Rafael Arroyo, Jr. v. Ann J. Choi et al

Filing 24

ORDER GRANTING PLAINTIFFS MOTION FOR DEFAULT JUDGMENT 20 by Judge Otis D. Wright, II (lc)

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No JS-6

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United States District Court
Central District of California

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RAFAEL ARROYO, JR.,
Plaintiff,

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Case No. 2:17-cv-01770-ODW(GJSx)

v.

ORDER GRANTING PLAINTIFF’S

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ANN J. CHOI, in individual and

MOTION FOR DEFAULT

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representative capacity as trustee; JSK

JUDGMENT [20]

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INTERNATIONAL, INC., a California

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Corporation; and DOES 1-10,
Defendants.

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I.

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INTRODUCTION

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Before the Court is Plaintiff Rafael Arroyo, Jr.’s motion for default judgment.

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(ECF No. 20.) For the following reasons, the Court GRANTS Plaintiff’s motion and

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awards him $5,056.50.
II.

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FACTUAL BACKGROUND

Plaintiff is a paraplegic who uses a wheelchair for mobility. (Compl. ¶ 1, ECF

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No. 1.)

According to Plaintiff, Defendants Ann J. Choi and JSK International

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Corporation own the real property at issue and the APEX gas station (“Gas Station”),

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respectively. (Id.¶¶ 4, 5.) The Gas Station is located in South Gate, California. (Id.¶

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5.) Plaintiff alleges that in January 2017, he visited the Gas Station and personally

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encountered barriers that denied him “full and equal access and caused him difficulty

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and frustration.” (Id. ¶¶ 10, 33.) Plaintiff allegedly encountered the following barriers

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during his visit:

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1. No accessible parking spaces for use by persons with disabilities. (Id. ¶ 20.)

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2. Restroom doorway inaccessible to wheelchair users. (Id. ¶ 26.)

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3. Transaction counter inaccessible to wheelchair users. (Id. ¶ 29.)

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Moreover, although Plaintiff did not personally encounter other barriers, he

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alleges that the toilet, mirror, and restroom sink were not accessible to wheelchair

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users. (Id.¶¶ 34–46.) Plaintiff seeks to have all barriers related to his disability

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remedied. (Id.¶ 43.) Plaintiff states that he would like to return and patronize the Gas

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Station again but is deterred from doing so because he has been discriminated against

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due to the lack of accessible facilities. (Id. ¶ 61.)

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Plaintiff filed his Complaint on March 6, 2017, 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”). On March 17 and March 24 of 2017, Plaintiff filed Proof of

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Service for Defendants Ann J. Choi and JSK International, Inc., respectively. (ECF

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Nos. 10, 11.) On April 4 and April 14, 2017, the Clerk entered default on both

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Defendants. (ECF No. 14.) Plaintiff served Defendants with a notice of the default

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judgment application on April 21, 2017. (See ECF No. 20.) Finally, on May 30,

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2017, Plaintiff filed the pending default judgment application against Defendants.

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(ECF No. 20.) Plaintiff seeks injunctive relief, statutory damages, attorneys’ fees, and

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costs of litigation. (Prayer, ECF No. 1.)

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III.

LEGAL STANDARD

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Pursuant to FRCP 55(b), a Court may grant default judgment against parties

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after the Clerk enters default under Rule 55(a). See PepsiCo Inc., v. Cal. Security

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Cans, 238 F. Supp. 2d 1172, 1174 (C.D. Cal. 2002). A district court has discretion

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

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1980). In exercising its discretion, a court must consider several factors, including:

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(1) the possibility of prejudice to plaintiff; (2) the merits of plaintiff’s substantive

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claim; (3) the sufficiency of the complaint; (4) the sum of money at stake; (5) the

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possibility of a dispute concerning material facts; (6) whether the defendant’s default

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was due to excusable neglect; and (7) the strong policy underlying the Federal Rules

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of Civil Procedure favoring decisions on the merits. Eitel v. McCool, 782 F.2d 1470,

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1471–72 (9th Cir. 1986).

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Upon default, the defendant’s liability generally is conclusively established, and

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

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

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

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sufficiently establish liability, the court must then determine the “amount and

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character” of the relief that should be awarded. Elektra Entm’t Grp. Inc. v. Crawford,

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226 F.R.D. 388, 394 (C.D. Cal. 2005).
IV.

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DISCUSSION

For the following reasons, The Court finds that the Plaintiff meets the

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requirements for default judgment.

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A.

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 the Federal Rules

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of 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.

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Plaintiff has satisfied these requirements. In accordance with FRCP 54(c),

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Plaintiff asks for the same remedy pleaded in the Complaint. (See ECF Nos. 1, 20.)

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In accordance with FRCP 55, Plaintiff served default notice on the Defendants

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identified in the pleading and states that Defendants are not minors, incompetent

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persons, or in military service. (ECF Nos. 20, 20-4.) Accordingly, the Court finds

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that Plaintiff complied with the procedural default entry requirements.

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B.

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Plaintiff’s Motion for Default Judgment
The Court finds that the Eitel factors favor default judgment. The Court will

discuss each factor in turn.

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1. Plaintiff Would Suffer Prejudice if Default Is Not Entered

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

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judgment is not entered. PepsiCo, 238 F. Supp. 2d at 1177. When a defendant fails to

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appear and defend the claims, a plaintiff will be without recourse and suffer prejudice

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unless default judgment is entered. Id. Plaintiff argues that he suffered and will

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continue to suffer discrimination due Defendants’ failure to comply with the ADA and

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Unruh Act. (ECF Nos. 1, 20-1.) Defendants failed to appear to contest this allegation.

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Accordingly, without default judgment, Plaintiff would be left without recourse and

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would suffer prejudice for the damages he incurred as a result of Defendants’ conduct.

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Therefore, this factor favors entry of default judgment.

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2. Arroyo Brought a Meritorious and Sufficiently Pled Claim

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The second and third Eitel factors “require that a plaintiff state a claim on

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which it may recover.” PepsiCo, 238 F. Supp. 2d at 1175.

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i.

Plaintiff Has Standing to Bring his ADA Claim

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Plaintiff must have Article III standing to bring an ADA claim. Vogel v. Rite

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Aid Corp., 992 F. Supp. 2d 998, 1008 (C.D. Cal. 2014). To establish standing, a

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plaintiff must demonstrate that he or she has suffered an injury in fact, that the injury

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is traceable to the defendant’s challenged conduct, and that the injury can be redressed

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by a favorable decision. Hubbard v. Rite Aid Corp., 433 F. Supp. 2d 1150, 1162 (S.D.

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Cal. 2006). In addition, for Plaintiff to obtain injunctive relief, he must demonstrate a

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significant possibility of future harm. See San Diego Cnty. Gun Rights Comm. v.

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Reno, 98 F.3d 1121, 1126 (9th Cir. 1996).

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Here, Plaintiff properly alleges that the lack of accessible facilities at the Gas

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Station deterred him from patronizing the business. Plaintiff also alleges that he plans

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to return to the Gas Station but will continue to be discriminated against if the barriers

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are not removed. (ECF No. 1.) In addition, Plaintiff alleges that the Defendants’

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failure to remove the barriers was intentional and was the cause of his inability to

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patronize the establishment.

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damages and an injunction to redress his alleged injury. Therefore, the Court finds

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that Plaintiff meets the standing requirements, including those for injunctive relief.

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ii.

(Id.)

Finally, Plaintiff seeks an award of statutory

Plaintiff Has a Valid Claim Under the ADA

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Under Title III of the ADA, “no individual shall be discriminated against on the

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basis of disability in the full and equal enjoyment of the goods, services, facilities,

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privileges, advantages or accommodations of any place of public accommodation.”

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42 U.S.C. § 12182(a). To prevail on an ADA claim, “the plaintiff must show that (1)

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he is disabled within the meaning of the ADA; (2) the defendant is a private entity that

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owns, leases, or operates a place of public accommodation; and (3) the plaintiff was

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denied public accommodations by the defendant because of his disability.”

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

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discrimination prohibited by the ADA is failure to remove architectural barriers. 42

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U.S.C. § 12182(b)(2)(A)(iv). To prevail on such a claim, the plaintiff must show that

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(1) the existing facility at the defendant’s place of business presents an architectural

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barrier prohibited by the ADA; and (2) the barrier removal is readily achievable. Parr

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

See

One form of

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Plaintiff pleads a valid ADA claim. Plaintiff alleges (1) he is a paraplegic, and

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that (2) Defendants’ Gas Station is a business open to the public (3) with architectural

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barriers deterring him from visiting due to his disability. (ECF No. 1.)

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Plaintiff also contends that the architectural barriers violate the Americans with

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Disabilities Act Accessibility Guidelines (“ADAAG”).

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Imports (U.S.) Inc., 631 F.3d 939, 945 (9th Cir. 2011) (stating that barriers are

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See Chapman v. Pier 1

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determined, in part, by reference to the ADAAG). Indeed, the ADAAG § 4.1.2(5)

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(1991) and § 208 (2010) provide that businesses must offer accessible parking spaces.

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These accessibility specifications are to be addressed by the state or local laws or

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regulations. See 36 C.F.R. Part 1191, § 502.3.3. The California Building Code

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(CBC) § 1129B.4 provides that, in addition to a reflectorized sign with the

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international accessibility symbol, clear “Minimum $250 Fine” and tow-away signage

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must also be posted. Finally, CBC § 1129B.3 provides that there must be a blue

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border around the surface of the access aisle with the words “NO PARKING” painted

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on it. Here, Plaintiff alleges that while there was one parking space that appeared to

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be for wheelchair users, there was no access aisle and no “NO PARKING,” minimum

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fine or tow-away signage (ECF No. 20-1.)

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In addition, the ADAAG § 4.22.2 (1991) and § 4.13.5 & 404.2.3 (2010) require

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that all doors to restrooms must have a minimum clear opening of 32 inches.

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ADAAG § 7.2.1 (1991) and § 904.4.1 (2010) also require that transaction counters

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must be a maximum 36 inches tall. Finally, the ADAAG require two grab bars on

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walls adjacent to the toilet (§ 4.16.4 and § 604.5), mirrors mounted no higher than 40

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inches above the ground (§ 4.19.6 and § 603.3), and sink knee clearance of least 29

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inches (§ 4.19.2 and § 606.2). Here, the restroom doorway passage width was less

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than 32 inches and the transaction counter height over 36 inches, with no lowered

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portion for persons in wheelchairs. Additionally, there were no grab bars near the

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toilet, the mirror was mounted higher than permitted, and there was no sink knee

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clearance. (Compl. ¶¶ 34–36.)

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Finally, Plaintiff alleges that removal of these barriers is readily achievable and

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that alternative accommodations can be made in cases where complete removal is not

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possible. (Compl. ¶ 39.) For example, Plaintiff asserts that painting companies will

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install compliant signage on rapid notice at $300 and that general contractors can

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adjust transaction counters. (Id.)

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Plaintiff’s allegations satisfy his burden of production. See Vogel, 992 F. Supp.

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2d at 1011 (compiling cases and holding that a Plaintiff’s allegations that architectural

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barriers are easily removable was sufficient because Plaintiff’s allegations are taken as

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true on default). Furthermore, examples of readily achievable steps to remove barriers

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under 28 C.F.R. § 36.304 (b) include creating designated accessible parking spaces,

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widening doors, and installing grab bars and full-length mirrors.

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Defendants, since they failed to appear and defend, they failed to meet their burden of

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proof. The Court thus concludes that Plaintiff meets all the elements of a Title III

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discrimination claim and has a stated cause of action under the ADA.

As to the

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iii.

Plaintiff Has a Valid Claim Under the Unruh Civil Rights Act

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The Unruh Civil Rights Act provides that “all persons within the jurisdiction of

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this state are free and equal, and no matter. . . [their] disability, [or] medical condition.

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. . are entitled to the full and equal accommodations, advantages, facilities, privileges

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or services in all business establishments of every kind whatsoever.” Cal. Civ. Code §

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51 (b). A violation of the ADA necessarily constitutes a violation of the Unruh Act.

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Cal. Civ. Code § 51(f). Since Plaintiff properly alleges a cognizable ADA claim, he

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also properly alleges a cognizable Unruh Act claim. Therefore, the Court determines

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that Plaintiff’s claim is valid under the Unruh Act as well.

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3. The Sum of Money at Stake Weighs in Favor of Default Judgment

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The fourth Eitel factor considers “the amount of money at stake in relation to

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the seriousness of Defendant’s conduct” in order to determine whether the damages

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are proper for the scope of default judgment. PepsiCo, 238 F. Supp. 2d 1172, 1176–

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77 (C.D. Cal. 2002).

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damages, attorneys’ fees, and costs. (ECF No. 20-1.) While the Court reduces the

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amount of attorneys’ fees requested (discussed below), $8,605.00 as it applies here

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does not appear objectively unreasonable in light of the defendants’ six alleged ADA

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violations. See Vogel, 992 F. Supp. 2d at 1012 (holding that $13,739.20 in damages

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and fees was reasonable for nine ADA violations). Therefore, the Court finds that the

Plaintiff seeks an award of $8,605.00, including statutory

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amount of money at stake favors default.

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4. There Is No Possibility of Dispute as to Material Facts

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The fifth Eitel factor examines whether material facts are disputed. Eitel, 782

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F.2d at 1471–72. Upon default, all well-pleaded facts in the complaint are taken as

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true, except those relating to damages. PepsiCo, 238 F. Supp. 2d at 1177. As

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discussed above, Plaintiff adequately alleged his ADA and Unruh Act discrimination

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claims by listing in his Complaint the barriers he encountered at the Gas Station.

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Further, while the photographs submitted in support of Plaintiff’s Complaint do not

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show the complete restroom doorway and counter measurements, Plaintiff’s

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declarations, under penalty of perjury, assert that he encountered the alleged barriers

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on his way to make a purchase at the Gas Station. (See ECF Nos. 1, 20-5, 20-7.)

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Overall, Plaintiff’s allegations appear plausible. Further, since Defendants failed to

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respond to the Complaint and failed to appear, they are held to have admitted all

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material facts alleged in Plaintiff’s pleading. See PepsiCo, 238 F. Supp. 2d at 1177.

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Accordingly, there is little to no possibility of a dispute as to material facts that would

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preclude granting the motion. Thus, this factor favors default.

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5. There Is Little Possibility Default Was Due to Excusable Neglect

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Defendants’ failure to respond after receiving notice is unlikely to constitute

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excusable neglect. See Craiglist, Inc. v. Kerbel, No. 11-3309 at *23, 2012 WL

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3166798 (N.D. Cal. Aug. 2, 2012) (deciding that since plaintiffs served defendants

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with the complaint and request for entry of default, the defendants’ default was

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unlikely due to excusable neglect).

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Complaint and request for entry of default. (ECF No. 20.) Yet Defendants failed to

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appear or provide a defense. Defendants’ default is thus likely not due to excusable

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neglect. Accordingly, this factor favors entry of default judgment.

Here, Plaintiff served Defendants with the

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6. Policy for Deciding on the Merits Does Not Preclude Default Judgment

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“Cases should be decided upon their merits whenever reasonably possible.”

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Eitel, 782 F.2d at 1472. However, “a decision on the merits [is] impractical, if not

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impossible” when a defendant fails to answer the plaintiff’s complaint. PepsiCo Inc.,

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238 F. Supp. 2d at 1177 (noting that “termination of a case before hearing the merits is

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allowed whenever a defendant fails to defend an action.”). Here, a decision on the

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merits is not possible because Defendants failed to answer the Complaint.

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Accordingly, this factor does not preclude default judgment.

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C.

Amount of Plaintiff’s Recovery

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Plaintiff seeks injunctive relief, $4,000.00 in statutory damages, $4,165.00 in

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attorneys’ fees, and $440.00 in costs, for a total of $8,605.00. The Court will discuss

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each separately.

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1. Injunctive Relief

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Plaintiff seeks injunctive relief under the ADA and Unruh Act to compel

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Defendants to remove the barriers at the Gas Station. Injunctive relief is proper when

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architectural barriers at a defendant’s establishment violate the ADA and the removal

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of barriers is readily achievable. Moreno v. La Curacao, 463 Fed. Appx. 669, 670

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(9th Cir. 2011). A court may also grant injunctive relief for violations of the Unruh

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Act under §52.1(h). If violations exist, injunctive relief “shall include an order to alter

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facilities to make such facilities readily accessible to and usable by individuals with

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disabilities.” See Moeller v. Taco Bell Corp., 816 F. Supp. 2d 858, 859 (N.D. Cal.

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2011).

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Injunctive relief is appropriate here.

Plaintiff states a meritorious

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discrimination claim under ADA Title III. There are several architectural barriers at

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the Gas Station that violate the ADA, and the removal of those barriers is readily

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achievable so long as the Defendants have the legal right under the lease or state law

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to make the necessary alterations to the premises. See 42 U.S.C 12181(9) (stating that

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

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administrative relationship of the facility to the covered entity”).

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Defendants are enjoined to remove the barriers identified in Plaintiff’s Complaint, to

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the extent that it is permitted under the lease or state law. See 28 C.F.R. 36.304.

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Therefore,

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2. Statutory Damages

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Plaintiff seeks $4,000.00 in statutory damages under the Unruh Act. The Unruh

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Act provides that a plaintiff subjected to discrimination is entitled to no less than

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$4,000.00. Cal. Civ. Code § 52(a). A plaintiff need only show that he was denied full

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and equal access. Hubbard v. Twin Oaks Health and Rehab. Ctr., 408 F. Supp. 923,

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932 (E.D. Cal. 2004) (holding that “a plaintiff is denied full and equal access only if

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the plaintiff was deterred from accessing a place of public accommodation on a

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particular occasion”).

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barriers at the Gas Station denied him full and equal access by deterring him from

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accessing several public areas. Accordingly, Plaintiff meets the requirements of the

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Unruh Act, and an award of $4,000.00 in statutory damages is appropriate.

Here, Plaintiff submitted sufficient evidence showing that

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3. Attorneys’ Fees

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Plaintiff requests $4,165.00 in attorneys’ fees. (See ECF No. 20-4.) Local Rule

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55-3 provides that for judgments between $1,000.00 and $10,000.00, the court may

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set attorneys’ fees at $300.00 plus 10% of the amount awarded over $1,000.00. The

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Court awarded Plaintiff $4,000.00 in statutory damages.

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awards Plaintiff $616.50 in attorneys’ fees. See Moreno, 463 Fed. Appx. at 671

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(ruling that though the Plaintiff considered a similar $600 fee to be inadequate, “the

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district court did not abuse its discretion in awarding attorneys’ fees under the default

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fee schedule.”).

Accordingly, the Court

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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, FRCP 54 (d)(1), and Local Rule 54-2. The Court accepts counsel’s declaration

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and awards $440.00 in costs. (See ECF No. 20.)
V.

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CONCLUSION

For the reasons discussed above, the Court GRANTS Plaintiff’s motion for
default judgment (ECF No. 20.)

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