Opinion
23-cv-03897-DMR
07-09-2024
RICHARD SEPULVEDA, Plaintiff, v. ENCARNACION PEREZ, et al., Defendants.
REQUEST FOR REASSIGNMENT; REPORT AND RECOMMENDATION RE MOTION FOR DEFAULT JUDGMENT RE: DKT. NO. 16
DONNA M. RYU CHIEF MAGISTRATE JUDGE
Plaintiff Richard Sepulveda filed a complaint alleging that Defendants Encarnacion Perez, Vicente Perez, and EP Real Estate Holdings LLC (collectively “Defendants”) violated the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq. and state law. Sepulveda now moves for default judgment. [Docket No. 16 (“Mot.”).] Defendants have not appeared or consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C. § 636(c). Therefore, the court issues this Report and Recommendation and reassigns this case to a district judge for final disposition, with the recommendation that Plaintiff's motion be GRANTED.
I. BACKGROUND
Sepulveda is a physically disabled person with limited use of his legs due to degenerative disc disease in his back and arthritis. Compl. ¶ 6. He uses a walker and sometimes must sit in the seat of his walker due to knee pain. Id. He alleges that at all times relevant to the complaint, Defendants Encarnacion Perez and Vicente Perez (“the Perezes”) owned the business El Malecon Mariscos Restaurant (“El Malecon”) located at 3829 Foothill Blvd., Oakland, California, and that Defendant EP Real Estate Holdings LLC (“EP Real Estate”) owned the property where the business is located. Id. at ¶¶ 3, 7-8.
Sepulveda alleges that he visited El Malecon to obtain food services on two occasions: June 24, 2023 and July 26, 2023. Id. at ¶¶ 12, 70. He alleges that he encountered several access barriers during these visits. First, the designated parking space was defective because the paint on the asphalt was faded and “hardly visible.” Compl. ¶ 4(a). The parking space had incomplete signage and no access aisle, it was not on the shortest accessible route to the main entrance, and there was no “van accessible” parking space on the route. Id. Second, the exterior dining area did not offer accessible tables. Id. at ¶ 4(b). The tables lacked the international symbol designating the table for disabled persons and there was not enough space under the tables for Sepulveda's legs. Id. Third, the restroom was not accessible for users of walkers. Id. at ¶ 4(c). The paper towel dispenser was “too high,” the toilet paper dispenser was “in the wrong position,” the pipes under the sink were not wrapped, and the door handle had a round handle that required twisting and grasping. Id. Sepulveda alleges that these barriers interfered with his access to the facilities at the restaurant and continue to deter him from visiting the restaurant. Id. at ¶ 5.
Sepulveda alleges that he lives in Oakland, California approximately six miles from El Malecon and “travels regularly to and through said city on business and pleasure trips.” Id. at ¶ 14. He plans to return to El Malecon when it is made accessible. Id.
Sepulveda filed the complaint on August 3, 2023, asserting the following claims: 1) violation of the ADA; 2) violation of California Health and Safety Code section 19955 et seq.; 3) violation of the Disabled Persons Act, Cal. Civ. Code section 54 et seq.; and 4) violation of the Unruh Civil Rights Act, Cal. Civ. Code section 51 et seq. He served Defendants with the summons and complaint in August 2023, but Defendants did not file a responsive pleading or otherwise appear. The clerk entered default against Defendants on November 14, 2023. [Docket No. 12.]
Sepulveda filed a motion for default judgment on November 27, 2023. The court ordered Sepulveda to file supplemental briefing on the adequacy of service. [Docket No. 23.] Sepulveda filed a supplemental brief as well as amended proofs of service on March 27, 2024. [Docket Nos. 25, 26.] The court found the matter suitable for disposition without oral argument pursuant to Civil Local Rule 7-1(b). [Docket No. 27.]
II. LEGAL STANDARDS
Federal Rule of Civil Procedure 55(b)(2) permits a court to enter a final judgment in a case following a defendant's default. Shanghai Automation Instrument Co. v. Kuei, 194 F.Supp.2d 995, 999 (N.D. Cal. 2001). Whether to enter a judgment lies within the court's discretion. Pepsico, Inc. v. Cal. Sec. Cans, 238 F.Supp.2d 1172, 1174 (C.D. Cal. 2002) (“A defendant's default does not automatically entitle the plaintiff to a court-ordered judgment.” (citing Draper v. Coombs, 792 F.2d 915, 924-25 (9th Cir. 1986))).
Before assessing the merits of a default judgment, a court must ensure the adequacy of service on the defendant, as well as confirm that it has subject matter jurisdiction over the case and personal jurisdiction over the parties. See In re Tuli, 172 F.3d 707, 712 (9th Cir. 1999). If the court finds these elements satisfied, it turns to the following factors (“the Eitel factors”) to determine whether it should grant a default judgment:
(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 decision on the merits.Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986) (citation omitted). In this analysis, “the well-pleaded allegations of the complaint relating to a defendant's liability are taken as true.” Pepsico, Inc., 238 F.Supp.2d at 1175 (citing Televideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987)). Nevertheless, default does not compensate for essential facts not within the pleadings and those legally insufficient to prove a claim. Cripps v. Life Ins. Co. of N. Am., 980 F.2d 1261, 1267 (9th Cir. 1992).
III. ANALYSIS
A. Jurisdiction
Before entering default judgment, a federal court has an “affirmative duty to look into its jurisdiction over both the subject matter and the parties.” In re Tuli, 172 F.3d at 712. Here, the court has both subject matter and personal jurisdiction over the parties.
1. Subject Matter Jurisdiction
Sepulveda alleges disability discrimination in violation of the ADA, 42 U.S.C. § 12101 et seq. The court has federal question jurisdiction over that claim pursuant to 28 U.S.C. § 1331. The court has supplemental jurisdiction over the related state law claims under 28 U.S.C. § 1367(a).
2. Personal Jurisdiction
Personal jurisdiction may be either general or specific. Bristol-Myers Squibb Co. v. Sup. Ct. Cal., San Francisco Cty., 137 S.Ct. 1773, 1780 (2017). “For an individual, the paradigm forum for the exercise of general jurisdiction is the individual's domicile; for a corporation, it is an equivalent place, one in which the corporation is fairly regarded as at home.” Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 924 (U.S. 2011). Absent general jurisdiction, due process requires that the defendant have “certain minimum contacts with [the forum] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.” Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (“International Shoe”) (internal quotations omitted). In evaluating a default judgment motion, the court “accepts the jurisdictional facts pleaded in the complaint as true.” Khraibut v. Chahal, No. 15-cv-04463-CRB, 2021 WL 1164940, at *3 (N.D. Cal. Mar. 26, 2021). Plaintiff did not plead in the complaint that the court has general jurisdiction over all Defendants. Regardless, the court has at least specific jurisdiction.
The Ninth Circuit uses a three-part test to analyze whether a party's “minimum contacts” comport with the doctrine articulated in International Shoe:
(1) The non-resident defendant must purposefully direct his activities or consummate some transaction with the forum or resident thereof; or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws;
(2) the claim must be one which arises out of or relates to the defendant's forum-related activities; and
(3) the exercise of jurisdiction must comport with fair play and substantial justice, i.e. it must be reasonable.Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 802 (9th Cir. 2004). Here, Sepulveda alleges that the Perezes own and operate the business El Malecon located at 3829 Foothill Blvd., Oakland, California, and that EP Real Estate owns the real property on which the business operates. Compl. ¶¶ 1, 3, 4. The allegations in the complaint relate entirely to the business activities of El Malecon. These allegations, taken as true, are sufficient to establish the purposeful availment by Defendants of the privileges of conducting business activities in California, and that Sepulveda's claims arise from Defendants' activities in California. As Defendants have not appeared, Defendants have not met the burden to show that the exercise of personal jurisdiction is not reasonable. See Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 802 (9th Cir. 2004) (determining that the burden of showing jurisdiction is not reasonable rests on the defendant).
Accordingly, the court finds that it has personal jurisdiction over Defendants.
B. Adequacy of Service
“Courts must determine the adequacy of service of process on a motion for default judgment.” Automattic Inc. v. Steiner, 82 F.Supp.3d 1011, 1019 (N.D. Cal. 2015).
1. Encarnacion and Vicente Perez
Rule 4(e)(1) allows for service of an individual 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). Under California law, an individual may be served by substituted service if the summons and complaint “cannot with reasonable diligence be personally delivered to the person to be served.” Cal. Civ. Proc. Code § 415.20(b). “Ordinarily, . . . two or three attempts at personal service at a proper place should fully satisfy the requirement of reasonable diligence and allow substituted service to be made.” Espindola v. Nunez, 199 Cal.App.3d 1389, 1392 (1988) (quotation omitted). Then, a copy of the summons and complaint must be left “at the person's dwelling house, usual place of abode, usual place of business, or usual mailing address” with “a competent member of the household or a person apparently in charge . . . at least 18 years of age, who shall be informed of the contents thereof,” and a copy must be mailed to the same address thereafter. Cal. Civ. Proc. Code § 415.20(b). Service of a summons in this manner is deemed complete on the 10th day after the mailing. Id.
Here, Sepulveda served the Perezes through substituted service. He made three unsuccessful attempts to personally serve the Perezes at their business address, 3829 Foothill Blvd., Oakland, California. [Docket No. 8 (First POS) at 4, 10.] Sepulveda then served the summons and complaint through substituted service on August 25, 2023, and mailed a copy of the summons and complaint via first-class mail to the Perezes at the business address on August 28, 2023. Id. at 4-6, 10-12. However, the proof of service failed to demonstrate that the materials were left with “a person apparently in charge” at the Perezes' usual place of business or that the person was “informed of the contents” of the documents left by the process server in accordance with section 415.20(b); it stated only that the process server “left the summons at the individual's residence or usual place of abode with CHRISTINA BRAINO - EMPLOYEE, a person of suitable age and discretion who resides there.” Id. at 4, 10. On March 4, 2024, the court ordered Sepulveda to file a supplemental brief regarding the adequacy of service on the Perezes. [Docket No. 23.]
On March 22, 2024, the process server executed an amended proof of service that states under penalty of perjury that they left the summons and complaint with “CHRISTIANO BRAINO a person at least 18 years of age apparently in charge at the office or usual place of business of the person served,” and that the process server “informed him/her of the contents of the civil summons and complaint.” [Docket Nos. 25 (Am. Vicente POS) at 1; 25-1 (Am. Encarnacion POS) at 1.] Plaintiff's counsel submitted a supplemental declaration along with the amended proof of service explaining that the original process server executed the amended proof of service in order to provide all the relevant information that they omitted to provide initially. [Docket No. 26 (Second Declaration of Richard Mac Bride, March 27, 2024) at ¶ 1.] The court finds that substituted service on the Perezes was completed on September 7, 2023 pursuant to section 415.20(b) of the California Code of Civil Procedure.
Substitute service is deemed complete on the 10th day after the mailing. Cal. Civ. Proc. Code § 415.20.
2. EP Real Estate
EP Real Estate is a California limited liability company (“LLC”). Rule 4 allows a corporation, partnership, or other unincorporated association to be served “following state law for serving a summons in an action brought in courts of general jurisdiction, where the district court is located or where service is made.” Fed.R.Civ.P. 4(h)(1)(A); Fed.R.Civ.P. 4(e)(1). In turn, California law allows for service of an LLC by personally delivering a copy of the summons and the complaint to “the person designated as agent for service of process.” Cal. Civ. Proc. Code §§ 416.10, 416.30. The agent may be served through substitute service at “his or her office or . . . usual mailing address.” Cal. Civ. Proc. Code § 415.20(a).
Here, the website of the California Secretary of State indicates that EP Real Estate's designated agent for service of process is Elsa Cassandra Castillo, at 4159 Veronica Avenue, Castro Valley, CA 94546. [Docket No. 16-1 (First Declaration of Richard Mac Bride, November 24, 2023) at ¶ 20, Ex. 3 (“EP Real Estate Cert.”).] Plaintiff's process server made four unsuccessful attempts at personal service on Elsa Cassandra Castillo at the listed address. First POS 16. Sepulveda then served the summons and complaint through substituted service on August 16, 2023, and mailed a copy of the summons and complaint via first-class mail to Elsa Cassandra Castillo at the listed address on August 17, 2023. Id. at 16-18. However, the proof of service failed to state that the materials were left with the “person apparently in charge” of the agent's office or mailing address or that the person was “informed of the contents” of the documents left by the process server in accordance with section 415.20(a); it stated only that the process server left the summons with “ENCARNATION CASTILLO - OCCUPANT.” Id. at 16. On March 4, 2024, the court ordered Sepulveda to file a supplemental brief regarding the adequacy of service. [Docket No. 23.]
On March 22, 2024, the process server executed an amended proof of service that states under penalty of perjury that they left the summons and complaint with “ENCARNATION CASTILLO a competent member of the household (at least 18 years of age) at the dwelling house or usual place of abode of the person served and that she was apparently in charge of the office, place of business, or usual mailing address,” and that the process server “informed him/her of the contents of the civil summons and complaint.” [Docket No. 25-2 (Am. EP Real Estate POS) at 1.] Plaintiff's counsel submitted a supplemental declaration along with the amended proof of service explaining that the original process server executed the amended proof of service in order to provide all the relevant information that they omitted to provide initially. Second Mac Bride Decl. at ¶ 1. The court finds that substituted service on the agent of EP Real Estate was completed on August 27, 2023 pursuant to section 415.20(a) of the California Code of Civil Procedure.
C. Application of the Eitel Factors
Having found that the jurisdictional and service requirements are met, the court now turns to the Eitel factors to determine whether default judgment should be granted.
1. Prejudice
Sepulveda argues that, in absence of a default judgment, he will be left without other recourse and will suffer prejudice unless default judgment is entered. Mot. 8. Since Defendants have failed to appear and defend the action, Sepulveda will likely have no other avenue for recovery available to him. See Vogel v. Rite Aid Corp., 992 F.Supp.2d 998, 1007 (C.D. Cal. 2014) (finding prejudice to plaintiff where a defendant sued under the ADA and Unruh Act failed to appear in the action). This factor weighs in favor of granting default judgment.
2. Merits of Plaintiff's Substantive Claims and the Sufficiency of the Complaint
“Under an Eitel analysis, the merits of plaintiff's substantive claims and the sufficiency of the complaint are often analyzed together.” Dr. JKL Ltd. v. HPC IT Educ. Ctr., 749 F.Supp.2d 1038, 1048 (N.D. Cal. 2010). After an entry of default, well-pleaded allegations in the complaint are deemed true, except for the amount of damages. Fair Hous. of Marin v. Combs, 285 F.3d 899, 906 (9th Cir. 2002).
a. ADA
“Title III of the ADA prohibits discrimination 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' with a nexus in interstate commerce.” Oliver v. Ralphs Grocery Co., 654 F.3d 903, 904 (9th Cir. 2011) (quoting 42 U.S.C. §§ 2000a(b), 12182(a)). To prevail on a Title III discrimination claim, a plaintiff must show that (1) they are 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 defendant discriminated against the plaintiff by denying public accommodations because of the plaintiff's disability. Lopez v. Catalina Channel Express, Inc., 974 F.3d 1030, 1033 (9th Cir. 2020).
Unlawful discrimination under the ADA occurs when features of a public accommodation deny equal access to disabled persons:
It shall be discriminatory to subject an individual or class of individuals on the basis of a disability or disabilities of such
individual or class, directly, or through contractual, licensing, or other arrangements, to a denial of the opportunity of the individual or class to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations of an entity.42 U.S.C. § 12182(b)(1)(A)(i). The ADA lists five subsections describing different types of discrimination. 42 U.S.C. § 12182(b)(2)(A)(i)-(v). The subsection at issue in this case is 42 U.S.C. § 12182(b)(2)(A)(iv) (“Section IV”). Discrimination under Section IV includes “a failure to remove architectural barriers, and communication barriers that are structural in nature, in existing facilities, and transportation barriers in existing vehicles and rail passenger cars used by an establishment for transporting individuals . . . where such removal is readily achievable.” Id. Under the ADA, a plaintiff can sue only for injunctive relief, i.e., removal of any barriers. Monetary damages are not available for private plaintiffs. Oliver, 654 F.3d at 905.
To prove discrimination under Section IV, a plaintiff must show a violation of applicable accessibility standards. Moeller v. Taco Bell Corp., 816 F.Supp.2d 831, 847 (N.D. Cal. 2011) (citing Chapman v. Pier 1 Imports (U.S.), Inc., 631 F.3d 939, 945 (9th Cir. 2011) (en banc); Donald v. Cafe Royale, 218 Cal.App.3d 168, 183 (1990)). There are three categories of accessibility requirements under Title III of the ADA-the ‘new construction' provisions . . .; the ‘alteration' provisions . . .; and the ‘readily achievable' provisions.” Moeller, 816 F.Supp.2d at 847. “In the case of newly constructed facilities, compliance with the ADA's antidiscrimination mandate requires that facilities be ‘readily accessible to and usable by individuals with disabilities.'” Chapman, 631 F.3d at 945 (quoting 42 U.S.C. § 12183(a)(1)); see also Moeller, 816 F.Supp.2d at 847. Existing facilities that were altered after January 26, 1992 are also required, “to the maximum extent feasible, to be ‘readily accessible to and useable by' individuals with disabilities.” Moeller, 816 F.Supp.2d at 847 (citing 42 U.S.C. § 12183(a)(2)). “In existing but unaltered facilities, barriers must be removed where it is ‘readily achievable' to do so.” Id.
The ADA defines newly constructed facilities as construction intended for “first occupancy later than 30 months after July 26, 1990,” which was the date the ADA was enacted. 42 U.S.C. § 12183(a)(1); 28 C.F.R. § 36.401(a)(1) (“discrimination for purposes of this part includes a failure to design and construct facilities for first occupancy after January 26, 1993, that are readily accessible to and usable by individuals with disabilities.”).
The Justice Department's ADA Architectural Guidance defines alteration as “a change to a place of public accommodation or a commercial facility that affects or could affect the usability of the building or facility or any part thereof.” Rodriguez v. Barrita, Inc., 10 F.Supp.3d 1062, 1079 (N.D. Cal. 2014) (citing 28 C.F.R. § 36.402 App. A).
To satisfy these standards, buildings with new construction or post-January 1992 alterations must comply with either the 1991 or 2010 ADA Standards for Accessible Design (ADAAG), depending on the date the construction or alterations began. 28 C.F.R. § 36.406. The ADAAG standards “lay out the technical structural requirements of places of public accommodations.” Chapman, 631 F.3d at 945. For existing but unaltered facilities, “discrimination includes ‘a failure to remove architectural barriers . . . where such removal is readily achievable.'” Id. (quoting 42 U.S.C. § 12182(b)(2)(A)(iv)); see also Moeller, 816 F.Supp.2d at 847. 42 U.S.C. § 12181(9).
To prevail on a discrimination claim involving an existing but unaltered facility, the plaintiff must establish that alterations to the challenged barrier were readily achievable-defined as “easily accomplishable and able to be carried out without much difficult or expense,” 42 U.S.C. § 12181-or that access could have been made available “through alternative methods without much difficulty or expense.” Lopez, 974 F.3d at 1034.
i. Disability
The ADA defines a disability as a “physical or mental impairment that substantially limits one or more major life activities of such individual.” 42 U.S.C. § 12102(1)(A). Major life activities include “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.” 42 U.S.C. § 12102(2)(A).
As Sepulveda alleges that he is “limited in the use of his legs” and uses a walker, he has established that he is a disabled person within the meaning of the ADA. See Compl. ¶ 6.
ii. Owns, Operates, or Leases a Public Accommodation
“[A] bakery, grocery store, . . . shopping center, or other sales or rental establishment” is considered a public accommodation under the ADA. 42 U.S.C.A. § 12181(7)(E). Sepulveda alleges that El Malecon is a business that sells food and drink and is a “place of public accommodation.” Compl. ¶¶ 3, 12. He alleges that the Perezes were the “owner, operator, possessor, builder and keeper” of the business at all relevant times. Id. at ¶¶ 1, 3-4, 8. He further alleges that EP Real Estate owns “the real property on which this business is operated.” Id. at ¶¶ 1, 3, 7. Accordingly, he has adequately pleaded that Defendants own, operate, or lease a place of public accommodation.
iii. Discrimination
As noted, to prove discrimination under Section IV, Sepulveda must show a violation of applicable accessibility standards.
Sepulveda alleges on information and belief that the property has “since July 1, 1970, undergone construction and/or ‘alterations, structural repairs, or additions.'” Compl. ¶ 3. Sepulveda alleges no facts about the construction or alteration of the property after January 26, 1993, which would trigger Defendants' obligation to meet either the 1991 or 2010 standards. As Sepulveda has not established the applicability of either of those standards here, the court treats El Malecon as subject to the least restrictive requirements for public accommodations: namely, the requirements for facilities that existed prior to January 26, 1993 and have not been altered. In other words, “Defendants are liable for failing to fix the barriers alleged by [the plaintiff] if and only if (1) the [barrier] constitutes a violation of the 1991 ADAAG Standards, and (2) it is ‘readily achievable' to modify the element to comply with the 2010 ADAAG Standards.” Lane v. Landmark Theatre Corp., No. 16-CV-06790-BLF, 2020 WL 1976420, at *13 (N.D. Cal. Apr. 24, 2020).
Sepulveda alleges three barriers. First, he alleges that the designated parking space was defective. Compl. ¶ 4(a). According to Sepulveda's complaint, the paint on the asphalt marking the dimensions of the parking space was faded and “hardly visible,” the parking space had incomplete signage, there was no access aisle, the parking space was not on the shortest accessible route to the main entrance, and the parking space was not “van accessible.” Id. Sepulveda has sufficiently alleged a violation of the 1991 ADAAG Standards. See ADAAG § 4.6.2 (requiring that the accessible parking space be on “the shortest accessible route of travel from adjacent parking to an accessible entrance”); § 4.6.3 (requiring access aisles); § 4.6.4 (requiring that accessible parking spaces display a sign showing the symbol of accessibility); § 4.6.6 (describing the required dimensions of passenger loading zones); § 4.1.2(5)(b): (“One in every eight accessible [parking] spaces, but not less than one, shall be served by an access aisle 96 in (2440 mm) wide minimum and shall be designated ‘van accessible'”). Sepulveda has also alleged a violation of the 2010 ADAAG Standards. See, e.g., ADAAG § 502.3 (requiring that parking spaces have access aisles); § 208.3.1 (requiring that accessible parking spaces be located on the shortest accessible route from parking to an accessible entrance); § 208.2.4 (requiring one van parking space for every six accessible parking spaces).
The 1991 ADAAG standards cited herein are available at ADA Accessibility Guidelines (ADAAG), U.S. Access Board, https://www.access-board.gov/adaag-1991-2002.html (last visited June 6, 2024).
The 2010 ADAAG standards cited herein are available at ADA Accessibility Standards (2010 Standards), U.S. Access Board, https://www.access-board.gov/ada/doj.html (last visited June 6, 2024).
Second, Sepulveda alleges that the exterior dining area did not offer accessible tables. Compl. ¶ 4(b). He asserts that there was not space under the table for his legs, including knee and toe clearances, and that the tables lacked the international symbol designating the table for disabled persons. Id. This is sufficient to allege a violation of the 1991 ADAAG Standards. See ADAAG § 4.32.3 (“If seating for people in wheelchairs is provided at tables or counters, knee spaces at least 27 in (685 mm) high, 30 in (760 mm) wide, and 19 in (485 mm) deep shall be provided”); § 4.30.7 (requiring that accessible facilities and elements be identified using the international symbol of accessibility). It is also sufficient to allege a violation of the 2010 ADAAG Standards. See, e.g., ADAAG § 306 (requiring sufficient knee and toe clearance).
Third, Sepulveda alleges that the restroom was not accessible for users of walkers. Compl. ¶ 4(c). According to the complaint, the paper towel dispenser was “too high,” the toilet paper dispenser was “in the wrong position,” the pipes under the sink were not wrapped, and the door handle had a round handle that required twisting and grasping. Id. These allegations are sufficient to demonstrate a violation of the 1991 ADAAG Standards. See ADAAG § 4.13.9 (requiring door handles that do not require tight grasping, pinching, or twisting of the wrist to operate); § 4.16.6 (requiring toilet paper dispensers to be installed within reach); § 4.19.4 (requiring hot water and drain pipes under lavatories to be insulated); § 4.27.3 (requiring controls, dispensers, receptables, and other operable equipment to be placed within reach). They also violate the 2010 ADAAG Standards. See, e.g., § 308.2.1 (describing the dimensions required to be within reach of a disabled person); § 309.4 (requiring operable parts that do not require tight grasping, pinching, or twisting of the wrist); § 604.7 (required toiler paper dispenser location); § 606.4 (requiring water supply and drain pipes under lavatories and sinks to be insulated).
Sepulveda therefore has successfully alleged architectural barriers under the ADA. With respect to the removal of the barriers, it is the plaintiff's initial burden to show that removal is “readily achievable.” This is not onerous, at least in the default judgment context. Johnson v. Shri Jai Ranchhodrai, Inc., No. 17-CV-06482-VKD, 2018 WL 5617228, at *7 (N.D. Cal. Oct. 29, 2018); see also Johnson v. Hall, No. 11-cv-2817-GEB, 2012 WL 1604715, at *3 (E.D. Cal. May 7, 2012) (concluding that plaintiff met his burden of production where the complaint's allegation that the barriers “are readily removable” was deemed true on default). Here, Sepulveda alleges that the architectural barriers he identifies “can be simply modified” and removal of the barriers is “readily achievable.” Compl. ¶¶ 27, 30. Under 28 C.F.R. § 36.304(b), examples of readily achievable steps to remove barriers include rearranging tables, installing accessible door hardware, insulating lavatory pipes under sinks, repositioning the paper towel dispenser in a bathroom, and creating designated accessible parking spaces. 28 C.F.R. §§ 36.304(b)(4), (11), (14), (17), (18).
As Sepulveda has adequately alleged both the existence of architectural barriers and that removal of the barriers is readily achievable, he has sufficiently pleaded a claim for disability discrimination under the ADA.
b. Unruh Civil Rights Act
The Unruh Act provides that “[a] violation of the right of any individual under the [ADA] shall also constitute a violation of” the Unruh Act. Cal. Civ. Code § 51(f). Since Sepulveda has established a claim against Defendants as to architectural barriers under the ADA, he also has established a claim under the Unruh Act based on those barriers. Accordingly, the second and third Eitel factors are satisfied.
3. Sum of Money at Stake in the Action
The fourth Eitel factor focuses on the amount of money at issue in the action. “[C]ourts should be hesitant to enter default judgment in matters involving large sums of money.” Yelp Inc. v. Catron, 70 F.Supp.3d 1082, 1099-1100 (N.D. Cal. 2014); see also Bd. of Tr. v. Core Concrete Const., Inc., No. 11-cv-02532-LB, 2012 WL 380304, at *1, *4 (N.D. Cal. Jan. 7, 2012) (“When the money at stake in the litigation is substantial or unreasonable, default judgment is discouraged.”). However, when “the sum of money at stake is tailored to the specific misconduct of the defendant, default judgment may be appropriate.” Id. “Damages are not recoverable under Title III of the ADA-only injunctive relief is available for violations of Title III.” Wander v. Kaus, 304 F.3d 856, 858 (9th Cir. 2002). A plaintiff can recover statutory damages for an Unruh Act claim if a violation of construction-related accessibility standards “denied the plaintiff full and equal access to the place of public accommodation on a particular occasion.” Cal. Civ. Code § 55.56(a). The amount of damages provided under the Unruh Act for a single violation is “a maximum of three times the amount of actual damage but in no case less than four thousand dollars.” Cal. Civ. Code § 52(a).
Sepulveda seeks statutory damages of $8,000 under the Unruh Act, as well as $2,660 in attorneys' fees and $1,007 in costs. Mot. 15. The total amount requested is thus $11,667. Plaintiff's request is authorized by the applicable statutes and the complaint tailors the amount requested to the conduct alleged. See Johnson v. Baglietto, No. 19-CV-06206-TSH, 2020 WL 3065939 (N.D. Cal. May 21, 2020), report and recommendation adopted, No. 19-CV-06206-HSG, 2020 WL 3060902 (N.D. Cal. June 9, 2020), at *6 ($13,715 is reasonable in ADA default judgment context); Vogel v. Rite Aid Corp., 992 F.Supp.2d 998, 1012 (C.D. Cal. 2014) (finding $13,739.20 was reasonable and collecting other cases where $10,119.70 and $12,000.00 were reasonable and “a relatively small award of damages” in similar ADA cases). Accordingly, this factor weighs in favor of default judgment.
4. Possibility of Dispute Concerning Material Facts
When a party “fail[s] to appear or otherwise respond . . . in defaulting, defendants are deemed to have admitted all well-pleaded factual allegations contained in the complain[t].” DirecTV v. Hoa Huynh, 503 F.3d 847, 851 (9th Cir. 2007) (citing Fed.R.Civ.P. 55(a)). All allegations in the complaint are taken as true, except for those regarding damages. TeleVideo Sys., Inc., 826 F.2d at 917-18.
Here, the possibility of a dispute as to material facts is unlikely. Defendants were each served with the complaint but failed to appear and the clerk accordingly entered default against them. Sepulveda also served Defendants with this motion for default judgment. [Docket No. 16-3 (Proof of Service of MDJ).] As set forth above, Sepulveda's well-pleaded allegations are presumed to be true, and he adequately alleged an ADA and Unruh Act claim against Defendants. The record reflects Defendants' silence despite notice of the proceedings and several opportunities to respond. The court finds that there is little possibility of dispute as to material facts.
5. Default Due to Excusable Neglect
The sixth Eitel factor considers whether a defendant's default resulted from excusable neglect. Eitel, 782 F.2d at 1472. When a defendant is properly served with the complaint and the motion for default judgment, an entry of default judgment is favored. W. States Insulators & Allied Workers Pension Plan v. Jenco Mech. Insulation, Inc., No. 11-cv-0175 EMC, 2012 WL 1123229, at *3 (N.D. Cal. Apr. 3, 2012).
As detailed above, Sepulveda effected service of the summons and complaint on Defendants in August and September 2023. He also served them with this motion on November 27, 2023. Given the length of time that has elapsed since service on Defendants, it is unlikely that their failure to respond is due to excusable neglect. This factor weighs in favor of granting default judgment.
6. Policy of Favoring a Decision on the Merits
Despite the policy of favoring a decision on the merits, default judgment is appropriate when a defendant refuses to litigate a case. Fed.R.Civ.P. 55(b). “Defendant's failure to answer Plaintiffs' Complaint makes a decision on the merits impractical, if not impossible.” PepsiCo, Inc, 238 F.2d at 1177. Here, Defendants did not answer the complaint or otherwise appear in this action. A decision on the merits is impractical as Defendants have refused to litigate this action.
On balance, the Eitel factors weigh in favor of granting Sepulveda's motion for default judgment.
D. Remedies
Although the factual contentions of the operative complaint are accepted as true when determining the liability of a defaulting defendant, this rule does not apply to statements regarding damages. See TeleVideo, 826 F.2d at 917-18. To recover damages after securing a default judgment, a plaintiff must prove the relief it seeks through testimony or written affidavit. Bd. of Trs. of the Boilermaker Vacation Trust v. Skelly, Inc., 389 F.Supp.2d 1222, 1226 (N.D. Cal. 2005); see PepsiCo, Inc., 238 F.Supp.2d at 1175 (citing Televideo Sys., Inc., 826 F.2d at 917-18).
1. Statutory Damages
A plaintiff can recover statutory damages for an Unruh Act claim if a violation of construction-related accessibility standards “denied the plaintiff full and equal access to the place of public accommodation on a particular occasion.” Cal. Civ. Code § 55.56(a). The Unruh Act authorizes statutory damages of “no less than four thousand dollars ($4,000)” for each occasion on which a plaintiff was denied equal access. Cal. Civ. Code § 52(a). “The litigant need not prove she suffered actual damages to recover the independent statutory damages of $4,000.” Molski v. M.J. Cable, Inc., 481 F.3d 724, 731 (9th Cir. 2007); see also Botosan v. Paul McNally Realty, 216 F.3d 827, 835 (9th Cir. 2000) (explaining that “[t]he statute lists actual damages and statutory damages as two separate categories of damages that a plaintiff may recover”).
Sepulveda alleges he visited El Malecon on June 24, 2023 and July 26, 2023. Compl. ¶ 12. He asks the court to award him a total of $8,000 in statutory damages, representing $4,000 each for the two visits. Mot. 17-18. Sepulveda does not explain why he returned to El Malecon only a month later despite knowing of the architectural barriers. Nor does he allege that he believed the barriers would be removed after his first visit; for example, there is no evidence that he ever raised the issue of the barriers with any of the employees or owners of the business. In addition, Sepulveda is a sophisticated plaintiff who had filed 39 complaints alleging a construction-related accessibility claim during the 12 months prior to filing this complaint. Compl. ¶ 70. “It is not reasonable to award a sophisticated ADA plaintiff statutory damages for [multiple] separate visits when they have done nothing to communicate the access concerns to the defendant.” Castillo- Antonio v. Mata, 549 F.Supp.3d 1050, 1052 (N.D. Cal. 2021). The court has discretion to award statutory damages for a fewer number of visits. See id. at 1051-52; Cal. Civ. Code § 55.56(f).
Therefore, the court recommends that Sepulveda be awarded statutory damages of $4,000 for his first visit only. See, e.g., Johnson v. Garlic Farm Truck Ctr. LLC, No. 20-CV-03871-BLF, 2021 WL 2457154, at *8 (N.D. Cal. June 16, 2021) (denying plaintiff's request for $12,000 in damages where it appeared that his “repeated visits to [a business with access barriers] were made in an attempt to increase statutory damages” and awarding $4,000 for one visit only); Trujillo v. 4B Mkt. Inc., No. 121CV01559JLTHBK, 2022 WL 17667894, at *5-6 (E.D. Cal. Dec. 14, 2022), report and recommendation adopted, No. 121CV01559JLTHBK, 2022 WL 18027841 (E.D. Cal. Dec. 30, 2022) (denying plaintiff's request for $8,000 in damages because there was “no evidence” that plaintiff “had any reason to believe that the barriers would be rectified prior to his second visit” and awarding $4,000 for one visit only).
2. Injunctive Relief
An ADA plaintiff who establishes that a public accommodation has architectural barriers and that removal of those barriers is “readily achievable” is entitled to injunctive relief. Moreno v. La Curacao, 463 Fed.Appx. 669, 670 (9th Cir. 2011). Courts may also grant injunctive relief for violations of the Unruh Act. See Cal. Civ. Code § 52.1(h). “[I]njunctive relief shall include an order to alter facilities to make such facilities readily accessible to and usable by individuals with disabilities.” 42 U.S.C.A. § 12188(a)(2).
As discussed above, Sepulveda has adequately pleaded that El Malecon has architectural barriers that readily can be removed. Accordingly, the court recommends entering an injunction requiring Defendants to remedy the defective parking space, provide accessible tables in the exterior dining area, and remedy the identified violations in the restroom.
3. Attorneys' Fees and Costs
The ADA gives courts the discretion to award attorneys' fees, including litigation expenses and costs, to prevailing parties. Molski, 481 F.3d at 730 (citing 42 U.S.C. § 12205). Additionally, the Unruh Act provides that “[i]n addition to any damages, injunction, or other equitable relief awarded in an action brought pursuant to [Cal. Civ. Code § 52.1(b)], the court may award the petitioner or plaintiff reasonable attorney's fees.” Cal. Civ. Code § 52.1(h).
District courts in the Ninth Circuit typically employ the “lodestar analysis” in calculating fee awards. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 978 (9th Cir. 2008) (citations omitted). “The lodestar figure is calculated by multiplying the number of hours the prevailing party reasonably expended on the litigation (as supported by adequate documentation) by a reasonable hourly rate for the region and for the experience of the lawyer.” Yamada v. Nobel Biocare Holding AG, 825 F.3d 536, 546 (9th Cir. 2016) (internal citation omitted). Fee awards calculated under the lodestar method generally are presumed to be reasonable, Gonzalez v. City of Maywood, 729 F.3d 1196, 1208-09 (9th Cir. 2013), although the court ultimately retains discretion to modify the amount based on the specific circumstances of each case. The party seeking fees bears the initial burden of establishing the hours expended litigating the case and must provide detailed time records documenting the tasks completed and the amount of time spent. Hensley, 461 U.S. at 434; Welch v. Metro. Life Ins. Co., 480 F.3d 942, 945-46 (9th Cir. 2007). The requesting party also has the burden to demonstrate that the rates requested are “in line with the prevailing market rate of the relevant community.” Carson v. Billings Police Dep't, 470 F.3d 889, 891 (9th Cir. 2006) (internal quotation marks and citation omitted).
Here, Sepulveda's attorney requests fees in the amount of $2,660, representing 7.6 hours of work by attorney Richard Mac Bride at a rate of $350 per hour. First Mac Bride Decl. ¶ 8. Mac Bride states that he has been licensed as an attorney since 1998. Id. at ¶ 2. The court finds that the requested rate is reasonable and notes that Mac Bride has been awarded the same rate for work on ADA cases in this district. See, e.g., Sepulveda v. Buelna, No. 20-CV-05258-TSH, 2021 WL 3411197, at *10 (N.D. Cal. July 17, 2021), report and recommendation adopted, No. 20-CV-05258-HSG, 2021 WL 3409294 (N.D. Cal. Aug. 4, 2021) (collecting cases). Therefore, the court recommends granting Mac Bride's requested hourly rate.
Mac Bride has also provided a spreadsheet detailing his time spent on this case. First Mac Bride Decl. ¶ 4, Ex. 1. The court finds that the hours expended are reasonable and recommends that Sepulveda be awarded $2,660 in fees. The court also recommends granting Castillo-Antonio's request for costs in the amount of $1,007 for filing, process server, and investigation fees. Id.
IV. CONCLUSION
For the foregoing reasons, the court recommends that Sepulveda's motion for default judgment be granted. The court further recommends that Sepulveda be awarded $4,000 in statutory damages, $2,660 in attorneys' fees, and $1,007 for costs, for a total monetary award of $7,667. The court recommends entering an injunction requiring Defendants to provide an accessible parking space, accessible dining tables in the exterior dining area, and a restroom compliant with federal law.
Not later than three days from the date of this report and recommendation, Sepulveda shall serve Defendants with a copy of the report and recommendation by any means reasonably calculated to provide actual notice, and file proof of service to that effect. Any party may file objections to this report and recommendation with the District Judge within 14 days of being served with a copy. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(a); N.D. Civ. L.R. 72-2.
IT IS SO ORDERED.