Juan Moreno v. La Curacao , 463 F. App'x 669 ( 2011 )


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  •                                                                            FILED
    NOT FOR PUBLICATION                             DEC 23 2011
    MOLLY C. DWYER, CLERK
    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS
    FOR THE NINTH CIRCUIT
    JUAN MORENO,                                     No. 10-56593
    Plaintiff - Appellant,             D.C. No. 2:10-cv-01492-ODW-
    FMO
    v.
    LA CURACAO, a California Corporation;            MEMORANDUM *
    et al.,
    Defendants - Appellees.
    Appeal from the United States District Court
    for the Central District of California
    Otis D. Wright, District Judge, Presiding
    Submitted December 5, 2011 **
    Pasadena, California
    Before: PREGERSON and MURGUIA, Circuit Judges, and CONLON, District
    Judge.***
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by 9th Cir. R. 36-3.
    **
    The panel unanimously concludes this case is suitable for decision
    without oral argument. See Fed. R. App. P. 34(a)(2).
    ***
    The Honorable Suzanne B. Conlon, United States District Judge for
    the Northern District of Illinois, sitting by designation.
    Plaintiff-Appellant Juan Moreno appeals the district court's grant in part of
    his motion for a default judgment in his action under Title III of the Americans
    with Disabilities Act (“ADA”), 
    42 U.S.C. §§ 12181-12189
    , and California's Unruh
    Civil Rights Act, California Civil Code § 51. Plaintiff, who requires a wheelchair
    for mobility, alleged that physical barriers impeded his access to Defendant La
    Curacao Home Furnishings Store in South Gate, California. Plaintiff requested a
    mandatory injunction requiring Defendant to alter the subject premises so that it
    would comply with the ADA Accessibility Guidelines.
    This Court reviews the district court's decision whether to grant equitable
    relief under the ADA for an abuse of discretion. Molski v. Foley Estates Vineyard
    and Winery, LLC, 
    531 F.3d 1043
    , 1046 (9th Cir. 2008). The Court will not reverse
    unless the district court “fails to apply the correct law or . . . rests its decision on a
    clearly erroneous finding of material fact.” Bird v. Lewis & Clark Coll., 
    303 F.3d 1015
    , 1020 (9th Cir. 2002) (alteration in original) (quoting Levi Strauss & Co. v.
    Shilon, 
    121 F.3d 1309
    , 1313 (9th Cir. 1997)).
    In applying Title II standards to this Title III case, the district court “fail[ed]
    to apply the correct law” in denying the requested injunction. Bird, 
    303 F.3d at 1020
    . The district court characterized Defendant’s retail establishment as a “public
    entity” and thus relied on Title II standards that govern public, or governmental,
    2
    entities in denying Plaintiff’s application for a mandatory injunction. See 28 C.F.R
    § 35.150 (addressing program accessibility in state and local government services).
    Defendant’s establishment, however, is a “public accommodation” under the ADA
    and thus governed by Title III. See 
    42 U.S.C. § 12181
    (7)(E)(considering a
    “shopping center, or other sales or rental establishment” to be a public
    accommodation for purposes of Title III).
    The district court having determined that certain barriers at Defendant’s
    establishment violated the ADA and that removal of these barriers was “readily
    achievable,” see 
    42 U.S.C. § 12182
    (b)(2)(A)(iv), Plaintiff was entitled to
    injunctive relief, which “shall include an order to alter facilities to make such
    facilities readily accessible to and usable by individuals with disabilities.” 
    42 U.S.C. § 12188
    (a)(2). Accordingly, the district court erred in denying Plaintiff’s
    request for a mandatory injunction.
    We review a district court's award of attorney’s fees for an abuse of
    discretion. Parent V.S. ex rel. Student A.O. v. Los Gatos-Saratoga Joint Union
    High Sch. Dist., 
    484 F.3d 1230
    , 1232 (9th Cir. 2007). Plaintiff takes issue with the
    district court’s use of the default fee schedule set forth in Local Rule 55 in
    awarding Plaintiff attorney’s fees. Although Plaintiff considers the $600 attorney
    fee award to be inadequate, in light of the fact that this action resulted in a default
    3
    judgment, the district court did not abuse its discretion in awarding attorney’s fees
    under the default fee schedule.
    Accordingly, the district court’s award of attorney’s fees is affirmed. The
    district court’s denial of Plaintiff’s application for a mandatory injunction is
    reversed and the case is remanded to the district court to enter an appropriate
    order granting Plaintiff’s request for a mandatory injunction.
    4
    

Document Info

Docket Number: 10-56593

Citation Numbers: 463 F. App'x 669

Judges: Conlon, Murguia, Pregerson

Filed Date: 12/23/2011

Precedential Status: Non-Precedential

Modified Date: 8/5/2023