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8 United States District Court 9 Central District of California

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11 VICTOR AGUIRRE Case № 2:20-cv-10507-ODW (GJSx)

12 Plaintiff,

13 v. ORDER DENYING MOTION FOR DEFAULT JUDGMENT [17] 14 EASTERN PM LLC; and DOES 1–10,

15 Defendants.

16 17 I. INTRODUCTION 18 Plaintiff Victor Aguirre moves for entry of default judgment against Defendant 19 Eastern PM, LLC. (Mot. Default J. (“Motion” or “Mot.”), ECF No. 17-1.) For the 20 reasons discussed below, the Motion is DENIED.1 21 II. BACKGROUND 22 Aguirre is a California resident who requires the use of a wheelchair at all times 23 when traveling in public. (Compl. ¶ 4, ECF No. 1.) He alleges that Defendant is the 24 real property owner, business operator, lessor and/or lessee of a convenience store and 25 market (the “Business”). (Id. ¶ 5.) Aguirre further alleges that when he attempted to 26 enter the Business on two separate occasions in July and August of 2020, he 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 “encountered a number of barriers that interfered with his ability to use and enjoy the 2 goods, services, privileges, and accommodations offered at the Business.” (Id. 3 ¶¶ 9–10.) Specifically, Aguirre alleges that the Business lacked: (1) use of the 4 International Symbol of Accessibility logo to indicate an accessible parking space, 5 (2) required parking signs that say “Van Accessible” or “Minimum Fine $250,” and 6 (3) access aisles with level surface slopes. (Id. ¶ 10.) Aguirre asserts that these 7 barriers previously denied him access to the Business and currently deter him from 8 returning until they are removed. (Id. ¶ 11.) 9 Aguirre filed this action on November 17, 2020, asserting claims under Title III 10 of the Americans with Disabilities Act (“ADA”) and California state law. On 11 December 8, 2020, the Court declined to exercise supplemental jurisdiction over 12 Aguirre’s construction-related accessibility state law claims and dismissed them 13 without prejudice. (Order Declining Suppl. Jurisdiction, ECF No. 13.) Aguirre 14 served Defendant with the Summons and Complaint on January 29, 2021. (Proof of 15 Service, ECF No. 14.) Defendant failed to answer or otherwise respond to the 16 Complaint, and Aguirre requested an entry of default on February 26, 2021. (Req. for 17 Entry of Default, ECF No. 15.) The Clerk entered default on March 1, 2021. (Entry 18 of Default, ECF No. 16.) Now, Aguirre moves for default judgment. (Mot.) 19 III. LEGAL STANDARD 20 Plaintiffs seeking default judgment must meet certain procedural requirements, 21 as set forth in Federal Rule of Civil Procedure (“Rule”) 55 and Central District of 22 California Local Rule (“Local Rule”) 55–1. See Fed. R. Civ. P. 55; C.D. Cal. 23 L.R. 55–1; Vogel v. Rite Aid Corp.,

(C.D. Cal. 2014). 24 Once the procedural requirements are satisfied, “[t]he district court’s decision whether 25 to enter a default judgment is a discretionary one.” See Aldabe v. Aldabe,

(9th Cir. 1980). 27 Generally, a defendant’s liability is conclusively established upon entry of 28 default by the Clerk, and well-pleaded factual allegations in the complaint are 1 accepted as true, except those pertaining to the amount of damages. See TeleVideo 2 Sys., Inc. v. Heidenthal,

, 917–18 (9th Cir. 1987) (per curiam) (citing 3 Geddes v. United Fin. Grp.,

, 560 (9th Cir. 1977)). Still, “[a] defendant’s 4 default does not automatically entitle the plaintiff to a court-ordered judgment.” 5 PepsiCo, Inc., v. Cal. Sec. Cans,

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

, 1471–72 (9th. Cir. 1986). 12 IV. DISCUSSION 13 The second and third Eitel factors are dispositive here, so the Court begins with 14 them. These two factors address the merits of the claims and the sufficiency of the 15 complaint. See Philip Morris USA, Inc. v. Castworld Prods., Inc.,

, 16 498 (C.D. Cal. 2003); see also Danning v. Lavine,

(9th Cir. 17 1978) (“[F]acts which are not established by the pleadings . . . are not binding and 18 cannot support the judgment.”). Although well-pleaded allegations in the complaint 19 are deemed admitted by a defendant’s failure to respond, “necessary facts not 20 contained in the pleadings, and claims which are legally insufficient, are not 21 established by default.” Cripps v. Life Ins. Co. of N. Am.,

, 1267 22 (9th Cir. 1992) (citing Danning,

). 23 Aguirre seeks relief under the ADA. (See Compl. ¶¶ 15–27.) To prevail on this 24 claim, Aguirre must show, among other things, that “the existing facility at the 25 defendant’s place of business or property presents an architectural barrier prohibited 26 under the ADA.” Vogel, 992 F. Supp. 2d at 1007–08 (brackets omitted) (quoting Parr v. 27 L&L Drive-Inn Rest.,

(D. Haw. 2000)). “Architectural 28 barriers” are defined by reference to the ADA Accessibility Guidelines (the 1 “ADAAG”). See Chapman v. Pier 1 Imps. (U.S.), Inc.,

(9th Cir. 2 2011). Relevantly, a public accommodation need only provide accessible parking 3 “[w]here parking spaces are provided.” See 2010 ADAAG § 208.1 (emphasis 4 added); see also id. § 208 (setting forth accessibility requirements for parking spaces). 5 Here, Aguirre fails to establish the existence of architectural barriers at 6 Defendant’s property. Aguirre alleges a list of violations related to parking spaces 7 without first establishing that Defendant provides parking to the public. (Compl. 8 ¶¶ 18–26.) Without alleging that Defendant provides public parking, Aguirre fails to 9 establish that Defendant failed to comply with the parking requirements of the 10 ADAAG. See Grigsby v. Tecomate Corp., No. 2:19-CV-08735-ODW (KSx), 11

, at *3 (C.D. Cal. Jan. 14, 2021) (finding the plaintiff failed to 12 establish an architectural barrier as he did not demonstrate the defendant provided 13 parking to its customers). 14 Furthermore, many of Aguirre’s allegations are devoid of factual support. In 15 fact, much of Aguirre’s Complaint is just a recitation of various ADAAG violations 16 coupled with conclusory allegations that provisions have been violated. For instance, 17 Aguirre recites the ADAAG guideline that one in every eight accessible spaces must 18 have an access aisle at least 96 inches wide, but he fails to allege any facts to show 19 that this provision has been violated by Defendant. (See Compl. ¶ 18 (reciting 20 1991 ADA Standards § 4.1.2(5)(b)).) Similarly, Aguirre alleges that Defendant’s 21 access aisles were not level, but he fails to indicate what degree of slope is present at 22 Defendant’s property. (See id. ¶ 25.) 23 In short, even accepting the well-pleaded factual allegations in the Complaint as 24 true, Aguirre fails to state a claim under the ADA. See Cripps,

. 25 Because the second and third Eitel factors demonstrate default judgment is improper, 26 the Court need not assess the remaining factors. See Brooke v. Sunstone Von Karman, 27 LLC, No. 8:19-CV-00635-JLS (ADSx),

, at *3 (C.D. Cal. Aug. 25, 28 1 || 2020). However, leave to amend is appropriate because Aguirre’s failure to state a 2 || claim is based on insufficient allegations which could theoretically be cured. See

3 Vv. CONCLUSION 4 In summary, Aguirre’s Motion for Default Judgment and accompanying request 5 || for attorneys’ fees are DENIED. (ECF No. 17.) The default previously entered 6 || against Defendant Eastern PM, LLC is hereby SET ASIDE. (ECF No. 16.) If 7 || Aguirre chooses to rectify the deficiencies identified herein, any amended complaint 8 | must be filed and served within twenty-one (21) days of the date of this Order. 9 || Failure to ttmely amend will result in dismissal of this action. 10 11 IT IS SO ORDERED. 12 13 June 8, 2021 4 fy We op 15 Ly hi 16 OTIS D. WRIGHT, II 4 UNITED STATES DISTRICT JUDGE

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