1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RICHARD SEPULVEDA, Case No. 2:23-cv-02177-DJC-JDP 12 Plaintiff, FINDINGS AND RECOMMENDATIONS 13 v. THAT PLAINTIFF’S MOTION FOR

DEFAULT JUDGMENT BE GRANTED

14 SANDRA GARVIA, et al., ECF No. 10 15 Defendants.

OBJECTIONS DUE WITHIN FOURTEEN

16 DAYS 17 18 Plaintiff brings this action against defendants Sandra Garcia (“Sandra”), Ernesto Artiaga 19 (“Ernesto”), and Gabriela Artiaga (“Gabriela”), alleging that defendants violated the Americans 20 with Disabilities Act (“ADA”), 42 U.S.C. §§ 12181-12189; California Health and Safety Code 21 § 19955, et seq.; California’s Civil Rights Act, Cal. Civ. Code §§ 54, 54.1, and 54.3; and the 22 California Unruh Civil Rights Act (“Unruh Act”).1 Defendants have not answered the complaint 23 or otherwise appeared in this action. Plaintiff filed a motion for default judgment on his ADA 24 and Unruh Act claims, which was before me for hearing on June 6, 2024.2 ECF No. 10. For the 25 following reasons, I recommend that the motion be granted. 26 1 To avoid confusion, I refer to defendants by their first names. 27 2 At the hearing, plaintiff’s counsel requested that the remaining claims under California Health and Safety Code § 19955, et seq., and California’s Civil Rights Act, Cal. Civ. Code §§ 54, 28 54.1, and 54.3 be dismissed. I recommend that request be granted. 1 Background 2 The complaint alleges that plaintiff is physically disabled and must use a walker for 3 mobility. ECF No. 1 ⁋ 6. Defendant Sandra is the owner and operator of a business named 4 “Ernie’s Taqueria,” located at 110 South 3rd Steet in Patterson, California. Id. ⁋ 3. Defendants 5 Ernesto and Gabriela own the real property on which Sandra operates her business. Id. The 6 business is open to the public and is a place of public accommodation. Id. ⁋⁋ 3-4, 11. 7 On August 19, 2023, and September 19, 2023, plaintiff visited Ernie’s Taqueria and encountered 8 multiple architectural barriers. Id. ⁋⁋ 4, 12-13. Specifically, the business did not have an 9 accessible bathroom, id. ⁋ 4a; the dining room did not have accessible tables, id. ⁋ 4b; and the 10 path of travel from the public sidewalk and parking area to the main entrance contained a ramp 11 that was too steep and narrow, id. ⁋ 4c. 12 Plaintiff personally served Sandra on October 14, 2023; service for Ernesto and Gabriela 13 was completed by substitute service on October 26, 2023. ECF No. 5; see Fed. R. Civ. P. 4(e); 14 Cal. Civ. P. § 415.20(b). After defendants failed to timely respond to the complaint, plaintiff 15 requested entry of their default, ECF No. 6, which the Clerk of Court entered on February 2, 16 2024, ECF No. 7. Plaintiff now moves for default judgment on his ADA and Unruh Act claims. 17 He seeks $8,000 in statutory damages under the Unruh Act, as well as injunctive relief and 18 attorney’s fees and costs. 19 Legal Standard 20 Under Federal Rule of Civil Procedure 55, default may be entered against a party who 21 fails to plead or otherwise defend against an action. See Fed. R. Civ. P. 55(a). However, “[a] 22 defendant’s default does not automatically entitle the plaintiff to a court-ordered judgment.” 23 PepsiCo, Inc. v. Cal. Sec. Cans, 238 F. Supp. 2d 1172, 1174 (C.D. Cal. 2002) (citing Draper v. 24 Coombs, 792 F.2d 915, 924-25 (9th Cir. 1986)). Rather, the decision to grant or deny a motion 25 for default judgment is discretionary. Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). In 26 exercising that discretion, the court considers the following factors: 27 (1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff’s substantive claim, (3) the sufficiency of the complaint, 28 (4) the sum of money at stake in the action, (5) the possibility of a 1 dispute concerning the material facts, (6) whether the default was due to excusable neglect, and (7) the strong policy underlying the 2 Federal Rules of Civil Procedure favoring decisions on the merits. 3 Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). “In applying this discretionary 4 standard, default judgments are more often granted than denied.” Philip Morris USA, Inc. v. 5 Castworld Prods., Inc., 219 F.R.D. 494, 498 (C.D. Cal. 2003) (quoting PepsiCo, Inc. v. Triunfo- 6 Mex, Inc., 189 F.R.D. 431, 432 (C.D. Cal. 1999)). 7 Generally, once default is entered “the factual allegations of the complaint, except those 8 relating to the amount of damages, will be taken as true.” TeleVideo Sys., Inc. v. Heidenthal, 826 9 F.2d 915, 917-18 (9th Cir. 1987) (quoting Geddes v. United Fin. Grp., 559 F.2d 557, 560 (9th 10 Cir. 1977)). However, “necessary facts not contained in the pleadings, and claims which are 11 legally insufficient, are not established by default.” Cripps v. Life Ins. Co. of N. Am., 980 F.2d 12 1261, 1267 (9th Cir. 1992). 13 Discussion 14 A. Americans with Disabilities Act 15 Title III of the ADA provides that “[n]o individual shall be discriminated against on the 16 basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, 17 advantages, or accommodations of any place of public accommodation by any person who owns, 18 leases (or leases to), or operates a place of public accommodation.” 42 U.S.C. § 12182(a). 19 Discrimination includes “a failure to remove architectural barriers . . . in existing facilities . . . 20 where such removal is readily achievable.” Id. § 12182(b)(2)(A)(iv). Under the ADA, the term 21 readily achievable means “easily accomplishable and able to be carried out without much 22 difficulty or expense.” Id. § 12181(9). 23 To succeed on an ADA disability discrimination claim, a plaintiff “must show that (1) she 24 is disabled within the meaning of the ADA; (2) the defendant is a private entity that owns, leases, 25 or operates a place of public accommodation; and (3) the plaintiff was denied public 26 accommodations by the defendant because of her disability.” Doe v. CVS Pharmacy, Inc., 982 27 F.3d 1204, 1212 (9th Cir. 2020) (quoting Molski v. M.J. Cable, Inc., 481 F.3d 724, 730 (9th Cir. 28 2007)). To succeed on such a claim, a plaintiff must also prove that: (1) the existing facility at the 1 defendant’s place of business presents an architectural barrier prohibited under the ADA, and (2) 2 the removal of the barrier is readily achievable.” Gilbert v. Shahi Assocs., Inc., No. 1:21-cv- 3 01375-DAD-SAB, 2022 WL 1557162, at *8 (E.D. Cal. May 17, 2022) (quoting Parr v. L & L 4 Drive-Inn Rest., 96 F. Supp. 2d 1065, 1085 (D. Haw. 2000)); see also Wyatt v. Ralphs Grocery 5 Co., 65 F. App’x 589, 590 (9th Cir. 2003). 6 The complaint alleges that plaintiff is disabled and that defendants are the owners and 7 operators of a place of public accommodation. ECF No. 1 ⁋⁋ 3-8, 11-17. Plaintiff also alleges 8 that defendants denied him public accommodation because the restaurant did not have an 9 accessible bathroom; the dining room did not have accessible tables; and there was no accessible 10 path of travel from the public sidewalk and parking area to the business’s front entrance. Id. ¶ 4. 11 He further alleges that these architectural barriers can be removed without significant difficulty or 12 expense. Id. ⁋ 5. These allegations are sufficient to state an ADA claim. See Molski, 481 F.3d at 13 730. Accordingly, the second and third Eitel factors—the merits of the substantive claim and 14 sufficiency of the complaint—weigh in favor of default judgment. 15 Furthermore, many of the remaining Eitel factors weigh in favor of granting plaintiff’s 16 motion. Defendants were properly served, see ECF No. 5, but have not responded to the 17 complaint. Thus, it appears that their default was not entered due to excusable neglect. 18 Moreover, the relief sought is authorized by statute and, accepting plaintiff’s allegations as true, 19 there is little possibility of a dispute concerning material facts. See Elektra Entm’t Grp. Inc. v. 20 Crawford, 226 F.R.D. 388, 393 (C.D. Cal. 2005) (“Because all allegations in a well-pleaded 21 complaint are taken as true after the court clerk enters default judgment, there is no likelihood that 22 any genuine issue of material fact exists.”). Additionally, because defendants have not appeared 23 in this action, plaintiff has no recourse for obtaining relief absent default judgment. Finally, 24 although decisions on the merits are favored, such a decision is impossible where the defendant 25 declines to take part in the action. See Penpower Tech. Ltd. v. S.P.C. Tech., 627 F. Supp. 2d 26 1083, 1093 (N.D. Cal. 2008). Accordingly, plaintiff is entitled to default judgment on his ADA 27 claim. 28 1 B. Unruh Civil Rights Act 2 The Unruh Civil Rights Act provides: “All persons within the jurisdiction of this state are 3 free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, 4 disability, medical condition, marital status, or sexual orientation are entitled to the full and equal 5 accommodations, advantages, facilities, privileges, or services in all business establishments of 6 every kind whatsoever.” Cal. Civ. Code § 51(b). The Unruh Act provides that a violation of the 7 ADA constitutes a violation of the Unruh Act. See Pickern v. Best W. Timber Cove Lodge 8 Marina Resort, 194 F. Supp. 2d 1128, 1131 (E.D. Cal. 2002); Cal. Civ. Code § 54.1(d). 9 Violations of the Unruh Act permits statutory damages in the amount of $4,000 for each occasion 10 that a plaintiff is denied equal access. Id. § 52(a). Since plaintiff’s Unruh Act claim is predicated 11 on defendants’ alleged violation of the ADA, he is entitled to $8,000 in statutory damages for the 12 two occasions he denied access the business. 13 C. Attorneys’ Fees and Costs 14 Plaintiff also seeks attorney’s fees and costs. He requests $859.50 in costs, which consists 15 of a $150 fee to obtain ownership deed information from an assessor’s office, the $402 filling fee, 16 and $307.50 for completing service. ECF No. 10-1 at 5. These fees are reasonable and should be 17 granted. 18 Plaintiff also seeks $2,415 in attorney’s fees. To determine the reasonableness of 19 attorney’s fees, the court uses the lodestar method. Moreno v. City of Sacramento, 534 F.3d 20 1106, 1111 (9th Cir. 2008); Fischer v. SJB-P.D. Inc., 2124 F.3d 1115, 1119 (9th Cir. 2000). 21 Under that method, “a district court must start by determining how many hours were reasonably 22 expended on the litigation, and then multiply those hours by the prevailing local rate for an 23 attorney of the skill required to perform the litigation.” Id. 24 Plaintiff’s request is based on 6.9 hours at a rate of $350 per hour for work performed by 25 attorney Richard Mac Bride. Both the hourly rate and the time spent litigating this case are 26 reasonable. 27 Accordingly, it is hereby RECOMMENDED that: 28 1. Plaintiff’s motion for default judgment, ECF No. 10, be granted. 1 2. Default judgment be entered against defendants on plaintiff's ADA and Unruh Act 2 | claims. 3 3. Plaintiff's remaining claims be dismissed without prejudice. 4 4. Plaintiff be granted an injunction requiring defendants to provide an accessible 5 | bathroom, dining area, and path of travel from the public sidewalk and parking area to the 6 | business’s main entrance. 7 5. Plaintiff be awarded attorneys’ fees and costs in the amount of $3,274.50. 8 6. The Clerk of Court be directed to close this case. 9 These findings and recommendations are submitted to the United States District Judge 10 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen days of 11 | service of these findings and recommendations, any party may file written objections with the 12 | court and serve a copy on all parties. Any such document should be captioned “Objections to 13 | Magistrate Judge’s Findings and Recommendations,” and any response shall be served and filed 14 | within fourteen days of service of the objections. The parties are advised that failure to file 15 | objections within the specified time may waive the right to appeal the District Court’s order. See 16 | Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153 (9th Cir. 17 | 1991). 18 19 IT IS SO ORDERED. 20 ( 1 Oy — Dated: _ October 9, 2024 21 JEREMY D. PETERSON 9 UNITED STATES MAGISTRATE JUDGE

23 24 25 26 27 28