1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10
11 PETER STROJNIK, SR., ) Case No.: 1:19-cv-01096-DAD-JLT ) 12 Plaintiff, ) FINDINGS AND RECOMMENDATIONS ) GRANTING MOTION FOR DEFAULT 13 v. ) JUDGMENT ) 14 JW WORLD ENTERPRISES, INC. BEST ) (Doc. 20) WESTERN BAKERSFIELD NORTH, 15 ) ) 16 Defendant. )
17 Plaintiff seeks default judgment against JW World Enterprises, Inc. Best Western Bakersfield 18 North (Doc. 20), and the defendant has not opposed this motion. For the following reasons, the Court 19 recommends the motion for default judgment against defendant be GRANTED. 20 I. Relevant Procedural History 21 On August 12, 2019, the plaintiff initiated this action related to alleged violations of the 22 Americans with Disabilities Act. (Doc. 1) The plaintiff served the summons on September 6, 2019, but 23 the defendant failed to file a responsive pleading as required by Federal Rule of Civil Procedure 24 12(a)(1)(A)(i). 25 Upon motion by the plaintiff, the Court entered the Clerk’s Certificate of Entry of Default 26 against defendant on March 12, 2020. (Docs. 17, 18.) On November 16, 2020, plaintiff filed the 27 motion now pending before the Court seeking default judgment against defendant JW World 28 Enterprises, Inc. Best Western Bakersfield North. (Doc. 20.) 1 II. Legal Standards Governing Entry of Default Judgment 2 The Federal Rules of Civil Procedure govern the entry of default judgment. After default is 3 entered because "a party against whom a judgment for relief is sought has failed to plead or otherwise 4 defend," the party seeking relief may apply to the court for a default judgment. Fed. R. Civ. P. 55(a)- 5 (b). Upon the entry of default, well-pleaded factual allegations regarding liability are taken as true, but 6 allegations regarding the amount of damages must be proven. Pope v. United States, 323 U.S. 1, 11 7 (1944); see also Geddes v. United Financial Group, 559 F.2d 557, 560 (9th Cir. 1977). In addition, 8 "necessary facts not contained in the pleadings, and claims which are legally insufficient, are not 9 established by default." Cripps v. Life Ins. Co. of North Am., 980 F.2d 1261, 1267 (9th Cir. 10 1992) (citing Danning v. Lavine, 572 F.2d 1386, 1388 (9th Cir. 1978)). 11 Entry of default judgment is within the discretion of the Court. Aldabe v. Aldabe, 616 F.2d 12 1089, 1092 (9th Cir. 1980). The entry of default “does not automatically entitle the plaintiff to a court- 13 ordered judgment.” Pepsico, Inc. v. Cal. Sec. Cans, 238 F.Supp.2d 1172, 1174 (C.D. Cal 14 2002), accord Draper v. Coombs, 792 F.2d 915, 924-25 (9th Cir. 1986). The Ninth Circuit determined: 15 Factors which may be considered by courts in exercising discretion as to the entry of a default judgment include: (1) the possibility of prejudice to the plaintiff, (2) the merits 16 of plaintiff's 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 material facts, 17 (6) whether the default was due to excusable neglect, and (7) the strong policy 18 underlying the Federal Rules of Civil Procedure favoring decisions on the merits.
19 Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). As a general rule, the issuance of default 20 judgment is disfavored. Id. at 1472. 21 III. Plaintiff’s Allegations 22 Plaintiff asserts he is a retired veteran and disabled individual who brought this action pursuant 23 to the Americans with Disabilities Act 42 U.S.C. § 12101 et seq., the California Unruh Civil Rights 24 Act, Cal. Civ. Code §§ 51, 52, California Disabled Persons Act, Cal. Civ. Code §§ 54-54.3 and 25 negligence. (Doc. 20 at 1.) Plaintiff alleges that he is a veteran and a legally disabled person by virtue 26 of a severe right-sided neural foraminal stenosis with symptoms of femoral neuropathy, prostate 27 cancer and renal cancer, and a degenerative right knee. (Doc. 1 at 1.) Plaintiff alleges that he suffers 28 from these physical impairments, which substantially limit his major life activities. (Id. at 2.) Plaintiff 1 alleges that he walks with difficulty and pain and requires compliant mobility accessible features at 2 places of public accommodation. (Id.) Plaintiff further alleges that his impairment is constant, but the 3 degree of pain is episodic ranging from dull and numbing pain to extreme and excruciating agony. 4 (Id.) 5 According to plaintiff, defendant owns and/or operated a hotel at 2620 Buck Own Blvd., 6 Bakersfield, CA, 93308 which is a public accommodation pursuant to 42 U.S.C. § 12181(7)(A) and 7 Unruh. (Doc. 20 at 2-3.) In advance of his travel, Plaintiff alleges that he visited “first and third party 8 websites” and determined the websites were not accessible according to 36 CFR 36.302(e).1 (Id. at 2- 9 3.) He asserts that the websites did not provide enough detail to let him determine whether the hotel 10 was accessible. (Id. at 3.) 11 Plaintiff alleges that he traveled to Bakersfield on June 5, 20202. (Id. at 1.) He alleges that the 12 hotel was not suitable to accommodate his disability and was “replete with numerous accessibility 13 barriers.” (Id. at 3.) Plaintiff asserts that he encountered an unmarked passenger drop off zone, no 14 disability parking closest to the entrance, unsecured carpets, inaccessible check in counter, 15 inaccessible vending, improperly configured handlebars, inadequate dispersion of accessible parking, 16 and an inaccessible breakfast bar. (Doc. 1 at 3, 8-10.) Plaintiff asserts that as a result of these 17 deficiencies, he declined to book a room at defendant’s hotel and booked a room elsewhere. (Id. at 3.) 18 IV. Discussion and Analysis 19 Applying the factors articulated by the Ninth Circuit in Eitel, the Court finds the factors weigh 20 in favor of granting plaintiff’s motion for default judgment. 21 A. Prejudice to plaintiff 22 The first factor considers whether the plaintiff would suffer prejudice if default judgment is not 23 entered. See Pepsico, Inc., 238 F.Supp.2d at 1177. Generally, where default has been entered against a 24 defendant, a plaintiff has no other means by which to recover damages. Id.; Moroccanoil, Inc. v. 25 Allstate Beauty Prods., 847 F.Supp.2d 1197, 1200-01 (C.D. Cal. 2012). Therefore, the Court finds 26
27 1 The plaintiff’s motion does not provide evidence as to the manner in which the websites were insufficient. The complaint concludes only that the “websites fail to provide information required by 28 CFR § 36.302(e).” (Doc. 1 at 9) The Court 28 declines to guess at the websites’ failures. 2 1 plaintiff would be prejudiced if default judgment is not granted. 2 B. Merits of plaintiff’s claims and the sufficiency of the complaint 3 Given the kinship of these factors, the Court considers the merits of plaintiff’s substantive 4 claims and the sufficiency of the complaint together. See J & J Sports Productions v. Hernandez, 2010 5 U.S. Dist. LEXIS 48191, at *3, n. 4 (E.D. Cal. May 17, 2010). The Ninth Circuit has suggested that, 6 when combined, these factors require a plaintiff to "state a claim on which the plaintiff may 7 recover." Pepsico, Inc., 238 F.Supp.2d at 1175 (citing Kloepping v. Fireman's Fund, 1996 U.S. Dist. 8 LEXIS 1786, at *6 (N.D. Cal. Feb. 14, 1996)). 9 1. Americans with Disabilities Act 10 Title III of the ADA prohibits discrimination by public accommodations, and provides in 11 relevant part: "No individual shall be discriminated against on the basis of disability in the full and 12 equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any 13 place of public accommodation by any person who owns, leases (or leases to), or operates a place of 14 public accommodation." 42 U.S.C. § 12182(a). 15 "To prevail on a Title III discrimination claim, the plaintiff must show that (1) she is disabled 16 within the meaning of the ADA; (2) the defendant is a private entity that owns, leases, or operates a 17 place of public accommodation; and (3) the plaintiff was denied public accommodations by the 18 defendant because of her disability." Molski v. M.J. Cable, Inc., 481 F.3d 724, 730 (9th Cir. 2007). 19 Discrimination under Title III includes "a failure to remove architectural barriers . . . in existing 20 facilities . . . where such removal is readily achievable." 42 U.S.C., § 12182(b)(2)(A)(iv). To state a 21 claim for discrimination due to an architectural barrier, a plaintiff must also establish "(1) the existing 22 facility at the defendant's place of business [or property] presents an architectural barrier prohibited 23 under the ADA and (2) the removal of the barrier is readily achievable." Johnson v. Beahm, 2011 WL 24 5508893 *2 (E.D. Cal. Nov. 8, 2011) (quoting Parr v. L&L Drive-Inn Restaurant, 96 F.Supp.2d 1065, 25 1085 (D. Haw. 2000)). 26 a. Plaintiff’s disability 27 The ADA defines disability as "a physical or mental impairment that substantially limits one or 28 more major life activities." 42 U.S.C. § 12102(1)(A). Major life activities as defined by the ADA 1 include walking and standing. Id., § 12102(2)(A). Plaintiff alleges that he is a legally disabled person 2 by virtue of a severe right-sided neural foraminal stenosis with symptoms of femoral neuropathy, 3 prostate cancer and renal cancer, and a degenerative right knee. (Doc. 1 at 1.) Plaintiff alleges that he 4 suffers from these physical impairments, which substantially limit his major life activities. (Id. at 2.) 5 Plaintiff alleges that he walks with difficulty and pain and requires compliant mobility accessible 6 features at places of public accommodation. (Id.) Plaintiff further alleges that his impairment is 7 constant, but the degree of pain is episodic ranging from dull and numbing pain to extreme and 8 excruciating agony. (Id.) Given that plaintiff's physical impairment limits his ability to stand and walk, 9 the Court finds he is disabled within the meaning of the ADA. 10 b. Defendant’s ownership of a place of public accommodation 11 Plaintiff alleges that defendant owns, operates or leases a lodging business located at 2620 12 Buck Owens, Blvd., Bakersfield, CA 93308, which is a public accommodation. (Doc. 1 at 2.) Because 13 JW World Enterprises, Inc. Best Western Bakersfield North are owners of the lodging business at 14 issue, plaintiff has established the defendant is the owner of a place of public accommodation. 15 c. Denial of access and presence of architectural barriers 16 The next two elements of an ADA architectural barriers claim require the Court to evaluate 17 whether architectural barriers worked to discriminate against the plaintiff on account of physical 18 disability. See Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 946 (9th Cir. 2011) ("an ADA 19 plaintiff suffers an injury-in-fact either because discriminatory architectural barriers deter him from 20 returning to a facility or because they otherwise interfere with his access to the facility"). 21 Plaintiff asserts that he encountered an unmarked passenger drop off zone, no disability 22 parking closest to the entrance, unsecured carpets, inaccessible check in counter, inaccessible vending, 23 improperly configured handlebars, inadequate dispersion of accessible parking, and an inaccessible 24 breakfast bar. (Doc. 1 at 3, 8-10.) Accessible parking spaces serving a particular building shall be 25 located on the shortest accessible route of travel from adjacent parking to an accessible entrance. 26 See 28 C.F.R., Part 36, Appendix D, ADAAG, § 4.6.2. In addition, paths of travel require “accessible 27 routes” without “stairs, steps, or escalators;” at least one accessible route within the boundary of the 28 site shall be provided from public transportation stops, accessible parking, and accessible passenger 1 loading zones, and public streets or sidewalks to the accessible building entrance they serve. ADAAG 2 §§ 4.3.2(1), 4.3.8. Further, if a ramp run has a rise greater than 6 in (150 mm) or a horizontal 3 projection greater than 72 in (1830 mm), then it shall have handrails on both sides, with continuous 4 gripping surfaces and the handrail should not rotate within their fittings. ADAAG § 4.8.5. Thus, 5 plaintiff has carried his burden to identify architectural barriers in violation of the ADA standards at 6 JW World Enterprises, Inc. Best Western Bakersfield North. 7 d. Removal of the barriers 8 A plaintiff must establish that removal of an architectural barrier "is readily achievable" to 9 state a cognizable claim for a violation of the ADA. See 42 U.S.C. § 12182(b)(2)(A)(iv); Johnson, 10 2011 WL 5508893 at *2. The term "readily achievable" means it is "easily accomplishable and able to 11 be carried out without much difficulty or expense." Id., § 12181(9). In general, whether removal "is 12 readily achievable" requires the Court to consider: 13 (A) the nature and cost of the action needed under this Act;
14 (B) the overall financial resources of the facility or facilities involved in the action; the number of persons employed at such facility; the effect on expenses and resources, or the 15 impact otherwise of such action upon the operation of the facility;
16 (C) the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and 17 location of its facilities; and
18 (D) the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, 19 administrative or fiscal relationship of the facility or facilities in question to the covered entity. 20 21 42 USCS § 12181(9). 22 Although plaintiff does not offer any information regarding these factors, the federal 23 regulations make it clear that the barriers identified by plaintiff are of the type presumed to be readily 24 removable. Under 28 C.F.R. § 36.304(c), examples of "measures to provide access to a place of public 25 accommodation from public sidewalks, parking, or public transportation" include "installing an 26 entrance ramp, widening entrances, and providing accessible parking." Moreover, plaintiff's allegation 27 that the removal of barriers is readily achievable is sufficient at this juncture. See Johnson v. Hall, 28 2012 WL 1604715 *3 (E.D. Cal. May 7, 2012) (finding the plaintiff's allegation that the barriers were 1 "readily removable" and that he sought "injunctive relief to remove all readily achievable barriers" 2 satisfied his burden); Johnson v. Beahm, 2011 WL 5508893, *3 (E.D. Cal. Nov. 8, 2011) (holding the 3 plaintiff's allegation that architectural barriers were readily removable was sufficient because it was 4 accepted as true on default); see also Sceper v. Trucks Plus, 2009 WL 3763823 *4 (E.D. Cal. Nov. 3, 5 2009) (granting default judgment on an ADA claim although the plaintiff did "not specifically allege 6 that removal of barriers was readily achievable," and pled instead that the defendants "were required to 7 remove architectural barriers"). Accordingly, the Court finds removal of the barriers identified by 8 plaintiff is "readily achievable" within the meaning of the ADA. 9 e. Conclusion 10 Based upon the foregoing, the Court finds that plaintiff has carried the burden to state a prima 11 facie discrimination claim in violation of Title III of the ADA. 12 2. California’s Unruh Civil Rights Act 13 The Unruh Civil Rights Act provides: “All persons within the jurisdiction of this state are free 14 and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, 15 medical condition, genetic information, marital status, sexual orientation, citizenship, primary 16 language, or immigration status are entitled to the full and equal accommodations, advantages, 17 facilities, privileges, or services in all business establishments of every kind whatsoever.” Cal. Civ. 18 Code § 51(b). 19 Significantly, any violation of the ADA also is a violation of California's Unruh Civil Rights 20 Act. Cal. Civ. Code § 51(f); see also Molski, 481 F.3d at 731 ("Any violation of the ADA necessarily 21 constitutes a violation of the Unruh Act"). However, to be entitled to statutory damages under the 22 Unruh Act, the plaintiff must demonstrate the barriers resulted in “difficulty, discomfort or 23 embarrassment” Cal.Civ. Code § 55.56(b). 24 C. Sum of money at stake 25 In considering this factor, the Court "must consider the amount of money at stake in relation to 26 the seriousness of Defendant's conduct." Pepsico, Inc., 238 F.Supp.2d at 1176. When the amount at 27 stake is substantial or unreasonable in light of the allegations in the complaint, default judgment is 28 1 disfavored. See Eitel, 782 F.2d at 1472 (affirming the denial of default judgment where the plaintiff 2 sought $3 million in damages and the parties disputed material facts in the pleadings). 3 Plaintiff is seeking an award of monetary damages in this case in the amount of $44,000 and 4 costs and expenses totaling $469. (Doc. 20 at 10, 12.) This amount is well beyond the statutory 5 minimum under Cal. Civ. Code §§ 52 and 54.3 for violations of the Unruh Act and the California 6 Disabled Persons Act. Because the statutes do not contemplate such an award, the amount sought is 7 not proportional to the harm caused by the defendant’s alleged violations. Therefore, this factor 8 weighs against entry of default judgment. 9 D. Possibility of dispute concerning material facts 10 There is no evidence of a genuine issue of material fact because the Court accepts the factual 11 allegations in the complaint as true. TeleVideo Systems, Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th 12 Cir. 1987). Notably, the defendant has submitted nothing to contradict them. 13 The plaintiff served defendant JW World Enterprises, Inc. Best Western Bakersfield North on 14 September 6, 2019, and the defendant was given ample opportunity to respond to the complaint and to 15 participate in the proceedings. After plaintiff moved for default judgment, defendant still failed to 16 respond. Accordingly, this factor weighs in favor of granting default judgment. 17 E. Whether default was due to excusable neglect 18 The sixth Eitel factor examines whether the defendant's failure to respond to the complaint was 19 the result of excusable neglect. Eitel, 782 F.2d at 1471-72. Plaintiff properly served defendant JW 20 World Enterprises, Inc. Best Western Bakersfield North with the summons and complaint, yet 21 defendant made no appearance in this matter and failed to respond to the present motion. There is no 22 suggestion that this failure is due to excusable neglect. See Shanghai Automation Instr. Co. v. Kuei, 23 194 F.Supp.2d 995, 1005 (N.D. Cal. 2001) (default after proper service was not excusable 24 neglect). Thus, this factor also weighs in favor of entry of default judgment because defendant has 25 failed to make any appearance in this case. 26 F. Policy favoring decisions on the merits 27 The strong policy underlying the Federal Rules of Civil Procedure favors decisions on the 28 merits. Eitel, 782 F.2d at 1472. Nonetheless, where a defendant fails to answer the complaint, a 1 decision on the merits is "impractical, if not impossible." Elektra Ent. Group, Inc. v. Crawford, 226 2 F.R.D. 388, 393 (C.D. Cal. 2005) (citations omitted). Thus, given defendant’s failure to appear or 3 respond in any way, this factor does not preclude entry of default judgment. Id. at 393. 4 G. Conclusion 5 Based upon the foregoing, the Court finds the Eitel factors weigh in favor of granting default 6 judgment and, therefore, recommends the motion for default judgment be GRANTED. 7 V. Relief Requested 8 Plaintiff seeks injunctive relief, statutory damages, and costs and expenses for the violations 9 under the ADA, Unruh Act, and California Disabled Persons Act. (See Doc. 1; Doc. 20.) Unlike the 10 ADA, the Unruh Act and California Disabled Persons Act permit the recovery of monetary 11 damages. See Molski, 481 F.3d at 731; Cal. Civ. Code §§ 52, 54.3. 12 A. Statutory Damages 13 Plaintiff seeks statutory damages for the defendant’s violations of the Unruh Act and 14 California Disabled Persons Act. (Doc. 1 at 3-6.) The Unruh Act provides that a plaintiff subjected to 15 discrimination is entitled to recover $4,000.00 for each occasion on which he was denied equal access. 16 Cal. Civ. Code § 52(a). Similarly, the California Disabled Persons Act provides for statutory damages 17 in the amount of $1,000.00. Cal. Civ. Code § 54.3. "Proof of actual damages is not a prerequisite to 18 recovery of statutory minimum damages." Hubbard v. Rite Aid Corp., 433 F.Supp.2d 1150, 1170 19 (S.D. Cal. 2006) (citing Botosan v. Paul McNally Realty, 216 F.3d 827, 835 (9th Cir. 2000)). 20 To recover statutory damages, a plaintiff must only show that he was "denied full and equal access," 21 not that he was "wholly excluded from enjoying Defendant's services." Id. (citing Hubbard v. Twin 22 Oaks Health and Rehab. Center, 408 F.Supp.2d 923, 932 (E.D. Cal. 2004). Pursuant to Cal. Civ. Code 23 § 55.56(b), “A plaintiff is denied full and equal access only if the plaintiff personally encountered the 24 violation on a particular occasion, or the plaintiff was deterred from accessing a place of public 25 accommodation on a particular occasion.” Cal. Civ. Code § 55.56(b). A plaintiff shows he was 26 deterred from accessing a place of public accommodation where: 27 (1) The plaintiff had actual knowledge of a violation or violations that prevented or reasonably dissuaded the plaintiff from accessing a place of public accommodation that 28 the plaintiff intended to use on a particular occasion. 1 (2) The violation or violations would have actually denied the plaintiff full and equal access if the plaintiff had accessed the place of public accommodation on that particular 2 occasion.
3 Cal. Civ. Code § 55.56(d). Thus, a plaintiff may recover statutory damages even if he does not enter a 4 facility. Botosan, 216 F.3d at 835. 5 Plaintiff asserts that he went to JW World Enterprises, Inc. Best Western Bakersfield North in 6 June 2019 and encountered barriers identified in his complaint. (Doc. 1 at 3, 8-10.) He asserts that he 7 encountered an unmarked passenger drop off zone, no disability parking closest to the entrance, 8 unsecured carpets, inaccessible check in counter, inaccessible vending, improperly configured 9 handlebars, inadequate dispersion of accessible parking, and an inaccessible breakfast bar. (Id.) 10 Plaintiff claims that as a result of these deficiencies, plaintiff declined to book a room at defendant’s 11 hotel and booked a room elsewhere. (Id. at 3.) However, he fails to provide any evidence or 12 explanation how the barriers “actually denied” him full and equal access and the Court declines to 13 speculate. Notably, though the plaintiff’s complaint provides photos3, they are grainy such that the 14 Court cannot determine how the areas depicted constitute barriers, even if the Court had the requisite 15 expertise to do so. (Doc. 1 at 9-10) The complaint also fails to explain how these areas constitute 16 barriers. 17 On the other hand, California law does not provide for statutory damages for every violation 18 encountered, but it awards these damages for every occasion the plaintiff was denied full and equal 19 access. California’s Civil Code § 55.56(f) reads, 20 (f) Statutory damages may be assessed pursuant to subdivision (a) based on each particular occasion that the plaintiff was denied full and equal access, and not upon the 21 number of violations of construction-related accessibility standards identified at the place of public accommodation where the denial of full and equal access occurred. If 22 the place of public accommodation consists of distinct facilities that offer distinct services, statutory damages may be assessed based on each denial of full and equal 23 access to the distinct facility, and not upon the number of violations of construction- related accessibility standards identified at the place of public accommodation where 24 the denial of full and equal access occurred.
25 See, e.g., Vogel v. Kafco P'ship, 2019 U.S. Dist. LEXIS 228406, at *9 (C.D. Cal. Sep. 25, 2019); 26 Langer v. Santini, 2019 U.S. Dist. LEXIS 209788 (C.D. Cal. Aug. 22, 2019). Furthermore, Schutza v. 27
28 3 The photos are grainy such that the Court cannot determine how the areas depicted constitute barriers, even if the Court 1 Walter E. Fielder, Inc., 2018 U.S. Dist. LEXIS 229417, at *15 (S.D. Cal. Oct. 18, 2018), clarifies: 2 Another notable provision limits statutory damages to one assessment per occasion of discrimination, 3 regardless of the number of violations, whereas the statute was previously ambiguous as to how to 4 calculate damages. See Cal. Civ. Code § 55.56(f) (limiting damages to "each occasion" that plaintiff 5 was denied accommodations "and not upon the number of violations"). 6 Even still, the plaintiff alleges only being deterred from visiting the hotel on one occasion. See 7 Feezor v. Del Taco, Inc., 431 F.Supp.2d 1088, 1090 (S.D. Cal. 2005) (“[A] disabled plaintiff can 8 recover the statutory minimum each time a defendant's noncompliance with the ADA and [the Act] 9 deterred the plaintiff from visiting a particular establishment” (citing Lentini v. Cal. Ctr. for the Arts, 10 370 F.3d 837, 847 (9th Cir. 2004); Arnold v. United Artists Theatre Circuit, 866 F.Supp. 433, 439 11 (N.D. Cal. 1994))). 12 Liberally construed, the Court finds the plaintiff’s showing is sufficient to establish he 13 encountered barriers identified in the complaint, and he was deterred from using the services of a place 14 of public accommodation, though he does not demonstrate how each of the barriers cause the 15 deterrence. Accordingly, an award of the requested statutory minimums under the Unruh Act and 16 California Disabled Persons Act is appropriate, and the Court recommends plaintiff’s request for an 17 award in the amount of $4,000.00 be GRANTED. 18 B. Injunctive Relief 19 The court may grant injunctive relief for violations of California law under Civil Code § 20 52.1(h). To be entitled to injunctive relief under 42 U.S.C. § 12188(a)(2), a plaintiff must show the 21 defendants have violated the Americans with Disabilities Act Accessibility Guidelines. Where the 22 plaintiff meets this burden, "injunctive relief shall include an order to alter facilities to make such 23 facilities readily accessible to and usable by individuals with disabilities. . ." Id.; see also Moeller v. 24 Taco Bell, 816 F.Supp.2d 831, 859 (N.D. Cal. 2011). 25 A plaintiff is not required to satisfy other prerequisites generally necessary for injunctive relief 26 since "[t]he standard requirements for equitable relief need not be satisfied when an injunction is 27 sought to prevent the violation of a federal statute which specifically provides for injunctive 28 relief." Moeller, 816 F.Supp.2d at 859 (quoting Antoninetti v. Chipotle Mexican Grill, Inc., 643 F.3d 1 1165, 1175-76 (9th Cir. 2010)). Thus, injunctive relief is proper when architectural barriers at a 2 defendant's establishment violate the ADA and removal of the barriers is readily achievable. See, 3 e.g., Moreno v. La Curacao, 463 Fed. App'x. 669, 670 (9th Cir. Dec. 23, 2011); Johnson, 2011 WL 4 2709365 *3; Sceper, 2009 WL 3763823 at *4. 5 As discussed above, plaintiff has stated a viable Title III discrimination claim, including that 6 the removal of the barriers at JW World Enterprises, Inc. Best Western Bakersfield North is readily 7 achievable. Injunctive relief compelling defendant to provide disability access to the facility in 8 accordance with the ADAAG is appropriate. See 42 U.S.C. § 12188(a)(2) (authorizing injunctions 9 under the ADA). 10 C. Request for Costs and Expenses 11 Plaintiff also seeks an award of costs and expenses in the amount of $469.00. (Doc. 20 at 10, 12 12.) Both the ADA and Unruh Act authorize the award of costs for an action. See 42 U.S.C. § 12205; 13 Cal. Civ. Code § 52(a). Plaintiff is proceeding pro se in this action, and he reports that he paid $400.00 14 for the filing fee and $69.00 for service of process. (Doc. 20 at 10.) These litigation expenses may be 15 awarded as costs to plaintiff. See Alvarado v. Nederend, 2011 WL 1883188 at *10 (E.D. Cal. Jan. 16 May 17, 2011) (explaining "filing fees, mediator fees . . . , ground transportation, copy charges, 17 computer research, and database expert fees" are typically identified as litigation costs); Moore, 2017 18 WL 1079753 at *8 (holding a plaintiff "may recover expenses for postage, courier services, and online 19 research under the ADA"). Accordingly, the Court recommends plaintiff’s request for $469.00 in costs 20 be GRANTED. 21 VI. Findings and Recommendations 22 Based on the foregoing analysis, the Eitel factors weigh in favor of granting default judgment, 23 and the entry of default judgment is within the discretion of the Court. See Aldabe, 616 F.2d at 1092. 24 Based upon the foregoing, the Court RECOMMENDS: 25 1. Plaintiff’s motion for default judgment against defendant JW World Enterprises, Inc. 26 Best Western Bakersfield North be GRANTED; 27 2. Plaintiff be AWARDED statutory damages in the amount of $4,000.00; 28 3. Plaintiff be AWARDED costs in the amount of $469.00; and 1 4. Plaintiff be GRANTED an injunction requiring defendant to provide compliant 2 accessible parking spaces and accessible path of travel at the property located at 2620 3 Buck Own Blvd., Bakersfield, CA, 93308 in accordance with the Americans with 4 Disabilities Act of 1990 and the Americans with Disabilities Act Accessibility 5 Guidelines. 6 These Findings and Recommendations are submitted to the United States District Judge 7 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local 8 Rules of Practice for the United States District Court, Eastern District of California. Within fourteen 9 days of the date of service of these Findings and Recommendations, any party may file written 10 objections with the Court. Such a document should be captioned “Objections to Magistrate Judge’s 11 Findings and Recommendations.” The parties are advised that failure to file objections within the 12 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 13 1153 (9th Cir. 1991); Wilkerson v. Wheeler, 772 F.3d 834, 834 (9th Cir. 2014). 14 15 IT IS SO ORDERED.
16 Dated: December 31, 2020 /s/ Jennifer L. Thurston 17 UNITED STATES MAGISTRATE JUDGE
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