United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
ALLISON CLAIRE, UNITED STATES MAGISTRATE JUDGE.
an Americans with Disabilities Act (“ADA”) and
Unruh Act case alleging that defendants failed to provide
accessible parking spaces, and accessible counter space.
Plaintiff moves for the entry of a default judgment against
defendants. This proceeding was accordingly referred to the
undersigned by Local Rule 302(c)(19) (motions for entry of
default judgment under Fed.R.Civ.P. 55(b)(2)).
reasons set forth below, the undersigned will recommend that
plaintiff be granted a default judgment on his claim that
defendants failed to provide counters of the correct height,
and that the motion as to all other claims be denied.
Scott Johnson is disabled. Complaint (ECF No. 1) ¶ 1.
Circle 7 is a place of public accommodation. Complaint ¶
30. Plaintiff visited Circle 7 eleven times from September
2011 through February 2015. Id. ¶¶ 212-22.
those visits, plaintiff personally encountered several
architectural barriers that denied him full and equal access
to Circle 7. First, there were no accessible parking spaces
that complied with state or local laws or regulations for
accessible parking spaces. Second, there were no
van-accessible parking spaces. Third, there was no accessible
counter space. During those visits, plaintiff also personally
encountered counter space that was cluttered with various
Hakmat Lababedy was, at all relevant times, the “real
property owner” of the “building/parcel located
at or about 7601 Stockton Blvd.” Complaint ¶¶
2-14. Defendant J & K Atwal, Inc. (“Atwal”),
was, at all relevant times, the “business owner”
of “Circle 7, located at or about 7601 Stockton
Blvd.” Complaint ¶¶ 14-25.
served the summons and complaint on Atwal on February 2,
2016. ECF No. 4. Plaintiff served the summons and complaint
on Lababedy on February 16 and 17, 2016. ECF No. 7. The Clerk
of the Court entered defaults against defendants Atwal and
Lababedy on March 4, 2016 and March 28, 2016, respectively.
ECF Nos. 6, 9. Plaintiff now moves for default judgment
against both defendants on his claim under the ADA, 42 U.S.C.
§§ 12182, 12183, and the Unruh Act, Cal. Civ. Code
§§ 51(f), 52(a).
Motion for Default Judgment
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). The
complaint’s well-pleaded factual allegations “are
taken as admitted on a default judgment.” Benny v.
Pipes, 799 F.2d 489, 495 (9th Cir. 1986). Those
well-pleaded factual allegations must be sufficient to
establish plaintiff’s entitlement to a judgment under
the applicable law. See Alan Neuman Productions, Inc. v.
Albright, 862 F.2d 1388 (9th Cir. 1988) (reversing
default judgment on Racketeer Influenced and Corrupt
Organizations Act (“RICO”) claim where “the
complaint fails properly to allege a claim for
violation” of RICO); Cripps v. Life Ins. Co. of
North America, 980 F.2d 1261, 1267 (9th Cir. 1992)
(“claims which are legally insufficient, are not
established by default”).
decision to grant or deny an application for default judgment
lies within the district court’s sound discretion.
Aldabe, 616 F.2d at 1092. In making this
determination, the court may consider 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
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.
Title III of the ADA
III of the ADA prohibits discrimination in public
accommodations . . . .” Kohler v. Bed Bath &
Beyond of California, LLC, 780 F.3d 1260, 1263 (9th Cir.
2015). The elements of a Title III claim are: (1) plaintiff
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 discriminated
against by the defendant because of plaintiff’s
disability. 42 U.S.C. § 12182(a); Arizona ex rel.
Goddard v. Harkins Amusement Enterprises, Inc., 603 F.3d
666, 670 (9th Cir. 2010).
in this context, includes “a failure to remove
architectural barriers … in existing facilities
… where such removal is readily achievable.” 42
U.S.C. § 12182(b)(2)(A)(iv). Where plaintiff alleges
that the discrimination arose from defendants’ failure
to make modifications to existing policies, the complaint
must additionally allege that defendants failed “to
make a requested reasonable modification that was . . .
necessary to accommodate the plaintiff’s
disability.” Fortyune v. Am. Multi-Cinema,
Inc., 364 F.3d 1075, 1082 (9th Cir. 2004).
alleges three types of discrimination in this case, resulting
from defendants’ failure to provide adequate accessible
parking spaces, and accessible counter space. First,
defendants failed to make “reasonable modifications in
policies, practices, or procedures” that were necessary
to accommodate individuals with disabilities, in violation of
42 U.S.C. § 12182(b)(2)(A)(ii). Second, defendants
failed to remove architectural barriers where such removal
was readily achievable, in violation of 42 U.S.C. §
12182(b)(2)(A)(iv). Third, defendants failed to make
alterations in a manner that would render the altered portion
of the facility readily accessible to individuals with
disabilities, in violation of 42 U.S.C. § 12183(a)(2).
The Unruh Act, Cal. Civ. Code §§ 51(f),
California’s Unruh Act, “[a] violation of the
right of any individual under the federal Americans with
Disabilities Act of 1990 . . . shall also constitute a
violation of this section.” Cal. Civ. Code §
51(f). In addition, the Unruh Act independently prohibits
discrimination, if it is done in contravention of Section 51.
Cal. Civ. Code § 52(a). Section 52(a) provides for
statutory damages of no less than $4, 000 for each violation,
and attorney’s fees. Id.
ANALYSIS - EITEL FACTORS
Prejudice to the Plaintiff
first Eitel factor considers whether plaintiff would
suffer prejudice if default is not entered. See PepsiCo,
Inc. v. California Security Cans, 238 F.Supp.2d 1172,
1177 (C.D. Cal. 2002). This factor is normally satisfied
where, as here, defendant has been properly served with the
complaint, but has entirely failed to respond to
If plaintiff’s application for default judgment were
denied, the case would never get before the court on its
merits, and plaintiff would be denied a judicial
determination on whether it is entitled to recourse on its
claim. See Philip Morris USA, Inc. v. Castworld Prods.,
Inc., 219 F.R.D. 494, 499 (C.D. Cal. 2003)
(“prejudice” exists where the plaintiff has no
“recourse for recovery” other than default
judgment). Therefore, plaintiff would be prejudiced if the
Court were to deny its application for default judgment, and
accordingly this factor weighs in favor of default judgment.
The Merits and Sufficiency of the Complaint
the close relationship between the merits of
plaintiff’s substantive claims and the sufficiency of
the complaint, these factors can be discussed jointly.
Effectively, factors two and three amount to a requirement
that the allegations in the complaint be sufficient to state
a claim that supports the relief sought. See Danning v.
Lavine, 572 F.2d 1386, 1388 (9th Cir. 1978) (in
considering default judgment, “[t]he issue . . . is
whether the allegations in the complaint are sufficient to
state a claim”).
Title III of the ADA