Dytch v. Bermudez
| Decision Date | 16 May 2018 |
| Docket Number | Case No. 17-cv-02714-EMC |
| Parties | ALBERT DYTCH, Plaintiff, v. IGNACIO BERMUDEZ, et al., Defendants. |
| Court | U.S. District Court — Northern District of California |
Plaintiff Albert Dytch's mobility is impaired by muscular dystrophy. In April 2017, he visited El Campesino, a Latino eatery in Richmond. He encountered structural barriers while attempting to park his vehicle and use the restroom. He brings claims for damages and injunctive relief against Ignacio Bermudez and Rosa Bermudez, allegedly doing business as sole proprietors under the name El Campesino, under the Americans with Disabilities Act and California's Unruh Act for disability discrimination. A default was entered and Plaintiff now seeks default judgment for $4,000 in statutory damages, $7,186.80 in attorney fees, and an injunction requiring removal of the aforementioned barriers within 6 months.
For the reasons stated below, Plaintiff's request is DENIED.
Due to muscular dystrophy, Plaintiff Dytch is substantially limited in his ability to walk, has limited dexterity, and must use a wheelchair. Compl. ¶ 8. The El Campesino facility is located at 232 23rd Street, in Richmond, California, id. ¶ 1, and is owned, operated, or leased by Defendants Ignacio and Rosa Bermudez. Id. ¶ 7. The only true defendants are the Bermudez's in their individual capacity, doing business as El Campesino.1 Mr. Dytch lives about 15 miles away from El Campesino, but stopped there on April 14, 2017 to have lunch before meeting his accountant. Id. ¶ 10. There were no disabled parking stalls in the parking lot, and none of the parking stalls had sufficient space to enable Mr. Dytch to deploy his ramp and unload his wheelchair. Id. ¶ 10(a). Instead, he parked on the street curb and used the public sidewalk to reach the entrance. Id. At the parking lot entrance, a metal gate track created a wide gap and vertical height change over which it was difficult to maneuver a wheelchair. Id. ¶ 10(b).
At El Campesino, Mr. Dytch needed to use the restroom. The women's restroom was marked "accessible" but the men's was not. Id. ¶ 10(c). Mr. Dytch attempted to enter the women's restroom but the accessible toilet was out of order. Id. He had no choice but to use the men's restroom instead. Id. ¶ 10(d). There was a short steep drop at the entrance which caused him to nearly fall out of his wheelchair. Id. There was insufficient clear space for him to transfer from his wheelchair to the toilet. Id. ¶ 10(e). There was no rear grab bar to use. Id. He was ultimately unable to use the restroom and was forced to wait until he reached his accountant's office, causing discomfort. Id.
Mr. Dytch was also unable to reach the faucets in the restroom because there was a cabinet underneath the sink preventing him from getting his wheelchair close enough. Id. ¶ 10(f). Finally, Mr. Dytch could not open the door to the men's restroom from the inside; the incline at the door's threshold was too steep for him to get himself next to the door to push it open from the inside, and the door stuck and was too heavy to open from a distance. Id. ¶ 10(g). He could only open the door briefly and for a few inches at a time, which he had to repeat several times, calling for help "until he became hoarse" and someone finally heard him. Id.
Mr. Dytch was deterred from visiting El Campesino because of this experience. Id. ¶ 12.Mr. Dytch alleges that Defendants have the financial resources to remove these barriers without much difficulty or expense to make El Campesino accessible to the physically disabled, but that they refuse to do so. Id. ¶ 13. Mr. Dytch does not allege making a request for such corrective action. Defendants "possess[] and enjoy[] sufficient control and authority to modify the Facility to remove impediments," but have "intentionally maintained [it] in its current condition and have intentionally refrained from altering [it] so that it complies with the accessibility standards." Id. ¶ 14. Mr. Dytch also alleges that the barriers are "so obvious as to establish Defendants' discriminatory intent." Id. ¶ 15.
The action was filed on May 10, 2017. See Docket No. 1. A proof of service of summons was originally filed on May 23, 2017, claiming service upon a "John Doe" at El Campesino. See Docket Nos. 6 and 7. The Court denied Plaintiff's first motion for default judgment because the proof of service was deficient under Federal Rule of Civil Procedure 4(e) as it was not made on an "individual dwelling" or to a person with "suitable . . . discretion who resides there." Docket No. 19. Additionally, substituted service under California Code of Civil Procedure § 415.20(b) was inadequate because "the proof of service does not indicate that 'John Doe' was 'apparently in charge' of El Campesino or that he was 'informed of the contents' of the packet." Id. Plaintiff was ordered to file an amended proof of service complying with the statutory requirements or to re-serve the complaint with a Spanish copy of the Court's pro-se litigation handbook and a brief cover letter in Spanish explaining that the Defendants are being sued. Id.
Plaintiff filed amended proofs of service of summons. See Docket Nos. 21 and 22. The amended affidavit states that when the process server attempted service on May 23, 2017, Id. at 2. The proof of service is not accompanied by any contemporaneous notes or documentation about the May 23, 2017 encounter.
Proper service of summons is a procedural prerequisite to personal jurisdiction. See OmniCapital Int'l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987). A court should deny default judgment if it lacks personal jurisdiction over the defendant. See In re Tuli, 172 F.3d 707, 720 (9th Cir. 1999). If service is proper and default has been entered, a court must consider the Eitel factors to determine whether to exercise its discretion to grant default judgment, including:
(1) the possibility of prejudice to the plaintiff, (2) the merits 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; (6) whether the default was due to excusable neglect; and (7) the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits.
See Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). In so doing, allegations of the complaint are deemed to have been admitted except with respect to the amount of damages. TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987).
Under California law, an individual may be served either by personal service, see Cal. Code Civ. Proc. § 415.10, or, if personal service fails after reasonable diligence, through substituted service by leaving a copy "at the person's dwelling house, usual place of abode, usual place of business, or usual mailing address . . . in the presence of a competent member of the household or a person apparently in charge of his or her office, place of business, or usual mailing address . . . who shall be informed of the contents thereof." Id. § 415.20(b).
Plaintiff attempted to locate Defendants three times at El Campesino, their business, but was unsuccessful. See Docket Nos. 21 and 22. This number of attempts typically satisfies the requirement of reasonable diligence, permitting recourse to substitute service. See Board of Trustees of the Leland Stanford Univ. v. Ham, 216 Cal.App.4th 330, 337 (2013) . Nevertheless, Plaintiff's attempt at substitute service is inadequate here. Rather than re-serve the complaint, Plaintiff filed a revised proof of service from the process server which recites, in a formulaic and conclusory fashion, that John Doe was "apparently in charge." The affidavit lacks factual detail. It does not identify theparticular person served.2 The revised proof of service is a year after the fact. It is not corroborated by contemporaneous notes or documentation. On this record, the affidavit lacks credibility. Thus, Plaintiff has not made a sufficient showing of valid substituted service. The Court therefore lacks personal jurisdiction over Defendants and may not enter default judgment against them. See Omni Capital, 484 U.S. at 104.
Even if service were adequate, the Eitel factors overall do not weigh in favor of granting default judgment, as explained below.
Most importantly, Plaintiff's complaint is not sufficiently detailed to establish key elements of his claim. See, e.g., Pepsico, Inc. v. Cal. Sec. Cans, 238 F.Supp.2d 1172, 1175 (C.D. Cal. 2002). Plaintiff asserts a cause of action under the Americans with Disabilities Act.3 Whether failure to comply with accessibility requirements under the ADA is actionable depends on when the building was constructed. For all facilities, including "existing" facilities (as of January 26, 1993), discrimination occurs when there is "a failure to remove architectural barriers . . . where such removal is readily achievable." 42 U.S.C. § 12182(b)(2)(A)(iv). Contrary to Plaintiff's assertion, whether a modification is "readily achievable" is not an affirmative defense, but rather an element of the case-in-chief for which the plaintiff bears the burden.4 See, e.g., Roberts v. Royal Atlantic Corp., 542 F.3d 363, 373 (2d Cir. 2008) (...
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