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44 55 66 77 United States District Court 88 Central District of California 99 1100 1111 CARLOS MARSH, Case No. 2:20-cv-05641-ODW (KKx)

1122 Plaintiff, ORDER DENYING PLAINTIFF’S

MOTION FOR DEFAULT

1133 v. JUDGMENT [21]

1144 MGP X PROPERTIES LLC, et al.,

1155 Defendants.

1166 1177 I. INTRODUCTION 1188 Plaintiff Carlos Marsh moves for entry of default judgment against Defendant 1199 MGP X Properties, LLC (“MGP”). (Mot. Def. J. (“Motion” or “Mot.”) ECF No. 21.) 2200 For the reasons discussed below, the Court DENIES Marsh’s Motion.1 2211 II. BACKGROUND 2222 Marsh is paralyzed and requires a wheelchair for mobility. (Compl. ¶ 1, ECF 2233 No. 1.) He alleges that MGP owns the real property located at 39256 10th Street West 2244 in Palmdale, California (“Property”). (Id. ¶ 2.) Marsh claims he visited the Property 2255 in March 2020 to shop at a Vitamin Shoppe store (“Store”). (Id. ¶ 8.) The Store 2266 allegedly failed to provide wheelchair accessible sales counters and wheelchair 2277

2288 1 Having carefully considered 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 accessible parking. (Id. ¶¶ 10–12.) Marsh alleges that the lack of accessible sales 2 counters and parking denied him access to the Store and currently deter him from 3 returning. (Id. ¶ 19.) 4 Marsh filed this action on June 24, 2020, asserting claims under Title III of the 5 Americans with Disabilities Act (“ADA”) and California state law, relating to his visit 6 to MGP’s restaurant in March 2020. (Compl. ¶¶ 8, 21–33.) The Court declined to 7 exercise supplemental jurisdiction over Marsh’s state law claims and dismissed them 8 without prejudice. (Min. Order Declining Suppl. Jurisdiction 11, ECF No. 19.) 9 On June 29, 2020, Marsh served MGP with a Summons and the Complaint. 10 (Proof of Service, ECF No. 11.) On July 24, 2020, Marsh requested an entry of 11 default after MGP failed to answer or otherwise respond to the Complaint. (Req. for 12 Entry of Default, ECF No. 16.) The Clerk entered default that same day. (Entry of 13 Default, ECF No. 17.) 14 III. LEGAL STANDARD 15 Plaintiffs seeking default judgment must meet certain procedural requirements, 16 as set forth in Federal Rule of Civil Procedure (“Rule”) 55 and Central District of 17 California Local Rule (“Local Rule”) 55-1. See Fed. R. Civ. P. 55; C.D. Cal. 18 L.R. 55-1. Local Rule 55-1 requires that motions for default judgment include: 19 (1) when and against which party default was entered; (2) identification of the 20 pleading to which default was entered; (3) whether the defaulting party is a minor, 21 incompetent person, or active service member; (4) that the Servicemembers Civil 22 Relief Act, 50 U.S.C. § 3931, does not apply; and (5) that the defaulting party was 23 properly served with notice, if required under Rule 55(b)(2). See Vogel v. Rite Aid 24 Corp., 992 F. Supp. 2d 998, 1006 (C.D. Cal. 2014). 25 Once the procedural requirements are satisfied, “[t]he district court’s decision 26 whether to enter a default judgment is a discretionary one.” See Aldabe v. Aldabe, 27 616 F.2d 1089, 1092 (9th Cir. 1980). Generally, a defendant’s liability is conclusively 28 established upon entry of default by the Clerk, and well-pleaded factual allegations in 1 the complaint are accepted as true, except those pertaining to the amount of damages. 2 See TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917–18 (9th Cir. 1987) (per 3 curiam) (citing Geddes v. United Fin. Grp., 559 F.2d 557, 560 (9th Cir. 1977)). Still, 4 “[a] defendant’s default does not automatically entitle the plaintiff to a court-ordered 5 judgment.” PepsiCo, Inc., v. Cal. Sec. Cans, 238 F. Supp. 2d 1172, 1174 (C.D. Cal. 6 2002). Rather, the court considers several factors in exercising its discretion, 7 including: (1) the possibility of prejudice to the plaintiff; (2) the merits of the 8 plaintiff’s substantive claim; (3) the sufficiency of the complaint; (4) the sum of 9 money at stake; (5) the possibility of a dispute concerning material facts; (6) whether 10 the defendant’s default was due to excusable neglect; and (7) the strong policy 11 favoring decision on the merits. Eitel v. McCool, 782 F.2d 1470, 1471–72 (9th. Cir. 12 1986). 13 IV. DISCUSSION 14 The second and third Eitel factors are dispositive here, so the Court begins with 15 them. These two factors, which address the merits of the claims and the sufficiency of 16 the complaint, “require that a plaintiff state a claim on which the [plaintiff] may 17 recover.” Philip Morris USA, Inc. v. Castworld Prods., Inc., 219 F.R.D. 494, 499 18 (C.D. Cal. 2003) (alteration in original) (citing PepsiCo, 238 F. Supp. 2d at 1175); see 19 also Danning v. Lavine, 572 F.2d 1386, 1388 (9th Cir. 1978) (“[F]acts which are not 20 established by the pleadings . . . are not binding and cannot support the judgment.”). 21 Although well-pleaded allegations in the complaint are deemed admitted by a 22 defendant’s failure to respond, “necessary facts not contained in the pleadings, and 23 claims which are legally insufficient, are not established by default.” Cripps v. Life 24 Ins. Co. of N. Am., 980 F.2d 1261, 1267 (9th Cir. 1992) (citing Danning, 572 F.2d 25 at 1388). 26 In this case, Marsh seeks relief under the ADA. (See Compl. ¶¶ 9–14.) To 27 prevail on this claim, he must show that: (1) “he is disabled within the meaning of the 28 ADA”; (2) “the defendant is a private entity that owns, leases, or operates a place of 1 public accommodation”; (3) “the plaintiff was denied public accommodations by the 2 defendant because of his disability”; (4) “the existing facility at the defendant’s place 3 of business [or property] presents an architectural barrier prohibited under the ADA”; 4 and (5) removing the barrier is “readily achievable.” Vogel, 992 F. Supp. 2d at 1007– 5 08 (brackets omitted) (first quoting Molski v. M.J. Cable Inc., 481 F.3d 724, 730 6 (9th Cir. 2007); and then quoting Parr v. L&L Drive-Inn Rest., 96 F. Supp. 2d 1065, 7 1085 (D. Haw. 2000)). 8 Marsh alleges that when he visited the Store it failed to provide wheelchair 9 accessible sales counters. (Compl. ¶ 10.) “Architectural barriers” are defined by 10 reference to the ADA Accessibility Guidelines (the “ADAAG”). See Chapman v. 11 Pier 1 Imps. (U.S.), Inc., 631 F.3d 939, 945 (9th Cir. 2011). Relevantly, the ADAAG 12 instructs that a public accommodation must provide accessible sales counters where 13 sales counters are provided. See 2010 ADAAG § 227.1 (“Where provided . . . sales 14 counters . . . shall comply with [sections] 227 and 904.” (emphasis added)). Here, 15 Marsh states in conclusory fashion that the Store “failed to provide wheelchair 16 accessible sales counters” without first establishing that it otherwise provided sales 17 counters to the public. (Compl. ¶¶ 10–11.) Thus, he fails to demonstrate the existence 18 of an architectural barrier under the ADA based on a lack of accessible sales counters. 19 Marsh also alleges the Store “failed to provide wheelchair accessible parking.” 20 (See id. ¶¶ 12–13.) Again, however, a public accommodation need only provide 21 accessible parking “[w]here parking spaces are provided.” See 2010 ADAAG 22 § 208.1 (emphasis added); see also id. § 208 (setting forth accessibility requirements 23 for parking spaces). Here, Marsh states in conclusory fashion that the Store “failed to 24 provide wheelchair accessible parking,” without first establishing that it actually 25 provides public parking. (See, e.g., Compl. ¶¶ 12–13.) Thus, Marsh fails to allege 26 that the lack of accessible parking constituted an architectural barrier under the ADA. 27 See 2010 ADAAG § 208.1. 28 1 In sum, even accepting the well-pleaded factual allegations in the Complaint as true, Marsh fails to state a claim under the ADA. See Cripps, 980 F.2d at 1267 3 || C‘[N]ecessary facts not contained in the pleadings, and claims which are legally 4|| insufficient, are not established by default.” (citing Danning, 572 F.2d at 1388)). 5 || Because the second and third Eitel factors alone demonstrate that default judgment is 6 || improper, the Court need not assess the remaining factors. See Brooke v. Sunstone Von Karman, LLC, No. 8:19-cv-00635-JLS (ADSx), 2020 WL 6153107, at *3 8 | (C.D. Cal. Aug. 25, 2020). However, leave to amend is appropriate because Marsh’s 9 || failure to state a claim is based on insufficient allegations which could theoretically be 10 || cured. 11 Vv. CONCLUSION 12 For the foregoing reasons, the Court DENIES Marsh’s Motion for Default 13 | Judgment. (ECF No. 21.) The Court accordingly DENIES Marsh’s request for 14 || attorneys’ fees. The default previously entered against MGP is hereby SET ASIDE. 15 || (ECF No. 17.) If Marsh chooses to amend his Complaint to address the deficiencies 16 || identified herein, any amended complaint must be filed and served within twenty-one 17 || (21) days of this Order. If Marsh timely files an amended complaint, MGP’s response 18 || is due according to Rule 15(a)(3). Failure to timely amend will result in dismissal of 19 || this action. 20 21 IT IS SO ORDERED. NS . 22 a 23 March 2, 2021 ee 4 OTIS D. WRIGHT, II 05 UNITED STATES DISTRICT JUDGE

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