O 1

2

3 4

5

6

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

11 GEORGE JONES, Case No. 2:21-cv-03417-ODW (ASx) 12 Plaintiff,

ORDER GRANTING IN PART AND

13 v.

DENYING IN PART PLAINTIFF’S

14 ARNULFO ESTRADA, et al., APPLICATION FOR ENTRY OF 15 Defendants. DEFAULT JUDGMENT [23] 16 17 I. INTRODUCTION 18 Plaintiff George Jones applies for default judgment against Defendants Arnulfo 19 Estrada and Rose Estrade for violations of the Americans with Disabilities Act (“ADA”) 20 at the Mariscos Agua Verde Restaurant in Wilmington, California. (Appl. Default J. 21 (“Appl.”), ECF No. 23.) For the reasons discussed below, the Court GRANTS IN 22 PART and DENIES IN PART Jones’s Application.1 23 II. FACTUAL AND PROCEDURAL BACKGROUND 24 On April 21, 2021, Jones filed a Complaint alleging the following facts. (Compl., 25 ECF No. 1.) 26 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. 1 Jones uses a cane and a walker due to a medical condition that significantly 2 impairs his mobility. (Compl. ¶ 1.) In September 2020, November 2020, and 3 January 2021, Jones visited the Mariscos Agua Verde Restaurant at 625 W. Pacific 4 Coast Highway in Wilmington, California (the “Property”). (Id. ¶ 13.) Defendants own 5 the Property where the Restaurant is located. (Id. ¶ 2.) Jones alleges several ADA 6 violations at the Property involving the disabled parking space and the men’s restroom. 7 (Id. ¶ 20.) 8 Jones initiated this action against Defendants asserting two causes of action: 9 violation of the ADA and violation of the California Unruh Civil Rights Act (“Unruh 10 Act”). (Id. ¶¶ 31–57.) The Court declined to exercise supplemental jurisdiction over 11 Jones’s Unruh Act claim and dismissed that claim without prejudice. (Min. Order 9, 12 ECF No. 15.) 13 Upon Jones’s request, the Clerk entered default against both Defendants. 14 (Default by Clerk, ECF No. 20.) Jones now moves for default judgment against both 15 Defendants. (See Appl.) He seeks an injunction under the ADA directing Defendants 16 to remedy the alleged ADA violations. (Compl. Prayer for Relief ¶ 1.) 17 III. LEGAL STANDARD 18 Federal Rule of Civil Procedure (“FRCP”) 55(b) authorizes a district court to 19 grant a default judgment after the Clerk enters default under Rule 55(a). Fed. R. Civ. 20 P. 55(b). Before a court can enter a default judgment against a defendant, the plaintiff 21 must satisfy the procedural requirements set forth in FRCP 54(c) and 55, as well as 22 Local Rules 55-1 and 55-2. Local Rule 55-1 requires that the movant submit a 23 declaration establishing: (1) when and against which party default was entered; 24 (2) identification of the pleading to which default was entered; (3) whether the 25 defaulting party is a minor, incompetent person, or active service member; (4) that the 26 Servicemembers Civil Relief Act, 50 U.S.C. § 3931, does not apply; and (5) that the 27 defaulting party was properly served with notice, if required under Rule 55(b)(2). C.D. 28 Cal. L.R. 55-1. 1 If these procedural requirements are satisfied, a district court has discretion to 2 enter default judgment. Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). “[A] 3 defendant’s default does not automatically entitle the plaintiff to a court-ordered 4 judgment.” PepsiCo, Inc., v. Cal. Sec. Cans, 238 F. Supp. 2d 1172, 1174 (C.D. Cal 5 2002). In exercising discretion, a court must consider several factors (the “Eitel 6 factors”): 7 (1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff’s 8 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 9 material facts; (6) whether the default was due to excusable neglect, and 10 (7) the strong policy underlying the [FRCP] favoring decisions on the merits. 11 12 Eitel v. McCool, 782 F.2d 1470, 1471–72 (9th Cir. 1986). Generally, after the Clerk 13 enters default, the defendant’s liability is conclusively established, and the well-pleaded 14 factual allegations in the complaint are accepted as true, except those pertaining to 15 damages. TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917–18 (9th Cir. 1987) (per 16 curiam) (quoting Geddes v. United Fin. Grp., 559 F.2d 557, 560 (9th Cir. 1977)). 17 Although well-pleaded allegations in the complaint are admitted by a defendant’s 18 failure to respond, “necessary facts not contained in the pleadings, and claims which 19 are legally insufficient, are not established by default.” Cripps v. Life Ins. Co. of N. 20 Am., 980 F.2d 1261, 1267 (9th Cir. 1992). 21 IV. DISCUSSION 22 Jones satisfies the procedural prerequisites to moving for default judgment, and 23 the Eitel factors weigh in favor of issuing an ADA injunction to remedy two particular 24 ADA violations in the men’s restroom. 25 A. Procedural Requirements 26 The Clerk entered default against Defendants at Jones’s request in accordance 27 with FRCP 55(a). In compliance with Local Rule 55-1, Jones’s counsel declares: (a) the 28 Clerk entered default against Defendants (b) on the Complaint that Jones filed on 1 April 21, 2021; (c) Defendants are not infants or incompetent persons; (d) Defendants 2 are not covered under the Servicemembers Civil Relief Act; and (e) Jones served 3 Defendants with notice of this Application by first class United States mail on 4 August 13, 2021. (Decl. Anoush Hakimi (“Hakimi Decl.”) ¶¶ 2, 5–6, ECF No. 23-4.) 5 Thus, Jones has complied with the procedural requirements for the entry of a default 6 judgment. 7 B. Eitel Factors 8 Once a plaintiff satisfies the foregoing procedural requirements, the court 9 proceeds to exercise its discretion in entering default judgment, using the Eitel factors 10 as a guide. Here, the Court finds that the Eitel factors favor entry of default judgment 11 against Defendants on Jones’s ADA claim for two particular accessibility violations in 12 the men’s restroom. The second and third Eitel factors are generally the most 13 substantial in the ADA context, so the Court begins with those. 14 1. Substantive Merits and Sufficiency of Complaint 15 The second and third Eitel factors “require that a plaintiff state a claim on which 16 the [plaintiff] may recover.” Philip Morris USA, Inc. v. Castworld Prods., Inc., 17 219 F.R.D. 494, 499 (C.D. Cal. 2003) (alteration in original) (quoting PepsiCo, 238 F. 18 Supp. 2d at 1175). “[F]acts which are not established by the pleadings of the prevailing 19 party, or claims which are not well-pleaded, are not binding and cannot support the 20 judgment.” Danning v. Lavine, 572 F.2d 1386, 1388 (9th Cir. 1978). To weigh these 21 two factors, the Court evaluates the merits of Jones’s ADA cause of action. The Court 22 may properly consider the evidence Jones submitted as part of this analysis, as long as 23 the allegations in the Complaint were sufficient to place Defendants on notice of the 24 violation that was alleged. See, e.g., McComb v. Vejar, No. 2:14-CV-00941-RSWL-E, 25 2014 WL 5494017, at *6 (C.D. Cal. Oct. 28, 2014) (examining plaintiff’s evidence on 26 default judgment to determine if removal of barrier was readily achievable). 27 “Title III of the ADA prohibits discrimination on the basis of disability in the 28 ‘full and equal enjoyment of the goods, services, facilities, privileges, advantages, or 1 accommodations of any place of public accommodation . . . .’” Oliver v. Ralphs 2 Grocery Co., 654 F.3d 903, 904 (9th Cir. 2011) (quoting 42 U.S.C. §§ 2000a(b), 3 12182(a)). As relevant here, discrimination includes “a failure to remove architectural 4 barriers . . . in existing facilities . . . where such removal is readily achievable.” 5 42 U.S.C. § 12182(b)(2)(A)(iv). To succeed on his ADA claim, Jones must establish 6 that (1) he is “disabled within the meaning of the ADA,” (2) Defendants “own[], lease[], 7 or operate[] a place of public accommodation,” (3) Defendants denied Jones public 8 accommodation because of his disability, (4) the store “presents an architectural barrier 9 prohibited under the ADA,” and (5) “the removal of the barrier is readily achievable.” 10 Vogel v. Rite Aid Corp., 992 F. Supp. 2d 998, 1007–08 (C.D. Cal. 2014) (citing Molski 11 v. M.J. Cable, Inc., 481 F.3d 724, 730 (9th Cir. 2007)), abrogated on other grounds by 12 Lopez v. Catalina Channel Express, Inc., 974 F.3d 1030 (9th Cir. 2020). 13 First, under the ADA, a “disability” is “a physical or mental impairment that 14 substantially limits one or more major life activities.” 42 U.S.C. § 12102(1)(A). The 15 ADA lists walking as a “major life activit[y].” Id. § 12102(2)(A). Jones alleges that he 16 uses a cane and a walker due to a medical condition that significantly impairs his ability 17 to walk. (Compl. ¶ 1.) Jones’s allegation thus establishes that he is disabled under the 18 ADA definition. 19 Second, under the ADA, those who own, lease, or operate places of public 20 accommodation are prohibited from discriminating against an individual on the basis of 21 disability. 42 U.S.C. § 12182(a). Public accommodations include restaurants. Id. 22 § 12181(7)(B). Jones alleges Defendants own the Property. (Compl. ¶ 2.) Jones also 23 submits evidence that Defendants own the Property based on a search conducted on a 24 real estate intelligence database. (Hakimi Decl. ¶ 3, Ex. 2.) This suffices to show that 25 Defendants own a place of public accommodation subject to Title III of the ADA. 26 As to the third, fourth, and fifth elements, “a public accommodation shall 27 maintain . . . facilities . . . readily accessible to and usable by persons with disabilities.” 28 28 C.F.R. § 36.211(a). The standards governing compliance with the ADA are set forth 1 in the ADA Accessibility Guidelines (“ADAAG”), which is “essentially an 2 encyclopedia of design standards.” Oliver, 654 F.3d at 905. Under the ADAAG, places 3 of public accommodation that provide parking must provide accessible parking spaces, 4 2010 ADAAG §§ 208, 502, and those that provide bathrooms must provide at least one 5 accessible bathroom, id. §§ 603–606. 6 i. Parking Space 7 Jones alleges that “[p]arking is one of the facilities, privileges, and advantages 8 offered by Defendants to patrons of the Property.” (Compl. ¶ 16.) Although Jones 9 alleges that the disabled parking space at the Property is “full” of ADA violations, (id. 10 ¶ 20), Jones’s Application focuses on a single parking space-related violation: that the 11 accessible space and adjacent access aisles have surface slopes exceeding two percent, 12 in violation of 2010 ADAAG § 502.4, (Appl. at 15). 13 Here, Jones fails to allege in anything but conclusory terms that decreasing the 14 grade of the parking space surface is readily achievable. Removal of an architectural 15 barrier is “readily achievable” if it is “easily accomplishable and able to be carried out 16 without much difficulty or expense.” Acosta v. Martinez, No. 1:19-cv-00307-AWI- 17 EPG, 2020 WL 1026890, at *7 (E.D. Cal. Mar. 30, 2020) (citing 42 U.S.C. § 12181(9)). 18 In a recent matter of first impression, the Ninth Circuit found that “to satisfy their initial 19 burden, ADA plaintiffs must plausibly show how the cost of removing the architectural 20 barrier at issue does not exceed the benefits under the circumstances.” Lopez, 974 F.3d 21 at 1038. Under this approach, plaintiffs bear the initial burden of “articulat[ing] a 22 plausible proposal for barrier removal, ‘the costs of which, facially, do not clearly 23 exceed its benefits.’” Id. (quoting Borkowski v. Valley Cent. Sch. Dist., 63 F.3d 131, 24 138 (2d Cir. 1995)). 25 It is unmistakable after Lopez that the plaintiff bears this burden, meaning that 26 conclusory allegations regarding readily achievable removal of a barrier are insufficient 27 in the default judgment setting. See, e.g., Soto v. Doublz of El Monte, Inc., No. CV 20- 28 10296 FMO (SKx), 2021 WL 4733761, at *2 n.4 (C.D. Cal. Aug. 23, 2021). Even 1 before Lopez, however, district courts in the Ninth Circuit regularly required plaintiffs 2 moving for default judgment to make the “readily achievable” showing, either with 3 well-pleaded factual allegations or evidence. See, e.g., Sceper v. Trucks Plus, No. CIV 4 S-09-0801 GEB EFB, 2009 WL 3763823, at *3 (E.D. Cal. Nov. 3, 2009) (noting that 5 fact that defendants have not appeared is more reason, not less, for courts to carefully 6 enforce this requirement). 7 Here, Jones alleges only in the barest conclusory terms that Defendants could 8 readily remedy the alleged ADA violations as a whole; his allegation that the 9 Department of Justice has determined that removal of “these types” of barriers is 10 likewise conclusory and devoid of facts. (Compl. ¶ 27.) Jones makes no attempt, with 11 either his allegations or his evidence, to “articulate a plausible proposal” for altering the 12 slope of the parking space or otherwise describe the cost or burden of correcting the 13 violation. See Lopez, 974 F.3d at 1038. Accordingly, Jones fails to show entitlement 14 to an ADA injunction relating to the parking space. See Dunn v. Abrahamian, No. CV 15 20-9713 FMO (AGRx), 2021 WL 1570831, at *2 (C.D. Cal. Mar. 9, 2021) (denying 16 plaintiff’s motion for default judgment for failure to plausibly show how cost of 17 removing architectural barriers did not exceed benefits). 18 ii. Restroom 19 When toilet facilities are provided, they must comply with the ADA. 20 2010 ADAAG § 603.1. Although Jones alleges thirteen separate ADA violations 21 related to the Property’s toilet facilities, (Compl. ¶ 20), his Application focuses on only 22 three: the lack of water closet-adjacent grab bars, the incorrect placement of the toilet 23 paper dispenser, and the incorrect placement of the flush control, (Appl. 15–16). Jones 24 did not, however, allege a flush control violation in the Complaint. (Compl. ¶ 20.) He 25 therefore cannot obtain injunctive relief related to the flush control. Danning, 572 F.2d 26 at 1388. 27 First, grab bars must be provided and must be located on the side wall closest to 28 the water closet and on the rear wall. 2010 ADAAG § 604.5. It is unclear from the 1 Complaint what exactly Jones initially alleged to be the grab bar violations because the 2 grab bar allegations in the Complaint do little more than quote the ADAAG. Jones 3 nevertheless establishes the lack of a grab bar with photographic evidence and an 4 investigator declaration. (Decl. Marc Friedlander (“Friedlander Decl.”) Ex. 1 at 5, ECF 5 Nos. 23-4, 23-6.) This is sufficient to establish a grab bar violation. 6 In contrast to the parking space slope violation, it is evident based on common 7 knowledge that installing grab bars is a reasonable and readily achievable way of 8 removing an architectural access barrier. Grab bars enable those physically disabled 9 people who would not otherwise be able to use the facilities at all to use them, and it 10 enables other disabled people who would not be able to use the facilities independently 11 to do so without help. For still others it lessens the burden and discomfort where using 12 the facilities would otherwise be difficult. By contrast, a contractor can install two grab 13 bars on an indoor wall at a reasonable expense. See Grove v. De La Cruz, 407 F. Supp 14 2d 1126, 1132 (C.D. Cal. 2005); 28 C.F.R. § 36.304(b)(12). 15 Toilet paper dispensers must be seven to nine inches in front of the water closet, 16 when measuring to the centerline of the dispenser. 2010 ADAAG § 604.7. Here, Jones 17 alleges and provides photographic evidence showing that the toilet paper dispenser is 18 located more than nine inches in front of the water closet. (Friedlander Decl. ¶ 6, Ex. 1.) 19 This is sufficient to establish a toilet paper dispenser placement violation. 20 It is likewise evident based on common knowledge that relocating a toilet paper 21 dispenser is a readily achievable way of removing an access barrier. Without a properly 22 placed toilet paper dispenser, a physically disabled person might have no way of 23 reaching the toilet paper without first getting back into their mobility device. This is a 24 substantial concern, especially compared to the cost of relocating a toilet paper 25 dispenser. The ADA expressly includes the repositioning of paper towel dispensers as 26 an example of a step to remove a barrier, 28 C.F.R. § 36.304(b)(17), and nothing in this 27 case suggests that repositioning the toilet paper dispenser would be any less readily 28 achievable. 1 In summary, Jones has sufficiently pleaded or proven the lack of grab bars and 2 an improperly placed toilet paper dispenser, and he is accordingly entitled to an 3 injunction directing Defendants to remedy these two ADA violations. 4 iii. Doors 5 Jones’s Application also includes a showing of ADA violations relating to the 6 Property’s front door, restroom door, and restroom door handle. (Appl. 16–17.) Jones’s 7 Complaint, however, did not include allegations relating to these violations. (See 8 Compl. ¶ 20.) Defendants are not on notice of these violations, and due process 9 requirements accordingly prevent the Court from entering judgment based on these 10 violations. 11 2. Remaining Eitel Factors 12 The remaining Eitel factors support entry of default judgment on the 13 demonstrated ADA violations. Jones will suffer prejudice if a default judgment is not 14 entered because he will have no way to enforce his legal right to compel Defendants to 15 remedy the ADA violations on the Property. Eitel, 782 F.2d at 1471; Landstar Ranger, 16 Inc. v. Parth Enters., Inc., 725 F. Supp. 2d 916, 920 (C.D. Cal. 2010); PepsiCo, 238 F. 17 Supp. 2d at 1177. There is little concern that the amount at stake is disproportionate to 18 the harm alleged, Landstar, 725 F. Supp. 2d at 921, because the ADA’s enforcement 19 provisions provide for only injunctive relief, not money damages, Pickern v. Holiday 20 Quality Foods, 293 F.3d 1133, 1136 (9th Cir. 2002). Moreover, nothing in the record 21 suggests Defendants’ failure to appear is a result of excusable neglect. PepsiCo, 238 F. 22 Supp. 2d at 1177. 23 Although some possibility exists that Defendants have remedied the 24 demonstrated violations, meaning that material facts would be in dispute, id., that 25 possibility is speculative and does not significantly weigh against entry of default 26 judgment. 27 The final consideration is that “default judgments are ordinarily disfavored. 28 Cases should be decided upon their merits whenever reasonably possible.” Eitel, 1 || 782 F.2d at 1472 (citing Pena v. Seguros La Comercial, S.A., 770 F.2d 811, 814 2 || (9th Cir. 1985)). However, when the defendant fails to answer the plaintiff's complaint, 3 || “a decision on the merits [is] impractical, if not impossible.” PepsiCo, 238 F. Supp. 2d 4] at 1177. As Defendants failed to appear or otherwise respond, a determination on the 5 || merits is impossible, and this factor therefore does not prevent the Court from entering 6 || judgment by default. See Duralar Techs. LLC v. Plasma Coating Techs., Inc., 848 F. App’x 252, 255 (9th Cir. 2021) (affirming entry of default judgment where all factors 8 | except this last one weighed in plaintiff's favor). 9 Vv. CONCLUSION 10 For the reasons discussed above, the Court GRANTS IN PART and DENIES 11 || IN PART Plaintiff's Application for Default Judgment. (ECF No. 23.) The Court will 12 || issue Judgment containing an appropriately tailored ADA injunction. 13 14 IT IS SO ORDERED. 15 16 December 16, 2021 ‘ 17 , “ Ledisi 19 OTIS D. WRIGHT, I 50 UNITED STATES DISTRICT JUDGE

21 22 23 24 25 26 27 28