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8 United States District Court 9 Central District of California

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11 LEEMANUEL WEILCH, Case № 2:20-CV-07517-ODW (PDx)

12 Plaintiff, ORDER DENYING MOTION FOR

13 v. DEFAULT JUDGMENT [17]

14 LEXLUX ASSOCIATES, LP; and DOES 1–10, 15

Defendants. 16

17 18 I. INTRODUCTION 19 Plaintiff Leemanuel Weilch moves for entry of default judgment against 20 Defendant Lexlux Associates, LP (“Defendant”). (Mot. for Default J. (“Motion” or 21 “Mot.”) 1, ECF No. 17-1.) For the reasons discussed below, the Court DENIES 22 Weilch’s Motion.1 23 II. BACKGROUND 24 Weilch requires a wheelchair for mobility at all times when traveling in public. 25 (Compl. ¶ 4, ECF No. 1.) He alleges that Defendant is “the real property owner, 26 business operator, lessor and/or lessee, of the real property” for Ramona’s Mexican 27

28 1 After carefully considering 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 Food (“Business”) located at 16300 Crenshaw Boulevard in Torrance, California. (Id. 2 ¶ 5.) Weilch claims he visited the Business on March 11, 2020, and April 18, 2020, 3 but both times he was unable to enter the Business due to a lack of accessible parking. 4 (See id. ¶ 10.) Specifically, Weilch alleges the Business’s parking space lacked: 5 (1) paint outlining a van accessible parking space, (2) a “NO PARKING” warning, 6 (3) an access aisle with the necessary width for van accessible parking, (4) the 7 International Symbol of Accessibility logo, and (5) the proper slope levelling for 8 access aisles and parking surfaces. (Id. ¶¶ 20, 22, 24.) Weilch asserts that the lack of 9 accessible parking at the Business previously denied him access and currently deter 10 him from returning until accessible parking is provided. (Id. ¶ 11.) 11 Weilch filed this action on August 19, 2020, asserting claims under Title III of 12 the Americans with Disabilities Act (“ADA”) and California state law. The Court 13 declined to exercise supplemental jurisdiction over Weilch’s construction-related 14 accessibility state law claims and dismissed them without prejudice. (Order Declining 15 Suppl. Jurisdiction 10, ECF No. 12.) Weilch served Defendant with the Summons 16 and Complaint on September 23, 2020. (Proof of Service, ECF No. 13.) Defendant 17 failed to answer or otherwise respond to the Complaint, and Weilch requested an entry 18 of default on November 20, 2020. (Req. for Entry of Default, ECF No. 14.) The 19 Clerk entered default on November 23, 2020. (Entry of Default, ECF No. 15.) Now, 20 Weilch moves for default judgment. (Mot.) 21 III. LEGAL STANDARD 22 Plaintiffs seeking default judgment must meet certain procedural requirements, 23 as set forth in Federal Rule of Civil Procedure (“Rule”) 55 and Central District of 24 California Local Rule (“Local Rule”) 55-1. See Fed. R. Civ. P. 55; C.D. Cal. 25 L.R. 55-1; Vogel v. Rite Aid Corp.,

(C.D. Cal. 2014). 26 Once the procedural requirements are satisfied, “[t]he district court’s decision 27 whether to enter a default judgment is a discretionary one.” See Aldabe v. Aldabe, 28

(9th Cir. 1980). Generally, a defendant’s liability is conclusively 1 established upon entry of default by the Clerk, and well-pleaded factual allegations in 2 the complaint are accepted as true, except those pertaining to the amount of damages. 3 See TeleVideo Sys., Inc. v. Heidenthal,

, 917–18 (9th Cir. 1987) (per 4 curiam) (citing Geddes v. United Fin. Grp.,

, 560 (9th Cir. 1977)). 5 Still, “[a] defendant’s default does not automatically entitle the plaintiff to a 6 court-ordered judgment.” PepsiCo, Inc., v. Cal. Sec. Cans,

, 7 1174 (C.D. Cal. 2002). Rather, the court considers several factors in exercising its 8 discretion, including: (1) the possibility of prejudice to the plaintiff; (2) the merits of 9 the plaintiff’s substantive claim; (3) the sufficiency of the complaint; (4) the sum of 10 money at stake; (5) the possibility of a dispute concerning material facts; (6) whether 11 the defendant’s default was due to excusable neglect; and (7) the strong policy 12 favoring decision on the merits. Eitel v. McCool,

, 1471–72 (9th. Cir. 13 1986). 14 IV. DISCUSSION 15 The second and third Eitel factors are dispositive here, so the Court begins with 16 them. These two factors address the merits of the claims and the sufficiency of the 17 complaint. Philip Morris USA, Inc. v. Castworld Prods., Inc.,

, 498 18 (C.D. Cal. 2003); see also Danning v. Lavine,

(9th Cir. 1978) 19 (“[F]acts which are not established by the pleadings . . . are not binding and cannot 20 support the judgment.”). Although well-pleaded allegations in the complaint are 21 deemed admitted by a defendant’s failure to respond, “necessary facts not contained in 22 the pleadings, and claims which are legally insufficient, are not established by 23 default.” Cripps v. Life Ins. Co. of N. Am.,

(9th Cir. 1992) 24 (citing Danning,

). 25 Weilch seeks relief under the ADA. (See Compl. ¶¶ 15–26.) To prevail on this 26 claim, Weilch must show, among other things, that he “was denied public 27 accommodations by the defendant because of his disability,” and that “the existing 28 facility at the defendant’s place of business [or property] presents an architectural 1 barrier prohibited under the ADA.” Vogel, 992 F. Supp. 2d at 1007–08 (alteration in 2 original) (quoting Molski v. M.J. Cable Inc.,

(9th Cir. 2007); Parr 3 v. L&L Drive-Inn Rest.,

(D. Haw. 2000)). “Architectural 4 barriers” are defined by reference to the ADA Accessibility Guidelines (the 5 “ADAAG”). See Chapman v. Pier 1 Imps. (U.S.), Inc.,

(9th Cir. 6 2011). Relevantly, a public accommodation need only provide accessible parking 7 “[w]here parking spaces are provided.” See 2010 ADAAG § 208.1 (emphasis 8 added); see also id. § 208 (setting forth accessibility requirements for parking spaces). 9 Here, Weilch fails to establish the existence of architectural barriers at 10 Defendant’s property. Weilch alleges a list of violations related to parking spaces 11 without establishing that Defendant provides parking to the public. (Compl. ¶¶ 10, 20, 12 22, 24.) Without alleging that Defendant provides public parking, Weilch fails to 13 establish that Defendant failed to comply with the parking requirements of the 14 ADAAG. See Grigsby v. Tecomate Corp., No. 2:19-CV-08735-ODW (KSx), 15

, at *3 (C.D. Cal. Jan. 14, 2021) (finding the plaintiff failed to 16 establish an architectural barrier as he did not demonstrate the defendant provided 17 parking to its customers). 18 Furthermore, many of Weilch’s allegations are devoid of factual support. In 19 fact, much of Weilch’s Complaint is just a recitation of various ADAAG violations 20 coupled with conclusory allegations that provisions have been violated. By way of 21 example, Weilch alleges Defendant “failed to provide the access aisle with the 22 minimum width of 96 inches” without identifying what is currently present for 23 comparison. (See Compl. ¶ 20.) Similarly, Weilch asserts Defendant fails to provide 24 level parking, without indicating what kind of slope is present at Defendant’s 25 property. (See id. ¶ 24.) 26 In sum, even accepting the well-pleaded factual allegations in the Complaint as 27 true, Weilch fails to state a claim under the ADA. See Cripps,

. 28 Because the second and third Eitel factors demonstrate default judgment is improper, 1 || the Court need not assess the remaining factors. See Brooke v. Sunstone Von Karman, 2 || LLC, No. 8:19-CV-00635-JLS (ADSx),

, at *3 (C.D. Cal. Aug. 25, 3 || 2020). However, leave to amend is appropriate because Weilch’s failure to state a claim is based on insufficient allegations which could theoretically be cured. /d. 5 Vv. CONCLUSION 6 For the foregoing reasons, the Court DENIES Weilch’s Motion for Default Judgment. (ECF No. 17.) The Court accordingly DENIES Weilch’s request for 8 | attorneys’ fees. The default previously entered against Defendant is hereby SET ASIDE. (ECF No. 15.) If Weilch chooses to amend his Complaint to address the 10 || deficiencies identified herein, any amended complaint must be filed and served within 11 || twenty-one (21) days of the date of this Order. Failure to timely amend will result in 12 | dismissal of this action. 13 14 IT IS SO ORDERED. 15 16 March 9, 2021 17 i led ua 19 OTIS D. WRIGHT, II 50 UNITED STATES DISTRICT JUDGE

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