Judge Bruce G. Iwasaki, Case Number: 23STCV17045, Date: 2024-05-08 Tentative Ruling

Tentative Ruling: The Default Judgment Application is denied.

This is a case for violation of 2010 ADA Standards for Accessible Design whereby Plaintiff Brian Whitaker (“Whitaker” or “Plaintiff”) sues Defendant Leopardo (“Defendant”) for violations of the Unruh Civil Rights Act and the California Disabled Persons Act. The Complaint alleges that Plaintiff went to Defendant Leopardo’s restaurant, Del Terra (“Restaurant”) located on 7675 Beverly Boulevard, Los Angeles, CA in May of 2023 with the intent of availing himself to the goods and services of the Restaurant, as well as to determine if Defendant’s Restaurant complied with the disability access laws. The Complaint alleges that on the date of Plaintiff’s visit, the Restaurant failed to comply with ADA Standards as it relates to wheelchair users like Plaintiff, specifically, that there “was not enough toe clearance under the outside dining surfaces.”

The clerk entered default against Defendant on April 16, 2024, and the Doe Defendants were dismissed on April 17, 2024.

Plaintiff sues under the Unruh Civil Rights Act California Civil Code sections 51-53, and the Americans with Disabilities Act (“ADA”).

“The ADA permits a disabled individual denied access to public accommodations to recover damages in a government enforcement action only, not through a private action by the aggrieved person. But by incorporating the ADA into the Unruh Civil Rights Act, California's own civil rights law covering public accommodations, which does provide for such a private damages action, the Legislature has afforded this remedy to persons injured by a violation of the ADA. The legislative history shows the Legislature contemplated and intended this effect, for, as both the legislative committee reports quoted above state, one purpose of the legislation was to “provid[e] persons injured by a violation of the ADA with the remedies provided by the Unruh Act,” including a “right of private action for damages.” (Munson v. Del Taco, Inc. (2009) 46 Cal. 4th 661, 673.)

Plaintiff’s suit similarly relies on United States Code sections 12182-12183. 42 U.S.C. § 12182-12183:

“Discrimination under the ADA 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).) Moreover, ‘where an entity can demonstrate that the removal of a barrier ... is not readily achievable, a failure to make such goods, services, facilities, privileges, advantages, or accommodations available through alternative methods’ is discrimination, ‘if such methods are readily achievable.’” (42 U.S.C. § 12182(b)(2)(A)(v).). (Californians for Disability Rts. v. Mervyn's LLC (2008)165 Cal. App. 4th 571, 591.)

“The term ‘readily achievable’ means easily accomplishable and able to be carried out without much difficulty or expense. In determining whether an action is readily achievable, factors to be considered include—[ (A) the nature and cost of the action needed under this chapter; (B) the overall financial resources of the facility or facilities involved in the action; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such action upon the operation of the facility; (C) the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities; and (D) the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative or fiscal relationship of the facility or facilities in question to the covered entity.” (42 U.S.C. § 12181(9).)

Additionally, Plaintiff sues under the California Disabled Persons Act (“CDPA”) which guarantees that persons with disabilities are entitled to full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever within the jurisdiction of the State of California. (Cal. Civ. Code § 54.1.)

The Court is required to render default judgment only “for that relief … as appears by the evidence to be just.” (Code Civ. Proc., § 585 subd. (b).) Therefore, it is up to plaintiff to “prove up” the right to relief, by introducing sufficient evidence to support his or her claim. Without such evidence, the court may refuse to grant a default judgment for any amount, notwithstanding defendant’s default. (Taliaferro v. Hoogs (1963) 219 Cal.App.2d 559, 560; see also Holloway v. Quetel (2015) 242 Cal.App.4th 1425, 1434-1435 [finding trial court did not err in refusing to enter default judgment for pro per plaintiff who failed to submit appropriate supporting documentation, but court did fail to give “neutral (and accurate) guidance” about default requirements].)

The Complaint alleges that on the day Plaintiff visited the Restaurant, the Restaurant failed to comply with ADA standards because the Restaurant’s outdoor dining surfaces did not provide enough toe clearance for a wheelchair user. (Complaint ¶¶ 10- 11.) Plaintiff submitted three Declarations In Support of Default: (1) the Declaration of Plaintiff Brian Whitaker (“Plaintiff’s Declaration”); (2) the Declaration of Robert Marquis the Investigator (“Investigator’s Declaration”); and (3) the Declaration of Prathima Reddy Price (“Price’s Declaration”) who is one of Plaintiff’s attorneys of record.

In weighing Plaintiff’s proffered evidence, it is not clear that the photos depicted in Plaintiff’s Declaration match the photos of the restaurant depicted in the Investigator’s Declaration. The two declarations appear to contain exhibits of photos containing tables from two different restaurants. More important, it cannot be determined which table presented a problem for Plaintiff, what that problem was, and whether any request for an accommodation was made. The submissions do not set forth the investigator’s qualifications or which table in the photograph corresponds to the measurements recited in the Investigator’s Declaration, and whether it was the one used by Plaintiff. (Investigator Decl. ¶ 4.) Additionally, the Investigator’s Declaration accounts for a total of nine tables (Investigator Decl. ¶ 4.) and the pictures from both declarations depict more than nine tables, meaning it is unclear whether the remaining tables could accommodate Plaintiff.[1]

Because Plaintiff fails to submit evidence justifying the Judgment, the request for a default judgment is denied.

[1] Lastly, the relevance of the Price Declaration is unclear. Page twelve appears to depict search results 7675 Beverley Boulevard, Los Angeles, CA 90036. (Price Decl. at 12, Ex. 1) However, page sixteen depicts a photograph labeled “7667 Beverley Boulevard,” along with the following page listing the primary owner of the 7667 property as a “Hannah Gamson.”

Department 58