Johnson v. Lo

— 1 — — 2 — — 3 — — 4 — 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA — 7 — 8 SCOTT JOHNSON, Case No. 21-cv-05910-MMC 9 Plaintiff, ORDER GRANTING IN PART AND 10 v. DENYING IN PART PLAINTIFF'S APPLICATION FOR DEFAULT 11 FONG LO, KA WAI YIP, TONY LAM JUDGMENT; DIRECTIONS TO NGUYEN, and HANKEE II CLERK; VACATING HEARING 12 RESTAURANT, INC., Defendants. — 13 — — 14 — 15 Before the Court is plaintiff Scott Johnson's ("Johnson") Application for Default 16 Judgment, filed and served February 25, 2022, by which said defendant seeks default 17 judgment against defendants Ka Wai Yip ("Yip"), Tony Lam Nguyen ("Nguyen"), and 18 Hankee Ii Restaurant, Inc. ("Hankee Ii"). No response has been filed. The Court, having 19 read and considered the papers filed in support of the Application, deems the matter 20 suitable for determination thereon, VACATES the hearing scheduled for May 13, 2022, 21 and rules as follows. 22 In his Complaint, Johnson, a "California resident with physical disabilities" who 23 "uses a wheelchair for mobility," alleges he visited, on four occasions, Kim Anh Spa, Han 24 Kee Restaurant, and Pinoy Lechon BBQ & Grill, businesses located adjacent to one 25 another on Tully Road in San Jose, California. (See Compl. ¶¶ 1, 2, 12.) According to 26 Johnson, Kim Anh Spa is owed by defendant Nguyen (see Compl. ¶¶ 4-5), Han Kee 27 Restaurant is owned by defendant Hankee Ii (see Compl. ¶¶ 6-7), and all three 1 (see Compl. ¶¶ 2-3).1 Johnson alleges that, on the dates he visited the above-referenced 2 businesses, he encountered "barriers," such as a lack of "wheelchair accessible parking" 3 and a lack of "wheelchair accessible bathrooms." (See Compl. ¶¶ 18-19.) Based 4 thereon, Johnson asserts two Causes of Action, titled, respectively, "Violation of the 5 Americans with Disabilities Act" and "Violation of the Unruh Civil Rights Act." 6 Upon entry of default, the factual allegations in a complaint, other than those 7 pertaining to the amount of damages, are "taken as true." See Geddes v. United 8 Financial Group, 559 F.2d 557, 560 (9th Cir. 1977). Here, the Court, having assumed as 9 true the factual allegations in the Complaint, finds Nguyen, as owner of Kim Anh Spa, 10 and Hankee Ii, as owner of Han Kee Restaurant, violated the Americans with Disabilities 11 Act ("ADA") (see Compl. ¶¶ 1, 12-16, 20-21, 25-26, 30-31, 36, 45-46, 49-53), and, 12 consequently, the Unruh Civil Rights Act ("Unruh Act"), see Cal. Civ. Code § 51 (f) 13 (providing "[a] violation of the right of any individual under the [ADA] shall also constitute 14 a violation of [the Unruh Act]"). As to Yip, however, the Court finds Johnson has not 15 established a violation of the ADA or the Unruh Act, as the Complaint includes no factual 16 allegations as to said defendant, let alone factual allegations sufficient to support a 17 finding that Yip violated the ADA or the Unruh Act. See Cripps v. Life Ins. Co. of North 18 America, 980 F.2d 1261, 1267-68 (9th Cir 1992) (reversing default judgment where 19 plaintiff failed to allege facts sufficient to state a cognizable claim against defendant). 20 The Court next considers Johnson's requests for relief as they pertain to Nguyen 21 and Hankee Ii, specifically, his requests for (1) injunctive relief under the ADA, (2) 22 damages under the Unruh Act (3) an award of attorney's fees under either the ADA or the 23 Unruh Act, and (4) an award of costs and expenses under the ADA. 24 First, with respect to injunctive relief under the ADA, the Court, by order filed April 25 5, 2022, found Johnson had failed to establish his entitlement to such relief, but afforded — 26 — — 27 — 1 By order filed January 14, 2022, Johnson's claims against Fong Lo were 1 him leave to file a supplemental brief for purposes of identifying the specific injunctive 2 relief sought and, to the extent his request was based on requirements set forth the 3 "2010 Standards," establishing their applicability to the three remaining defendants.2 In 4 response, Johnson filed a supplemental brief identifying the specific injunctive relief 5 sought and stating he sought such relief solely based on requirements contained in the 6 2010 Standards; Johnson failed, however, to address in any manner how those 7 Standards apply to any defendant. Accordingly, to the extent Johnson seeks injunctive 8 relief, the Application will be denied. 9 Next, with respect to the request for damages under the Unruh Act, the Court 10 finds, for the reasons stated in the Application (see Pl.'s Appl. 20:4-23, 22:23-23:12), 11 Johnson is entitled to a monetary award of $4,000 as against Nguyen and a monetary 12 award of $4,000 as against Hankee Ii. See Cal. Civ. Code § 52 (a) (providing defendant 13 who violates Unruh Acct is liable for "actual damages that may be determined . . . but in 14 no case less than four thousand dollars ($4,000)"). 15 With respect to attorney's fees, the Court finds Johnson is entitled under the Unruh 16 Act to an award in the amount he seeks, specifically, $2,525, the hourly rates requested 17 and the number of hours expended on the matter being reasonable. See id. (providing 18 defendant who violates Unruh Act is liable for "any attorney's fees that may be 19 determined by the court"). 20 Lastly, Johnson's request for an award of "litigation expenses and costs" under the 21 ADA (see Pl.'s Appl. at 31:3-8) will be denied, as Johnson has not shown he is entitled to 22 relief under the ADA, and, consequently, is not a prevailing party as to his ADA claim. 23 See, e.g., Midgett v. Tri-County Metropolitan Transportation Dist., 254 F.3d 846 , 851-52 24 (9th Cir. 2001) (affirming summary judgment in favor of defendant where plaintiff failed to — 25 — 2 As explained in greater detail in the Court's Order of April 5, 2022, the federal — 26 — regulations comprising the 2010 Standards only apply to buildings constructed or altered on or after March 15, 2010, and the Complaint includes no factual allegations to support — 27 — a finding that the buildings Johnson visited had been constructed or altered on or after 1 establish entitlement to any remedy under ADA). As Johnson is the prevailing party 2 || against defendants Nguyen and Hankee li on his claim under the Unruh Act, however, 3 || Johnson may file with the Clerk of Court a bill of costs to recover his taxable costs. See 4 || Civil L.R. 54-1(a). 5 CONCLUSION 6 For the reasons stated, Johnson's Application for Default Judgment is GRANTED 7 in part and DENIED in part, as follows: 8 1. To the extent Johnson seeks, as against Nguyen and Hankee li, an award of 9 || damages under the Unruh Act, the Application is hereby GRANTED, and Johnson is 10 || awarded the sum of $4,000 as against Nguyen, and the sum of $4,000 as against 11 Hankee li. g 12 2. To the extent Johnson seeks, as against Nguyen and Hankee li, an award of s 13 || attorney fees under the Unruh Act, the Application is hereby GRANTED, and Johnson is 14 || awarded the sum of $2,525, jointly and severally, as against Nguyen and Hankee li 2 15 3. In all other respects, the Application is hereby DENIED. a 16 The Clerk of Court is DIRECTED to enter judgment in conformity with the above. 17 IT IS SO ORDERED. 19 || Dated: May 9, 2022 feebita do Chae 20 United States District Judge — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 —