United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS RE: PLAINTIFF'S
MOTION FOR DEFAULT JUDGMENT (DOC. 29)
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.
AND FACTUAL BACKGROUND
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. (Docs. 5 and 7).
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
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).
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).
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).
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).
The Eitel Factors Weigh In Favor of Default
Prejudice to Plaintiff if Default Judgment is not
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).
Merits of Plaintiff's Substantive Claims and the
Sufficiency of the Complaint
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.
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. §
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).
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.
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.
Health and Safety Code §§ 19955 and 19959
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 ...