Langer v. Ocios LLC

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 CHRIS LANGER, Case No.: 19-CV-115 JLS (LL) 12 Plaintiff, ORDER GRANTING MOTION FOR 13 v. DEFAULT JUDGMENT 14 OCIOS LLC, a California Limited (ECF No. 9) Liability Company; and DOES 1–10, [15] Defendants. [17] 18 Presently before the Court is Plaintiff Chris Langer’s Motion for Default Judgment 19 (“Mot.,” ECF No. 9) against Defendant Ocios LLC. The Court took the Motion under 20 submission without oral argument pursuant to Civil Local Rule 7.1(d)(1). See ECF No. 8. 21 After reviewing Plaintiff’s Motion, Complaint, and supporting evidence and weighing the 22 relevant factors, the Court GRANTS Plaintiff’s Motion. 23 BACKGROUND 24 Plaintiff Chris Langer is a paraplegic who cannot walk. ECF No. 1 (“Compl.”) ¶ 1. 25 He uses a wheelchair for mobility, uses a specially equipped van, and has a disabled person 26 parking placard. Id. Plaintiff’s van deploys a ramp out of the passenger side. ECF No. 927 4 (“Langer Decl.”) ¶ 2. Plaintiff needs a full “van[-]accessible” aisle to use the ramp to 28 safely wheel in and out of the van. Id. Plaintiff has had “terrible experiences” using non1 accessible parking spaces in the past, so he avoids using spaces that are not van accessible. 2 Id. ¶ 4. 3 At all relevant times, Defendant has owned the real property located at 832 E. 18th 4 Street, National City, California, where the public business establishment Denis’s Bakery 5 is located. Compl. ¶¶ 2–3, 8–9. On October 9, 2018, Plaintiff went to Denis’s Bakery to 6 “avail himself of its goods and services, motivated in part to determine if the defendants 7 comply with the disability access laws.” Id. ¶ 8; Langer Decl. ¶ 5. At Denis’s Bakery, 8 there were no van-accessible parking spaces. Compl. ¶ 11. There was one parking space 9 marked and reserved for persons with disabilities, but the space was not van-accessible, 10 and the stall and access aisle were not level with each other. Id. ¶¶ 11–14. There also was 11 no “NO PARKING” warning sign in the access aisle. Id. ¶ 15. Plaintiff could see that the 12 front entrance of the bakery had a ramp leading up to the door with no landing in front, 13 which meant that, to gain entrance, he would have to be positioned on the ramp while 14 pulling the door open. Id. ¶ 22; Langer Decl. ¶ 7. Plaintiff left the property without 15 patronizing Denis’s Bakery because of the lack of van-accessible parking and the ramp at 16 the front entrance. Langer Decl. ¶ 8. Plaintiff lives near Denis’s Bakery and would like to 17 return and patronize it but is deterred by the lack of accessible parking and front entrance. 18 Id. ¶¶ 10–11. 19 Consequently, Plaintiff filed this action on January 16, 2019. See generally ECF 20 No. 1. Plaintiff alleges violations of the Americans with Disabilities Act (“ADA”) and 21 California’s Unruh Civil Rights Act (“Unruh Act”). See id. at 5–8. On March 12, 2019, 22 Plaintiff requested that the Clerk of Court enter default, ECF No. 4, which the Clerk entered 23 that day. ECF No. 5. 24 In response to an Order to Show Cause issued on August 21, 2019, see ECF No. 6, 25 Plaintiff filed the instant Motion on September 3, 2019. See generally ECF No. 9. Plaintiff 26 seeks injunctive relief compelling Defendant to comply with the ADA and the Unruh Act, 27 $4,000 in damages under the Unruh Act, and attorneys’ fees and costs. Compl. at Prayer. 28 / / / 1 LEGAL STANDARD 2 Federal Rule of Civil Procedure 55 permits a court to enter default judgment upon a 3 party’s application. Although default judgments are ordinarily disfavored, a court may 4 grant or deny a motion for default judgment at its discretion. See Alan Neuman Prods., 5 Inc. v. Albright, 862 F.2d 1388, 1392 (9th Cir. 1988) (citing Haw. Carpenters’ Tr. Funds 6 v. Stone, 794 F.2d 508 , 511–12 (9th Cir. 1986); Eitel v. McCool, 782 F.2d 1470, 1471 (9th 7 Cir. 1986); Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980)). 8 The Ninth Circuit has set out seven factors, known as the Eitel factors, that a court 9 may consider when exercising its discretion as to whether or not to grant default judgment: 10 (1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff’s substantive claim, (3) the sufficiency of the complaint, [11] (4) the sum of money at stake in the action, (5) the possibility of 12 a dispute concerning material facts, (6) whether the default was due to excusable neglect, and (7) the strong policy underlying the [13] Federal Rules of Civil Procedure favoring decisions on the 14 merits. 15 Eitel, 782 F.2d at 1471–72. 16 When weighing these factors, the well-pleaded factual allegations of the complaint 17 are taken as true, except for those allegations relating to damages. TeleVideo Sys., Inc. v. 18 Heidenthal, 826 F.2d 915 , 917–18 (9th Cir. 1987); see also Fed. R. Civ. P. 8(b)(6). To 19 prove damages, a plaintiff may submit declarations, or the Court may hold an evidentiary 20 hearing. See Affinity Grp., Inc. v. Balser Wealth Mgmt., LLC, No. 05CV1555 WQH (LSP), [21] 2007 WL 1111239 , at *1 (S.D. Cal. Apr. 10, 2007); see also Taylor Made Golf Co. v. 22 Carsten Sports, 175 F.R.D. 658, 661 (S.D. Cal. 1997) (“In assessing damages, the court 23 must review facts of record, requesting more information if necessary, to establish the 24 amount to which plaintiff is lawfully entitled upon judgment by default.”). 25 / / / 26 / / / 27 / / / 28 / / / 1 ANALYSIS 2 I. Jurisdiction 3 A. Subject-Matter Jurisdiction 4 To enter default judgment against Defendant, the Court must first determine it has 5 subject-matter jurisdiction. See Twitch Interactive, Inc. v. Johnston, No. 16-cv-034046 BLF, 2019 WL 3387977 , at *3 (N.D. Cal. July 26, 2019). Here, the Court has subject7 matter jurisdiction for the ADA claims under 28 U.S.C. §§ 1331 and 1343(a)(3)–(4). The 8 Court exercises supplemental jurisdiction over the Unruh Act claim pursuant to 28 U.S.C. 9 § 1367(a). 10 B. Personal Jurisdiction 11 The Court must also have personal jurisdiction over the defendant, or else entry of 12 default judgment is void. Veeck v. Commodity Enters., Inc., 487 F.2d 423, 426 (9th Cir. 13 1973). For the reasons below, the Court finds that it may exercise personal jurisdiction 14 over Defendant. 15 1. Service of Process 16 “Before a federal court may exercise personal jurisdiction over a defendant, the 17 procedural requirement of service of summons must be satisfied.” Omni Capital Int’l, Ltd. 18 v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987). In the present case, Defendant was served 19 by substituted service to an employee on January 29, 2019. See ECF No. 3. The employee 20 was at least 18 years of age and appeared to be in charge of Defendant’s place of business. 21 See id. Copies of the relevant documents were mailed to Defendant’s agent, Francisco 22 Javier Perez, on February 8, 2019. See id. The Court concludes that service was proper 23 pursuant to Federal Rule of Civil Procedure 4(h)(1)(B) and California Code of Civil 24 Procedure § 415.20. 25 2. Personal Jurisdiction 26 “A Court’s power to exercise jurisdiction over a party is limited by both statutory 27 and constitutional considerations.” In re Packaged Seafood Prod. Antitrust Litig., 338 F. 28 Supp. 3d 1118, 1135 (S.D. Cal. 2018). “California’s long-arm statute allows the exercise 1 of personal jurisdiction to the full extent permissible under the U.S. Constitution.” Daimler 2 AG v. Bauman, 571 U.S. 117, 125 (2014). Here, Defendant is a California Limited Liability 3 Company that owns the subject property located in National City, California. The Court 4 therefore concludes that it has personal jurisdiction over Defendant. See, e.g., Johnson v. 5 Oakwood Center LLC, No. 19-cv-01582-VKD, 2019 WL 7209040 , at *3 (N.D. Cal. Dec. 6 27, 2019) (finding personal jurisdiction over Title III ADA claim where defendant was a 7 California Limited Liability Company that owned the subject property, which was also 8 located in California). 9 II. Entry of Default Judgment 10 Having determined the Court has jurisdiction, the Court now turns to the merits of 11 Plaintiff’s Motion, addressing each of the Eitel factors in turn. 12 A. Factor I: Prejudice to Plaintiff 13 The first factor weighs in favor of entering default judgment. Plaintiff asserts that 14 he suffers discrimination as a result of Defendant’s noncompliance with the ADA and the 15 Unruh Act. See Compl. ¶¶ 29–45. Defendant has failed to appear or otherwise participate 16 in this action. Absent default judgment, Plaintiff likely will be without recourse. See Vogel 17 v. Rite Aid Corp., 992 F. Supp. 2d 998, 1007 (C.D. Cal. 2014) (granting default judgment 18 because defendant’s “unwillingness to cooperate and defend” left ADA plaintiff without 19 other opportunities for recourse). The resultant prejudice to Plaintiff favors default 20 judgment. See Moroccanoil, Inc. v. Allstate Beauty Prods., Inc., 847 F. Supp. 2d 1197 , 21 1200–01 (C.D. Cal. 2012) (“[A plaintiff] will generally be prejudiced if a court declines to 22 grant default judgment where, as here, it lacks other recourse to recover damages for its 23 injury or means to prevent [the defendant] from causing it further harm.”). 24 B. Factors II and III: Merits of the Claims and Sufficiency of the Complaint 25 To warrant entering a default judgment, the complaint’s allegations must be 26 sufficient to state a claim upon which relief can be granted. Danning v. Lavine, 572 F.2d 27 1386, 1388 (9th Cir. 1978). A complaint satisfies this standard when the claims “cross the 28 line from the conceivable to plausible.” Ashcroft v. Iqbal, 556 U.S. 662, 680 (2009) (citing 1 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)). A default concedes the truth of the 2 allegations in the complaint, except those relating to damages. TeleVideo, 826 F.2d at 3 917–18 (quoting Geddes v. United Fin. Grp., 559 F.2d 557 , 560 (9th Cir. 1997)); Taylor 4 Made, 175 F.R.D. at 661 (noting that “[i]n assessing liability, the complaint’s allegations 5 are taken as true” because “a defendant’s default functions as an admission of the plaintiff’s 6 well-pleaded allegations of fact”). Here, Plaintiff sufficiently pleads causes of action for 7 violations of the ADA and the Unruh Act. 8 1. ADA Claim 9 Title III of the ADA prohibits discrimination by places of public accommodation. 10 Vogel, 992 F. Supp. 2d at 1007 . “To prevail on a Title III discrimination claim, the plaintiff 11 must show that (1) [he] is disabled within the meaning of the ADA; (2) the defendant is a 12 private entity that owns, leases, or operates a place of public accommodation; and (3) the 13 plaintiff was denied public accommodations by the defendant because of [his] disability.” 14 Molski v. M.J. Cable, Inc., 481 F.3d 724, 730 (9th Cir. 2007). Where, as here, the plaintiff 15 seeks to establish discrimination based on an architectural barrier, “the plaintiff must also 16 prove that: “(1) the existing facility at the defendant’s place of business presents an 17 architectural barrier prohibited under the ADA, and (2) the removal of the barrier is readily 18 achievable.” Parr v. L & L Drive-Inn Restaurant, 96 F. Supp. 2d 1065, 1085 (D. Haw. 19 2000). 20 The ADA defines a disability as “a physical or mental impairment that substantially 21 limits one or more major life activities.” 42 U.S.C. § 12102 (1)(A). Walking is considered 22 a “major life activit[y].” 42 U.S.C. § 12102 (2)(A). Plaintiff is a paraplegic who cannot 23 walk, Compl. ¶ 1, and is therefore disabled within the meaning of the ADA. See, e.g., 24 Vogel, 992 F. Supp. 2d at 1009 (finding plaintiff “disabled within the meaning of the ADA” 25 where plaintiff alleged that he was a paraplegic and that he was unable to walk). 26 Further, Plaintiff has established that Defendant’s facility is a place of public 27 accommodation. Plaintiff asserts that Defendant owns the real property where Denis’s 28 Bakery is located. Compl. ¶¶ 2–3. Plaintiff also asserts that Denis’s Bakery is a “facility 1 open to the public, a place of public accommodation, and a business establishment.” Id. 2 ¶ 9. A bakery is a place of public accommodation as defined within the ADA. 42 U.S.C. 3 § 12181(7)(E). This element is therefore satisfied. 4 Plaintiff alleges that he was denied access to Denis’s Bakery due to ADA-prohibited 5 architectural barriers, including a lack of a van-accessible parking space, an unlevel 6 parking stall and access aisle, the absence of a “NO PARKING” warning in the access 7 aisle, and a 10.5% slope leading to the entrance of the building. See id. ¶¶ 11–24. Plaintiff 8 further alleges that removal of these barriers is readily achievable “without much difficulty 9 or expense” and that alternative accommodations are available. Id. ¶¶ 25–26. Taking the 10 allegations in the Complaint as true, as the Court must in reviewing Plaintiff’s Motion, see 11 TeleVideo, 826 F.2d at 917–18, Plaintiff has established a prima facie claim under Title III 12 of the ADA. See, e.g., Johnson v. Hall, No. 2:11-cv-2817-GEB-JFM, 2012 WL 1604715 , 13 at *3 (E.D. Cal. May 7, 2012) (finding sufficient a Title III discrimination claim where the 14 disabled plaintiff alleged that he had been denied access to the defendant’s place of public 15 accommodation because of readily removable architectural barriers, including a lack of 16 van-accessible parking, a lack of accessibility signage, and a lack of an accessible 17 entrance). 18 2. Unruh Claim 19 The Unruh Act states that “[a]ll persons within the jurisdiction of this state are free 20 and equal, and no matter what their . . . disability . . . are entitled to the full and equal 21 accommodations, advantages, facilities, privileges, or services in all business 22 establishments of every kind whatsoever.” Cal. Civ. Code § 51 (b). A violation of the ADA 23 is also necessarily a violation of the Unruh Act. Cal. Civ. Code § 51 (f); Vogel, 992 F. 24 Supp. 2d at 1011. Plaintiff has sufficiently alleged an ADA claim, see supra Section II.B.1, 25 so he also has alleged an Unruh claim. 26 In light of the foregoing, Eitel factors two and three weigh in favor of entry of default 27 judgment. 28 / / / 1 C. Factor IV: Sum of Money at Stake 2 Under this factor, the Court considers whether the damages sought are proportional 3 to the alleged harm. Landstar Ranger, Inc. v. Parth Enter., Inc., 725 F. Supp. 2d 916 , 921 4 (N.D. Cal. 2010). Here, Plaintiff seeks to recover a total of $8,012.50 in statutory damages, 5 attorneys’ fees, and costs. ECF No. 9-1 at 8. “Courts frequently grant default judgment in 6 Unruh Act and ADA cases and impose similar financial liabilities on the defendant.” See 7 Vogel, 992 F. Supp. 2d at 1012 (finding $13,739.20 in statutory damages, attorneys’ fees, 8 and costs “neither too large nor too unreasonable” given defendant’s failure to appear and 9 failure to comply with the ADA and Unruh Act); see also, e.g., Moore v. Cisneros, No. 10 1:12-cv-00188-LJO-SKO, 2012 WL 6523017 , at *4 (E.D. Cal. Dec. 13, 2012) (finding 11 default judgment of $10,119.70 “[not] unreasonable in light of the allegations in the 12 complaint”); Johnson v. Huynh, No. CIV S-08-1189 JAM DAD, 2009 WL 2777021 , at *2 13 (E.D. Cal. Aug. 27, 2009) (finding default judgment of $12,000 “a relatively small award 14 of damages”). This factor therefore weighs in favor of granting default judgment. 15 D. Factor V: Possibility of Factual Dispute 16 This factor turns on the degree of possibility that a dispute concerning material facts 17 exists or may later arise. Eitel, 782 F.2d at 1471–72. Here, Plaintiff’s allegations must be 18 taken as true because of the default, see TeleVideo, 826 F.2d at 917–18, and therefore any 19 purported factual dispute appears settled, as there is no indication that Defendant will 20 defend against the action. Accordingly, this factor favors default. 21 E. Factor VI: Reason for Default 22 If a defendant’s default may have been the product of excusable neglect, this factor 23 weighs against granting default judgment. Eitel, 782 F.2d at 1471–72. Here, there is no 24 evidence of excusable neglect. Thus, this factor weighs in favor of default. 25 F. Factor VII: Policy Favoring Merits Decisions 26 Although this factor, by its nature, generally weighs against default judgment 27 because it encourages merits decisions, “[t]he fact that Rule 55(b) has been enacted . . . 28 indicates that ‘this preference, standing alone, is not dispositive.’” Landstar Ranger, 725 1 F. Supp. 2d at 922 (citing PepsiCo, Inc., 238 F. Supp. 2d at 1177 (quoting Kloepping v. 2 Fireman’s Fund, No. 94-2684, 1996 WL 75314 , at *3 (N.D. Cal. 1996))). In the present 3 case, there is no indication that a merits decision is practicable as Defendant has yet to 4 answer Plaintiff’s Complaint. See PepsiCo, Inc., 238 F. Supp. 2d at 1177 (“Defendant’s 5 failure to answer Plaintiff’s Complaint makes a decision on the merits impractical, if not 6 impossible.”). The Court therefore concludes that the timely administration of justice 7 outweighs the strong preference for merits decisions in this case. This factor therefore 8 weighs in favor of default judgment. 9 Based on the above, the Court finds that all the Eitel factors weigh in favor of default 10 judgment in this case. Accordingly, the Court GRANTS Plaintiff’s Motion. 11 III. Relief Sought 12 “Under Rule 8(a)(3), plaintiff’s demand for relief must be specific, and it must prove 13 up the amount of damages.” Landstar Ranger, 725 F. Supp. 2d at 923 (internal citations 14 omitted). Additionally, “Rule 54(c) ‘allows only the amount prayed for in the complaint 15 to be awarded to the plaintiff in default.’” Id. (quoting Fong v. United States, 300 F.2d 16 400, 413 (9th Cir. 1962)). Here, Plaintiff prayed for injunctive relief, statutory damages, 17 and attorneys’ fees and costs, Compl. at Prayer, which is the same relief that Plaintiff seeks 18 through his Motion. See Mot. at 2. 19 A. Injunctive Relief 20 Plaintiff seeks injunctive relief compelling Defendant to comply with the ADA and 21 the Unruh Act. Compl. at Prayer ¶ 1. “Injunctive relief is proper when architectural 22 barriers at defendant’s establishment violate the ADA and the removal of the barriers is 23 readily achievable.” Vogel, 992 F. Supp. 2d at 1015 . 24 As discussed above, Plaintiff has sufficiently alleged discrimination due to 25 architectural barriers at Defendant’s facility in violation of the ADA and the Unruh Act. 26 In support of his claims, Plaintiff provides a declaration attesting to his disability and his 27 experience at Denis’s Bakery on October 9, 2018. See generally Langer Decl. Plaintiff 28 also provides a declaration of his attorney supporting the conclusion that Defendant owns 1 the subject property. See ECF No. 9-3 (“Price Decl.”) ¶¶ 3–4. Finally, Plaintiff provides 2 a declaration from an investigator confirming that, as of January 15, 2019, Denis’s Bakery 3 only had one parking space reserved for people with disabilities and that the parking stall 4 was 97-inches wide and the access aisle was 42-inches wide, see ECF No. 9-5 (“Sapien 5 Decl.”) ¶¶ 2–5, rendering the space not van-accessible. See Compl. ¶ 12. The investigor’s 6 declaration further confirms that the parking stall and access aisle of the reserved space 7 were not level, Sapien Decl. ¶ 5, and that the ramp extending to the front entrance of the 8 bakery had cross slopes as high as 8.5 to 10.5 percent. Id. ¶ 5 –6. Plaintiff attaches pictures 9 of the property taken by the investigator as Exhibit 4 to his Motion. See ECF No. 9-6. 10 The Court finds that Plaintiff’s evidence supports the factual allegations of his 11 claims. Accordingly, injunctive relief is proper, and the Court shall issue an injunction 12 against Defendant. 13 B. Statutory Damages 14 Plaintiff seeks $4,000 in damages under the Unruh Act. See Mot. at 4. Under the 15 Unruh Act, a plaintiff who has been denied equal access is entitled to “no less than four 16 thousand dollars” for each offense. Cal. Civ. Code § 52 (a). To recover damages, 17 “[Plaintiff] must only show that [he] was denied full access and not that [he was] wholly 18 excluded from enjoying [Defendant’s] services.” Hubbard v. Rite Aid Corp., 433 F. Supp. 19 2d 1150, 1170 (S.D. Cal. 2006). A violation of the ADA is necessarily a violation of the 20 Unruh Act. Cal. Civ. Code § 51 (f). When “[a] plaintiff’s complaint properly sets out the 21 necessary elements for his ADA claim, plaintiff has also properly set out the necessary 22 elements for his Unruh Civil Rights Act claim.” Johnson v. Singh, No. 2:10-cv-2547 KJM 23 JFM, 2011 WL 2709365 , at *4 (E.D. Cal. July 11, 2011). 24 Here, because Plaintiff sufficiently has established a claim under the Title III of the 25 ADA, he is entitled to statutory damages under the Unruh Act. See, e.g., Moore, 2012 WL 26 6523017, at *5. The Court therefore awards to Plaintiff the $4,000 he has requested under 27 the Unruh Act. 28 / / / 1 C. Attorneys’ Fees and Costs 2 Lastly, Plaintiff requests $4,012.50 in attorneys’ fees and costs. Mot. at 2. Pursuant 3 || to both Title II of the ADA and the Unruh Act, a prevailing plaintiff is entitled to attorneys’ [4] 42 U.S.C. § 12205 ; Cal. Civ. Code § 52 (a). Here, Plaintiff requests a total of 5 $3,377.50 in attorneys’ fees, Price Decl. at 8-9, and $635 in costs. Id. at 9. The costs 6 ||include $200 for an investigator, $400 in filing fees, and $35 in service costs. /d. at 8. The 7 || Court finds these costs reasonable and will award them. 8 The attorneys’ fees consist of $722.50 for Mark Potter (1.7 hours at $425 per hour), 9 ||$1,105 for Russell Handy (2.6 hours at $425 per hour), $255 for Phyl Grace (0.6 hours at 10 per hour), $280 for Christina Carson (0.8 hours at $350 per hour), and $1,015 for 11 ||Dennis Price (2.9 hours at $350 per hour). See id. J§ 8-12; see also id. at 9. After 12 ||reviewing the Price Declaration and the attached Billing Statement, see id. at 9, the Court 13 || finds both the amount of time expended on the case and the respective hourly rates of each 14 attorney reasonable given the nature of this case and counsels’ respective levels of 15 ||/expertise, respectively. Accordingly, the Court awards Plaintiff $3,377.50 in attorneys’ 16 || fees. 17 CONCLUSION 18 For the reasons stated above, the Court GRANTS Plaintiff’s Motion (ECF No. 9). 19 || Accordingly, the Clerk of Court SHALL ENTER judgment in favor of Plaintiff and 20 || against Defendant Ocios LLC in the amount of $8,012.50. Further, Defendant Ocios LLC 21 || SHALL PROVIDE van-accessible parking and an accessible path of travel through the 22 entrance at the property located at 832 E. 18th Street, National City, California, in 23 ||compliance with the Americans with Disabilities Act Accessibility Guidelines. 24 IT IS SO ORDERED. [25] 26 Dated: June 23, 2020 jae L. Lo memeaite07 on. Janis L. Sammartino 3g United States District Judge