United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS THAT PLAINTIFF'S
MOTION FOR DEFAULT JUDGMENT BE GRANTED IN PART (DOC. NO.
K. OBERTO, UNITED STATES MAGISTRATE JUDGE
January 27, 2017, Plaintiff Jose Acosta
(“Plaintiff”) filed a motion for default judgment
against Defendants Dirhem Hasan d/b/a Latino Liquor, Salah
Hasan d/b/a Latino Liquor, and Othman Altam (collectively
“Defendants”). (Doc. 15.) No opposition to
Plaintiff's motion was filed. The Court has reviewed the
motion and supporting documentation and determined that the
matter was suitable for decision without oral argument
pursuant to Local Rule 230(g). As such, the hearing on the
motion was vacated. (Doc. 17.)
reasons set forth below, the Court RECOMMENDS that
Plaintiff's motion for default judgment be GRANTED IN
PART in the amount of $6, 634.50.
November 7, 2016, Plaintiff filed a complaint pursuant to
Title III of the Americans with Disabilities Act
(“ADA”), 42 U.S.C. §§ 12101-12213; the
California Unruh Act, California Civil Code § 51 et
seq.; and California Health & Safety Code
§§ 19955, 19959. (Doc. 1
(“Complaint”).) The Complaint seeks an award of
statutory damages, prejudgment interest on the damages, costs
of suit, attorney's fees, and injunctive relief.
Id. Plaintiff alleges that he requires the use of a
wheelchair for mobility (Compl., ¶ 8), and the property
that is the subject of this suit, Latino Liquor (the
“Property”), presents numerous barriers that
interfered with his ability to use and enjoy the goods,
services, privileges, and accommodations offered at the
facility (Compl., ¶ 10).
Othman Altam was served with the Complaint on November 10,
2016. (Doc. 8.) Defendants Dirhem Hasan d/b/a Latino Liquor
and Salah Hasan d/b/a Latino Liquor were served with the
Complaint on November 12, 2016. (Docs. 6 & 7.) None of
the defendants responded to the Complaint.
requested the Clerk of Court to enter default against
Defendants on December 19, 2016 (Doc. 9), which was entered
that same day. (Docs. 10, 11 & 12.) On January 27, 2017,
Plaintiff filed a motion for default judgment against
Defendants, which is currently pending before the Court.
Rule of Civil Procedure 55(b) permits a court-ordered default
judgment following the entry of default by the clerk of the
court under Rule 55(a). It is within the sole discretion of
the court as to whether default judgment should be entered.
See Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir.
1980). A defendant's default by itself does not entitle a
plaintiff to a court-ordered judgment. See Id.
Instead, the Ninth Circuit has determined a court should
consider seven discretionary factors, often referred to as
the “Eitel factors, ” before rendering a
decision on default judgment. See Eitel v. McCool,
782 F.2d 1470, 1471-72 (9th Cir. 1986). The Eitel
factors include (1) the possibility of prejudice to the
plaintiff, (2) the merits of the 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. See id.
plaintiff is required to prove all damages sought in the
complaint. See Televideo Sys., Inc. v. Heidenthal,
826 F.2d 915, 917-18 (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.
once the court clerk enters a default, the well-pleaded
factual allegations of the complaint are taken as true,
except for those allegations relating to damages. See
Televideo Sys., Inc., 826 F.2d at 917.
Eitel Factors Weigh in Favor of Granting a Default
Judgment a. Prejudice to Plaintiff if Default Judgment is Not
default judgment is not entered, Plaintiff will effectively
be denied a remedy until Defendants participate and make 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 as
well as the general sufficiency of 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).
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. at § 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 “is substantially limited
in his ability to walk, ” “must use a wheelchair
for mobility, ” and is thus “physically
disabled” as defined by the applicable California and
federal laws. (Compl., ¶ 8.) As a store, the Property is
a facility of public accommodation, does not function as a
residence, and its activity affects commerce. (Compl., ¶
9.) Plaintiff alleges that Defendants own, operate, or lease
the Property; thus, they are allegedly liable for the
Property's compliance with the ADA. (Compl., ¶ 7.)
visited the Property and alleges that Defendants failed to
provide barrier-free access to the Property in the following
ways: (1) the designated accessible parking stall and the
adjacent access aisle were too narrow; (2) Plaintiff had to
travel across the parking lot near the driveway area to reach
the store entrance from his vehicle, causing him to fear that
he might be struck by the vehicles that were entering and
exiting through the driveway; (3) the approach to the ramp
from the parking area to the entrance was obstructed by a
parked vehicle, which made it difficult for Plaintiff to
maneuver his wheelchair up the ramp toward the entrance; and
(4) the aisles inside the Property lacked sufficient clear
width for Plaintiff's wheelchair to pass through.
(Compl., ¶ 10.)
alleges that the removal of these architectural barriers is
“readily achievable, ” or alternatively, the
services could have been made available through alternative
methods that were readily achievable. (Compl., ¶¶
21-22.) As these facts are taken as true regarding Defendant
following its entry of default, Plaintiff has met his burden
of stating a prima facie Title III discrimination
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 California 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 Defendants denied him full and
equal accommodations, advantages, facilities, privileges and
services in a business establishment based on his disability.
(Compl., ¶ 38.) Further, because Plaintiff's
complaint 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, mandates that all
public accommodations constructed in California comply with
the requirements of California 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. Code, § 4450(a). Additionally, non-exempt
public accommodations constructed prior to July 1, 1970, and