Antonio v. Muhareb et al

Filing 26

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 4/28/2016 RECOMMENDING that plaintiff's 22 motion for default judgement against defendant The Waffer Shop, Inc. be granted. Plaintiff be awarded statutory damages in the amount of $8,000.00 and attorneys' fees and costs in the amount of $4,890.00, for the total sum of $12,890.00. Plaintiff be granted an injunction requiring defendant to provide readily achievable property alterations. The Clerk of Court be directed to close this case. Motion referred to Judge John A. Mendez. Objections to F&R due within 14 days. (Zignago, K.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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FELIPE ANTONIO,

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Plaintiff,

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No. 2:14-cv-1278 JAM CKD

v.

FINDINGS AND RECOMMENDATIONS

SHAFIQ MUHAREB, et al.,

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Defendants.

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Plaintiff’s motion for default judgment came on regularly for hearing April 27, 2016.

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Amanda Lockhart appeared for plaintiff. No appearance was made for defendant.1 Upon review

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of the documents in support, no opposition having been filed, upon hearing the arguments of

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counsel, and good cause appearing therefor, THE COURT FINDS AND ORDERS AS

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FOLLOWS:

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Plaintiff is a paraplegic who uses a wheelchair. Defendant operates a restaurant located in

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Oroville, California. The complaint alleges that plaintiff visited the subject establishment in July,

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2013 and April, 2014 and encountered architectural barriers which denied him full and equal

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access.

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The two individually named defendants have been dismissed from this action. ECF Nos. 9, 21.
The sole remaining defendant is The Waffle Shop, Inc.
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The record reflects that defendant The Waffle Shop, Inc. acknowledged receipt of

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summons and the complaint on August 12, 2014. ECF No. 6. Default was entered on September

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March 10, 2016. ECF No. 20. Plaintiff thereafter filed a motion for default judgment with a

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proof of service reflecting service of the motion on defendant. Plaintiff seeks an entry of default

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judgment in the amount of $8,000 pursuant to California Civil Code section 52(a)2 and attorneys’

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fees and costs in the amount of $4,890.00 as well as injunctive relief.3

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Entry of default effects an admission of all well-pleaded allegations of the complaint by

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the defaulted party. Geddes v. United Financial Group, 559 F.2d 557 (9th Cir. 1977). The court

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finds the well pleaded allegations of the complaint state a claim for which relief can be granted.

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Anderson v. Air West, 542 F.2d 1090, 1093 (9th Cir. 1976). The memorandum of points and

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authorities and affidavits filed in support of the motion for entry of default judgment also support

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the finding that plaintiff is entitled to the relief in the form of statutory damages, attorneys’ fees

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and injunctive relief requested in the prayer for default judgment, which does not differ in kind

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from the relief requested in the complaint. Henry v. Sneiders, 490 F.2d 315, 317 (9th Cir.), cert.

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denied, 419 U.S. 832 (1974). Plaintiff is entitled to statutory damages for each “offense,” i.e.,

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each obstructed visit. See Lentini v. Cal. Ctr. for the Arts, 370 F.3d 837, 847 (9th Cir. 2004); see

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also Feezor v. DeTaco, Inc., 431 F.Supp.2d 1088 (S.D. Cal. 2005). The amount of attorneys’ fees

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requested by plaintiff is reasonable. With respect to plaintiff’s claim for injunctive relief, the

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court finds that defendant has failed to provide an accessible restroom, as required by 28 Code of

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Federal Regulations, Part 36, Appendix D, (“ADAAG”). There are no policy considerations

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which preclude the entry of default judgment of the type requested. See Eitel v. McCool, 782

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F.2d 1470, 1471-1472 (9th Cir. 1986) (factors that may be considered by the court are possibility

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of prejudice to the plaintiff, merits of plaintiff’s substantive claim, sufficiency of the complaint,

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sum of money at stake in the action; possibility of a dispute concerning material facts; whether

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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).
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Plaintiff seeks injunctive relief requiring defendant to remove identified architectural barriers
only to the extent such alterations are readily achievable.
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the default was due to excusable neglect, and strong policy underlying the Federal Rules of Civil

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Procedure favoring decisions on the merits).

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Accordingly, IT IS HEREBY RECOMMENDED that:

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1. Plaintiff’s motion for default judgment (ECF No. 22) against defendant The Waffle

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Shop, Inc. be granted;
2. Plaintiff be awarded statutory damages in the amount of $8,000.00 and attorneys’ fees
and costs in the amount of $4,890.00, for the total sum of $12,890.00.
3. Plaintiff be granted an injunction requiring defendant to provide readily achievable

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property alterations to the property known as “The Waffle Shop, Inc.” a facility located at 2107

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Feather River Blvd., Oroville, California that consist of the following, all in accordance with the

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Americans With Disabilities Act of 1990 (ADA) and the Americans With Disabilities Act

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Accessibility Guidelines (ADAAG) contained in 28 Code of Federal Regulations Part 36,

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Appendix D: an accessible restroom (ADAAG (1991 Standards) 4.22.2, 4.13.5, 4.19.4, 4.2.6;

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ADAAG (2010 Standards) 308.3).

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4. The Clerk of Court be directed to close this case.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections

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within the specified time may waive the right to appeal the District Court’s order. Martinez v.

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Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: April 28, 2016

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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4 antonio1278.def

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