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Scott N. Johnson v. Kyeong Industrial

October 21, 2011

SCOTT N. JOHNSON, PLAINTIFF,
v.
KYEONG INDUSTRIAL, INC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

Presently before the court is plaintiff's motion for default judgment against defendants Kyeong Industrial Inc., individually and d/b/a Sam's Teriyaki ("Kyeong"), Danny Rodriguez individually and d/b/a Yaquis Taqueria ("Mr. Rodriguez"), and Angelica Avina Rodriguez, individually and d/b/a Yaquis Taqueria ("Ms. Rodriguez"), three of the five named defendants in this action. (Mot. for Default J., Dkt. No. 20.) Two named defendants, Muriel J. Bohr ("Bohr") and Alejandro T. Martinez ("Martinez"), have filed answers and have appeared through their attorneys in this action. (Answers, Dkt. Nos. 13, 19.)

The undersigned heard plaintiff's motion for default judgment on its law and motion calendar on October 20, 2011.*fn1 Plaintiff Scott N. Johnson, an attorney, appeared at the hearing and represented himself.*fn2 No appearances were made by or on behalf of Kyeong, Mr. Rodriguez, or Ms. Rodriguez. No appearances were made by or on behalf of Bohr or Martinez. For the reasons stated below, the undersigned recommends that plaintiff's motion for default judgment be denied without prejudice.

I. RELEVANT FACTUAL BACKGROUND

Plaintiff initiated this action on March 14, 2011, alleging violations of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12101 et seq., and California's Unruh Civil Rights Act, Cal. Civ. Code §§ 51 et seq. (See generally Compl., Dkt. No. 1.)

Plaintiff, who is affected by quadriplegia and uses a wheelchair and a specially configured van, alleges that Kyeong owns, operates, manages, or leases a restaurant called Sam's Teriyaki, which is located at 1657 N. Texas Street, Fairfield, California; and that Mr. and Mrs. Rodriguez own, operate, manage, or lease a restaurant called Yaquis Taqueria, which is located at 1661 N. Texas Street, Fairfield California. (Compl. ¶¶ 1-3.)

Plaintiff alleges that Kyeong and Mr. and Mrs. Rodriguez are liable under the ADA and Unruh Civil Rights Act because of architectural barriers to access that plaintiff actually encountered at Sam's Teriyaki and Yaquis Taqueria, which consist of a lack of: "the correct number and type of properly configured disabled parking space(s) including the lack of a van accessible disabled parking space, [an] accessible route, accessible restrooms, [an] accessible entrance, accessibility signage, striping, accessible cashier/service counter, and [an] accessible dining table." (Id. ¶ 4.) Plaintiff alleges that the removal of these architectural barriers is readily achievable. (Id.) Plaintiff seeks injunctive relief and statutorily authorized money damages in an amount of $16,000 pursuant to the Unruh Civil Rights Act. (Id. at 21-22; see also Mot. for Default J. at 5.)

An affidavit of service filed by plaintiff reflects that on April 11, 2011, plaintiff, through a process server, effectuated personal service of process on Ms. Rodriguez at the premises of Yaquis Taqueria. (Dkt. No. 5.)

An affidavit of service filed by plaintiff reflects that on May 19, 2011, plaintiff, through a process server, effectuated service of process on Mr. Rodriguez at the premises of Yaquis Taqueria. (Dkt. No. 11.) Plaintiff's process server made four attempts to personally serve Mr. Rodriguez and, on May 19, 2011, left the summons, complaint, and other documents with the "person in charge" at Yaquis Taqueria, Alma Guzman. (Dkt. No. 11.) Plaintiff's process server also mailed a copy of the summons, complaint, and other documents to Mr. Rodriguez at Yaquis Taqueria's address on May 20, 2011. (Id.)

An affidavit of service filed by plaintiff reflects that on May 24, 2011, plaintiff, through a process server, effectuated service of process on Jung Chul Lee, agent for service of process for Kyeong, at 1426 Fillmore Street #203, San Francisco, California, 94115. (Dkt. No. 12.)

On July 2, 2011, plaintiff requested that the Clerk of Court enter default against Kyeong and Mr. and Ms. Rodriguez. (Req. for Entry of Default, Dkt. No. 15 at 1.) On July 5, 2011, the Clerk of Court entered the default of Kyeong and Mr. and Ms. Rodriguez. (Clerks Cert. of Entry of Default, Dkt. No. 16.) In entering default, the Clerk of Court stated that it appeared from the record and papers on file in the action that these defendants had been duly served with process, but failed to appear, plead, or answer plaintiff's complaint within the time allowed by law. (See id.)

On September 16, 2011, plaintiff filed a motion for default judgment against Kyeong and Mr. and Ms. Rodriguez, and served a copy of the motion on these defendants by U.S. mail. (Cert. of Serv., Sept. 16, 2011, Dkt. No. 20 at 7.) Plaintiff's motion is silent with respect to whether any of these three defendants has ever contacted him or expressed any intent to raise a defense in this action. A review of the court's docket reveals that neither Kyeong nor Mr. and Ms. Rodriguez have appeared in this action or filed a response to the motion for default judgment.

Plaintiff's motion for default judgment seeks statutory damages pursuant to the Unruh Civil Rights Act in the amount of $16,000, which consists of minimum statutory damages of $4,000 for each of four actual visits to the premises in question that resulted in discriminatory events.*fn3 (See Mot. for Default J. at 4.) Plaintiff also seeks injunctive relief in the form of readily achievable property alterations that consist of providing the correct number and type of properly configured van-accessible disabled parking spaces, an accessible route, accessible restrooms, an accessible entrance, and accessibility signage, striping, accessible cashier/service counter, ...


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