Ngoc Lam Che v. *** Fong Lo - No. 18-cv-00402-CRB, 2019 U.S. Dist. LEXIS 105367 (N.D. Cal. June 24, 2019)

Rule:

To determine whether default judgment is appropriate, this Court examines the following factors: (1) the possibility of prejudice to the plaintiff; (2) the merits of the plaintiff's substantive claims; (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 likelihood of obtaining a decision on the merits. Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986).

Facts:

This is an ADA case in which Ngoc Lam Che, who is paraplegic, alleges that he attempted to access a business called "Fast Fresh Pizza" in San Jose, but was prevented from doing so by (1) a lack of properly signed accessible parking spaces and (2) overly narrow accessible pathways. Che asserts claims for violation of the Unruh Act, Cal. Civil Code §§ 51-52, and the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et. seq. The Complaint seeks an injunction "directing Defendant as current owners, operators, lessors, and/or lessees of the Property and premises to modify the above described Property and premises and related facilities so that each provides full and equal access to all persons, including but not limited to persons with physical disabilities who use wheelchairs, and issue a preliminary and permanent injunction directing Defendant to provide and maintain facilities usable by Che and similarly situated persons with disabilities, and which provide full and equal access, as required by law, including appropriate changes in policy." He also seeks statutory damages under the Unruh Act for $4000 and attorneys' fees.

Issue:

Should the motion for default judgment be granted?

Answer:

Yes.

Conclusion:

The court granted the motion for default judgment. The court found that Che has alleged that he is deterred from visiting the property because of the barriers to his access. He adequately alleged the following: he is disabled; Defendant operates a place of public accommodation; and Che was denied public accommodation. Che satisfied the second and third prongs of the Eitel standard.