— 1 — C:\iFolder\mengland\Home\TO DOCKETCIVIL\04cv2059.o.0623.doc

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

PAUL L. 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 

(510) 832-5001 

Attorneys for Plaintiff 

TOM FISHER 

JAMES W. PINCIN, Esq. (SBN 125443) 

NISSON, PINCIN, SINCLAIR, HILL & PERRINNE 

Attorneys at Law 

P.O. Box 992710 

Redding, CA 96099 

(530) 246-4201 

Attorneys for Defendants 

CARL KARCHER ENTERPRISES, INC., 

dba CARL’S JR. RESTAURANT; MAC5 

PROPERTIES, LLC; FOODS NORTH LLC 

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF CALIFORNIA 

TOM FISHER, 

Plaintiff, 

v. 

CARL KARCHER ENTERPRISES, 

INC. dba CARL’S JR. 

RESTAURANT; MAC5 PROPERTIES, 

LLC; FOODS NORTH LLC; and 

DOES 1 through 25, 

Inclusive, 

Defendants. 

CASE NO. CIV-S 04-2059 MCE DAD 

Civil Rights

CONSENT DECREE AND ORDER 

/ 

CONSENT DECREE AND ORDER

1. Plaintiff TOM FISHER filed a Complaint on September 

30, 2004 and a First Amended Complaint in this action on 

December 16, 2004, to enforce provisions of the Americans with 

Case 2:04-cv-02059-MCE -DAD Document 18 Filed 06/23/05 Page 1 of 9
 — 2 — C:\iFolder\mengland\Home\TO DOCKETCIVIL\04cv2059.o.0623.doc

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

PAUL L. REIN 

200 LAKESIDE DR., SUITE A

OAKLAND, CA 94612-3503 

(510) 832-5001

Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12101 et seq., 

and California civil rights laws against Defendants, CARL 

KARCHER ENTERPRISES, INC. dba CARL’S JR. RESTAURANT; MAC5 

PROPERTIES, LLC; FOODS NORTH LLC; and DOES 1 through 25, 

Inclusive. Plaintiff has alleged that Defendants CARL KARCHER 

ENTERPRISES, INC. dba CARL’S JR. RESTAURANT; MAC5 PROPERTIES, 

LLC; and FOODS NORTH LLC 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 Carl’s Jr. restaurant located at 2516 

Esplanade, Chico, California when plaintiff visited the subject 

facility on October 2, 2003. 

2. Defendants CARL KARCHER ENTERPRISES, INC. dba CARL’S 

JR. RESTAURANT; MAC5 PROPERTIES, LLC; FOODS NORTH LLC; 

(“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 

for violations of the Americans with Disabilities Act of 1990, 

42 USC 12101 et seq. and pursuant to pendant jurisdiction for 

Case 2:04-cv-02059-MCE -DAD Document 18 Filed 06/23/05 Page 2 of 9
 — 3 — C:\iFolder\mengland\Home\TO DOCKETCIVIL\04cv2059.o.0623.doc

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

PAUL L. REIN 

200 LAKESIDE DR., SUITE A

OAKLAND, CA 94612-3503 

(510) 832-5001

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 raised in the First Amended Complaint filed 

with this Court on December 16, 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. 

 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 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 

California Code of Regulations, Title 24-2 and Americans with 

Disabilities Act Accessibility Guidelines, unless other 

Case 2:04-cv-02059-MCE -DAD Document 18 Filed 06/23/05 Page 3 of 9
 — 4 — C:\iFolder\mengland\Home\TO DOCKETCIVIL\04cv2059.o.0623.doc

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

PAUL L. REIN 

200 LAKESIDE DR., SUITE A

OAKLAND, CA 94612-3503 

(510) 832-5001

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 & B to this Consent 

Decree, which is incorporated herein by reference as if fully 

set forth in this document. Defendants agree to undertake all 

remedial work set forth in Attachment A & B. 

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. 

DAMAGES, ATTORNEY FEES, LITIGATION EXPENSES, AND COSTS:

7. The parties have not reached an agreement 

regarding plaintiff’s claims for damages, attorney fees, 

litigation expenses and costs. These issues shall be the 

subject of further negotiation, a settlement conference with 

Magistrate Judge Dale Drozd set for June 16, 2005, further 

litigation, or of motions to the Court. 

Case 2:04-cv-02059-MCE -DAD Document 18 Filed 06/23/05 Page 4 of 9
 — 5 — C:\iFolder\mengland\Home\TO DOCKETCIVIL\04cv2059.o.0623.doc

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

PAUL L. REIN 

200 LAKESIDE DR., SUITE A

OAKLAND, CA 94612-3503 

(510) 832-5001

ENTIRE CONSENT ORDER: 

8. This Consent Order and Attachment A & B to this 

Consent Decree, which is incorporated herein by reference as if 

fully set forth in this document, constitutes the entire 

agreement between the 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 only and does not 

resolve plaintiff’s claims for monetary damages, attorney’s 

fees, litigation expenses and costs, which shall be the subject 

of further negotiation and/or litigation. 

CONSENT ORDER BINDING ON PARTIES AND SUCCESSORS IN INTEREST: 

9. This Consent Order shall be binding on Plaintiff TOM 

FISHER, Defendants, CARL KARCHER ENTERPRISES, INC. dba CARL’S 

JR. RESTAURANT; MAC5 PROPERTIES, LLC; FOODS NORTH LLC; 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 

INJUNCTIVE RELIEF ONLY:

10. Each of the parties to this Consent Decree 

understands and agrees that there is a risk and possibility 

Case 2:04-cv-02059-MCE -DAD Document 18 Filed 06/23/05 Page 5 of 9
 — 6 — C:\iFolder\mengland\Home\TO DOCKETCIVIL\04cv2059.o.0623.doc

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

PAUL L. REIN 

200 LAKESIDE DR., SUITE A

OAKLAND, CA 94612-3503 

(510) 832-5001

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 

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 aspects of this 

action only and does not include resolution of plaintiff’s 

claims for damages, attorney fees, litigation expenses and 

costs. 

11. Except for all obligations required in this Consent 

Decree, and exclusive of the referenced continuing claims for 

damages, statutory attorney fees, litigation expenses and 

Case 2:04-cv-02059-MCE -DAD Document 18 Filed 06/23/05 Page 6 of 9
 — 7 — C:\iFolder\mengland\Home\TO DOCKETCIVIL\04cv2059.o.0623.doc

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

PAUL L. REIN 

200 LAKESIDE DR., SUITE A

OAKLAND, CA 94612-3503 

(510) 832-5001

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.

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. Magistrate 

Judge Dale Drozd 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. 

Case 2:04-cv-02059-MCE -DAD Document 18 Filed 06/23/05 Page 7 of 9
 — 8 — C:\iFolder\mengland\Home\TO DOCKETCIVIL\04cv2059.o.0623.doc

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

PAUL L. REIN 

200 LAKESIDE DR., SUITE A

OAKLAND, CA 94612-3503 

(510) 832-5001

SIGNATORIES BIND PARTIES: 

13. Signatories on the behalf of the parties represent 

that they are authorized to bind the parties to this Consent 

Decree and Order. 

Dated: June 16, 2005 

/s/ 

Plaintiff TOM FISHER 

(Original signature retained by 

the Law Offices of Paul Rein) 

Dated: June 16, 2005 

/s/ Robert A. Wilson, Senior Vice 

President

Defendant CARL KARCHER 

ENTERPRISES, INC. dba CARL’S JR. 

RESTAURANT 

(Original signature retained by 

the Law Office of Paul Rein) 

Dated: June 16, 2005 

/s/ Mike Mills 

Defendant FOODS NORTH LLC 

(Original signature retained by 

the Law Office of Paul Rein) 

APPROVED AS TO FORM: 

Dated: June 16, 2005 PAUL L. REIN 

 PATRICIA BARBOSA 

JULIE MCLEAN 

 LAW OFFICES OF PAUL L. REIN 

/s/ Julie McLean_________________ 

 Attorneys for Plaintiff 

TOM FISHER 

/// 

/// 

Case 2:04-cv-02059-MCE -DAD Document 18 Filed 06/23/05 Page 8 of 9
— 9 —

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

PAUL L. REIN 

200 LAKESIDE DR., SUITE A

OAKLAND, CA 94612-3503 

(510) 832-5001

Dated: June 16, 2005 JAMES W. PINCIN 

 NISSON, PINCIN, et al. 

/s/ James W. Pincin______________ 

Attorneys for Defendants 

CARL KARCHER ENTERPRISES, INC., 

dba CARL’S JR. RESTAURANT; MAC5 

PROPERTIES, LLC 

(Original signature retained by 

the Law Office of Paul Rein) 

ORDER

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

ORDERED. 

Dated: June 23, 2005

__________________________________ 

MORRISON C. ENGLAND, JR 

UNITED STATES DISTRICT JUDGE

 

Case 2:04-cv-02059-MCE -DAD Document 18 Filed 06/23/05 Page 9 of 9