United States District Court, N.D. California
ORDER GRANTING MOTION FOR DEFAULT JUDGMENT
CHARLES R. BREYER UNITED STATES DISTRICT JUDGE
an ADA case in which Plaintiff, who is paraplegic, Lam Che
Decl. ¶ 2 (Dkt. 17) alleges that he attempted to access
a business called “Fast Fresh Pizza” in San Jose,
but was prevented from doing so by (1) a lack of properly
signed accessible parking spaces and (2) overly narrow
accessible pathways. Complaint ¶¶ 9-14 (Dkt. 1).
Plaintiff asserts claims for violation of the Uruh Act, Cal.
Civil Code §§ 51-52, and the Americans with
Disabilities Act (“ADA”), 42 U.S. § 12101
et. seq. Complaint ¶¶ 15-29. The Complaint seeks an
injunction “directing Defendant as current owners,
operators, lessors, and/or lessees of the Property and
premises to modify the above described Property and premises
and related facilities so that each provides full and equal
access to all persons, including but not limited to persons
with physical disabilities who use wheelchairs, and issue a
preliminary and permanent injunction directing Defendant to
provide and maintain facilities usable by Plaintiff and
similarly situated persons with disabilities, and which
provide full and equal access, as required by law, including
appropriate changes in policy.” Id. Prayer
¶ 1. He also seeks statutory damages under the Uruh Act
for $4000 and attorneys' fees. Id. ¶¶
filed his Complaint on January 18, 2018. Id. About a
year later, on January 16, 2019, he moved for default against
Defendant. Mot. for Entry of Default (Dkt. 10). The Clerk
filed an Entry of Default on February 13, 2019. Clerk's
Notice Entry of Default (Dkt. 15). He now seeks default
judgment. Motion for Default Judgment (Dkt. 16); see
also Fed.R.Civ.P. 55(b)(2). He seeks “judgment in
the amount of $7, 220.00 against Defendant which breaks down
as follows: Statutory Damages $4, 000.00 Attorney Fees $2,
760.00 Costs $460.00. Plaintiff also demands injunctive
relief under the ADA and Unruh Act, requiring Defendant to
bring the Property into compliance with the [ADA
Accessibility Guidelines] and [California Building
Code].” Motion for Default Judgment at 11.
to grant a motion for the entry of default judgment is within
the discretion of the trial court. See Lau Ah Yew v.
Dulles, 236 F.2d 415, 416 (9th Cir. 1956). Upon an entry
of default by the Clerk, the factual allegations of the
plaintiff's complaint will be taken as true, except those
relating to the amount of damages. See Derek Andrew, Inc.
v. Poof Apparel Corp., 528 F.3d 696, 702 (9th Cir.
2008). In determining whether to enter a default judgment, a
court has “an affirmative duty to look into its
jurisdiction over both the subject matter and the parties,
” In re Tuli, 172 F.3d 707, 712 (9th Cir.
1999), including whether notice has been adequately given,
see Omni Capital Int'l, Ltd. v. Rudolf Wolff &
Co., 484 U.S. 97, 104 (1987); Fed.R.Civ.P. 55(a);
accord Dytch v. Bermudez, 2018 WL 2230945, at *2
(N.D. Cal. May 16, 2018), reconsideration denied,
2018 WL 3643702 (N.D. Cal. Aug. 1, 2018). To determine
whether default judgment is appropriate, this Court examines
the following factors: (1) the possibility of prejudice to
the plaintiff; (2) the merits of the plaintiff's
substantive claims; (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 likelihood
of obtaining a decision on the merits. Eitel v.
McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986).
Court has jurisdiction under 28 U.S.C. § 1331, as the
Complaint alleges violation of a federal statute, and
supplemental jurisdiction under 28 U.S.C. § 1367 over
the pendant state law claim. See Complaint
¶¶ 3-4. Likewise, the parties are located within
the Northern District, and thus this Court has personal
jurisdiction. Id. ¶¶ 1-8.
absent default judgment, Plaintiff has no recourse against
Defendant. He thus satisfies the first Eitel factor.
See Willamette Green Innovation Ctr., LLC v. Quartis
Capital Partners, 2014 WL 5281039, at *6 (N.D. Cal. Jan.
21, 2014), report and recommendation adopted, 2014
WL 5260921 (N.D. Cal. Apr. 10, 2014) (“Denying a
plaintiff a means of recourse is by itself sufficient to meet
the burden posed by this factor.”); see also
Eitel, 782 F.2d at 1471-72.
as to the merits, first, Plaintiff has alleged that he is
deterred from visiting the property because of the barriers
to his access. Complaint ¶ 12; see also Eitel,
782 F.2d at 1471-72. Third, he adequately alleges the
following: he is disabled; Defendant operates a place of
public accommodation; and Plaintiff was denied public
accommodation. Motion for Default Judgment at 4-6; 42 U.S.C.
§ 12182(a) (ADA standard); Compl. ¶¶ 9-14.
Plaintiff has thus satisfied the second and third prongs of
the Eitel standard. See Eitel, 782 F.2d at
there is only a small sum of money involved in this
case-$7220, of which $4000 is statutory damages. Motion for
Default Judgment at 11; see also Eitel, 782 F.2d at
given that the dispute is about architectural barriers, a
vigorous dispute of facts seems unlikely, because whether
there are physical barriers or not would be readily
determinable. See Eitel, 782 F.2d at 1471-72.
Plaintiff alleges that Defendant received adequate notice,
and this case has been pending for almost a year and a half,
and thus the default is not likely due to excusable neglect.
Eitel, 782 F.2d at 1471-72; Motion for Default
Judgment at 9-10; see also Tsao Decl. Exh. C (Proof
of Service) (Dkt. 14-3).
and finally, because Defendant has not appeared in this case,
a decision on the merits is unlikely. See Motion for
Default Judgment at 10; Eitel, 782 F.2d at 1472.
the requirements for a default judgment are met here. See
Eitel, 782 F.2d at 1471-72. The Court thus determines that
default judgment is appropriate in this case.
Court also determines that the scope of the relief sought is
appropriate. As mentioned above, the judgment amount is low,
and Plaintiffs attorney is only seeking 6.9 hours of
attorneys' fees at $400 an hour. See Tsao Decl.
Exh. A (Dkt. 18-1). Further, the injunction sought would only