Case 2:21-cv-02829-ODW-MAA Document 30 Filed 01/12/22 Page 1 of 9 Page ID #:113

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7 8 United States District Court 9 Central District of California 10

11 MIGUEL SOTO, Case No. 2:21-cv-02829-ODW (MAAx) 12 Plaintiff,

ORDER DENYING PLAINTIFF’S

13 v.

APPLICATION FOR ENTRY OF

14 RIO GARY II, L.P., DEFAULT JUDGMENT [26], 15 Defendants. SETTING ASIDE DEFENDANT’S

DEFAULT, AND GRANTING LEAVE

16

TO AMEND

17 18 I. INTRODUCTION 19 Plaintiff Miguel Soto applies for default judgment against Defendant Rio Garey 20 II, L.P. (“Rio Garey”) for violations of the Americans with Disabilities Act (“ADA”) at 21 a grocery store located at 2001 S. Garey Avenue in Pomona, California. (Appl. Default 22 J. (“Appl.” or “Application”), ECF No. 26.) For the reasons discussed below, the Court 23 DENIES Soto’s Application.1 24 II. FACTUAL AND PROCEDURAL BACKGROUND 25 Soto’s First Amended Complaint, filed June 28, 2021, sets forth the following 26 allegations. (First Am. Compl. (“FAC”), ECF No. 14.) 27

28 1 After carefully considering the papers filed in support of the Application, the Court deemed the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. Case 2:21-cv-02829-ODW-MAA Document 30 Filed 01/12/22 Page 2 of 9 Page ID #:114

1 Soto uses a wheelchair due to medical conditions that significantly impair his 2 mobility. (FAC ¶ 1.) In December 2020 and January 2021, Soto visited the subject 3 grocery store. (Id. ¶ 10.) Rio Garey is “the real property owner[], business operator[], 4 lessor[], and/or lessee[]” of the property. (Id. ¶ 2.) 5 Soto alleges three ADA violations involving the disabled parking space at the 6 property. (Id. ¶¶ 24, 26, 28.) Soto initiated this action against Rio Garey2 asserting five 7 causes of action: (1) violation of the ADA, (2) violation of the California Unruh Civil 8 Rights Act, (3) violation of the California Disabled Persons Act, (4) violation of 9 California Health & Safety Code § 19955, and (5) negligence. The Court declined to 10 exercise supplemental jurisdiction over the state-law claims (claims two through five) 11 and dismissed those claims without prejudice. (Min. Order 9, ECF No. 13.) On July 1, 12 2021, Soto served Rio Garey with the summons and Complaint. (Am. Proof of Service, 13 ECF No. 19.) Rio Garey did not answer or otherwise appear, and on August 1, 2021, 14 upon Soto’s request, the Clerk entered default against Rio Garey. (Default by Clerk, 15 ECF No. 23.) 16 Soto now moves for default judgment against Rio Garey. (See Appl.) He seeks 17 an injunction under the ADA directing Defendants to remedy the various violations of 18 the ADA he alleges exist at the disabled parking spot. (Id. at 5.) He also seeks 19 attorneys’ fees and costs in the total amount of $4,400.00. (Id. at 7–8; Proposed J., ECF 20 No. 26-4.) 21 III. LEGAL STANDARD 22 Federal Rule of Civil Procedure (“FRCP”) 55(b) authorizes a district court to 23 grant a default judgment after the Clerk enters default under Rule 55(a). Fed. R. Civ. 24 P. 55(b). “[A] defendant’s default,” however, “does not automatically entitle the 25 plaintiff to a court-ordered judgment.” PepsiCo, Inc., v. Cal. Sec. Cans, 238 F. Supp. 26

27 2 Plaintiff originally sued a different Defendant: Rio Gary II, L.P. (“Rio Gary”). The FAC names both 28 Rio Gary and Rio Garey as Defendants. On August, 2, 2021, the Court dismissed Rio Gary. (Min. Order Dismiss, ECF No. 24.)

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1 2d 1172, 1174 (C.D. Cal 2002). In exercising discretion, a court must consider several 2 factors (the “Eitel factors”): 3 (1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff’s 4 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 5 material facts; (6) whether the default was due to excusable neglect, and 6 (7) the strong policy underlying the [FRCP] favoring decisions on the merits. 7 8 Eitel v. McCool, 782 F.2d 1470, 1471–72 (9th Cir. 1986). Generally, after the Clerk 9 enters default, the defendant’s liability is conclusively established, and the well-pleaded 10 factual allegations in the complaint are accepted as true, except those pertaining to 11 damages. TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917–18 (9th Cir. 1987) (per 12 curiam) (quoting Geddes v. United Fin. Grp., 559 F.2d 557, 560 (9th Cir. 1977)). 13 Although well-pleaded allegations in the complaint are admitted by a defendant’s 14 failure to respond, “necessary facts not contained in the pleadings, and claims which 15 are legally insufficient, are not established by default.” Cripps v. Life Ins. Co. of N. 16 Am., 980 F.2d 1261, 1267 (9th Cir. 1992). 17 IV. DISCUSSION 18 In the FAC, Soto alleged three particular ADA violations. First, he alleged that 19 there was no sign indicating that the parking space was “Van Accessible” or that 20 improper use would result in a “Minimum Fine $250.” (FAC ¶¶ 13a, 24.) Second, he 21 alleged that there was no International Symbol of Accessibility painted onto the surface 22 of the accessible parking space. (FAC ¶¶ 13b, 26.) Third, he alleged that there were no 23 access aisles with blue hatched lines and “NO PARKING” markings. (FAC ¶¶ 13c, 24 28.) Soto provides no further evidence of or details about these violations in his 25 Application for Default Judgment and instead refers generally to parking space 26 violations. (See generally Appl.) Indeed, it remains unclear whether Soto is arguing 27 that Rio Garey provides no disabled parking space at all or that Rio Garey provides a 28 disabled parking space that is merely missing certain signage and markings. (See

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1 generally Decl. Miguel Soto (“Soto Decl.”), ECF No. 26-3 (providing no clarity on this 2 question).) 3 This concerning ambiguity aside, Soto’s Application is deficient in three senses. 4 First, Soto fails to show that he was in fact denied accommodation. Second, he makes 5 no attempt to plead or show that removal of any alleged access barriers is readily 6 achievable. Third, he fails to show that the defendant against whom he seeks default 7 judgment is the party responsible for the alleged ADA violations. 8 These failures can all be framed in terms of a failure to satisfy the second and 9 third Eitel factors, which, when taken together, “require that a plaintiff state a claim on 10 which the [plaintiff] may recover.” Philip Morris USA, Inc. v. Castworld Prods., Inc., 11 219 F.R.D. 494, 499 (C.D. Cal. 2003) (alteration in original) (quoting PepsiCo, 12 238 F. Supp. 2d at 1175). In determining whether a plaintiff has stated a claim, “facts 13 which are not established by the pleadings of the prevailing party, or claims which are 14 not well-pleaded, are not binding and cannot support the judgment.” Danning v. Lavine, 15 572 F.2d 1386, 1388 (9th Cir. 1978). To weigh these two factors, the Court evaluates 16 the merits of Soto’s ADA cause of action. The Court may properly consider the 17 evidence Soto submitted as part of this analysis, as long as the allegations in the FAC 18 were sufficient to place Rio Garey on notice of the violation being proven. See, e.g., 19 McComb v. Vejar, No. 2:14-CV-00941-RSWL-E, 2014 WL 5494017, at *6 (C.D. Cal. 20 Oct. 28, 2014) (examining plaintiff’s evidence on default judgment to determine if 21 removal of barrier was readily achievable). 22 The Court discusses each of the three deficiencies in turn and denies the 23 Application without addressing whether Soto met the procedural requirements for 24 obtaining default judgment. 25 A. Plaintiff fails to allege or show he was denied accommodation. 26 “Title III of the ADA prohibits discrimination on the basis of disability in the 27 ‘full and equal enjoyment of the goods, services, facilities, privileges, advantages, or 28 accommodations of any place of public accommodation . . . .’” Oliver v. Ralphs

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1 Grocery Co., 654 F.3d 903, 904 (9th Cir. 2011) (quoting 42 U.S.C. §§ 2000a(b), 2 12182(a)). As relevant here, discrimination includes “a failure to remove architectural 3 barriers . . . in existing facilities . . . where such removal is readily achievable.” 4 42 U.S.C. § 12182(b)(2)(A)(iv). To succeed on an ADA claim, a plaintiff must 5 establish that (1) he or she is “disabled within the meaning of the ADA,” (2) the 6 defendant “own[], lease[], or operate[] a place of public accommodation,” (3) the 7 defendant denied the plaintiff public accommodation because of his disability, (4) the 8 premises “present[] an architectural barrier prohibited under the ADA,” and (5) “the 9 removal of the barrier is readily achievable.” Vogel v. Rite Aid Corp., 992 F. Supp. 2d 10 998, 1007–08 (C.D. Cal. 2014) (citing Molski v. M.J. Cable, Inc., 481 F.3d 724, 730 11 (9th Cir. 2007)), abrogated on other grounds by Lopez v. Catalina Channel Express, 12 Inc., 974 F.3d 1030 (9th Cir. 2020). 13 Soto’s allegations and supporting evidence fail on the third element. Soto neither 14 alleges nor argues that the ADA parking space violations he asserts created any barrier 15 to his full use and enjoyment of the grocery store or otherwise caused a denial of 16 accommodation. Soto declares in the most general and conclusory terms that when he 17 got to the grocery store, he “discovered barriers and conditions in the parking spaces 18 that denied full and equal access by persons like myself who require the use of a 19 wheelchair for mobility,” (Soto Decl. ¶ 4), but fails to allege exactly how he was not 20 able to enjoy full access to and use of the grocery store. If the sole problem is that the 21 disabled parking signage and markings are insufficient, but the lack of signage did not 22 somehow prevent the plaintiff from accessing the business, then the plaintiff has not 23 actually encountered an access barrier, has not been denied full and equal access, and 24 has not been denied accommodation. 25 That there was no denial of full and equal access not only causes the failure of a 26 statutory element of Soto’s ADA claim; it also deprives him of Article III standing. To 27 satisfy the injury-in-fact requirement for Article III standing, a plaintiff alleging ADA 28 construction access barriers must have personally suffered discrimination under the

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1 ADA on account of his or her disability. See Chapman v. Pier 1 Imports (U.S.) Inc., 2 631 F.3d 939, 954 (9th Cir. 2001) (finding a plaintiff failed to satisfy the injury-in-fact 3 requirement when the plaintiff merely alleged ADA Accessibility Guidelines violations 4 without alleging exactly how he was denied full and equal access to the establishment). 5 Here, Soto neither alleges nor argues how he personally suffered discrimination and 6 incurred an injury-in-fact as a result of the asserted violations. 7 For these reasons, the fact that Soto was never denied full and equal access to the 8 grocery store is the first basis on which the Court denies this Application. 9 B. Plaintiff makes no attempt to explain how correcting the ADA violations is 10 readily achievable. 11 The second basis for denying this Application is the lack of allegations and 12 evidence that correcting the alleged violations is readily achievable. Removal of an 13 architectural barrier is “readily achievable” if it is “easily accomplishable and able to 14 be carried out without much difficulty or expense.” Acosta v. Martinez, No. 1:19-cv- 15 00307-AWI-EPG, 2020 WL 1026890, at *7 (E.D. Cal. Mar. 30, 2020) (citing 42 U.S.C. 16 § 12181(9)). In a recent matter of first impression, the Ninth Circuit found that “to 17 satisfy their initial burden, ADA plaintiffs must plausibly show how the cost of 18 removing the architectural barrier at issue does not exceed the benefits under the 19 circumstances.” Lopez, 974 F.3d at 1038. Under this approach, plaintiffs bear the initial 20 burden of “articulat[ing] a plausible proposal for barrier removal, ‘the costs of which, 21 facially, do not clearly exceed its benefits.’” Id. (quoting Borkowski v. Valley Cent. 22 Sch. Dist., 63 F.3d 131, 138 (2d Cir. 1995)). 23 It is unmistakable after Lopez that the plaintiff bears this burden, meaning that 24 conclusory allegations regarding readily achievable removal of a barrier are insufficient 25 in the default judgment setting. See, e.g., Soto v. Doublz of El Monte, Inc., No. CV 20- 26 10296 FMO (SKx), 2021 WL 4733761, at *2 n.4 (C.D. Cal. Aug. 23, 2021).3 Even 27

28 3 Soto’s firm is now aware of the change in law following Lopez, and the court expects Soto’s firm to incorporate this change in any future briefs, and to refrain from citing law that no longer applies. See

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1 before Lopez, however, district courts in the Ninth Circuit regularly required plaintiffs 2 moving for default judgment to show that removing the barriers was readily achievable, 3 either with well-pleaded factual allegations or evidence. See, e.g., Sceper v. Trucks 4 Plus, No. CIV S-09-0801 GEB EFB, 2009 WL 3763823, at *3 (E.D. Cal. Nov. 3, 2009) 5 (noting that fact that defendants have not appeared is more reason, not less, for courts 6 to carefully enforce this requirement). 7 Here, both the FAC and the Application are devoid of any fact-specific discussion 8 regarding whether correcting the alleged ADA violations would be readily achievable 9 for Rio Garey. The FAC contains only boilerplate language indicating that 10 “Defendants . . . have the financial resources to remove these barriers without much 11 difficulty or expenses to make the Business accessible to the physically disabled in 12 compliance” with the ADA. (FAC ¶ 17.) Courts are to ignore boilerplate, generalized 13 allegations such as these because they fail to place the defendant on notice of exactly 14 what the plaintiff is arguing and asking the defendant to do.4 15 Soto presents no facts to support, and asks the Court to simply assume, the 16 “readily achievable” requirement—which, after Lopez, the Court may not do. 974 F.3d 17 at 1038. Soto’s failure to advance any argument regarding readily achievable removal 18 casts substantial doubt on the merits of his claim. Thus, Soto’s failure to address the 19 “readily achievable” requirement is the second basis for denying his Application. 20

21 Soto, 2021 WL 4733761, at *1 (pointing out that Soto’s application for default judgment in that case 22 ignored Lopez and that the Lopez decision predated Soto’s application by five months); id. at *2 n.4 (making unequivocally clear that Vogel’s treatment of this issue is outdated). 23 4 Soto’s failure to demonstrate readily achievable removability of the barriers is related to the 24 ambiguity surrounding whether there was a deficient disabled parking space or no disabled parking 25 space at all. If, for example, the property provided only one parking space hemmed in on all sides by buildings and egresses, it would not necessarily be the case that the space could be converted into a 26 disabled parking space without unreasonable expense—that is, it would not necessarily be the case that removal of the barrier would be readily achievable. Soto fails to allege or otherwise present the 27 court with more information about the number and type of parking spaces on the property, and so the 28 Court is unable to determine whether converting the challenged parking space into a fully ADA- compliant disabled parking space would be readily achievable.

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1 C. Plaintiff fails to allege or show that Defendant is responsible for the parking 2 space and parking space violations. 3 As set forth above, the second element of an ADA claim is that the defendant 4 owns, leases, or operates a place of public accommodation. Vogel, 992 F. Supp. 2d 5 at 1007–08. Such a defendant violates the ADA when the defendant fails to remove an 6 architectural barrier.5 42 U.S.C. § 12182(b)(2)(A)(iv). Thus, to determine the merits 7 of an ADA claim, the Court must ask: (1) whether the defendant owns, leases, or 8 operates the premises in question, and (2) whether the defendant’s relationship to the 9 premises makes that defendant responsible for the ADA violation. This second inquiry 10 exists because if a defendant’s relationship with a property is such that the defendant is 11 not responsible for a particular architectural barrier (such as the case when a defendant 12 is prohibited by contract or some other law from correcting the barrier), then the 13 defendant cannot be said to have failed to remove the barrier. 14 Soto’s FAC and Application fail upon this two-part inquiry in that Soto fails to 15 show Rio Garey is responsible for the disabled parking space and the violations thereon. 16 Soto alleged in generalized, ambiguous terms that Rio Garey was the owner, operator, 17 lessor, or lessee of the property. (FAC ¶ 2.) Soto further alleged in conclusory terms 18 that “Defendants had and still have control and dominion over the conditions at this 19 location.” (Id. ¶ 17.) These allegations are entirely insufficient to place Rio Garey on 20 notice of the nature of the relationship Soto alleges exists between Rio Garey and the 21 property. 22 Buried in the attorney declaration is a hearsay-laden paragraph providing some 23 quantum of evidence that Rio Garey owns the real property at 2001 S. Garey Avenue, 24 (Decl. Jason J. Kim ¶ 4, ECF No. 26-2), but this information remains insufficient to 25 complete the inquiry. Without competent, case-specific information about the 26

27 5 Soto left this requirement out of his putatively “simplified statement of the elements necessary for 28 the plaintiff to prove discrimination” under the ADA and his subsequent analysis. (Appl. 3.) In this sense, Soto’s simplified statement is not an accurate statement of the law.

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1 || relationships existing among Rio Garey, the property, and the disabled parking space, 2 || the Court cannot verify that Rio Garey is responsible for the parking space violation— 3 || that is, that Rio Garey failed to remove the alleged barriers. See Grigsby v. Tecomate Corp., No. 2:19-CV-08735-ODW (KSx), 2021 WL 134583, at *3 (C.D. Cal. Jan. 14, 5 || 2021) (denying application for default judgment and observing that plaintiffs “vague” 6 || allegations did not demonstrate that the defendant was responsible for providing 7 || parking). 8 For these reasons, Soto’s allegations and evidence are insufficient to show that 9 || Rio Garey is the party responsible for failing to remove the alleged barriers. The Court 10 || therefore denies Soto’s application on this third basis. 11 Vv. CONCLUSION 12 For the foregoing reasons, the Court DENIES Plaintiff's Application for Default 13 | Judgment. (ECF No. 26.) The Court accordingly DENIES Plaintiff’s request for 14 || attorneys’ fees. The default previously entered against Defendant Rio Garey II, L.P. is 15 || hereby SET ASIDE. (ECF No. 23.) Soto is GRANTED leave to amend his First 16 || Amended Complaint to address the deficiencies identified herein. If Soto chooses to 17 || amend, any amended complaint must be filed and served within twenty-one (21) days 18 || of the date of this Order. Failure to timely amend will result in dismissal of this action 19 || with prejudice. 20 21 IT IS SO ORDERED. 22 23 January 12, 2022 ‘ 24 “ gf . Lfedliatl 6 OTIS D. WRIGHT, I 7 UNITED STATES DISTRICT JUDGE

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