law firm, she was a deputy attorney general in the California Department of Justice, where she worked on disability discrimination cases, and then a private consultant for local government agencies on disability access issues. See Barbosa Decl. ¶ 3. She also served as an editor for the California Attorney General's “Disabled Rights Handbook” and an adjunct professor at Trinity Law School. See Barbosa Decl. ¶¶ 2-3. Since joining the Rein law firm in 199, she has acted as lead counsel in over 200 civil rights cases in federal courts in California. See Barbosa Decl. ¶ 4. Ms. Saldana-Neily argues that a reasonable hourly rate for Ms. Barbosa is $400.

several decisions issued by other judges in this District who have ruled on fee motions made by the Rein law firm. In 2007, hourly rates of $435 were approved for Mr. Rein, $400 for Ms. Barbosa, and $275 for Ms. Ostil. See, e.g., Mannick v. Kaiser Found. Health Plan, Inc., C-03-5905 PJH (available at Rein Decl., Ex. 16) (in 2007, approving an hourly rate of $435 for Mr. Rein, $400 for Ms. Barbosa, and $275 for Ms. Ostil); George v. Bay Area Rapid Transit Dist., No. C 00-2206 CW, 2007 U .S. Dist. LEXIS 72812, 2007 WL 2778784 (N.D.Cal. Sept.21, 2007) (in 2007, approving an hourly rate of $435 for Mr. Rein, $400 for Ms. Barbosa, and $275 for Ms. Ostil); see also Chavez v. Chevy's Fresh Mex Restaurant, C-01-4322 TEH (available at Rein Decl., Ex. 13) (in 2003, approving an hourly rate of $395 for Mr. Rein and $345 for Ms. Barbosa).FN2
FN1. These attorneys speak to the appropriate hourly rate for Mr. Rein, and not Ms. Barbosa or Ms. Ostil. In his declaration, Mr. Rein claims that, based on his experience, he believes that a reasonable rate for Ms. Barbosa is $400 per hour. See Rein Decl. ¶ 60.

Julie Ostil, also a graduate of Boalt Hall, was admitted to the California State Bar in 2001. See Ostil Decl. ¶ 3. Prior to joining the Rein law firm, she was a staff attorney at a nonprofit agency serving low-income Bay Area residents. See Ostil Decl. ¶ 3. Since joining the law firm, she has been lead counsel on multiple disability access cases in federal court. See Ostil Decl. ¶ 3. Ms. Saldana-Neil argues that a reasonable hourly rate for Ms. Ostil is $275.
The Court has reviewed the declarations of Mr. Rein, Ms. Barbosa, and Ms. Ostil. It has also reviewed the declarations (provided by the Rein law firm) that attorneys submitted in other cases in which Mr. Rein sought fees.FN1 Some of these attorneys have personal knowledge of Mr. Rein's work having served as co-counsel with him on at least one case. These attorneys opine that Mr. Rein would be entitled to an hourly rate in excess of $435. See, e.g., Burris Decl. ¶¶ 6-7, 10 (stating that he has served as co-counsel with Mr. Rein on at least ten disability access cases, that “Mr. Rein performed each [case] with a high level of skill,” that Mr. Rein's “expertise contributed greatly to the outstanding results that were achieved,” and that an hourly rate of $500 for Mr. Rein is justified); Cohen Decl. ¶¶ 11-13 (stating that he is familiar with Mr. Rein's work and expertise having previously served as co-counsel with Mr. Rein and that an hourly rate of $435 “is below the amount [Mr. Rein] could charge and recover and is below the amount that persons with less experience do charge and recover”). Finally, the Court has reviewed

FN2. In each of the decisions cited, the opposing party did not appear to challenge the hourly rates sought.
*6 Taking into account the above, as well as the Court's own experience with fee claims in other cases,FN3 the Court finds that the hourly rates sought for Mr. Rein, Ms. Barbosa, and Ms. Ostil are reasonable. None of the arguments to the contrary made by the Union 76 Defendants are convincing.
FN3. See Oberfelder v. City of Petaluma, No. C-98-1470 MHP, 2002 U.S. Dist. LEXIS 8635, at *13-14, 2002 WL 472308 (N.D.Cal. Jan. 29, 2002) (Patel, J .) (stating that “[f]ee applicants sustain their burden of proof by submitting sufficient evidence that requested rates are comparable to the current market rates” and that, “[a]lternatively, in evaluating the requested hourly rate, a district court may rely on its own knowledge of comparable rates charged by other lawyers in the district”); Keith v. Volpe, 644 F.Supp. 1312, 1316 (C.D.Cal.1986) (in absence of submissions from defendants controverting rates requested by plaintiffs, relying on “its prior orders in this case, the rates recently awarded in comparable cases, and its own experience of legal practice in Los Angeles in determining appropriate hourly rates”); see also Campbell v.

Green, 112 F.2d 143, 144 (5th Cir.1940) (noting that “[t]he court, either trial or appellate, is itself an expert on the question and consider its own knowledge and experience concerning reasonable and proper fees and may form an independent judgment either with or without the aid of witnesses as to value”).
For example, the Union 76 Defendants contend that the hourly rates are excessive because “there was nothing novel or complex about plaintiff's claims”-“plaintiff's counsel all but admitted as much when he told defense counsel that he could not think of any defense they defendants would have to the plaintiff's claims.” Opp'n at 4. But the novelty or complexity of a claim tends to inform the question of what is a reasonable number of hours spent on a case, not what is a reasonable hourly rate. See Blum v. Stenson, 465 U.S. 886, 898, 104 S.Ct. 1541, 79 L.Ed.2d 891 (noting that “[t]he novelty and complexity of the issues presumably were fully reflected in the number of billable hours recorded by counsel and thus do not warrant an upward adjustment in a fee based on the number of billable hours times reasonable hourly rates”).
The Union 76 Defendants also argue that the hourly rates are excessive because competent counsel could be attracted for lower rates and because their own counsel charged smaller hourly rates. See Opp'n at 4-6. Neither argument is availing. The Union 76 Defendants have failed to provide any evidence in support of their first contention. As to their second contention, there is no evidence that their own attorney is a proper comparator for Ms. Saldana-Neily's attorneys in terms of skill, experience, and reputation. Nor does it take into account varying rates that often exists between plaintiff and defense counsel.

Feb.23, 1998) (“While the court is mindful of the fact that Rein has not actually received this rate from a fee-paying client, the court realizes that such situations are not uncommon among public interest lawyers. The court will therefore fix an hourly rate that is consistent with prevailing market rates for lawyers of similar experience in the San Francisco Bay area.”). It is common for attorneys representing plaintiff in civil rights and personal injury cases to work regularly on a contingency basis. That fact does not bar recovery of statutory fees based on prevailing market rate rather than fees actually charged by the particular attorney.
b. Number of Hours
*7 Having determined what the reasonable hourly rates for the attorneys are, the Court now turns to the question of whether the number of hours for which Ms. Saldana-Neily seeks compensation were reasonably expended on the litigation.
As a preliminary matter, the Court notes that, although the Union 76 Defendants contest the hours in certain respects as discussed below, they have not argued-including at the hearing on the motion for fees-that the hours billed by Ms. Saldana-Neily's attorneys were, in the aggregate, out of line compared to the hours billed by their own attorneys in defending the case. The main arguments of the Union 76 Defendants are as follows: (1) The bills included mistaken charges, and (2) the attorneys failed to exercise billing judgment (e.g., overbilling for the fee motion and for relatively simple tasks, performing work that should have been done by nonlawyers, engaging in unnecessary duplication of work, improperly charging for travel time, improperly charging for work performed by a paralegal).

Finally, the Union 76 Defendants suggest that the Court should question the hourly rates sought because there is no market rate for the services of a disability rights attorney-that is, disability discrimination cases are taken on a contingent fee basis and “there is absolutely no negotiation between the client/buyer and the attorney/seller regarding hourly billing rates.” Opp'n at 4. This argument is without merit. The Union 76 Defendants have offered no evidence that disability discrimination cases are always taken on a contingent fee basis. Even if they were, the Supreme Court has instructed that a prevailing market rate can be defined-even, e.g ., for a nonprofit legal services organization-as the rate “prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.” Blum, 465 U.S. at 895 n. 11; see also Hodges v. El Torito Restaurants, No. C-96-2242 VRW, 1998 U.S. Dist. LEXIS 11517, at *5-6, 1998 WL 95398 (N.D.Cal.

i. Mistaken Charges
In their opposition brief, the Union 76 Defendants argue first that Ms. Saldana-Neily's attorneys mistakenly attributed to the Union 76 Defendants certain charges (totaling $801.50) that were related solely to the Taco Bell Defendants. See Opp'n at 6. In her reply brief, Ms. Saldana-Neily concedes the error, see Reply at 1, and the Court's own review of the billing records establishes that the Union 76 Defendants are correct. Accordingly, the Court deducts $801.50 from the fee award sought by Ms. Saldana-Neily.
The Union 76 Defendants also argue that Ms. Saldana-Neily's attorneys made an error in calculating the

fees incurred by Ms. Barbosa. According to the Union 76 Defendants, “Plaintiff's calculation includes half an hour that Ms. Barbosa reportedly devoted to work affecting the Union 76 defendants only [but][h]er timesheet has no blue highlighting at all.” Opp'n at 11. With her reply brief, Ms. Saldana-Neily provided the full timesheets for Ms. Barbosa, which justifies the charges sought and demonstrates that there was no real error. See Reply at 14; Supp. Rein Decl., Ex. 18. The Court, therefore, shall make no deduction here.
The Union 76 Defendants further argue that Ms. Saldana-Neily's attorneys made an error in calculating the fees incurred by Ms. Ostil. More specifically, they assert that “Ms. Ostil's total hours billed for work relating solely to the Union 76 defendants appears to be 18.3 hours (highlighted in blue); yet the calculation is based upon 19.7 hours.” Opp'n at 11-12. The Court has reviewed Ms. Ostil's billing records. See Ostil Decl., Ex. 1. Based on its review, the Court finds that there was an error in calculation; that is, Ms. Ostil billed a total of 17.6 hours for work relating solely to the Union 76 Defendants. FN4 In light of this error, the Court concludes that Ms. Ostil's time should be reduced by 1.4 hours (i.e., 19.7 hours-0.7 hours-17.6 hours = 1.4 hours), which results in a decrease of $385 in the fee award.
FN4. This excludes the time that was mistakenly attributed to the Union 76 Defendants that was related solely to the Taco Bell Defendants. See Opp'n at 6 (listing 0.7 hours of time by Ms. Ostil that were mistakenly attributed).
*8 Finally, the Union 76 Defendants contend that an error in calculation was made with respect to the charges by Mr. Rein. See Opp'n at 12 (“[The Union 76] defendants have calculated the total at the level of $31,972.75, whereas plaintiff's number is $33,800.”). The Court has reviewed the timesheets of Mr. Rein. See Rein Decl., Ex. 3. Based on its review, the Court finds that the charges of Mr. Rein total $31,385.50.FN5 This warrants a decrease of $1,805.50 (i.e., $33,800-$609-$31,385.50 = $1,805.50).
FN5. This sum excludes the fees mistakenly attributed to the Union 76 Defendants that were related solely to the Taco Bell Defendants. See Opp'n at 6 (listing $609 in charges by Mr. Rein that were mistakenly attributed).
In sum, taking into account the mistaken charges, the $45,530 in fees sought by Ms. Saldana-Neily should be reduced to $42,538 (i.e.,

$45,530-$801.50-$385-$1,805.50 = $42,538).
ii. Billing Judgment
In Hensley, the Supreme Court emphasized that a fee applicant
should make a good-faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to exclude such hours from his fee submission. In the private sector, billing judgment is an important component in fee setting. It is no less important here. Hours that are not properly billed to one's client also are not properly billed to one's adversary pursuant to statutory authority.
Hensley, 461 U.S. at 434 (internal quotation marks omitted; emphasis in original).
In their opposition brief, the Union 76 Defendants contend that Ms. Saldana-Neily's attorneys failed to exercise billing judgment in multiple ways. Some of the examples provided by the Union 76 Defendants are not very compelling. For example, the Court is not persuaded that the time billed by the attorneys for the opening briefing on the fee motion was excessive. Although some parts of the opening brief and the supporting declarations were no doubt a “cut-and-paste job” (e.g., the statutory basis of the fee request, description of the experience of the attorneys), a significant portion of the brief and supporting declarations were clearly written for this specific litigation. The Court cannot say that a total of approximately 24 hours was unreasonable.
The Court is likewise unconvinced that Ms. Saldana-Neily's attorneys improperly charged their travel time. The main contention of the Union 76 Defendants seems to be that the attorneys should have charged a reduced rate for their travel time, see, e.g., MacDougal v. Catalyst Nightclub, 58 F.Supp.2d 1101, 1106-07 (N.D.Cal.1999) (noting that “ ‘a different rate of compensation may well be set for different types of litigation tasks' “ and applying a reduced rate-$195 per hour instead of $325 per hour-to half of the attorney travel time), but there is no Ninth Circuit precedent that requires such. Furthermore, as the Seventh Circuit has explained, there is a strong reason why a lawyer should be able to charge his or her customary rate for travel time alone: “When a lawyer travels for one client he incurs an opportunity cost that is equal to the fee he would have

charged that or another client if he had been been traveling.” FN6 Henry v. Webermeier, 738 F.2d 188, 194 (7th Cir.1984).
FN6. Although the Union 76 Defendants' main contention is that there should be a reduced rate for the travel time, they actually propose that the Court should reduce the number of hours charged for the travel time. More specifically, they suggest that the Court deduct “one hour ... from each of the seven trips made by Mr. Rein which required travel.” Opp'n at 10. The Court is unwilling to make an across-the-board reduction. Mr. Rein's office is located in Oakland. The majority of travel time seems to have been incurred for trips to and from San Francisco. However, there was at least one occasion where a comparison of the Court's record for time spent in settlement conference to Mr. Rein's billing reveals approximately 2 hours for travel. The Court takes this liberal billing approach in assessing billing judgment below.
*9 Finally, the Union 76 Defendants' challenge to the time charged for the paralegal, Scott Holmes, is not convincing. According to the Union 76 Defendants, “there is no evidence that the time sheet for Mr. Holmes'[s] work is accurate” because “Steven L. Rein [another paralegal] does not have the requisite personal knowledge to attest to the fact that Mr. Holmes'[s] time record is accurate.” Opp'n at 12. However, it is sufficient that Steven L. Rein testified in his declaration that Mr. Holmes's time sheets, “kept in the regular course of business and contemporaneously with the work performed, reflects 5.5 hours.” Steven L. Rein Decl. ¶ 7. The Union 76 Defendants also argue that it is not clear that Mr. Holmes's time record “reflects work performed solely with respect to the Union 76 Defendants,” Opp'n at 12, but only half of Mr. Holmes's time was attributed to the Union 76 Defendants.
While the Court rejects the above assertions, the Court finds that there are other arguments which do establish a failure to exercise billing judgment in important respects. Although many of Defendants' arguments focus on specific problems with particular practices and time entries and they made an effort to quantify many of them, the Court finds that the deficits discussed herein are not readily quantifiable with any degree of precision because of instances of block billing by Plaintiff's counsel. Moreover, as discussed below, a substantial amount of the billing judgment assessed by the Court pertains not to the accuracy of hours actually billed, but to duplication and inefficiencies.

Accordingly, the Court is tasked with making an overall assessment based on billing judgment. In doing so, it considers a number of issues.
First, there is the issue of overbilling. The Court is especially troubled by Mr. Rein's statement at the hearing on the fee motion that he rounds up once the tenth of an hour is exceeded and never rounds down (e.g., if he has worked for only seven minutes, he charges 0.2 hours and not 0.1 hours of time). A declaration from defense counsel substantiates Mr. Rein's statement, see Grotch Decl. ¶ 17 (“I can state that in most instances, when I participated in a telephone conference with Mr. Rein, I billed one tenth of an hour less than Mr. Rein billed for participating in the very same conversation.”), as do Mr. Rein's billing records themselves. See Rein Decl., Ex. 3. For example, Mr. Rein charged 0.2 hours for each of the following relatively simple tasks: (1) reviewing and signing the consent form pursuant to which the case could be presided by a magistrate judge; (2) receiving Defendants' declination to proceed before a magistrate judge and request for reassignment; and (3) receiving notices from the Court setting a case management conference. See Rein Decl., Ex. 3 (entries dated 11/5/2004, 11/24/2004, 12/6/2004, and 12/7/2004).
Although Mr. Rein's overbilling is most problematic because his fees make up the bulk of the fee request, the Court notes that there were also instances of overbilling by the other attorneys on the case. As the Union 76 Defendants point out in their opposition brief, it seems excessive for Ms. Barbosa to have billed 0.4 hours for reviewing and revising a notice of unavailability and drafting a letter to defense counsel regarding Mr. Rein's out-of-state commitments. See Barbosa Decl., Ex. 1 (entry dated 11/30/2004). Also, on one occasion, Ms. Ostil billed her attorney rate for work that should have been performed by a nonlawyer as it was purely clerical or secretarial in nature. See Missouri v. Jenkins, 491 U.S. 274, 288, 109 S.Ct. 2463, 105 L.Ed.2d 229 (1989) (stating that “purely clerical or secretarial tasks should not be billed at a paralegal rate, regardless of who performs them”); Ostil Decl., Ex. 1 (entry dated 11/2/2005) (billing 0.2 hours for “[p]reparation of pleadings-efile consent decree and coverletter [sic]”).
*10 Second, aside from overbilling, the Court has concerns regarding unnecessary duplication of work. For example, given Mr. Rein's experience, it is not clear why both he and Ms. Ostil needed to attend the settlement conference on July 12, 2005. See Rein Decl., Ex. 3 (entry dated 7/12/2005 reflecting 4.5 hours for settlement

conference); Ostil Decl., Ex. 1 (same). Also, as the Union 76 Defendants point out, some unnecessary duplication of work appears to have occurred based on the number of intra-office conferences that were held by Ms. Saldana-Neily's attorneys and the number of times one attorney would review the work product of another attorney. (Notably, Ms. Ostil, the junior attorney, would often review the work product of Mr. Rein, the senior attorney. See, e.g., Ostil Decl., Ex. 1 (entries dated 5/17/2005, 6/8/2005, 6/10/2005, 6/27/2005, 7/15/2005, 7/25/2005, 8/1/2005, 8/12/2005, 8/15/2005, and 3/22/2006).) This is not to say that the intra-office conferences and internal review of work product were completely unjustified. In any litigation, some team meetings or discussions are necessary. Nor is it unreasonable for one attorney to review the work of another where a filing is important or complex. But given the relative simplicity of the case against the Union 76 Defendants and the expertise of counsel in disability access cases, these could and should have been kept to a minimum. There were, instead, inefficiencies.
Third, this case was not complicated. No substantive motions or significant discovery was undertaken. There were no novel issues as pertains to the Union 76 Defendants. The total number of hours incurred are not warranted given the relative simplicity of the case and lack of substantive case development.

concludes that a reduction of 15% for billing judgment is appropriate.
*11 Applying a 15% reduction, the Court finds that fees totaling $36,157.30 (i.e., 85% x $42,538 = $36,157.30) is reasonable.
D. Litigation Expenses and Costs
Ms. Saldana-Neily seeks litigation expenses and costs in the amount of $5,356. See Mot. at 25. The bulk of the expenses and costs comes from the fees incurred for the access consultant Jonathan Adler. See Mot. at 25; Rein Decl. ¶ 26 (stating that $4,016 were incurred for Mr. Adler's work involving the service station).
In their opposition to the fee motion, the Union 76 Defendants do not dispute Mr. Adler's fee. The only argument they make is that the in-house copying costs are unreasonable: “There is no indication of how the figure of $1,022 was derived and it seems rather inconceivable that there was any need to generate 4,088 pages of copies. [Also], there is the issue of billing for each copy at a rate of 25 cents per page” instead of just 10 cents per page. Opp'n at 12.

Because there is evidence of at least some overbilling and unnecessary duplication of work and inefficiencies, the Court finds that there was a failure by Ms. Saldana-Neily's attorneys to exercise billing judgment with respect to the fee motion. From what the Court can divine from the record, there was no attempt whatsoever by Ms. Saldana-Neily's lawyers to make any reduction in the hours claimed. See 2 Schwartz & Kirklin, Section 1983 Litigation § 1983, at 174-75 (noting that “the plaintiff's elimination of a substantial number of hours from a fee application in the exercise of billing judgment tends to fortify the argument that the remaining hours were reasonably expended”).
In making an appropriate adjustment because of the lack of billing judgment, a court is not required to set forth an hour-by-hour analysis of the fee request and may instead reduce the award on a percentage basis so long as there is a concise but clear explanation of the court's reasons for choosing a given percentage reduction. See Gates v. Deukmejian, 987 F.2d 1392, 1399-1400 (9th Cir.1993). In the instant case, an hour-by-hour analysis of the fee request in the instant case is impractical. Thus, the Court instead reduces the award on a percentage basis. Taking into consideration the above problems, the Court

The Court rejects the Union 76 Defendants' contention that 25 cents per page is an excessive charge. Judge Wilken recently approved that rate in George, 2007 U.S. Dist. LEXIS 72812, at *22, 2007 WL 2778784 (also noting that “Defendant provides no evidence that $.20 per page is its counsel's rate or the market rate”). As to the argument there was no need to generate 4,088 pages of copies ($1,022 / $0.25 per page = 4,088 pages), those copies were made for the lawsuit against both the Taco Bell Defendants and the Union 76 Defendants. In the cost bill here, only half of those copies, i.e ., 2,044 pages, were attributed to the Union 76 Defendants. See Steven L. Rein Decl. ¶ 4. The Court cannot say that this number of pages is patently unreasonable given, e.g., the length of the litigation, the number of settlement conferences, the site inspection and consultant evaluation, the consent decree, and the fee motion.
The Court concludes the costs sought by Ms. Saldana-Neily are reasonable.
E. Additional Fees and Costs

Finally, the Court takes note of Ms. Saldana-Neily's request for additional attorney's fees and costs incurred largely as a result of preparation of the reply brief for the fee motion. More specifically, Ms. Saldana-Neily asks for additional attorney's fees in the amount of $6,960 (representing 16 hours of Mr. Rein's time) and costs in the amount of $200. See Reply at 15.

Any party may file objections to this report and recommendation with the district judge within ten days after being served with a copy. See 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b); Civil L.R. 72-3.

The Court shall reduce the fee award for two reasons. First, there was one charge attributed to the Union 76 Defendants that was related solely to the Taco Bell Defendants. See Rein Reply Decl ., Ex. 17 (entry dated 11/1/2007) (charging 0.2 hours for work related to counsel representing Taco Bell Defendants). Second, in at least one instance, Mr. Rein overbilled for a relatively simple task. See, e.g., Rein Reply Decl., Ex. 17 (entry dated 11/2/2007) (charging 0.2 hours for receiving and reviewing order assigning all discovery to magistrate and procedures for discovery matters). Taking these problems into account, the Court concludes that a reasonable attorney's fee for the additional work is $6,829 .50, representing 15.7 hours of Mr. Rein's time.

*12 As to the request for additional costs, Mr. Rein states in his declaration that he only estimates costs to be $200, “primarily for copying and overnight mail deliveries in relation to provision of plaintiff's pleadings to the Court, defense counsel, and co-counsel.” Rein Reply Decl. ¶ 5. Because the Court has never received any information as to actual costs incurred, there is no co-counsel of record, and this is an e-filing case, the Court finds that costs likely did not exceed $50, which is a reasonable sum.

F. Multiplier

Finally, Ms. Saldana-Neily argues that the Court should apply a multiplier of 1.5 to the fee award. This argument was made in passing only. See Mot. at 25. The Court in its discretion declines to apply a multiplier. There is no basis for applying a multiplier, particularly where proof of liability was not extraordinarily difficult or risky and the case relatively simple.

III. RECOMMENDATION

For the foregoing reasons, the Court recommends that Ms. Saldana-Neily's motion for attorney's fees, litigation expenses, and costs be granted and that Ms. Saldana-Neily be awarded $48,392.80.

 
 Case: 4:04-cv-4571 As of: 06/15/2013 02:02 PM PDT 1 of 11
ADRMOP,E−Filing,REFRAN >REFSET−MEJ,RELATE,STAYED
U.S. District Court California Northern District (Oakland) CIVIL DOCKET FOR CASE #: 4:04−cv−04571−PJH

Saldana−Neily v. Taco Bell of America, Inc. et al Assigned to: Hon. Phyllis J. Hamilton Cause: 42:12101 Americans w/ Disabilities Act (ADA)
Plaintiff

Date Filed: 10/28/2004 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Ernestina Saldana−Neily

represented by Julie Alice Richardson Saltzman &Johnson Law Corporation 44 Montgomery Street Suite 2110 San Francisco, CA 94104 415−321−2425 Fax: 415−882−9287 Email: jrichardson@sjlawcorp.com TERMINATED: 04/05/2013 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Patricia Barbosa Barbosa Group 606 Lake Street No. 9 Huntington Beach, CA 92648 949−370−9942 Email: PBarbosa@barbosagrp.com TERMINATED: 04/05/2013 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Paul Leslie Rein Law Offices of Paul L. Rein 200 Lakeside Drive, Suite A Oakland, CA 94612 510/832−5001 Fax: 510/832−4787 Email: reinlawoffice@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Taco Bell of America, Inc.

represented by Gregory F. Hurley Greenberg Traurig LLP 3161 Michaelson Drive Suite 1000 Irvine, CA 92612−4410 949−732−6500 Fax: 949−732−6501 Email: hurleyg@gtlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey H. Dasteel Skadden Arps Slate Meagher &Flom LLP 300 South Grand Avenue Suite 3400

Case: 4:04-cv-4571 As of: 06/15/2013 02:02 PM PDT 2 of 11

Los Angeles, CA 90071−3144 213−687−5000 Fax: 213−687−5600 Email: jdasteel@skadden.com TERMINATED: 01/03/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard Hidehito Hikida , Esq. Greenberg Traurig LLP 3161 Michelson Drive Suite 1000 Irvine, CA 92612 (949) 732−6500 Fax: (949) 732−6501 Email: rhikida@trialnewport.com TERMINATED: 04/05/2013 ATTORNEY TO BE NOTICED

Defendant Dorothy M. Hiura Trust

represented by William Faulkner McManis Faulkner 50 W. San Fernando Street 10th Floor San Jose, CA 95113 408−279−8700 Fax: 408−279−3244 Email: wfaulkner@mcmanislaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sharon S. Kirsch McManis Faulkner 50 West San Fernando Street 10th Floor San Jose, CA 95113 408−279−8700 Fax: 408−279−3244 Email: skirsch@mcmanislaw.com ATTORNEY TO BE NOTICED

Defendant
Hedia Petroleum, Inc. TERMINATED: 06/19/2008 doing business as Campbell Union 76 TERMINATED: 06/19/2008

represented by Richard Grotch Coddington, Hicks and Danforth 555 Twin Dolphin Drive, Suite 300 Redwood CIty, CA 94065−2133 650−592−5400 Email: rgrotch@chdlawyers.com TERMINATED: 06/19/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Bozorghadad Trust TERMINATED: 06/19/2008

represented by Richard Grotch (See above for address) TERMINATED: 06/19/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cross−claimant Dorothy M. Hiura Trust

represented by William Faulkner (See above for address)

Case: 4:04-cv-4571 As of: 06/15/2013 02:02 PM PDT 3 of 11
LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sharon S. Kirsch (See above for address) ATTORNEY TO BE NOTICED

V. Cross−defendant Taco Bell Corporation

represented by Gregory F. Hurley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey H. Dasteel (See above for address) TERMINATED: 01/03/2006 ATTORNEY TO BE NOTICED

Date Filed 10/28/2004
10/28/2004 10/28/2004
10/28/2004 11/05/2004 11/17/2004 11/17/2004 11/22/2004
11/23/2004 11/23/2004 11/23/2004

# Docket Text
1 ADR SCHEDULING ORDER: Case Management Statement due by 2/22/2005. Case Management Conference set for 3/1/2005 02:00 PM. (Attachments: # 1 Standing Order) (bw, COURT STAFF) (Filed on 10/28/2004) (Entered: 10/28/2004)
Summons Issued as to Bozorghadad Trust, Dorothy M. Hiura Trust, Hedia Petroleum, Inc., Taco Bell of America, Inc.. (bw, COURT STAFF) (Filed on 10/28/2004) (Entered: 10/28/2004)
2 COMPLAINT (Summons Issued); jury demand; against Bozorghadad Trust, Dorothy M. Hiura Trust, Hedia Petroleum, Inc., Taco Bell of America, Inc. ( Filing fee $ 150, receipt number 4410300.). Filed by Ernestina Saldana−Neily. (bw, COURT STAFF) (Filed on 10/28/2004) Additional attachment(s) added on 10/29/2004 (bw, COURT STAFF). (Entered: 10/28/2004)
CASE DESIGNATED for Electronic Filing. (bw, COURT STAFF) (Filed on 10/28/2004) (Entered: 10/28/2004)
3 CONSENT to Proceed Before a US Magistrate Judge by Ernestina Saldana−Neily.. (Rein, Paul) (Filed on 11/5/2004) (Entered: 11/05/2004)
4 CERTIFICATE OF SERVICE by Ernestina Saldana−Neily re 1 ADR Scheduling Order, 2 Complaint, (bw, COURT STAFF) (Filed on 11/17/2004) Additional attachment(s) added on 11/17/2004 (bw, COURT STAFF). (Entered: 11/17/2004)
5 CERTIFICATE OF SERVICE by Ernestina Saldana−Neily re 1 ADR Scheduling Order, 2 Complaint, (bw, COURT STAFF) (Filed on 11/17/2004) Additional attachment(s) added on 11/17/2004 (bw, COURT STAFF). (Entered: 11/17/2004)
6 CERTIFICATE OF SERVICE by Ernestina Saldana−Neily re 1 ADR Scheduling Order, 2 Complaint, Bozorghadad Trust (bw, COURT STAFF) (Filed on 11/22/2004) Additional attachment(s) added on 11/23/2004 (bw, COURT STAFF). (Entered: 11/22/2004)
7 STIPULATION and [Proposed] Order Extending Time for Defenadnt Taco Bell of America, Inc. to Respond to Plaintiff's Complaint by Taco Bell of America, Inc.. (Dasteel, Jeffrey) (Filed on 11/23/2004) (Entered: 11/23/2004)
8 Certificate of Interested Entities (Dasteel, Jeffrey) (Filed on 11/23/2004) (Entered: 11/23/2004)
9 First Declination to Proceed Before a U.S. Magistrate Judge by Taco Bell of America, Inc. and Request Reassignment to A United States District Judge. (Dasteel, Jeffrey) (Filed on 11/23/2004) (Entered: 11/23/2004)

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11/23/2004 11/29/2004 11/29/2004
11/29/2004 11/30/2004 12/01/2004 12/03/2004 12/03/2004 12/07/2004 12/08/2004 12/10/2004 12/20/2004 12/29/2004 01/03/2005
01/03/2005 01/03/2005 01/03/2005 01/07/2005
01/14/2005

10 AFFIDAVIT Corporate Disclosure Statement by Taco Bell of America, Inc.. (Dasteel, Jeffrey) (Filed on 11/23/2004) (Entered: 11/23/2004)
11 CLERK'S NOTICE of Impending Reassignment to U.S. District Judge (cm, COURT STAFF) (Filed on 11/29/2004) (Entered: 11/29/2004)
12 ORDER REASSIGNING CASE. Case reassigned to Judge Jeremy Fogel for all further proceedings. Judge Patricia V Trumbull remains as the referral judge. Signed by Executive Committee on November 29, 2004. (bw, COURT STAFF) (Filed on 11/29/2004) (Entered: 11/29/2004)
Clerk mailed copy of Reassignment Order to all parties. (bw, COURT STAFF) (Filed on 11/29/2004) (Entered: 11/29/2004)
13 CLERK'S NOTICE Case Management Conference set for 3/4/2005 at 10:30 AM. (dlm, COURT STAFF) (Filed on 11/30/2004) (Entered: 11/30/2004)
14 STIPULATION AND ORDER EXTENDING TIME TO RESPOND TO COMPLAINT. Signed by Judge Jeremy Fogel on 12/1/04. (jfsec, COURT STAFF) (Filed on 12/1/2004) (Entered: 12/01/2004)
15 ANSWER to Complaint byTaco Bell of America, Inc.. (Dasteel, Jeffrey) (Filed on 12/3/2004) (Entered: 12/03/2004)
16 NOTICE of Related Case and Notice of Pendency Pursuant to Local Rules 3−12 and 3−13 (Dasteel, Jeffrey) (Filed on 12/3/2004) (Entered: 12/03/2004)
17 SUMMONS Returned Executed by Ernestina Saldana−Neily. Dorothy M. Hiura Trust served on 11/23/2004, answer due 12/13/2004. (gm, COURT STAFF) (Filed on 12/7/2004) (Entered: 12/08/2004)
18 First Amended ANSWER to Complaint byTaco Bell of America, Inc.. (Dasteel, Jeffrey) (Filed on 12/8/2004) (Entered: 12/08/2004)
19 NOTICE of Related Case Opposition (Rein, Paul) (Filed on 12/10/2004) (Entered: 12/10/2004)
20 RESPONSE to re 16 Notice of Related Case Reply to Plaintiff's Opposition to Notice of Related Case and Notice of Pendency by Taco Bell of America, Inc.. (Dasteel, Jeffrey) (Filed on 12/20/2004) (Entered: 12/20/2004)
21 STIPULATION for Extension of Time to Answer Complaint by Bozorghadad Trust, Hedia Petroleum, Inc.. (Grotch, Richard) (Filed on 12/29/2004) (Entered: 12/29/2004)
22 ORDER RELATING CASE (02−5849) and ORDER REASSIGNING CASE. Case reassigned to Judge Martin J. Jenkins for all further proceedings. Judge Jeremy Fogel and Patricia V Trumbull no longer assigned to case. Signed by Judge Martin J. Jenkins on 12/28/2004. (mat, COURT STAFF) (Filed on 1/3/2005) (Entered: 01/03/2005)
23 ANSWER to Complaint byBozorghadad Trust, Hedia Petroleum, Inc.. (Grotch, Richard) (Filed on 1/3/2005) (Entered: 01/03/2005)
24 DEMAND for Trial by Jury by Bozorghadad Trust, Hedia Petroleum, Inc.. (Grotch, Richard) (Filed on 1/3/2005) (Entered: 01/03/2005)
25 ORDER granting 21 Stipulation filed by Hedia Petroleum, Inc.,, Bozorghadad Trust,. Signed by Judge Martin J. Jenkins on 1/3/2005. (mat, COURT STAFF) (Filed on 1/3/2005) (Entered: 01/04/2005)
26 CLERK'S NOTICE [Reassigned Case] Case Management Conference set for 2/8/2005 02:00 PM. Case Management Statement due by 1/31/2005. (Attachments: # 1 Standing Order) (mat, COURT STAFF) (Filed on 1/7/2005) (Entered: 01/07/2005)
27 STIPULATION re 2 Complaint, Stipulation Regarding Response to Plaintiff's Complaint by Dorothy M. Hiura Trust. (Faulkner, William) (Filed on 1/14/2005) (Entered: 01/14/2005)

Case: 4:04-cv-4571 As of: 06/15/2013 02:02 PM PDT 5 of 11

01/18/2005 01/21/2005 01/26/2005 01/26/2005 01/31/2005 02/01/2005 02/02/2005 02/03/2005 02/08/2005 02/08/2005 02/22/2005
02/24/2005 02/28/2005
03/01/2005
03/01/2005 03/08/2005
04/08/2005 04/27/2005

28 ORDER granting 27 Stipulation filed by Dorothy M. Hiura Trust,. Signed by Judge Martin J. Jenkins on 1/18/2005. (mat, COURT STAFF) (Filed on 1/18/2005) (Entered: 01/19/2005)
29 Defendant, Dorothy M. Hiura Trust's ANSWER to Complaint with Jury Demand and, CROSSCLAIM against Taco Bell Corporation byDorothy M. Hiura Trust. (Faulkner, William) (Filed on 1/21/2005) (Entered: 01/21/2005)
30 NOTICE of need for ADR Phone Conference (ADR L.R. 3−5 d) (Attachments: # 1 Attachment A to ADR Certification)(McLean, Julie) (Filed on 1/26/2005) (Entered: 01/26/2005)
31 ADR Clerks Notice Setting ADR Phone Conference on 2/4/05 at 10:30 a.m. Please take note that plaintiff's counsel initiates the call to all parties. (tjs, COURT STAFF) (Filed on 1/26/2005) (Entered: 01/26/2005)
Summons Issued as to Taco Bell Corporation. (slh, COURT STAFF) (Filed on 1/31/2005) (Entered: 02/02/2005)
32 JOINT CASE MANAGEMENT STATEMENT filed by Ernestina Saldana−Neily. (McLean, Julie) (Filed on 2/1/2005) (Entered: 02/01/2005)
33 ADR Clerks Notice The ADR Phone Conference has been rescheduled to 11:00 a.m. on 2/4/05. (tjs, COURT STAFF) (Filed on 2/2/2005) (Entered: 02/02/2005)
ADR Phone Conference by HAH (tjs, COURT STAFF) (Filed on 2/3/2005) (Entered: 02/04/2005)
34 CERTIFICATE OF SERVICE by Dorothy M. Hiura Trust Cross−Claim on Taco Bell Corporation (Faulkner, William) (Filed on 2/8/2005) (Entered: 02/08/2005)
35 Minute Entry: Initial Case Management Conference held on 2/8/2005 before Martin J. Jenkins (Date Filed: 2/8/2005). (Court Reporter Not reported.) (mat, COURT STAFF) (Date Filed: 2/8/2005) (Entered: 02/15/2005)
36 STIPULATION and [Proposed] Order Extending Time for Cross−Defendant Taco Bell Corp. to Respond to Defendant and Cross−Claimant's Cross−Complaint by Taco Bell Corporation. (Dasteel, Jeffrey) (Filed on 2/22/2005) (Entered: 02/22/2005)
37 ORDER granting 36 Stipulation filed by Taco Bell Corporation,. Signed by Judge Martin J. Jenkins on 2/23/2005. (mat, COURT STAFF) (Filed on 2/24/2005) (Entered: 02/24/2005)
38 STIPULATION FOR STAY ON INJUNCTIVE RELIEF AS TO TACO BELL; ARRANGEMENTS FOR SITE INSPECTION AND REFERRAL FOR SETTLEMENT CONFERENCE; PROPOSED ORDER THEREON by Ernestina Saldana−Neily. (McLean, Julie) (Filed on 2/28/2005) (Entered: 02/28/2005)
39 ANSWER TO CROSSCLAIM Cross−Defendant Taco Bell Corp.'s Answer to Defendant and Cross−Claimant Dorothy M. Hiura Trust's Cross−Complaint byTaco Bell Corporation. (Dasteel, Jeffrey) (Filed on 3/1/2005) (Entered: 03/01/2005)
40 Certificate of Interested Entities (Dasteel, Jeffrey) (Filed on 3/1/2005) (Entered: 03/01/2005)
41 ORDER granting 38 Stipulation filed by Ernestina Saldana−Neily, Further Case Management Conference set for 6/14/2005 02:00 PM. Case Management Statement due 6/6/2005. Signed by Judge Martin J. Jenkins on 3/7/2005. (mat, COURT STAFF) (Filed on 3/8/2005) (Entered: 03/08/2005)
42 ORDER Settlement Conference set for 5/18/2005 10:00 AM.. Signed by Judge MARIA−ELENA JAMES on 4/8/05. (bjt, COURT STAFF) (Filed on 4/8/2005) (Entered: 04/08/2005)
43 MOTION Administrative Relief: Order for Settlement Conference After Case Management Conference filed by Bozorghadad Trust, Hedia Petroleum, Inc.. (Grotch, Richard) (Filed on 4/27/2005) (Entered: 04/27/2005)

Case: 4:04-cv-4571 As of: 06/15/2013 02:02 PM PDT 6 of 11

05/04/2005 05/06/2005 05/09/2005 05/11/2005 05/23/2005
06/06/2005 06/06/2005 06/13/2005 06/14/2005 07/12/2005 07/13/2005 07/26/2005 07/29/2005 08/02/2005 08/09/2005
08/15/2005 08/18/2005 08/19/2005 10/19/2005

44 RESPONSE in Support re 43 MOTION Administrative Relief: Order for Settlement Conference After Case Management Conference filed byErnestina Saldana−Neily. (Rein, Paul) (Filed on 5/4/2005) (Entered: 05/04/2005)
45 Proposed Order re 43 MOTION Administrative Relief: Order for Settlement Conference After Case Management Conference by Bozorghadad Trust, Hedia Petroleum, Inc.. (Grotch, Richard) (Filed on 5/6/2005) (Entered: 05/06/2005)
46 ORDER by Judge Martin J. Jenkins granting 43 Motion for Administrative Relief. (mat, COURT STAFF) (Filed on 5/9/2005) (Entered: 05/09/2005)
47 STIPULATION re 42 Order, Set Hearings − to continue settlement conference date by Bozorghadad Trust, Hedia Petroleum, Inc.. (Grotch, Richard) (Filed on 5/11/2005) (Entered: 05/11/2005)
48 ORDER CONTINUING SETTLEMENT CONFERENCE PURSUANT TO STIPULATION; SETTLEMENT CONF. CONTINUED TO JULY 12, 2005 AT 10:00 A.M. Signed by Judge Maria−Elena James on May 23, 2005. (mejlc2, COURT STAFF) (Filed on 5/23/2005) (Entered: 05/23/2005)
49 CASE MANAGEMENT STATEMENT Plaintiff's Updated Case Management Conference Statement filed by Ernestina Saldana−Neily. (Rein, Paul) (Filed on 6/6/2005) (Entered: 06/06/2005)
50 JOINT CASE MANAGEMENT STATEMENT filed by Taco Bell of America, Inc.. (Dasteel, Jeffrey) (Filed on 6/6/2005) (Entered: 06/06/2005)
51 CASE MANAGEMENT STATEMENT Plaintiff's Supplemental Case Management Conference Statement filed by Ernestina Saldana−Neily. (Rein, Paul) (Filed on 6/13/2005) (Entered: 06/13/2005)
52 Minute Entry: Status Conference (Date Filed: 6/14/2005). (Court Reporter Not reported.) (mat, COURT STAFF) (Date Filed: 6/14/2005) (Entered: 06/16/2005)
53 Minute Entry: Settlement Conference (Date Filed: 7/12/2005). Further Settlement Conference set for 7/29/2005 10:00 AM. () (bjt, COURT STAFF) (Date Filed: 7/12/2005) (Entered: 07/12/2005)
54 ORDER SCHEDULING FURTHER SETTLEMENT CONFERENCE ON JULY 29, 2005 AT 10 A.M. Signed by Judge Maria−Elena James on July 13, 2005. (mejlc2, COURT STAFF) (Filed on 7/13/2005) (Entered: 07/13/2005)
55 Letter from Plaintiff's Counsel Paul L. Rein. (Rein, Paul) (Filed on 7/26/2005) (Entered: 07/26/2005)
56 Minute Entry: Settlement Conference (Date Filed: 7/29/2005). Parties to contact Court by 8−5−05 re settlement. (bjt, COURT STAFF) (Date Filed: 7/29/2005) (Entered: 07/29/2005)
57 Letter from Jeffrey H. Dasteel in response to Plaintiff's letter dated July 26, 2005. (Dasteel, Jeffrey) (Filed on 8/2/2005) (Entered: 08/02/2005)
58 ORDER EXTENDING DEADLINE TO SUBMIT STATUS REPORT TO AUGUST 12, 2005 (re 57 Letter filed by Taco Bell of America, Inc.). Signed by Judge Maria−Elena James on August 9, 2005. (mejlc2, COURT STAFF) (Filed on 8/9/2005) (Entered: 08/09/2005)
59 Letter from PAUL L. REIN. (Rein, Paul) (Filed on 8/15/2005) (Entered: 08/15/2005)
60 Letter from Jeffrey H. Dasteel. (Dasteel, Jeffrey) (Filed on 8/18/2005) (Entered: 08/18/2005)
61 Letter from Richard G. Grotch Confirming Availability of Counsel for Further Settlement Conference. (Grotch, Richard) (Filed on 8/19/2005) (Entered: 08/19/2005)
62 ORDER RE: AMCO INSURANCE COMPANY'S PRESENCE AT THE OCTOBER 26, 2005, SETTLEMENT CONFERENCE. Signed by Judge Maria−Elena James on 10/8/2005. (mejlc2, COURT STAFF) (Filed on

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10/26/2005 11/02/2005 11/07/2005 11/07/2005 12/06/2005 12/09/2005
01/03/2006 01/06/2006 01/06/2006 01/11/2006 01/11/2006 05/23/2006 10/29/2007
10/29/2007
10/29/2007

10/19/2005) (Entered: 10/19/2005)
63 Minute Entry: Settlement Conference (Date Filed: 10/26/2005). () (bjt, COURT STAFF) (Date Filed: 10/26/2005) (Entered: 10/26/2005)
64 Proposed Order and Consent Decree as to Campbell Union 76, Hedia Petroleum Inc. and Bozorghadad Trust Only by Ernestina Saldana−Neily. (Attachments: # 1 Letter)(Rein, Paul) (Filed on 11/2/2005) (Entered: 11/02/2005)
65 Letter from Jeffrey H. Dasteel, Esq.. (Dasteel, Jeffrey) (Filed on 11/7/2005) (Entered: 11/07/2005)
66 Letter from Jeffrey H. Dasteel. (Dasteel, Jeffrey) (Filed on 11/7/2005) (Entered: 11/07/2005)
67 STIPULATION and [Proposed] Order for Good Faith Settlement Determination by Bozorghadad Trust, Hedia Petroleum, Inc.. (Grotch, Richard) (Filed on 12/6/2005) (Entered: 12/06/2005)
68 ORDER granting 67 Stipulation for A Good Faith Settlement Determination between Plaintiff and The Union 76 Defendant filed by Hedia Petroleum, Inc.,, Bozorghadad Trust,. Signed by Judge Martin J. Jenkins on 12/9/2005. (mat, COURT STAFF) (Filed on 12/9/2005) (Entered: 12/12/2005)
69 ORDER by Judge Martin J. Jenkins for Substitution of Attorney: Attorney Gregory F. Hurley added for Taco Bell. Attorney Jeffrey H. Dasteel terminated. (slh, COURT STAFF) (Filed on 1/3/2006) (Entered: 01/04/2006)
70 Proposed Order AND CONSENT DECREE by Ernestina Saldana−Neily. (McLean, Julie) (Filed on 1/6/2006) (Entered: 01/06/2006)
71 STIPULATION AND [PROPOSED] ORDER TO WITHDRAW PRIOR CONSENT DECREE by Ernestina Saldana−Neily. (McLean, Julie) (Filed on 1/6/2006) (Entered: 01/06/2006)
72 ORDER granting 71 Stipulation filed by Ernestina Saldana−Neily,. Signed by Judge Martin J. Jenkins on 1/11/2006. (mat, COURT STAFF) (Filed on 1/11/2006) (Entered: 01/12/2006)
73 CONSENT DECREE and ORDER as to Campbell Union 76, Hedia Petroleum, Inc., and Bozorghadad. Signed by Judge Martin J. Jenkins on 1/11/2006. (mat, COURT STAFF) (Filed on 1/11/2006) (Entered: 01/12/2006)
74 Letter from Plaintiff's Attorney, Paul Rein. (mat, COURT STAFF) (Filed on 5/23/2006) (Entered: 06/06/2006)
75 MOTION for Attorney Fees PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR AN AWARD OF ATTORNEY FEES, LITIGATION EXPENSES, AND COSTS, AS AGAINST DEFENDANTS HEDIA PETROLEUM, INC. dba CAMPBELL UNION 76 AND BOZORGHADAD TRUST ONLY filed by Ernestina Saldana−Neily. Motion Hearing set for 12/4/2007 09:30 AM in Courtroom 11, 19th Floor, San Francisco. (Ostil, Julie) (Filed on 10/29/2007) (Entered: 10/29/2007)
76 Proposed Order re 75 MOTION for Attorney Fees PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR AN AWARD OF ATTORNEY FEES, LITIGATION EXPENSES, AND COSTS, AS AGAINST DEFENDANTS HEDIA PETROLEUM, INC. dba CAMPBELL UNION 76 AND BOZORGHADAD TRU by Ernestina Saldana−Neily. (Ostil, Julie) (Filed on 10/29/2007) (Entered: 10/29/2007)
77 Declaration of PAUL L. REIN in Support of 75 MOTION for Attorney Fees PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR AN AWARD OF ATTORNEY FEES, LITIGATION EXPENSES, AND COSTS, AS AGAINST DEFENDANTS HEDIA PETROLEUM, INC. dba CAMPBELL UNION 76 AND BOZORGHADAD TRU filed byErnestina Saldana−Neily. (Attachments: # 1 Exhibit 1 and 2# 2 Exhibit 3 part 1# 3 Exhibit 3 part 2# 4 Exhibit 3 part 3# 5 Exhibit 3 part 4# 6 Exhibit 3 part 5# 7 Exhibit 3 part 6# 8 Exhibit 3 part 7# 9 Exhibit 3 part 8# 10 Exhibit 3 part 9)(Related document(s)

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10/29/2007 10/29/2007 10/29/2007 10/29/2007 10/29/2007 10/29/2007 10/29/2007 10/30/2007 10/30/2007

75 ) (Ostil, Julie) (Filed on 10/29/2007) (Entered: 10/29/2007)
78 EXHIBITS re 77 Declaration in Support,, EXHIBIT 3 TO REIN DECLARATION, PARTS 10 THROUGH 22 filed byErnestina Saldana−Neily. (Attachments: # 1 Exhibit 3 part 11# 2 Exhibit 3 part 12# 3 Exhibit 3 part 13# 4 Exhibit 3 part 14# 5 Exhibit 3 part 15# 6 Exhibit 3 part 16# 7 Exhibit 3 part 17# 8 Exhibit 3 part 18# 9 Exhibit 3 part 19# 10 Exhibit 3 part 20# 11 Exhibit 3 part 21# 12 Exhibit 3 part 22)(Related document(s) 77 ) (Ostil, Julie) (Filed on 10/29/2007) (Entered: 10/29/2007)
79 EXHIBITS re 77 Declaration in Support,, EXHIBITS TO REIN DEC NUMBER 4 THROUGH 16 filed byErnestina Saldana−Neily. (Attachments: # 1 Exhibit 6 through 9# 2 Exhibit 10 and 11# 3 Exhibit 12 through 14# 4 Exhibit 15 and 16)(Related document(s) 77 ) (Ostil, Julie) (Filed on 10/29/2007) (Entered: 10/29/2007)
80 Declaration of PATRICIA BARBOSA in Support of 75 MOTION for Attorney Fees PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR AN AWARD OF ATTORNEY FEES, LITIGATION EXPENSES, AND COSTS, AS AGAINST DEFENDANTS HEDIA PETROLEUM, INC. dba CAMPBELL UNION 76 AND BOZORGHADAD TRU filed byErnestina Saldana−Neily. (Attachments: # 1 Exhibit 1)(Related document(s) 75 ) (Ostil, Julie) (Filed on 10/29/2007) (Entered: 10/29/2007)
81 Declaration of JULIE OSTIL in Support of 75 MOTION for Attorney Fees PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR AN AWARD OF ATTORNEY FEES, LITIGATION EXPENSES, AND COSTS, AS AGAINST DEFENDANTS HEDIA PETROLEUM, INC. dba CAMPBELL UNION 76 AND BOZORGHADAD TRU filed byErnestina Saldana−Neily. (Attachments: # 1 Exhibit 1)(Related document(s) 75 ) (Ostil, Julie) (Filed on 10/29/2007) (Entered: 10/29/2007)
82 Declaration of STEVEN L. REIN in Support of 75 MOTION for Attorney Fees PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR AN AWARD OF ATTORNEY FEES, LITIGATION EXPENSES, AND COSTS, AS AGAINST DEFENDANTS HEDIA PETROLEUM, INC. dba CAMPBELL UNION 76 AND BOZORGHADAD TRU AND EXHIBITS A THROUGH D filed byErnestina Saldana−Neily. (Related document(s) 75 ) (Ostil, Julie) (Filed on 10/29/2007) (Entered: 10/29/2007)
83 Declaration of SID WOLINSKY in Support of 75 MOTION for Attorney Fees PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR AN AWARD OF ATTORNEY FEES, LITIGATION EXPENSES, AND COSTS, AS AGAINST DEFENDANTS HEDIA PETROLEUM, INC. dba CAMPBELL UNION 76 AND BOZORGHADAD TRU filed byErnestina Saldana−Neily. (Related document(s) 75 ) (Ostil, Julie) (Filed on 10/29/2007) (Entered: 10/29/2007)
84 CERTIFICATE OF SERVICE by Ernestina Saldana−Neily re 83 Declaration in Support, 75 MOTION for Attorney Fees PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR AN AWARD OF ATTORNEY FEES, LITIGATION EXPENSES, AND COSTS, AS AGAINST DEFENDANTS HEDIA PETROLEUM, INC. dba CAMPBELL UNION 76 AND BOZORGHADAD TRU, 76 Proposed Order, 77 Declaration in Support,, 80 Declaration in Support, 81 Declaration in Support, 78 Exhibits, 79 Exhibits, 82 Declaration in Support, (Ostil, Julie) (Filed on 10/29/2007) (Entered: 10/29/2007)
85 Proposed Order re 75 MOTION for Attorney Fees PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR AN AWARD OF ATTORNEY FEES, LITIGATION EXPENSES, AND COSTS, AS AGAINST DEFENDANTS HEDIA PETROLEUM, INC. dba CAMPBELL UNION 76 AND BOZORGHADAD TRU Corrected Proposed Order by Ernestina Saldana−Neily. (Rein, Paul) (Filed on 10/30/2007) (Entered: 10/30/2007)
86 ORDER REFERRING MOTION: 75 MOTION for Attorney Fees PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR AN AWARD OF ATTORNEY FEES, LITIGATION EXPENSES, AND COSTS,

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10/31/2007 11/01/2007 11/01/2007 11/02/2007 11/02/2007 12/04/2007 12/12/2007
12/12/2007
12/19/2007 12/19/2007 01/16/2008
03/04/2008

AS AGAINST DEFENDANTS HEDIA PETROLEUM, INC. dba CAMPBELL UNION 76 AND BOZORGHADAD TRU filed by Ernestina Saldana−Neily. Signed by Judge Martin J. Jenkins on 10/30/07. (rbe, COURT STAFF) (Filed on 10/30/2007) Additional attachment(s) added on 10/30/2007 (rbe, COURT STAFF). (Entered: 10/30/2007)
CASE REFERRED to Magistrate Judge Edward M. Chen for Report and Recommendation on attys' fees &costs. (wh, COURT STAFF) (Filed on 10/31/2007) (Entered: 10/31/2007)
87 NOTICE of Change of Address by Richard Hidehito Hikida, Esq (Hikida, Richard) (Filed on 11/1/2007) (Entered: 11/01/2007)
88 NOTICE of Appearance by Richard Hidehito Hikida, Esq (Hikida, Richard) (Filed on 11/1/2007) (Entered: 11/01/2007)
89 NOTICE OF REFERENCE AND ORDER RE DISCOVERY PROCEDURES. Signed by Judge Edward M. Chen on 11/2/07. (bpf, COURT STAFF) (Filed on 11/2/2007) (Entered: 11/02/2007)
90 CLERK'S NOTICE Continuing Motion Hearing Motion Hearing reset for 1/2/2008 10:30 AM in Courtroom C, 15th Floor, San Francisco. (bpf, COURT STAFF) (Filed on 11/2/2007) (Entered: 11/02/2007)
91 CLERK'S NOTICE Continuing Motion Hearing Motion Hearing reset for 1/16/2008 10:30 AM in Courtroom C, 15th Floor, San Francisco. (bpf, COURT STAFF) (Filed on 12/4/2007) (Entered: 12/04/2007)
92 Memorandum in Opposition re 75 MOTION for Attorney Fees PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR AN AWARD OF ATTORNEY FEES, LITIGATION EXPENSES, AND COSTS, AS AGAINST DEFENDANTS HEDIA PETROLEUM, INC. dba CAMPBELL UNION 76 AND BOZORGHADAD TRU ST filed byBozorghadad Trust, Hedia Petroleum, Inc.. (Grotch, Richard) (Filed on 12/12/2007) (Entered: 12/12/2007)
93 DECLARATION of Richard G. Grotch in Opposition to 75 MOTION for Attorney Fees PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR AN AWARD OF ATTORNEY FEES, LITIGATION EXPENSES, AND COSTS, AS AGAINST DEFENDANTS HEDIA PETROLEUM, INC. dba CAMPBELL UNION 76 AND BOZORGHADAD TRU ST filed byBozorghadad Trust, Hedia Petroleum, Inc.. (Related document(s) 75 ) (Grotch, Richard) (Filed on 12/12/2007) (Entered: 12/12/2007)
94 Reply to Opposition (Plaintiff's Memo of Points and Authorities in Reply to Union 76 Defendants' Opposition to Plaintiff's Motion for Attorney Fees) filed byErnestina Saldana−Neily. (Rein, Paul) (Filed on 12/19/2007) (Entered: 12/19/2007)
95 Declaration of Paul L. Rein (Supplemental Declaration of Paul L. Rein in Support of Plaintiff's Reply to Defendants' Opposition re: Plaintiff''s Motion for Attorney Fees from "Union 76" Defendants) filed byErnestina Saldana−Neily. (Rein, Paul) (Filed on 12/19/2007) (Entered: 12/19/2007)
96 Minute Entry: Motion Hearing held on 1/16/2008 before Edward M. Chen (Date Filed: 1/16/2008) re 75 MOTION for Attorney Fees PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR AN AWARD OF ATTORNEY FEES, LITIGATION EXPENSES, AND COSTS, AS AGAINST DEFENDANTS HEDIA PETROLEUM, INC. dba CAMPBELL UNION 76 AND BOZORGHADAD TRU filed by Ernestina Saldana−Neily. Court took matter under submission and will issue order (Court Reporter Belle Ball.) (bpf, COURT STAFF) (Date Filed: 1/16/2008) (Entered: 01/16/2008)
97 REPORT AND RECOMMENDATION Granting 75 Plaintiff's Motion for Attorney's Fees. Objections to RRdue by 3/14/2008. Signed by Magistrate Judge Edward M. Chen on 3/4/2008. (emcsec, COURT STAFF) (Filed on 3/4/2008) (Entered: 03/04/2008)

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03/24/2008 04/07/2008
04/10/2008 04/10/2008 05/08/2008 05/08/2008 05/08/2008 05/13/2008 05/15/2008 06/18/2008
06/19/2008
09/09/2009

98 ORDER by Judge Martin J. Jenkins adopting 97 Report and Recommendations as to 75 Motion for Attorney Fees; (mjjlc1, COURT STAFF) (Filed on 3/24/2008) (Entered: 03/24/2008)
99 ORDER REASSIGNING CASE. Case reassigned to Judge Hon. Phyllis J. Hamilton for all further proceedings. Judge Hon. Martin J. Jenkins no longer assigned to case. Signed for The Executive Committee: Richard W. Wieking, Clerk on 4/7/08. (far, COURT STAFF) (Filed on 4/7/2008) (Entered: 04/08/2008)
100 ORDER SETTING CASE MANAGEMENT CONFERENCE. Signed by Judge Phyllis J. Hamilton on 4/10/08. (nah, COURT STAFF) (Filed on 4/10/2008) (Entered: 04/10/2008)
Set Deadlines/Hearings: Case Management Statement due by 5/8/2008. Case Management Conference set for 5/15/2008 02:30 PM. (nah, COURT STAFF) (Filed on 4/10/2008) (Entered: 04/10/2008)
101 NOTICE of Change of Firm Name by Dorothy M. Hiura Trust (Kirsch, Sharon) (Filed on 5/8/2008) Modified on 5/8/2008 (far, COURT STAFF). (Entered: 05/08/2008)
102 CASE MANAGEMENT STATEMENT filed by Taco Bell of America, Inc.. (Hikida, Richard) (Filed on 5/8/2008) (Entered: 05/08/2008)
103 PLAINTIFF'S UPDATED CASE MANAGEMENT CONFERENCE STATEMENT filed by Ernestina Saldana−Neily. (Rein, Paul) (Filed on 5/8/2008) Modified on 5/9/2008 (far, COURT STAFF). (Entered: 05/08/2008)
104 JOINT CASE MANAGEMENT STATEMENT filed by Taco Bell of America, Inc.. (Hikida, Richard) (Filed on 5/13/2008) (Entered: 05/13/2008)
105 Minute Entry: Case Management Conference held on 5/15/2008 before Phyllis J. Hamilton (Date Filed: 5/15/2008). (Court Reporter Not Reported.) (nah, COURT STAFF) (Date Filed: 5/15/2008) (Entered: 05/16/2008)
106 STIPULATION and [Proposed] Order for for Dismissal, With Prejudice, of Claims Against Hedia Petroleum, Inc. and Bozorghadad Trust, ONLY, by Bozorghadad Trust, Hedia Petroleum, Inc.. (Grotch, Richard) (Filed on 6/18/2008) (Entered: 06/18/2008)
107 STIPULATION AND ORDER FOR DISMISSAL WITH PREJUDICE OF CLAIMS AGAINST HEDIA PETROLEUM AND BOZORGHADAD TRUST ONLY re 106 Stipulation filed by Bozorghadad Trust, Hedia Petroleum, Inc. Signed by Judge Phyllis J. Hamilton on 6/19/08. (nah, COURT STAFF) (Filed on 6/19/2008) (Entered: 06/19/2008)
108 CLERKS NOTICE

Effective September 14, 2009, Judge Phyllis Hamilton's courtroom and chambers will be located in the Oakland Courthouse, Courtroom #3, 3rd floor, 1301 Clay Street, Oakland, California 94612.

On or after September 14, 2009, all filings for matters pending on Judge Hamiltons docket, all court appearances, and all deliveries of chambers' copies of documents must be made at the Oakland Courthouse.

The days and times for law and motion calendars and all currently scheduled proceedings remain unchanged.

Please note that all of Judge Hamilton's case files will be moved to the Oakland Courthouse, therefore all cases numbers assigned to her will be changed slightly to reflect the correct venue. Previously, all case numbers started with "3:" to indicate the San Francisco office (Example: 3:09−cv−12345−PJH). As of September 14th, 2009, all of Judge Hamilton's case files will begin with "4:" to indicate the Oakland office, but everything else will stay the same (Example: 4:09−cv−12345−PJH). When e−filing, using the short case number format will always avoid problems when searching for the correct case: 09−12345 (YY−NNNNN).

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04/05/2013 04/05/2013

For information on the Oakland Courthouse's accessibility, parking, driving directions, public transit, hotels and other helpful links, please visit our website: http://www.cand.uscourts.gov, click on "Court Information" on the right hand side of our main page, then select the Oakland link under "Address and Jurisdiction". The main telephone number for the Oakland Division is 510 637−3530.
(far, COURT STAFF) (Filed on 9/9/2009) (Entered: 09/09/2009)
109 NOTICE by Ernestina Saldana−Neily Plaintiff's Notice of Disassociation of Counsel (Rein, Paul) (Filed on 4/5/2013) (Entered: 04/05/2013)
110 NOTICE of Change In Counsel by Richard Hidehito Hikida, Esq (Hikida, Richard) (Filed on 4/5/2013) (Entered: 04/05/2013)