Opinion
20-cv-04548-YGR (KAW)
02-02-2021
SCOTT JOHNSON, Plaintiff, v. NELSON CHAO, et al., Defendants.
REPORT AND RECOMMENDATION TO GRANT IN PART AND DENY IN PART MOTION FOR DEFAULT JUDGMENT RE: DKT. NO. 19
KANDIS A. WESTMORE, UNITED STATES MAGISTRATE JUDGE
Plaintiff Scott Johnson filed the instant suit against Defendants Nelson Chao and Ingrid Chao, asserting violations of the Americans with Disabilities Act (“ADA”) and Unruh Civil Rights Act. (Compl., Dkt. No. 1.) On September 20, 2020, Plaintiff filed a motion for default judgment. (Pl.'s Mot. for Default J., Dkt. No. 19.) On September 22, 2020, Plaintiff's motion for default judgment was referred to the undersigned for a report and recommendation. (Dkt. No. 22.)
Defendant did not file an opposition. The Court deems the matter suitable for disposition without a hearing pursuant to Civil Local Rule 7-1(b). Having considered the filings and relevant legal authority, the Court RECOMMENDS that Plaintiff's motion for default judgment be GRANTED IN PART and DENIED IN PART.
The Court also DISCHARGES the October 22, 2020 order to show cause based on Plaintiff's failure to file the required proposed order, as well as the December 10, 2020 order to show cause based on Plaintiff's failure to provide supplemental briefing. (Dkt. Nos. 25, 29.) As Plaintiff's counsel has been reminded of repeatedly, Plaintiff's counsel must comply with Court-ordered deadlines.
I. BACKGROUND
Plaintiff is a level C-5 quadriplegic who cannot walk and has significant manual dexterity impairments. (Compl. ¶ 1; Johnson Decl. ¶ 2, Dkt. No. 19-4.) Plaintiff uses a wheelchair for mobility and has a specially equipped van. (Compl. ¶ 1; Johnson Decl. ¶ 2.) Plaintiff has a disabled persons placard issued by the State of California, and drives a specially equipped and modified van that deploys a ramp so that he can wheel in and out of his vehicle. (Johnson Decl. ¶ 3.) Thus, Plaintiff requires a van accessible access aisle in order to safely transfer to and from his van. (Johnson Decl. ¶ 3.)
In January 2020, February 2020, and March 2020, Plaintiff visited La Costa restaurant at 1805 Alum Rock Avenue, San Jose, California. (Compl. ¶ 8.) Plaintiff sought to avail himself of La Costa's goods and to determine if Defendants complied with disability access laws. (Compl. ¶ 8.) Defendants own the real property at which La Costa is located. (Compl. ¶¶ 2-3.)
When Plaintiff visited, there was inadequate wheelchair accessible parking and no wheelchair accessible sales and service counters. (Compl. ¶¶ 10, 12.) Specifically, there was only one accessible parking space, which measured 108 inches in width, even though there were approximately 41 parking spaces. (Johnson Decl. ¶ 6.) The accessible parking space was not properly configured for van accessibility, and there was no “No Parking” warning in the access aisle. (Johnson Decl. ¶ 6.) Likewise, the sales and service counters were more than 36 inches in height and were, instead, about 39 inches in height. (Johnson Decl. ¶ 7.) Due to the lack of wheelchair accessible facilities, Plaintiff is deterred from visiting La Costa. (Compl. ¶ 19; Johnson Decl. ¶ 10.) Plaintiff asserts that he will return to La Costa to avail himself of its goods and to determine compliance with disability access laws once the barriers are removed. (Compl. ¶ 19; Johnson Decl. ¶ 11.) Plaintiff further states that he is in this area regularly and would like to return to La Costa. (Johnson Decl. ¶¶ 11-12.)
On July 9, 2020, Plaintiff filed the operative complaint, asserting violations of the ADA and Unruh Civil Rights Act. (See Compl.) On July 14, 2020, Defendant Ingrid Chao was personally served with the summons and complaint. (Dkt. No. 11.) Defendant Ingrid Chao's answer was due by August 4, 2020. On August 6, 2020, Plaintiff moved for entry of default as to Defendant Ingrid Chao. (Dkt. No. 12.) On August 7, 2020, the Clerk of the Court entered default as to Defendant Ingrid Chao. (Dkt. No. 13.)
On August 6, 2020, Defendant Nelson Chao was served by substitute service after two prior unsuccessful attempts. (Dkt. No. 14 at 3.) Specifically, on July 23, 2020, the summons and complaint were left with Defendant Ingrid Chao, Defendant Nelson Chao's spouse, at their home. (Id. at 1, 3.) The summons and complaint were then mailed on July 27, 2020. (Id. at 4.)Defendant Nelson Chao's answer was due by August 27, 2020. On August 31, 2020, Plaintiff moved for entry of default as to Defendant Nelson Chao. (Dkt. No. 16.) On September 2, 2020, the Clerk of the Court entered default as to Defendant Nelson Chao. (Dkt. No. 17.)
Service of the summons and complaint by substitute service is deemed complete on the tenth day after mailing. (Cal. Civ. Proc. Code § 415.20(a).)
On September 20, 2020, Plaintiff filed the instant motion for default judgment against Defendants, seeking $4,000 in statutory damages, $4,180 in attorney's fees, and $835 in costs. (Pl.'s Mot. for Default J. at 14, 20.) Plaintiff also seeks injunctive relief requiring Defendant to remove the unlawful barriers. (Id. at 11.) On September 21, 2020, Plaintiff mailed the motion to Defendants. (Dkt. No. 21-1.) As of the date of this order, Defendants have not appeared nor filed an opposition.
II. LEGAL STANDARD
Federal Rule of Civil Procedure 55(b)(2) permits a court to enter a final judgment in a case following a defendant's default. Shanghai Automation Instrument Co. v. Kuei, 194 F.Supp.2d 995, 999 (N.D. Cal. 2001). Whether to enter a judgment lies within the court's discretion. Id. (citing Draper v. Coombs, 792 F.2d 915, 924-25 (9th Cir. 1986)).
Before assessing the merits of a default judgment, a court must confirm that it has subject matter jurisdiction over the case and personal jurisdiction over the parties, as well as ensure the adequacy of service on the defendant. See In re Tuli, 172 F.3d 707, 712 (9th Cir. 1999). If the court finds these elements satisfied, it turns to the following factors (“the Eitel factors”) to determine whether it should grant a default judgment:
(1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff's substantive claim, (3) the sufficiency of the complaint, (4) the sum of money at stake in the action[, ] (5) the possibility of a dispute concerning material facts[, ] (6) whether the default was due to excusable neglect, and (7) the strong policy underlying the Federal Rules of Civil Procedure favoring decision on the merits.Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986) (citation omitted). Upon entry of default, all factual allegations within the complaint are accepted as true, except those allegations relating to the amount of damages. TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987). Where a default judgment is granted, the scope of relief “must not differ in kind from, or exceed in amount, what is demanded in the pleadings.” Fed. R. Civ. 54(c).
III. DISCUSSION
A. Jurisdictional Requirements
In considering whether to enter default judgment, a district court must first determine whether it has jurisdiction over the subject matter and the parties to the case. In re Tuli, 172 F.3d at 712 (“When entry of judgment is sought against a party who has failed to plead or otherwise defend, a district court has an affirmative duty to look into its jurisdiction over both the subject matter and the parties”). In his complaint, Plaintiff alleges a violation of a federal statute, the ADA, 42 U.S.C. § 12101 et seq. The Court thus has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331(a).
The Court has personal jurisdiction over Defendants own the real property at issue, located in San Jose. (See Compl. ¶¶ 2-3; Pl.'s Mot. for Default J., Exh. 5 at 9.) Additionally, Defendants reside in Cupertino, located in this district. (Pl.'s Mot. for Default J., Exh. 5 at 14.) Venue is also proper because the real property where the violation occurred is located in this district. (Compl. ¶¶ 2, 7.)
Finally, service of process was proper. Defendant Ingrid Chao was personally served, and Defendant Nelson Chao was served by substitute service, as shown by the proof of service. (Dkt. Nos. 11, 14.) Defendant Ingrid Chao's default was entered on August 7, 2020, and Defendant Nelson Chao's default was entered on September 2, 2020. (Dkt. Nos. 13, 17.)
B. Application to the Case at Bar
An analysis of the Eitel factors establishes that a default judgment is appropriate in this case.
i. Eitel Factor 1: Possibility of Prejudice to Plaintiff
If Plaintiff is not granted relief in this case, he will likely be left without other recourse. Such potential prejudice to Plaintiff militates in favor of granting a default judgment. See PepsiCo., Inc. v. Cal. Sec. Cans., 238 F.Supp.2d 1172, 1177 (C.D. Cal. 2002).
ii. Eitel Factors 2 and 3: Meritorious Claim Alleged in Complaint
Plaintiff brings claims under the ADA and Unruh Civil Rights Act.
a. ADA
Per Title III of the ADA, “[n]o individual shall be discriminated against on the basis of a disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” 42 U.S.C. § 12182(a). To succeed on an ADA claim, the plaintiff must demonstrate that: “(1) she is disabled within the meaning of the ADA; (2) the defendant is a private entity that owns, leases, or operates a place of public accommodations; and (3) the plaintiff was denied public accommodations by the defendant because of her disability.” Molski v. M.J. Cable, Inc., 481 F.3d 724, 730 (9th Cir. 2007).
As to this third element, “[t]he concept of ‘discrimination' under the ADA does not extend only to obviously exclusionary conduct . . . . Rather, the ADA proscribes more subtle forms of discrimination--such as difficult-to-navigate restrooms and hard-to-open doors--that interfere with disabled individuals' ‘full and equal enjoyment' or places of public accommodation.” Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 945 (9th Cir. 2011). Thus, “[d]iscrimination includes a failure to remove architectural barriers in existing facilities where such removal is readily achievable. Molski, 481 F.3d at 730. In particular, the ADAAG “lay out the technical structure requirement of places of public accommodations, ” providing objective standards for architectural features. Fortune v. Am. Multi-Cinema, Inc., 364 F.3d 1075, 1080-81 (9th Cir. 2004).
The Court finds that Plaintiff has established an ADA violation. First, Plaintiff is disabled, as he is a quadriplegic who has significant dexterity impairments. (Compl. ¶ 1.) Plaintiff uses a wheelchair for mobility and has a specially equipped van. (Compl. ¶ 1; Johnson Decl. ¶ 3.)
Second, Defendants are private entities that own the real property at which La Costa, a place of public accommodation, is located. (Compl. ¶¶ 2-3, 8; Johnson Decl. ¶ 5.) A restaurant is identified as a place of public accommodation and subject to Title III of the ADA. 42 U.S.C. § 12181(7)(B).
Finally, Plaintiff was denied public accommodations by Defendants because of his disability. First, the Court finds that Defendants failed to provide wheelchair accessible parking in compliance with both the 1991 and 2010 Americans with Disabilities Act Accessibilities Guidelines (“ADAAG”). (Compl. ¶¶ 10-12.) Specifically, there was only one handicapped parking spot in a 41-spot parking lot, which was 108 inches in width with an access aisle measuring 48 inches in width. (Johnson Decl. ¶ 6; Wegman Decl. ¶ 3.) Both the 1991 and 2010 ADAAG requires a minimum of two spots when there are a total of 26 to 50 parking spots. (1991 ADAAG § 4.1.2(5)(a); 2010 ADAAG § 208.2.) Additionally, the 1991 ADAAG requires that one in every eight accessible spaces shall be designated “van accessible” and be served by an access aisle measuring 96 inches wide minimum. (1991 ADAAG § 4.1.2(5)(b).) The 2010 ADAAG, in turn, requires that one in every six accessible spots must be a van parking space, which shall either be 132 inches wide or 96 inches wide where the access aisle is 96 inches. (2010 ADAAG §§ 208.2.4, 502.) As the parking spaces do not comply with the ADAAG, Defendants are in violation of the ADA. Ridola v. Chao, No. 16-cv-2246-BLF, 2018 U.S. Dist. LEXIS 84241, at *21 (N.D. Cal. May 18, 2018) (“a violation of the ADAAG constitutes a barrier under the ADA”).
The 1991 ADAAG “apply to construction completed before March 15, 2012, while the 2010 Standards apply to construction or alterations after that date.” Johnson v. Monterey & Rancho Plaza, No. 18-cv-5718-BLF, 2020 U.S. Dist. 184374, at *14 (N.D. Cal. Oct. 5, 2020). Here, it does not appear Plaintiff has provided evidence of construction or alterations made on March 15, 2012 or thereafter. Thus, the 1991 ADAAG would apply. Id. The 2010 ADAAG, however, “govern any injunction that the Court issues, as all remedial work will be undertaken after March 15, 2012.” Id. at *14-15.
Second, the Court finds that Defendants failed to provide compliant sales or transaction and service counters. (Compl. ¶ 13.) Specifically, the service counters were about 39 inches in height, with no lowered counter for use by persons in wheelchairs. (Johnson Decl. ¶ 7; Wegman Decl. ¶ 4.) The 1991 ADAAG requires that counters with cash registers be at most 36 inches in height. (1991 ADAAG § 7.2(1).) Likewise, the 2010 ADAAG requires that sales and service counters have a portion of surface that is at most 36 inches above the finish floor. (2010 ADAAG § 904.4.1.) Thus, the service counters do not comply with the ADAAG.
Additionally, the Court finds that removal of the architectural barriers is readily achievable. The Ninth Circuit has adopted a burden-shifting framework for evaluating whether removal is readily achievable. Lopez v. Catalina Channel Express, Inc., 974 F.3d 1030, 1035 (9th Cir. 2020). Under this framework, “the initial burden [is] on the plaintiff of plausibly showing how removal of an architectural barrier is readily achievable under the circumstances . . . .” Id. The defendant then “bears the ultimate burden of persuasion that the requested modification would fundamentally alter the nature of the public accommodation.” Id. at 1036. Here, Plaintiff alleges that the identified barriers are easily removed without much difficulty or expense, and that they are the types of barriers identified by the Department of Justice as presumably readily achievable to remove. (Compl. ¶ 18.) In supplemental briefing, Plaintiff further explains that providing a compliant service counter does not require lowering the whole counter but can be achieved by lowering a section of the counter, an adjacent counter, or table. (Supp. Briefing at 2, Dkt. No. 30.) Plaintiff also provides a proposal for adding a compliant parking space and signage, estimated at $386. (Supp. Briefing, Exh. 2.) Such an amount is not substantial. The Court finds that Plaintiff has satisfied his burden of showing that the architectural barriers at issue are readily achievable.
Accordingly, the Court finds that Plaintiff has sufficiently alleged an ADA claim as to the handicapped parking space and the service counter, and that Plaintiff personally encountered these barriers during his visits in 2020.
b. Unruh Civil Rights Act
“Any violation of the ADA necessarily constitutes a violation of the Unruh Act.” Molski, 481 F.3d at 731. Therefore, the Court finds that Plaintiff has sufficiently alleged an Unruh Act claim.
Accordingly, the second and third Eitel factors favor granting default judgment as to the barriers identified in the complaint.
iii. Eitel Factor 4: The Sum of Money at Stake
Under the fourth factor cited in Eitel, “the court must consider the amount of money at stake in relation to the seriousness of defendant's conduct.” PepsiCo, Inc., 238 F.Supp.2d at 1177; see also Philip Morris USA, Inc. v. Castworld Prods., Inc., 219 F.R.D. 494, 500 (C.D. Cal. 2003). “When the amount at stake is substantial or unreasonable in light of the allegations in the complaint, default judgment is disfavored.” Freligh v. Roc Asset Solutions, LLC, No. 16-cv-653-MEJ, 2016 WL 3748723, at *6 (N.D. Cal. June 8, 2016) (citing Eitel, 782 F.2d at 1472). “However, when the sum of money at stake is tailored to the specific misconduct of the defendant, default judgment may be appropriate.” Yelp Inc. v. Catron, 70 F.Supp.3d 1082, 1100 (N.D. Cal. 2014).
Here, Plaintiff seeks $4,000 in statutory damages and $5,015 in attorney's fees and costs. (Pl.'s Mot. for Default Judgment at 12.) Because this amount is not substantial, and the statutory damages are tied to Defendants' misconduct, this factor weighs in favor of default judgment. See Love v. Griffin, No. 18-cv-976-JSC, 2018 U.S. Dist. LEXIS 158355, at *12-13 (N.D. Cal. Aug. 20, 2018) (finding that this factor weighed in favor of default judgment where the plaintiff sought $9,195.00 in statutory damages under the Unruh Act and attorney's fees and costs).
As discussed below, the undersigned recommends that the attorney's fees sought be reduced due to excessive hourly rates.
iv. Eitel Factor 5: Low Possibility of Dispute Concerning Material Facts
The facts of this case are relatively straightforward, and Plaintiff has provided the Court with well-pleaded allegations supporting its claims. Moreover, because Defendants have not appeared in this lawsuit, the Court has no way to know if any of the facts alleged in the complaint would be disputed if this matter were litigated on the merits. This factor thus does not weigh against entry of a default judgment. See, e.g., Elektra Entm't Grp. Inc. v. Crawford, 266 F.R.D. 388, 393 (C.D. Cal. 2005) (“Because all allegations in a well-pleaded complaint are taken as true after the court clerk enters default judgment, there is only a remote possibility that any genuine issue of material fact exists.”); accord Philip Morris USA, Inc., 219 F.R.D, at 500; PepsiCo, Inc., 238 F.Supp.2d at 1177.
v. Eitel Factor 6: Excusable Neglect
The Court finds that there is no evidence of excusable neglect. Plaintiff served Defendants with the summons and complaint. (Dkt. Nos. 11, 14.) Plaintiff also served Defendants by mail with notice of the instant motion for default judgment. (See Dkt. No. 21-1.) Despite ample notice of this lawsuit and Plaintiff's intention to seek default judgment, Defendants have failed to appear in this action. Thus, the record supports a conclusion that Defendants have chosen not to defend this action, and not that the default resulted from excusable neglect. Accordingly, this Eitel factor favors the entry of a default judgment.
vi. Eitel Factor 7: Strong Policy Favoring Decisions on the Merits
Defendants were given an opportunity to have this dispute decided on the merits but did not respond to the Complaint. Defendants' failure to respond makes a decision on the merits impractical. The policy underlying the Federal Rules of Civil Procedure favoring a decision on the merits is outweighed by the other Eitel factors.
vii. Conclusion
The Court concludes that the Eitel factors favor the entry of default judgment. Accordingly, the Court recommends that Plaintiff's motion for default judgment be granted.
IV. RELIEF SOUGHT
A. Damages
Plaintiff seeks damages under the Unruh Act. “A violation of the right of any individual under the [ADA] shall also constitute a violation of this section.” Cal. Civil Code § 51(f). The Unruh Act allows for monetary damages, stating that: “Whoever denies, aids or incites a denial, or makes any discrimination or distinction contrary to Section 51 . . . is liable for each and every offense for the actual damages . . . 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 . . . .” Cal. Civil Code § 52(a). A victim of discrimination, however, “need not prove she suffered actual damages to recover the independent statutory damages of $4,000.” Molski, 481 F.3d at 731. Furthermore, “no showing of intentional discrimination is required where the Unruh Act violation is premised on an ADA violation” to award damages under the Unruh Act. Lentini v. Cal. Ctr. for the Arts, Escondido, 370 F.3d 837, 847 (9th Cir. 2004).
As discussed above, Plaintiff has established a violation of the ADA for his 2020 visits. Because Plaintiff has established a violation of the ADA, he has necessarily established a violation of the Unruh Act, and is therefore entitled to statutory damages of $4,000 for his visit, as well as attorney's fees. Plaintiff seeks only one statutory penalty of $4,000, which the Court recommends.
B. Injunctive Relief
Plaintiff requests an injunction to remove the unlawful barriers. (Plf.'s Mot. for Default Judgment at 13.) Injunctive relief is available under both the ADA and the Unruh Act. See Love, 2018 U.S. Dist. LEXIS 158355, at *15. For violations of the ADA's accessibility provisions, “injunctive relief 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). Moreover, a plaintiff need not satisfy “[t]he standard requirements for equitable relief . . . when an injunction is sought to prevent the violation of a federal statute [that] specifically provides for injunctive relief.” Moeller v. Taco Bell, 816 F.Supp.2d 831, 859 (N.D. Cal. 2011) (internal quotations and citation omitted). Thus, a plaintiff need only demonstrate that “certain barriers at [d]efendant's establishment violated the ADA and that removal of th[ose] barriers was ‘readily achievable'” in order to obtain an injunction. Moreno v. La Curacao, 463 Fed.Appx. 669, 670 (9th Cir. 2011) (quoting 42 U.S.C. § 12182(b)(2)(A)(iv)).
Here, the barrier does not appear to have been remedied yet, as the barrier existed as late as Plaintiff's March 2020 visits. (See Compl. ¶¶ 8.) As discussed more fully above, there is also no reason to believe these changes are not readily achievable; the cost of providing an accessible parking space is less than $400, and there are easy ways of providing compliant counter space, including providing a table. Accordingly, the Court recommends that Plaintiff's request for injunctive relief as to providing compliant accessible parking spaces and service counters be granted.
C. Attorney's Fees and Costs
To determine the appropriate lodestar amount, the reasonableness of the hourly billing rate must be assessed. Credit Managers Ass'n v. Kennesaw Life & Accident Ins. Co., 25 F.3d 743, 750 (9th Cir. 1994). In doing so, the court must look to the prevailing market rates in the relevant community for similar work by attorneys of comparable skill, experience, and reputation. Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 979 (9th Cir. 2008). Generally, the relevant community is the forum where the district court sits. Id. “[T]he burden is on the fee applicant to produce satisfactory evidence--in addition to the attorneys' own affidavits--that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.” Id. at 980 (internal quotation omitted).
i. Reasonable Hourly Rate
Plaintiff seeks attorney's fees of $4,180. (Pl.'s Mot. for Default J. at 14.) In support, Plaintiff provides a declaration by Russell Handy. (Handy Decl., Dkt. No. 19-3.) Attorney Handy's declaration includes summaries of the professional experience and qualifications of Attorneys Mark Potter, Attorney Handy, Amanda Seabock, and Fayth Gutierrez. (Handy Decl. ¶¶ 3-6.) The declaration also includes a billing statement describing the work performed by, and the hourly rates of, the attorneys listed above. (Handy Decl. at 7-9.)
Like many courts in this district, the Court finds that the billing rates sought are unreasonable. Attorneys Potter and Handy seek hourly rates of $650, Attorneys Seabock and Carson seek hourly rates of $500, and Attorney Gutierrez seeks an hourly rate of $400. (Handy Decl. at 8-9.) In support, Plaintiff's counsel relies on the declaration of Mr. O'Connor, who opines that “the most appropriate rate for partners' ADA services range from $450 to $750 per hour, despite recent awards as low as $400 to $425. The range of requested hourly rates of $500 to $650 for partners sought here is clearly reasonable.” (O'Connor Decl. ¶ 27, Dkt. No. 19-10.) Mr. O'Connor also opines that “the most appropriate range for associates' services range from $300 to $550 per hour, notwithstanding exceptional awards as low as $250. The hourly rates of $410 and $500 for associates sought here represents the median range of rates, below premium rates, and above the lowest level.” (O'Connor Decl. ¶ 27.) Plaintiff's counsel also points to Love v. Rivendell II, 18-cv-3907-EDL, as well as other courts outside this district which have awarded the requested rates. (Pl.'s Mot. for Default J. at 19.)
“When a party seeking fees submits declarations, courts must consider those declarations and cannot substitute that analysis by only considering previous fee awards.” Johnson v. Cala Stevens Creek/Monroe, No. 17-cv-4574-LHK, 2020 WL 2556989, at *4 (N.D. Cal. May 20, 2020). At the same time, the district court “must remember that ‘a reasonable fee is a fee that is sufficient to induce a capable attorney to undertake the representation of a meritorious civil rights case.'” Id. (quoting Vogel v. Harbor Plaza Ctr., LLC, 893 F.3d 1152, 1158 (9th Cir. 2018)). Thus, “[t]he purpose of granting fees . . . is both ‘to attract qualified counsel to civil rights cases and to avoid a windfall to counsel. The way to do so is to compensate counsel at the prevailing rate in the community for similar work; no more, no less.'” Id. (quoting Vogel, 893 F.3d at 1158 (internal modifications omitted)).
In Cala Stevens Creek/Monroe, the district court considered the O'Connor declaration, and explained that counsel's requested “rates are all on the higher end of O'Connor's claimed reasonable rates, and Plaintiff's counsel does not adequately justify these specific rates.” 2020 WL 2556989, at *4. Rather, “for attorneys with approximately 20 or more years of experience, courts have generally approved rates ranging from $350 to $495 in disability cases.” Id. (internal quotation omitted). Moreover, “[w]hen a matter ‘is a relatively simple one, involving straight-forward application of the law, and which does not present novel or difficult issues requiring a high level of skill or specialization,' courts have generally found that higher rates are unwarranted.” Id. at *6 (quoting Johnson v. Oakwood Ctr. LLC, No. 19-cv-1582-VKD, 2019 WL 7209040, at *13 (N.D. Cal. Dec. 27, 2019)).
Such is the case here. The work here was not complicated; Plaintiff's counsel has performed the same work in numerous cases, and the only motion practice here was an unopposed motion for default judgment. Indeed, “[t]he sheer number of ADA cases that Plaintiff's counsel is litigating simultaneously underscores the straightforward nature of Plaintiff's counsel's cases.” Cala Stevens Creek/Monroe, 2020 WL 2556989, at *6.
Further, Plaintiff's own expert recognizes that the lower end for reasonable ADA hourly rates in the Northern District of California is $450 for partners and $300 for associates. (O'Connor Decl. ¶ 27.) Such rates are consistent with rates recently awarded in this district. E.g., Cala Stevens Creek/Monroe, 2020 WL 2556989, at *7 (awarding hourly rates of $475 for Attorneys Potter and Handy, $350 for Attorneys Carson and Seabock, and $300 for attorneys who graduated in 2011); Johnson v. Baglietto, No. 19-cv-6206-TSH, 2020 WL 3065939, at *12 (N.D. Cal. May 21, 2020) (recommending award of hourly rate of $475 for Attorneys Potter and Handy, and $350 for Attorney Seabock); Johnson v. Monterey & Rancho Plaza, 2020 U.S. Dist. LEXIS 184374, at *39 (awarding hourly rates of $475 for Attorneys Handy and Potter, $350 for Attorney Seabock, and $250 for Attorney Gutierrez).
While Plaintiffs' counsel has received higher rates in Love v. Rivendell, “that lone order granting an unopposed motion does not accurately reflect the prevailing rate in the community for work similar to this action.” Johnson v. AutoZone, Inc., No. 17-cv-2941-PJH, 2019 WL 2288111, at *6 n.4. Instead, Love “cited cases that concerned work substantially different from the work performed in this action, ” including complex class actions. Id.; see also Cala Stevens Creek/Monroe, 2020 WL 2556989, at *5; Baird Lands, 2020 WL 3833278, at *5. Again, this case does not have nearly the same level of complexity.
“Finally, these rates are reasonable in this district because[, again, a] reasonable fee is a fee that is sufficient to induce a capable attorney to undertake the representation of a meritorious civil rights case.” Cala Stevens Creek/Monroe, 2020 WL 2556989, at *6 (internal quotation omitted). Given that Plaintiff's counsel has filed hundreds of ADA cases in this district and continues to do so despite the numerous decisions awarding lower hourly rates, “there is simply no evidence that rates of approximately $475 per hour for partners and approximately $300 to $350 per hour for associates are insufficient to induce capable attorneys to undertake ADA litigation in this district.” Id.; see also Baglietto, 2020 WL 3065939, at *11. Notably, since Cala Stevens Creek/Monroe was decided in May 2020, Plaintiff's counsel has filed at least 225 cases in this district. Thus, “awarding the fees requested by Plaintiff's counsel would be little more than a prohibited windfall.” Cala Stevens Creek/Monroe, 2020 WL 2556989, at *6.
Plaintiffs' counsel has filed at least 75 cases in 2021 alone.
Accordingly, having reviewed Plaintiff's declarations, case law from this district, and Ninth Circuit precedent, the Court recommends the award of hourly rates of $475 for Attorneys Potter and Handy, $350 for Attorney Seabock, and $300 for Attorney Gutierrez.
Attorney Gutierrez graduated in 2015 and does not appear to have special experience in ADA litigation. (See Handy Decl. ¶ 6.) Notably, Mr. O'Connor does not opine to Attorney Gutierrez's experience at all. (O'Connor Decl. ¶ 30.) Thus, a $300 hourly rate is appropriate, as it is within Mr. O'Connor's opined range and consistent with hourly rates awarded to associates with more experience in other cases in this district. See Cala Stevens Creek/Monroe, 2020 WL 2556989, at *7 (awarding hourly rates of $300 for attorneys who graduated in 2011).
ii. Hours
The Court has reviewed counsel's billing records and finds that the hours billed are appropriate. Accordingly, the Court recommends the award of the following attorney's fees:
| Attorney | Rate | Hours | Total: |
| M. Potter | $475 | 0.9 | $427.50 |
| R. Handy | $475 | 2.9 | $1,377.50 |
| A. Seabock | $350 | 0.7 | $245.00 |
| F. Gutierrez | $300 | 3.4 | $1,020.00 |
| $3,070.00 |
The Court finds that Plaintiff has submitted sufficient evidence in support of his request for costs, including $400 for an investigator, $400 in filing fees, and $35 in service costs. (Handy Decl. at 7.) The Court therefore recommends the award of $835 in costs, for a total of $3,905.
V. CONCLUSION
For the reasons set forth above, and for good cause shown, the Court RECOMMENDS that Plaintiffs motion be GRANTED IN PART AND DENIED IN PART. The Court recommends the award of $4,000 in statutory damages, $3,070 in attorney's fees, and $835 in costs.
Any party may file objections to this report and recommendation with the district judge within 14 days of being served with a copy. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); N.D. Civil L.R. 72-3. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. IBEW Local 595 Trust Funds v. ACS Controls Corp., No. C-10-5568, 2011 WL 1496056, at *3 (N.D. Cal. Apr. 20, 2011).
Plaintiff shall serve a copy of this report and recommendation on Defendants.
IT IS SO ORDERED.