Trujillo v. Harsarb, Inc.

• Decision Date: 26 August 2021
• Docket Number: 1:21-cv-00342-NONE-SAB
• Court: U.S. District Court — Eastern District of California
• Parties: JOSE TRUJILLO, Plaintiff, v. HARSARB, INC., et al., Defendants.

JOSE TRUJILLO, Plaintiff, v. HARSARB, INC., et al., Defendants.

No. 1:21-cv-00342-NONE-SAB

United States District Court, E.D. California

August 26, 2021

FINDINGS AND RECOMMENDATIONS RECOMMENDING DENYING PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT WITHOUT PREJUDICE (ECF NO. 12)

I. INTRODUCTION

Currently before the Court is Plaintiff Jose Trujillo's (“Plaintiff”) motion for default judgment filed on July 16, 2021. (ECF No. 12.)^[1] On August 25, 2021, the Court held a hearing on the motion for default judgment, at which no appearances were made on behalf of Defendants Harsarb Inc., dba A1 Step & Save (“Harsarb Inc.”) and Harsarb Firm, LLC (“Harsarb Firm”) (“Defendants”). Having considered the moving papers, the declarations and exhibits attached thereto, arguments and non-appearance at the August 25, 2021 hearing, as well as the Court's file, the Court issues the following findings and recommendations recommending denying Plaintiff's motion for default judgment without prejudice for inadequate service.

II. BACKGROUND

A. Procedural History

Plaintiff filed this action on March 5, 2021. (ECF No. 1.) On April 29, 2021, executed summonses were filed with the Court which proffer that Defendants were served on March 31, 2021. (ECF Nos. 4, 5.)

Defendants have not filed answers, any responsive pleading, or otherwise appeared in this action. On May 14, 2021, Plaintiff filed a request for entry of default against Defendants. (ECF No. 8.) On May 14, 2021, default was entered against both Defendants. (ECF Nos. 9, 10.) On July 16, 2021, Plaintiff file the motion for default judgment that is currently before the Court. (ECF No. 8.) On August 25, 2021, the Court held a hearing via videoconference, with the courtroom open to the public. Counsel Tanya E. Moore appeared via video on behalf of Plaintiff. Nobody appeared on behalf of Defendants in person nor on the public access telephone line, despite the courtroom being open to the public.

B. Plaintiff's Allegations in the Operative Complaint

Plaintiff brings this action against Defendants alleging violation of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12181, et seq., as amended by the ADA Amendments Act of 2008 (P.L. 110-325) (the “ADA”), and California's Unruh Civil Rights Act, California Civil Code § 51, et seq. (the “Unruh Act”). (Compl., ECF No. 1; Pl.'s Mem. P. & A. Supp. Mot. Default J. (“Mem.”), ECF No. 12-1.) Plaintiff alleges that he is substantially limited in his ability to walk, uses a wheelchair or cane for mobility, and also has substantially limited hearing. (Compl. ¶ 8.) As a result, Plaintiff claims he is physically disabled as defined by all applicable California and United States laws, and is a member of the public whose rights are protected by such laws. (Id.)

Defendants own, operate, and/or lease A1 Step & Save, located at 403 North Mercey Springs Road, Los Banos, California 93635 (the “Facility”). (Compl. ¶¶ 1, 7.) The Facility is open to the public, intended for non-residential use, its operation affects commerce, and thus the Facility is a public accommodation as defined by the applicable laws. (Compl. ¶ 9.) Plaintiff frequently travels to where the Facility is located and visited the Facility on or about January 17, 2021, to purchase fuel for his vehicle. (Compl. ¶ 10.) During his visit to the Facility, Plaintiff encountered several barriers (both physical and intangible) that interfered with, if not outright denied, Plaintiff's ability to use and enjoy the goods, services, privileges, and accommodations offered at the Facility. (Id.)

First, Plaintiff claims he could not find a designated fuel pump, then parked at the closest pump to the store entrance and honked several times for fueling assistance, but no one came out. (Id.) Plaintiff observed that the pavement around the fuel pump and along the path of travel to the store entrance was uneven with large cracks and gaps. (Id.) Plaintiff decided it would be too difficult to traverse the parking lot in his wheelchair, so he decided to use his cane instead, but it was still hard to make his way over the uneven pavement to the store entrance. (Id.)

Second, Plaintiff claims the store entrance door was heavy and difficult for Plaintiff to open. (Id.) Third, Plaintiff claims the aisles inside the store were too narrow, which made it difficult for Plaintiff to make his way around even using his cane, and that it was particularly hard to get to the beverage station. (Id.) Fourth, Plaintiff claims the beverage station cups were stacked high and it was hard for Plaintiff to reach them while balancing himself with his cane. (Id.) Fifth, Plaintiff claims the transaction counter was too high, which made it hard for Plaintiff to pay for his purchase, and it was difficult for him to balance using his cane while reaching over the counter. (Id.)

Plaintiff claims he was, and continues to be deterred from visiting the facility because he knows the goods, services, facilities, privileges, advantages, and accommodations were and are unavailable to Plaintiff due to his physical disabilities. (Compl. ¶ 12.) Plaintiff also claims that he enjoys the goods and services offered, and will return once the barriers are removed. (Id.)

Plaintiff brings claims for: (1) violation of the ADA; (2) violation of the Unruh Act; and (3) denial of full and equal access to public facilities under California's Health and Safety Code. (Compl. ¶¶ 16-46.)

C. Relief Sought

Plaintiff sought the following relief in the complaint: (1) injunctive relief, preventive relief, or other proper relief; (2) statutory minimum damages under the Unruh Act; (3) attorneys' fees, expenses, and costs; (4) interest; and (5) other proper relief as deemed by the Court. (Compl. at 8-9.) In moving for default judgment, Plaintiff specifically seeks: (1) judgment against Defendants on all claims, with an injunction requiring Defendants to remove the architectural barriers encountered; (2) statutory damages in the amount of $4, 000; and (3) attorneys' fees and costs in the amount of $4, 435, plus fees as a result of counsel's appearance at the hearing on this matter. (ECF No. 12 at 2; Mem. 9-10.)

III. LEGAL STANDARD FOR DEFAULT JUDGMENT

“Our starting point is the general rule that default judgments are ordinarily disfavored, ” as “[c]ases should be decided upon their merits whenever reasonably possible.” NewGen, LLC v. Safe Cig, LLC, 840 F.3d 606, 616 (9th Cir. 2016) (quoting Eitel v. McCool, 782 F.2d 1470, 1472 (9th Cir. 1986)). Pursuant to Federal Rules of Civil Procedure 55, obtaining a default judgment is a two-step process. Entry of default is appropriate as to any party against whom a judgment for affirmative relief is sought that has failed to plead or otherwise defend as provided by the Federal Rules of Civil Procedure and where that fact is made to appear by affidavit or otherwise. Fed.R.Civ.P. 55(a). After entry of default, a plaintiff can seek entry of default judgment. Fed.R.Civ.P. 55(b). Federal Rule of Civil Procedure 55(b)(2) provides the framework for the Court to enter a default judgment:

(b) Entering a Default Judgment.

(2) By the Court. In all other cases, the party must apply to the court for a default judgment. A default judgment may be entered against a minor or incompetent person only if represented by a general guardian, conservator, or other like fiduciary who has appeared. If the party against whom a default judgment is sought has appeared personally or by a representative, that party or its representative must be served with written notice of the application at least 7 days before the hearing. The court may conduct hearings or make referrals--preserving any federal statutory right to a jury trial--when, to enter or effectuate judgment, it needs to:

(A) conduct an accounting;

(B) determine the amount of damages;

(C) establish the truth of any allegation by evidence; or

(D) investigate any other matter.

Fed. R. Civ. P. 55.

The decision to grant a motion for entry of default judgment is within the discretion of the court. PepsiCo, Inc. v. California Security Cans, 238 F.Supp. 1172, 1174 (C.D. Cal. 2002). The Ninth Circuit has set forth the following seven factors (the “Eitel factors”) that the Court may consider in exercising its discretion:

(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.

Eitel, 782 F.2d at 1471-72.

Generally, once default has been entered, “the factual allegations of the complaint, except those relating to damages, will be taken as true.” Garamendi v. Henin, 683 F.3d 1069, 1080 (9th Cir. 2012) (quoting Geddes v. United Fin. Grp., 559 F.2d 557, 560 (9th Cir. 1977)); see also Fed.R.Civ.P. 8(b)(6) (“An allegation--other than one relating to the amount of damages--is admitted if a responsive pleading is required and the allegation is not denied.”). Accordingly, the amount of damages must be proven at an evidentiary hearing or through other means. Microsoft Corp. v. Nop, 549 F.Supp.2d 1233, 1236 (E.D. Cal. 2008). Additionally, “necessary facts not contained in the pleadings, and claims which are legally insufficient, are not established by default.” Cripps v. Life Ins. Co. of North America, 980 F.2d 1261, 1267 (9th Cir. 1992) (internal citation omitted). The relief sought must not be different in kind or exceed the amount that is demanded in the pleadings. Fed.R.Civ.P. 54(c).

IV. DISCUSSION

The Court first determines whether the Court properly has jurisdiction in...