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44 55 66 77 United States District Court 88 Central District of California 99 1100 1111 MISTER BAILEY, Case No. 2:20-cv-01744-ODW (AGRx)_
1122 Plaintiff, ORDER DENYING MOTION FOR DEFAULT JUDGMENT [19] 1133 v.
1144 HVSN ENTERPRISES INC, et al.,
1155 Defendants.
1166 1177 I. INTRODUCTION 1188 Plaintiff Mister Bailey moves for entry of default judgment against Defendant 1199 Richard Song.1 (Mot. for Default J. (“Motion” or “Mot.”), ECF No. 19.) For the 2200 reasons discussed below, the Court DENIES Bailey’s Motion.2 2211 II. BACKGROUND 2222 Bailey is paraplegic and requires a wheelchair for mobility. (Compl. ¶ 4, ECF 2233 No. 1.) He alleges that Song owns, leases, or operates a Circle K (“Business”) located 2244 at 9809 Imperial Highway, Downey, California. (Id. ¶ 5.) Bailey claims that, on 2255
2266 1 On September 16, 2020, the Court dismissed Defendant HVSN Enterprises Inc. pursuant to Plaintiff’s Notice of Voluntary Dismissal. (See Notice of Dismissal, ECF No. 22; Min. Order 2277 Granting Dismissal, ECF No. 24.) 2288 2 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 November 3, 2019, and December 21, 2019, he went to the Business and it did not 2 provide wheelchair accessible parking. (Id. ¶ 10.) Bailey asserts that the lack of 3 accessible parking denied him access to the Business and deters him from returning in 4 the future. (Id. ¶ 11.) 5 Bailey filed this action on February 24, 2020, asserting claims under Title III of 6 the Americans with Disabilities Act (“ADA”) and California state law, relating to his 7 visit to the Business. (Id. ¶¶ 15–47.) The Court declined to exercise supplemental 8 jurisdiction over Bailey’s Unruh Act and other state law claims. (See Min. Order 9 Declining Suppl. Jurisdiction 8, ECF No. 11.) Those claims were dismissed without 10 prejudice. (Id.) 11 On March 12, 2020, Bailey served Song with a Summons and the Complaint. 12 (Proof of Service, ECF No. 13.) On June 19, 2020, Bailey requested entry of default 13 after Song failed to answer or otherwise respond to the Complaint. (Req. for Entry of 14 Default, ECF No. 16.) On June 22, 2020, the Clerk entered default. (Entry of 15 Default, ECF No. 17.) 16 III. LEGAL STANDARD 17 Plaintiffs seeking default judgment must meet certain procedural requirements, 18 as set forth in Federal Rule of Civil Procedure (“Rule”) 55 and Central District of 19 California Local Rule (“Local Rule”) 55-1. See Fed. R. Civ. P. 55; C.D. Cal. 20 L.R. 55-1. Local Rule 55-1 requires that motions for default judgment include: 21 (1) when and against which party default was entered; (2) identification of the 22 pleading to which default was entered; (3) whether the defaulting party is a minor, 23 incompetent person, or active service member; (4) that the Servicemembers Civil 24 Relief Act, 50 U.S.C. § 3931, does not apply; and (5) that the defaulting party was 25 properly served with notice, if required under Rule 55(b)(2). See Vogel v. Rite Aid 26 Corp., 992 F. Supp. 2d 998, 1006 (C.D. Cal. 2014). 27 Once the procedural requirements are satisfied, “[t]he district court’s decision 28 whether to enter a default judgment is a discretionary one.” See Aldabe v. Aldabe, 1 616 F.2d 1089, 1092 (9th Cir. 1980). Generally, a defendant’s liability is conclusively 2 established upon entry of default by the Clerk, and well-pleaded factual allegations in 3 the complaint are accepted as true, except those pertaining to the amount of damages. 4 See TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917–18 (9th Cir. 1987) (per 5 curiam) (citing Geddes v. United Fin. Grp., 559 F.2d 557, 560 (9th Cir. 1977)). Still, 6 “[a] defendant’s default does not automatically entitle the plaintiff to a court-ordered 7 judgment.” PepsiCo, Inc., v. Cal. Sec. Cans, 238 F. Supp. 2d 1172, 1174 (C.D. Cal. 8 2002). Rather, the court considers several factors in exercising its discretion, 9 including: (1) the possibility of prejudice to the plaintiff; (2) the merits of the 10 plaintiff’s substantive claim; (3) the sufficiency of the complaint; (4) the sum of 11 money at stake; (5) the possibility of a dispute concerning material facts; (6) whether 12 the defendant’s default was due to excusable neglect; and (7) the strong policy 13 favoring decision on the merits. Eitel v. McCool, 782 F.2d 1470, 1471–72 (9th. Cir. 14 1986). 15 IV. DISCUSSION 16 The second and third Eitel factors are dispositive here, so the Court begins with 17 them. These two factors, which address the merits of the claims and the sufficiency of 18 the complaint, “require that a plaintiff state a claim on which the [plaintiff] may 19 recover.” Philip Morris USA, Inc. v. Castworld Prods., Inc., 219 F.R.D. 494, 499 20 (C.D. Cal. 2003) (alteration in original) (citing PepsiCo, 238 F. Supp. 2d at 1175); see 21 also Danning v. Lavine, 572 F.2d 1386, 1388 (9th Cir. 1978) (“[F]acts which are not 22 established by the pleadings . . . are not binding and cannot support the judgment.”). 23 Although well-pleaded allegations in the complaint are deemed admitted by a 24 defendant’s failure to respond, “necessary facts not contained in the pleadings, and 25 claims which are legally insufficient, are not established by default.” Cripps v. Life 26 Ins. Co. of N. Am., 980 F.2d 1261, 1267 (9th Cir. 1992) (citing Danning, 572 F.2d 27 at 1388). 28 1 In this case, Bailey seeks relief under the ADA. (See Compl. ¶¶ 15–27.) To 2 prevail on this claim, he must show that: (1) “he is disabled within the meaning of the 3 ADA”; (2) “the defendant is a private entity that owns, leases, or operates a place of 4 public accommodation”; (3) “the plaintiff was denied public accommodations by the 5 defendant because of his disability”; (4) “the existing facility at the defendant’s place 6 of business [or property] presents an architectural barrier prohibited under the ADA”; 7 and (5) removing the barrier is “readily achievable.” Vogel, 992 F. Supp. 2d 8 at 1007–08 (brackets omitted) (first quoting Molski v. M.J. Cable Inc., 481 F.3d 724, 9 730 (9th Cir. 2007); and then quoting Parr v. L&L Drive-Inn Rest., 96 F. Supp. 2d 10 1065, 1085 (D. Haw. 2000)). 11 Bailey asserts that when he visited the Business, it failed to provide wheelchair 12 accessible parking. (Compl. ¶ 10.) “Architectural barriers” are defined by reference 13 to the ADA Accessibility Guidelines (the “ADAAG”). See Chapman v. Pier 1 Imps.
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44 55 66 77 United States District Court 88 Central District of California 99 1100 1111 MISTER BAILEY, Case No. 2:20-cv-01744-ODW (AGRx)_
1122 Plaintiff, ORDER DENYING MOTION FOR DEFAULT JUDGMENT [19] 1133 v.
1144 HVSN ENTERPRISES INC, et al.,
1155 Defendants.
1166 1177 I. INTRODUCTION 1188 Plaintiff Mister Bailey moves for entry of default judgment against Defendant 1199 Richard Song.1 (Mot. for Default J. (“Motion” or “Mot.”), ECF No. 19.) For the 2200 reasons discussed below, the Court DENIES Bailey’s Motion.2 2211 II. BACKGROUND 2222 Bailey is paraplegic and requires a wheelchair for mobility. (Compl. ¶ 4, ECF 2233 No. 1.) He alleges that Song owns, leases, or operates a Circle K (“Business”) located 2244 at 9809 Imperial Highway, Downey, California. (Id. ¶ 5.) Bailey claims that, on 2255
2266 1 On September 16, 2020, the Court dismissed Defendant HVSN Enterprises Inc. pursuant to Plaintiff’s Notice of Voluntary Dismissal. (See Notice of Dismissal, ECF No. 22; Min. Order 2277 Granting Dismissal, ECF No. 24.) 2288 2 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 November 3, 2019, and December 21, 2019, he went to the Business and it did not 2 provide wheelchair accessible parking. (Id. ¶ 10.) Bailey asserts that the lack of 3 accessible parking denied him access to the Business and deters him from returning in 4 the future. (Id. ¶ 11.) 5 Bailey filed this action on February 24, 2020, asserting claims under Title III of 6 the Americans with Disabilities Act (“ADA”) and California state law, relating to his 7 visit to the Business. (Id. ¶¶ 15–47.) The Court declined to exercise supplemental 8 jurisdiction over Bailey’s Unruh Act and other state law claims. (See Min. Order 9 Declining Suppl. Jurisdiction 8, ECF No. 11.) Those claims were dismissed without 10 prejudice. (Id.) 11 On March 12, 2020, Bailey served Song with a Summons and the Complaint. 12 (Proof of Service, ECF No. 13.) On June 19, 2020, Bailey requested entry of default 13 after Song failed to answer or otherwise respond to the Complaint. (Req. for Entry of 14 Default, ECF No. 16.) On June 22, 2020, the Clerk entered default. (Entry of 15 Default, ECF No. 17.) 16 III. LEGAL STANDARD 17 Plaintiffs seeking default judgment must meet certain procedural requirements, 18 as set forth in Federal Rule of Civil Procedure (“Rule”) 55 and Central District of 19 California Local Rule (“Local Rule”) 55-1. See Fed. R. Civ. P. 55; C.D. Cal. 20 L.R. 55-1. Local Rule 55-1 requires that motions for default judgment include: 21 (1) when and against which party default was entered; (2) identification of the 22 pleading to which default was entered; (3) whether the defaulting party is a minor, 23 incompetent person, or active service member; (4) that the Servicemembers Civil 24 Relief Act, 50 U.S.C. § 3931, does not apply; and (5) that the defaulting party was 25 properly served with notice, if required under Rule 55(b)(2). See Vogel v. Rite Aid 26 Corp., 992 F. Supp. 2d 998, 1006 (C.D. Cal. 2014). 27 Once the procedural requirements are satisfied, “[t]he district court’s decision 28 whether to enter a default judgment is a discretionary one.” See Aldabe v. Aldabe, 1 616 F.2d 1089, 1092 (9th Cir. 1980). Generally, a defendant’s liability is conclusively 2 established upon entry of default by the Clerk, and well-pleaded factual allegations in 3 the complaint are accepted as true, except those pertaining to the amount of damages. 4 See TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917–18 (9th Cir. 1987) (per 5 curiam) (citing Geddes v. United Fin. Grp., 559 F.2d 557, 560 (9th Cir. 1977)). Still, 6 “[a] defendant’s default does not automatically entitle the plaintiff to a court-ordered 7 judgment.” PepsiCo, Inc., v. Cal. Sec. Cans, 238 F. Supp. 2d 1172, 1174 (C.D. Cal. 8 2002). Rather, the court considers several factors in exercising its discretion, 9 including: (1) the possibility of prejudice to the plaintiff; (2) the merits of the 10 plaintiff’s substantive claim; (3) the sufficiency of the complaint; (4) the sum of 11 money at stake; (5) the possibility of a dispute concerning material facts; (6) whether 12 the defendant’s default was due to excusable neglect; and (7) the strong policy 13 favoring decision on the merits. Eitel v. McCool, 782 F.2d 1470, 1471–72 (9th. Cir. 14 1986). 15 IV. DISCUSSION 16 The second and third Eitel factors are dispositive here, so the Court begins with 17 them. These two factors, which address the merits of the claims and the sufficiency of 18 the complaint, “require that a plaintiff state a claim on which the [plaintiff] may 19 recover.” Philip Morris USA, Inc. v. Castworld Prods., Inc., 219 F.R.D. 494, 499 20 (C.D. Cal. 2003) (alteration in original) (citing PepsiCo, 238 F. Supp. 2d at 1175); see 21 also Danning v. Lavine, 572 F.2d 1386, 1388 (9th Cir. 1978) (“[F]acts which are not 22 established by the pleadings . . . are not binding and cannot support the judgment.”). 23 Although well-pleaded allegations in the complaint are deemed admitted by a 24 defendant’s failure to respond, “necessary facts not contained in the pleadings, and 25 claims which are legally insufficient, are not established by default.” Cripps v. Life 26 Ins. Co. of N. Am., 980 F.2d 1261, 1267 (9th Cir. 1992) (citing Danning, 572 F.2d 27 at 1388). 28 1 In this case, Bailey seeks relief under the ADA. (See Compl. ¶¶ 15–27.) To 2 prevail on this claim, he must show that: (1) “he is disabled within the meaning of the 3 ADA”; (2) “the defendant is a private entity that owns, leases, or operates a place of 4 public accommodation”; (3) “the plaintiff was denied public accommodations by the 5 defendant because of his disability”; (4) “the existing facility at the defendant’s place 6 of business [or property] presents an architectural barrier prohibited under the ADA”; 7 and (5) removing the barrier is “readily achievable.” Vogel, 992 F. Supp. 2d 8 at 1007–08 (brackets omitted) (first quoting Molski v. M.J. Cable Inc., 481 F.3d 724, 9 730 (9th Cir. 2007); and then quoting Parr v. L&L Drive-Inn Rest., 96 F. Supp. 2d 10 1065, 1085 (D. Haw. 2000)). 11 Bailey asserts that when he visited the Business, it failed to provide wheelchair 12 accessible parking. (Compl. ¶ 10.) “Architectural barriers” are defined by reference 13 to the ADA Accessibility Guidelines (the “ADAAG”). See Chapman v. Pier 1 Imps. 14 (U.S.), Inc., 631 F.3d 939, 945 (9th Cir. 2011). Relevantly, the public accommodation 15 at issue must provide public parking for a plaintiff to establish that the lack of 16 accessible parking creates an architectural barrier under the ADA. See 2010 ADAAG 17 § 208.1 (“Where parking spaces are provided, parking spaces shall be provided in 18 accordance with [section] 208.” (emphasis added)); see also id. § 208 (setting forth 19 accessibility requirements for parking spaces). Here, Bailey states in conclusory 20 fashion that the Business failed to comply with the ADA without first establishing that 21 the Business actually provides public parking. (See, e.g., Compl. ¶¶ 10–14.) Thus, 22 Bailey’s factual allegations do not establish the fourth element of his ADA claim (i.e., 23 the existence of architectural barriers at the defendant’s property), and the Court need 24 go no further. 25 In sum, even accepting the well-pleaded factual allegations in the Complaint as 26 true, Bailey fails to state a claim under the ADA. See Cripps, 980 F.2d at 1267 27 (“[N]ecessary facts not contained in the pleadings, and claims which are legally 28 insufficient, are not established by default.” (citing Danning, 572 F.2d at 1388)). The 1 || second and third Ejitel factors alone demonstrate that default judgment is improper, and the Court need not assess the remaining factors. See Brooke v. Sunstone Von 3 | Karman, LLC, No. 8:19-cv-00635-JLS (ADSx), 2020 WL 6153107, at *3 (C.D. Cal. 4|| Aug. 25, 2020). However, leave to amend is appropriate because Bailey’s failure to 5 || state a claim is based on insufficient allegations which could theoretically be cured. 6 Vv. CONCLUSION 7 For the foregoing reasons, the Court DENIES Bailey’s Motion for Default 8 | Judgment. (ECF No. 19.) The Court accordingly DENIES Bailey’s request for 9 || attorneys’ fees. The default previously entered against Song is hereby SET ASIDE. 10 | (ECF No. 17.) If Bailey chooses to amend his Complaint to address the deficiencies 11 || identified herein, any amended complaint must be filed and served within twenty-one 12 || (21) days of this Order. If Bailey timely files an amended complaint, Song’s response 13 || is due according to Rule 15(a)(3). Failure to timely amend will result in dismissal of 14 || this action. 15 16 IT IS SO ORDERED. 17 18 March 2, 2021 . 19 SB Yi, Tite 1 OTIS D. GHT, II UNITED STATES,DISTRICT JUDGE
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