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interpreting Vogel and noting that proof that removal of barriers is readily achievable is required for injunctive relief but that photographs demonstrating ease of alteration were sufficient
Summary of this case from Scherer v. VasquezOpinion
2:14-CV-00941-RSWL-E
10-28-2014
Keith McComb, Plaintiff, v. Gloria Vejar; Alejandro Flores, Defendants.
ORDER re: Plaintiff's Application for Default Judgment by Court Against Gloria Vejar and Alejandro Flores [14]
Currently before the Court is Plaintiff Keith McComb's ("Plaintiff") Application for Default Judgment [14] against Defendants Gloria Vejar and Alejandro Flores (collectively, "Defendants"), filed by Plaintiff on August 25, 2014. Plaintiff requests Default Judgment against Defendants for violations of the Americans with Disabilities Act ("ADA"), California's Unruh Civil Rights Act ("Unruh Act"), and the California Disabled Persons Act ("CDPA"), and requests relief in the amount of $4,000 in statutory damages under the Unruh Act; $2,225 in attorney fees and costs pursuant to 42 U.S.C. § 12205, Cal. Civ. Code §§ 52, 54.3, or Cal. Civ. Code § 1021.5; and injunctive relief compelling Defendants to comply with the ADA and the Unruh Act by creating handicap-accessible paths of travel at Defendant's property, a carpet store. Pl.'s Appl. Def. J. 2:8-14, ECF No. 14; Pl.'s Appl. Def. J. P&A 2:17-22; Pl.'s Appl. Def. J., [Proposed] J. 2; Compl. ¶¶ 2-3, 9-29.
The Court, having reviewed all papers submitted pertaining to this Application, NOW FINDS AND RULES AS FOLLOWS: The Court GRANTS Plaintiff's Application for Default Judgment [14].
I. BACKGROUND
Plaintiff is a California resident and a paraplegic who uses a wheelchair for mobility. Compl. ¶ 1. Plaintiff alleges that Defendant Alejandro Flores owns and operates California Carpet Supply, a store located at 16637 Lakewood Blvd., Bellflower, CA. Id. ¶ 2. Defendant Gloria Vejar and Defendant Alejandro Flores are alleged to own the property at 16637 Lakewood Blvd., Bellflower, CA. Id. ¶ 3. Plaintiff alleges that when he went to California Carpet Supply ("Carpet store") in October of 2013, the Carpet store was not accessible to Plaintiff because the Carpet store could only be entered by stairs, which Plaintiff could not navigate in a wheelchair. Id. ¶¶ 8, 10, 25. Plaintiff claims that the Carpet store's entrance violates federal and state law because it does not have a ramp or lift to enable disabled persons to enter the business. Id. ¶¶ 22-23, 24-29.
Plaintiff's Complaint and Application for Default Judgment state that the store is named "California Carpet" and is "at or about 16637 Lakewood Blvd., Los Angeles, California." Compl. ¶ 2. The Proof of Service indicates that the business is called "California Carpet Supply" and is located at "16637 Lakewood Blvd., Bellflower, CA." Proof of Service on Def. Flores ¶ 2c, ECF No. 6.
Plaintiff also alleges that the sales floor inside the Carpet store is not accessible to wheelchair users because the paths of travel are too narrow due to "moveable objects" in the aisles that make wheelchair navigation inside the Carpet store "extremely difficult." Id. ¶ 12. Plaintiff alleges that the paths of travel inside the Carpet store "narrow to widths" less than 36 inches wide, which Plaintiff claims violates federal regulations and state law. Compl. ¶¶ 20-21, 24-29. Plaintiff alleges that Defendants have "no policy in place to keep moveable objects out of the aisles." Id. ¶ 13.
Plaintiff filed this Action [1] on February 6, 2014. Proof of Service on Defendant Gloria Vejar [5] was filed on March 7, 2014, and on March 11, 2014 [7]. Proof of Service on Defendant Alejandro Flores [6] was filed on March 11, 2014, and on October 23, 2014 [17]. On June 12, 2014, Plaintiff filed requests for Entry of Default against Defendants [9] [10]. On June 13, 2014, Default [11] was entered by the Clerk as to both Defendants. On August 25, 2014, Plaintiff filed this present Application for Default Judgment against Defendants [14]. The hearing was set for October 1, 2014, and the matter was taken under submission [16] by the Court on September 24, 2014. Plaintiff claims that Notice of Plaintiff's Application for Default Judgment was served on Defendants on June 12, 2014, by first class U.S. mail, postage prepaid. Pl.'s Appl. Default J. ("Appl. Def. J.") 2:15-17.
II. LEGAL STANDARD
Default judgment is within the discretion of the district court. Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980); see Fed. R. Civ. P. 55. A party applying to the Court for default judgment must satisfy both procedural and substantive requirements. See Vogel v. Rite Aid Corp., 992 F. Supp. 2d 998, 1005-06 (C.D. Cal. 2014). Procedurally, the requirements set forth in Federal Rules of Civil Procedure 55 and 56, and Local Rule 55-1 must be met. Id. at 1006. Substantively, the Ninth Circuit has provided factors for a district court to consider when determining whether default judgment is proper, including whether the plaintiff has sufficiently established the defendant's liability. Id. at 1005-07.
Additionally, "a district court has an affirmative duty to look into its jurisdiction over both the subject matter and the parties" prior to granting default judgment against a party who has failed to appear in the Action. In re Tuli, 172 F.3d 707, 712 (9th Cir. 1999).
III. ANALYSIS
A. Subject Matter and Personal Jurisdiction
1. Subject Matter Jurisdiction
The Court has subject matter jurisdiction over Plaintiff's claims pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1367(a). See Bahrampour v. Lampert, 356 F.3d 969, 978 (9th Cir. 2004).
2. Personal Jurisdiction
Generally, a defect in personal jurisdiction is a defense that must be asserted or waived by a party. In re Tuli, 172 F.3d at 712 (citing Fed. R. Civ. P. 12(h)(1)). But when a court is considering whether to enter default judgment, the court may dismiss the action or a party sua sponte for lack of personal jurisdiction, for a "judgment entered without personal jurisdiction over the parties is void." Id.
a. Service of Process
A federal court lacks personal jurisdiction over a defendant if service of process is insufficient. U.S. Commodity Futures Trading Comm'n v. Paron Capital Mgmt., LLC, No. 11-4577, 2012 WL 1156396, at *2 (N.D. Cal. Apr. 6, 2012) (citing Omni Capital Int'l v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987)). Service of process is governed by Rule 4 of the Federal Rules of Civil Procedure. Fed. R. Civ. P. 4. Rule 4 permits service of process on an individual within a judicial district of the United States by personal service. Fed. R. Civ. P. 4(e)(2)(A).
The Court finds that Defendant Gloria Vejar was properly served by Plaintiff pursuant to Fed. R. Civ. P. 4(e)(2)(A), as Plaintiff's Proof of Service indicates that Defendant Gloria Vejar was personally served on February 15, 2014, at 3:43 PM in Bellflower, California, by Albert Palomera, a registered California process server who signed the Proof of Service on February 19, 2014. Proof of Service on Def. Vejar 1-2, ECF No. 5; see SEC v. Internet Solutions for Bus. Inc., 509 F.3d 1161, 1166 (9th Cir. 2007) (a signed proof of service "constitutes prima facie evidence of valid service which can be overcome only by strong and convincing evidence" (internal quotation marks omitted)).
The Court finds that Defendant Alejandro Flores ("Defendant Flores") was properly served by Plaintiff pursuant to Fed. R. Civ. P. 4(e)(1), which permits service of process on an individual that complies with "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). Plaintiff's Proof of Service indicates that Defendant Flores was served in California and in compliance with California Civil Procedure. Proof of Service on Def. Flores 1, ECF No. 17.
California Code of Civil Procedure § 415.20(b) allows service of process on an individual by leaving a copy of the summons and complaint at the individual's usual place of business "[i]f a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served." Cal. Civ. Proc. Code § 415.20(b). "[T]wo to three attempts at personal service at a proper place" is sufficient to show "reasonable diligence" under California law. Bein v. Brechtel-Jochim Grp., Inc., 8 Cal. Rptr. 2d 351, 353 (Cal. App. Ct. 1992). Here, the process server established "reasonable diligence" by stating in his Affidavit attached to the Proof of Service that he tried three times to personally serve Defendant Flores at California Carpet Supply, the business that Flores allegedly owns and operates. Proof of Service on Def. Flores 1; Compl. ¶¶ 2-3.
Defendant Flores's "usual place of business" is a "proper place," as a defendant is likely to be present on a regular basis at his usual place of business. Coomes v. Shamji, 260 F. App'x 988, 988 (9th Cir. 2007) (noting that "three previous service attempts" at the defendants' usual place of business "constituted the requisite 'reasonable diligence'" under Cal. Civ. Proc. Code § 415.20(b)).
When service is made under Section 415.20(b), the copy of the summons and complaint left at the person's usual place of business must be left in the presence of a person "apparently in charge" of the office or place of business who is "at least 18 years of age" and who is "informed of the contents thereof." Cal. Civ. Proc. Code § 415.20(b). Plaintiff's Proof of Service states that Defendant Flores's papers were left with Defendant Vejar, and the Proof of Service states that Defendant Vejar was the "Store manager" and "apparently in charge of the office of place of business, at least 18 years of age, . . . [and] informed of the general nature of the papers." Proof of Service on Def. Flores 1.
A store manager is a person "apparently in charge" of a store. See, e.g., Coomes, 260 F. App'x at 988 (stating that service of process was proper under Cal. Civ. Proc. Code § 415.20 when the complaint and summons were "left with the managing agent" of the defendant's "usual place of business" (internal quotation marks omitted)); Ellard v. Conway, 114 Cal. Rptr. 2d 399, 403 (Cal. Ct. App. 2001).
Finally, Section 415.20 requires a copy of the summons and complaint to be mailed "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. Civ. Proc. Code § 415.20(b). California law considers service of process "complete on the 10th day after the mailing." Cal. Civ. Proc. Code § 415.20(b). Here, Plaintiff's Proof of Service indicates that Defendant Flores's papers were mailed to California Carpet Supply on February 17, 2014. Proof of Service on Def. Flores 1. Thus, Plaintiff has provided sufficient evidence to show that service of process on Defendant Flores was proper and complete on February 27, 2014. See Cal. Civ. Proc. Code § 415.20(b); Fed. R. Civ. P. 4(m); see also Hamilton Beach Brands, Inc. v. Metric & Inch Tools, Inc.,614 F. Supp. 2d 1056 (C.D. Cal. 2009); Stafford v. Mach, 75 Cal. Rptr. 2d 809, 815 (Cal. Ct. App. 1998).
b. Personal Jurisdiction
Plaintiff does not state the residence, domicile, or citizenship of Defendant Vejar or Defendant Flores. See Compl. ¶¶ 1-4. Nevertheless, personal jurisdiction is proper over Defendant Vejar because she was properly served in California by personal service. Proof of Service on Def. Vejar 1; Burnham v. Sup. Ct. Cal., Cnty. Marin, 495 U.S. 604, 628 (1990) (holding that personal jurisdiction based on in-state personal service of process on the defendant comports with due process); Lu v. China Bowl, No. C-07-04951, 2008 WL 191193, at *1 (N.D. Cal. Jan. 22, 2008) (noting that the "traditional grounds for personal jurisdiction" include when a defendant is served in the forum state).
Defendant Flores has sufficient contacts with California to be subject to general personal jurisdiction because Defendant Flores owns and operates a business located in California, as well as owns the California property where the business is located. Compl. ¶ 2-3. Such contacts with California are "continuous and systematic" such that Defendant Flores should expect to be subject to the jurisdiction of courts in California. Amini Innovation Corp. v. JS Imports, Inc., 497 F. Supp. 1093, 1101 (C.D. Cal. 2007) (citing Perkins v. Benguet Consolidated Mining Co., 432 U.S. 437, 445 (1952)). Additionally, Plaintiff's claims "arise out of or relate to" Defendant Flores's "purposefully directed" contacts with California, his property and business located in California. Thus, Defendant Flores would also be subject to the specific personal jurisdiction of this Court. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472-73 (1985). B. Procedural Requirements
Upon reviewing Plaintiff's Application, the Court finds that Plaintiff has satisfied the applicable procedural requirements for entry of default judgment. See Fed. R. Civ. P. 54, 55; C.D. Cal. Civ. L.R. 55-1; Appl. Def. J. 1-2; Appl. Def. J., Potter Decl. ¶ 2. C. Substantive Factors
Whether to grant or deny default judgment is a matter within the court's discretion. Vogel, 992 F. Supp. 2d at 1005. The Ninth Circuit established seven factors, discussed below, to assist a court in determining whether default judgment is substantively appropriate. Eitel v. McCool, 782 F.2d 1470, 1472-73 (9th Cir. 1986). In evaluating a motion for default judgment, a court deems the complaint's factual allegations, other than those relating to the amount of actual damages, to be true. Derek Andrew, Inc. v. Poof Apparel Corp., 528 F.3d 696, 702 (9th Cir. 2008). Here, the Court finds that the Eitel factors weigh in favor of default judgment against Defendant Vejar.
1. Prejudice to Plaintiff
The first factor considers the extent to which the plaintiff will suffer prejudice if a default judgment is not entered. Vogel, 992 F. Supp. 2d at 1007. As Plaintiff has argued, absent default judgment, Plaintiff will be without a remedy for the past discrimination he has experience, and will be unable to prevent future discrimination by Defendants. This factor weighs in favor of default judgment. See id.
2. & 3. Merits of Substantive Claim &
Sufficiency of Complaint
The second and third Eitel factors combined "require that plaintiff's allegations state a claim on which [it] may recover." Vogel, 992 F. Supp. 2d at 1007. A court must find that "the unchallenged facts constitute a legitimate cause of action" to properly grant default judgment for the plaintiff. Vogel, F. Supp. 2d at 1005. Plaintiff's Complaint pleads three causes of action: discrimination in violation of the ADA, the Unruh Act, and the CDPA. Compl. 4-6. Plaintiff's Application for Default Judgment requests injunctive relief under the ADA claim, statutory damages under the Unruh Act claim, and attorney fees under either the ADA or the Unruh Act. Appl. Def. J. 2:8-14; Appl. Def. J. P&A 2:13-24, 6:2-13, 9:1-7. Because Plaintiff does not request any relief under the CDPA, Plaintiff's CDPA claim will not be discussed.
a. ADA Claim
The ADA prohibits discrimination "on the basis of disability in the full and equal enjoyment of the . . . facilities . . . 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). "To prevail on a Title III discrimination claim, the plaintiff must show that (1) [he] 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 his disability." Vogel, 992 F. Supp. 2d at 1007 (quoting Molski v. M.J. Cable, Inc., 481 F.3d 724, 730 (9th Cir.2007)).
A plaintiff must also have Article III standing to bring an ADA claim. Chapman v. Pier 1 Imps. (U.S.) Inc., 631 F.3d 939, 946-47 (9th Cir. 2011). The Court finds that Plaintiff has standing, as Plaintiff has alleged facts showing an injury in fact, that the injury is traceable to Defendants' challenged conduct, and that the injury can be redressed by a favorable judicial judgment. Vogel, 992 F. Supp. 2d at 1008; see Compl. ¶¶ 11-15, 17-23.
i. Disabled Under the ADA
The ADA defines disability as "[a] physical or mental impairment that substantially limits one or more major life activities . . .[,] a record of such an impairment[,] or being regarded as having such an impairment." 42 U.S.C. § 12102(1). A "major life activity" under the ADA includes walking and standing. 42 U.S.C. § 12102(2)(A). Here, Plaintiff has alleged that he is a paraplegic who cannot walk and who must use a wheelchair for mobility. Compl. ¶ 1; see Appl. Def. J. 4:12-17; Appl. Def. J., McComb Decl. ¶ 2. Plaintiff has sufficiently alleged facts showing that he is "disabled within the meaning of the ADA." Vogel, 992 F. Supp. 2d at 1007.
ii. Public Accommodation
Plaintiff alleges that Defendants own the property at issue, that Defendant Flores owns and operates the Carpet store, and that the Carpet store is a business open to the public. Compl. ¶¶ 2-3, 9. Such facts are sufficient to show that Defendants are individuals who own or operate a place of public accommodation, as a "sales establishment" is a public accommodation under the ADA. Vogel, 992 F. Supp. 2d at 1007; 42 U.S.C. § 12181(7)(E).
iii. Denied Full and Equal Enjoyment
Plaintiff alleges sufficient facts to show that he "was denied public accommodations by the defendant because of his disability." Vogel, 992 F. Supp. 2d at 1007. Plaintiff alleges that he was denied access to the Carpet store, a public accommodation, because of his disability, which includes an inability to walk. Compl. ¶¶ 10-15, 21, 23. Plaintiff could not enter the Carpet store because he could not navigate the stairs at the entrance in a wheelchair. Id. Plaintiff alleges that he was not able to enter the store at all due to the stairway entrance, thus showing that he was denied "full and equal" access to the Carpet store. Compl. ¶¶ 11-12; Appl. Def. J., McComb Decl. ¶¶ 3-5.
Plaintiff alleges that his injury is due to architectural barriers on the property where the Carpet store is located. Compl. ¶¶ 9-15. Under the ADA, it is discriminatory to fail to "remove architectural barriers . . . where such removal is readily achievable." 42 U.S.C. § 12182(b)(2)(A)(iv).
iv. Architectural Barriers Claim
An "ADA architectural barriers claim" requires a showing of two additional elements: that "(1) the existing facility at the defendant's place of business [or property] presents an architectural barrier prohibited under the ADA and (2) the removal of the barrier is readily achievable." Vogel, 992 F. Supp. 2d at 1008. The ADA Accessibility Guidelines "provide[] the standard for determining a violation of the ADA." Martinez v. Columbia Sportswear USA Corp., 859 F. Supp. 2d 1174 (E.D. Cal. 2012).
Here, Plaintiff alleges facts showing that the Carpet store is an existing place of business with a stairway at its entrance, Compl. ¶ 23, and claims that such an architectural barrier is in violation of the 1991 ADA Accessibility Guidelines ("ADAAG"), codified as amended at 28 C.F.R., Part 36, App. D § 4.3.2, which requires an accessible path of travel free from stairs or steps. Compl. ¶¶ 17-22. Plaintiff also alleges that the Carpet store's aisles are more narrow than the minimum 36-inches width required by the 1991 ADAAG §§ 4.3.3 and 403.5.1. Compl. ¶¶ 20-21. Because Plaintiff has alleged at least two violations of the ADAAG, Plaintiff has shown that Defendants' business has "architectural barriers prohibited by the ADA." Vogel, 992 F. Supp. 2d at 1008.
The 1991 ADA Accessibility Guidelines (1991 ADAAG) state that "[a]t least one accessible route shall connect accessible buildings, facilities, elements, and spaces that are on the same site." 1991 ADAAG § 4.3.2(2), codified as amended at 28 C.F.R., Pt. 36, App. D § 4.3.2(2), available at http://www.ada.gov/1991standards/adastd94-archive.pdf. The 1991 ADAAG also state that "[i]f an accessible route has changes in level greater than 1/2 in[.] (13 mm), then a curb ramp, ramp, or platform lift . . . shall be provided," as "[a]n accessible route does not include stairs, steps, or escalators." Id. § 4.3.8. Finally, the ADAAG requires "a minimum clear width of an accessible route" to be 36 inches except at doors. Id. § 4.3.3.
Plaintiff argues that he does not have to show that "the removal of the barrier is readily achievable," because Defendants have the burden to plead and prove that the removal of an architectural barrier is not "readily achievable" as an affirmative defense. Appl. Def. J. P&A 5:10-21.
"An action is 'readily achievable' if it is 'easily accomplishable and able to be carried out without much difficulty or expense.'" Hubbard v. Rite Aid Corp., 433 F. Supp. 2d 1150, 1167-68 (S.D. Cal. 2006) (quoting 42 U.S.C. § 12181(9)). "In determining whether an action is 'readily achievable,' the following four factors are considered: A) the nature and cost of the action needed under this chapter; B) the overall financial resources of the facility or facilities involved in the action; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such action upon the operation of the facility; C) the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities; and D) the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative or fiscal relationship of the facility or facilities in question to the covered entity." Id. at 1167-68 (citing 42 U.S.C. § 12181(9)).
The Ninth Circuit has not decided which party has the burden of proving that removal of an architectural barrier is readily achievable. Moore v. Robinson Oil Corp., No. 12-16536, 2014 WL 5286518 (9th Cir. Oct. 16, 2014). The majority of federal courts, and the majority of district courts in this Circuit, have held that the "readily achievable" element is an affirmative defense for which the defendant bears the ultimate burden of persuasion. See Vogel, 992. F. Supp. 2d at 1010; Hubbard v. Rite Aid Corp., 433 F. Supp. 2d 1150, 1168 (S.D. Cal. 2006). The majority of district courts apply the Tenth Circuit's burden-shifting scheme, which requires the plaintiff to bear the initial burden of producing evidence that supports a finding that removal is readily achievable, and which only then shifts the ultimate burden of persuasion to the defendant. See Vogel, 992. F. Supp. 2d at 1010 (citing Colo. Cross Disability v. Hermanson Family, Ltd., 264 F.3d 999 (10th Cir. 2001)).
Here, Plaintiff does not expressly argue or claim that removal of Defendants' unlawful architectural barriers would be "readily achievable." See Appl. Def. J. P&A 5:10-21. Plaintiff cites to Vogel v. Rite Aid Corp., 992 F. Supp. 2d 998 (C.D. Cal. 2014) and Wilson v. Haria & Gogri Corp., 479 F. Supp. 2d 1127 (E.D. Cal. 2007) for Plaintiff's contention that if a defendant does not appear in an action, the plaintiff does not have to show any evidence that removal of architectural barriers is readily achievable. Appl. Def. J. P&A 5:10-21. The Court rejects this contention "especially in the context of a default judgment proceeding," and will instead follow the "overwhelming majority of federal courts that apply the burden-shifting framework of Colo. Cross." Sceper, No. 09-0801, 2009 WL 3763823, at *3 (E.D. Cal. Nov. 3, 2009). As the district court stated in Vesecky v. Garick, Inc., "until the Ninth Circuit provides . . . specific instruction to the lower courts," the plaintiff "has the initial burden to produce evidence that removal of the barriers . . . [is] readily achievable . . . ." Vesecky, No. 07-1173, 2008 WL 4446714, at *3 (D. Az. Sept. 30, 2008).
Vogel does not support Plaintiff's contention; the plaintiff in Vogel did offer evidence that removal of the barriers at issue was readily achievable. 992 F. Supp. 2d at 1011. Wilson appears at first glance to support Plaintiff's contention, but it is significant that Wilson was not a default-judgment case: the defendant in Wilson had appeared in the action and had failed to assert the "readily achievable" defense in its Answer, thereby clearly waiving that defense. 479 F. Supp. 2d at 1133. Thus, Wilson does not stand for the rule that if a defendant fails to appear in an action, the plaintiff does not have to provide evidence that removal of architectural barriers is readily achievable; instead, Wilson stands for the principle that when a defendant does appear and fails to assert in his answer or responsive pleading that removing a barrier is not readily achievable, the plaintiff need not provide evidence on that issue because the defendant has already affirmatively communicated that the issue is not contested. See id. at 1133 n.7 (noting that plaintiff need not provide evidence regarding barrier removal "where such evidence would be unnecessary, given defendant's waiver" (emphasis added)).
The Ninth Circuit declined to apply the Tenth Circuit's burden-shifting scheme to barrier removal in historic buildings because ADAAG 4.1.7 requires defendants to consult with the State Historic Preservation Officer prior to making any alterations to historic buildings. Molksi v. Foley Estates Vineyard & Winery, LLC, 531 F.3d 1043, 1048 (9th Cir. 2008). The Ninth Circuit reasoned that the requirement in ADAAG 4.1.7 placed the burden of showing that barrier removal was "readily achievable" on the defendant because the defendant was the "party with the best access to information regarding the historical significance of the building." Id. Though the Ninth Circuit stated in its opinion that the "congressional intent behind the ADA support[s] placing the burden of production on the defendant," id., since Molski, district courts in this Circuit have refused to apply Molski outside the historic-building context, see, e.g., Sceper v. Trucks Plus, No. 09-0801, 2009 WL 3763823, at *3 (E.D. Cal. Nov. 3, 2009); Vesecky v. Garick, Inc., No. 07-1173, 2008 WL 4446714, at *3 (D. Ariz. Sept. 30, 2008).
Plaintiff has provided some evidence that removal of the Carpet store's architectural barriers is "readily achievable." Plaintiff provides photographs of the aisles inside the Carpet store, which show some of the "moveable objects" that are obstructing the pathways. See Appl. Def. J., Ex 4. The photographs strongly suggest that simply moving the "moveable objects" would be readily achievable. See Appl. Def. J., Ex 4.
The photographs of the entrance-way steps do not show whether installing a ramp or a lift would be "readily achievable." See Appl. Def. J., Ex 4. However, Plaintiff alleges in its Complaint that "failure to remove these barriers was intentional because: . . . had the defendants intended any other configuration, they had the means and ability to make the change." Compl. ¶ 14 (emphasis added). This allegation is sufficient to meet Plaintiff's burden of production. See Vogel, 992 F. Supp. 2d at 1011 (finding that plaintiff met its burden of production by alleging that defendant knew about the architectural barriers and had the financial resources to remove the barriers without difficulty or expense); Sceper, 2009 WL 3763823, at *4 (finding that the plaintiff's bare allegation that "pursuant to [the ADA and ADAAG], Defendants are required to remove architectural barriers to their existing facilities" was sufficient to meet the burden of production). Thus, the Court finds that Plaintiff's factual allegations support a meritorious ADA claim.
To protect Defendants in this default-judgment context, any injunctive relief will be limited to requiring compliance with the ADAAG, which will protect Defendants from having to remove architectural barriers whose removal is not "readily achievable," as defined by the ADAAG. See 28 C.F.R. § 36.304(a); see, e.g., Sceper, 2009 WL 3763823, at *4.
ii. Unruh Act & CDPA Claims
A violation of the ADA is a violation of the Unruh Act, Cal. Civ. Code § 51(f), and the CDPA, Cal. Civ. Code § 54.1(d). Because Plaintiff alleges a meritorious ADA claim, Plaintiff has sufficiently alleged a meritorious claim under both the Unruh Act and the CDPA. See Vogel, 992 F. Supp. 2d at 1012; Compl. ¶¶ 24-26.
Factors two and three weigh in favor of default judgment.
4. Sum of Money at Stake in Action
Default judgment is disfavored when a large amount of money is involved and is unreasonable in light of the potential loss caused by the defendant's actions. Vogel, 992 F. Supp. 2d at 1012. Plaintiff's requested judgment of $6,225, plus the costs to Defendants of complying with the requested injunctive relief, is not a "large amount of money," nor is it "unreasonable" in light of Plaintiff's injury. See, e.g., id.
5. Disputed Material Facts
Because Defendants have failed to respond or appear in this action, there is no possibility of a dispute concerning material facts, as all facts alleged in the Complaint, except those relating to the amount of actual damages, are deemed admitted by the defendant once default has been properly entered against the defendant. Geddes v. United Fin. Grp., 559 F.2d 557, 560 (9th Cir. 1977); see Fed. R. Civ. P. 8(b)(6). This factor weighs in favor of default judgment. See, e.g., Vogel, 992 F. Supp. 2d at 1012-13.
6. Excusable Neglect
There is no indication that Defendants have defaulted due to excusable neglect. Plaintiff served Defendants properly and has also mailed Defendants a copy of this Application for Default Judgment. Appl. Def. J. 2. To date, Defendants have not appeared. This factor weighs in favor of default judgment. See, e.g., Moroccanoil, 847 F. Supp. 2d at 1202.
7. Policy Favoring Decisions on the Merits
While cases "should be decided upon their merits whenever reasonably possible," Eitel, 782 F.2d at 1472, when a party, like Defendants, has failed to appear or respond in an action, default judgment may be the only just means to remedy a violation of rights, see Moroccanoil, 847 F. Supp. 2d at 1203. This factor does not weigh against default judgment.
In light of the Eitel factors, granting default judgment against Defendants is appropriate. D. Requested Relief
The Court has "wide latitude" and discretion in determining the amount of damages and other relief to award upon default judgment. Elektra Entm't Grp. Inc. v. Crawford, 226 F.R.D. 388, 394 (C.D. Cal. 2005) (citing James v. Frame, 6 F.3d 307, 310 (9th Cir. 1993)). Monetary damages are appropriate in a default judgment if the amount is a liquidated sum or capable of mathematical calculation, such as when statutory damages are elected; in such a case, the actual amount of monetary damages need not be "proved up." Davis v. Fendler, 650 F.2d 1154, 1161 (9th Cir. 1981).
Here, Plaintiff requests $4,000 in statutory damages under the Unruh Act, $2,225 in attorney fees and costs under the Unruh Act or 42 U.S.C. § 12205, and injunctive relief under the ADA or the Unruh Act. Compl. 7; Appl. Def. J. 2:8-14, 6:8-12.
1. Statutory Damages
To recover statutory damages under the Unruh Act, Plaintiff must show that he was denied by Defendants "full and equal access" to the Carpet store. Cal. Civ. Code § 55.56(a); see Vogel, 992 F. Supp. 2d at 1014; Hubbard v. Twin Oaks Health & Rehab. Ctr., 408 F. Supp. 2d 923, 932 (E.D. Cal. 2004). "A plaintiff is denied full and equal access only if the plaintiff personally encountered the violation on a particular occasion, or the plaintiff was deterred from accessing a place of public accommodation on a particular occasion." Cal. Civ. Code § 55.56(b).
Here, Plaintiff has shown that in October 2013, Plaintiff personally encountered the Carpet store's stairway entrance that denied him access to the Carpet store, which violates the ADA and thus also the Unruh Act. Compl. ¶¶ 8-12. Plaintiff is therefore entitled to recover his requested $4,000 in statutory damages. Cal. Civ. Code § 52(a).
2. Attorney Fees
Plaintiff may recover reasonable attorney fees under Chapter 126 of Title 42 of the U.S. Code, which states that the Court may, in its discretion, allow the prevailing party a "reasonable attorney's fee, including litigation expenses and costs" for a violation of Chapter 126, which includes Plaintiff's ADA claim made pursuant to 42 U.S.C. § 12182. 42 U.S.C. § 12205. Plaintiff may also recover attorney fees, "as determined by the Court," pursuant to the Unruh Act. Cal. Civ. Code § 52(a); see Hubbard, 406 F. Supp. 2d at 1098.
Local Rule 55-3 states that, in the context of a default judgment, when an applicable statute provides for the recovery of "reasonable" attorneys' fees, the fees are to be calculated pursuant to the schedule set forth in Rule 55-3. Cal. C.D. Civ. L.R. 55-3; Vogel, 992 F. Supp. 2d at 1016. Local Rule 55-3 also states that an attorney "claiming a fee in excess of this schedule may file a written request at the time of entry of the default judgment to have the attorney's fee fixed by the Court," and the Court "shall hear the request and render judgment for such fee as the Court may deem reasonable." Cal. C.D. Civ. L.R. 55-3.
Plaintiff has made a written request to the Court asking for $2,225 in attorneys' fees. Appl. Def. J. 9-10. Pursuant to Local Rule 55-3, the Court will consider this request. Cal. C.D. Civ. L.R. 55-3. Plaintiff argues that "[b]ecause the sole remedy under [a Title III ADA claim] is equitable, one cannot calculate the 'amount of judgment to arrive at a fee award,'" as required by the Rule 55-3 fee schedule. Appl. Def. J. P&A 9:8-22. Plaintiff also argues that the Local Rule 55-3 fee schedule is inappropriate in "small dollar civil rights cases" because the fee schedule "creates a proportionality rule between damage recovery and attorney fee award," which, Plaintiff claims, is against public policy and has been rejected by the Supreme Court in the context of civil rights cases. Id. at 9:23-10:12 (citing City of Riverside v. Rivera, 477 U.S. 561, 578 (1986)).
Plaintiff's arguments are persuasive and supported by case law. In Blackwell v. Foley, the district court acknowledged that damages under the ADA are "always zero," and "damages are not considered the primary purpose of California laws protecting physically disabled persons." 724 F. Supp. 2d 1068, 1077 (N.D. Cal. 2010). The district court explained that "[i]f fees were limited by the amount of damages, no matter how meritorious the clients' claims might be, attorneys simply would not take these cases." Id.
Such reasoning is consistent with City of Riverside v. Rivera, in which the Supreme Court stated that, due to the nature of civil rights actions, it is inappropriate in such actions to limit a plaintiff's fee award to a "rule of proportionality" that depends on the amount of damages recovered. 477 U.S. 561, 574-80. The Supreme Court stated that lawyers litigating successful civil rights cases should be awarded "for all time reasonably expended on a case." Id. at 578-80. As such, the Court will award Plaintiff a "reasonable" attorney fee. See id.
The Ninth Circuit uses the lodestar method to determine "reasonable attorneys' fees." Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 978 (9th Cir. 2008). The lodestar method calculates a "reasonable fee" by multiplying "the number of hours reasonably expended" by "a reasonable hourly rate." Antoninetti v. Chipotle Mexican Grill, Inc., No. 06-CV-02671-BTM-JLB, 2014 WL 4854275, at *2 (S.D. Cal. Sept. 29, 2014) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). The Court finds that the 4.2 hours expended on this case, the $440 in filing fees and service costs, and the $425 per-hour rate charged by Plaintiff's attorney are reasonable. See Appl. Def. J., Potter Decl. ¶¶ 1, 5, 7; see, e.g., Arroyo v. Svela, No. 10-7814, 2012 WL 3308427, at *2 (C.D. Cal. Aug. 13, 2012) (finding the same attorney's $425 per-hour fee reasonable due to extensive experience in a specialized field, and awarding $48,660 in attorneys' fees and costs in a similar case where the plaintiff was awarded injunctive relief under the ADA and $4,000 in statutory damages under the Unruh Act).
The Court will therefore award Plaintiff $2,225 in attorney fees and costs pursuant to 42 U.S.C. § 12205 and Cal. Civ. Code § 52(a).
3. Injunctive Relief
Plaintiff seeks injunctive relief in the form of an Order "compelling defendants to comply with the Americans with Disabilities Act and the Unruh Civil Rights Act." Compl. 7 ¶ 1. The Court has authority to grant injunctive relief under both the Unruh Act and the ADA. Cal. Civ. Code § 52.1(b); 42 U.S.C. § 12188. Plaintiff need not show the prerequisites generally required for injunctive relief "when an injunction is sought to prevent the violation of a federal statute [that] specifically provides for injunctive relief." Moeller v. Taco Bell Corp., 816 F. Supp. 2d 831, 859 (N.D. Cal. 2011) (quoting Antoninetti v. Chipotle Mexican Grill, Inc., 643 F.3d 1165, 1175-76 (9th Cir. 2010)). "Under the ADA, injunctive relief is proper when architectural barriers at the defendant's establishment violate the ADA and the removal of the barriers is readily achievable." Vogel, 992 F. Supp. 2d at 1015; see 42 U.S.C. § (b)(2)(A)(iv). As discussed above, Plaintiff has established these elements. See Wilson, 479 F. Supp. 2d at 1167. Thus, the Court will grant Plaintiff's requested injunctive relief, as specified below.
IV. CONCLUSION
Based on the foregoing, the Court GRANTS Plaintiff's Application for Default Judgment [14] and GRANTS the following relief:
1. Plaintiff is awarded $4,000.00 in statutory damages pursuant to Cal. Civ. Code § 52(a);
2. Plaintiff is awarded reasonable attorney fees and costs in the amount of $2,225.00 pursuant to 42 U.S.C. § 12205 and Cal. Civ. Code § 52(a);
3. Defendants are ORDERED to provide handicap-accessible paths of travel in compliance with the Americans with Disabilities Act Accessibility Guidelines at the property located at 16637 Lakewood Blvd., Bellflower, California.
IT IS SO ORDERED.
DATED: October 28, 2014
RONALD S.W. LEW
HONORABLE RONALD S.W. LEW
Senior U.S. District Judge