Green v. California Pride, Inc.

          FINDINGS AND RECOMMENDATIONS RE: PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT (DOC. 29)

         INTRODUCTION

         Plaintiff, Lawrence Green ("Plaintiff") filed the instant Motion for Default Judgment against Defendant, California Pride, d/b/a Cedar and Ashlan Buggy Clean ("Defendant"). (Doc. 29). Defendant has not filed an opposition. The matter was taken under submission pursuant to Local Rule 230(g). (Doc. 30). Upon a review of the pleadings, the Court recommends that Plaintiff's Motion for Default be GRANTED IN PART.

         PROCEDURAL AND FACTUAL BACKGROUND

         Plaintiff filed this action on December 17, 2014. (Doc. 1). Plaintiff is limited in his ability to walk and uses a cane and walker for mobility. He alleges that Defendant California Pride Inc., owns, operates, and/or leases property that houses Cedar and Ahslan Buggy Clean located at 4245 North Cedar Avenue, Fresno, California 93726 ("the facility"). (Doc. 1, pgs. 1- 2). Plaintiff contends that when he visited the facility, he encountered barriers that interfered with his ability to use and enjoy the goods and services offered. He seeks damages and injunctive relief pursuant to the Americans with Disabilities Act ("ADA"), California Civil Code § 51 ("Unruh Civil Rights Act"), and the California Health and Safety Codes §§ 19953 and 19959. Defendant filed an answer on March 5, 2015.^[1] (Docs. 5 and 7).

         Plaintiff filed a First Amended Complaint ("FAC") on October 30, 3015 listing additional barriers but alleging the same causes of action and relief. (Doc. 23). Defendant did not file an answer to the FAC. The Clerk's Office entered default pursuant to the Plaintiff's request. (Docs. 24 and 25).

         Plaintiff subsequently filed the instant Motion for Default Judgment and seeks: 1) $4, 000.00 in statutory fees under the Unruh Act, 2) $8, 136.00 in attorney's fees, and 3) $2, 372.45 in costs. (Doc. 29-1, pgs. 9-12). Upon reviewing the Motion for Default, the Court noted several different email addresses used by Defendant's attorney in the pleadings and on CM/ECF. To ensure that Defendant received the motion, the Court ordered that Defendant's attorney verify receipt of the Motion for Default Judgment and confirm his email address. (Doc. 31). On May 18, 2016, Defendant's attorney verified the correct e-mail address and advised that he received the Motion for Default Judgment. (Doc. 32).

         Despite being served with the motion, Defendant has not filed a Motion to Set Aside the Default, nor has it responded to the Motion for Default Judgment. The Defendant is not an infant or incompetent person, and is not in the military service or otherwise exempted under the Soldiers' and Sailors' Civil Relief Act of 1940. (Doc. 24-1, pgs 1-2).

         DISCUSSION

         A. Legal Standard

         Federal Rule of Civil Procedure 55(b)(2) outlines the requirements for a motion for default judgment and provides the following:

(2) By the Court. In all other cases, the party must apply to the court for a default judgment. A default judgment may be entered against a minor or incompetent person only if represented by a general guardian, conservator, or other like fiduciary who has appeared. If the party against whom a default judgment is sought has appeared personally or by a representative, that party or its representative must be served with written notice of the application at least 7 days before the hearing. The court may conduct hearings or make referrals-preserving any federal statutory right to a jury trial-when to enter or effectuate judgment, it needs to: (A) conduct an accounting; (B) determine the amount of damages; (C) establish the truth of any allegation by evidence; or (D) investigate any other matter.

F.R.C.P. 55(b)(2). Factors which may be considered by courts when exercising discretion as to the entry of a default judgment include: (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 v. McCool, 782 F.2d 1470, 1471-1472 (9th Cir. 1986).

         A plaintiff is required to prove all damages sought in the complaint. See, Televideo Sys., v. Heidenthal, 826 F.2d 915, 917-918 (9th Cir. 1992). In addition, any relief sought may not be different in kind from, or exceed in amount, what is demanded in the complaint. Fed.R.Civ.P. 54(c). If the facts necessary to determine the damages are not contained in the complaint, or are legally insufficient, they will not be established by default. See, Cripps v. Life Ins., Co. Of N. Am., 980 F.2d 1261, 1267 (9th Cir. 1992). However, "[u]pon default, the well-pleaded allegations of a complaint relating to liability are taken as true." Dundee Cement Co. v. Howard Pipe & Concrete Products, Inc., 722 F.2d 1319, 1323 (7th Cir. 1983); TeleVideo Systems, Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987).

         B. Analysis

         1. The Eitel Factors Weigh In Favor of Default Judgment

         a. Prejudice to Plaintiff if Default Judgment is not Granted

         If default judgment is not entered, Plaintiff will effectively be denied a remedy until such time as Defendant participates and makes an appearance in the litigation - which may never occur. Denying Plaintiff a means of recourse is, by itself, sufficient to meet the burden imposed by this factor. See, e.g., Philip Morris, USA, Inc. v. Castworld Prods., Inc., 219 F.R.D. 494, 499 (C.D. Cal. 2003).

         b. Merits of Plaintiff's Substantive Claims and the Sufficiency of the Complaint

         The next relevant Eitel factors include an evaluation of the merits of the substantive claims pled in the complaint. In weighing these factors, courts evaluate whether the complaint is sufficient to state a claim that supports the relief sought. See Danning v. Lavine, 572 F.2d 1386, 1388 (9th Cir. 1978); see also DIRECTV, Inc. v. Huynh, 503 F.3d 847, 854 (9th Cir. 2007) ("[A] defendant is not held to admit facts that are not well-pleaded or to admit conclusions of law.") (internal quotation marks omitted). Accordingly, the Court will examine each of Plaintiff's claims.

         The ADA

         Title III of the ADA provides that "[n]o individual shall be discriminated against on the basis of disability" in places of public accommodation. 42 U.S.C. § 12182(a). "Discrimination" is defined as a failure to remove "barriers . . . where such removal is readily achievable." 42 U.S.C. § 12182(b)(2)(A)(iv); see also Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 945 (9th Cir. 2011) (en banc). Where a barrier's removal is not "readily achievable, " a public accommodation must make its facilities available through "alternative methods if such methods are readily achievable." 42 U.S.C. § 12182(b)(2)(A)(v).

         "To prevail on a Title III discrimination claim, the plaintiff must show that (1) [he or she] 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 [or his] disability." Molski v. M.J. Cable, Inc., 481 F.3d 724, 730 (9th Cir. 2007). Further, "[t]o succeed on an 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).

         According to the FAC, Plaintiff, who uses a cane or walker, went to the facility and encountered or noted barriers associated with parking, routes for exit and egress, insufficient check-out facilities, and improper accommodation in the restrooms. The FAC identifies approximately twenty-two separate "barriers." (Doc. 23, ¶11). Plaintiff alleges that as a result of the barriers, he is deterred from visiting Cedar and Ashlan Buggy Clean. (Doc. 23, pg. 4, ¶ 12). He contends that the barriers complained of are easy to remove, but Defendant has not altered the property to comply with accessibility standards. (Doc. 23, pgs. 5-7). As such, Plaintiff has met his burden to state a prima facie Title III discrimination claim.

         The Unruh Act

         Pursuant to the Unruh Civil Rights Act, all persons are "entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever." Cal Civ. Code § 51(b). Additionally, no business establishment of any kind whatsoever shall discriminate against any person in this state on account of disability. Cal. Civ. Code § 51.5. The Unruh Act also incorporates an individual's rights under the ADA by reference, such that a violation of the ADA also constitutes a violation of the Unruh Civil Rights Act. Cal. Civ. Code § 51(f). Here, Plaintiff alleges that Defendant denied him full and equal accommodations, advantages, facilities, privileges and services in a business establishment based on his disability. (Doc. 23, ¶¶ 33-37). Moreover, because Plaintiff's FAC properly alleges a prima facie claim under the ADA, Plaintiff has also properly alleged facts establishing the necessary elements for an Unruh Civil Rights Act claim.

         California Health and Safety Code §§ 19955 and 19959

         Under the California Health and Safety Code § 19955, it is mandated that all public accommodations constructed in California comply with the requirements of Government Code § 4450. Pursuant to Section 4450, "all buildings, structures, sidewalks, curbs, and related facilities, construed in this state by the use of state, county, or municipal funds, or the funds of any political subdivision of the state shall be accessible to and usable by persons with disabilities." Cal. Gov't Code § 4450. Additionally, non-exempt public accommodations constructed prior to July 1, 1970, and later altered or ...