Johnson v. Leddy et al

Filing 14

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 8/16/2013 recommending that 12 Motion for default judgment against defendants be granted; that plaintiff be awarded statutory damages in the amount of $8,000; and th at plaintiff be granted an injunction requiring defendants to provide a readily achievable property alteration to the property located at 746 N. Texas Street, Fairfield, CA that consists of a van accessible disabled parking space; and that Clerk be directed to close this case; 1 Complaint referred to Judge John A. Mendez; any party may file Objections to F&R within 14 days after being served; failure to file objections within the specified time may waive the right to appeal. (Waggoner, D)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SCOTT JOHNSON, 12 13 14 15 No. 2:12-cv-0951 JAM CKD Plaintiff, v. FINDINGS AND RECOMMENDATIONS ADRIEL LEDDY, Defendant. 16 17 Presently before the court is plaintiff’s motion for default judgment. This matter was 18 submitted without oral argument. The undersigned has fully considered the briefs and record in 19 this case and, for the reasons stated below, will recommend that plaintiff’s motion for default 20 judgment be granted. 21 Plaintiff is a permanently disabled wheelchair user. Defendant Leddy operates the “Tatt 22 Magic Tattoo Studio” located at 746 N. Texas Street in Fairfield, California. Defendants Richard 23 and Donald Houghton own the property on which the establishment is situated. The complaint 24 alleges that plaintiff visited the subject establishment two times and encountered architectural 25 barriers which denied him full and equal access. 26 The record reflects that defendants were properly served and default was entered on July 27 23, 2012. ECF Nos. 5, 6, 7, 9. Plaintiff thereafter filed a motion for default judgment with a 28 proof of service reflecting service of the motion on defendants. Plaintiff seeks an entry of default 1 1 judgment in the amount of $8,000 pursuant to California Civil Code section 52(a)1 as well as 2 injunctive relief.2 3 Entry of default effects an admission of all well-pleaded allegations of the complaint by 4 the defaulted party. Geddes v. United Financial Group, 559 F.2d 557 (9th Cir. 1977). The court 5 finds the well pleaded allegations of the complaint state a claim for which relief can be granted. 6 Anderson v. Air West, 542 F.2d 1090, 1093 (9th Cir. 1976). The memorandum of points and 7 authorities and affidavits filed in support of the motion for entry of default judgment also support 8 the finding that plaintiff is entitled to the relief in the form of statutory damages and injunctive 9 relief requested in the prayer for default judgment, which does not differ in kind from the relief 10 requested in the complaint. Henry v. Sneiders, 490 F.2d 315, 317 (9th Cir.), cert. denied, 419 11 U.S. 832 (1974). Plaintiff is entitled to statutory damages for each “offense,” i.e., each obstructed 12 visit. See Lentini v. Cal. Ctr. for the Arts, 370 F.3d 837, 847 (9th Cir.2004); see also Feezor v. 13 DeTaco, Inc., 431 F.Supp.2d 1088 (S.D. Cal. 2005).3 With respect to plaintiff’s claim for 14 injunctive relief, the court finds that defendant has failed to provide a van accessible disabled 15 parking space, as required by 28 Code of Federal Regulations, Part 36, Appendix D, (“ADAAG”) 16 4.6. There are no policy considerations which preclude the entry of default judgment of the type 17 requested. See Eitel v. McCool, 782 F.2d 1470, 1471-1472 (9th Cir. 1986) (factors that may be 18 considered by the court are possibility of prejudice to the plaintiff, merits of plaintiff’s substantive 19 claim, sufficiency of the complaint, sum of money at stake in the action; possibility of a dispute 20 concerning material facts; whether the default was due to excusable neglect, and strong policy 21 underlying the Federal Rules of Civil Procedure favoring decisions on the merits). 22 ///// 23 1 24 The Unruh Civil Rights Act provides, in relevant part, for a minimum statutory damage amount of $4,000 per violation. Cal. Civ. Code § 52(a). 25 2 26 27 28 Plaintiff seeks injunctive relief requiring defendants to remove identified architectural barriers only to the extent such alterations are readily achievable. 3 The complaint alleges two actual visits, identifying the date of one visit. Plaintiff’s declaration identifies three additional dates on which visits were made to the subject establishment. Plaintiff seeks statutory damages only for two actual visits. 2 1 Accordingly, IT IS HEREBY RECOMMENDED that: 2 1. Plaintiff’s motion for default judgment (ECF No. 12) against defendants be granted; 3 2. Plaintiff be awarded statutory damages in the amount of $8,000.00. 4 3. Plaintiff be granted an injunction requiring defendants to provide a readily achievable 5 property alteration to the property located at 746 N. Texas Street in Fairfield, California that 6 consists of the following, all in accordance with the Americans With Disabilities Act of 1990 7 (ADA) and the Americans With Disabilities Act Accessibility Guidelines (ADAAG) contained in 8 28 Code of Federal Regulations Part 36, Appendix D: a van accessible disabled parking space 9 (ADAAG 4.6). 10 4. The Clerk of Court be directed to close this case. 11 These findings and recommendations are submitted to the United States District Judge 12 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 13 after being served with these findings and recommendations, any party may file written 14 objections with the court and serve a copy on all parties. Such a document should be captioned 15 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 16 within the specified time may waive the right to appeal the District Court’s order. Martinez v. 17 Ylst, 951 F.2d 1153 (9th Cir. 1991). 18 Dated: August 16, 2013 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 4 .johnson-leddy.def 24 25 26 27 28 3

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