I. INTRODUCTION

18 Plaintiff Nehemiah Kong (“Kong”) moves for entry of default judgment against 19 Defendant Image of Beverly Hills, LLC (“Image”) for violations of Title III of the 20 Americans with Disability Act (“ADA”). (See Mot. for Default J. (“Mot.”), ECF 21 No. 20.) For the reasons discussed below, the Court DENIES Kong’s Motion for 22 Default Judgment (“Motion”).1 23

II. BACKGROUND

24 Kong is a paraplegic who uses a wheelchair for mobility; he has a specially 25 equipped van with a ramp. (Compl. ¶ 1, ECF No. 1.) Kong alleges that Image owns 26 27 28 1 After carefully considering the papers filed in connection with the Motion, the Court deemed the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. 1 the real property located at or about 10930 Long Beach Blvd., Lynwood, California. 2 (Id. ¶¶ 2–3.) He alleges that, in February 2020, he went to a shopping center (“Shopping 3 Center”) where wheelchair accessible parking was not provided. (Id. ¶¶ 8, 10.) 4 Specifically, Kong contends that the van accessible parking stall and access aisle were 5 not level with each other because of a built-up curb ramp, the paint striping had faded 6 beyond recognition, and the parking spaces lacked a “NO PARKING” warning, paint 7 striping, or any other indicia of accessible parking other than a faded International 8 Symbol of Accessibility logo. (Mot. 1.) Kong asserts that he is deterred from returning 9 to the Shopping Center because of the existing barriers and will return when the 10 Shopping Center has been brought into compliance with the ADA. (Compl. ¶ 18.) 11 On March 6, 2020, Kong filed this action against Image asserting two causes of 12 action arising from his visit to the Shopping Center: (1) violation of the ADA; and 13 (2) violation of the Unruh Civil Rights Act (“Unruh”). (Compl. ¶¶ 20–30.) The Court 14 declined to exercise supplemental jurisdiction over Kong’s Unruh state law claim; thus, 15 that claim was dismissed without prejudice. (Min. Order 10, ECF No. 12.) 16 On May 27, 2020, Kong served Image with the Summons and Complaint. (Proof 17 of Service, ECF No. 13.) Image did not file a response to the Complaint; thus, Kong 18 requested the Clerk to enter default. (Req. for Clerk to Enter Default, ECF No. 16.) On 19 July 6, 2020, the Clerk entered default against Image. (Default by Clerk, ECF No. 17.) 20 Kong now moves for default judgment. (See Mot.) Kong seeks an order directing 21 Image to provide wheelchair accessible parking spaces at the Shopping Center and 22 awarding attorneys’ fees and costs of $4,910.00. (See Mot. 7, 10–18; Decl. of Russell 23 Handy ¶ 2, ECF No. 20-5; Billing Summ. 1, ECF No. 20-4.) 24 III. LEGAL STANDARD 25 Federal Rule of Civil Procedure (“Rule”) 55(b) authorizes a district court to grant 26 default judgment after the Clerk enters default under 55(a). Fed. R. Civ. P. 55(b). 27 Before a court can enter default judgment against a defendant, the plaintiff must satisfy 28 the procedural requirements set forth in Rule 54(c) and 55, as well as Local Rule 55-1. 1 Fed. R. Civ. P. 54(c), 55; C.D. Cal. L.R. 55-1. Local Rule 55-1 requires that the movant 2 establish: (1) when and against which party default was entered; (2) identification of 3 the pleading to which default was entered; (3) whether the defaulting party is a minor, 4 incompetent person, or active service member; (4) that the Servicemembers Civil Relief 5 Act, 50 U.S.C. § 3931, does not apply; and (5) that the defaulting party was properly 6 served with notice, if required under Rule 55(b)(2). C.D. Cal. L.R. 55-1. 7 If these procedural requirements are satisfied, a district court has discretion to 8 grant a default judgment. Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). 9 However, “[a] defendant’s default does not automatically entitle the plaintiff to a 10 court-ordered judgment.” PepsiCo, Inc., v. Cal. Sec. Cans, 238 F. Supp. 2d 1172, 1174 11 (C.D. Cal. 2002). In exercising its discretion, a court considers several factors (the 12 “Eitel Factors”): (1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff’s 13 substantive claim, (3) the sufficiency of the complaint, (4) the sum of 14 money at stake in the action; (5) the possibility of a dispute concerning 15 material facts; (6) whether the default was due to excusable neglect, and (7) the strong policy underlying the [Rules] favoring decisions on the 16 merits. 17 Eitel v. McCool, 782 F.2d 1470, 1471–72 (9th. Cir. 1986). Generally, upon entry of 18 default, the defendant’s liability is conclusively established, and the well-pleaded 19 factual allegations in the complaint are accepted as true, except those pertaining to the 20 amount of damages. TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917–18 (9th Cir. 21 1987) (per curiam) (quoting Geddes v. United Fin. Grp., 559 F.2d 557, 560 (9th Cir. 22 1977)). In addition, although well-pleaded allegations in the complaint are admitted by 23 a defendant’s failure to respond, “necessary facts not contained in the pleadings, and 24 claims which are legally insufficient, are not established by default.” Cripps v. Life Ins. 25 Co. of N. Am., 980 F.2d 1261, 1267 (9th Cir. 1992) (citing Danning v. Lavine, 572 F.2d 26 1386, 1388 (9th Cir. 1978)). A defendant does not admit facts that are not well-pleaded 27 or conclusions of law. DIRECTV, Inc. v. Hoa Huynh, 503 F.3d 847, 854 (9th Cir. 2007) 28 1 (quoting Nishimatsu Constr. Co. v. Houston Nat’l Bank, 515 F.2d 1200, 1206 (5th Cir. 2 1975))). 3 IV. DISCUSSION 4 Kong satisfies the procedural requirements but fails to state a claim under the 5 ADA. Accordingly, default judgment is not appropriate. 6 A. Procedural Requirements 7 Kong has satisfied the procedural requirements for an entry of default judgment. 8 Kong asserts that: (1) the Clerk entered default against Image on July 6, 2020; 9 (2) default was entered based on Kong’s March 2020 Complaint; (3) Image is neither 10 an infant nor incompetent; (4) Image is not covered under the Servicemembers Civil 11 Relief Act, 50 U.S.C. § 3931; and (5) Kong served Image with notice of this Motion on 12 August 6, 2020. (Mot. 1–2; Decl. of Faythe Gutierrez ¶¶ 2, 5–6, ECF No. 20-13.) 13 Accordingly, Kong has satisfied the procedural requirements of Rules 54(c) and 55, as 14 well as Local Rule 55-1. 15 B. Factors 16 The second and third Eitel factors are dispositive, so the Court begins with them. 17 These two factors address the merits of the claims and the sufficiency of the complaint, 18 requiring that plaintiffs “state a claim on which [they] may recover.” Danning, 572 19 F.2d at 1388; see also PepsiCo, Inc., 238 F. Supp. 2d at 1175. “[F]acts which are not 20 established by the pleadings of the prevailing party, or claims which are not 21 well-pleaded, are not binding and cannot support the judgment.” Danning, 572 F.2d 22 at 1388. 23 Kong asserts a claim for violation of the ADA. (See Compl. ¶¶ 20–26.) To 24 prevail on this claim, Kong must show that (1) “he is disabled within the meaning of 25 the ADA”; (2) “the defendant is a private entity that owns, leases, or operates a place 26 of public accommodation”; (3) “the plaintiff was denied public accommodations by the 27 defendant because of his disability”; (4) “the existing facility at the defendant’s place 28 of business [or property] presents an architectural barrier prohibited under the ADA”; 1 and (5) removing the barrier is “readily achievable.” Vogel, 992 F. Supp. 2d 2 at 1007–08 (brackets omitted) (first quoting Molski v. M.J. Cable, Inc., 481 F.3d 724, 3 730 (9th Cir. 2007); and then quoting Parr v. L & L Drive-Inn Rest., 96 F. Supp. 2d 4 1065, 1085 (D. Haw. 2000)). Architectural barriers are defined by reference to the ADA 5 Accessibility Guidelines (the “ADAAG”). See Chapman v. Pier 1 Imps. (U.S.), Inc., 6 631 F.3d 939, 945 (9th Cir. 2011). The ADAAG requires a place of public 7 accommodation that provides parking to provide accessible parking spaces. 2010 8 ADAAG §§ 208, 502. 9 Here, Kong’s allegations fail to satisfy the second, third, and fourth requirement. 10 Kong alleges that Image “owns the real property located at or about 10930 Long Beach 11 Blvd, Lynwood California.” (Compl. ¶¶ 2–3.) He also alleges he went to the Shopping 12 Center in February 2020 and “the defendants failed to provide wheelchair accessible 13 parking in conformance with the ADA.” (Id. ¶¶ 10, 23.) These allegations are 14 insufficient to establish that Image owns, leases, or operates the Shopping Center or that 15 the Shopping Center is located on real property that Image owns. This deficiency alone 16 defeats Kong’s claim. See Langer v. Hanafin, No. 15-CV-2950 BEN (NLS), 2016 WL 17 5367712, at *2 (S.D. Cal. Sept. 26, 2016) (finding that plaintiff “fail[ed] to state a claim 18 because there [were] no allegations connecting the [d]efendants to the allegedly 19 deficient parking lot.”). 20 Additionally, although the Complaint repeatedly refers to “barriers,” Kong fails 21 to identify them. (See e.g., Compl. ¶¶ 12, 15, 17.) Kong states in conclusory fashion, 22 “defendants failed to provide wheelchair accessible parking,” but he alleges no facts to 23 support that conclusion or indicate how parking at the Shopping Center was not 24 ADA-compliant. (Compl. ¶ 10.) Although Kong’s Motion and supporting declarations 25 contain assertions that the parking paint striping had faded and the access aisle was not 26 level (see Decl. of Nehemiah Kong ¶¶ 6–7, ECF No. 20-6), these assertions do not 27 appear in the Complaint. “[I]n the context of a default, the court considers only the 28 allegations in the complaint to support [the merits of the claims], and considers outside 1 || declarations and other evidence solely with respect to damages.” Johnson v. RK Inv. Props., Inc., No. 18-CV-01132-KAW, 2019 WL 1575206, at *4 (N.D. Cal. Mar. 18, 3 || 2019), report and recommendation adopted, No. 18-CV-01132-YGR, 2019 WL 1571071 (N.D. Cal. Apr. 11, 2019). In any event, Kong also does not allege that the 5 || Shopping Center provides parking to its customers such that the lack of accessible 6 || parking would constitute an architectural barrier under the ADA. See 2010 ADAAG § 208 (“Where parking spaces are provided, parking spaces shall be provided in 8 | accordance with 208.”). 9 Accepting the well-pleaded factual allegations in the Complaint as true, Kong 10 | fails to state a claim under the ADA. Thus, the second and third Ejitel Factors alone 11 || demonstrate default judgment 1s improper and the Court does not assess the remaining 12 | factors. Brooke v. Sunstone Von Karman, LLC, No. 8:19-CV-00635-JLS (ADSx), 13 | 2020 WL 6153107, at *3 (C.D. Cal. Aug. 25, 2020). However, leave to amend is 14|| appropriate because Kong’s failure to state a claim is based on_ insufficient 15 || allegations. Jd. 16 V. CONCLUSION 17 For the reasons discussed above, the Court DENIES Kong’s Motion for Default 18 | Judgment without prejudice. (ECF No. 20.) The Court accordingly denies Kong’s 19 || request for attorneys’ fees. The default previously entered against Image is hereby 20 | VACATED. (ECF No. 17.) If Kong chooses to amend his Complaint to address the 21 || deficiencies identified herein, any amended complaint must be filed and served within 22 || twenty-one (21) days of the date of this Order. Failure to timely amend will result in 23 || dismissal of this action. 24 25 IT IS SO ORDERED. 26 November 13, 2020 Lg

28 OTIS D. WRIGHT, II

UNITED STATES DISTRICT JUDGE