Gilbert v. Mane ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DARREN GILBERT, No. 1:22-cv-00574 TLN AC 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 MUSTAFA KAID ALI MANE individually and dba AIRPORT 15 GROCERY, 16 Defendant. 17 18 This case is before the court on plaintiff’s motion for default judgment, ECF No. 20, 19 which was referred to the undersigned pursuant to E.D. Cal. R. 302(c)(19). The matter was set to 20 be heard on the papers. ECF No. 27. Defendant did not file an opposition or take any actions in 21 this case. For the reasons stated below, the court recommends that plaintiff’s motion be granted. 22 I. Relevant Background 23 As stated in his complaint, plaintiff is a person with physical disabilities, including limited 24 ability to walk; he requires the use of a wheelchair, knee scooter, or prosthetic for mobility. ECF 25 No. 1 at 2. Defendant owns, operates, and/or leases the property containing a business known as 26 Airport Grocery and Liquor, located at 2733 Lander Avenue, Turlock, California, 95380 27 (hereinafter “the Property”), and is a person (or persons), firm, and/or corporation. Id. at 1-2. 28 Plaintiff asserts that Airport Grocery is a facility open to the public, a place of public 1 accommodation for nonresidential use, and a business establishment. Id. at 2. There is a parking 2 lot on the Property. Id. at 3. 3 Plaintiff lives less than twenty miles from the Property, and visited the Property on or 4 about December 17, 2021, to buy refreshments and snacks. ECF No. 1 at 2. Plaintiff alleges he 5 encountered many accessibility problems. Plaintiff could not locate any designated accessible 6 parking stalls in the Property’s parking lot. Id. at 3. Plaintiff knows that if he returns to the 7 Property while this barrier remains, it will be difficult for him to load and unload from his vehicle 8 without a designated access aisle to ensure clear space adjacent to his vehicle. Id. at 3. Further, 9 all the parking stalls had a very steep slope behind them. Since there was no safe path of travel in 10 front of the parking stalls, to get from a parking stall to the Property entrance would require 11 travelling behind the vehicles, which would be very dangerous due to the severe slope. As a 12 result, plaintiff was unable to enter the business. Id. Plaintiff was, and continues to be, deterred 13 from visiting the Property because of his awareness that the goods, services, facilities, privileges, 14 advantages, and accommodations were and are unavailable to him due to his physical disabilities. 15 Id. Plaintiff enjoys the goods and services offered at the Property, and will return to the Property 16 once the barriers are removed. Id. 17 On May 12, 2022, plaintiff filed this action alleging violations of the Americans with 18 Disabilities Act, 42 U.S.C. § 12101, et seq., the Unruh Civil Rights Act, Cal. Civ. Code § 51- 19 53, and violations of California Health and Safety Code § 19955(a). ECF No. 1. The summons 20 and complaint were timely served on defendant. ECF No. 4. The clerk entered default as to the 21 defendant. ECF No. 8. The court dismissed without prejudice plaintiff’s state law claims, 22 declining to exercise supplemental jurisdiction. ECF Nos. 15, 17. On September 5, 2023, 23 plaintiff moved for default judgment on the remaining federal claim. ECF No. 20. The motion 24 for default judgment was served on the defendant. ECF No. 20-7. Defendant did not appear to 25 oppose the motion, and has not otherwise appeared or taken any action in this case. 26 //// 27 //// 28 //// 1 II. Motion 2 Plaintiff moves for default judgment on his claims under the ADA and seeks injunctive 3 relief, attorneys’ fees, litigation expenses, costs and interest. ECF No. 20. 4 III. Analysis 5 A. Legal Standard 6 Pursuant to Fed. R. Civ. P. 55, default may be entered against a party against whom a 7 judgment for affirmative relief is sought who fails to plead or otherwise defend against the action. 8 See Fed. R. Civ. P. 55(a). However, “[a] defendant’s default does not automatically entitle the 9 plaintiff to a court-ordered judgment.” PepsiCo, Inc. v. California Sec. Cans, 238 F. Supp. 2d 10 1172, 1174 (C.D. Cal. 2002) (citing Draper v. Coombs, 792 F.2d 915, 924–25 (9th Cir. 1986)); 11 see Fed. R. Civ. P. 55(b) (governing the entry of default judgments). Instead, the decision to 12 grant or deny an application for default judgment lies within the district court’s sound discretion. 13 Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). In making this determination, the court 14 may consider the following factors: 15 (1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff's substantive claim, (3) the sufficiency of the complaint, 16 (4) the sum of money at stake in the action, (5) the possibility of a dispute concerning material facts, (6) whether the default was 17 due to excusable neglect, and (7) the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the 18 merits. 19 Eitel v. McCool, 782 F.2d 1470, 1471–72 (9th Cir. 1986). Default judgments are ordinarily 20 disfavored. Id. at 1472. 21 As a general rule, once default is entered, well-pleaded factual allegations in the operative 22 complaint are taken as true, except for those allegations relating to damages. TeleVideo Sys., Inc. 23 v. Heidenthal, 826 F.2d 915, 917–18 (9th Cir. 1987) (per curiam) (citing Geddes v. United Fin. 24 Grp., 559 F.2d 557, 560 (9th Cir. 1977) (per curiam)); see also Fair Hous. of Marin v. Combs, 25 285 F.3d 899, 906 (9th Cir. 2002). Although well-pleaded allegations in the complaint are 26 admitted by a defendant’s failure to respond, “necessary facts not contained in the pleadings, and 27 claims which are legally insufficient, are not established by default.” Cripps v. Life Ins. Co. of N. 28 Am., 980 F.2d 1261, 1267 (9th Cir. 1992) (citing Danning v. Lavine, 572 F.2d 1386, 1388 (9th 1 Cir. 1978)); accord DIRECTV, Inc. v. Hoa Huynh, 503 F.3d 847, 854 (9th Cir. 2007) (“[A] 2 defendant is not held to admit facts that are not well-pleaded or to admit conclusions of law”) 3 (citation and quotation marks omitted); Abney v. Alameida, 334 F. Supp. 2d 1221, 1235 (S.D. 4 Cal. 2004) (“[A] default judgment may not be entered on a legally insufficient claim.”). 5 B. The Eitel Factors 6 a. Factor One: Possibility of Prejudice to Plaintiff 7 The first Eitel factor considers whether the plaintiff would suffer prejudice if default 8 judgment is not entered, and such potential prejudice to the plaintiff weighs in favor of granting a 9 default judgment. See PepsiCo, Inc., 238 F. Supp. 2d at 1177. Here, plaintiff would suffer 10 prejudice if the court did not enter a default judgment. Absent entry of a default judgment, 11 plaintiff would be without recourse for recovery. Accordingly, the first Eitel factor favors the 12 entry of default judgment. 13 b. Factors Two and Three: Merits of Claims and Sufficiency of Complaint 14 The merits of plaintiff’s substantive claims and the sufficiency of the complaint are 15 considered here together because of the relatedness of the two inquiries. The court must consider 16 whether the allegations in the complaint are sufficient to state a claim that supports the relief 17 sought. See Danning, 572 F.2d at 1388; PepsiCo, Inc., 238 F. Supp. 2d at 1175. Here, the merits 18 of the claims and sufficiency of the complaint favor entry of default judgment. 19 Plaintiff moves for default judgment on one cause of action: violations of the American’s 20 with Disabilities Act, 42 U.S.C. § 12101, et seq. (“ADA”). “Title III of the ADA prohibits 21 discrimination in public accommodations....” Kohler v. Bed Bath & Beyond of California, LLC, 22 780 F.3d 1260, 1263 (9th Cir. 2015). The elements of a Title III claim are: (1) plaintiff is 23 disabled within the meaning of the ADA; (2) the defendant is a private entity that owns, leases, or 24 operates a place of public accommodation; and (3) the plaintiff was discriminated against by the 25 defendant because of plaintiff's disability. 42 U.S.C. § 12182(a); Arizona ex rel. Goddard v. 26 Harkins Amusement Enterprises, Inc., 603 F.3d 666, 670 (9th Cir. 2010). Discrimination, in this 27 context, includes “a failure to remove architectural barriers ... in existing facilities ... where such 28 removal is readily achievable.” 42 U.S.C. § 12182(b)(2)(A)(iv). 1 Plaintiff alleges multiple types of discrimination in this case, all resulting from 2 defendant’s failure to provide adequate accessible parking spaces. Per the complaint, defendant 3 has failed to provide at least one properly configured and identified accessible parking stall, in 4 violation of 1991 ADAAG § 4.1.2(5)(a) (see also 2010 Standards § 208). “Creating designated 5 accessible parking spaces” has been identified as an “exampl[e] of readily achievable steps to 6 remove barriers.” Johnson v. Altimira Corp., 2017 U.S. Dist. LEXIS 57647, at *3; 28 C.F.R. § 7 36.304(b)(18). Further, defendant failed to provide an accessible route of travel from the parking 8 spaces to the business entrance as required by 1991 ADAAG §§ 4.1.2(1) and (4), 4.5 (see also 9 2010 Standards §§ 206.2.1, 403). Removal of this barrier is readily achievable, as it can be done 10 easily and without much difficulty or expense by resurfacing the pavement. See, e.g., Estrada v. 11 Gonzalez, No. CV 19-8746-DMG (Ex), 2022 U.S. Dist. LEXIS 49172, at *8 (C.D. Cal. Feb. 24, 12 2022) (finding the plaintiff made a prima facie showing that resurfacing an accessible route for an 13 estimated $5,243 was readily achievable). 14 The facts alleged in plaintiff’s complaint adequately detail the claimed violations, and 15 taken as true, support plaintiff’s ADA claim. ECF No. 1. The Americans with Disabilities Act 16 Accessibility Guidelines, found in the ADA’s implementing regulations at 28 C.F.R. Part 36 17 (“ADAAG”) has been held by the Ninth Circuit to provide the “objective contours of the standard 18 that architectural features must not impede disabled individuals’ full and equal enjoyment of 19 accommodations.” Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 945 (9th Cir. 2011). 20 Plaintiff alleges there was no accessible parking space in the parking lot, and that there were 21 excessive slopes, making it impossible for him to navigate to the building in violation of ADAAG 22 guidelines. Id. at 2-3. Because plaintiff has alleged violations of the ADAAG that relate to his 23 disability, he has properly alleged violations of the ADA. The merits of plaintiff’s case thus favor 24 entry of default judgment. 25 c. Factor Four: The Sum of Money at Stake in the Action 26 Under this Eitel factor, “the court must consider the amount of money at stake in relation 27 to the seriousness of Defendant’s conduct.” PepsiCo, Inc., 238 F. Supp. 2d at 1176–77. Plaintiff 28 seeks injunctive relief and $2,865.08 in attorney’s fees and costs. ECF No. 20-1 at 6. The 1 complaint offers no information about the defendant’s financial condition, so the court cannot tell 2 if this is a significant amount of money to defendants. However, there is no evidence that 3 defendant took any action after being served with the summons and complaint in order to avoid a 4 judgment of this size. This factor accordingly weighs in favor of a default judgment. 5 d. Factor Five: Possibility of Dispute Concerning Material Facts 6 The facts of this case are relatively straightforward, and plaintiff has provided the court 7 with well-pleaded allegations supporting its claims and affidavits in support of its allegations. 8 Here, the court may assume the truth of well-pleaded facts in the complaint (except as to 9 damages) following the clerk’s entry of default and, thus, there is no likelihood that any genuine 10 issue of material fact exists. See, e.g., Elektra Entm’t Grp. Inc. v. Crawford, 226 F.R.D. 388, 393 11 (C.D. Cal. 2005) (“Because all allegations in a well-pleaded complaint are taken as true after the 12 court clerk enters default judgment, there is no likelihood that any genuine issue of material fact 13 exists.”); accord Philip Morris USA, Inc., 219 F.R.D. at 500; PepsiCo, Inc., 238 F. Supp. 2d at 14 1177. 15 e. Factor Six: Whether Default Was Due to Excusable Neglect 16 Upon review of the record before the court, there is no indication that the default was the 17 result of excusable neglect. See PepsiCo, Inc., 238 F. Supp. 2d at 1177. Plaintiff served the 18 defendant with the summons and complaint. ECF No. 4. Additionally, plaintiff served defendant 19 by mail with notice of its application for default judgment. ECF No. 20-7. Despite ample notice 20 of this lawsuit and plaintiff’s intention to seek a default judgment, defendant failed to defend 21 themselves in this action. Thus, the record supports a conclusion that the defendant has chosen 22 not to defend this action, and not that the default resulted from any excusable neglect. 23 Accordingly, this Eitel factor favors the entry of a default judgment. 24 f. Factor Seven: Policy Favoring Decisions on the Merits 25 “Cases should be decided upon their merits whenever reasonably possible.” Eitel, 782 26 F.2d at 1472. However, district courts have concluded with regularity that this policy, standing 27 alone, is not dispositive, especially where a defendant fails to appear or defend itself in an action. 28 PepsiCo, Inc., 238 F. Supp. 2d at 1177; see also Craigslist, Inc. v. Naturemarket, Inc., 694 F. 1 Supp. 2d 1039, 1061 (N.D. Cal. 2010). Accordingly, although the court is cognizant of the policy 2 favoring decisions on the merits-and consistent with existing policy would prefer that this case be 3 resolved on the merits-that policy does not, by itself, preclude the entry of default judgment. 4 Upon consideration of the Eitel factors, the court concludes that plaintiff is entitled to the 5 entry of default judgment against defendants and makes a recommendation to that effect. What 6 remains is the determination of the amount of damages to which plaintiff is entitled. 7 C. Terms of Judgment 8 Plaintiff requests injunctive relief and attorney’s fees under Title III of the ADA. 9 1. Attorney’s Fees 10 Attorney’s fee awards are calculated using the “lodestar” method whereby the hours 11 reasonably spent in the litigation are multiplied by a reasonable hourly rate. Ferland v. Conrad 12 Credit Corp., 244 F.3d 1145, 1149 n.4 (9th Cir. 2001) (per curium). The hourly rate is generally 13 calculated “according to the prevailing market rates in the relevant community.” Blum v. 14 Stenson, 465 U.S. 886, 895, 104 S. Ct. 1541, 79 L. Ed. 2d 891 (1984). It is also the general rule 15 that the court will use the rates of attorneys practicing in the forum district. Gates v. Deukmejian, 16 987 F.2d 1392, 1405 (9th Cir. 1992). 17 Plaintiff requests attorney fees at an hourly rate of $300, plus paralegal fees at an hourly 18 rate of $115. No. 20-3 at 2-4. Plaintiff also seeks costs and litigation expenses. Id. at 6-7, ECF 19 No. 20-6. Section 12205 of the ADA provides that a district court, “in its discretion, may allow 20 the prevailing party, other than the United States, a reasonable attorney’s fee, including litigation 21 expenses, and costs.” 42 U.S.C. § 12205. The statutory provisions of the ADA provide direct 22 authority for the award of expert witness fees as litigation expenses under the ADA. See Lovell 23 v. Chandler, 303 F.3d 1039, 1058 (9th Cir. 2002). The total requested award for fees and costs is 24 $2,865.08. ECF No. 20-6. The court finds this request to be reasonable. Accordingly, the 25 undersigned will recommend that plaintiff be awarded a total of $2,865.08 in costs and fees. 26 2. Injunctive Relief 27 Plaintiff’s complaint seeks an injunction requiring defendants to make changes and 28 accommodations at the subject facility in a manner that achieves compliance with federal and 1 state regulations. ECF No. 20-6. As the factual allegations in the complaint are taken as true, 2 plaintiff is entitled to injunctive relief as requested. See Wander v. Kaus, 304 F.3d 856, 858 (9th 3 Cir. 2002) (“Damages are not recoverable under Title III of the ADA—only injunctive relief is 4 available for violations of Title III.”). 5 IV. Conclusion 6 For the reasons explained above, it is hereby RECOMMENDED THAT: 7 1. Plaintiff’s September 5, 2023 motion for default judgment (ECF No. 20) be GRANTED; 8 2. Defendant shall, within six (6) months of the date of this Order, make the Property accessible 9 to plaintiff by making the following modifications to the property known as known as Airport 10 Grocery and Liquor, located at 2733 Lander Avenue in Turlock, California, such that each 11 item is brought into compliance with the accessibility requirements of the Americans with 12 Disabilities Act and California Code of Regulations, Title 24, as follows: 13 a) Provide a properly configured and identified accessible parking stall with adjacent access 14 aisle. 15 b) Provide a properly configured accessible route of travel from the designated accessible 16 parking to the Facility entrance. 17 3. Plaintiff is awarded his attorney’s fees and costs in the amount of $2,865.08 payable by 18 Defendant to the Moore Law Firm, P.C. Trust Account and which shall be delivered to the 19 Moore Law Firm, P.C., 300 South First Street, Suite 342, San Jose, California 95113, within 20 thirty (30) days of the date of this Order; and 21 4. This case be closed. 22 These findings and recommendations are submitted to the United States District Judge 23 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty-one days 24 after being served with these findings and recommendations, any party may file written 25 objections with the court and serve a copy on all parties. Id.; see also Local Rule 304(b). Such a 26 document should be captioned “Objections to Magistrate Judge’s Findings and 27 Recommendations.” Any response to the objections shall be filed with the court and served on all 28 parties within fourteen days after service of the objections. Local Rule 304(d). Failure to file 1 | objections within the specified time may waive the right to appeal the District Court’s order. 2 | Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998), as amended _on denial of reh’g (Nov. 24, 3 || 1998); Martinez v. YIst, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 4 | DATED: November 29, 2023 ~ 5 Chthtenr— LMhane_ ALLISON CLAIRE 6 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28