FINDINGS AND RECOMMENDATIONS

ALLISON CLAIRE, Magistrate Judge.

This is an Americans with Disabilities Act ("ADA") and Unruh Act case alleging that defendants failed to provide accessible parking spaces, and accessible counter space. Plaintiff moves for the entry of a default judgment against defendants. This proceeding was accordingly referred to the undersigned by Local Rule 302(c)(19) (motions for entry of default judgment under Fed. R. Civ. P. 55(b)(2)).

For the reasons set forth below, the undersigned will recommend that plaintiff be granted a default judgment on his claim that defendants failed to provide counters of the correct height, and that the motion as to all other claims be denied.

I. THE COMPLAINT

Plaintiff Scott Johnson is disabled. Complaint (ECF No. 1) ¶ 1. Circle 7 is a place of public accommodation. Complaint ¶ 30. Plaintiff visited Circle 7 eleven times from September 2011 through February 2015. Id. ¶¶ 212-22.

During those visits, plaintiff personally encountered several architectural barriers that denied him full and equal access to Circle 7. First, there were no accessible parking spaces that complied with state or local laws or regulations for accessible parking spaces. Second, there were no van-accessible parking spaces. Third, there was no accessible counter space. During those visits, plaintiff also personally encountered counter space that was cluttered with various objects.

Defendant Hakmat Lababedy was, at all relevant times, the "real property owner" of the "building/parcel located at or about 7601 Stockton Blvd." Complaint ¶¶ 2-14. Defendant J & K Atwal, Inc. ("Atwal"), was, at all relevant times, the "business owner" of "Circle 7, located at or about 7601 Stockton Blvd." Complaint ¶¶ 14-25.

II. PROCEDURAL BACKGROUND

Plaintiff served the summons and complaint on Atwal on February 2, 2016. ECF No. 4. Plaintiff served the summons and complaint on Lababedy on February 16 and 17, 2016. ECF No. 7. The Clerk of the Court entered defaults against defendants Atwal and Lababedy on March 4, 2016 and March 28, 2016, respectively. ECF Nos. 6, 9. Plaintiff now moves for default judgment against both defendants on his claim under the ADA, 42 U.S.C. §§ 12182, 12183, and the Unruh Act, Cal. Civ. Code §§ 51(f), 52(a).

III. LEGAL STANDARDS

A. Motion for Default Judgment

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). The complaint's well-pleaded factual allegations "are taken as admitted on a default judgment." Benny v. Pipes, 799 F.2d 489, 495 (9th Cir. 1986). Those well-pleaded factual allegations must be sufficient to establish plaintiff's entitlement to a judgment under the applicable law. See Alan Neuman Productions, Inc. v. Albright, 862 F.2d 1388 (9th Cir. 1988) (reversing default judgment on Racketeer Influenced and Corrupt Organizations Act ("RICO") claim where "the complaint fails properly to allege a claim for violation" of RICO); Cripps v. Life Ins. Co. of North America, 980 F.2d 1261, 1267 (9th Cir. 1992) ("claims which are legally insufficient, are not established by default").

The decision to grant or deny an application for default judgment lies within the district court's sound discretion. Aldabe, 616 F.2d at 1092. In making this determination, the court may consider 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 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).

B. Title III of the ADA

"Title III of the ADA prohibits discrimination in public accommodations . . . ." Kohler v. Bed Bath & Beyond of California, LLC, 780 F.3d 1260, 1263 (9th Cir. 2015). The elements of a Title III claim are: (1) plaintiff 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 discriminated against by the defendant because of plaintiff's disability. 42 U.S.C. § 12182(a); Arizona ex rel. Goddard v. Harkins Amusement Enterprises, Inc., 603 F.3d 666, 670 (9th Cir. 2010).

Discrimination, in this context, includes "a failure to remove architectural barriers ... in existing facilities ... where such removal is readily achievable." 42 U.S.C. § 12182(b)(2)(A)(iv). Where plaintiff alleges that the discrimination arose from defendants' failure to make modifications to existing policies, the complaint must additionally allege that defendants failed "to make a requested reasonable modification that was . . . necessary to accommodate the plaintiff's disability." Fortyune v. Am. Multi-Cinema, Inc., 364 F.3d 1075, 1082 (9th Cir. 2004).

Plaintiff alleges three types of discrimination in this case, resulting from defendants' failure to provide adequate accessible parking spaces, and accessible counter space. First, defendants failed to make "reasonable modifications in policies, practices, or procedures" that were necessary to accommodate individuals with disabilities, in violation of 42 U.S.C. § 12182(b)(2)(A)(ii). Second, defendants failed to remove architectural barriers where such removal was readily achievable, in violation of 42 U.S.C. § 12182(b)(2)(A)(iv). Third, defendants failed to make alterations in a manner that would render the altered portion of the facility readily accessible to individuals with disabilities, in violation of 42 U.S.C. § 12183(a)(2).

C. The Unruh Act, Cal. Civ. Code §§ 51(f), 52(a)

Under California's Unruh Act, "[a] violation of the right of any individual under the federal Americans with Disabilities Act of 1990 . . . shall also constitute a violation of this section." Cal. Civ. Code § 51(f). In addition, the Unruh Act independently prohibits discrimination, if it is done in contravention of Section 51. Cal. Civ. Code § 52(a). Section 52(a) provides for statutory damages of no less than $4,000 for each violation, and attorney's fees. Id.

IV. ANALYSIS — EITEL FACTORS

A. Prejudice to the Plaintiff

The first Eitel factor considers whether plaintiff would suffer prejudice if default is not entered. See PepsiCo, Inc. v. California Security Cans, 238 F.Supp.2d 1172, 1177 (C.D. Cal. 2002). This factor is normally satisfied where, as here, defendant has been properly served with the complaint, but has entirely failed to respond to it.1 If plaintiff's application for default judgment were denied, the case would never get before the court on its merits, and plaintiff would be denied a judicial determination on whether it is entitled to recourse on its claim. See Philip Morris USA, Inc. v. Castworld Prods., Inc., 219 F.R.D. 494, 499 (C.D. Cal. 2003) ("prejudice" exists where the plaintiff has no "recourse for recovery" other than default judgment). Therefore, plaintiff would be prejudiced if the Court were to deny its application for default judgment, and accordingly this factor weighs in favor of default judgment.

B. The Merits and Sufficiency of the Complaint

Given the close relationship between the merits of plaintiff's substantive claims and the sufficiency of the complaint, these factors can be discussed jointly. Effectively, factors two and three amount to a requirement that the allegations in the complaint be sufficient to state a claim that supports the relief sought. See Danning v. Lavine, 572 F.2d 1386, 1388 (9th Cir. 1978) (in considering default judgment, "[t]he issue . . . is whether the allegations in the complaint are sufficient to state a claim").

1. Title III of the ADA

(a) Plaintiff is disabled.

Plaintiff alleges that he is "disabled" as defined by the ADA, in that as he "is a level C-5 quadriplegic . . . [who] cannot walk and also has significant manual dexterity impairments, . . . [and who] uses a wheelchair for mobility and has a specially equipped van." Complaint ¶ 1; see Molski v. M.J. Cable, Inc., 481 F.3d 724, 732 (9th Cir. 2007) ("[i]t is clear that Molski, who is paraplegic, falls within that term").

(b) Public accommodation.

Plaintiff alleges that Circle 7 is a public accommodation, in that it "is a facility open to the public," and is "a business establishment." See 42 U.S.C. § 12181(7) (listing types of establishments that are "public accommodations," including a "bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment");2 28 C.F.R. § 36.104 (implementing regulation) (same); see also, Jankey v. Twentieth Century Fox Film Corp., 212 F.3d 1159, 1161 (9th Cir. 2000) (Title III only applies if the establishment is open to the public).

Plaintiff sufficiently alleges that defendants are private entities, by alleging that they are business owners and joint venturers. Complaint ¶¶ 14-26; see 42 U.S.C.A. § 12181 ("private entity" is entity that is not a state or local government or agency). This "joint" allegation also sufficiently alleges that Atwal, the business owner, is liable for the Title III violations, along with Lababedy, the landlord.

(c) Discrimination

(i) Inaccessible parking

As noted, discrimination under Title III "includes `a failure to remove architectural barriers ... in existing facilities ... where such removal is readily achievable.'" Molski, 481 F.3d at 730 (quoting § 12182(b)(2)(A)(iv)). The implementing regulations establish that failure to "creat[e] designated accessible parking spaces" is a failure to remove architectural barriers, where doing so is "readily achievable." 28 C.F.R. § 36.304(b)(18). Plaintiff argues that whether a parking space is accessible is "determined by reference to the American[s] with Disabilities Act Accessibility Guidelines (`ADAAG')." ECF No. 13-1 at 9 (citing Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 945 (9th Cir. 2011) (en banc)).3 He further argues that the ADAAG requires that there be at least one accessible parking space, and at least one van-accessible parking space.

Plaintiff is correct, in regard to parking spaces, even though the ADAAG generally applies to new construction (and alterations of existing structures). In general, the cited ADAAG provisions — 1991 Standards § 4.1.2(5), 2010 Standards §§ 208, 208.2.4 — apply to the design and building of "new construction," which is not alleged to be involved here. See Chapman, 631 F.3d at 945 ("newly constructed facilities" must be "readily accessible," as defined by the ADAAG); 36 C.F.R. Part 36, App. C (section 4.1.2 of the 1991 Standards "addresses ... parking ... in new construction") (emphasis added); 36 C.F.R. Part 1191, App. B § 101.1 (the 2010 Standards "are to be applied during the design, construction, additions to, and alteration of ... facilities"), 101.2 ("this document," which includes the 2010 Standards, "does not address existing facilities unless altered at the discretion of a covered entity").

However, since the DOJ regulations specifically call for the creation of accessible parking "in existing facilities," 28 C.F.R. § 36.304(b)(18), it appears that the ADAAG standards do apply:

36 C.F.R. Part 1191, Appx. B § 101.2.

Under both the 1991 and 2010 ADAAG standards, any business that provides parking spaces must provide at least one accessible parking space conforming to the Guidelines' specifications. 28 C.F.R. pt. 36, App. D ("1991 Standards") § 4.1.2(5)(a); 36 C.F.R. pt. 1191, Appx. B & D (collectively, "2010 Standards") § 208.2.4 Under the 1991 standards, one in every eight accessible spaces, but not less than one, shall be designated "van accessible." 1991 Standards § 4.1.2(5)(b). Under the 2010 standards, at least one in every six accessible parking spaces shall be "van parking spaces." 2010 Standards § 208.2.4.

Plaintiff alleges that Circle 7 contains parking spaces, but none of them are accessible. However, rather than alleging facts showing that the parking spaces do not comply with the ADAAG, plaintiff alleges facts showing that the parking spaces do not comply with the California Building Code ("CBC"), specifically, Sections "1129B.4" and "1129B.3." See ECF No. 13-1 at 9-10.

However, there are no sections "1129B.4" or "1129B.3" in the current California Building Code.5 Moreover, even if those provisions still existed, or otherwise applied, plaintiff offers no convincing explanation for why failure to comply with them — rather than failure to comply with the ADAAG itself — amounts to a violation of the ADA.

Plaintiff seems to argue that an "Advisory" note to 2010 Standards § 502.3.3 requires the court to use the CBC in determining whether defendants have complied with the ADA.6 That is not correct. Advisory notes in the 2010 Standards are advisory, they do not themselves establish any enforceable requirements. 28 C.F.R. part 36, subpart D § 36.406(b) ("advisory notes ... contained in the 1991 Standards and 2010 Standards explain or illustrate the requirements of the rule; they do not establish enforceable requirements"); see also, Eiden v. Home Depot USA, Inc., 2006 WL 1490418 at *8, 2006 U.S. Dist. LEXIS 38423 at *26 (E.D. Cal. 2006) (Karlton, J.) (rejecting use of the California Building Code because "compliance with the ADAAG, and not another standard, constitutes compliance with the ADA requirements for new construction"). Therefore, persons trying to comply with the ADAAG "may" look to the CBC for guidance on how to ensure that access aisles are properly marked. However, the CBC requirements are not mandatory, and failure to comply with them does not amount to a violation of the ADA. Accordingly, the court examines the complaint to determine whether it alleges a violation of the ADAAG elsewhere.

First, plaintiff alleges that there were no accessible parking spaces. However, the only facts alleged in support of this conclusion are that "there was no `NO PARKING' lettering on the parking spaces designated for use by persons with disabilities," "there was a faded wheelchair logo in the designated handicap parking space," "there was no tow-away warning signage," and "there was no `Minimum Fine $250' signage." Complaint ¶¶ 235-38. None of these items shows that defendants have not complied with the ADAAG, or that they are in violation of the ADA.7

To the contrary, accessible parking spaces are only required to comply with the ADAAG standards. The 1991 Standards state that "[i]f parking spaces are provided for self-parking by employees or visitors, or both, then accessible spaces complying with 4.6 shall be provided in each such parking area"). See 1991 Standards § 4.1.2(5)(a). Section 4.6, in turn, does not require any of the items plaintiff complains are missing. See id. § 4.6. The 2010 Standards state that if there are parking spaces, at least one must be provided that complies with Section 502. 2010 Standards § 208.2. Section 502, in turn, does not require any of the items plaintiff complains are missing. See id. § 502. Plaintiff should not be granted a default judgment on the claim that there are no accessible parking spaces.

Second, plaintiff alleges that there was not a single designated van accessible parking space. Complaint ¶ 232. However, the only fact that plaintiff alleged in support of this conclusion is that "there was no diagonally-striped marking and blue border around the designated van parking space where an access aisle is supposed to exist." Complaint ¶ 234.8 Plaintiff has identified nothing in the ADAAG that requires such markings or borders. To the contrary, the van accessibility guidelines set forth in the ADAAG do not require the allegedly missing diagonal marking and blue border. See 1991 Standards § 4.6.4 (requiring signage only); 2010 Standards § 502.3 (requiring that "[a]ccess aisles ... be marked so as to discourage parking in them," but not specifying diagonal markings or a blue border to achieve this). Plaintiff should not be granted a default judgment on the claim that there are no van accessible parking spaces.

(ii) Inaccessible counter space — height

The DOJ regulations, specifically 28 C.F.R. § 36.304(b)(3), call for the elimination of excessively high transaction counters, inasmuch as the regulation identifies "[r]epositioning shelves," among the "[e]xamples of steps to remove barriers." See Johnson v. Wayside Property, Inc., 41 F.Supp.3d 973, 977 (E.D. Cal. 2014) (Shubb, J.) ("[t]he Department of Justice has promulgated a regulation in which it lists removal of all three barriers — inadequate handicapped parking, unlawful door hardware, and an excessively high transaction counter — as `examples of steps to remove barriers'") (citing 28 C.F.R. §§ 36.304(b)(3), (11), (18)). Therefore, the undersigned looks to the ADAAG to determine whether plaintiff has alleged that the counters are not in compliance, and therefore violate the ADA.

According to the ADAAG:

1991 Standards § 7.2(1); 2010 Standards § 904.4. Plaintiff alleges that defendants' facility violates these standards. Specifically, the complaint alleges that defendants' "cashier counter" was more than 36 inches in height, and thus in violation of ADAAG standards. The complaint also alleges that this barrier is "easily removed," and that making it accessible is "readily achievable." Complaint ¶ 226. Plaintiff is therefore entitled to a default judgment under Title III for the inaccessible cashier counter based upon its height.

(iii) Inaccessible counter space — clutter

The complaint alleges that the counter space was regularly cluttered with coolers and other merchandise exceeding 34 inches in height and 24 inches in depth, thus limiting the clear width of the counter to less than 36 inches. Plaintiff does not distinguish between this clutter and "architectural barriers," but he provides no authority for the proposition that clutter is an architectural barrier. It does not appear to be. See Chapman v. Pier 1 Imports (U.S.) Inc., 779 F.3d 1001, 1009 (9th Cir. 2015) ("items on the otherwise properly accessible sales counter depicted in Chapman's photographs were not a barrier to the use of the counter by persons with disabilities").

Rather, defendants' decision to leave a cooler and other stuff on the counter is a "policy, practice or procedure" that interferes with plaintiff's ability to access the counter. Indeed, the complaint states that "Defendants had a practice of placing coolers and other merchandise in front of the cashier counter." Complaint ¶¶ 167, 171, 175, 179, 183, 187, 191, 195, 199, 203, 207. As such, in order to state a claim regarding this clutter, plaintiff must allege that he requested a reasonable modification of the policy and that plaintiff failed make the modification. See Fortyune, 364 F.3d at 1082 (plaintiff must allege that defendants failed "to make a requested reasonable modification that was . . . necessary to accommodate the plaintiff's disability") (emphasis added). There is no such allegation in the complaint.9 Plaintiff is not entitled to default judgment on the "clutter" claim.

d. Alterations

The complaint alleges a violation of 42 U.S.C. § 12183(a)(2). However, that provision only applies to a defendant who is making an alteration to an existing structure. See Lemmons v. Ace Hardware Corp., 2014 WL 3107842 at *8, 2014 U.S. Dist. LEXIS 91347 at *24 (N.D. Cal. 2014) ("[t]he ADA requires that any alterations made after January 26, 1992, to an existing building be made `readily accessible to and useable by' individuals with disabilities `to the maximum extent feasible[.]' 42 U.S.C. § 12183(a)(2)"). The complaint does not allege that these defendants were making any alteration to any existing structure. Accordingly, this provision is not involved in this case, and plaintiff is not entitled to a default judgment.

2. California's Unruh Civil Rights Act

Because plaintiff has shown that defendants are in violation of Title III of the ADA, specifically, the failure to provide accessible counters of the proper height, he has also shown that defendants are in violation of the Unruh Civil Rights Act. Lentini v. California Center for the Arts, Escondido, 370 F.3d 837, 847 (9th Cir. 2004) ("a violation of the ADA is, per se, a violation of the Unruh Act"). Plaintiff is therefore entitled to a default judgment on this claim.

C. Sum of Money Involved

Under this Eitel factor, "the court must consider the amount of money at stake in relation to the seriousness of Defendant's conduct." PepsiCo, Inc. v. California Sec. Cans, 238 F.Supp.2d 1172, 1176-77 (C.D. Cal. 2002). Plaintiffs here seek a grand total of $4,000 plus attorney's fees. The complaint offers no information about the defendants' financial condition, so the court cannot tell if this is a significant amount of money to defendants. However, there is no evidence that defendants took any action after being served with the summons and complaint in order to avoid a judgment of this size. This court concludes that this factor weighs in favor of a default judgment.

D. Disputed Material Facts

This Eitel factor "considers the possibility of dispute as to any material facts in the case. Upon entry of default, all well-pleaded facts in the complaint are taken as true, except those relating to damages." Pepsico, 238 F. Supp. 2d at 1177. Here, there appear to be no material facts in dispute. This factor weighs in favor of a default judgment.

E. Excusable Neglect

This is another factor that is only fully in play if the requested default is because of an untimely pleading or is requested as a sanction. Here, defendants have made no appearance at all, so the court cannot tell if defendants have failed to appear because of excusable neglect. This factor does not weigh in favor of, or against, default judgment.

F. Policy Favoring Merits Determinations

This factor always weighs against default judgment, since a default judgment would preclude a judgment on the merits. However, it is not sufficient to avoid default judgment, or no default judgments could ever be granted, counter to the plain language of Fed. R. Civ. P. 55(b). This factor seems to be fully in play when defendants have at least responded to the lawsuit, and the question is whether a default judgment should be entered because of untimely pleading, or as a sanction. Here, where plaintiffs have stated a claim against both defendants, and defendants have failed to respond, this factor does not add any additional weigh in favor of, or against, default judgment.

V. ATTORNEY'S FEES & COSTS

Plaintiff requests attorney's fees under Title III of the ADA and the Unruh Civil Rights Act. Attorney's fee awards are calculated using the "lodestar" method whereby the hours reasonably spent in the litigation are multiplied by a reasonable hourly rate. Ferland v. Conrad Credit Corp., 244 F.3d 1145, 1149 n.4 (9th Cir. 2001) (per curiam). The hourly rate is generally calculated "according to the prevailing market rates in the relevant legal community." Blum v. Stenson, 465 U.S. 886, 895 (1984). It is also the general rule that the court will use the rates of attorneys practicing in the forum district. Gates v. Deukmejian, 987 F.2d 1392, 1405 (9th Cir. 1993).

Plaintiff requests attorney fees at an hourly rate of $425 for 9.2 hours of work, plus $440 in filing fees and service costs, totaling $4,350. ECF No. 13-4 ¶ 5. Plaintiff claims that this is a fair rate for attorneys with similar experience in the area of disability law, but does not address the prevailing market rates in the forum district. Id. Instead, plaintiff discloses the rates awarded in the Southern and Central Districts of California. The undersigned finds that the prevailing rate is $250 per hour for the Sacramento Division of the Eastern District of California for similar services by lawyers of reasonably comparable skill, experience, and reputation. See Loskot v. D & K Spirits, LLC, 2011 WL 567364 at *5, 2011 U.S. Dist. LEXIS 15664 at *14 (E.D. Cal. 2011) (Drozd, M.J.) (citing Eastern District ADA cases resolved on default judgment where $250 was determined to be the reasonable rate). Accordingly, the undersigned will recommend that plaintiff be awarded $2,740 in attorney's fees and costs, based on an hourly rate of $250 for 9.2 hours, along with $440 in filing fees and costs.

VI. CONCLUSION

All the Eitel factors that are fully in play here — prejudice to plaintiff, the merits and sufficiency of the complaint, the sum of money involved, the absence of material factual disputes — weigh in favor of the default judgment on the one claim where plaintiff has stated a claim, namely the inaccessible counter claim. The other factors — excusable neglect, policy favoring merits determination — are not substantially in play, and do not weigh in favor of, or against default judgment.

Accordingly, IT IS HEREBY RECOMMENDED that plaintiff's motion for default judgment be granted in part and denied in part, as follows:

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 twenty-one 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. Id.; see also Local Rule 304(b). Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any response to the objections shall be filed with the court and served on all parties within fourteen days after service of the objections. Local Rule 304(d). 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, 1156-57 (9th Cir. 1991).