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 Robert D. Henson and Shauna L. Henson, individually and as Trustees of the Henson Family Trust, UDT dated March 22, 2002. On October 26, 2011, 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. 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 both defendants.
Plaintiff initiated this action on August 19, 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. Defendants filed an answer to the complaint on November 20, 2009. Dckt. No. 6. However, on July 28, 2011, after defendants' attorney failed to respond to an order to show cause why he should not be sanctioned and why defendants' answer should not be stricken because of defendants' failure to appear for a final pretrial conference and failure to participate in the preparation of a joint pretrial statement, the assigned district judge issued an order sanctioning defendants' attorney, striking defendants' answer, and directing the clerk to enter a default against defendants Robert Henson and Shauna Henson. Dckt. No. 20. Also on July 28, 2011, the clerk entered the default of Robert Henson and Shauna Henson. Dckt. No. 21.
On August 22, 2011, plaintiff moved for default judgment against defendants, Dckt. No. 22, and mail served a copy of the motion on Haycock, defendants' attorney of record. Plaintiff's motion for default judgment seeks $8,000.00 in monetary damages, based upon two occurrences of the statutory minimum of $4,000.00 per discriminatory event, as well as an injunction requiring defendants "to provide for 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 accordance with the ADA and the Americans with Disabilities Act Accessibility Guidelines ("ADAAG"). Id. at 4-5.
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).
Although "[t]he Ninth Circuit has yet to rule on whether the
plaintiff or defendant bears the burden of proof in showing that
removal of an architectural barrier is readily achievable," the
Circuit, and various district courts throughout the Circuit, have
often applied the burden-shifting framework set forth in Colorado
Cross Disability Coalition v. Hermanson Family, Ltd., 264 F.3d 999
(10th Cir. 2001). Vesecky v. Garick, Inc., 2008 WL 4446714, at *2 (D.
Ariz. Sept. 30, 2008) (citing Doran v. 7-Eleven, Inc., 506 F.3d 1191,
1202 (9th Cir. 2007) and various district court cases).*fn1
In Colorado Cross, the Tenth Circuit stated that the
"[p]laintiff bears the initial burden of production to present
evidence that a suggested method of barrier removal is readily
achievable" and that if plaintiff meets that burden, the burden shifts
to the ...