Che v. LO

Filing 25

ORDER by Judge Charles R. Breyer granting 16 Motion for Default Judgment. (crblc2, COURT STAFF) (Filed on 6/24/2019)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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NGOC LAM CHE,
Plaintiff,

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ORDER GRANTING MOTION FOR
DEFAULT JUDGMENT

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v.

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United States District Court
Northern District of California

Case No. 18-cv-00402-CRB

SHIT FONG LO,

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Defendant.
This is an ADA case in which Plaintiff, who is paraplegic, Lam Che Decl. ¶ 2 (Dkt.

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17) alleges that he attempted to access a business called “Fast Fresh Pizza” in San Jose, but

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was prevented from doing so by (1) a lack of properly signed accessible parking spaces

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and (2) overly narrow accessible pathways. Complaint ¶¶ 9-14 (Dkt. 1). Plaintiff asserts

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claims for violation of the Uruh Act, Cal. Civil Code §§ 51-52, and the Americans with

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Disabilities Act (“ADA”), 42 U.S. § 12101 et. seq. Complaint ¶¶ 15-29. The Complaint

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seeks an injunction “directing Defendant as current owners, operators, lessors, and/or

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lessees of the Property and premises to modify the above described Property and premises

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and related facilities so that each provides full and equal access to all persons, including

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but not limited to persons with physical disabilities who use wheelchairs, and issue a

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preliminary and permanent injunction directing Defendant to provide and maintain

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facilities usable by Plaintiff and similarly situated persons with disabilities, and which

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provide full and equal access, as required by law, including appropriate changes in policy.”

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Id. Prayer ¶ 1. He also seeks statutory damages under the Uruh Act for $4000 and

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attorneys’ fees. Id. ¶¶ 3, 5.

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Plaintiff filed his Complaint on January 18, 2018. Id. About a year later, on January

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16, 2019, he moved for default against Defendant. Mot. for Entry of Default (Dkt. 10). The

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Clerk filed an Entry of Default on February 13, 2019. Clerk’s Notice Entry of Default

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(Dkt. 15). He now seeks default judgment. Motion for Default Judgment (Dkt. 16); see

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also Fed. R. Civ. P. 55(b)(2). He seeks “judgment in the amount of $7,220.00 against

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Defendant which breaks down as follows: Statutory Damages $4,000.00 Attorney Fees

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$2,760.00 Costs $460.00. Plaintiff also demands injunctive relief under the ADA and

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Unruh Act, requiring Defendant to bring the Property into compliance with the [ADA

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Accessibility Guidelines] and [California Building Code].” Motion for Default Judgment

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at 11.

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United States District Court
Northern District of California

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I.

DISCUSSION

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Whether to grant a motion for the entry of default judgment is within the discretion

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of the trial court. See Lau Ah Yew v. Dulles, 236 F.2d 415, 416 (9th Cir. 1956). Upon an

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entry of default by the Clerk, the factual allegations of the plaintiff’s complaint will be

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taken as true, except those relating to the amount of damages. See Derek Andrew, Inc. v.

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Poof Apparel Corp., 528 F.3d 696, 702 (9th Cir. 2008). In determining whether to enter a

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default judgment, a court has “an affirmative duty to look into its jurisdiction over both the

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subject matter and the parties,” In re Tuli, 172 F.3d 707, 712 (9th Cir. 1999), including

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whether notice has been adequately given, see Omni Capital Int’l, Ltd. v. Rudolf Wolff &

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Co., 484 U.S. 97, 104 (1987); Fed. R. Civ. P. 55(a); accord Dytch v. Bermudez, 2018 WL

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2230945, at *2 (N.D. Cal. May 16, 2018), reconsideration denied, 2018 WL 3643702

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(N.D. Cal. Aug. 1, 2018). To determine whether default judgment is appropriate, this Court

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examines the following factors: (1) the possibility of prejudice to the plaintiff; (2) the

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merits of the plaintiff’s substantive claims; (3) the sufficiency of the complaint; (4) the

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sum of money at stake in the action; (5) the possibility of a dispute concerning material

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facts; (6) whether the default was due to excusable neglect; and (7) the likelihood of

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obtaining a decision on the merits. Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir.

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1986).
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The Court has jurisdiction under 28 U.S.C. § 1331, as the Complaint alleges

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violation of a federal statute, and supplemental jurisdiction under 28 U.S.C. § 1367 over

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the pendant state law claim. See Complaint ¶¶ 3-4. Likewise, the parties are located within

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the Northern District, and thus this Court has personal jurisdiction. Id. ¶¶ 1-8.

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First, absent default judgment, Plaintiff has no recourse against Defendant. He thus

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satisfies the first Eitel factor. See Willamette Green Innovation Ctr., LLC v. Quartis

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Capital Partners, 2014 WL 5281039, at *6 (N.D. Cal. Jan. 21, 2014), report and

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recommendation adopted, 2014 WL 5260921 (N.D. Cal. Apr. 10, 2014) (“Denying a

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plaintiff a means of recourse is by itself sufficient to meet the burden posed by this

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factor.”); see also Eitel, 782 F.2d at 1471-72.

United States District Court
Northern District of California

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Second, as to the merits, first, Plaintiff has alleged that he is deterred from visiting

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the property because of the barriers to his access. Complaint ¶ 12; see also Eitel, 782 F.2d

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at 1471-72. Third, he adequately alleges the following: he is disabled; Defendant operates

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a place of public accommodation; and Plaintiff was denied public accommodation. Motion

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for Default Judgment at 4-6; 42 U.S.C. § 12182(a) (ADA standard); Compl. ¶¶ 9-14.

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Plaintiff has thus satisfied the second and third prongs of the Eitel standard. See Eitel, 782

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F.2d at 1471-72.

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Fourth, there is only a small sum of money involved in this case—$7220, of which

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$4000 is statutory damages. Motion for Default Judgment at 11; see also Eitel, 782 F.2d at

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1471-72.

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Fifth, given that the dispute is about architectural barriers, a vigorous dispute of

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facts seems unlikely, because whether there are physical barriers or not would be readily

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determinable. See Eitel, 782 F.2d at 1471-72.

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Sixth, Plaintiff alleges that Defendant received adequate notice, and this case has

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been pending for almost a year and a half, and thus the default is not likely due to

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excusable neglect. Eitel, 782 F.2d at 1471-72; Motion for Default Judgment at 9-10; see

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also Tsao Decl. Exh. C (Proof of Service) (Dkt. 14-3).

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Seventh, and finally, because Defendant has not appeared in this case, a decision on
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