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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

SCOTT JOHNSON,

Plaintiff,

v.

THE NORMAN and EDITH HILL

TRUST, PAIMAN RAHBARIAN,

Defendants.

CIV S-04-0699 LKK PAN 

FINDINGS AND RECOMMENDATIONS

-oOoPlaintiff moves for default judgment against Paiman

Rahbarian, following the Clerk’s entry of default June 30, 2005. 

Rahbarian twice appeared in this action, filing an answer

July 30, 2004, and a status report August 25, 2004. Plaintiff

served defendant and his counsel with notice of the motion for

default judgment, as required by Fed. R. Civ. P. 55(b)(2). The

hearing on plaintiff’s motion was convened October 12, 2005, but

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26 1 Although prospective new counsel for defendant telephoned my

courtroom clerk prior to the hearing, no substitution of counsel was

filed nor further contact made with the court.

2

neither defendant nor his counsel appeared.1 The court submitted

plaintiff’s motion for decision on the papers pursuant to E. D.

Cal. L. R. 78-230(h); no further papers have been filed by either

party. 

Plaintiff’s first amended complaint, filed May 11, 2004,

seeks injunctive relief, damages and attorney fees under Title

III of the Americans with Disabilities Act, 42 U.S.C. § 12101 et

seq., the California Disabled Persons Act, Cal. Civ. Code § 54.1,

and the California Unruh Civil Rights Act, Cal. Civ. Code §51-53,

due to defendant’s failure to remove architectural barriers and

make accessible his massage business known as the “Chalet,”

located at 2128 Marconi Avenue, Sacramento, California. 

Plaintiff, who requires a wheelchair for ambulation, alleges he

drove to the Chalet on August 6, 2003, but could not patronize it

due to lack of accessible parking and lack of access from the

parking lot to the entrance of the building.

Plaintiff has stated a prima facie case under Title III of

the ADA, viz.: (1) he is disabled; (2) defendant’s business is a

place of public accommodation; (3) plaintiff was denied access to

defendant’s business because of plaintiff’s disability; (4)

defendant’s business has architectural barriers the removal of

which is “readily achievable.” 42 U.S.C. § 12182; Parr v. L & L

Drive-Inn Restaurant, 96 F.Supp.2d 1065, 1085 (D.Hawaii 2000). 

Plaintiff’s motion for default judgment is supported by the

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3

declarations of plaintiff, his counsel and their expert, a

memorandum of points and authorities and a proposed order.

There is no matter of right to the entry of a default

judgment and it is within the court’s reasonable discretion, even

when the defendant is technically in default. Lewis v. Lynn, 236

F.3d 766, 767 (5th Cir. 2001); Draper v. Coombs, 792 F.2d 915,

924 (9th Cir. 1986); Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th

Cir. 1980). The court has considered the possibility of

prejudice to the plaintiff, the merits of plaintiff’s claim, the

sufficiency of the complaint, the sum of money at stake, the

possibility of a legitimate dispute about material facts, whether

defendants’ default was due to excusable neglect, and the strong

policy underlying the Federal Rules of Civil Procedure favoring

decisions on the merits, see Eitel v. McCool, 782 F.2d 1470, 1472

(9th Cir. 1986), and finds that default judgment for injunctive

relief and damages is appropriate.

Defendant should be directed to remove the following

barriers and make the following accommodations at the Chalet

within 90 days of service of judgment:

1. Create 96-inch-wide access aisle on passenger side of

accessible space, with striping as required by Cal.

Bldg. Code § 1129B.4 and the words “NO PARKING” painted

in the access aisle in 12-inch letters.

2. Post the tow-away sign required by Cal. Bldg. Code

§ 1129B.5 at each entrance or adjacent to the

accessible parking space.

3. Mount a sign with the International Symbol of

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2 Cal. Civ. Code § 52(a) provides: “Whoever denies, aids or

incites a denial, or makes any discrimination or distinction contrary to

Section 51, 51.5, or 51.6, is liable for each and every offense for the

actual damages, and any amount that may be determined by a jury, or a

court sitting without a jury, up to a maximum of three times the amount

of actual damage but in no case less than four thousand dollars

($4,000), and any attorney's fees that may be determined by the court in

addition thereto, suffered by any person denied the rights provided in

Section 51, 51.5, or 51.6.”

Cal. Civ. Code § 52 provides a damage remedy for violations of

Cal. Civ. Code § 51 et seq., the Unruh Civil Rights Act, which include

“[a] violation of the right of any individual under the Americans with

4

Accessibility which complies with Cal. Bldg. Code

§ 1129B.5 on the fence at the front of the

accessible parking space. Mount a separate “Van

Accessible” sign immediately below.

4. Install a ramp from the parking lot to the

entrance which complies with ADA Accessibility

Guideline 4.8 and Cal. Bldg. Code § 1129B.33.5.

5. Securely fasten the porch floor mats to the porch,

or replace the existing mats with mats that grip

the floor.

6. Install handrails which comply with ADA 

Accessibility Guideline 4.9 and Cal. Bldg. Code §

1106.

7. Install a threshold which provides a level

transition from the porch to the interior of the

building which complies with ADA Accessibility

Guideline 4.1.6(3)(d)(ii), ADA Accessibility

Guideline 4.5.2 and Cal. Bldg. Code § 1133B.2.4.1.

In addition, plaintiff should be awarded damages of $4000,

the statutory minimum under Cal. Civ. Code § 52(a)2 for the

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Disabilities Act. . .”

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single occasion plaintiff was denied access to the Chalet. 

Plaintiff seeks reasonable attorney fees and costs pursuant

to separate motion. See 42 U.S.C. §12205 (“In any action or

administrative proceeding commenced pursuant to this chapter, the

court or agency, in its discretion, may allow the prevailing

party, other than the United States, a reasonable attorney’s fee,

including litigation expenses, and costs. . .”). The request is

reasonable and should be granted. 

Accordingly, I recommend that plaintiff’s motion for entry

of default judgment be granted; judgment should be rendered in

the form of an injunction directing defendant Rahbarian to

remove, within 90 days of entry of judgment, the above-noted

architectural barriers that prohibit plaintiff from accessing the

services of defendant’s public accommodation, the Chalet, and for

damages in the amount of $4000.00. Plaintiff should be granted

leave to file a motion for reasonable attorney fees and costs

within 30 days of entry of judgment.

These findings and recommendations are submitted to the

Honorable Lawrence K. Karlton, the United States District Judge

assigned to this case. 28 U.S.C. § 636(b)(l). Written

objections may be filed within ten days after being served with

these findings and recommendations. The document should be

captioned “Objections to Magistrate Judge’s Findings and

Recommendations.” The failure to file objections within the

specified time may waive the right to appeal the District Court’s

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order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

Dated: January 19, 2006. 

 /s/ Peter A. Nowinski 

 PETER A. NOWINSKI

 Magistrate Judge

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