Jose Martinez v. Diab Diab et al

Filing 26

ORDER GRANTING PLAINTIFFS MOTION FOR DEFAULT JUDGMENT 22 by Judge Otis D. Wright, II: The Court awards $4,000.00 in statutory damages, $600.00 in attorneys fees, and $440.00 in costs. The Court also enters an injunction against Defe ndants, compelling them to create a van-accessible parking space that is appropriately labeled and comply with all other ADAAG requirements to the extent they have the power to do so under the terms of any applicable lease agreement and state law. (lc) Modified on 10/29/2015 (lc).

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United States District Court
Central District of California

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JOSEPH MARTINEZ,

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Case No. 2:15-CV-04653-ODW-AS

Plaintiff,

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ORDER GRANTING PLAINTIFF’S

v.

MOTION FOR DEFAULT

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JUDGMENT [22]

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DIAB DIAB; ZIAD DIAB; A&M FINE

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WINE AND LIQUOR INC.,

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Defendants.

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I.

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INTRODUCTION

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On June 19, 2015, Joseph Martinez (“Plaintiff”) filed a complaint against Diab

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Diab, Ziad Diab, and A&M Fine Wine & Liquor Inc., alleging violation of Title III of

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the Americans with Disabilities act (“ADA”) and the California Unruh Civil Rights

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Act (“the Unruh Act”), codified in California Civil Code § 51. (ECF No. 1.) The

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clerk entered default as to Defendants Diab Diab and Ziad Diab on August 7, 2015

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and August 18, 2015 respectively. (ECF Nos. 12, 16.) On September 17, 2015,

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Plaintiff filed the present application for default judgment against Defendants Diab

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Diab and Ziad Diab.1 Plaintiff seeks statutory damages, attorneys’ fees, and costs as

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Plaintiff’s Application for Entry of Default Judgment does not name the third defendant, A&M
Fine Wine and Liquor Inc.

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well as injunctive relief requiring Defendants to bring the store into compliance with

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the ADA Accessibility Guidelines (“ADAAG”) and California’s Building Code

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requirements. (ECF No. 1.) For the reasons discussed below, the Court GRANTS

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Plaintiff’s Application for Default Judgement against Defendants Diab Diab and Ziab

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Diab (hereinafter “Defendants”).
II.

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FACTUAL ALLEGATIONS

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Plaintiff is a quadriplegic and cannot walk. (ECF No. 1, Complaint (“Compl.”)

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¶ 1.) He uses a wheelchair for mobility. (Id. ¶1.) Plaintiff alleges that in February

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2015, he visited Cabrillo Liquor Store (“the Store”)2 and encountered a barrier that

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interfered with his ability to use and enjoy the goods, services, privileges and

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accommodations offered at the facility. (Id. ¶¶7–9.) The alleged barrier at issue is a

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lack of accessible parking spaces for use by persons with disabilities. (Id. ¶10.)

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Furthermore, although Plaintiff did not personally encounter further barriers, he

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contends the path of travel in and throughout the Store is not wheelchair accessible

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because some aisles are less than 36 inches in width. (Id. ¶13.)

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Plaintiff argues that he would like to return and patronize the store but is

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deterred from doing so because the Store’s facilities and accommodations are

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unavailable to physically disabled patrons like himself.

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Defendants were aware of these barriers. (Id. ¶18.) The Defendants purportedly

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failed to remove these barriers despite having control and dominion over the

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conditions of the Store.

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Defendant discriminated against him and the physically disabled public by denying

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them a full and equal enjoyment of the Store. (Id. ¶14.)
III.

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(Id. ¶16, 18.)

A.

(Id. ¶15.)

He contends

For these reasons, Plaintiff argues that

LEGAL STANDARD

Default Judgment

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Federal Rule of Civil Procedure 55(b) authorizes a district court to grant default

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judgment after the Clerk enters default under 55(a). A district court has discretion

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The Store is located at 1316 South Gaffey Street, San Pedro, California.

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whether to enter default judgment. Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir.

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1980). Upon default, the defendant’s liability generally is conclusively established,

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and the well-pleaded factual allegations in the complaint are accepted as true.

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Televideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917–19 (9th Cir. 1987) (per curiam)

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(citing Geddes v. United Fin. Grp., 559 F.2d 557, 560 (9th Cir. 1977)).

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In exercising its discretion, a court must consider several factors (the “Eitel

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Factors”), including: (1) the possibility of prejudice to plaintiff; (2) the merits of

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plaintiff’s substantive claim; (3) the sufficiency of the complaint; (4) the sum of

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money at stake; (5) the possibility of a dispute concerning material facts; (6) whether

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the defendant’s default was due to excusable neglect; and (7) the strong policy

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underlying the Federal Rules of Civil Procedure favoring decisions on the merits.

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Eitel v. McCool, 782 F.2d 1470, 1471–72 (9th Cir. 1986).
IV.

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A.

DISCUSSION

Procedural Requirements

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Before a court can enter default judgment against a defendant, the Plaintiff must

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satisfy the procedural requirements for default judgment set forth in Federal Rules of

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Civil Procedure 54(c) and 55, as well as Local Rule 55-1. Local Rule 55-1 requires

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that the movant submit a declaration establishing: (1) when and against which party

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default was entered; (2) identification of the pleading to which default was entered;

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(3) whether the defaulting party is a minor, incompetent person, or active service

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member; and (4) that the defaulting party was properly served with notice. Vogel v.

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Rite Aid Corp., 992 F. Supp. 2d 998, 1006 (C.D. Cal. 2014).

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Plaintiff has satisfied these requirements.

The Clerk entered default on

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defendants Diab Diab and Ziad Diab on August 7, 2015 and August 18, 2015

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respectively. (ECF Nos. 12, 16.) He also establishes that Defendants are not minors

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or infants, incompetent persons, in military service, or otherwise exempted under the

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Soldiers’ and Sailors’ Civil Relief Act of 1940. (ECF No. 22.) Defendants were

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served with notice of Application for Default Judgment on September 17, 2015. (ECF

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Nos. 11, 15.) Finally, Plaintiff complies with Federal Rule of Civil Procedure 54(c)

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by requesting a remedy not different in kind from that prayed for in the Complaint.

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(ECF Nos. 1, 22.) Plaintiff has thus complied with the procedural prerequisites for

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entry of default judgment. See PepsiCo Inc., v. California Security Cans, 238 F.

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Supp. 2d 1172, 1175 (C.D. Cal. 2002) (finding that the procedural requirements of

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Rule 55 and Local Rule 55-1 are been met where plaintiffs address each required

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factor in their application for default judgment).

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B.

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Eitel Factors
The Court finds that the Eitel factors weigh in favor of default judgment. The

Court will discuss each factor in turn.

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1.

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The first Eitel factor considers whether a plaintiff will suffer prejudice if a

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default judgment is not entered. PepsiCo, 238 F. Supp. 2d at 1177. Plaintiff contends

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that he continues to suffer discrimination due to physical disability because of

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Defendants’ failure to comply with the ADAAG requirements in violation of the ADA

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and the Unruh Act. Defendants failed to appear and defend these allegations. Absent

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entry of default judgment, Plaintiff will most likely be without recourse, given

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Defendants’ unwillingness to cooperate and defend. Because Plaintiff will suffer

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prejudice if he is without recourse against Defendants, this factor favors entry of

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default judgment.

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2.

Plaintiff Would Suffer Prejudice

Plaintiff Brought Meritorious Claims and Plaintiff’s Complaint Was

Sufficiently Plead
The second and third factors, the merits of Plaintiff’s substantive claim and
sufficiency of the Complaint, also support entry of default judgment.
i. Americans with Disabilities Act

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Title III of the ADA provides that “[n]o individual shall be discriminated

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against on the basis of disability in the full and equal enjoyment of the goods,

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services, facilities, privileges, advantages, or accommodations of any place of public

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accommodation.” 42 U.S.C. § 12182(a). “To prevail on an ADA claim, the plaintiff

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must establish that (1) he is disabled within the meaning of the ADA; (2) defendant is

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a private entity that owns, leases, or operates a place of public accommodation; and

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(3) the plaintiff was denied public accommodations by the defendant because of his

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disability.”

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Furthermore, to succeed on an ADA claim of discrimination on account of one’s

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disability due to an architectural barrier, the plaintiff must also prove that (1) the

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existing facility at the defendant’s place of business presents an architectural barrier

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prohibited under the ADA, and (2) the removal of the barrier is readily achievable.

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Molski v. M.J. Cable, Inc., 481 F.3d 724, 730 (9th Cir. 2007).

Parr v. L&L Drive-Inn Rest., 96 F. Supp. 2d 1065, 1085 (D. Haw. 2000).

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The Court finds that Plaintiff pleaded a valid ADA claim. Here, Plaintiff

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alleges (1) that he is disabled (Compl. ¶1); (2) that Defendants’ business is a place of

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public accommodation (Id. ¶¶ 2, 8); (3) that Plaintiff was denied access to Defendants’

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business because of Plaintiff’s disability (Id. ¶14); (4) that Defendants’ business has

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architectural barriers (including lack of parking spots designated for the disabled and

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accessible routes) (Id. ¶10); and (5) that removal of the architectural barriers is readily

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achievable (Id. ¶20).

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WL1604715, at *3, (E.D. Cal. May 7, 2012) (holding that plaintiff’s allegation that

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architectural barriers “are readily removable” and his plea for injunctive relief to

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remove all readily achievable barriers satisfies his burden).

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allegations are taken as true on default, the Court finds that plaintiff made out a prima

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facie Title III discrimination claim.

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See Johnson v. Hall, No. 2:11-cv-2817-GEB-JFM, 2012

Because plaintiff’s

ii. California Unruh Civil Rights Act
The Unruh Civil Rights Act provides:
“All persons within the jurisdiction of this state are free and
equal, and no matter what their sex, race, color, religion,
ancestry, national origin, disability, medical condition,
marital status, or sexual orientation are entitled to the full
and equal accommodations, advantages, facilities,
privileges, or services in all business establishments of every

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kind whatsoever.”
Cal. Civ. Code. § 51(b).

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Any violation of the ADA necessarily constitutes a violation of the Unruh Act.
Johnson v. Singh, No. 2:10-cv-2547 KJM JFM, 2011 WL 2709365, at *3–4 (E.D. Cal.
July 11, 2011). Because Plaintiff’s complaint properly sets out the necessary elements
for his ADA claim, Plaintiff satisfies the necessary elements for his Unruh Civil
Rights Act claim.

preclude the entry of default judgment on this claim, Eitel, 782 F.2d at 1471–72, the
Court holds that Plaintiff’s Motion for Default Judgment on his Unruh Civil Rights
Act claim be granted.

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3.

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The Amount at Stake Weighs in Favor of Default Judgment

The fourth factor balances the sum of money at stake “in relation to the
seriousness of the action.” Lehman Bros. Holdings Inc. v. Bayporte Enters., Inc., No.
C 11–0961–CW, 2011 WL 6141079, at *7 (N.D. Cal. Oct. 7, 2011) (internal citations
and quotations omitted). The amount at stake must not be disproportionate to the
harm alleged. Id. Default judgment is disfavored where the sum of money at stake is
too large or unreasonable in relation to defendant’s conduct. Truong Giang Corp. v.
Twinstar Tea Corp., No. C 06-03594 JSW, 2007 WL 1545173, at *12 (N.D. Cal. May
29, 2007).

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Therefore, because there are no policy considerations which

Plaintiff seeks a judgment of $8,180.00, inclusive of statutory damages,
attorneys’ fees, and costs. Defendants’ liability also includes the amount spent to
comply with the injunction.3 However, the ADA limits compliance liability to the
removal of barriers that are readily achievable, and in this way caps a defendant’s
liability. Vogel, 992 F. Supp. 2d at 1012. Given Defendants’ failure to appear and
defend, and thus their failure to show that Plaintiff’s requested damages are
unreasonable or that they have complied with the ADA and Unruh Act, the Court
finds that the amount at stake weighs in favor of default judgment.

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Plaintiff seeks injunctive relief for physical barriers, including but not limited to handicap
accessible parking spaces and accessible paths of travel.

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4.

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The next Eitel factor considers the possibility that material facts are disputed.

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PepsiCo, 238 F. Supp. 2d at 1177; Eitel, 782 F.2d at 1471–72. As discussed, Plaintiff

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has adequately alleged disability discrimination in violation of the ADA and the

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Unruh Act by enumerating the barriers at the Store in his complaint. Defendants

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failed to appear and are therefore held to have admitted all material facts alleged in

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Plaintiff’s pleading. See PepsiCo, 238 F. Supp. 2d at 1177 (“Upon entry of default,

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all well-pleaded facts in the complaint are taken as true, except those relating to

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damages”). Since Plaintiff’s factual allegations are presumed true and Defendants

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failed to oppose the motion, no factual disputes exist that would preclude the entry of

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default judgment. This factor, therefore, favors the entry of default judgment against

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the Defendants.

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5.

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Defendants’ default does not appear to be a result of excusable neglect. Rather,

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Defendants were properly served with the Complaint on July 20, 2015. (ECF No. 9.)

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In addition, even after Plaintiff served Defendants with the Request for Entry of

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Default, Defendants failed to appear in this action or otherwise offer any defense.

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(See ECF Nos. 11, 15.) Other courts recognize that a defendant’s failure to respond

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after receiving notice is unlikely to constitute excusable neglect. See, e.g., Craigslist,

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Inc. v. Kerbel, No. 11-3309, 2012 U.S. Dist. LEXIS 108573, at *23 (N.D. Cal. Aug. 2,

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2012) (noting the unlikeliness that the defendant’s default was due to excusable

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neglect, “especially when Plaintiffs served not only the summons and complaint, but

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also the request for entry of default on the Defendant but still received no response.”).

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Accordingly, the sixth Eitel factor favors default judgment.

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There is No Possibility of Dispute as to Material Facts

There is Little Possibility Default was Due to Excusable Neglect

6. Policy for Deciding on the Merits Weights in Favor of Granting Default
Judgment

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In Eitel, the court maintained that “[c]ases should be decided upon their merits

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whenever reasonably possible.” 782 F.2d at 1472. However, where, as in the case at

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bar, a defendant fails to answer the plaintiff’s complaint, “a decision on the merits [is]

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impractical, if not impossible.” PepsiCo, 238 F. Supp. 2d at 1177 (“Under Fed. R.

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Civ. P. 55(a), termination of a case before hearing the merits is allowed whenever a

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defendant fails to defend an action.”). Accordingly, the Court finds the seventh Eitel

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factor does not preclude default judgment.

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C.

Amount of Plaintiff’s Recovery

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1. Statutory Damages

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Plaintiff seeks $4,000 in statutory damages under the Unruh Act. The act

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provides that a plaintiff subjected to discrimination is entitled to recover $4,000 for

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each occasion on which he was denied equal access. Cal. Civ. Code § 52(a). Proof of

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actual damages is not a prerequisite to the recovery of statutory minimum damages.

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Botosan v. Paul McNally Reality, 216 F.3d 827, 835 (9th Cir. 2000). To recover

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statutory damages, a plaintiff need only show that he was denied full and equal access,

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not that he was wholly excluded from the defendant’s services. Hubbard v. Twin

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Oaks Health and Rehabilitation Ctr., 408 F. Supp. 923, 932 (E.D. Cal. 2004). “A

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plaintiff is denied full and equal access only if the plaintiff was deterred from

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accessing a place of public accommodation on a particular occasion.” Cal. Civ. Code

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§ 55.56(b).

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Plaintiff submitted a declaration that provides affirmative evidence of his

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damages. He states that he visited the Store once, encountered an access barrier, and

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was deterred from visiting after because he had personal knowledge of the barriers.

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This suffices to show one violation of the Unruh Act. Thus, an award of $4,000 in

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statutory damages is appropriate.

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2. Injunctive Relief

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Plaintiff also seeks injunctive relief under the ADA and the Unruh Act

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compelling Defendants to remove the barriers at the Store. A court may grant

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injunctive relief for violations of the Unruh Act under § 52.1(h). To be entitled to

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injunctive relief under 42 U.S.C. § 12188(a)(2), Plaintiff must show that Defendants

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violated the ADAAG. “In the case of violations [of the accessibility provisions] of

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this title, injunctive relief shall include an order to alter facilities to make such

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facilities readily accessible to and usable by individuals with disabilities.” Moeller v.

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Taco Bell Corp., 816 F. Supp. 2d 831, 858 (N.D. Cal. 2011). Thus, injunctive relief is

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proper when architectural barriers at defendant’s establishment violate the ADA and

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the removal of the barriers is readily achievable. Moreno v. La Curacao, 463 Fed.

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Appx. 669, 670 (9th Cir. 2011).

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As noted, Plaintiff stated a viable Title III discrimination claim. There are

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barriers at the Store that violate ADAAG, and the removal of those barriers by the

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Defendants are readily achievable so long as Defendants have the ability under the

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lease agreement and state law to access the premises and make the physical changes

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necessary to remove the specific barriers. See 42 U.S.C. § 12181(9) (whether the

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removal of barriers is readily achievable depends, inter alia, on the “administrative or

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fiscal relationship of the facility or facilities in question to the covered entity”).

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Injunctive relief compelling Defendants to remove barriers at the Store, to the

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extent they have the legal right to do so under the lease and state law, so as to make

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the facility readily accessible to and usable by individuals with disabilities is therefore

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appropriate. Specifically, Defendants are enjoined to remove all architectural barriers

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identified in Plaintiff’s complaint, i.e. Defendants must create a van-accessible

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parking space that is appropriately labeled and widen the width of the aisles to the

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extent they have control over these aspects of the store under their lease and state law.

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See 28 C.F.R. § 36.304.

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3. Attorneys’ Fees

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Plaintiff also requests attorney’s fees and costs. Attorneys’ fees in default

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judgments are set by Local Rule 55-3. Absent special circumstances, in judgments

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between $1,000.01 and $10,000, the court sets attorneys’ fees at $300 plus 10% of the

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amount awarded over $1,000. See L.R. 55-3. The Court has already awarded Plaintiff

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a total of $4,000 in statutory damages; therefore, attorneys’ fees in the amount of $600

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is appropriately awarded to Plaintiff as well. See Moreno, 463 Fed. Appx. at 671 (a

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district court does not abuse its discretion by awarding attorneys’ fees under the

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default fee schedule).

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4. Costs

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As the prevailing party, Plaintiff is also entitled to costs as set forth in 29 U.S.C.

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§ 1920, Federal Rule of Civil Procedure 54(d)(1), and Local Rule 54-2. The Court

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accepts counsel's declaration regarding costs and accordingly awards $440.00 in costs.

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VI. CONCLUSION

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For the reasons stated, the Court grants Plaintiff’s application for default

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judgment against Defendants. The Court awards $4,000 in statutory damages, $600 in

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attorneys’ fees, and $440 in costs.

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Defendants, compelling them to create a van-accessible parking space that is

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appropriately labeled and comply with all other ADAAG requirements to the extent

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they have the power to do so under the terms of any applicable lease agreement and

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state law.

The Court also enters an injunction against

IT IS SO ORDERED.

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October 29, 2015

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____________________________________
OTIS D. WRIGHT, II
UNITED STATES DISTRICT JUDGE

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