Juan Moreno v. La Curacao

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NOT FOR PUBLICATION DEC 23 2011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.