Albert Dytch v. Ignacio Bermudez et al

Filing 39

ORDER by Judge Edward M. Chen Denying 34 Plaintiff's Motion for Reconsideration. (emcsec, COURT STAFF) (Filed on 8/1/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ALBERT DYTCH,
Plaintiff,

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United States District Court
Northern District of California

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Case No. 17-cv-02714-EMC
ORDER DENYING PLAINTIFF’S
MOTION FOR RECONSIDERATION

v.
IGNACIO BERMUDEZ, et al.,

Docket No. 34

Defendants.

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I.

FACTUAL AND PROCEDURAL BACKGROUND

The Court assumes familiarity with Plaintiff‟s factual allegations, which were recounted in

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detail in the Court‟s second order denying Plaintiff‟s motion for default judgment. See Docket

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No. 31. In short, Plaintiff Albert Dytch attempted to visit El Campesino, a Latino eatery in

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Richmond allegedly owned by Defendants as sole proprietors. He thereafter alleged violations of

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the Americans With Disabilities Act (ADA). While there, he encountered numerous obstacles in

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the parking lot, on the route from the public street to the entrance, and within the facility,

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especially in the restrooms. The Court denied Plaintiff‟s first motion for default judgment because

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the affidavit of service stating that substituted service was made upon a “John Doe” at El

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Campesino failed to identify whether “John Doe” was “apparently in charge” as required by

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California Code of Civil Procedure Section 415.20(b). See Docket No. 19. Plaintiff was given the

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option of re-attempting service or filing an adequate affidavit; rather than re-attempt service,

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Plaintiff filed a new affidavit and moved a second time for default judgment. On review, the

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Court determined the amended affidavit was not credible because it merely “recites, in a formulaic

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and conclusory fashion, that John Doe [upon whom service was made] was „apparently in

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charge,‟” but that it “lack[ed] factual detail,” “d[id] not identify the particular person served,” and

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was made “a year after the fact” without any “corroborat[ion] by contemporaneous notes or

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documentation.” See Docket No. 19 at 4-5. Accordingly, the Court found that substituted service

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was inadequate and, as a result, the Court lacked personal jurisdiction over the Defendants and

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could not enter default judgment against them. Id. at 5.

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The Court also determined that, even if service had been adequate, default judgment would

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not have been warranted. In particular, Plaintiff‟s complaint was “not sufficiently detailed to

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establish key elements of his claim,” including whether the modifications requested were “readily

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achievable,” even assuming that the building was an “existing” facility when the ADA was passed.

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Id. The Court held that “whether a modification is „readily achievable‟ is not an affirmative
defense, but rather an element of the case-in-chief for which the plaintiff bears the burden.” Id.

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United States District Court
Northern District of California

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Without allegations about “how feasible the changes are, how much it would cost to make El

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Campesino accessible, the impact of any required changes on the facility, or other factors,”

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Plaintiff‟s complaint was insufficient to warrant a grant of default judgment. Id. at 6.

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The Court also concluded that Plaintiff‟s alternative claim under the more stringent

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requirements for new constructions, built 30 months after July 26, 1990 (i.e., in 1993), did not

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apply. Though Plaintiff conclusory alleged that the El Campesino building was designed and

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constructed after January 26, 1993, the Court cited published county records indicating

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construction in 1961. Id. at 6.

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Finally, the Court noted that “Plaintiff‟s concession that he does not know whether El

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Campesino continues to operate raises questions about whether he faces any threat of future harm

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to support his request for injunctive relief.” Id. at 6-7. The Court granted Plaintiff 60 days to file

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and serve an amended complaint.

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II.

LEGAL STANDARD

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The Court GRANTS Plaintiff‟s motion for leave to file a motion for re-consideration in

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light of the fact that Plaintiff did not have an opportunity to address the grounds for the Court‟s

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prior decision, which was decided on the papers, and in light of additional authorities cited by

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Plaintiff that were not previously before the Court. See Civil L. R. 7-9(a). However, for the

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reasons explained below, the Court DENIES Plaintiff‟s motion for re-consideration. This motion
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is appropriate for resolution without oral argument. See Local Civ. R. 7-1(b).
Plaintiff advances three arguments in support of reconsideration. First, Plaintiff argues

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that service of process was effective. Second, Plaintiff argues that the Court improperly took

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judicial notice of a disputed fact when it discredited the allegation that El Campesino was built

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after 1993. Third, Plaintiff argues that, even with respect to buildings existing before that time,

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the Court erred in treating the question whether the removal of a barrier was “readily achievable”

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as an element of the plaintiff‟s case-in-chief rather than the defendant‟s affirmative defense. The

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Court addresses each issue below.

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A.

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Adequacy of Service
Although Plaintiff correctly argues that a proof of service creates a presumption of proper

United States District Court
Northern District of California

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service, see Floyevor Int’l, Ltd. v. Super. Ct., 59 Cal.App.4th 789, 795 (1997), such proofs of

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service are most often executed contemporaneously or amended very shortly thereafter. As the

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Court previously noted, here, the amendment was made nearly a year after the purported service.

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The amendment to the affidavit was conclusory: it merely identified John Doe as “a coworker and

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person apparently in charge.” The lack of detail, particularly where the amendment was made a

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year later, detracts from the declaration‟s credibility. Cf. Duran v. U.S. Bank Nat’l Assn., 59

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Cal.4th 1, 56 (2014) (noting that “the credibility of declarations as to how much time an employee

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spent on outside sales activity may depend on whether the employer or employee kept

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contemporaneous records of his or her time”). It is difficult to believe that a professional process

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server would, one year after the fact, recall specific details about John Doe‟s status at the May 23,

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2017 encounter at El Campesino. The evidence is insufficient to support a credible presumption

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that John Doe was in fact “apparently in charge,” or had a “relationship with [Defendants which]

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makes it more likely than not that [he] deliver[ed] process to [Defendants],” Bein v. Brechtel-

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Jochim Grp., Inc., 6 Cal.App.4th 1387, 1393 (1992) (quotation and citation omitted). Because

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that showing was inadequate, it is irrelevant that Plaintiff also attempted to mail a copy. See Cal.

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Code Civ. Proc. § 415.20(b) (substitute service requires service on “a person apparently in charge

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of his or her . . . place of business” and “thereafter mailing a copy of the summons and of the

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complaint by first-class mail” (emphasis added)).
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For these reasons, the Court declines to re-consider its prior holding as to the inadequacy

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of service. The Court notes that Plaintiff was not left without any other option. The Court granted

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Plaintiff leave to re-attempt service of the complaint, but Plaintiff opted not to do so.

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B.

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Judicial Notice of Pre-1993 Construction Date
Plaintiff also argues that he has stated a prima facie claim and thus it was erroneous for the

Court to decline default judgment. One of the factors the Court may consider in evaluating

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whether default judgment is warranted is the “sufficiency of the complaint.” Eitel v. McCool, 782

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F.2d 1470, 1471 (9th Cir. 1986). The Court “must take the well-pleaded factual allegations of [a

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complaint] as true,” but “necessary facts not contained in the pleadings, and claims which are

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legally insufficient, are not established by default.” Cripps v. Life Ins. Co. of N. Am., 980 F.2d

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United States District Court
Northern District of California

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1261, 1267 (9th Cir. 1992). Although failure to meet the Rule 12(b)(6) standard precludes entry

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of default judgment under this Eitel factor, see Cripps, 980 F.2d at 1267, the inverse is not

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necessarily true. A complaint may satisfy Rule 12(b)(6) standards and thus be “sufficient,” but

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default judgment nevertheless may not be warranted. Indeed, Eitel contemplates that the Court

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may take into consideration other factors; the complaint‟s sufficiency is not dispositive. See Eitel,

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782 F.2d at 1471 (other factors include, inter alia, “the merits of plaintiff‟s substantive claim” and

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“the possibility of a dispute concerning material facts”).

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Here, the Court credited Plaintiff‟s allegations that he was disabled and was denied equal

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access to El Campesino, a public accommodation. However, with respect to Plaintiff‟s alternative

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theories of liability under the ADA, the Court did not credit Plaintiff‟s allegation that El

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Campesino was built after 1993—such buildings are required to be “readily accessible to and

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usable by individuals with disabilities” unless “an entity can demonstrate that it is structurally

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impracticable to meet the requirements.” 42 U.S.C. §§ 12183(a)(1). Instead, the Court took

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judicial notice of online City of Richmond county records indicating the building was constructed

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in 1961. Plaintiff argues that judicial notice was improper because the building date is “disputed”

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insofar as Plaintiff had alleged it was built after 1993, and the website includes a disclaimer that

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although the City of Richmond “makes every effort to produce and publish the most current and

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accurate information possible,” it makes “[n]o warranties” about the data. Yet Plaintiff
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acknowledges that “it may be true that the building was first constructed in 1961, [but] that is not a

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fact that can be judicially noticed.” Mot. at 15. Whether or not judicial notice was proper,

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Plaintiff‟s argument highlights why default judgment on that claim was not warranted. Even on

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this motion, Plaintiff does not deny the building was constructed in 1961. His allegation to the

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contrary was merely a recitation of the elements of a claim under the ADA for newly constructed

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buildings; he did not allege a specific construction date but merely said it was beyond the cut-off.

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That kind of formulaic recitation, even if sufficient to survive review as an alternative theory on a

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Rule 12(b)(6) motion, raises serious questions about “the merits of plaintiff‟s substantive claim”

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and “the possibility of a dispute concerning material facts,” both factors weighing against a grant

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of default judgment for the aforementioned reasons. Eitel, 782 F.2d at 1741.

United States District Court
Northern District of California

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Thus, even if the Court does not take judicial notice of the 1961 construction date,

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Plaintiff‟s conclusory, alternative allegation that El Campesino was built after 1993 is not enough

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to persuade the Court on the merits of Plaintiff‟s claim or to eliminate the likelihood of a material

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dispute—indeed, such a dispute is very likely where Plaintiff‟s allegation contradicts county

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records. The Court therefore declines to reconsider its holding with respect to this issue.

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C.

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“Readily Achievable”
Finally, Plaintiff argues that the Court improperly held him to a summary judgment or trial

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standard of producing evidence that the removal of the barriers was “readily achievable,” rather

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than the motion to dismiss standard. Plaintiff also argues that the Court improperly placed the

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burden on Plaintiff to state a case, whereas the Defendant should bear the burden as to whether an

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alteration is “readily achievable.”

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As above, whether viewed as an issue going to the complaint‟s sufficiency or the merits of

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Plaintiff‟s claim, Plaintiff‟s complaint conclusorily alleges that the modifications are “readily

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achievable” without any supporting factual allegations whatsoever. It is impossible for the Court

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to evaluate the merits of that assertion. Although the Ninth Circuit has yet to decide whether the

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plaintiff or the defendant bears the burden of proof with regards to whether the removal of a

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barrier is “readily achievable,” most federal courts do characterize the “readily achievable” issue

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as an affirmative defense, but they follow a burden-shifting framework established in Colo. Cross
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Disability Coal. v. Hermanson Family Ltd. P’ship, 264 F.3d 999, 1002 (10th Cir. 2001), whereby

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the plaintiff bears the initial burden of production but the defendant bears the ultimate burden of

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persuasion. See, e.g., Ridola v. Chao, No. 16-CV-02246-BLF, 2018 WL 2287668 at *10 (N.D.

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Cal. May 18, 2018) (“[A]lthough [plaintiff] has not identified a case where the Ninth Circuit

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explicitly decided who has the burden of proving that removal of an architectural barrier is readily

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achievable, the Court follows the district courts applying the Colorado Cross framework.”). The

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Ninth Circuit has rejected the burden-shifting framework in the discrete context of historical

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buildings. See Molski v. Foley Estates Vineyard & Winery, LLC, 531 F.3d 1043, 1048 (9th Cir.

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2008) (declining to follow Colorado Cross in this context of whether removal of a barrier is
achievable in historic facilities because “[b]y placing the burden of production on the defendant,

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United States District Court
Northern District of California

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we place the burden on the party with the best access to information regarding the historical

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significance of the building”). Judge Seeborg has extrapolated the principle in Molski to hold that

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the defendant always bears both the initial burden of production and ultimate burden of persuasion

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with respect to the “readily achievable” defense. See Rodriguez v. Barrita, Inc., No. C 09-04057

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RS, 2012 WL 3538014, at *11 (N.D. Cal. Mar. 1, 2012) (“While it is true that [Molski] is, by its

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terms, limited to cases where the historical exception is asserted, its concerns regarding the

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availability of evidence have equal weight when defendant claims that remediation would be too

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costly or impractical. Defendants will usually be better positioned to assess both the special

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logistical difficulties posed by construction and, given their knowledge of their own financial

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circumstances, the relative expense associated with it.”). But several other courts in this circuit

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continue to follow Colorado Cross. See, e.g., Ridola, supra; Hernandez v. Polanco Enterprises,

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Inc., 19 F.Supp.3d 918, 931 (N.D. Cal. 2013); Rodgers v. Chevys Restaurants, LLC, No. C13-

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03923 HRL, 2015 WL 909763 (N.D. Cal. Feb. 24, 2015) (listing cases in the eastern, central, and

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southern districts which also follow the burden-shifting approach).

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Ultimately, whether the plaintiff or defendant bears the initial burden of production makes

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no difference to whether default judgment is appropriate in this case. Even those courts placing

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the burden on the defendant recognize that „[w]hether a specific change is readily achievable „is a

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fact-intensive inquiry that will rarely be decided on summary judgment.‟” Rodriguez, 2012 WL
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3538014, at *8 (citation omitted). That highlights why default judgment is inappropriate here.

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Even if Plaintiff‟s claim is sufficient for Rule 12(b)(6) purposes, the allegations are so bare that

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the Court is not persuaded about “the merits of plaintiff‟s substantive claim.” Eitel, 782 F.2d at

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1741. The question whether removal of a barrier is “readily achievable” requires consideration of

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information like the nature of the costs, the financial resources of the facilities, the size of the

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business, and so on, see 42 U.S.C. § 12181(9), and no such information has been alleged in the

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complaint. The fact that “readily achievable” can rarely be decided on summary judgment

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increases “the possibility of a dispute concerning material facts” here, particularly where no facts

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related to the readily achievable defense are alleged. Id. Especially where Plaintiff seeks

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injunctive relief, the lack of information—let alone recent information—raises serious concerns.1
Accordingly, the Court DENIES Plaintiff‟s motion for reconsideration on this issue.

United States District Court
Northern District of California

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III.

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CONCLUSION

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The Court recognizes that certain information about the “readily achievable” defense may

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be in Defendants‟ exclusive possession. A plaintiff should not be precluded from obtaining relief

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where a defendant has defaulted and thereby prevented the plaintiff from taking discovery to

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establish the merits of his or her claim. However, as explained above, it is not clear that

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Defendants have defaulted here; questions surrounding the adequacy of service merely reinforce

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the Court‟s concern about entering judgment on a factually-complex issue. Furthermore, not all

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information about the readily achievable defense is unavailable to Plaintiff. Plaintiff need not

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allege specific engineering plans and details, but surely Plaintiff can obtain general information

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about the type of modifications that could be pursued with a ball-park estimate of their costs in

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analogous contexts. It is not uncommon for plaintiffs in ADA access cases to have an access

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specialist. See General Order 56(3-5).
For the reasons stated above, Plaintiff‟s motion for reconsideration is DENIED. Plaintiff

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may file an amended complaint in line with the guidance above within 30 days. Within 60 days of

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The Clerk entered default in July 2017, Docket No. 9, but Plaintiff waited 5 months until
December 2017 before moving for default judgment, Docket No. 10. A full year has passed since
default was entered, and over a year since Plaintiff‟s complaint was filed. As the Court previously
noted, Plaintiff is unsure whether El Campesino continues to operate. See Docket No. 31 at 6-7.
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filing, Plaintiff must serve the amended complaint on Defendants in compliance with Federal Rule

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of Civil Procedure 4, with a service package that includes a Spanish-language cover letter and the

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Spanish edition of the Court‟s Pro Se Litigation Handbook, in addition to other materials required

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by the local rules. Plaintiff is encouraged to attempt service on Defendants‟ residential address if

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it can be located through due diligence. If Defendants default, then Plaintiff may file a new

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motion for default judgment.

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This order disposes of Docket No. 34. The motion hearing scheduled for August 9, 2018 is
VACATED.

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IT IS SO ORDERED.

United States District Court
Northern District of California

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Dated: August 1, 2018

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______________________________________
EDWARD M. CHEN
United States District Judge

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