Opinion
19-cv-03240-JSC
02-03-2021
SAMUEL LOVE, Plaintiff, v. HUONG Q. TRUONG, Defendant.
ORDER OF REASSIGNMENT AND REPORT AND RECOMMENDATION RE: PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT RE: DKT. NO. 16
JACQUELINE SCOTT CORLEY United States Magistrate Judge
Samuel Love filed suit against Defendant Huong Q. Truong alleging violations of the Americans with Disabilities Act (“ADA”) and California's Unruh Civil Rights Act. (Dkt. No. 17-1 at 6, 18.) The Clerk entered default against Defendant on June 11, 2020. (Dkt. No. 23.) Plaintiff's unopposed motion for default judgment pursuant to Federal Rule of Civil Procedure 55(b)(2) is now pending before the Court. (Dkt. No. 26.) As Defendant has not appeared, the Court has not obtained his consent pursuant to 28 U.S.C. § 636; accordingly, this matter must be reassigned to a District Judge. Having reviewed the motion for default judgment and supporting evidence, the Court VACATES the February 11, 2021 hearing, see N.D. Cal. Civ. L.R. 7-1(b), and recommends that Plaintiff's motion for default judgment be GRANTED for the reasons set forth below.
Record citations are to materials in the Electronic Case File (“ECF”); pinpoint citations are to the ECF-generated page numbers at the top of the documents.
BACKGROUND
I. The Parties
Samuel Love is a disabled person; he is a paraplegic who requires use of a wheelchair for mobility. (Dkt. No. 16-4 at ¶ 2.) Defendant, in his individual and representative capacity as trustee of the Huong Q. Truong Trust dated January 15, 2004, owns real property at 15526 Hesperian Blvd. San Lorenzo, California. (Dkt. No. 1 at ¶ 3.) Defendant also owns Insta Lube which operates as 15526 Hesperian Blvd. (Dkt. No. 26-12 at ¶ 4; Dkt. No. 26-8 at 2.)
II. Complaint Allegations
On April 4, 2019, Plaintiff visited Insta Lube “with the intention to avail himself of its items and to assess the business for compliance with the disability access laws.” (Id. at ¶ 10; Dkt. No. 26-5 at ¶ 5.) However, Insta Lube does “not provide accessible parking in conformance with the ADA Standards.” (Dkt. No. 1 at ¶ 13.) In particular, there were no marked or reserved parking spaces for persons with disabilities and no parking space with an access aisle. (Dkt. No. 26-5 at ¶ 6.) The lack of accessible parking created difficulty and discomfort for Plaintiff. (Dkt. No. 1. at ¶ 17.) He drives a specially equipped and modified van with a ramp so that he can wheel in and out of his vehicle. (Dkt. No. 26-5 at ¶ 3.) Plaintiff has been “deterred from further attempting to visit Insta Lube and will not return until he has been informed that Insta Lube has been brought into compliance with access laws.” (Dkt. No. 16-4 at ¶ 8.)
III. Procedural History
Two months after attempting to visit Insta Lube, Plaintiff filed this action pleading claims under the ADA and the Unruh Act. (Dkt. No. 1.) He seeks injunctive relief, statutory damages under the Unruh Act, and reasonable attorney fees and costs. (Id. at Prayer ¶¶ 1-3.)
The summons and complaint were served via substituted service on June 20, 2019. (Dkt. No. 8.) On September 9, 2019, Plaintiff filed a motion for entry of default, which was granted two days later. (Dkt. Nos. 9, 11.) On January 22, 2020, Plaintiff filed a motion for default judgment. (Dkt. No. 15.) Upon review of the motion, the Court had concerns as to whether Mr. Truong was properly served and issued an Order to Show Cause. (Dkt. No. 17.) In response to the Court's Order, Plaintiff conceded that service was not adequate, but again attempted personal service on March 3 and 4, 2020, and then served Mr. Truong via first class mail on March 5, 2020. (Dkt. Nos. 19, 20.) The Court thus vacated the Clerk's entry of default. (Dkt. No. 21.)
Plaintiff again sought default after Defendant did not respond to the summons and complaint, and the Clerk entered his default. (Dkt. Nos. 22, 23.) The underlying motion for default judgment followed on January 8, 2021. (Dkt. No. 26.) No. response has been filed to the motion for default judgment.
DISCUSSION
I. Jurisdiction
Courts have an affirmative duty to examine their own jurisdiction—both subject matter and personal jurisdiction—when entry of default judgment is sought against a party in default. In re Tuli, 172 F.3d 707, 712 (9th Cir. 1999).
A. Subject Matter Jurisdiction
The Court has federal question jurisdiction under 28 U.S.C. § 1331 because Plaintiff claims violations of the ADA, 42 U.S.C. §§ 12101, et seq. The Court has supplemental jurisdiction under 28 U.S.C. § 1367(a) over Plaintiff's claim under California's Unruh Act, Cal. Civ. Code §§ 51-53, because it arises out of the same nucleus of operative fact as Plaintiff's ADA claims.
B. Personal Jurisdiction and Service of Process
Service of the summons establishes personal jurisdiction over a defendant, who is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located. Fed.R.Civ.P. 4(k)(1). Pursuant to Rule 4(e) of the Federal Rules of Civil Procedure, an individual defendant may be served by: (1) delivering a copy of the summons and complaint to the individual personally; (2) leaving a copy of the summons and complaint at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there; or (3) delivering a copy of the summons and complaint to an agent authorized by appointment or law to receive service of process. Fed.R.Civ.P. 4(e)(2). Alternatively, an individual defendant may be served with process pursuant to the law of the state where the district court is located. Fed.R.Civ.P. 4(e)(1).
Under California law, individual defendants may be served by several means, including personal delivery of the summons and complaint to the individual or the individual's authorized agent. Cal. C.C.P. §§ 415.10, 416.90. If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served as specified in Section 416.90, which requires service on the person or a person authorized to receive service of process, the summons may be served by leaving a copy at the individual's usual place of business with a person “apparently in charge.” Cal. C.C.P § 415.20(b).
Here, Mr. Truong was served by substituted service. The process server attempted to serve him on June 20, 2019 at his business. (Dkt. No. 8.) The process server then attempted twice more to personally serve him and on the third occasion left a copy of the summons and complaint with Mr. Dung, the person in charge. (Dkt. No. 19 at 3; Dkt. No. 20 at ¶¶ 12-13.) Plaintiff thereafter mailed a copy of the summons and complaint to Mr. Truong at his business address. (Dkt. No. 19 at 2; Dkt. No. 20 at ¶ 13.) The Court is satisfied that Plaintiff has now properly provided Mr. Troung with service of process under both the Federal Rules of Civil Procedure and the California Code of Civil Procedure. Moreover, Plaintiff alleges that Mr. Troung owns property in California and is subject to the general jurisdiction of this Court. (Dkt. No. 26-1 at 8; Dkt. No. 26-8; Dkt. No. 26-12 at ¶ 4.) Therefore, the Court has personal jurisdiction over Mr. Truong.
III. Default Judgment
After entry of default, a court may grant default judgment on the merits of the case. Fed.R.Civ.P. 55. The factual allegations of the complaint, except those concerning damages, are deemed to have been admitted by the non-responding party. Geddes v. United Fin. Grp., 559 F.2d 557, 560 (9th Cir. 1977). “The district court's decision whether to enter a default judgment is a discretionary one.” Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). Courts consider the following factors in determining whether to enter 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 decisions on the merits.Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986).
A. Possibility of Prejudice to Plaintiff
The first Eitel factor considers whether the plaintiff will suffer prejudice if the court denies default judgment. Craiglist, Inc. v. Naturemarket, Inc., 694 F.Supp.2d 1039, 1054 (N.D. Cal. 2010). Absent a judgment in Plaintiff's favor, Plaintiff has no recourse to enjoin Defendant to remove the access barrier posed by the lack of an accessible parking space. Accordingly, this factor weighs in favor of default judgment.
B. Merits of Claim and Sufficiency of Complaint
The second and third Eitel factors require Plaintiff to state a claim upon which he can recover. Plaintiff pleads two claims: (1) violations of the ADA, and (2) violations of the Unruh Act.
1. Article III Standing
To establish Article III standing to bring an ADA claim, Plaintiff must demonstrate that (1) he suffered an injury in fact, (2) the injury is traceable to Defendant's challenged conduct, and (3) the injury can be redressed by a favorable decision. Ridola v. Chao, No. 16-cv-02246-BLF, 2018 WL 2287668, at *5 (N.D. Cal. May 18, 2018) (citing Hubbard v. Rite Aid Corp., 433 F.Supp.2d 1150, 1162 (S.D. Cal. 2006)). In addition, to establish standing to pursue injunctive relief, Plaintiff must demonstrate a “real and immediate threat of repeated injury” in the future. Chapman v. Pier 1 Imports (U.S.), Inc., 631 F.3d 939, 949 (9th Cir. 2011) (quoting O'Shea v. Littleton, 414 U.S. 488, 496 (1974)).
As discussed above, Plaintiff is disabled within the meaning of the ADA and attests that on his one visit to Insta Lube he personally encountered a barrier when he failed to find a van-accessible parking space. (Dkt. No. 26-5 at ¶ ¶ 5-6.) With respect to whether he faces a “real and immediate threat of repeated injury, ” Plaintiff alleges that he has been deterred from visiting Insta Lube and that he will not return until the access barriers are removed. (Id. at ¶ 8.)
These allegations are sufficient to satisfy standing under controlling Ninth Circuit law. See Civil Rights Education and Enforcement Center v. Hospitality Properties Trust, 867 F.3d 1093, 1098-99 (9th Cir. 2017). Indeed, courts in this District have found standing where a Plaintiff has similarly asserted that, while they would like to return to patronize the business at issue, the access barriers present at the business have deterred them from returning. See, e.g., Johnson v. Rocklin of California LLC, No.18-cv-06836-VKD, 2019 WL 3854308, at *2-3 (N.D. Cal. Aug. 16, 2019); Johnson v. VN Alliance LLC, No. 18-cv-01372-BLF, 2019 WL 2515749, at *2, 4 (N.D. Cal. Jun. 18, 2019); Johnson v. Shri Jai Ranchhodrai, Inc., No.17-cv-06482-VKD, 2018 WL 5617228, at *2, 4 (N.D. Cal. Oct. 29, 2018). Given the near identical allegations here, Plaintiff has adequately alleged standing.
2. ADA Claim
Title III of the ADA prohibits discrimination “on the basis of 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 prevail on a Title III discrimination claim, the plaintiff must show that (1) [he] is disabled within the meaning of the ADA; (2) the defendant is a private entity that owns, leases, or operates a place of public accommodation; and (3) the plaintiff was denied public accommodations by the defendant because of his disability.” Molski v. M.J. Cable, Inc., 481 F.3d 724, 730 (9th Cir. 2007). The third element may be shown where a defendant “fail[s] to remove architectural barriers . . . where such removal is readily achievable.” Chapman, 631 F.3d at 945 (quoting 28 U.S.C. § 12182(b)(2)(A)(iv)).
First, Plaintiff alleges that he is disabled within the meaning of 42 U.S.C. § 12102(2)(A). (Dkt. No. 26-5 at ¶ 2.) Section 12102(1)-(2)(A) defines “disability” as a physical or mental impairment that “substantially limits one or more major life activities” including “walking.” Plaintiff attests that he is a paraplegic who cannot walk and who requires a wheelchair for mobility. (Id.) Thus, Plaintiff sufficiently alleges he is disabled within the meaning of the ADA.
Second, Plaintiff alleges that Defendant, as the owner and operator of Insta Lube, is subject to the ADA because Insta Lube is a public accommodation as a sales and service establishment. (Dkt. No. 1 at ¶¶ 2-5.) Title III identifies “service establishment[s]” as places of public accommodation subject to the ADA. Taking Plaintiff's allegations as true, he has established that Defendant owns, leases, or operates a public accommodation.
Third, Plaintiff alleges that Insta Lube lacks an accessible parking space which contravenes the ADA Accessibility Guidelines (“ADAAG”) and constitute architectural barriers that prevent him from full and equal access to Insta Lube. “Under both the 1991 and 2010 ADAAG standards, any business that provides parking spaces must provide [accessible] parking spaces conforming to the Guidelines' specifications.” Lozano v. C.A. Martinez Family Ltd. P'ship, 129 F.Supp.3d 967, 972 (S.D. Cal. 2015) (citing 28 C.F.R. pt. 36, App. D, § 4.1.2(5)).
Under the 1991 standards, one in every eight accessible spaces, but not less than one, shall be designated “van accessible.” 28 C.F.R. pt. 36, App. D, § 4.1.2(5)(b). Under the 2010 standards, at least one in every six accessible parking spaces shall be a van parking space. 36 C.F.R. pt. 1191, App. C, § 208.2.4. Van accessible stalls at least 96 inches wide but less than 132 inches wide must have a 96-inch wide access aisle. 28 C.F.R. pt. 36, App. D, § 4.1.2(5)(a)(b); 36 C.F.R. pt. 1191, App. D, § 502.2.Id.
Plaintiff's allegations, accepted as true, are sufficient to show an ADA violation with respect to the absence of any accessible parking spaces.
As for whether removal of this barrier is “readily achievable, ” Plaintiff alleges that it is “easily removed without much difficulty or expense, ” and that “there are numerous alternative accommodations that could be made to provide a greater level of access if complete removal were not achievable.” (Dkt. No. 1 at ¶ 19.) Indeed, 28 C.F.R. § 36.304(b)(18) lists “[c]reating designated accessible parking spaces” as an example of where such removal may be readily achievable. 28 C.F.R. § 36.304(c)(2) urges compliance for “those areas of a place of public accommodation where goods and services are made available to the public, ” regarding such as a “priority.”
District courts are in general agreement that whether barrier removal is readily achievable is an affirmative defense, though the Ninth Circuit has yet to rule on the issue. See Hernandez v. Polanco Enters., Inc., 19 F.Supp.3d 918, 931 (N.D. Cal. 2013); see also Lentini v. Cal. Ctr. for the Arts, 370 F.3d 837, 845 (9th Cir. 2004) (holding that whether an accommodation “fundamentally alters” a service or facility is an affirmative defense). District courts generally apply the Tenth Circuit's burden-shifting framework articulated in Colorado Cross Disability v. Hermanson Family, Ltd., 264 F.3d 999 (10th Cir. 2001). Under this framework, the “[p]laintiff bears the initial burden of production to present evidence that a suggested method of barrier removal is readily achievable.” Id. at 1006. If the plaintiff makes this showing, the burden then shifts to the defendant, who “bears the ultimate burden of persuasion regarding [his] affirmative defense that a suggested method of barrier removal is not readily achievable.” Id.
On default, a plaintiff's allegation that removal of the architectural barriers is readily achievable is sufficient to satisfy the plaintiff's burden of production. Ridola v. Chao, 2018 WL 2287668, at *11; see also Johnson v. Altamira Corp., No. 16-cv-05335 NC, 2017 WL 1383469, at *3 (N.D. Cal., Mar. 27, 2017) (concluding that the plaintiff's allegations, including those concerning accessible parking spaces, fell within the scope of readily achievable steps set forth in 28 C.F.R. § 36.304). While a defendant would ordinarily be entitled to prove that the removal of the alleged architectural barriers is not “readily achievable, ” Defendant's default means that they have not raised this affirmative defense and that they failed to meet their burden to show that removal of the identified barriers is not readily achievable. See, e.g., Ridola, 2018 WL 2287668, at *11. Thus, Plaintiff's allegations are sufficient to satisfy the third element of a Title III discrimination claim, and he has therefore stated a cause of action under the ADA.
3. Unruh Act Claim
“A violation of the ADA is, by statutory definition, a violation of . . . the Unruh Act.” Cullen v. Netflix, Inc., 880 F.Supp.2d 1017, 1023 (N.D. Cal. 2012); Cal. Civ. Code § 51(f). “Because the Unruh Act is coextensive with the ADA and allows for monetary damages, litigants in federal court in California often pair state Unruh Act claims with federal ADA claims.” Molski, 481 F.3d at 731. The Unruh Act provides, in pertinent part:
All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, marital status, or sexual orientation are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.Cal. Civ. Code § 51(b). Because Plaintiff has adequately pled a Title III discrimination claim under the ADA, he has adequately pled a violation of the Unruh Act. See Molski, 481 F.3d at 731 (“Any violation of the ADA necessarily constitutes a violation of the Unruh Act.”). Taking the facts alleged in the complaint as true, Plaintiff has stated claims for disability discrimination under the ADA and the Unruh Act. Accordingly, the second and third Eitel factors favor entry of default judgment on Plaintiff's claims.
C. Money at Stake
Under the fourth Eitel factor, the Court must consider the amount of money at stake in relation to the seriousness of the defendant's conduct. Eitel, 782 F.2d at 1471-72. “Default judgment is disfavored where the sum of money at stake is too large or unreasonable in light of defendant's actions.” Truong Giang Corp. v. Twinstar Tea Corp., No. C 06-03594 JSW, 2007 WL 1545173, at *12 (N.D. Cal. May 29, 2007). Under the Unruh Act, a Plaintiff can recover no less than the statutory minimum of $4,000.00 in addition to attorney's fees. Cal. Civ. Code § 52(a). Here, Plaintiff seeks $4,000.00 in statutory damages. (Dkt. Nos. 1 at Prayer ¶ 2.) Plaintiff also seeks $4,375.00 in attorney's fees and $530.00 in costs, both of which are available to a successful plaintiff under the ADA, for a total judgment of $8,905. (Dkt. No. 26-1 at 16, 23); see 42 U.S.C. § 12205. This amount, plus any amount necessary to comply with an injunction, is reasonable considering Defendant's failure to appear and defend against Plaintiff's adequately pled claims.
D. Dispute Over Material Facts
The material facts are not in dispute. Plaintiff's complaint alleges disability discrimination in violation of both the ADA and the Unruh Act based on Defendant's lack of an accessible parking space. (Dkt. No. 1 at ¶¶ 22-32.) The evidence submitted by Plaintiff in support of his motion for default judgment—a declaration and photographs of Insta Lube's parking lot of May 2019—support Plaintiff's allegations that the lot contains no functioning accessible parking space or aisle. (See Dkt. No. 26-6.) Defendant has failed to appear and has therefore admitted all material facts alleged in Plaintiff's complaint. See Geddes, 559 F.2d at 560.
Accordingly, this factor favors entry of default judgment against Defendant.
E. Excusable Neglect
There is no basis to conclude that Defendant's default resulted from excusable neglect. The record indicates that Defendant was properly served with the summons and complaint, (Dkt. No. 19), the motion for clerk's entry of default, (Dkt. No. 22), and the instant motion for default judgment, (Dkt. No. 26). See Shanghai Automation Instrument Co., Ltd. v. Kuei, 194 F.Supp.2d 995, 1005 (N.D. Cal. 2001) (“[D]efault of defendant . . . cannot be attributed to excusable neglect[ ]” because “[a]ll were properly served with the Complaint, the notice of entry of default, as well as the papers in support of the instant motion.”) Accordingly, this factor favors entry of default judgment.
F. Policy Favoring Decision on the Merits
“Cases should be decided upon their merits whenever reasonably possible.” Eitel, 782 F.2d at 1472. This factor is not dispositive, however, and “Defendant[s'] failure to answer Plaintiff['s] Complaint makes a decision on the merits impractical, if not impossible.” PepsiCo, Inc. v. California Security Cans, 238 F.Supp.2d 1172, 1177 (C.D. Cal. 2002). Termination of a case before hearing the merits is permissible when a defendant fails to defend an action. Id. Therefore, the last Eitel factor is neutral.
***
Considered together, the Eitel factors weigh in favor of granting Plaintiff's motion for default judgment.
IV. Remedies
As noted, Plaintiff seeks injunctive relief, statutory damages under the Unruh Act, and attorneys' fees and costs. The Court addresses Plaintiff's requested remedies below.
A. Injunctive Relief
Plaintiff requests injunctive relief under the ADA and Unruh Act compelling Defendant to remove the unlawful barrier to access at Insta Lube and designate accessible parking in compliance with the ADAAG. Injunctive relief is available under both the ADA, 42 U.S.C. § 12188(a)(2), and the Unruh Act, Cal. Civ. Code § 52.1(b). For violations of the accessibility provisions of the ADA, “injunctive relief shall include an order to alter facilities to make such facilities readily accessible to and usable by individual with disabilities.” 42 U.S.C. § 12188(a)(2). 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 quotation marks and citation omitted). Thus, to obtain an injunction under Section 12188(a)(2), 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.'” Moreno v. La Curacao, 463 Fed.Appx. 669, 670 (9th Cir. 2011) (quoting 42 U.S.C. § 12182(b)(2)(A)(iv)). As discussed above, Plaintiff has done so here. Accordingly, the Court recommends that Plaintiff's request for injunctive relief be granted.
B. Money Damages Under the Unruh Act
In assessing the appropriate amount of damages on default judgment, the Court does not presume the truth of any factual allegations related to the amount of damages. Televideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987). “The moving party has the burden to prove up” the amount of damages. United States v. Sundberg, No. C-09-4085 EMC, 2011 WL 3667458, at *6 (N.D. Cal. Aug. 22, 2011).
Here, Plaintiff requests “a single statutory minimum penalty assessment of $4,000.00” under the Unruh Act. The Unruh Act provides for such damages, and states that violations of the Act will “in no case” result in less than $4,000.00 in damages. Cal. Civ. Code § 52(a). Furthermore, “[t]he litigant need not prove [he] suffered actual damages to recover the independent statutory damages of $4,000.” Molski, 481 F.3d at 731. It is sufficient instead to “establish[ ] that he ... was denied equal access on a particular occasion.” Botosan v. Paul McNally Realty, 216 F.3d 827, 835 (9th Cir. 2000) (internal quotation marks and citation omitted). A plaintiff can do so by demonstrating that “violations of applicable California disability standards deterred him ... on a particular occasion from attempting to enter a place of public accommodation.” Id. (finding that “Appellee has established a case for an award of statutory minimum damages” where the “record [was] undisputed that Appellants did not provide handicapped parking on at least one occasion when Appellee attempted to become a customer.”).
Here, Plaintiff has adequately pled that Defendant's failure to provide an accessible parking space deterred him from attempting to enter Insta Lube on at least one occasion in April 2019. Thus, he is entitled to statutory minimum damages under the Unruh Act. Accordingly, the Court recommends granting Plaintiff's request for money damages in the amount of $4,000.00.
C. Attorneys' Fees and Costs
The ADA and Unruh Act both authorize a prevailing plaintiff to recover reasonable attorneys' fees and costs. 42 U.S.C. § 12205; Cal. Civ. Code § 52.1(h). Here, Plaintiff seeks attorneys' fees and costs in the amount of $4,375. (Dkt. No. 26-1 at 16.) To calculate attorneys' fees, “the district court applies the lodestar method, multiplying the number of hours reasonably expended by a reasonable hourly rate.” Ryan v. Editions Ltd. W7., Inc., 86 F.3d 754, 763 (9th Cir. 2015) (citing Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). “A reasonable hourly rate is ordinarily the prevailing market rate in the relevant community.” Kelly v. Wengler, 822 F.3d 1085, 1099 (9th Cir. 2016) (internal quotation marks and citation omitted). “[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.” Camancho v. Bridgeport Fin., Inc., 523 F.3d 973, 980 (9th Cir. 2008) (internal quotation marks and citation omitted). Additionally, the party requesting fees bears “the burden of submitting billing records to establish that the number of hours” requested are reasonable. Gonzalez v. City of Maywood, 729 F.3d 1196, 1202 (9th Cir. 2013). The number of hours should not exceed the number of hours reasonable competent counsel would bill. Hensley, 461 U.S. at 434.
Plaintiff seeks attorneys' fees in the amount of $4,375 for 7.5 hours of work. In support of this request, Plaintiff submitted the declaration of Russel Handy, which details the qualifications of many of the attorneys who performed work in this action and attaches a detailed time record. (Dkt. No. 26-4.) Plaintiff also offers a 2009 Declaration from Richard Pearl in support of a request for attorneys fees in another action (Dkt. No. 26-9), the 2018 Real Rate Report (Dkt. No. 26-10), and a 2019 Declaration from John O'Conner regarding the rates sought by various Center for Disability Access attorneys that was submitted in another action (Dkt. No. 26-11).
First, the Court considers whether the hourly rates sought here are reasonable. As a threshold matter, it is not clear what rates Plaintiff is seeking. Mr. Handy's declaration is not consistent with the motion as far as the rates sought. While the motion appears to seek hourly rates of $595 per hour for Mr. Potter and Mr. Handy, $450 for Ms. Seabock, and $400 for Ms. Gutierrez, Mr. Handy's declaration seeks rates of $650 for Mr. Potter and Mr. Handy, $500 for Ms. Seabock, and $400 for Mr. Gutierrez. (Compare Dkt. No. 26-1 at p. 22 with Dkt. No. 26-4 at ¶¶ 3-6.) The accompanying detailed time record seeks hourly rates of $650 for Mr. Potter and Mr. Handy, hourly rates of either $400 or $450 for Ms. Seabock, and $400 for Ms. Gutierrez. (Dkt. No. 26-4.) The Court assumes that Plaintiff is seeking the higher rates referenced in Mr. Handy's declaration and the accompanying detailed time record. The Court is not persuaded that these rates are reasonable.
As an initial matter, the Court is not persuaded by either the declaration of Richard Pearl or the O'Conner Declaration. Mr. Pearl's declaration is more than 10 years old and thus not probative of current prevailing rates in the requisite legal community. Mr. O'Conner's declaration is likewise unpersuasive as to the hourly rates requested here. As another court noted, “Mr. O'Conner's opinion does not appear to be based on his own practice or a survey of practitioners, but rather a review of case law concerning fees awarded in ADA litigation. [] His declaration lists the cases he thinks the Court should follow and the cases it should not, providing what is essentially legal argument and conclusions.” Johnson v. Baird Lands, Inc., No. 18-CV-05365-VKD, 2020 WL 3833278, at *4 (N.D. Cal. July 8, 2020) (noting that “matters of law are inappropriate subjects for expert testimony.”) (internal citation omitted). Further, while his declaration opines that “the most appropriate rate for parties' ADA services” ranges from $450 to $750 per hour, and associates from $300 to $550, he does not explain why rates at the highest end of that estimate are appropriate for this action which concerns a single access barrier encountered on one occasion by one individual with a single defaulting defendant. (Dkt. No. 26-11 at ¶ 27.)
Indeed, courts in this district routinely contrast the ADA access cases litigated by Mr. Handy's firm from other complicated disability access cases. See, e.g., Johnson v. Cala Stevens Creek/Monroe, LLC, No. 17-CV-04574-LHK, 2020 WL 2556989, at *6 (N.D. Cal. May 20, 2020) (“The sheer number of ADA cases that Plaintiff's counsel is litigating simultaneously underscores the straightforward nature of Plaintiff's counsel's cases. Attorney D. Price has stated that as of November 7, 2019, his law firm, consisting of 20 lawyers, was simultaneously litigating ‘over a thousand' ADA cases in the Northern District of California and approximately 1, 500 ADA cases in the Central District of California.”). As a result, courts in this district routinely find that the proper hourly rate for Mr. Handy's firm is $475 or $450 for partners and $350 to $300 for associates. See Johnson v. Baird Lands, Inc., 2020 WL 3833278, at *4 (collecting cases awarding fees within this range).
The Court is not persuaded by Plaintiff's reliance on Love v. Rivendell II, No. 3:18-cv-03907-JST (EDL), Dkt. No. 30 (March 18, 2019), for the higher rates sought here. Several courts within the Northern District have distinguished Rivendell II and declined to award fees at these hourly rates. In particular, in Johnson v. AutoZone, Inc., No. 17-CV-02941-PJH, 2019 WL 2288111 (N.D. Cal. May 29, 2019), the court explained that “that lone order granting an unopposed motion does not accurately reflect the prevailing rate in the community for work similar to this case.” Id. at *6 n.4. Instead, “that order cited cases that concerned work substantially different from the work performed in this action, ” including complex class actions. Id.
Thus, the Court awards the following hourly rates: Mr. Handy and Mr. Potter $475/hour and Ms. Seabock $350/hour, which is consistent with the awards discussed above. The Court declines to award Ms. Gutierrez her sought $400 hourly rate. Plaintiff did not cite any cases approving hourly rates in this amount for Ms. Gutierrez, a 2015 law graduate with no apparent experience in disability law. The Court will thus award her $250/hour which is consistent with the rates she has been awarded in other cases. See, e.g., Johnson v. Cortese, No. 5:19-CV-02671-EJD, 2020 WL 7495164, at *9 (N.D. Cal. Dec. 21, 2020); Johnson v. In Suk Jun, No. 19-CV-06474-BLF, 2020 WL 6507995, at *8 (N.D. Cal. Nov. 5, 2020). Plaintiff also offers no support for his request for $400/hour for A. Vento. There is no reference to A. Vento in Mr. Handy's declaration and thus no basis for the Court to determine an appropriate hourly rate. The Court thus excludes the .3 hours sought for A. Vento.
Second, the Court turns to the reasonableness of the hours expended here. The hours appear generally reasonable; however, on July 24, 2019, Ms. Seabock billed .1 for “Pulled Military Deployment Status.” (Dkt. No. 26-4 at 8.) As this case did not present any issues of military status, the Court concludes this was included in error. Plaintiff is also not entitled to fees for counsel's work responding to the Court's Order to Show Cause regarding service and re-doing the motion for default judgment following proper service. This results in an .8 of an hour deduction.
This also eliminates any time sought by Ms. Vento and Ms. Gutierrez.
Accordingly, the Court recommends granting attorneys fees in the amount of $2,960 which represents 5.2 hours at $475/hour, and 1.4 hours at $350/hour. Further, the Court finds that Plaintiff has submitted sufficient evidence in support of his litigation costs—$100.00 for his investigator; $400.00 in filing fees; and $30.00 in service costs. (Dkt. No. 26-4 at 7.) The Court thus recommends awarding costs in the full amount of $530.00, resulting in total fees and costs of $3,490.00.
CONCLUSION
In line with the foregoing, the Court recommends that the newly-assigned district court judge GRANT Plaintiffs motion for default judgment on his ADA and Unruh Act claims in the total amount of $7,490.00, consisting of $4,000.00 in statutory damages and $3,490.00 in fees and costs. Furthermore, the Court recommends granting Plaintiffs request for injunctive relief under the ADA and Unruh Act compelling Defendant to remove the unlawful barriers to access at Insta Lube and designate accessible parking in compliance with the ADAAG.
Any party may file objections to this Report and Recommendation with the district judge within fourteen days after being served with a copy. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); N.D. Cal. Civ. L.R. 72. Failure to file an objection may waive the right to review of the issue in the district court.
IT IS SO ORDERED.