Johnson v. Lababedy

          FINDINGS AND RECOMMENDATIONS

          ALLISON CLAIRE, UNITED STATES MAGISTRATE JUDGE.

         This is 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)).

         For the 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.

         I. THE COMPLAINT

         Plaintiff 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.

         During 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 objects.

         Defendant 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.

         II. PROCEDURAL BACKGROUND

         Plaintiff 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).

         III. LEGAL STANDARDS

         A. Motion for Default Judgment

         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). 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”).

         The 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. 1986).

         B. Title III of the ADA

         “Title 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).

         Discrimination, 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).

         Plaintiff 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).

         C. The Unruh Act, Cal. Civ. Code §§ 51(f), 52(a)

         Under 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.

         IV. ANALYSIS - EITEL FACTORS

         A. Prejudice to the Plaintiff

         The 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 it.^[1] 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.

         B. The Merits and Sufficiency of the Complaint

         Given 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”).

         1. Title III of the ADA

         (a) Plaintif ...