Macias v. Fasail

CourtDistrict Court, N.D. California
DecidedJuly 1, 2021
Docket5:19-cv-00728
StatusUnknown

This text of Macias v. Fasail (Macias v. Fasail) is published on Counsel Stack Legal Research, covering District Court, N.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Macias v. Fasail, (N.D. Cal. 2021).

Opinion

7 UNITED STATES DISTRICT COURT

8 NORTHERN DISTRICT OF CALIFORNIA 9 SAN JOSE DIVISION 10

11 LENA MACIAS, Case No. 19-CV-00728-LHK

12 Plaintiff, ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR 13 v. DEFAULT JUDGMENT

14 GAPIR FASAIL, et al., Re: Dkt. No. 56 15 Defendants. 16 Plaintiff Lena Macias filed this action for violations of the Americans with Disabilities Act 17 (“ADA”) and several California statutes. ECF No. 1 (“Compl.”). Before the Court is Plaintiff Lena 18 Macias’s (“Plaintiff”) renewed motion for default judgment against Defendants Gapir Fasail 19 (“Fasail”) and Pamela Chau (“Chau”). ECF No. 56. Having considered Plaintiff’s submissions, the 20 relevant law, and the record in this case, the Court GRANTS IN PART AND DENIES IN PART 21 Plaintiff’s motion for default judgment. 22 I. BACKGROUND 23 A. Factual Background 24 Plaintiff, a resident of San Jose, California, suffers from lupus, severe arthritis, spinal 25 stenosis, and diabetes. ECF No. 1 (“Compl.”) ¶ 6. Plaintiff uses a walker and a wheelchair for 26 mobility. Id. In this case, Plaintiff alleges that architectural barriers exist at A Bite of Wyoming 27 1 restaurant in San Jose, California (“the Restaurant”) that violate Plaintiff’s rights under the ADA 2 and several California statutes. Id. ¶¶ 9–13. Plaintiff alleges that “[t]he Restaurant and its facilities 3 are ‘places of public accommodation’ as defined under Title III of the ADA . . . and California 4 civil rights laws.” Id. ¶ 9. Plaintiff alleges that Defendants Fasail, Chau, and Somora, Inc. 5 (“Somora”) are liable as “the owners, operators, lessors, and/or lessees” of the Restaurant. Id. ¶ 7. 6 Plaintiff alleges that she “has been a frequent patron to the Restaurant and has been there 7 around at least 10 times” between February 2018 and February 2019. Id. ¶ 11. Plaintiff alleges 8 that, during her visits, “Plaintiff persistently encountered barriers, structural in nature, to her full 9 and equal access to the Restaurant’s goods and service.” Id. Specifically, “Plaintiff was unable to 10 navigate in her wheelchair inside of the Restaurant because the interior pathway is crowded with 11 tables and chairs.” Id. “Consequently, Plaintiff was never able to use the customer restroom 12 despite needing to on multiple occasions.” Id. “Defendants also fail to provide any accessible 13 seating at the counter or a signature surface at the cashier counter.” Id. Plaintiff alleges that she 14 “suffered difficulties, discomfort, and embarrassment during her visits because of the architectural 15 barriers and has been deterred on a number of occasions from dining at the Restaurant.” Id. 16 Plaintiff further alleges that Plaintiff’s counsel “had a CASp-certified access consultant do 17 an informal investigation of the Restaurant’s premises.” Id. ¶ 12. Plaintiff’s expert determined that 18 the Restaurant “was also inaccessible in multiple other ways,” including the following: (1) the tow 19 away sign has no information; (2) there is no path of travel from the sidewalk due to parking; (3) 20 the ADA parking lines, access lines, “no parking,” and ISA are faded; (4) the front door is heavy 21 to operate and closes fast; (5) the ADA table has no marking and does not provide a 30 inch wide 22 clear space; (6) the interior path of travel is tight; and (7) the bathroom provides multiple barriers 23 and is not considered accessible. Id. 24 B. Procedural History 25 On February 8, 2019, Plaintiff filed the instant case against Defendants Fasail, Chau, and 26 Somora. Compl. Plaintiff brings four claims: (1) violation of the ADA, 42 U.S.C. § 12101, et seq.; 27 (2) violation of Health & Safety Code § 19955 et seq.; (3) violation of the Unruh Civil Rights Act 1 (“UCRA”), Cal. Civ. Code § 51 et seq.; and (4) violation of the Disabled Persons Act, Cal. Civ. 2 Code § 54 et seq. Id. ¶¶ 14–35. 3 According to Plaintiff, Fasail and Chau were served with the summons and complaint at 4 3:26 p.m. on February 13, 2019 by leaving the summons, complaint, and associated paperwork 5 with Gloria Reyes, the “Person in Charge Of Office,” at Burrito Express, located at 2435 6 Telegraph Avenue in Oakland, California, and by subsequently mailing the documents to Fasail 7 and Chau at that address. ECF No. 13-1 at 2-3; ECF No. 13-3. The process server’s “Declaration 8 of Diligence” indicated that the process server tried only once to serve Fasail and Chau personally 9 before effecting substitute service. Id. 10 Plaintiff attempted to serve Somora by serving Ignascio Camarena, a “Person Authorized 11 to Accept Service of Process,” by leaving the summons, complaint, and associated documents 12 with Kathy Nguyen, the “Person in Charge of Office,” at 111 N. Market Street, Suite 300, San 13 Jose, California 95113, and by subsequently mailing copies to Mr. Camarena at the same address. 14 ECF No. 13-4. The process server’s “Declaration of Diligence” indicates that he effected 15 substitute service on Mr. Camarena/Ms. Nguyen on February 12, 2019, after learning that the 16 “Subject [was] not in” at the business named “Patane Gumberg Avila, LLP” at the same location, 17 date, and time. Id. A Statement of Information filed with the California Secretary of State on 18 March 28, 2016, identified Mr. Camarena as agent for service of process for Somora, but the 19 address listed was Camarena Law Office, 95 S. Market Street, Suite 300, San Jose, California 20 95113, a different address than the one at which Plaintiff purported to serve Mr. Camarena/Ms. 21 Nguyen. ECF No. 13-6. Mr. Camarena, who identified himself as an attorney representing 22 Somora, communicated with Plaintiff’s counsel by email on March 21, 2019. ECF No. 13-5. 23 None of the Defendants initially filed an answer or response to the Complaint. On July 9, 24 2019, the Clerk of Court entered defaults against all three Defendants. ECF No. 10. On October 25 23, 2019, Plaintiff filed a motion for default judgment. ECF No. 13. On November 20, 2019, 26 Somora filed an opposition to the motion that challenged whether service was valid. ECF No. 16. 27 Plaintiff filed a reply on November 21, 2019. ECF No. 17. 1 On January 31, 2020, United States Magistrate Judge Susan van Keulen filed an order for 2 reassignment to a district court judge and a report and recommendation that recommended 3 denying Plaintiff’s motion for default judgment based on service deficiencies. ECF No. 18. Judge 4 van Keulen determined that Plaintiff failed to properly serve Fasail, Chau, and Somora. Id. at 5-7. 5 On February 19, 2020, this Court adopted Magistrate Judge van Keulen’s report and 6 recommendation and denied Plaintiff’s motion for default judgment. ECF No. 20. The Court also 7 noted that under Federal Rule of Civil Procedure 4(m), Plaintiff was required to serve a summons 8 and complaint on all Defendants within 90 days of filing the complaint. Id. at 2. That deadline had 9 expired on May 9, 2019, more than nine months before the Court’s February 19, 2020 order. 10 Accordingly, the Court also issued an order to show cause as to why the case should not be 11 dismissed for failure to prosecute. Id. 12 On February 19, 2020, Plaintiff filed a response to the Court’s order to show cause and 13 acknowledged that Plaintiff failed to properly serve Defendants but requested, “[i]n light of 14 Plaintiff’s good faith attempt to properly serve defendants within the deadline under [Rule] 4(m),” 15 to continue the service deadline. ECF No. 21 at 2-3. The Court vacated the entry of default as to 16 all Defendants and gave Plaintiff until March 25, 2020 to properly serve Defendants and to file 17 proofs of service by that date.

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Macias v. Fasail, Counsel Stack Legal Research, https://law.counselstack.com/opinion/macias-v-fasail-cand-2021.