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Scott Johnson v. Tien Purser

June 23, 2012



This matter came before the court on November 18, 2011, for hearing on plaintiff's motion for default judgment. (Doc. No. 15.) Attorney Scott N. Johnson appeared on his own behalf. No appearance was made on behalf of the defendant. 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.


Plaintiff Scott Johnson initiated this action on November 6, 2009, by filing a complaint and paying the required filing fee. (Doc. No. 1.) On June 3, 2011, plaintiff filed an amended complaint. (Am. Compl. (Doc. No. 9.)) Therein, plaintiff alleges claims for violation of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101, et seq., and the California Unruh Civil Rights Act, California Civil Code §§ 51 and 52. (Id. at 11, 17.) Plaintiff's amended complaint seeks damages, costs of suit including attorney fees (if incurred) and injunctive relief. Despite being served with process, defendant Tien Purser has failed to appear in this action. (Doc. No. 11.) Pursuant to plaintiff's request, the Clerk of the Court entered default against defendant on September 6, 2011.*fn1

(Doc. No. 13.) Plaintiff filed the motion for default judgment now pending before the court on October 13, 2011, noticing it to be heard before the undersigned on November 18, 2011, pursuant to Local Rule 302(c)(19). (MDJ (Doc. No. 15.)) Despite being served with all papers filed in connection with the motion, there was no opposition filed nor appearance made on behalf of defendant.*fn2 (MDJ (Doc. No. 15) at 6.)


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 amended complaint, plaintiff has physical impairments of quadriplegia and is a person "with a disability" and a "physically handicapped person" under the ADA. (Am. Compl. (Doc. No. 9) at 2.*fn3 ) Plaintiff requires the use of a wheelchair, a "Service Animal," a full-size van with hand-controls and a wheelchair lift. (Id.) Fill N Save is a convenience store/gas station with a parking lot at 300 El Camino Ave in Sacramento, California. (Id. at 3.) Defendant Tien Purser owns the property and operates, manages, leases or leases out the public accommodation located at that address. (Id.) The property does not have the correct number and type of properly configured parking spaces, including a van-accessible disabled parking space, an accessible route of travel or an accessible entrance. (Id.) In this regard, plaintiff requires a door with compliant width and closing speeds, and accessibility signage and striping. (Id. at 4.)

In a letter dated June 30, 2008, mailed to the public accommodation and addressed to the landlord/business operator, plaintiff informed defendant of the architectural barriers and the lack of accessibility and requested the property be brought into conformity with the law within ninety days. (Id.) Plaintiff sent a second letter on October 23, 2008. (Id.) Defendant did not respond to either. (Id. at 4-5.) On or about October 27, 2009, plaintiff attempted to patronize defendant's businesses but was unable to enjoy full and equal access to the goods and services of those public accommodations due to the architectural barriers he encountered. (Id. at 5.) Plaintiff avers that over the course of the year preceding the filing of his amended complaint he made a total of two actual visits to the property, encountering the same architectural barriers, and was required to forego two additional visits to the property in light of those still-existing barriers. (Id.)

In his amended complaint, plaintiff alleges causes of action under Title III of the ADA and California Civil Code §§ 51 and 52. He seeks injunctive relief requiring defendants to remove the architectural barriers and provide disabled access to the public accommodations located on the property, damages for each of his visits and foregone visits to the public accommodation pursuant to California Civil Code § 52, and reasonable attorney fees (if incurred) and costs. (Id. at 20-21.)

Weighing the factors outlined in Eitel v. McCool, 782 F.2d at 1471-72, the undersigned has determined that default judgment against the defendant is appropriate. Defendant has made no showing that defendant's failure to respond to the complaint is due to excusable neglect. There is no reason to doubt the merits of plaintiff's substantive claims, nor is there any apparent possibility of a dispute concerning the material facts underlying the action. Through the instant motion, plaintiff seeks straightforward injunctive relief and a relatively small award of damages in the amount of $4,000 for each of two actual visits to the property at which time he encountered the architectural barriers in question for a total damages award of $8,000.*fn4 Plaintiff's complaint is also sufficient. Because each of these factors weigh in plaintiff's favor, the undersigned, while recognizing the public policy favoring decisions on the merits, will recommend that default judgment be granted. See Johnson v. Derylo, No. CIV 11-2335 MCE CKD, 2012 WL 1458116, at *1 (E.D. Cal. Apr. 26, 2012) ...

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