Opinion
20-cv-02071-PJH (AGT)
06-11-2021
SAMUEL LOVE, Plaintiff, v. RAED MUSTAFA, et al., Defendants.
REPORT AND RECOMMENDATION TO GRANT PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT
Re: Dkt. No. 29
ALEX G. TSE, UNITED STATES MAGISTRATE JUDGE
Judge Hamilton, the presiding district judge, referred plaintiff's motion for default judgment to the undersigned for a report and recommendation. That report follows, and with it the recommendation that Judge Hamilton grant the motion, with a small adjustment to attorneys' fees.
1. Jurisdiction: The claims are for violations of the Americans with Disabilities Act and California's Unruh Civil Rights Act. The Court has jurisdiction to consider them pursuant to 28 U.S.C. §§ 1331 and 1367. The Court also has jurisdiction over the defendant because he was personally served with process within California. See Dkt. 25 (executed summons); Burnham v. Superior Court, 495 U.S. 604, 619 (1990) (“[J]urisdiction based on physical presence alone constitutes due process . . . .”).
2. Merits of the Claims: Plaintiff has stated plausible claims for relief. He alleges that he is a paraplegic who uses a wheelchair; that he visited a clothing store owned by the defendant; that the store's sales counter was too high for him to comfortably use (43 inches high with no lowered section); that the counter deters him from returning to the store; and that the counter could be modified without much difficulty or expense. See Dkt. 24, FAC ¶¶ 1-2, 8-20. These allegations are sufficient to state a claim for violation of Title III of the ADA. See Molski v. M.J. Cable, Inc., 481 F.3d 724, 730 (9th Cir. 2007) (identifying Title III elements); 36 C.F.R. Pt. 1191, App. D § 904.4.1 (requiring sales counters to include a 36-inch-high segment, to accommodate wheelchairs); Love v. Undefeated Apparel Inc., No. 20-CV-00330-WHA, 2021 WL 1375911, at *3-4 (N.D. Cal. Apr. 12, 2021) (concluding that similar allegations satisfied the “readily achievable removal” element of Title III, because “a carpenter could [plausibly] rework the counter to lower it without undue expense”). Conduct that violates the ADA also violates the Unruh Act, see Cal. Civ. Code § 51(f), so plaintiff's Unruh Act claim is also well pled.
A prior version of the complaint didn't explain why the sales counter was inaccessible. That detail is required, see Whitaker v. Tesla Motors, Inc., 985 F.3d 1173, 1177 (9th Cir. 2021), so the Court denied plaintiff's first motion for default judgment. See Dkt. 21-22. The amended complaint provides the detail that was missing: the sales counter, at 43 inches tall, is too high for plaintiff to comfortably use. The amended complaint complies with Whitaker.
3. Eitel Factors: The factors identified in Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986), support default judgment. Plaintiff will be prejudiced if default judgment isn't entered; he won't have another remedy. The sum of money at stake (less than $10,000) is modest. The allegations are sufficient to support the merits of the claims. There isn't reason to believe that defendant's default was due to excusable neglect, nor is there evidence of a dispute concerning material facts. And although decisions on the merits are favored, defendant's default has made a decision on the merits unfeasible.
4. Injunctive Relief: Plaintiff seeks an order requiring defendant to provide a wheelchair-accessible sales counter, in compliance with ADA regulations. This relief is warranted. See 42 U.S.C. § 12188(a)(2) (declaring that affected individuals may obtain “an order to alter facilities to make such facilities readily accessible to and usable by individuals with disabilities”).
5. Damages: Plaintiff seeks $4,000 in statutory damages based on one visit to defendant's store. This relief is also warranted. See Cal. Civ. Code § 52(a) (providing $4,000 in statutory damages for each Unruh Act violation).
6. Attorneys' Fees: The ADA permits prevailing plaintiffs to recover reasonable attorneys' fees. See 42 U.S.C. § 12205. Fees are calculated by multiplying an attorney's hourly rate by the hours worked. Both the hourly rate and the hours worked must be reasonable. See Vogel v. Harbor Plaza Ctr., LLC, 893 F.3d 1152, 1158 (9th Cir. 2018).
Plaintiff is represented by attorneys from Potter Handy LLP (also known as the Center for Disability Access). On the invoice for their work, counsel's billing rates are listed: $650/hour for Mark Potter and Russell Handy (attorneys with 20-plus years of experience), $450/hour for Chris Seabock (an attorney with nine years of experience), and $400/hour for Faythe Gutierrez and Josie Zimmermann (attorneys with six and three years of experience respectively). Legal assistants at the firm billed $100/hour for their work. See Dkt. 29-3.
In the last year alone, numerous judges in this district have held that these rates are unreasonably high, given the routine and formulaic nature of the ADA cases litigated by Potter Handy LLP. The same judges have noted that the evidence regularly submitted to support these rates-the 2010 Pearl declaration, the 2018 Real Rate Report, and the 2019 O'Connor declaration-isn't particularly persuasive. It is outdated (the Pearl declaration), isn't focused on the market for ADA legal work (the 2018 Real Rate Report), or identifies a range of rates without establishing that Potter Handy LLP's rates should fall on the higher end of that range (the O'Connor declaration). Based on these factors, these judges have held that the following discounted rates are more appropriate: $475/hour (not $650/hour) for Mark Potter and Russell Handy, $350/hour (not $450/hour) for attorneys at Chris Seabock's experience level, and $250 or $300/hour (not $400/hour) for attorneys at Faythe Gutierrez's and Josie Zimmermann's experience levels.
See Love v. Undefeated Apparel Inc., No. 20-CV-00330-WHA, 2021 WL 1375911, at *5-6 (N.D. Cal. Apr. 12, 2021); Love v. Truong, No. 19-CV-03240-CRB (JSC), 2021 WL 647484, at *7-9 (N.D. Cal. Feb. 3, 2021), adopted, 2021 WL 634995 (N.D. Cal. Feb. 18, 2021); Johnson v. Chao, No. 20-CV-04548-YGR (KAW), 2021 WL 1430799, at *7-8 (N.D. Cal. Feb. 2, 2021), adopted, 2021 WL 1428317 (N.D. Cal. Apr. 15, 2021); Johnson v. Cortese, No. 5:19-CV-02671-EJD, 2020 WL 7495164, at *8-10 (N.D. Cal. Dec. 21, 2020); Johnson v. In Suk Jun, No. 19-CV-06474-BLF, 2020 WL 6507995, at *7-10 (N.D. Cal. Nov. 5, 2020); Johnson v. Baird Lands, Inc., No. 18-CV-05365-VKD, 2020 WL 3833278, at *2-5 (N.D. Cal. July 8, 2020); Johnson v. Baglietto, No. 19-CV-06206-HSG (TSH), 2020 WL 3065939, at *9-12 (N.D. Cal. May 21, 2020), adopted, 2020 WL 3060902 (N.D. Cal. June 9, 2020).
These decisions are persuasive. They were based on the same evidence submitted here, and their reasoning is sound. The undersigned uses the same reduced rates. ($300 not $250/hour will be used for Gutierrez and Zimmermann, as the O'Connor declaration supports the higher amount.)
Last year, in a similar Potter Handy LLP case, the undersigned concluded that higher rates, ranging from $450/hour for mid-level attorneys up to $650/hour for Mark Potter and Russell Handy, were reasonable. See Johnson v. Khalsa Ins. Agency, Inc., No. 19-CV-02725-SBA (AGT), Dkt. 25 at 6 (Mar. 24, 2020), adopted, Dkt. 26 (Apr. 8, 2020). The cases cited above (in footnote 2) postdated that decision. Having now considered them, the undersigned finds that the reduced rates set forth above better reflect the market rate for the work performed.
As for the rate billed by counsel's legal assistants, $100/hour, that rate is reasonable and need not be reduced. See Johnson v. Shahkarami, No. 20-CV-07263-BLF, 2021 WL 1530940, at *10 (N.D. Cal. Apr. 19, 2021) (holding, in another ADA case litigated by Potter Handy LLP, that $100/hour was a reasonable rate for paralegal fees).
Collectively, counsel and their legal assistants billed 6.51 hours, a modest amount of time that was reasonable under the circumstances. Of this, Mark Potter billed 0.65 hours, Russell Handy billed 0.60 hours, Chris Seabock billed 0.30 hours, Faythe Gutierrez billed 2.53 hours, Josie Zimmermann billed 0.05 hours, and legal assistants billed 2.28 hours. When these hours are multiplied by the reduced rates above, the result is a fee award of $1,700.75. This amount, which is $506.75 less than the $2,207.50 award sought by plaintiffs counsel, is reasonable and should be included in the judgment.
7. Costs: The ADA permits prevailing plaintiffs to recover reasonable litigation costs. See 42 U.S.C. § 12205. The litigation costs incurred in this case, totaling $835, were reasonable and should also be included in the judgment.
* * *
The undersigned recommends that Judge Hamilton grant plaintiffs motion, enter default judgment in the amount of $6,535.75 (consisting of $4,000 in statutory damages, $1,700.75 in attorneys' fees, and $835 in costs), and order defendant to provide a wheelchair-accessible sales counter at the store in question, New York Mens, 925 Blossom Hill Road, San Jose, CA.
By June 18, 2021, plaintiff must serve defendant with a copy of this report and file proof of service. Any party may object to the report within fourteen days of being served with a copy. See 28 U.S.C. § 636(b).
IT IS SO RECOMMENDED.