United States District Court, N.D. California, San Jose Division
ORDER FOR REASSIGNMENT TO A DISTRICT JUDGE REPORT AND
RECOMMENDATION RE AMENDED MOTION FOR DEFAULT JUDGMENT RE:
DKT. NO. 20
VIRGINIA K. DEMARCHI UNITED STATES MAGISTRATE JUDGE
disability rights action, plaintiff Scott Johnson sues for
alleged accessibility violations he says he encountered at
Ceci's Liquor Store (“Store”) in San Jose,
California. He asserts claims under Title III of the
Americans with Disabilities Act of 1990 (“ADA”),
42 U.S.C. § 12181, et seq. and the California Unruh
Civil Rights Act (“Unruh Act”), Cal. Civ. Code
§§ 51-53. Mr. Johnson seeks injunctive relief, as
well as statutory damages, attorneys' fees and costs.
Oakwood Center, LLC (“Oakwood Center”) and Long
Thanh Do failed to answer the complaint or to otherwise
appear in this matter. At Mr. Johnson's request, the
Clerk of the Court entered Long Thanh Do's default on May
15, 2019 and Oakwood Center's default on May 30, 2019.
Dkt. Nos. 11, 13.
before the Court is Mr. Johnson's amended motion for
default judgment. In his original motion, Mr. Johnson sought
$8, 000 in statutory damages, $670 in litigation costs, and
$5, 919 in attorneys' fees. Dkt. No. 17. However, his
original moving papers sought fees at lower
rates than those that are now being requested in
the pending amended motion. Dkt. No. 17-4. Additionally, the
original motion sought fees for attorneys Phyl Grace and
Christina Carson, who do not appear on the submitted billing
statement,  and failed to mention attorney Amanda
Seabock, who does appear on the billing statement.
Johnson subsequently withdrew his original motion (Dkt. No.
18) and filed the present amended motion for default
judgment, which now seeks fees for work performed by Ms.
Seabock, but no longer requests fees for work performed by
Ms. Grace or for Ms. Carson. Dkt. No. 20-4. As noted above,
the amended motion also seeks fees at a higher rate than
originally requested, resulting in requested fees of $6, 135, in
addition to the $8, 000 in statutory damages and $670 in
costs. Additionally, as discussed below, the amended motion
includes a civil minute order apparently issued by the
Central District of California in No. CV 18-5136 MRW
Lindsay v. Grupo Glemka. Dkt. No. 20-9.
docket indicates that Mr. Johnson served his original motion
papers by mailing them to defendants (Dkt. No. 17-9), but no
certificate of service was included with the amended motion
for default judgment. Although it is unclear whether Mr.
Johnson provided defendants with written notice of the
present amended motion,  a party in default is not entitled to
notice under Fed.R.Civ.P. 55 unless he has appeared, formally
or informally, and demonstrated a clear intent to defend the
suit. Fed.R.Civ.P. 55(b)(2) (“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.”); In re Roxford Foods,
Inc., 12 F.3d 875, 879 (9th Cir.1993) (“While it
is true that the failure to provide 55(b)(2) notice, if the
notice is required, is a serious procedural irregularity that
usually justifies setting aside a default judgment or
reversing for the failure to do so, notice is only required
where the party has made an appearance.”) (quotations
and citations omitted); Wilson v. Moore & Assocs.,
Inc., 564 F.2d 366, 368 (9th Cir.1977) (“No party
in default is entitled to 55(b)(2) notice unless he has
‘appeared' in the action.”). As discussed
above, the record reflects that neither Oakwood Center nor
Long Thanh Do have appeared, formally or otherwise, in this
have not opposed or otherwise responded to the motion, and
briefing is closed. Civ. L.R. 7-3(a). The Court held a
hearing on the matter on August 20, 2019. Mr. Johnson
appeared; defendants did not. Mr. Johnson was directed to
file, by September 13, 2019, supplemental briefing regarding
service of the complaint and summons on Oakwood Center. No.
such supplemental filing was made.
Johnson has consented to proceed before a magistrate judge.
28 U.S.C. § 636(c); Fed.R.Civ.P. 73. However, as
defendants have not appeared and are in default, the
magistrate judge does not have the consent of all parties.
Accordingly, this Court directs the Clerk of the Court to
reassign this action to a district judge, with the following
report and recommendation that Mr. Johnson's motion for
default judgment be granted in part and denied in part.
to his complaint, Mr. Johnson is a level C-5 quadriplegic who
cannot walk and has significant manual dexterity impairments.
He says he uses a wheelchair for mobility and has a specially
equipped van with a ramp that enables him to move in and out
of his vehicle. Dkt. No. 1 ¶ 1; Dkt. No. 20-5
¶¶ 2-3. Long Thanh Do is the alleged owner of the
Store, and Oakwood Center reportedly owns the real property
where the Store is located. Dkt. No. 1 ¶¶ 2-7; Dkt.
No. 20-4 ¶¶ 3-5; Dkt. No. 20-8.
Johnson claims that during several visits between December
2018 and January 2019, he encountered barriers with the
parking space, paths of travel, and transaction counter that
prevented him from enjoying full and equal access to the
Store's facilities. Dkt. No. 1 ¶¶ 14-24; Dkt.
No. 20-5; Dkt. No. 20-7. When Mr. Johnson visited the Store
on December 18, 2018, he says he followed a sign directing
him to the “van accessible” space, but found that
the space had mounding slopes and was poorly maintained, with
cracking and broken asphalt. Dkt. No. 20-5 ¶¶ 5-6.
Mr. Johnson parked in that space, but says he struggled with
the slopes and cracked asphalt. Id. ¶ 6. Once
inside the Store, Mr. Johnson alleges that he could not
navigate through approximately half the Store because display
racks and merchandise were stacked in a way that made paths
too narrow to accommodate a wheelchair. Id. ¶
7. He further states that he went to the sales counter to
purchase cigarettes, but the transaction counter was too
high, with no lowered portion for use by persons with
disabilities. Id. ¶ 8. Mr. Johnson says he
returned to the Store twice in January 2019 because it
carried his preferred brand of cigarettes. Id.
¶ 10. Nevertheless, he claims that the alleged access
barriers “created difficulty and discomfort for
[him].” Dkt. No. 1 ¶ 25. While he says he would
like to return to the Store, both as a customer and to assess
compliance with accessibility laws, Mr. Johnson says he has
decided not to do so “due to the frustrating
barriers” at the premises. Dkt. No. 20-5 ¶ 11;
see also Dkt. No. 1 ¶ 28.
may be entered against a party who fails to plead or
otherwise defend an action. Fed.R.Civ.P. 55(a). After entry
of default, a court may, in its discretion, enter default
judgment. Fed.R.Civ.P. 55(b)(2); Aldabe v. Aldabe,
616 F.2d 1089, 1092 (9th Cir. 1980). In deciding whether to
enter default judgment, a court may consider the following
factors: (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. Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th
Cir. 1986). In considering these factors, all factual
allegations in the plaintiff's complaint are taken as
true, except those relating to damages. TeleVideo Sys.,
Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir.
1987). The court may hold a hearing to conduct an accounting,
determine the amount of damages, establish the truth of any
allegation by evidence, or investigate any other matter.
entry of judgment is sought against a party who has failed to
plead or otherwise defend, a district 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).
question jurisdiction is based on Mr. Johnson's ADA claim
for relief. 28 U.S.C. § 1331. The Court has supplemental
jurisdiction over his Unruh Act claim pursuant to 28 U.S.C.
§ 1367. This Court is also satisfied that personal
jurisdiction exists over both defendants. Mr. Johnson's
complaint and public records submitted with the present
motion indicate that Long Thanh Do owns the Store and is
domiciled in California and that Oakwood Center is a
California limited liability company that owns the real
property in San Jose, California on which the Store is
located. Dkt. No. 1 ¶¶ 2-7; Dkt. No. 20-4
¶¶ 3-5; Dkt. 20-8. See Daimler AG v.
Bauman, 571 U.S. 117, 137 (2014) (“For an
individual, the paradigm forum for the exercise of general
jurisdiction is the individual's domicile . . .. With
respect to a corporation, the place of incorporation and
principal place of business are paradig[m] . . . bases for
general jurisdiction.”) (internal quotations and
citation omitted) (alteration in original); Goodyear
Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915,
919 (2011) (“Specific jurisdiction . . . depends on an
affiliation between the forum and the underlying controversy,
principally, activity or an occurrence that takes place in
the forum State and is therefore subject to the State's
Service of Process
Defendant Long Thanh Do
to Rule 4(e) of the Federal Rules of Civil Procedure, an
individual defendant may be served by: (1) delivering a copy
of the summons and complaint to the individual personally;
(2) leaving a copy of the summons and complaint at the
individual's dwelling or usual place of abode with
someone of suitable age and discretion who resides there; or
(3) delivering a copy of the summons and complaint to an
agent authorized by appointment or law to receive service of
process. Fed.R.Civ.P. 4(e)(2). Alternatively, an individual
defendant may be served with process pursuant to the law of
the state where the district court is located. Fed.R.Civ.P.
4(e)(1). Under California law, individual defendants may be
served by several means, including personal delivery of the
summons and complaint to the individual or the
individual's authorized agent. Cal. C.C.P. §§
record indicates that service properly was effected as to
Long Thanh Do, who was personally served with process at the
Store. Dkt. No. 8.
Defendant Oakwood Center
to Rule 4(h)(1)(B) of the Federal Rules of Civil Procedure, a
domestic corporation may be served:
by delivering a copy of the summons and of the complaint to
an officer, a managing or general agent, or any other agent
authorized by appointment or by law to receive service of
process and-if the agent is one authorized by statute and the
statute so requires-by also mailing a copy of each to the
Fed. R. Civ. P. 4(h)(1)(B). Alternatively, Rule 4 provides
that service on a corporation may be made by “following
state law for serving a summons in an action brought in
courts of general jurisdiction in the state where the
district court is located or where service is made.”
Fed.R.Civ.P. 4(e)(1), (h)(1)(A).
Code of Civil Procedure section 416.10 provides that a
corporation may be served by “delivering a copy of the
summons and the complaint . . . [t]o the person designated as
agent for service of process” or “[t]o the
president, chief executive officer, or other head of a
corporation, a vice president, a secretary or assistant
secretary, a treasurer or assistant treasurer, a controller
or chief financial officer, a general manager or person
authorized by the corporation to receive service of
process.” Cal. Code Civ. Proc. § 416.10(a), (b).
In lieu of personal delivery, California law permits
substituted service on a person to be served under section
416.10 by (1) “leaving a copy of the summons and the
complaint during usual office hours in his or her office . .
. with the person who is apparently in charge thereof”
and (2) “thereafter mailing a copy of the summons and
complaint by first-class mail, postage prepaid to the person
to be served at the place where a copy of the summons and
complaint were left.” Cal. Code Civ. Proc. §
415.20(a). However, before resorting to substituted service,
“a plaintiff must first make reasonably diligent (i.e.,
two or three) attempts at personal service.” Shaw
v. Five M, LLC, No. 16-cv-03955-BLF, 2017 WL 747465, at
*2 (N.D. Cal., Feb. 27, 2017) (citing Bein v.
Brechtel-Jochim Group, Inc., 6 Cal.App.4th 1387, 1390
Johnson filed a proof of service suggesting that on April 13,
2019, the process server attempted to personally serve Sin
Yee Wong, Oakwood Center's registered agent for service
of process. Dkt. No. 9. The proof of service indicates that
the process server instead resorted to substituted service,
under California Code of Civil Procedure section 416.10, by
leaving documents with an Eva Wong (identified as a
“Co-occupant” at the service address) and then
mailing them to Sin Yee Wong at that same address.
Id. The proof of service, however, does not include
any declaration of diligence regarding prior attempts at
personal service. Indeed, a box on the proof of service form
for the process server to note diligence in any such prior
personal service attempts is unchecked, suggesting that no
attempts were made to personally serve Oakwood Center's
agent. Id. at 1. Because the sole proof of service
indicates that the complaint and summons were left with Eva
Wong, and not Oakwood Center's agent for service of
process, Sin Yee Wong, Mr. Johnson has not shown that the
requirements of Rule 4(h)(1)(B) have been met. See
Heifetz v. Breed Properties, No. 16-1490 CRB, 2017 WL
713303, at *3 (N.D. Cal., Feb. 23, 2017). Moreover,
“[o]ne attempt at personal service does not constitute
a reasonably diligent attempt at personal service sufficient
to allow substituted service on a defendant.”
Id. (citing Bein, 6 Cal.App.4th at 1390).
Accordingly, this Court concludes that service was not
properly effected as to Oakwood Center and that Mr.
Johnson's motion for default judgment should be denied as
to that defendant. Id.
the Court is satisfied that Long Thanh Do properly was
served, it will consider the merits of the present motion as
to that defendant.
reasons to be discussed, the Eitel factors weigh in
favor of entering default judgment.
The possibility of prejudice to Mr. Johnson
first Eitel factor requires the Court to consider
whether Mr. Johnson would be prejudiced if default judgment
is not entered. Unless default judgment is entered, Mr.
Johnson will have no other means of recourse. That is
sufficient to satisfy this factor. See, e.g., Ridola v.
Chao, No. 16-cv-02246-BLF, 2018 WL 2287668, at *5 (N.D.
Cal., May 18, 2018) (finding that the plaintiff would be
prejudiced if default judgment were not entered because she
“would have no other means of recourse against
Defendants for the damages caused by their conduct.”).
The merits of Mr. Johnson's claims and the sufficiency of
to the second and third Eitel factors, this Court
concludes that the complaint alleges meritorious substantive
claims for relief.
ADA Title III, 42 U.S.C. § 12181, et
III of the ADA prohibits discrimination by places of public
accommodation: “No individual shall be discriminated
against on the basis of disability in the full and equal
enjoyment of the goods, services, facilities, privileges,
advantages, or accommodations of any place of public
accommodation by any person who owns, leases (or leases to),
or operates a place of public accommodation.” 42 U.S.C.
§ 12182(a). For purposes of Title III, discrimination
includes “a failure to remove architectural barriers .
. . in existing facilities . . . where such removal is
readily achievable.” Id. §