United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
CAROLYN K. DELANEY, UNITED STATES MAGISTRATE JUDGE.
the court is plaintiff Scott Johnson's motion for default
judgment against defendants Chae Sun Lee and Mihn Tam Hoang.
(ECF No. 12.) Defendants failed to file an opposition to the
motion for default judgment in accordance with Local Rule
230(c). Accordingly, the hearing on the motion set for May 2,
2018 was vacated and defendants were given additional time to
respond to the motion. (ECF No. 14.) Defendants were advised
that failure to timely respond would result in a
recommendation that default be entered against them.
(Id.) Defendants have not timely responded.
undersigned has fully considered the briefs and record in
this case and, good cause appearing, THE COURT FINDS AS
initiated this action on November 2, 2017, alleging
violations of the Americans with Disabilities Act and the
Unruh Civil Rights Act. (ECF No. 1.) Plaintiff is a level C-5
quadriplegic who cannot walk, has significant manual
dexterity impairments, and uses a wheelchair and a
specially-equipped van. (Id. at 1.) He alleges that
defendant Lee owned real property at or about 5017 and 5037
Stockton Blvd. in Sacramento, California in 2015, 2016 and
2017; and that defendant Hoang owned the New Star Massage
located at 5037 Stockton Blvd in Sacramento, California in
2015, 2016, and 2017. (Id. at 1-2.)
alleges that he went to Long Island Ice Cream and New Star
Massage (collectively “Property”), located at
5037 Stockton Blvd., on a number of occasions during the
relevant statutory period in 2015, 2016, and
2017. (Id. at 3.) He alleges there were
no ADA-compliant parking spaces during his visits and that
the two parking spaces reserved for persons with disabilities
and their access aisles “were faded beyond
recognition.” (Id. at 4.) One parking space
displayed “Van Accessible” signage, while the
other displayed no signage, and neither space displayed the
required minimum fine and tow-away signage. (Id.)
Both had faded accessibility logos in the parking stall.
(Id.) Plaintiff alleges that the defendants allowed
these previously reserved parking spaces to fade and become
unusable, such that “vehicles park in these parking
spaces and access aisles with impunity.” (Id.)
further alleges that outdoor tables at Long Island Ice Cream
had table legs which did not allow for the proper toe
clearance for wheelchair users. (Id. at 5.) He
alleges that the entrance door to Long Island Ice Cream and
New Star Massage was a “pull bar style handle that
required tight grasping to operate” and that the
transaction counters at both businesses were more than 36
inches high; they were 39 and 42 inches high, respectively.
(Id.) There were no lowered portion of the counters
for use by persons with disabilities. (Id. at 5-6.)
Plaintiff alleges that he personally encountered these
barriers during each of his visits in 2015, 2016 and 2017.
(Id. At 6.) He alleges that he would like to return
and patronize the businesses at the Property but will be
deterred until the ADA-noncompliant barriers cease to exist.
(Id. at 6-7.) Plaintiff maintains that defendants
had the means and ability to remove these barriers to access.
(Id. at 8.) Plaintiff's complaint seeks
injunctive relief; statutory damages; and attorneys' fees
and costs. (Id. at 12.)
Lee and Hoang were properly served with process in December
2017 and January 2018. (ECF Nos. 4 & 7.) Defendants
failed to appear, plead, or answer the complaint, and
plaintiff moved for entry of judgment against each.
(See ECF Nos. 5 & 8.) The Clerk entered default
against Lee on December 28, 2017 and against Hoang on January
19, 2018. (ECF Nos. 6 & 9.) Thereafter, plaintiff brought
the pending motion for default judgment against Lee and
Hoang, through which he seeks injunctive relief for removal
of unlawful architectural barriers pursuant to the ADA;
statutory damages pursuant to California's Unruh Civil
Rights Act; and attorneys' fees and costs pursuant to the
ADA and California's Unruh Civil Rights Act. (ECF Nos.
12-1 & 12-3.)
to Federal Rule of Civil Procedure 55, default may be entered
against a party against whom a judgment for affirmative
relief is sought who fails to plead or otherwise defend
against the action. See Fed.R.Civ.P. 55(a). However,
“[a] defendant's default does not automatically
entitle the plaintiff to a court-ordered judgment.”
PepsiCo, Inc. v. Cal. Sec. Cans, 238 F.Supp.2d 1172,
1174 (C.D. Cal. 2002) (citing Draper v. Coombs, 792
F.2d 915, 924-25 (9th Cir. 1986)). Instead, the decision to
grant or deny an application for default judgment lies within
the district court's sound discretion. Aldabe v.
Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). In making
this determination, the court considers the following
(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
Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir.
1986). Default judgments are ordinarily disfavored.
Id. at 1472.
general rule, once default is entered, well-pleaded factual
allegations in the operative complaint are taken as true,
except for those allegations relating to damages.
TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915,
917-18 (9th Cir. 1987) (per curiam) (citing Geddes v.
United Fin. Group, 559 F.2d 557, 560 (9th Cir. 1977)
(per curiam)); accord Fair Housing of Marin v.
Combs, 285 F.3d 899, 906 (9th Cir. 2002). In addition,
although well-pleaded allegations in the complaint are
admitted by a defendant's failure to respond,
“necessary facts not contained in the pleadings, and
claims which are legally insufficient, are not established by
default.” Cripps v. Life Ins. Co. of N. Am.,
980 F.2d 1261, 1267 (9th Cir. 1992) (citing Danning v.
Lavine, 572 F.2d 1386, 1388 (9th Cir. 1978)); accord
DIRECTV, Inc. v. Hoa Huynh, 503 F.3d 847, 854 (9th Cir.
2007) (stating that a defendant does not admit facts that are
not well-pled or conclusions of law); Abney v.
Alameida, 334 F.Supp.2d 1221, 1235 (S.D. Cal. 2004)
(“[A] default judgment may not be entered on a legally
insufficient claim”). A party's default does not
establish the amount of damages. Geddes, 559 F.2d at
Appropriateness of the Entry of Default Judgment Under
the Eitel Factors
Factor One: Possibility of ...