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Marshall Loskot v. D & K Spirits

February 14, 2011



This matter came before the court on September 3, 2010, for hearing on plaintiff's motion for default judgment (Doc. No. 20). Jason K. Singleton, Esq. appeared telephonically for plaintiff. No appearance was made on behalf of any of the defendants. Having considered all written materials submitted with respect to the motion, and after hearing oral argument, the undersigned recommends that the motion for default judgment be granted as set forth below.


Plaintiff Marshall Loskot initiated this action under Title III of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101 to 12213; the California Unruh Act, California Civil Code § 51 et seq.; California Civil Code § 54 et seq.; and California Health and Safety Code § 19955, by filing a complaint on March 22, 2010. Plaintiff's complaint seeks damages, prejudgment interest on compensatory damages, costs of suit, attorney fees, and injunctive relief.

Despite being served with process,*fn1 defendants D & K Spirits, LLC, Kuldip Singh Thandi, and Bhinda Singh have failed to appear in this action. Pursuant to plaintiff's request filed June 2, 2010 (Doc. No. 8), the Clerk of the Court entered default against the defendants on June 3, 2010 (Doc. No. 9). All defendants were served with a copy of the Clerk's Certificate of Entry of Default by mail on June 8, 2010. (Doc. No. 10). In accordance with Local Rule 302(c)(19), plaintiff filed his motion for default judgment and noticed it for hearing before the undersigned. Despite being served with all papers filed in connection with the motion (Doc. No. 11), there was no opposition filed nor appearance made on behalf of any of the defendants.*fn2


Federal Rule of Civil Procedure 55(b)(2) governs applications to the court for default judgment. Upon entry of default, the complaint's factual allegations regarding liability are taken as true, while allegations regarding the amount of damages must be proven. Dundee Cement Co. v. Howard Pipe & Concrete Products, 722 F.2d 1319, 1323 (7th Cir. 1983) (citing Geddes v. United Fin. Group, 559 F.2d 557 (9th Cir. 1977)); see also TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917 (9th Cir. 1987). Where damages are liquidated (i.e., capable of ascertainment from definite figures contained in the documentary evidence or in detailed affidavits), judgment by default may be entered without a damages hearing. See Dundee, 722 F.2d at 1323. Unliquidated and punitive damages, however, require "proving up" at an evidentiary hearing or through other means. Dundee, 722 F.2d at 1323-24; see also James v. Frame, 6 F.3d 307, 310 (5th Cir. 1993).

Granting or denying default judgment is within the court's sound discretion, see Draper v. Coombs, 792 F.2d 915, 924-25 (9th Cir. 1986) (citations omitted), and the court is free to consider a variety of factors in exercising that discretion, see Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). The court may consider such factors as: (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 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, 782 F.2d at 1471-72 (citing 6 Moore's Federal Practice, ¶ 55-05[2], at 55-24 to 55-26).


According to the unverified complaint filed March 22, 2010, plaintiff is a physically handicapped person, a physically disabled person, and a person with a disability, as those terms are defined in the federal and state statutes pursuant to which this action has been filed. (Compl. ¶ 7.) Plaintiff alleges that he "is severely limited in the use of his legs." (Id.)

The Handi-Spot Market is a grocery store located in Anderson, California. (Id. ¶ 5.) Plaintiff alleges that defendants D & K Spirits, Kuldip Singh Thandi, and Bhinda Singh operate the Handi-Spot Market and have failed to provide barrier-free access to the store in the following ways: (1) the store's parking lot lacks a van-accessible parking space and access aisle, tow-away signage at the entrances to the lot, Van Accessible signage, and International Symbol of Accessibility (ISA) signage; (2) the entrance to the store lacks a level landing and there is no International Symbol of Accessibility at the entrance; and (3) the aisles in the store are blocked by boxes and merchandise, making the aisles too narrow for wheelchair mobile customers. (Id. ¶ 6.) Plaintiff alleges that defendants interfered with his access to the Handi-Spot Market on or about November 19, 2009, February 5, 2010, and February 18, 2010, when he visited the store to buy refreshments and liquor and encountered all of the barriers listed above. (Id. ¶¶ 14 & 17 (citing ¶ 6).) Plaintiff lives forty-seven minutes from the store but regularly travels to Anderson for pleasure and business and intends to return to the Handi-Spot Market when the store is made accessible. (Id. ¶ 15.)

Plaintiff's complaint alleges causes of action under Title III of the ADA, California Health and Safety Code § 19955 et seq., California Civil Code §§ 54, 54.1, and 54.3, and California Civil Code §§ 51 and 51.5. (Id. ¶¶ 20-71.) The complaint seeks injunctive relief (1) requiring defendants to "establish a non-discriminatory criteria policy, practice and procedure permitting entry" into the grocery store, (2) requiring defendants to "repair and render safe to disabled persons" all public areas of the facility, and (3) prohibiting operation of the grocery store as a public facility until defendants provide full and equal enjoyment of the facility to disabled persons. (Id., Prayer for Relief ¶ 1.) Plaintiff also seeks general and special damages according to proof; statutory and actual damages, trebled under California Civil Code §§ 52 and 54.3; prejudgment interest on all compensatory damages; "Remedies and Procedures" available under §§ 107, 203 and 308 of the ADA; and reasonable attorney fees and costs. (Id., Prayer for Relief ¶¶ 2-7.)

Weighing the factors outlined in Eitel v. McCool, 782 F.2d at 1471-72, the undersigned has determined that default judgment against the defendants is appropriate. The defendants have made no showing that their failure to respond to the complaint is due to excusable neglect. On the present record, due to the defendants' default, there is no reason to doubt the merits of plaintiff's substantive claims and no apparent possibility of a dispute concerning the material facts underlying the action. Through the instant motion, plaintiff seeks specific injunctive relief related to the nature of his disability, the minimum amount of statutory damages for a single actual visit to the property at issue, and attorney fees and costs. Although plaintiff's complaint is largely boilerplate, it is sufficient to support the requested relief. Because each of these factors weighs in plaintiff's favor, the undersigned, while recognizing the public policy favoring decisions on the merits, will recommend that default judgment be granted.

After determining that entry of default judgment is warranted, the court must next determine the terms of the judgment. Consistent with the allegations and prayer in the complaint, plaintiff seeks the creation of a van-accessible disabled parking space and access aisle, along with the signage required by the Americans With Disabilities Act of 1990 (ADA), the Americans With Disabilities Act Accessibility Guidelines (ADAAG), and California Code of Regulations Title 24 (Title 24). Plaintiff also seeks the creation of an accessible main entrance to the store by construction of a level landing that complies with the ADAAG and Title 24, along with signage required by Title 24. Finally, plaintiff seeks the creation of accessible aisles in the store by removal of boxes and merchandise that block wheelchair access. The court finds that plaintiff is entitled to the injunctive relief requested pursuant to federal and state law. The court finds further that plaintiff is entitled to the requested total of $4,000 in damages under his state law cause of action pursuant to California Civil Code ยง 52(a) based upon one ...

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