1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 SCOTT JOHNSON, Case No. 21-cv-01821-WHO

8 Plaintiff,

ORDER DENYING APPLICATION

9 v. FOR ENTRY OF DEFAULT

JUDGMENT WITHOUT PREJUDICE

10 TRAM CHIM'S CORP, Re: Dkt. No. 18 Defendant. 11

12 Plaintiff has filed a motion for entry of default judgment. Dkt. No. 18. The opposition to 13 that motion was due by October 14, 2021. No opposition or appearance by defendant or defense 14 counsel has been made. I find this matter suitable for resolution without oral argument, and 15 VACATE the November 10, 2021 hearing. Civ. L.R. 7-6. But having reviewed the motion for 16 entry of default judgment and its exhibits, the application is DENIED WITHOUT PREJUDICE 17 due to the following issues that need to be addressed or resolved. 18 First, and most troubling, plaintiff states in his motion, with respect to the element of the 19 Americans with Disabilities Act that public accommodations are required to remove architectural 20 barriers, where such removal is readily achievable” (42 U.S.C. § 12182(b)(2)(A)(iv)), that:

21 Whether or not the removal of these barriers is “readily achievable” is an affirmative defense that is waived unless raised. Wilson v. Haria 22 and Gogri Corp., 479 F.Supp.2d 1127, 1133 and fn. 7 (E.D. Cal. 2007) (if a defendant “has failed to plead that barrier removal is not 23 readily achievable in its answer . . . the defense is waived” and, in such circumstances, the plaintiff need “not come forward with any 24 evidence regarding barrier removal….”) Here this is not an issue raised in contention. Moreover, the complaint allegation that a 25 defendant failed to meet their barrier removal allegation is sufficient in a default judgment setting. Vogel v. Rite Aid Corp., 992 F.Supp.2d 26 998 (C.D. Cal. 2014) (compiling cases and holding that a defendant cannot meet their burden on the issue where they fail to appear and 27 defend). 1 Motion at 11. 2 However, as plaintiff’s counsel know full well given rulings in cases brought by Johnson, 3 both of those statements are no longer good law. Courts in this district and throughout the Ninth 4 Circuit recognize that the waiver argument is foreclosed by the burden-shifting standard adopted 5 by the Ninth Circuit in Lopez v. Catalina Channel Express, Inc., 974 F.3d 1030, 1034 (9th Cir. 6 2020) and that even in a default context, a plaintiff still needs to meet his “initial burden of 7 plausibly showing that a proposal for removing a barrier is readily achievable.” See e.g., Johnson 8 v. Garlic Farm Truck Ctr. LLC, 20-CV-03871-BLF, 2021 WL 2457154, at *6 (N.D. Cal. June 16, 9 2021) (“Mr. Johnson’s assertion, which is based on outdated authority, is incorrect.”); see also 10 Dunn v. Abrahamian, CV209713FMOAGRX, 2021 WL 1570831, at *2 (C.D. Cal. Mar. 9, 2021) 11 (rejecting Vogel’s statement that a mere allegation in a complaint is sufficient in a default setting 12 as Vogel predated Lopez). Given that plaintiff’s counsel and plaintiff himself have hundreds of 13 cases pending in the Northern District alone, counsel should be concerned about misrepresenting 14 the state of the law and should update their form pleadings accordingly. 15 Directly relevant to the denial, without prejudice, of the current motion, plaintiff’s 16 complaint asserts that no wheelchair accessible “dining surfaces” were available. Complaint ¶ 10. 17 The Complaint does not identify whether he sought inside or outside dining. In the motion for 18 entry of default judgment, the motion asserts that there were no ADA-compliant “outside” dining 19 surfaces for wheelchair users (Mot. at 1) and Johnson states that there was “no sufficient knee or 20 toe clearance under the outdoor dining surfaces for wheelchair users.” Johnson Declaration [Dkt. 21 No. 18-4] ¶ 3. Plaintiffs do not address the presence or absence of indoor ADA-compliant dining 22 surfaces; whether indoor dining was offered at that time, whether there were indoor ADA- 23 complaint surfaces, whether the ADA requires full access to outdoor dining when indoor dining is 24 otherwise available. This creates both evidentiary and legal gaps that preclude my granting the 25 motion for entry of default judgment. 26 A supplemental declaration from Johnson must be provided stating whether indoor dining 27 was available at the time of his November 2020 visit, and if it was, whether ADA-compliant 1 compliant surfaces were available for indoor dining or if Johnson does not know whether 2 || compliant indoor surfaces were available, a supplemental memorandum in support of default 3 || judgment shall be submitted addressing whether the ADA requires accessible dining surfaces 4 || outdoors if they are otherwise offered indoors. If Johnson declares under penalty of perjury that 5 || indoor dining was not offered at the time of his visit, no further briefing is required. 6 Plaintiff also seeks $400 in costs for “investigation,” but does not substantiate or explain 7 || through a declaration what investigation was done and how much it cost. The motion cites to a 8 || “Dec of Investigator.” (Motion at 1). However, there is no declaration from an investigator 9 || provided. There is an unsigned report (Exhibit 3) and photographs (Exhibit 4), but no declaration 10 || from an investigator or an attorney of record identifying, authenticating, or explaining either of 11 those sets of documents. A declaration from the investigator, substantiating the investigation and 12 || the cost of that investigation, shall be provided for my review. 5 13 Finally, I note that the Complaint in this case was signed by Amanda Seabock. Dkt. No. 1. 14 || Yet no time for Ms. Seabock’s review of the Complaint, which she presumably reviewed prior to 3 15 signing, or for any work on this case is sought. Dkt. No. 18-3; Cal. Civ. Proc. Code Ann. § a 16 1250.330 (“The signature of the attorney constitutes a certificate by him that he has read the 3 17 || pleading and that to the best of his knowledge, information, and belief there is ground to support 18 it.”); see also Fed. Rule of Civ. Proc. 11. The billing records submitted in support of the request 19 for an award of attorney fees do not indicate that any attorney reviewed the Complaint that was 20 || drafted by a legal assistant before it was filed. Ms. Seabock must submit a declaration attesting 21 that she reviewed the Complaint in its filed-form prior to its filing before any fees are awarded. 22 The declarations (and if necessary, briefing) required by this Order shall be provided 23 within ten (10) days of the date of this Order. 24 IT IS SO ORDERED. 25 Dated: November 8, 2021 26 . 27 28 fliam H. Orrick □ United States District Judge