ORDER AND FINDINGS AND RECOMMENDATIONS
This case was referred to the undersigned pursuant to Eastern District of California Local Rule 302(c)(19) and 28 U.S.C. § 636(b)(1) for hearing on plaintiff's motion for entry of default judgment against defendants GCR Enterprises, LLC, individually and dba Rubino's Italian American Cuisine ("GCR"), and Henry Carrillo. On August 24, 2010, a hearing on the motion was held. Plaintiff Scott Johnson, an attorney, appeared at the hearing and represented himself. No appearance was made on behalf of defendants. At the hearing, the undersigned expressed concerns regarding the adequacy of service of process on defendant GCR.*fn1 Thereafter, plaintiff withdrew his motion for default judgment as to GCR. Accordingly, plaintiff's motion for default judgment as to GCR is denied. However, for the reasons that follow, and as stated on the record at the hearing, the court recommends that plaintiff's application for entry of default judgment be granted as to defendant Henry Carrillo.
Plaintiff initiated this action on November 25, 2009, alleging violations of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101, et seq., and the California Unruh Civil Rights Act. Compl., Dckt. No. 1. A certificate of service, filed February 22, 2010, demonstrates that the summons and complaint were served on defendant Carrillo on February 11, 2010 in Roseville, California, by leaving a copy of the process at Carrillo's usual place of business with Jesus Mendoza, the employee in charge, and informing him of its contents. Dckt. No. 6.
On April 22, 2010, pursuant to plaintiff's request, the Clerk of Court entered the default of defendant Carrillo. Dckt. No. 16. On May 14, 2010, plaintiff filed a motion for default judgment, and mail served a copy of the motion on defendant Carrillo. Dckt. No. 18.
Plaintiff's motion for default judgment seeks the following relief:
The Court grants judgment in Plaintiff's favor and against . . . Henry Carrillo for monetary damages, pursuant to the California Civil Code Section 52(a) in the amount of $8,000.00, which is based upon two occurrences of the statutory minimum of $4,000.00 per discriminatory event. . . . The Complaint identifies two actual and two foregone visits to the subject business/property. The foregone visits are based upon personal knowledge of existing architectural barriers. . . . Although the Complaint identifies a total of four (4) actual and foregone visits, which would result in monetary damages in the amount of $16,000.00, the Plaintiff is limiting his damage demand to $8,000.00. The Plaintiff is willing to lower his monetary damages below the $8,000.00, if this matter is resolved prior to the motion hearing date. Plaintiff seeks injunctive relief of a properly configured van accessible disabled parking space with an accessible route to an accessible entrance, a compliant men's restroom door accessibility signage and all men's restroom fixtures and accessories to be located at compliant heights & locations. The Court grants Judgment in Plaintiffs favor and against . . . Henry Carrillo for injunctive relief requiring Defendant to provide for a properly configured van-accessible disabled parking space with an accessible route to an accessible entrance, a compliant men's restroom door accessibility signage and all men's restroom fixtures and accessories to be located at compliant heights & locations in accordance with the Americans with Disabilities Act of 1990 (ADA) and the Americans with Disabilities Act Accessibility Guidelines (ADAAG) contained in 28 CFR Part 36. There will be no motion made for attorney fees or litigation costs.
It is within the sound discretion of the district court to grant or deny an application for default judgment. Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). In making this determination, the court considers the following factors:
(1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff's substantive claim, (3) the sufficiency of the complaint, (4) the sum of money at stake in the action, (5) the possibility of a dispute concerning the material facts, (6) whether the default was due to excusable neglect, and (7) the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits.
Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). "In applying this discretionary standard, default judgments are more often granted than denied." Philip Morris USA, Inc. v. Castworld Products, Inc., 219 F.R.D. 494, 498 (C.D. Cal. 2003) (quoting PepsiCo, Inc. v. Triunfo-Mex, Inc., 189 F.R.D. 431, 432 (C.D. Cal. 1999)).
As a general rule, once default is entered, the factual allegations of the complaint are taken as true, except for those allegations relating to damages. TeleVideo Systems, Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987) (citations omitted). However, although well-pleaded allegations in the complaint are admitted by defendant's failure to respond, "necessary facts not contained in the pleadings, and claims which are legally insufficient, are not established by default." Cripps v. Life Ins. Co. of N. Am., 980 F.2d 1261, 1267 (9th Cir. 1992).
A. Americans with Disabilities Act
Title III of the ADA provides that "[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation." 42 U.S.C. § 12182(a). Discrimination includes "a failure to remove architectural barriers . . . in existing facilities . . . where such removal is readily achievable." Id. § 12182(b)(2)(A)(iv). Under the ADA, ...