Johnson v. Yaghoubian et al

Filing 53

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 10/23/2017 RECOMMENDING that 49 Motion for Default Judgment be GRANTED IN PART; Judgment be entered in plaintiffs favor and against defendants Mazyar Yaghoubia n, Chris Camp, Kareem Ahmed, and Bao Hoang; Plaintiff be awarded statutory damages in the amount of $8,000.00; Plaintiff be awarded attorneys' fees and costs in the amount of $4,620.00; Plaintiff be granted an injunction requiring defe ndants to provide readily achievable property alterations in the form of accessible handicap parking, accessible walkways, and accessible thresholds/entrances to Accessorize It and Donna's Hair and Nails Parlor, located at or about 3811 Florin R d, Sacramento, California, in compliance with the ADA and the ADA Accessibility Guidelines. The Clerk of Court be directed to vacate all dates and close this case. ORDERING that plaintiff shall forthwith serve copies of this order and findings and recommendations on defendants by U.S. mail at their last-known addresses. Referred to Judge Troy L. Nunley. Objections due within 14 days after being served with these findings and recommendations.(Washington, S)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SCOTT JOHNSON, 12 Plaintiff, 13 14 No. 2:16-cv-02299-TLN-CKD v. ORDER AND FINDINGS AND RECOMMENDATIONS MAZYAR YAGHOUBIAN, et. al., 15 Defendants. 16 Presently pending before the court is plaintiff Scott Johnson’s motion for default judgment 17 18 against defendants Mazyar Yaghoubian, Chris Camp, Kareem Ahmed, and Bao Hoang.1 (ECF 19 No. 49.) Defendants have failed to file an opposition to the motion for default judgment in 20 accordance with Local Rule 230(c). This motion came on regularly for hearing on October 18, 21 2017. (ECF No. 52.) Sara Gunderson appeared telephonically on behalf of plaintiff. Defendants 22 did not appear. Upon review of the documents in support and opposition, upon hearing the 23 arguments of counsel, and good cause appearing therefor, THE COURT FINDS AS FOLLOWS: 24 ///// 25 ///// 26 27 28 1 The complaint names these four defendants, and Does 1–10. (ECF No. 1.) Plaintiffs do not seek default against Doe defendants, who remain unidentified. Accordingly, Doe defendants are dismissed. 1 1 2 I. BACKGROUND Plaintiff initiated this action on September 27, 2016, alleging violations of the Americans 3 with Disabilities Act and the Unruh Civil Rights Act. (ECF No. 1.) Plaintiff, a level C-5 4 quadriplegic who cannot walk, has significant manual dexterity impairments, and uses a 5 wheelchair and a specially-equipped van, alleged that defendant Mazyar Yaghoubian owns the 6 real property located at or about 3811 Florin Road, Sacramento, California; that defendants Chris 7 Camp and Kareem Ahmed own Accessorize It (“Store”) at this location; and that defendant Bao 8 Hoang owns Donna’s Hair and Nails Parlor (“Parlor”) at this location. (Id. at 1–3.) 9 Plaintiff alleged that he went to the Store in June and July of 2016, intending to shop, and 10 that he went to the Parlor in July of 2016. (Id. at 4.) According to plaintiff, he encountered the 11 following architectural barriers to access at the property and establishments in violation of the 12 ADA and the ADA Accessibility Guidelines: no accessible handicap parking spaces, no 13 accessible walkways, and no accessible thresholds/entrances to the Store and Parlor. (Id. at 4–6.) 14 Plaintiff alleged that he frequently visits the Sacramento area, and that he had visited the business 15 on scores of occasions. (Id. at 6.) Plaintiff further alleged that he encountered barriers when he 16 purchased items in the store in June and July of 2016, and when he got his hair cut at the Parlor in 17 July of 2016. (Id.) Further, he claimed that he visited both businesses on two other occasions but 18 was deterred from going inside. (Id.) Additionally, plaintiff maintained that defendants had the 19 means and ability to remove these barriers to access. (Id. at 7.) Plaintiff’s complaint sought inter 20 alia injunctive relief; statutory damages; and attorneys’ fees, litigation expenses, and costs of suit. 21 (Id. at 11–12.) 22 All defendants were served between October 4, 2016 and November 11, 2016. (ECF Nos. 23 4–6, 9.) Defendants Hoang and Yaghoubian failed to appear, plead, or answer the complaint, and 24 plaintiff moved for entry of default against each. (See ECF Nos. 7, 16.) Accordingly, the Clerk 25 of the Court entered default as to defendants Hoang and Yaghoubian on November 10, 2016 and 26 December 7, 2016, respectively. (See ECF Nos. 8, 17.) 27 28 Thereafter, on December 16, 2016, defendants Camp and Ahmed filed an answer. (ECF No. 20.) The court issued a pretrial scheduling order on February 23, 2017, setting forth 2 1 deadlines for discovery. (See ECF No. 24.) However, since filing their answer, Camp and 2 Ahmed have been entirely unresponsive to plaintiff and the court. As a result, plaintiff moved to 3 compel initial responses and initial disclosures. (ECF Nos. 26, 28.) The court granted each 4 motion, ordering Camp and Ahmed to serve initial responses and disclosures. (ECF Nos. 32, 39.) 5 The court also warned that failure to comply may result in their answer being stricken and default 6 being entered. (Id.) Camp and Ahmed did not comply with, or respond to, either order. 7 Plaintiff subsequently filed motions for Rule 37(b)(2)(A) & (C) sanctions, based on 8 Camp’s and Ahmed’s failure to serve initial responses and initial disclosures, as ordered. (ECF 9 Nos. 33, 42.) Camp and Ahmed failed to respond to these motions or to attend any hearings. 10 Thus, the court ordered Camp and Ahmed to pay $650.00 in sanctions. (ECF No. 41.) Then, 11 after they remained unresponsive, the court struck their answer and ordered Camp and Ahmed to 12 pay $580.00 to plaintiff in additional sanctions. (ECF No. 47.) On August 11, 2017, the Clerk of 13 the Court entered default against defendants Camp and Ahmed. 14 Thereafter, plaintiff brought the pending motion for default judgment against all named 15 defendants, through which he seeks injunctive relief for removal of unlawful architectural barriers 16 pursuant to the ADA; statutory damages pursuant to California’s Unruh Civil Rights Act; and 17 attorneys’ fees and costs pursuant to the ADA and California’s Unruh Civil Rights Act. (See 18 ECF No. 49.) 19 II. 20 LEGAL STANDARDS Pursuant to Federal Rule of Civil Procedure 55, default may be entered against a party 21 against whom a judgment for affirmative relief is sought who fails to plead or otherwise defend 22 against the action. See Fed. R. Civ. P. 55(a). However, “[a] defendant’s default does not 23 automatically entitle the plaintiff to a court-ordered judgment.” PepsiCo, Inc. v. Cal. Sec. Cans, 24 238 F. Supp. 2d 1172, 1174 (C.D. Cal. 2002) (citing Draper v. Coombs, 792 F.2d 915, 924-25 25 (9th Cir. 1986)). Instead, the decision to grant or deny an application for default judgment lies 26 within the district court’s sound discretion. Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 27 1980). In making this determination, the court considers the following factors: 28 //// 3 1 (1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff’s substantive claim, (3) the sufficiency of the complaint, (4) the sum of money at stake in the action[,] (5) the possibility of a dispute concerning material facts[,] (6) whether the default was due to excusable neglect, and (7) the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits. 2 3 4 5 Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). Default judgments are ordinarily 6 disfavored. Id. at 1472. 7 As a general rule, once default is entered, well-pleaded factual allegations in the operative 8 complaint are taken as true, except for those allegations relating to damages. TeleVideo Sys., Inc. 9 v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987) (per curiam) (citing Geddes v. United Fin. 10 Group, 559 F.2d 557, 560 (9th Cir. 1977) (per curiam)); accord Fair Housing of Marin v. Combs, 11 285 F.3d 899, 906 (9th Cir. 2002). In addition, although well-pleaded allegations in the 12 complaint are admitted by a defendant’s failure to respond, “necessary facts not contained in the 13 pleadings, and claims which are legally insufficient, are not established by default.” Cripps v. 14 Life Ins. Co. of N. Am., 980 F.2d 1261, 1267 (9th Cir. 1992) (citing Danning v. Lavine, 572 F.2d 15 1386, 1388 (9th Cir. 1978)); accord DIRECTV, Inc. v. Hoa Huynh, 503 F.3d 847, 854 (9th Cir. 16 2007) (stating that a defendant does not admit facts that are not well-pled or conclusions of law); 17 Abney v. Alameida, 334 F. Supp. 2d 1221, 1235 (S.D. Cal. 2004) (“[A] default judgment may not 18 be entered on a legally insufficient claim”). A party’s default does not establish the amount of 19 damages. Geddes, 559 F.2d at 560. 20 III. 21 22 23 DISCUSSION A. Appropriateness of the Entry of Default Judgment Under the Eitel Factors 1. Factor One: Possibility of Prejudice to Plaintiff The first Eitel factor considers whether the plaintiff would suffer prejudice if default 24 judgment is not entered, and such potential prejudice to the plaintiff militates in favor of granting 25 a default judgment. See PepsiCo, Inc., 238 F. Supp. 2d at 1177. Here, plaintiff would potentially 26 face prejudice if the court did not enter a default judgment. Absent entry of a default judgment, 27 plaintiff would be without another recourse against defendants. Accordingly, the first Eitel factor 28 favors the entry of a default judgment. 4 1 2 3 2. Factors Two and Three: The Merits of Plaintiff’s Substantive Claims and the Sufficiency of the Complaint The court considers the merits of plaintiff’s substantive claims and the sufficiency of the 4 complaint together below because of the relatedness of the two inquiries. The court must 5 consider whether the allegations in the complaint are sufficient to state a claim that supports the 6 relief sought. See Danning, 572 F.2d at 1388; PepsiCo, Inc., 238 F. Supp. 2d at 1175. 7 8 9 a. ADA Title III of the ADA provides that “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, 10 advantages, or accommodations of any place of public accommodation by any person who owns, 11 leases (or leases to), or operates a place of public accommodation.” 42 U.S.C. § 12182(a). 12 Discrimination includes “a failure to remove architectural barriers . . . in existing facilities . . . 13 where such removal is readily achievable.” Id. § 12182(b)(2)(A)(iv); see also Chapman v. Pier 1 14 Imports (U.S.) Inc., 631 F.3d 939, 945 (9th Cir. 2011) (en banc). The ADA defines the term 15 “readily achievable” as “easily accomplishable and able to be carried out without much difficulty 16 or expense.” 42 U.S.C. § 12181(9). 17 “To prevail on a Title III discrimination claim, the plaintiff must show that (1) [he or she] 18 is disabled within the meaning of the ADA; (2) the defendant is a private entity that owns, leases, 19 or operates a place of public accommodation; and (3) the plaintiff was denied public 20 accommodations by the defendant because of [his or her] disability.” Molski v. M.J. Cable, Inc., 21 481 F.3d 724, 730 (9th Cir. 2007). Furthermore, “[t]o succeed on a ADA claim of discrimination 22 on account of one’s disability due to an architectural barrier, the plaintiff must also prove that: (1) 23 the existing facility at the defendant’s place of business presents an architectural barrier 24 prohibited under the ADA, and (2) the removal of the barrier is readily achievable.” Parr v. L & 25 L Drive-Inn Rest., 96 F. Supp. 2d 1065, 1085 (D. Haw. 2000); accord Hubbard v. 7-Eleven, Inc., 26 433 F. Supp. 2d 1134, 1138 (S.D. Cal. 2006). 27 28 Here, plaintiff’s complaint alleges that: (1) he is disabled (see ECF No. 1 at 1); (2) defendants owned the Store and Parlor, which are places of public accommodation, and the real 5 1 property located at or about 3811 Florin Road, Sacramento, California, during plaintiff’s visits 2 (id. at 2–5); (3) plaintiff was denied full and equal access to the Store’s and Parlor’s facilities, 3 privileges, and accommodations because of plaintiff’s disability (id. at 6); (4) the property, Store, 4 and Parlor contain specified architectural barriers—lack of accessible handicap parking spaces, 5 lack of accessible walkways, and lack of accessible thresholds/entrances––in violation of the 6 ADA (id. at 5); and (5) defendants had the means and ability to remove such barriers (id. at 7). 7 Because plaintiff’s allegations are taken as true following the entry of default, the court concludes 8 that plaintiff has met his burden to state a prima facie Title III discrimination claim. 9 10 b. Unruh Civil Rights Act The Unruh Civil Rights Act provides: “All persons within the jurisdiction of this state are 11 free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, 12 disability, medical condition, genetic information, marital status, or sexual orientation are entitled 13 to the full and equal accommodations, advantages, facilities, privileges, or services in all business 14 establishments of every kind whatsoever.” Cal. Civ. Code § 51(b). As expressly provided by 15 statute, a violation of the ADA also constitutes a violation of the Unruh Civil Rights Act. Cal. 16 Civ. Code § 51(f); see also Munson v. Del Taco, Inc., 46 Cal. 4th 661, 664-65 (2009). Here, 17 because plaintiff’s complaint properly alleges a prima facie claim under the ADA, plaintiff has 18 also properly alleged facts supporting a claim under the Unruh Civil Rights Act. 19 20 Accordingly, the second and third Eitel factors favor the entry of a default judgment. 3. Factor Four: The Sum of Money at Stake in the Action 21 Under the fourth factor cited in Eitel, “the court must consider the amount of money at 22 stake in relation to the seriousness of Defendant’s conduct.” PepsiCo, Inc., 238 F. Supp. 2d at 23 1176-77; see also Philip Morris USA, Inc. v. Castworld Prods., Inc., 219 F.R.D. 494, 500 (C.D. 24 Cal. 2003). In this case, plaintiff seeks injunctive relief; statutory damages under the Unruh Civil 25 Rights Act corresponding to three obstructed visits to the property, Store, and Parlor ($4,000.00 26 minimum statutory damages per visit, for a total amount of $12,000.00); and attorneys’ fees and 27 costs in the amount of $6,345.00. (ECF No. 49–1 at 12.) Although the court more closely 28 scrutinizes the requested statutory damages, attorneys’ fees, and costs below, the court does not 6 1 find the overall sum of money at stake to be so large or excessive as to militate against the entry 2 of default judgment, particularly when reduced for the reasons discussed below. Under these 3 circumstances, the court concludes that this factor favors the entry of a default judgment. 4 4. Factor Five: The Possibility of a Dispute Concerning Material Facts 5 The facts of this case are relatively straightforward, and the court may assume the truth of 6 well-pleaded facts in the complaint (except as to damages) following the clerk’s entry of default. 7 Thus, there is no likelihood that any genuine issue of material fact exists. See, e.g., Elektra 8 Entm’t Group Inc. v. Crawford, 226 F.R.D. 388, 393 (C.D. Cal. 2005) (“Because all allegations in 9 a well-pleaded complaint are taken as true after the court clerk enters default judgment, there is 10 no likelihood that any genuine issue of material fact exists”); accord Philip Morris USA, Inc., 219 11 F.R.D. at 500; PepsiCo, Inc., 238 F. Supp. 2d at 1177. As such, the court concludes that the fifth 12 Eitel factor favors a default judgment. 13 14 5. Factor Six: Whether the Default Was Due to Excusable Neglect In this case, there is no indication in the record that defendants’ default was due to 15 excusable neglect. Despite having been properly served with plaintiff’s complaint, the requests 16 for entry of default, and the instant motion for default judgment, defendants Yaghoubian and 17 Hoang failed to appear in the action. (See ECF Nos. 4, 7, 9, 17, 49.) Further, while defendants 18 Camp and Ahmed filed an answer (ECF No. 20), it was stricken after they failed to respond to 19 numerous motions and court orders. (See ECF Nos. 26, 28, 32, 33, 39, 41, 42, 47.) Moreover, 20 Camp and Ahmed have remained unresponsive after the entry of default against them (ECF No. 21 48), and after plaintiff filed the instant motion (ECF No 49). Thus, the record suggests that 22 defendants have chosen not to defend themselves in this action, and that the default did not result 23 from excusable neglect. Accordingly, this Eitel factor favors the entry of a default judgment. 24 25 26 6. Factor Seven: The Strong Policy Underlying the Federal Rules of Civil Procedure Favoring Decisions on the Merits “Cases should be decided upon their merits whenever reasonably possible.” Eitel, 782 27 F.2d at 1472. However, district courts have concluded with regularity that this policy, standing 28 alone, is not dispositive, especially where a defendant fails to appear or defend itself in an action. 7 1 PepsiCo, Inc., 238 F. Supp. 2d at 1177; see also Craigslist, Inc. v. Naturemarket, Inc., 694 F. 2 Supp. 2d 1039, 1061 (N.D. Cal. 2010). Accordingly, although the court is cognizant of the policy 3 in favor of decisions on the merits—and consistent with existing policy would prefer that this 4 case be resolved on the merits—that policy does not, by itself, preclude the entry of default 5 judgment. 6 In sum, upon consideration of all the Eitel factors, the court concludes that plaintiff is 7 entitled to a default judgment against defendants and recommends that such a default judgment be 8 entered. All that remains is a determination of the specific relief to which plaintiff is entitled. 9 10 B. Terms of the Judgment to Be Entered After determining that a party is entitled to entry of default judgment, the court must 11 determine the terms of the judgment to be entered. Because plaintiff satisfactorily alleged his 12 ADA claim, the court recommends that plaintiff be granted injunctive relief, as described below, 13 to remedy the architectural barriers at issue–– lack of accessible handicap parking spaces, lack of 14 accessible walkways, and lack of accessible thresholds/entrances. 15 Plaintiff also requests statutory damages in the amount of $12,000.00, which corresponds 16 to three obstructed visits to the Store and Parlor ($4,000.00 minimum statutory damages per 17 visit). Although Cal. Civ. Code § 52(a) may permit a plaintiff to obtain the minimum statutory 18 damages for each obstructed visit to a facility, a plaintiff cannot simply visit a facility more often 19 to increase the amount of potential statutory damages. In this case, plaintiff made no showing as 20 to why he returned to the Store, after his initial visit. For example, plaintiff did not allege that he 21 returned after having received good faith assurances from defendants or their agents that the 22 architectural barriers were removed. In light of that deficiency, the court recommends that 23 plaintiff only be awarded minimum statutory damages corresponding to one visit each to the 24 Store and Parlor, i.e., $8,000.00. 25 Finally, plaintiff requests attorneys’ fees and costs. The statutes at issue specifically 26 contemplate the award of attorneys’ fees and costs. See 42 U.S.C. § 12205; Cal. Civ. Code § 27 52(a). Thus, the only issue is whether the requested amount of attorneys’ fees and costs 28 ($6,345.00) is reasonable. Plaintiff requests $480.00 in filing fees and service costs, which are 8 1 reasonable and should be awarded. (ECF No. 49-4 at 2.) Plaintiff further indicates that plaintiff’s counsel, Mark Potter, attorney at the Center for 2 3 Disability Access, who has been in practice for about 23 years with a practice dedicated 4 exclusively to disability-related issues, spent 13.8 hours on this case, billing at an hourly rate of 5 $425.00, for a lodestar amount of $5,865.00 in attorneys’ fees. (Id. at 2–3.) 6 Although the number of hours spent on the case appears reasonable, the court finds Mr. 7 Potter’s hourly rate of $425.00 to be excessive in light of prevailing market rates in the 8 Sacramento Division of the Eastern District of California. Notably, another judge in this district 9 recently determined that an hourly rate of $300.00 was appropriate for plaintiff’s counsel, as a 10 partner with significant experience and expertise, in a routine disability access case. See Johnson 11 v. Wayside Property, Inc. et al., 2:13-cv-1610-WBS-AC, ECF No. 32. The court finds Wayside 12 Property to be persuasive, because it is a recent, comparable case from this district and involved a 13 careful consideration of prevailing market rates for routine disability access cases in the 14 Sacramento Division of the Eastern District of California. By contrast, plaintiff’s reliance on fee 15 awards in the Central and Southern Districts of California, as well as certain California state 16 courts, is misplaced, because those fee awards are not instructive with respect to prevailing 17 market rates in this federal district. Instead, the court here likewise concludes that an hourly rate 18 of $300.00 is appropriate, resulting in a fee award of $4140.00. 19 IV. CONCLUSION 20 For the foregoing reasons, IT IS HEREBY RECOMMENDED that: 21 1. Plaintiff’s motion for default judgment (ECF No. 49) be GRANTED IN PART. 22 2. Judgment be entered in plaintiff’s favor and against defendants Mazyar 23 Yaghoubian, Chris Camp, Kareem Ahmed, and Bao Hoang. 24 3. Plaintiff be awarded statutory damages in the amount of $8,000.00. 25 4. Plaintiff be awarded attorneys’ fees and costs in the amount of $4,620.00. 26 5. Plaintiff be granted an injunction requiring defendants to provide readily 27 achievable property alterations in the form of accessible handicap parking, 28 accessible walkways, and accessible thresholds/entrances to Accessorize It and 9 1 Donna’s Hair and Nails Parlor, located at or about 3811 Florin Rd, Sacramento, 2 California, in compliance with the ADA and the ADA Accessibility Guidelines. 3 6. 4 IT IS ALSO HEREBY ORDERED that plaintiff shall forthwith serve copies of this order 5 The Clerk of Court be directed to vacate all dates and close this case. and findings and recommendations on defendants by U.S. mail at their last-known addresses. 6 These findings and recommendations are submitted to the United States District Judge 7 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) 8 days after being served with these findings and recommendations, any party may file written 9 objections with the court and serve a copy on all parties. Such a document should be captioned 10 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 11 shall be served on all parties and filed with the court within fourteen (14) days after service of the 12 objections. The parties are advised that failure to file objections within the specified time may 13 waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th 14 Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 15 Dated: October 23, 2017 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 16 17 18 19 14/16-2299.johnson v. yaghoubian. f&r default judgment 20 21 22 23 24 25 26 27 28 10

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?