United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT
PLAINTIFF'S MOTION TO FOR DEFAULT JUDGMENT BE DENIED IN
PART AND GRANTED IN PART (ECF No. 9)
Jose Trujillo filed a Motion for Default Judgment against
Defendants Balvir Singh dba Super 7 and Darshan Singh
(collectively “Defendants”) (ECF No. 9.)
Defendants did not file an opposition. The matter was taken
under submission pursuant to Local Rule 230(g). Upon review
of the evidence and the briefing, the Court recommends that
Plaintiff's motion for Default be GRANTED IN PART.
filed this action on October 31, 2016 (ECF No. 1.) He seeks
damages and injunctive relief pursuant to the Americans with
Disabilities Act (42 U.S.C. §§ 12101 et
seq.) (“ADA”), California Civil Code §
51 (“Unruh Civil Rights Act”), and California
Health and Safety Code § 19959. Plaintiff, a disabled
man who is substantially limited in his ability to walk and
uses a wheelchair or cane for mobility, alleges that
Defendants are the owners and operators of a business known
as Super 7, located at 41304 Road 128, Orosi, California
93647. 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. Plaintiff seeks
injunctive relief, statutory damages, attorney's fees,
were served with the summons and complaint in November 2016
(ECF Nos. 4 and 5.) None of the Defendants filed an answer.
Plaintiff requested entry of default and default was entered
on January 9, 2017. (ECF Nos. 6 and 7.) Plaintiff filed the
instant Motion for Default Judgment and seeks an award amount
of $4, 000.00 in statutory damages and $5, 448.00 in
attorney's fees and injunctive relief. (ECF No. 9-1, p.
9.) Despite being served with the motion, Defendants have not
filed a Motion to Set Aside the Default, nor have they
responded to the Motion for Default Judgment or otherwise
appeared in this litigation. (ECF No. 10.) Defendants are not
infants, incompetent persons, in the military serve or
otherwise exempted under the Soldiers' and Sailors'
Civil Relief Act of 1940. (ECF No. 9, p. 2.)
Rule of Civil Procedure 55(b)(2) outlines the requirements
for a motion for default judgment:
(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.
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 Prods., Inc., 722 F.2d 1319, 1323 (7th Cir.
1983); TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d
915, 917-18 (9th Cir. 1987).
The Eitel factors weigh in favor of default
Possibility of prejudice to the plaintiff
default judgment is not entered, Plaintiff will effectively
be denied a remedy until Defendants participate in the
litigation, which may never occur. Denying Plaintiff a means
of recourse is, by itself, enough 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.
The merits of plaintiff's substantive claim and the
sufficiency of the complaint
next relevant Eitel factors include an evaluation of
the merits of the substantive claims alleged in the
complaint. To weigh 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.” Id. § 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 complaint, Plaintiff went to the facility and
encountered barriers associated with parking spaces, uneven
surface for parking, “the store entrance had a high
threshold, which was difficult to maneuver a wheelchair over,
” insufficient clearances for wheelchairs, and the
“transaction counter was too high” and “the
area around it was obstructed, ” making it
“difficult for Plaintiff to approach the counter and .
. . pay for his purchase.” (ECF No. 1, ¶10.) The
Complaint identifies approximately four separate
“barriers.” Id. Plaintiff alleges that
as a result of the barriers, he is deterred from visiting
Super 7. He contends that the barriers are easy to remove,
but Defendants have not altered the store to comply with
accessibility standards. (ECF No. 1, pgs. 3-5.) Plaintiff has
met his burden to state a prima facie Title III