Judge: Salvatore Sirna, Case: 23PSCV01863, Date: 2024-02-20 Tentative Ruling

The Court may change tentative rulings at any time. Therefore, counsel are advised to check this website periodically to determine whether any changes or updates have been made to the tentative ruling. Counsel may submit on a tentative ruling by calling the clerk in Department G at (909) 802-1104 prior to 8:30 a.m. the morning of the hearing.

Case Number: 23PSCV01863    Hearing Date: February 20, 2024    Dept: G

Plaintiff James Rutherford’s Application for Default Judgment

Respondent: NO OPPOSITION

TENTATIVE RULING

Plaintiff James Rutherford’s Application for Default Judgment is GRANTED in the reduced amount of $5,834.

BACKGROUND

This is a disability rights action. Plaintiff James Rutherford is physically disabled and relies on mobility devices such as wheelchairs to ambulate. Defendant Chang Chih Int’l Investment LLC (Chang Chih) allegedly owns a property in Diamond Bar upon which Peacock Gardens Cuisine is located. In May 2023, Rutherford visited Peacock Gardens Cuisine for the purpose of making a purchase and conducting disability access testing. Rutherford alleges the following barriers to access existed, including a lack of ADA-compliant designated parking spaces, non-compliant cross slopes on ramps, non-compliant landings on curb ramps, non-compliant sloping of walking surfaces, and lack of handrails.

On June 22, 2023, Rutherford filed a complaint against Chang Chih and Does 1-10, alleging violations of the Unruh Civil Rights Act (UCRA). On August 8, Rutherford’s process server served Chang Chih with substitute service in Diamond Bar.

On September 29, 2023, default was entered against Chang Chih. On February 9, 2024, Rutherford submitted the present application for default judgment.

An OSC Re: Default and Default Judgment is set for February 20, 2024.

LEGAL STANDARD

Code of Civil Procedure section 585 permits entry of a default judgment after a party has filed to timely respond or appear.  A party seeking judgment on the default by the court must file a Request for Court Judgment, and: (1) a brief summary of the case; (2) declarations or other admissible evidence in support of the judgment requested; (3) interest computations as necessary; (4) a memorandum of costs and disbursements; (5) a proposed form of judgment; (6) a dismissal of all parties against whom judgment is not sought or an application for separate judgment under CCP § 579, supported by a showing of grounds for each judgment; (7) exhibits as necessary; and (8) a request for attorneys’ fees if allowed by statute or by the agreement of the parties.  (Cal. Rules of Court 3.1800.)

ANALYSIS

Rutherford seeks default judgment against Chang Chih in the total amount of $10,074, including $8,000 in damages, $570 in attorney fees, and $1,504 in costs. Because the court finds Rutherford has submitted sufficient evidence, the court GRANTS Rutherford’s application for default judgment with the following modifications.

In addition to $4,000 in statutory damages for the alleged violations, Rutherford also seeks $4,000 in deterrence damages. Generally, a plaintiff may obtain statutory damages for UCRA violations “if the plaintiff personally encountered the violation on a particular occasion, or the plaintiff was deterred from accessing a place of public accommodation on a particular occasion.” (Civ. Code, § 55.56, subd. (b).) To establish that a plaintiff was deterred, plaintiff must establish that plaintiff had actual knowledge of the violations and that the violations would have denied plaintiff “full and equal access” on that occasion. (Civ. Code, § 55.56, subd. (d).)

Courts have awarded deterrence damages in addition to statutory damages for UCRA violations when plaintiffs seek damages for one encounter with violations and one instance of deterrence. (See, e.g., Johnson v. Guedoir (E.D. Cal. 2016) 218 F.Supp.3d 1096, 1103.) But courts have declined to award additional deterrence damages when plaintiffs fail to establish they were deterred on a specific occasion and instead rely on a conclusory claim that they were deterred from patronizing a business. (Filardi v. Starbucks # 8709(C.D. Cal. July 5, 2018, No. 5:18–CV–00404–ODW–SP) 2018 WL 3303316, *4;Ho v. BSG Sunflower Investments, LLC(C.D. Cal. Nov. 30, 2017, No. 8:17-cv-00863-JLS-JCG) 2017 WL 11633694, *7.)

Here, Rutherford makes the conclusory allegation that the barriers encountered deterred Rutherford from visiting Peacock Gardens Cuisine again, but Rutherford fails to establish how Rutherford was deterred from visiting on a specific occasion. (Complaint, ¶ 23; Rutherford Decl., ¶ 7, 9.) Accordingly, the court declines to award deterrence damages.  The court reduces the award of attorney fees accordingly to $330.

CONCLUSION

Based on the foregoing, Rutherford’s application for default judgment is GRANTED in the reduced amount of $5,834.