IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
August 17, 2011
SCOTT N. JOHNSON, PLAINTIFF,
OAK MEADOWS ASSOCIATES, DEFENDANT.
The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Plaintiff's amended motion for default judgment against Defendant Oak Meadows Associates, filed May 24, 2011, was submitted without a hearing. Defendant filed no opposition. Upon review of the motion and supporting documents, and good cause appearing, the court issues the following findings and recommendations.
On December 7, 2010, plaintiff filed the underlying complaint in this action against defendant Oak Meadows Associates, owner of the apartment complex at issue, located at 12202 Fair Oaks Blvd., Fair Oaks, California. See Complaint, at pp. 2-3; Ex. B to Complaint. Plaintiff alleges he initially visited the apartment complex, called Fair Oaks Meadows Apartments, at this location, in May and November, 2010, but encountered architectural barriers in the form of thelack of "a van accessible disabled parking space, accessible route, accessibility signage and striping." (Complaint, at p. 3.) He asserts that these defects constitute violations of the Americans With Disabilities Act and state law. Plaintiff alleges a total of three separate visits to the subject premises. (Id. at 4.) The summons and complaint were served on Liz Marigold, an office assistant at Oak Meadows Associates offices, who stated she could accept service on December 29, 2010, followed up with service by U.S. Mail pursuant to state law. Fed. R. Civ. P. 4(h)(1); Cal. Code Civ. Proc. § 416.10. Pacific Atlantic Trading Co. v. M/V Main Express, 758 F.2d 1325, 1331 (9th Cir. 1985) (default judgment void without personal jurisdiction). Defendant Oak Meadows Associates has failed to file an answer or otherwise defend in this action. On February 28, 2011, the clerk entered default against defendant Oak Meadows Associates.
The instant motion for default judgment and supporting papers were served on defendant. Plaintiff seeks an entry of default judgment in the amount of $8,000 pursuant to California Civil Code section 52(a) as well as injunctive relief.*fn1
Entry of default effects an admission of all well-pleaded allegations of the complaint by the defaulted party. Geddes v. United Financial Group, 559 F.2d 557 (9th Cir. 1977). The court finds the well pleaded allegations of the complaint state a claim for which relief can be granted. Anderson v. Air West, 542 F.2d 1090, 1093 (9th Cir. 1976). The memorandum of points and authorities and affidavits filed in support of the motion for entry of default judgment also support the finding that plaintiff is entitled to the relief requested. There are no policy considerations which preclude the entry of default judgment of the type requested.
See Eitel v. McCool, 782 F.2d 1470, 1471-1472 (9th Cir. 1986).
In view of the foregoing findings, it is the recommendation of this court that:
1. Plaintiffs' motion for entry of default judgment be GRANTED as to Oak Meadows Associates in the amount of$8,000; and
2. Injunctive relief be granted against defendant Oak Meadows Associates requiring the correct number and type of properly configured disabled parking space(s) including a van accessible disabled parking space, accessible route, accessibility signage, and striping, in conformity with the Americans with Disabilities Act Accessibility Guidelines (ADAAG) as set forth in 28 Code of Federal Regulations, Part 36.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within seven days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).