You're viewing Docket Item 19 from the case Johnson v. Montijo et al. View the full docket and case details.

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Case 2:12-cv-02057-MCE-AC Document 19 Filed 07/11/13 Page 1 of 6















UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

SCOTT N. JOHNSON,

No. 2:12-cv-2057 MCE AC

Plaintiff,



ORDER AND FINDINGS &
RECOMMENDATIONS

v.

RODE E. MONTIJO, d.b.a. EL CAMINO
TIRES,

Defendant.



Pending before the court is plaintiff’s June 20, 2013 motion for default judgment against


defendant Rode E. Montijo, doing business as El Camino Tires, located at 48 E. Charter Way1
and 2498 E. Main St., Stockton, California. ECF No. 18. The court has determined that the

matter shall be submitted upon the record and briefs on file and accordingly, the date for hearing

of this matter shall be vacated. E.D. Cal. R. 78-230(g). Upon review of the docket, the motion

for default judgment and all attached exhibits, THE COURT FINDS AS FOLLOWS:

PROCEDURAL BACKGROUND



Plaintiff initiated this action on August 6, 2012 alleging violations of the Americans with

Disabilities Act (“ADA”), 42 U.S.C. §§ 12101, et seq., and the California Unruh Civil Rights

1 In his motion for default judgment, plaintiff identifies this location as 48 E. Charter Way / Dr.
Martin Luther King, Jr. Blvd, Stockton, California. See Mot. for Default J. ¶ 3.






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Case 2:12-cv-02057-MCE-AC Document 19 Filed 07/11/13 Page 2 of 6

Act. A certificate of service filed September 14, 2012 demonstrates that the summons and

complaint were served on this defendant on September 4, 2012 by delivering a copy to Ivan
Montijo, a “person in charge” at 340 N. Wilson Way, Stockton, CA 952052. ECF No. 5. Plaintiff
also mailed to defendant Montijo by first class mail copies of these documents on September 4,

2012. Id.



On June 5, 2013, an amended proof of service of summons was filed by plaintiff reflecting

a correction to the spelling of defendant Montijo’s name. ECF No. 17. This amended proof

demonstrates that Montijo was re-served on December 17, 2012 on Mike Montijo, a “person in
charge” at 48 E. Dr. Martin Luther King Jr. Blvd, Stockton, CA 952103, and that copies of the
documents were then mailed by first class mail on December 17, 2012. See id.



On November 6, 2012, pursuant to plaintiff’s request, the Clerk of Court entered the

default of defendant Montijo. On June 20, 2013, plaintiff filed a motion for default judgment,

and served a copy of the motion by mail on the defendant at 48 E. Dr. Martin Luther King Jr.

Blvd, Stockton, CA 95206. ECF No. 18. Although the complaint identifies two locations for El

Camino Tires, the motion for default judgment is directed only to the location at 48 E. Charter

Way / Dr. Martin Luther King, Jr. Blvd. See Mot. for Default J. ¶ 3.

DISCUSSION



It is within the sound discretion of the district court to grant or deny an application for

default judgment. Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). In making this

determination, the court considers the following factors:

(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 the 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 v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). “In applying this discretionary

2 This address is listed as the mailing address for defendant business. See Compl. Ex. B, ECF
No. 1-2 at 2-3.
3 This address is listed as the business address for defendant business. See Compl. Ex. B, ECF
No. 1-2 at 2-3.

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Case 2:12-cv-02057-MCE-AC Document 19 Filed 07/11/13 Page 3 of 6

standard, default judgments are more often granted than denied.” Philip Morris USA, Inc. v.

Castworld Products, Inc., 219 F.R.D. 494, 498 (C.D. Cal. 2003) (quoting PepsiCo, Inc. v.

Triunfo-Mex, Inc., 189 F.R.D. 431, 432 (C.D. Cal. 1999)).



As a general rule, once default is entered, the factual allegations of the complaint are taken

as true, except for those allegations relating to damages. Tele Video Systems, Inc. v. Heidenthal,

826 F.2d 915, 917-18 (9th Cir. 1987) (citations omitted). However, although well-pleaded

allegations in the complaint are admitted by defendant’s failure to respond, “necessary facts not

contained in the pleadings, and claims which are legally insufficient, are not established by

default.” Cripps v. Life Ins. Co. of N. Am., 980 F.2d 1261, 1267 (9th Cir. 1992).

A.



The Americans with Disabilities Act

Title III of the ADA provides that “[n]o individual shall be discriminated against on the

basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges,

advantages, or accommodations of any place of public accommodation by any person who owns,

leases (or leases to), or operates a place of public accommodation.” 42 U.S.C. § 12182(a).

Discrimination includes “a failure to remove architectural barriers . . . in existing facilities . . .

where such removal is readily achievable .” Id. § 12182(b)(2)(A)(iv). Under the ADA, the term

readily achievable means “easily accomplishable and able to be carried out without much

difficulty or expense.” 42 U.S.C. § 12181(9).



“To prevail on a Title III discrimination claim, the plaintiff must show that (1) [he] is

disabled within the meaning of the ADA; (2) the defendant is a private entity that owns, leases, or

operates a place of public accommodation; and (3) the plaintiff was denied public

accommodations by the defendant because of her disability.” Molski v. M.J. Cable, Inc., 481

F.3d 724, 730 (9th Cir. 2007). Further, “[t]o succeed on a ADA claim of discrimination on

account of one's disability due to an architectural barrier, the plaintiff must also prove that: (1) the

existing facility at the defendant’s place of business presents an architectural barrier prohibited

under the ADA, and (2) the removal of the barrier is readily achievable.” Parr v. L & L Drive-Inn






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Case 2:12-cv-02057-MCE-AC Document 19 Filed 07/11/13 Page 4 of 6

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Rest., 96 F. Supp. 2d 1065, 1085 (D. Haw. 2000).4


Here, plaintiff alleges (1) that he is disabled, Compl. ¶ 1; (2) that defendant Montijo’s

business is a place of public accommodation, id. ¶ 2; (3) that plaintiff was denied access to

defendant’s business because of plaintiff’s disability, id. ¶ 4; and (4) that defendant’s business has

a number of architectural barriers (lack of correct number and type of properly configured

disabled parking space(s) including a van accessible disabled parking space, accessible route,

accessible entrance, accessibility restrooms, accessible entrance), id. Additionally, plaintiff

alleges that these architectural barriers are readily removable. Id. ¶ 4. His complaint also

specifically states that he seeks injunctive relief “to remove all barriers to access which are

readily achievable . . . .” Id. ¶ 4. Therefore, the injunction would only require defendant to

remove the architectural barriers if it is readily achievable to do so. Moreover, 28 C.F.R. §

36.304(b) specifically lists “[c]reating designated accessible parking spaces” and “[w]idening

doors” as examples of typical “steps to remove barriers.”



Because plaintiff’s allegations are taken as true on default, the court finds that plaintiff has

made out a prima facie Title III discrimination claim. Additionally, the court finds that the

majority of the Eitel factors weigh in favor of granting default judgment to plaintiff on that claim.

Therefore, the court recommends that plaintiff be granted default judgment against defendant on

his ADA claim and award plaintiff an injunction requiring defendant to provide the correct

number and type of properly configured disabled parking space(s) including a van accessible

disabled parking space, an accessible entrance landing, an accessible entrance, accessible

restrooms, and an accessible cashier / service counter in accordance with the Americans with

4 Some courts have held that once plaintiff satisfies an initial burden of production regarding
ready achievability, the burden shifts to the defendant to establish as an affirmative defense that
barrier removal is not readily achievable. See e.g., Colo. Cross Disability Coalition v.
Hermanson Family, Ltd., 264 F.3d 999, 1006 (10th Cir. 2001). At least in the context of
buildings protected as historic, the Ninth Circuit places the entire burden squarely on the
defendant. Molski v. Foley Estates Vineyard and Winery, LLC, 531 F.3d 1043, 1048 (9th Cir.
2008). Allocation of the burden of proof does not affect disposition of the instant motion,
however. Because plaintiff’s allegations of readily achievable barrier removal are taken as true
on a motion for default judgment, and because defendant has entirely failed to appear or defend,
the court need not determine which party would bear the burden of proof regarding ready
achievability on summary judgment or at trial.






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Case 2:12-cv-02057-MCE-AC Document 19 Filed 07/11/13 Page 5 of 6

Disabilities Act of 1990 (ADA) and the Americans with Disabilities Act Accessibility Guidelines

(ADAAG) contained in 28 CFR Part 36. See 42 U.S.C. § 12188(a)(2) (authorizing injunctions

under the ADA).

B.

Unruh Civil Rights Act



The Unruh Civil Rights Act provides: “All persons within the jurisdiction of this state are

free and equal, and no matter what their sex, race, color, religion, ancestry, national origin,

disability, medical condition, marital status, or sexual orientation are entitled to the full and equal

accommodations, advantages, facilities, privileges, or services in all business establishments of

every kind whatsoever.” Cal. Civ. Code § 51(b). To prevail on his disability discrimination

claim under the Unruh Civil Rights Act, plaintiff must establish that (1) defendant denied plaintiff

the full and equal accommodations, advantages, facilities, privileges, or services; (2) a motivating

reason for defendant’s conduct was plaintiff’s disability, (3) plaintiff was harmed; and (4)

defendant’s wrongful conduct was a substantial factor in causing plaintiff’s injury. California

Civil Jury Instructions (CACI), No. 3020. A plaintiff who establishes a violation of the ADA

need not prove intentional discrimination under the Unruh Act. See Munson v. Del Taco, Inc., 46

Cal. 4th 661 (Cal. 2009) (interpreting Cal. Civ. Code § 51(f), which provides “A violation of the

right of any individual under the Americans with Disabilities Act of 1990 (Public Law 101-336)

shall also constitute a violation of this section”).



Here, because plaintiff’s complaint properly sets out the necessary elements for his ADA

claim, plaintiff has also properly set out the necessary elements for his Unruh Civil Rights Act

claim. Therefore, and because there are no policy considerations which preclude the entry of

default judgment on this claim, Eitel, 782 F.2d at 1471-72, the court will recommend that

plaintiff's motion for default judgment on his Unruh Civil Rights Act claim be granted.



The Unruh Civil Rights Act provides for a minimum statutory damage amount of $4,000

per violation, and “any attorney’s fees that may be determined by the court in addition thereto.”

Cal. Civ. Code § 52(a). Plaintiff is seeking a damages award in the amount of $8,000 for

violation of the Unruh Civil Rights Act based on two visits to the defendant’s business location.

Compl. ¶ 4. The court will recommend that plaintiff be awarded those statutory damages.






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Case 2:12-cv-02057-MCE-AC Document 19 Filed 07/11/13 Page 6 of 6

Plaintiff does not seek attorney fees or litigation costs.



Based on the foregoing, IT IS HEREBY ORDERED that the July 24, 2013 hearing on

plaintiff’s motion for default judgment is vacated; and





IT IS HEREBY RECOMMENDED that:

1. Plaintiff’s motion for default judgment on plaintiff’s ADA claim and Unruh Civil

Rights Act claim be granted;





2. Plaintiff be awarded statutory damages in the amount of $8,000.00; and

3. Plaintiff be granted an injunction requiring defendant Montijo to provide the correct

number and type of properly configured disabled parking space(s) including a van accessible

disabled parking space, an accessible entrance landing, an accessible entrance, accessible

restrooms, and an accessible cashier / service counter in accordance with the ADA and the

ADAAG.



These findings and recommendations are submitted to the United States District Judge

assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days

after being served with these findings and recommendations, any party may file written

objections with the court and serve a copy on all parties. Such a document should be captioned

“Objections to Magistrate Judge's Findings and Recommendations.” Failure to file objections

within the specified time may waive the right to appeal the District Court’s order. Turner v.

Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

DATED: July 10, 2013



























___________________________________
ALLISON CLAIRE
UNITED STATES MAGISTRATE JUDGE











/mb;john2057.mdj






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