-GGH Johnson v. Oak Meadows Associates, No. 2:2010cv03268 - Document 18 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 8/17/11 RECOMMENDING that Pltfs' motion for entry of default judgment be GRANTED as to Oak Meadows Associates in the amt of $8,000; and Injunctive relief be grant ed against dft Oak Meadows Associates requiring the correct no. and type of properly configured disabled parking space(s) including a van accessible disabled parking space, accessible route, accessibility signage, and striping, in conformity with th e Americans with Disabilities Act Accessibility Guidelines (ADAAG) as set forth in 28 Code of Federal Regulations, Part 36. Referred to Judge William B. Shubb; Objections due within 14 days after being served with these findings and recommendations. (Becknal, R)

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-GGH Johnson v. Oak Meadows Associates Doc. 18 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 SCOTT N. JOHNSON, 11 Plaintiff, 12 13 14 No. CIV S-10-3268 WBS GGH vs. OAK MEADOWS ASSOCIATES, Defendant. 15 FINDINGS AND RECOMMENDATIONS / 16 Plaintiff’s amended motion for default judgment against Defendant Oak Meadows 17 Associates, filed May 24, 2011, was submitted without a hearing. Defendant filed no opposition. 18 Upon review of the motion and supporting documents, and good cause appearing, the court 19 issues the following findings and recommendations. 20 BACKGROUND 21 On December 7, 2010, plaintiff filed the underlying complaint in this action 22 against defendant Oak Meadows Associates, owner of the apartment complex at issue, located at 23 12202 Fair Oaks Blvd., Fair Oaks, California. See Complaint, at pp. 2-3; Ex. B to Complaint. 24 Plaintiff alleges he initially visited the apartment complex, called Fair Oaks Meadows 25 Apartments, at this location, in May and November, 2010, but encountered architectural barriers 26 in the form of the lack of “a van accessible disabled parking space, accessible route, accessibility 1 Dockets.Justia.com 1 signage and striping.” (Complaint, at p. 3.) He asserts that these defects constitute violations of 2 the Americans With Disabilities Act and state law. Plaintiff alleges a total of three separate visits 3 to the subject premises. (Id. at 4.) The summons and complaint were served on Liz Marigold, an 4 office assistant at Oak Meadows Associates offices, who stated she could accept service on 5 December 29, 2010, followed up with service by U.S. Mail pursuant to state law. Fed. R. Civ. P. 6 4(h)(1); Cal. Code Civ. Proc. § 416.10. Pacific Atlantic Trading Co. v. M/V Main Express, 758 7 F.2d 1325, 1331 (9th Cir. 1985) (default judgment void without personal jurisdiction). 8 Defendant Oak Meadows Associates has failed to file an answer or otherwise defend in this 9 action. On February 28, 2011, the clerk entered default against defendant Oak Meadows 10 Associates. 11 The instant motion for default judgment and supporting papers were served on 12 defendant. Plaintiff seeks an entry of default judgment in the amount of $8,000 pursuant to 13 California Civil Code section 52(a) as well as injunctive relief.1 14 DISCUSSION 15 Entry of default effects an admission of all well-pleaded allegations of the 16 complaint by the defaulted party. Geddes v. United Financial Group, 559 F.2d 557 (9th Cir. 17 1977). The court finds the well pleaded allegations of the complaint state a claim for which 18 relief can be granted. Anderson v. Air West, 542 F.2d 1090, 1093 (9th Cir. 1976). The 19 memorandum of points and authorities and affidavits filed in support of the motion for entry of 20 default judgment also support the finding that plaintiff is entitled to the relief requested. There 21 are no policy considerations which preclude the entry of default judgment of the type requested. 22 23 24 25 26 1 Cal.Civil 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.” 2 1 See Eitel v. McCool, 782 F.2d 1470, 1471-1472 (9th Cir. 1986). 2 CONCLUSION 3 In view of the foregoing findings, it is the recommendation of this court that: 4 1. Plaintiffs’ motion for entry of default judgment be GRANTED as to Oak 5 6 Meadows Associates in the amount of $8,000; and 2. Injunctive relief be granted against defendant Oak Meadows Associates 7 requiring the correct number and type of properly configured disabled parking space(s) including 8 a van accessible disabled parking space, accessible route, accessibility signage, and striping, in 9 conformity with the Americans with Disabilities Act Accessibility Guidelines (ADAAG) as set 10 11 forth in 28 Code of Federal Regulations, Part 36. These findings and recommendations are submitted to the United States District 12 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 13 fourteen days after being served with these findings and recommendations, any party may file 14 written objections with the court and serve a copy on all parties. Such a document should be 15 captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the 16 objections shall be served and filed within seven days after service of the objections. The parties 17 are advised that failure to file objections within the specified time may waive the right to appeal 18 the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 19 DATED: August 17, 2011 /s/ Gregory G. Hollows UNITED STATES MAGISTRATE JUDGE 20 21 GGH:076/Johnson3268.def.wpd 22 23 24 25 26 3

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