ORDER ANDFINDINGS 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 amended motion for entry of default judgment against defendant David G. Knox.*fn1 Dckt. No. 18. The hearing on plaintiff's amended motion is currently set for August 31, 2011.*fn2 Id. For the reasons stated herein, as well as for the reasons stated at the July 27 hearing on plaintiff's original default judgment motion, the court vacates the August 31, 2011 hearing on plaintiff's amended default judgment motion and recommends that the motion be granted.
Plaintiff initiated this action on December 21, 2010, 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 March 30, 2011, demonstrates that the summons and complaint were served on defendant Knox on February 9, 2011 in Lodi, California, by leaving a copy of the process at Knox's usual place of abode with his wife, and informing her of its contents. Dckt. No. 11.
On May 5, 2011, pursuant to plaintiff's request, the Clerk of Court entered the default of defendant Knox. Dckt. No. 13. On May 23, 2011, plaintiff filed a motion for default judgment, and mail served a copy of the motion on defendant Knox. Dckt. No. 14. Defendant failed to appear at the July 27, 2011 hearing on the motion. Dckt. No. 17. The original motion for default judgment was denied due to plaintiff's typographical error, but on July 27, 2011, plaintiff filed an amended motion for default judgment, which was also mail served on defendant. Dckt. No. 18. Defendant has not filed any opposition to the motion.
Plaintiff's amended motion for default judgment seeks monetary damages, pursuant to California Civil Code Section 52(a) in the amount of $8,000.00, which is based upon two alleged discriminatory occurrences at the statutory minimum of $4,000.00 per discriminatory event. Id. at 4. Plaintiff also seeks an injunction requiring Knox to provide for a properly configured van-accessible disabled parking space with an accessible route to the entrance in accordance with the ADA and the Americans with Disabilities Act Accessibility Guidelines ("ADAAG"). Id.
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, the term readily achievable means "easily accomplishable and able to be carried out without much difficulty or expense." 42 U.S.C. § 12181(9).
"To prevail on a Title III discrimination claim, the plaintiff must show that (1) [he] is disabled within the meaning of the ADA; (2) the defendant is a private entity that owns, leases,or operates a place of public accommodation; and (3) the plaintiff was denied public accommodations by the defendant because of her disability." Molski v. M.J. Cable, Inc., 481 F.3d 724, 730 (9th Cir. 2007). Further, "[t]o succeed on a ADA claim of discrimination on account of one's disability due to an architectural barrier, the plaintiff must also prove that: (1) the existing facility at the defendant's place of business presents an architectural barrier prohibited under the ADA, and (2) the removal of the barrier is readily achievable." Parr v. L & L Drive-Inn Rest., 96 F. Supp. 2d 1065, 1085 (D. Haw. 2000).
Here, plaintiff alleges (1) that he is disabled, Compl. ¶ 1; (2) that defendant's business is a place of public accommodation, id. ¶ 2; (3) that plaintiff was denied access to defendant's business because of plaintiff's disability, id. ¶ 4; (4) that defendant's business has architectural barriers, id.; and (5) that removal of the barriers is readily achievable, id. Because plaintiff's allegations are taken as true on default, the court finds that plaintiff has met his initial burden to state a prima facie Title III discrimination claim. Additionally, the court finds that the majority of the Eitel factors weigh in favor of granting default judgment to plaintiff on that claim. Therefore, the undersigned recommends that plaintiff be granted default judgment against defendant Knox on plaintiff's ADA claim and award plaintiff an injunction requiring defendant Knox to ...