Opinion
20-cv-05258-TSH
07-16-2021
RICHARD SEPULVEDA, Plaintiff, v. SERGIO BUELNA, et al., Defendants.
REQUEST FOR REASSIGNMENT WITH REPORT & RECOMMENDATION RE: MOTION FOR DEFAULT JUDGMENT
RE: DKT. NO. 34
Thomas S. Hixson, United States Magistrate Judge
I. INTRODUCTION
Plaintiff Richard Sepulveda brings this case under the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101, et seq., to compel Defendants Sergio Buelna, Julia Contreras, and Robert and Jeanne Lovi to provide accessible parking, directional signage, an accessible path of travel, accessible outdoor seating, and an accessible service counter at their property. Sepulveda previously dismissed the Lovis after settling with them, and he now moves for default judgment against Buelna and Contreras (“Defendants”). ECF No. 34. Defendants have not opposed the motion and default has been entered against them. The undersigned finds this matter suitable for disposition without oral argument and VACATES the August 5, 2021 hearing. Civ. L.R. 7-1(b). As not all parties have consented to the jurisdiction of a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c), the Court requests this case be reassigned to a District Judge for disposition. After carefully reviewing the motion and controlling authorities, the undersigned RECOMMENDS the District Court GRANT the motion for the following reasons.
II. BACKGROUND
Sepulveda is a “physically handicapped person, ” as he is limited in the use of his legs and must use a walker. First Am. Compl. ¶ 6, ECF No. 17. On four occasions (April 27, 2020, May 7, 2020, June 13, 2020, and July 18, 2020), Sepulveda visited Defendants' restaurant, United Birrieria, located at 2170 Washington Ave., San Leandro, California, for the purpose of buying food and drink. Id. ¶¶ 3, 12. Buelna owns and operates the business, and Contreras owns the property. Id. ¶ 2. On the dates of his visits, Sepulveda alleges he found several barriers to his access: (1) the primary business entrance door lacks “the proper posted international symbol of Accessibility, ” such that “Plaintiff had difficulty in finding and using an accessible entrance”; (2) there was not a compliant path of travel from the parking area to the outside seating and the service counter; (3) the exterior seating was not accessible to disabled users; (4) the designated parking space for persons with disabilities is defective because there was no designated accessible space, there was no space with a proper passenger access aisle, and no tow-away sign; and (5) the service counter for placing orders was improperly configured.” Id. ¶ 4. Sepulveda plans to return to United Birrieria, but he is deterred from doing so because of his knowledge of the existing barriers and his uncertainty about the existence of yet other barriers on the site. Id. ¶¶ 14-15.
At the time Sepulveda filed this case, Robert and Jeanne Lovi owned the real property, but as of October 2, 2020, Contreras purchased the property from them and became the sole owner. Id. ¶ 2.
Sepulveda filed this case on July 30, 2020, bringing claims under the ADA, the California Unruh Civil Rights Act, Cal. Civ. Code § 51(f), which provides that a violation of the ADA is a violation of the Unruh Act, and analogous California disability access statutes. He filed the operative First Amended Complaint on January 14, 2021.
Sepulveda served Contreras on April 13, 2021, at the address of the subject business at 2170 Washington Avenue, San Leandro, CA, by sub-serving “Martin ‘Doe' - MANAGER, ” with subsequent mailing on April 14, 2021. ECF No. 28. Sepulveda served Buelna on May 10, 2021, at 2170 Washington Avenue by sub-serving “‘JOHN DOE' - MANAGER, ” with subsequent mailing on May 14, 2021. ECF No. 29. After Defendants failed to appear, the Clerk of Court entered default against Contreras on May 26, 2021 (ECF No. 31) and against Buelna on June 25, 2021 (ECF No. 33).
Sepulveda filed the present motion on June 30, 2021.
III. LEGAL STANDARD
Federal Rule of Civil Procedure 55(b)(2) permits a court, following default by a defendant, to enter default judgment in a case. “The district court's decision whether to enter default judgment is a discretionary one.” Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980).
At the default judgment stage, the factual allegations of the complaint, except those concerning damages, “together with other competent evidence submitted” are deemed admitted by the non-responding parties. Shanghai Automation Instrument Co. v. Kuei, 194 F.Supp.2d 995, 1000 (N.D. Cal. 2001); see also Fair Hous. of Marin v. Combs, 285 F.3d 899, 906 (9th Cir. 2002) (“With respect to the determination of liability and the default judgment itself, the general rule is that well-pled allegations in the complaint regarding liability are deemed true.”). “However, a defendant is not held to admit facts that are not well-pleaded or to admit conclusions of law.” DIRECTV, Inc. v. Hoa Huynh, 503 F.3d 847, 854 (9th Cir. 2007) (citation and quotation omitted)). Therefore, “necessary facts not contained in the pleadings, and claims which are legally insufficient, are not established by default.” Cripps v. Life Ins. Co. of N. Am., 980 F.2d 1261, 1267 (9th Cir. 1992) (citing Danning v. Lavine, 572 F.2d 1386, 1388 (9th Cir. 1978)); accord DIRECTV, 503 F.3d at 854. Further, the scope of relief is limited by Federal Rule of Civil Procedure 54(c), which states that a “default judgment must not differ in kind from, or exceed in amount, what is demanded in the pleadings.”
In determining whether default judgment is appropriate, the Ninth Circuit has enumerated the following factors for courts to consider:
(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).
IV. DISCUSSION
A. Jurisdiction and Service of Process
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 707, 712 (9th Cir. 1999). “[T]he district court is not restricted to the face of the pleadings, but may review any evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of jurisdiction.” McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988) (considering subject matter jurisdiction on a 12(b)(1) motion).
1. Subject Matter Jurisdiction
Federal courts are courts of limited jurisdiction and are presumptively without jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). A federal court may dismiss an action on its own motion if it finds that it lacks subject matter jurisdiction. Fiedler v. Clark, 714 F.2d 77, 78-79 (9th Cir. 1983); see also Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”).
Here, the Court has subject matter jurisdiction because Sepulveda asserts claims under the ADA, a federal statute. 28 U.S.C. § 1331 (“The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.”). The Court has supplemental jurisdiction over his Unruh Act claim because it arises from the same nucleus of operative facts and out of the same transactions as the ADA claim. 28 U.S.C. § 1367(a) (“in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy”).
2. Personal Jurisdiction
a. Basis for Personal Jurisdiction
To enter default judgment, the Court must have a basis for the exercise of personal jurisdiction over the defendants in default. In re Tuli, 172 F.3d at 712. “Without a proper basis for [personal] jurisdiction, or in the absence of proper service of process, the district court has no power to render any judgment against the defendant's person or property unless the defendant has consented to jurisdiction or waived the lack of process.” S.E.C. v. Ross, 504 F.3d 1130, 1138-39 (9th Cir. 2007). Traditional bases for conferring a court with personal jurisdiction include a defendant's consent to jurisdiction, personal service of the defendant within the forum state, or a defendant's citizenship or domicile in the forum state. J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 880 (2011). Absent one of the traditional bases for jurisdiction, the Due Process Clause requires that the defendant have “certain minimum contacts with the forum ‘such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.'” Int'l Shoe Co. v. State of Wash., Off. of Unemployment Comp. & Placement, 326 U.S. 310, 316 (1945) (citations and quotation marks omitted). The party seeking to invoke jurisdiction has the burden of establishing that jurisdiction is proper. Flynt Distrib. Co. v. Harvey, 734 F.2d 1389, 1392 (9th Cir. 1984). “[M]ere ‘bare bones' assertions of minimum contacts with the forum or legal conclusions unsupported by specific factual allegations will not satisfy a plaintiff's pleading burden.” Swartz v. KPMG LLP, 476 F.3d 756, 766 (9th Cir. 2007).
Here, the Court has personal jurisdiction over Contreras because she owns the property at issue. Mot., Ex. 1 (public records); see also Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011) (“Specific jurisdiction . . . depends on an affiliation between the forum and the underlying controversy, principally, activity or an occurrence that takes place in the forum State and is therefore subject to the State's regulation.”); Moralez v. OKL Consulting Grp., Inc., 2018 WL 5816157, at *2 (N.D. Cal. Nov. 5, 2018) (personal jurisdiction exists where defendant owns the real property at which the incident giving rise to the occurred); Ridola v. Chao, 2018 WL 2287668, at *4 (N.D. Cal. May 18, 2018) (same). The Court has jurisdiction over Buelna because he operates the business within this District and was served here. Johnson v. Baglietto, 2020 WL 3065939, at *3 (N.D. Cal. May 21, 2020), report and recommendation adopted, 2020 WL 3060902 (N.D. Cal. June 9, 2020) (jurisdiction proper over defendant that operates the business at which the incident giving rise to action occurred); Love v. Griffin, 2018 WL 4471073, at *2 (N.D. Cal. Aug. 20, 2018), report and recommendation adopted, 2018 WL 4471149 (N.D. Cal. Sept. 17, 2018) (personal jurisdiction arises from service upon defendant in California).
b. Service of Process
Personal jurisdiction also requires notice that is “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950). “A federal court does not have jurisdiction over a defendant unless the defendant has been served properly under [Federal Rule of Civil Procedure 4].” Direct Mail Specialists, Inc. v. Eclat Computerized Techs., Inc., 840 F.2d 685, 688 (9th Cir. 1988).
Here, Defendants were served in compliance with Federal Rule of Civil Procedure 4 and California Civil Procedure Code section 415.20, which provides that
a summons may be served by leaving a copy of the summons and complaint during usual office hours in his or her office or, if no physical address is known, at his or her usual mailing address, other than a United States Postal Service post office box, with the person who is apparently in charge thereof, and by thereafter mailing a copy of the summons and complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left. When service is effected by leaving a copy of the summons and complaint at a mailing address, it shall be left with a person at least 18 years of age, who shall be informed of the contents thereof. Service of a summons in this manner is deemed complete on the 10th day after the mailing.
While the summons and complaint were left with a manager, the purpose of section 415.20 “is to permit service to be completed upon a good faith attempt at physical service on a responsible person. Service must be made upon a person whose relationship with the person to be served makes it more likely than not that they will deliver process to the named party.” Hearn v. Howard, 177 Cal.App.4th 1193, 1202-03 (2009). Here, it is more likely than not that a manager will deliver process to the named parties, the owners and operators of the business. See Sepulveda v. Cong, 2020 WL 7232900, at *3 (N.D. Cal. Nov. 9, 2020), report and recommendation adopted as modified sub nom. Sepulveda v. Hien Quyen Cong, 2020 WL 7227202 (N.D. Cal. Dec. 8, 2020) (permitting substitute service on store clerk under section 415.20). Thus, service was proper, and the record reflects that Defendants were apprised of the pendency of this action and afforded an opportunity to present their objections.
B. Eitel Factors
Applying the seven Eitel factors, the undersigned finds default judgment is warranted in favor of Plaintiff.
1. The Possibility of Prejudice
The first factor the Court considers is the possibility of prejudice if a default judgment is not entered. Eitel, 782 F.2d at 1471-72. This factor weighs in favor of default judgment “when a defendant has failed to appear or defend against a suit, and the plaintiffs could not otherwise seek relief.” Vietnam Reform Party v. Viet Tan - Vietnam Reform Party, 416 F.Supp.3d 948, 962 (N.D. Cal. 2019) (citations omitted); IO Grp., Inc. v. Jordon, 708 F.Supp.2d 989, 997 (N.D. Cal. 2010) (prejudice exists where denying the requested default judgment would leave the plaintiff without a proper remedy). Here, Sepulveda will be without a remedy for Defendants' alleged violations of the ADA and the Unruh Act if default judgment is not entered. See Johnson v. Baglietto, 2020 WL 3065939 at *4; Juno Therapeutics, Inc. v. Juno Biomedical, Inc., 2018 WL 2021483, at *4 (N.D. Cal. Mar. 26, 2018), report and recommendation adopted, 2018 WL 1993407 (N.D. Cal. Apr. 27, 2018) (“Because Plaintiffs have no recourse for injunction if default judgment is not entered, this factor weighs in favor of default judgment.”). This factor weighs in favor of granting Sepulveda's motion.
2. Substantive Claims and the Sufficiency of the Complaint
The second and third Eitel factors focus on the merits of the substantive claims and the sufficiency of the complaint. Eitel, 782 F.2d at 1471-72. “These two factors are often analyzed together and require courts to consider whether a plaintiff has ‘state[d] a claim on which [it] may recover.'” Vietnam Reform Party, 416 F.Supp.3d at 962 (quoting PepsiCo, Inc. v. Cal. Sec. Cans, 238 F.Supp.2d 1172, 1175 (C.D. Cal. 2002)). “Of all the Eitel factors, courts often consider the second and third factors to be ‘the most important.'” Id. (quoting Sanrio, Inc. v. Jay Yoon, 2012 WL 610451, at *4 (N.D. Cal. Feb. 24, 2012)).
a. ADA
Title III of the ADA provides that “[n]o individual shall be discriminated against 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 operates a place of public accommodation.” 42 U.S.C. § 12182(a). To prevail on a Title III discrimination claim, Sepulveda must show “(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) [he] was denied public accommodations by the defendant because of h[is] disability.” Molski v. M.J. Cable, Inc., 481 F.3d 724, 730 (9th Cir. 2007).
i. Whether Sepulveda is Disabled
The ADA defines the term “disability” to mean “a physical or mental impairment that substantially limits one or more major life activities of [an] individual.” 42 U.S.C. § 12102(1)(A). “Major life activities” include, among other things, walking. 42 U.S.C. § 12102(2)(A). As Sepulveda is limited in his ability to walk and uses a walker for mobility, he satisfies the first element of an ADA claim. Daubert v. Lindsay Unified Sch. Dist., 760 F.3d 982, 984 (9th Cir. 2014) (a plaintiff who is unable to walk without the use of a mobility aid such as a wheelchair is disabled within the meaning of the ADA); Sepulveda v. Cong, 2020 WL 7232900, at *4 (“Plaintiff is disabled, as he is limited in the use of his legs and must use a walker.”).
ii. Whether United Birrieria is a Place of Public Accommodation
The ADA expressly provides that “private entities are considered public accommodations . . . if the operations of such entities affect commerce.” 42 U.S.C. § 12181(7). The definition of public accommodation includes “sales and rental establishment[s]” that sell food and drink. Id. § 12181(7)(E); Sepulveda v. Cong, 2020 WL 7232900, at *4. The ADA also provides that owners and lessors of places of public accommodation are expressly responsible for ensuring compliance. 42 U.S.C. § 12182(a) (“No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the . . . accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.”). Accordingly, taking Sepulveda's allegations as true, he has established this element.
iii. Whether Sepulveda Was Denied Public Accommodation
Finally, the Court must determine whether Sepulveda was denied access to the property based on his disability. Sepulveda alleges that he personally encountered the barriers during his visits to United Birrieria on four occasions. First Am. Compl. ¶ 12.
The standard for determining whether a facility is readily accessible and usable by an individual with a disability depends on whether the facility is an existing facility or new construction. For existing facilities, the ADA provides that discrimination arises from the “failure to remove architectural barriers . . . where such removal is readily achievable.” 42 U.S.C. § 12182(b)(2)(A)(iv). Readily achievable means “easily accomplishable and able to be carried out without much difficulty or expense.” Id. § 12181(9); Molski, 481 F.3d at 730. For facilities that were constructed after the passage of the ADA, the accessibility guidelines generally govern this question. See 28 C.F.R. § 36.406, Appendix to subpart (a) (federal regulation requiring that all facilities built for first occupancy after January 26, 1993 must comply with the ADA Accessibility Standards).
Sepulveda alleges the property was built before January 26, 1993, First Am. Compl. ¶ 3, so the Court considers the more general question of whether the lack of accessible parking is a “failure to remove architectural barriers . . . where such removal is readily achievable.” 42 U.S.C. § 12182(b)(2)(A)(iv). Under 28 C.F.R. § 36.304(b), examples of readily achievable steps to remove barriers include installing accessible ramps, creating designated accessible parking spaces, and installing accessible door hardware. Thus, the lack of accessible entrance, accessible door hardware, and accessible parking alleged in Sepulveda's complaint fall within the express scope of this statutory provision. As for whether removal of this barrier is “readily achievable, ” 28 C.F.R. § 36.304(b) lists “[i]nstalling ramps, ” “[m]aking curb cuts in sidewalks and entrances, ” “[c]reating designated accessible parking spaces, ” and “[i]nstalling accessible door hardware” as “readily achievable” steps to remove barriers.
The undersigned also notes that “courts are generally in agreement that whether barrier removal is readily achievable is an affirmative defense.” Wilson v. Haria & Gogri Corp., 479 F.Supp.2d 1127, 1133 & n.7 (E.D. Cal. 2007) (citing Colorado Cross Disability Coal. v. Hermanson Family Ltd. P'ship, 264 F.3d 999, 1002-03 (10th Cir. 2001); Gathright-Dietrich v. Atlanta Landmarks, Inc., 452 F.3d 1269, 1274 (11th Cir. 2006); Lentini v. Cal. Ctr. for the Arts, 370 F.3d 837 (9th Cir. 2004)). Thus, while Greiner would ordinarily be entitled to prove that the removal of the alleged architectural barriers is not readily achievable, it has waived any such affirmative defense. Id. at 1133; Johnson v. Express Auto Clinic, Inc., 2019 WL 2996431, at *4 n.1 (N.D. Cal. July 9, 2019) (“Whether or not the removal of this barrier is ‘readily achievable' is an affirmative defense that is waived unless raised.”); Arroyo v. Aldabashi, 2018 WL 4961637, at *4 n.5 (N.D. Cal. Oct. 15, 2018) (same).
As these allegations are sufficient to satisfy the third element of a Title III discrimination claim, the undersigned finds Sepulveda has stated a cause of action under the ADA.
b. Unruh Act
The Unruh Act broadly bans arbitrary discrimination in public accommodations, including discrimination based on disability. Cal. Civ. Code § 51(b); Jankey v. Sung Koo Lee, 55 Cal.4th 1038, 1044 (2012). In the disability context, the Unruh Act operates virtually identically to the ADA, and any violation of the ADA necessarily constitutes a violation of the Unruh Act. Molski, 481 F.3d at 731 (citing Cal. Civ. Code § 51(f)). Where the basis of liability for an Unruh Act violation is an ADA violation, a plaintiff need not prove intentional discrimination. Munson v. Del Taco, Inc., 46 Cal.4th 661, 678 (2009). The Unruh Act allows for monetary damages including automatic minimum penalties in the amount of $4,000 and attorneys' fees as “may be determined by the court.” Cal. Civ. Code § 52. Proof of actual damages is not required to recover statutory minimum damages under the Act. Botosan v. Paul McNally Realty, 216 F.3d 827, 835 (9th Cir. 2000).
As Sepulveda has demonstrated the sufficiency of his ADA claim, he has also made out an Unruh Act claim for disability discrimination. Accordingly, the second and third Eitel factors are satisfied.
3.The Sum of Money at Stake in the Action
Under the fourth Eitel factor, “the Court must consider the amount of money at stake in relation to the seriousness of Defendant's conduct.” Dr. JKL Ltd., v. HPC IT Educ. Ctr., 749 F.Supp.2d 1038, 1050 (N.D. Cal. 2010) (citation and quotation marks omitted). When the amount at stake is substantial or unreasonable in light of the allegations in the complaint, default judgment is disfavored. See Eitel, 782 F.2d at 1472 (affirming the denial of default judgment where the plaintiff sought $3 million in damages and the parties disputed material facts in the pleadings). “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, Sepulveda seeks a judgment of $2,773.75. This amount, plus any amount necessary to comply with an injunction (e.g., designating a “van accessible” parking space), is reasonable in light of Defendants' failure to defend against Sepulveda's adequately pled claims. See Baglietto, 2020 WL 3065939, at *6 ($13,715 is reasonable in ADA default judgment context); Heifetz v. Breed Props., 2017 WL 713303, at *3 (N.D. Cal. Feb. 23, 2017) ($12,690.50 is reasonable); Vogel v. Rite Aid Corp., 992 F.Supp.2d 998, 1012 (C.D. Cal. 2014) (finding $13,739.20 was reasonable and collecting other cases where $10,119.70 and $12,000.00 were reasonable and “a relatively small award of damages” in similar ADA cases). Accordingly, this factor weighs in favor of default judgment.
4. The Possibility of Dispute Concerning Material Facts
The fifth Eitel factor examines the likelihood of dispute between the parties regarding the material facts surrounding the case. Eitel, 782 F.2d at 1471-72. However, upon entry of default, the defendant is “deemed to have admitted all well-pleaded factual allegations” in the complaint. DirecTV, 503 F.3d at 851 (citing Fed.R.Civ.P. 55(a)). In the absence of any likely factual disputes, this factor favors entry of default judgment.
5. Whether Default was Due to Excusable Neglect
The sixth Eitel factor examines whether the defendant's failure to respond to the complaint was the result of excusable neglect. Eitel, 782 F.2d at 1471-72. Here, Sepulveda provided adequate notice of this action through proper service. See S.E.C. v. Internet Sols. for Bus. Inc., 509 F.3d 1161, 1166 (9th Cir. 2007) (“A signed return of service constitutes prima facie evidence of valid service which can be overcome only by strong and convincing evidence.”) (citations and quotation marks omitted). There is nothing in the record suggesting that Defendants' failure is based on excusable neglect. See Shanghai Automation, 194 F.Supp.2d at 1005 (default after proper service was not excusable neglect). Thus, this factor supports default judgment.
6. Policy Favoring Deciding a Case on its Merits
The last Eitel factor examines whether the policy of deciding a case based on the merits precludes entry of default judgment. Eitel, 782 F.2d at 1472. In Eitel, the Ninth Circuit admonished that “[c]ases should be decided on their merits whenever reasonably possible.” Id. “The existence of Federal Rule of Civil Procedure 55(b), however, shows that this policy is not dispositive.” McMillan Data Commc'ns, Inc. v. AmeriCom Automation Servs., Inc., 2015 WL 4380965, at *11 (N.D. Cal. July 16, 2015) (citing Kloepping v. Fireman's Fund, 1996 WL 75314, at *3 (N.D. Cal. Feb. 13, 1996)). Further, “deciding the case on the merits is impossible where a party refuses to participate.” Vietnam Reform Party, 416 F.Supp.3d at 970.
Given that Defendants have made no effort to participate in the proceedings, a decision on the merits is impracticable. “In situations such as this, Rule 55(b) allows the court to grant default judgment.” Bd. of Trs. v. Diversified Concrete Cutting, Inc., 2018 WL 3241040, at *5 (N.D. Cal. July 3, 2018), report and recommendation adopted sub nom. Bd. of Trs. as Trs. of Laborers Health & Welfare Tr. Fund for N. Cal. v. Diversified Concrete Cutting, Inc., 2018 WL 4775429 (N.D. Cal. July 27, 2018). Thus, because Defendants made no effort to respond to communication attempts by Sepulveda and have not participated in the proceedings, “[t]his factor thus weighs against, but does not preclude, entry of default judgment.” Vietnam Reform Party, 416 F.Supp.3d at 970.
7. Summary of the Eitel Factors
In sum, the majority of the Eitel factors weigh in favor of granting default judgment. Accordingly, the undersigned RECOMMENDS the District Court GRANT the motion and enter default judgment against Defendants Sergio Buelna and Julia Contreras.
C. Relief Sought
The Court next turns to the relief Sepulveda seeks. Once liability is established, the plaintiff must then establish that the requested relief is appropriate. Geddes v. United Fin. Grp., 559 F.2d 557, 560 (9th Cir. 1977). A “default judgment must not differ in kind from, or exceed in amount, what is demanded in the pleadings.” Fed.R.Civ.P. 54(c).
1. Injunctive Relief
Sepulveda requests an injunction to remove the unlawful barriers. “Injunctive relief is available under both the ADA and the Unruh Act.” Johnson v. RK Inv. Properties, Inc., 2019 WL 1575206, at *5 (N.D. Cal. Mar. 18, 2019), report and recommendation adopted, 2019 WL 1571071 (N.D. Cal. Apr. 11, 2019). 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) (citation and quotations 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. App'x 669, 670 (9th Cir. 2011) (quoting 42 U.S.C. § 12182(b)(2)(A)(iv)).
Under the regulation governing alterations of public accommodations and commercial facilities, an alteration “shall be made so as to ensure that, to the maximum extent feasible, the altered portions of the facility are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs.” 28 C.F.R. § 36.402(a)(1). Physical construction or alterations commenced on or after March 15, 2012 must comply with the 2010 ADA Standards for Accessible Design. 28 C.F.R. § 35.151(c)(2); Johnson v. Lababedy, 2016 WL 4087061, at *4 (E.D. Cal. Aug. 2, 2016) (citing 28 C.F.R. pt. 36, App. D § 4.1.2(5)(a); 36 C.F.R. pt. 1191, App. B & D (“2010 Standards”) § 208.2). Under the 2010 Standards, at least one in every six accessible parking spaces shall be “van parking spaces” (§ 208.2.4), at least one accessible route shall be provided from accessible parking spaces to the facility entrance they serve (§ 206.2.1), and accessible entrance must be provided (§ 206.4). Accordingly, the undersigned recommends the Court enter an injunction requiring Defendants to ensure the facility is accessible in compliance with the ADA, subject to the “readily achievable” standard.
2. Damages
Under the Unruh Act, a prevailing plaintiff is entitled to damages of “up to a maximum of three times the amount of actual damage but in no case less than four thousand dollars ($4,000).” Cal. Civ. Code § 52. However, Sepulveda's settlement agreement with Robert and Jeanne Lovi included all claims for statutory damages, and he therefore does not seek them here.
3. Attorneys' Fees
The ADA and Unruh Act both authorize a prevailing plaintiff to recover reasonable attorneys' fees. Specifically, the ADA provides that a district court, “in its discretion, may allow the prevailing party . . . a reasonable attorney's fee, including litigation expenses, and costs.” 42 U.S.C. § 12205. Similarly, under the Unruh Act, a prevailing party can recover “any attorney's fees that may be determined by the court.” Cal. Civ. Code § 52(a). A prevailing party is one who “achieve[s] a material alteration of the legal relationship of the parties” that is “judicially sanctioned.” Jankey v. Poop Deck, 537 F.3d 1122, 1129-30 (9th Cir. 2008) (internal quotation marks omitted).
The calculation of a reasonable fee award is a two-step process. Fischer v. SJB-P.D., Inc., 214 F.3d 1115, 1119 (9th Cir. 2000). First, a court begins by calculating the “lodestar figure, ” or presumptive award, by multiplying the hours reasonably spent on the litigation by the attorney's reasonable hourly rate. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). Second, the court may enhance or reduce the lodestar figure based on the factors articulated in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975), that were not subsumed in the initial lodestar determination. Fischer, 214 F.3d at 1119. “A strong presumption exists that the lodestar figure represents a reasonable fee, and therefore, it should only be enhanced or reduced in rare and exceptional cases.” Id. n.4 (internal quotation marks omitted).
In addition to permitting recovery of attorney's fees, the ADA permits a district court, in its discretion, to award “litigation expenses” and “costs” to a prevailing party. 42 U.S.C. § 12205. “Litigation expenses” include reasonable out-of-pocket expenses that would normally be charged to a fees-paying client, such as expert witness fees, certain travel expenses, and the preparation of exhibits. See Lovell v. Chandler, 303 F.3d 1039, 1058-59 (9th Cir. 2002); Riker v. Distillery, 2009 WL 4269466, at *5 (E.D. Cal. Nov. 25, 2009). However, “unlike the ADA, the [] Unruh Act do[es] not provide for out-of-pocket litigation expenses.” Rodriguez v. Barrita, Inc., 53 F.Supp.3d 1268, 1294 (N.D. Cal. 2014); Johnson v. Hey Now Props. LLC, 2019 WL 586753, at *4 (E.D. Cal. Feb. 13, 2019) (“Unlike the ADA, the Unruh Act contains no mention of litigation expenses as allowable costs.”); Cal. Civ. Code § 52(a) (failing to mention out-of-pocket litigation expenses).
a. Reasonableness of Hourly Billing Rate
To determine the appropriate lodestar amount, the Court must first assess the reasonableness of counsel's claimed hourly billing rate. Credit Managers Ass'n of S. California v. Kennesaw Life & Acc. Ins. Co., 25 F.3d 743, 750 (9th Cir. 1994). Courts 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. The applicant bears the burden to produce sufficient evidence that the rates claimed for its attorneys are in line with prevailing market rates. Fischer, 214 F.3d at 1121 (citing Hensley, 461 U.S. at 433). “Affidavits of the plaintiffs' attorney and other attorneys regarding prevailing fees in the community, and rate determinations in other cases, particularly those setting a rate for the plaintiffs' attorney, are satisfactory evidence of the prevailing market rate.” U.Steelworkers of Am. v. Phelps Dodge Corp., 896 F.2d 403, 407 (9th Cir. 1990). Put differently, the party seeking fees bears the burden to prove the reasonableness of hours expended using detailed time records documenting completed tasks and time expended. Hensley, 461 U.S. at 437; Roberts v. City of Honolulu, 938 F.3d 1020, 1024 (9th Cir. 2019) (“It is the responsibility of the attorney seeking fees to submit evidence to support the requested hourly rate.”).
When a party seeking fees submits declarations, courts must consider those declarations and cannot substitute that analysis by only considering previous fee awards. Roberts, 938 F.3d at 1024 (“The district court diverged from the applicable standard in discarding the declarations entirely and considering only previous fee awards in determining the prevailing market rate.”) (emphasis in original). Indeed, the Ninth Circuit has explained that solely “[e]xamining prior fee awards to [even the same attorneys] in the district [is] not an acceptable substitute for considering declarations submitted by [that attorney], and explaining why those declarations did or did not establish the prevailing hourly rate in the district.” Id. at 1025.
At the same time, district courts 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.” Vogel v. Harbor Plaza Ctr., LLC, 893 F.3d 1152, 1158 (9th Cir. 2018) (quotation marks omitted). The purpose of granting fees in cases like the instant case 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. (quotation marks, citations, and internal alterations omitted).
Here, Sepulveda's counsel, Richard Mac Bride, seeks $350 per hour. Mac Bride Decl. ¶ 8, ECF No. 34-1. The Court finds this rate reasonable and notes Mac Bride has been awarded the same rate for similar work in ADA cases in this District. See, e.g., Sepulveda v. Cong, 2020 WL 7232900, at *7; Castillo-Antonio v. Iqbal, 2017 WL 1113300, at *6 (N.D. Cal. Mar. 24, 2017); Castillo-Antonio v. Alvarez, 2016 WL 4267739, at *4 (N.D. Cal. July 22, 2016). This rate is also comparable to that awarded in other cases to attorneys with similar numbers of years of experience. See Kalani v. Starbucks Corp., 2016 WL 379623, at *5 (N.D. Cal. Feb. 1, 2016) (awarding hourly rate of $350 for an attorney who stated that she had prosecuted close to 1, 000 civil rights actions in more than 15 years of practice, which included seven years spent specializing almost exclusively in disability access litigation). Accordingly, the undersigned RECOMMENDS that the Court award $350 per hour.
b. Reasonableness of Hours Billed
Having determined the reasonable hourly rate to be applied, the undersigned proceeds to determine the number of hours reasonably expended on the litigation. Fischer, 214 F.3d at 1119. The Court “may not attempt to impose its own judgment regarding the best way to operate a law firm, nor to determine if different staffing decisions might have led to different fee requests.” Moreno v. City of Sacramento, 534 F.3d 1106, 1115 (9th Cir. 2008). At the same time, however, the Ninth Circuit has recently explained that “district courts have a duty to ensure that claims for attorneys' fees are reasonable, and a district court does not discharge that duty simply by taking at face value the word of the prevailing party's lawyer for the numbers of hours expended on the case. Rather, a district court must ensure that the winning attorneys have exercised billing judgment.” Vogel, 893 F.3d at 1160 (emphasis in original and quotation marks and citations omitted).
Mac Bride seeks fees only for the work done after the dismissal of Robert and Jeanne Lovi. Mot. at 21; Mac Bride Decl. ¶ 8. This totals $2,555.00 and is broken down by activity as follows:
| DATE | ACTIVITY | TIME |
| 3/28/21 | Draft status report for the judge | 0.5 |
| 3/29/21 | Arrange with process server for service of process on defendants Contreras and Buelna. | 0.3 |
| 5/24/21 | Draft request for entry of default against defendant Julia Contreras. | 0.7 |
| 6/17/21 | Draft request for entry of default against defendant Sergio Buelna. | 0.8 |
| 6/25/21 | Draft motion for default judgment against defendants Julia Contreras and Sergio Buelna. | 5.0 |
| Total hours | 7.3 | |
| @ $350 per hour | $2,555.00 |
Having reviewed Mac Bride's billing record, the undersigned finds the time billed reasonable, with the exception of the time spent drafting the motion for default judgment. While Mac Bride states he spent five hours drafting the motion, it is almost identical to motions for default judgment he has filed in other cases in this District. See. e.g., Sepulveda v. Cong, No. 20-cv-2172-WHO, ECF No. 23; Castillo-Antonio v. Lam, No. 18-cv-4593-HSG, ECF No. 10. Indeed, the substantive legal argument of the motions are identical, other than factual information specific to the cases. The undersigned notes that Mac Bride has previously had fees reduced for this overbilling. See Sepulveda v. Cong, 2020 WL 7232900, at *7-8 (reducing hours for drafting motion for default judgment from six to three). Accordingly, the undersigned recommends the Court reduce Mac Bride's hours by two, for a total of 5.3 hours. Thus, the undersigned recommends the award of $1,855 in attorney's fees.
c. Lodestar Calculation
Based on this analysis, the undersigned finds Sepulveda's counsel's rates and hours expended are reasonable and therefore recommends the District Court award Plaintiff attorneys' fees in the amount of $ 1, 855.
3. Costs
The court also will award costs if “the prevailing practice in a given community [is] for lawyers to bill those costs separately from their hourly rates.” Trs. of Contrs. Indus. & Laborers Health & Welfare Tr. v. Redland Ins. Co., 460 F.3d 1253, 1258 (9th Cir. 2006) (quotation marks omitted); see 29 U.S.C. § 1132(g)(2)(D). Here, Sepulveda seeks costs in the amount of $218.75 for service of the amended complaint on Buelna and Contreras. The undersigned finds these reasonable and recommends the Court award $218.75 in service costs. See Sheet Metal Workers Local 104 Health Care Tr. v. Nichols Plumbing & Heating, Inc., 2016 WL 8313928, at *9 (N.D. Cal. Dec. 19, 2016) (“[C]ourts have routinely awarded costs for service, messenger services, and investigatory fees in actions brought under 29 U.S.C. § 1132(g)(2)(D).”); Sepulveda v. Cong, 2020 WL 7232900, at *8 (awarding $281 in service costs).
V. CONCLUSION
Based on the above analysis, the undersigned RECOMMENDS the District Court GRANT Plaintiff Richard Sepulveda's Motion for Default Judgment and enter judgment against Defendants Sergio Buelna and Julia Contreras. The undersigned further RECOMMENDS the Court:
(1) GRANT Sepulveda's request for injunctive relief requiring Defendants to provide, subject to the “readily achievable” standard, accessible parking, paths of travel, seating, and counter access at United Birrieria, located at 2170 Washington Ave., San Leandro, California; and
(2) AWARD Sepulveda attorney's fees and costs in the amount of $2,073.75, representing $1,855 in attorney's fees and $218.75 in costs.
Sepulveda shall serve a copy of this Report and Recommendation upon Defendants and file proof of service thereafter. Pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b)(2), a party may serve and file any objections within 14 days after being served. Failure to file objections within the specified time may waive the right to appeal the district court's order.
IT IS SO RECOMMENDED.