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noting that "a defendant may be deemed to have 'appeared' for purposes of Fed. R. Civ. P. 55 if the defendant clearly manifested an intent to defend the action"
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Case No. 05-CV-1615 WQH (BLM).
April 19, 2006
ORDER
The matter before the court is Plaintiffs' Application for Default Judgment Against Defendant Claudia O. Granados d.b.a. Chiquita 99 Cent. (Doc. No. 25.) The Court finds this matter suitable for submission on the papers and without oral argument pursuant to Local Civil Rule 7.1(d). The Court now issues the following rulings.
BACKGROUND
On August 15, 2005, Plaintiffs filed a Complaint for disability discrimination in public accommodations, pursuant to the Americans with Disabilities Act ("ADA") and various California accessibility laws, against Defendants Darwish Plaza, Ali Darwish, Diana Herrera d.b.a. Dulceria Fiesta and Claudia O. Granados d.b.a. Chiquita 99 Cent. (Doc. No. 1.) Plaintiffs allege that Defedant Ali Darwish is the owner, operator and/or lessor of Defendant Darwish Plaza, a shopping center located in National City, California. Complaint ¶ 3. Defendants Dulceria Fiesta and Chiquita 99 Cent are sales establishments located within Darwish Plaza. Id.
Plaintiffs' Complaint alleges, in part, [Plaintiff Theodore A. Pinnock] was unable to use and/or had difficulty using the public accommodations' entrance, interior path of travel, and cashier counter facilities . . . Defendants failed to remove access barriers within the public accommodations' entrance, interior path of travel, and cashier counter facilities of Defendants' CHIQUITA 99 CENT establishment. . . . The entrance fails to be accessible, as merchandise impermissibly blocks a substantial portion of the entrance, making it extremely difficult for a wheelchair to gain access into the facility.
16. The path of travel in the store fails to be compliant, as it is excessively narrow. The cashier counter inside the store fails to be accessible, as it is excessively high. There fails to be any signage informing disabled patrons that assistance is available upon request.Complaint ¶¶ 14-16.
On August 20, 2005, Claudia O. Granados d.b.a. Chiquita 99 Cent ("Defendant") was properly served with a copy of the Summons and Complaint. Affidavit of Michelle L. Wakefield in Support of Request for Entry of Clerk's Default at 2. Defendant has since failed to appear or otherwise defend in this action. Id. On October 19, 2005, the Clerk of the Court entered default against Defendant. (Doc. No. 15.) On November 18, 2005, Plaintiffs filed an Application for Default Judgment Against Defendant Claudia O. Granados d.b.a. Chiquita 99 Cent. (Doc. No. 25.) Defendant has not filed an opposition.
LEGAL STANDARD
Fed.R.Civ.P. 55(b) provides that judgement by default may be entered by the Court, but no judgment by default shall be entered against an infant or incompetent person unless represented in the action by a general guardian. Fed.R.Civ.P. 55(b). No party in default is entitled to notice under Rule 55 unless he has "appeared" in the action. Id. If a party in default has "appeared," the party must be served with written notice of the application for judgment at least three days prior to the hearing. Id. "Normally, an appearance in an action involves some presentation or submission to the court. But because judgments by default are disfavored, a court usually will try to find that there has been an appearance by defendant." Direct Mail Specialists, Inc. v. Eclat Computerized Tech., Inc., 840 F.2d 685, 689 (9th Cir. 1988). Therefore, a defendant may be deemed to have "appeared" for purposes of Fed.R.Civ.P. 55 if the defendant clearly manifested an intent to defend the action. Id.
"The appearance need not necessarily be a formal one, i.e., one involving a submission or presentation to the court. In limited situations, informal contacts between the parties have sufficed when the party in default has thereby demonstrated a clear purpose to defend the suit." Wilson v. Moore Assocs., Inc., 564 F.2d 366, 369 (9th Cir. 1977).
The entry of default judgment lies within the sound discretion of the trial court. Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). The Ninth Circuit holds that a district court may consider the following Eitel factors in exercising its discretion to award 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).
"In applying this discretionary standard, default judgments are more often granted than denied." Philip Morris USA, Inc. v. Castworld Products, Inc., 219 F.R.D. 494, 498 (C.D. Cal. 2003) ( quoting PepsiCo, Inc. v. Triunfo-Mex, Inc., 189 F.R.D. 431, 432 (C.D. Cal. 1999)). After a default has been entered by the court clerk, the general rule of law is that the factual allegations of the Complaint, except those relating to the amount of damages, will be taken as true. TeleVideo Systems, Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987).
"Plaintiff is required to prove all damages sought in the complaint. In addition, '[a] judgment by default shall not be different in kind [or] exceed in amount that prayed for in the [complaint].' . . . In determining damages, a court can rely on the declarations submitted by the plaintiff or order a full evidentiary hearing." Id. ( quoting Fed.R.Civ.P. 54(c)).
Plaintiffs' burden in "proving up" damages is lenient; if Plaintiffs properly allege proximate cause in the complaint, it is admitted upon default. Id. "However, if facts necessary to determine damages are not contained in the complaint, or are legally insufficient, they will not be established by default." Id. (citing Cripps v. Life Ins. Co. of N. America, 980 F.2d 1261, 1267 (9th Cir. 1992)).
DISCUSSION
A. Procedural Requirements
Plaintiffs have satisfied the procedural requirements for default judgment pursuant to Fed.R.Civ.P. 55(a). First, the Court Clerk properly entered default against Defendant for failure to respond to the Complaint. (Doc. No. 15.) Second, Defendant is not an infant or incompetent person or in the military service or otherwise exempted under the Solders' and Sailors' Civil Relief Act of 1940. Pltfs.' Memo of PAs in support of Application for Default Judgment Against Def. Claudia O. Granados at 2. Third, Defendant has been served with Plaintiffs' Application for Default Judgment as required by Fed.R.Civ.P. 55(b)(2). Id.
B. Standing
"Standing is an essential . . . part of the case-or-controversy requirement of Article III." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Where a plaintiff lacks Article III standing to sue, the Court lacks jurisdiction over the action. Cetacean Community v. Bush, 386 F.3d 1169, 1174 (9th Cir. 2004). To establish standing, Plaintiffs bear the burden of showing: (1) injury-in-fact, or the invasion of a legally protected interest, that is both (a) concrete and particularized, and (b) actual or imminent; (2) a causal connection between the injury and the conduct complained of; and (3) a likelihood that a favorable decision will regress the wrong. Lujan, 504 U.S. at 560.
In order to establish standing under the ADA for injunctive relief, "[Plaintiffs] must demonstrate that [they have] suffered or [are] threatened with a concrete and particularized legal harm, coupled with a sufficient likelihood that [they] will again be wronged in a similar way." Bird v. Lewis Clark College, 303 F.3d 1015, 1019 (9th Cir. 2002) (quotations and citations omitted). Plaintiffs can establish injury-in-fact by showing that they have encountered barriers at a place of public accommodation and that they intend to return to the public accommodation if it is made accessible. Pickern v. Holiday Quality Foods, Inc., 293 F.3d 1133, 1138 (9th Cir. 2002); see also Molski v. Price, 2244 F.R.D. 479, 483 (C.D. Cal. 2004).
Plaintiffs' Complaint alleges that Plaintiff Theodore Pinnock has Cerebral Palsy and due to this impairment he uses a wheelchair. Complaint ¶ 6. Plaintiff Theodore Pinnock alleges that "he was unable to use and/or had difficulty using the public accommodations' entrance, interior path of travel and cashier counter facilities." Complaint ¶¶ 14-17. He alleges that he suffered injury-in-fact because he patronized Defendant's store and Defendant discriminated against him by failing to provide full and equal access to their goods and services, failing to make alternations in such a manner that the altered portions of the facility are readily accessible and usable by individuals with disabilities, failing to remove architectural barriers and failing to modify practices, policies and procedures in violation of 42 U.S.C. § 12812(a). Plaintiff Theodore Pinnock also states that he "desires to return to [Defendant's place] of business in the immediate future." Complaint ¶¶ 30, 36. These allegations satisfy the first element necessary to establish standing.
The second element of standing requires that there be a causal connection between a plaintiff's injury and the defendant's conduct. Lujan, 504 U.S. at 560. 42 U.S.C. § 12182(a) expressly holds "any person who owns, leases (or leases to), or operates a place of public accommodation" liable for ADA noncompliance. 42 U.S.C. § 12182(a). Plaintiffs have alleged that Defendant owns, operates, licenses, franchises, and/or is doing business as Chiquita 99 Cent and that Defendant discriminated against Plaintiffs by violating 42 U.S.C. § 12182(a). Complaint ¶ 3. Therefore, Plaintiffs have established the second element of standing.
Lastly, Plaintiffs must show that the requested relief is available to redress the claimed injury. Lujan, 504 U.S. at 560. Under the ADA, injunctive relief is available to any person who is being subjected to discrimination on the basis of disability. 42 U.S.C. § 12188(a)(1). As discussed above, Plaintiff has sufficiently alleged that Defendant's conduct constitutes ADA violations and that Plaintiff has been subject to discrimination on the basis of disability because of those violations. Therefore, injunctive relief is available under the ADA and Plaintiff has established the third element of standing. Accordingly, the Court finds that Plaintiff has established the standing necessary to pursue an ADA cause of action.
C. Eitel Factors Support Granting Default Judgment Against Defendant
1. Possibility of Prejudice to Plaintiffs
The first Eitel factor "considers whether the plaintiff will suffer prejudice if default judgment is not entered." PepsiCo, Inc. v. Cal. Sec. Cans, 238 F. Supp. 2d 1172, 1177 (C.D. Cal. 2002). "[S]ince, by defaulting, Defendant is deemed to have admitted the truth of [Plaintiffs'] averments," Plaintiffs will likely suffer prejudice because Defendants will continue to violate the provisions of the ADA and Plaintiffs "would be without other recourse for recovery." Philip Morris USA, Inc. v. Castworld Products, Inc. 219 F.R.D. 494, 499 (C.D. Cal. 2003). Therefore, this factor favors entry of judgment against the Defendant.
2. Substantive Merits and Sufficiency of the Complaint
The second and third Eitel factors require that a plaintiff "state a claim on which the [plaintiff] may recover." Philip Morris U.S.A., Inc. v. Castworld Prods., 219 F.R.D. 494, 499 (C.D. Cal. 2003) (internal quotation marks omitted). In the instant action, Plaintiffs assert the following claims: (1) Denial of Full and Equal Access in violation of 42 U.S.C. § 12182(b)(2)(A)(iv) and 42 U.S.C. § 12188; (2) Failure to Make Alterations in Such a Manner that the Altered Portions of the Facility are Readily Accessible and Usable by Individuals with Disabilities in violation of 42 U.S.C. § 12182(b)(2)(A)(iv) and 42 U.S.C. § 12188; (3) Failure to Remove Architectural Barriers in violation of 42 U.S.C. § 12182(b)(2)(A)(iv) and 42 U.S.C. § 12188; (4) Failure to Modify Practices, Policies and Procedures in violation of 42 U.S.C. § 12182(b)(2)(A)(iv) and 42 U.S.C. § 12188; (5) Denial of Full and Equal Access pursuant to California Civil Code §§ 51, 52 and 54.1; (6) Failure to Modify Practices, Policies and Procedures in violation of California Civil Code § 54.1; and (7) Violation of the Unruh Act.
(a) The ADA Claims under 42 U.S.C. §§ 12182(b)(2)(A)(iv) and 12188
"The ADA forbids discrimination against disabled individuals in major areas of public life, among them employment (Title I of the Act), public services (Title II), and public accommodations (Title III)." PGA Tour, Inc. v. Martin, 532 U.S. 661, 675 (2001) (internal citations omitted). To prevail on their claims under the Americans with Disabilities Act of 1990 under Title III of the ADA pursuant to 42 U.S.C. § 12182(b)(2)(A)(iv) and 42 U.S.C. § 12188, Plaintiffs must make a prima facie showing that (1) Plaintiff Theodore Pinnock is disabled as that term is defined by the ADA; (2) Defendant is a private entity that owns, leases, or operates a place of public accommodation; and (3) Plaintiff Theodore Pinnock was denied full and equal treatment because of his disability. Parr v. LL Drive-Inn Restaurant, 96 F. Supp. 2d 1065, 1085 (D. Haw. 2000). "Plaintiffs must additionally show that [they were] denied access under circumstances which give rise to the inference that such denial was based solely on [the disability]." Mayberry v. Von Valtier, 843 F. Supp. 1160, 166 (E.D. Mich. 1994).
The ADA defines "disability" as a physical or mental impairment that substantially limits one or more of the major life activities of an individual. 42 U.S.C. § 12102(2)(A). Regulations promulgated under the ADA provide that walking is a "major life activity." 28 C.F.R. § 36.104. Plaintiffs state in their Complaint that Plaintiff Theodore Pinnock has cerebral palsy and due to this impairment he uses a wheelchair. Complaint ¶¶ 6, 23. Accordingly, Plaintiff is substantially limited in the major life activity of walking and disabled as the term is defined by the ADA.
Plaintiffs must also show that Defendant is a private entity that owns, leases or operates a place of public accommodation. Parr, 96 F. Supp. 2d at 1085. Plaintiffs' Complaint alleges that Defendant is a sales establishment located in a shopping center in National City, California. Complaint ¶ 3. Shopping centers and sales establishments are places of public accommodation and are subject to the ADA. 42 U.S.C. § 12181(7)(E).
Plaintiffs must further show that Plaintiff Theodore Pinnock was denied full and equal treatment solely because of his disability. Parr, 96 F. Supp. 2d at 1085. Plaintiffs allege in their Complaint that Plaintiff Theodore Pinnock was effectively denied access to Defendant's sales establishment because "the path of travel in the store fails to be complaint, as it is excessively narrow. The cashier counter inside the store fails to be accessible, as it is excessively high. There fails to be any signage informing disabled patrons that assistance is available upon request." Complaint ¶ 16. Plaintiffs also allege that the entrance was inaccessible because it was blocked by merchandise. Complaint ¶ 15. These circumstances give rise to the inference that the denial of access was based solely on Plaintiff's disability.
In order to succeed on an ADA claim of discrimination due to an architectural barrier, Plaintiffs' must additionally prove that "(1) the existing facility at the defendant's place of business presents an architectural barrier prohibited under the ADA, and (2) the removal of the barrier is readily achievable." Organization for Advancement of Minorities with Disabilities v. Brick Oven Restaurant, 406 F. Supp. 2d 1120, 1129 (S.D. Cal. 2005); 42 U.S.C. § 12182(b)(2)(A)(iv).
The ADA Title III Technical Assistance Manual, § III-4.4100, defines architectural barriers as "physical elements of a facility that impede access by people with disabilities. These barriers include more than obvious impediments such as steps and curbs that prevent access by people who use wheelchairs. . . . Impediments caused by the location of temporary or movable structures, such as furniture, equipment, and display racks, are also considered architectural barriers." ADA Title III Technical Assistance Manual, § III-4.4100. Plaintiffs' Complaint avers that the Defendant is in violation of the ADAAG provisions and California's Title 24 Building Code requirements because Defendant's entrance doors, when propped open, impermissibly block the entrance way of neighboring stores and Defendant's own entrance is blocked by merchandise. Complaint ¶ 15. Accordingly, the Court finds that the Plaintiffs have sufficiently pled that Defendant's place of business presents architectural barriers prohibited by the ADA.
Plaintiffs must also establish that the removal of the barrier is readily achievable in order to succeed on an ADA claim of discrimination due to an architectural barrier. 42 U.S.C. § 12182(b)(2)(A)(iv). The ADA defines "readily achievable" as "easily accomplishable and able to be carried out without much difficulty or expense," and lists four factors to assist "[i]n determining whether an action is readily achievable." 42 U.S.C. § 12181(9). The ADA Regulations mandate that a public accommodation shall remove architectural barriers where such removal is readily achievable and provide examples of steps to remove barriers, such as repositioning shelves, rearranging tables, chairs, vending machines, display racks, and other furniture, and widening doors. 28 C.F.R. §§ 36.304(a), (b). In the present case, removal of the barriers by Defendant is readily achievable; Defendant can avoid propping open its entrance doors so that they impermissibly block neighboring stores' entrances and remove merchandise from its own entrance without much difficulty or expense.
42 U.S.C. 12181(9) provides:
In determining whether an action is readily achievable, factors to be considered include —
(A) the nature and cost of the action needed under this chapter;
(B) the overall financial resources of the facility or facilities involved in the action; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such action upon the operation of the facility;
(C) the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities; and
(D) the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative or fiscal relationship of the facility or facilities in question to the covered entity.
Plaintiff has satisfied each of the elements required to state a claim for the violation of the provisions of the ADA. Plaintiff is disabled because he uses a wheelchair pursuant to 42 U.S.C. § 12102(2)(A) and 28 C.F.R. § 36.104. Defendant owns, leases or operates a sales establishment that is a place of public accommodation under the ADA pursuant to 42 U.S.C. § 12181(7)(E). Plaintiff demonstrated that he was subject to discrimination because of his disability due to the entrance barriers, width of the travel pathways, excessively high cashier counters and lack of signage informing him that help is available upon request. Finally, the removal of entrance barriers is readily achievable, pursuant to 28 C.F.R. § 36.304(b)(3), (4), (8). Accordingly, the Court finds that Plaintiffs have properly set out the necessary elements for their ADA causes of action.
(b) California State Law Claims under Cal. Civ. Code §§ 51, 54 and 54.1
Plaintiffs aver that Plaintiff Theodore Pinnock was denied full and equal access to the Defendants' goods, services, facilities, privileges, advantages, or accommodations within a public accommodation owned, leased, and/or operated by Defendant thereby violating Cal. Civ. Code § 51, also known as the Unruh Civil Rights Act ("Unruh Act") and Cal. Civ. Code §§ 54 and 54.1, also known as the California Disabled Persons Act. The Unruh Act and California Disabled Persons Act both provide that "[a] violation of the right of an individual under the [ADA] also constitutes a violation of this section." Cal. Civ. Code §§ 51(f), 54(c), 54.1(d). As the Court has concluded that Plaintiffs' Complaint properly sets out the necessary elements for their ADA claims, the Court finds that Plaintiffs have also properly set out the necessary elements for their Unruh Act and California Disabled Persons Act claims.
A violation of the Unruh Act usually requires proof of intentional discrimination in public accommodations in violation of the terms of the Act. Harris v. Capital Growth Investors XIV, 52 Cal. 3d 1142, 1175 (1991). However, no showing of intentional discrimination is required when the Unruh Act violation is premised on an ADA violation. Lentini v. California Center for the Arts, 370 F.3d 837, 846-47 (9th Cir. 2004).
Accordingly, the second and third Eitel factors favor the entry of default judgment against Defendant. 3. Amount at Stake
The fourth Eitel factor considers the amount at stake in relation to the seriousness of Defendant's conduct. Eitel, 782 F.2d at 1471-72. The Unruh Act provides that whoever violates Cal. Civ. Code § 51 is liable for "each and every offense for the actual damages and any amount that may be determined by a jury, or a court sitting without a jury, 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 in addition thereto." Cal. Civ. Code § 52(a). Plaintiffs seeks a total of $16,276.68 consisting of the following: (1) $12,000.00 in statutory damages for entrance architectural barriers, impermissibly narrow travel pathways and an impermissibly high cashier counter without any signage informing disabled patrons that assistance is available upon request; (2) attorney's fees in the sum of $3,700.00 pursuant to 42 U.S.C. §§ 12188(a), (b) and Cal. Civ. Code §§ 52(a) and 54.3; and (3) costs of $576.68.
"Congress enacted the ADA in 1990 to remedy widespread discrimination against disabled individuals" after "[concluding] that there was a compelling need for a clear and comprehensive national mandate to eliminate discrimination against disabled individuals." PGA Tour, Inc., 532 U.S. at 674-75 (citations and quotations omitted). Similarly, the primary purpose of the Unruh Act is to compel the recognition of the equality of all persons in the right to the particular services offered by an entity. Curran v. Mount Diablo Council of the Boy Scouts, 147 Cal. App. 3d 712, 733 (1983). Given the broad purpose and mandates of the ADA and California Unruh Act, the Court finds that the amount at stake is reasonable in light of Defendant's conduct and therefore favors granting default judgment.
4. Possibility of Dispute
The fifth Eitel factor considers the possibility of dispute as to any material facts in the case. Eitel, 782 F.2d at 1471-72. In this case, there is little possibility of dispute because the Court will take all factual allegations of the Complaint as true based on the entry of default. TeleVideo Systems, Inc., 826 F.2d at 917-18. Additionally, Defendant has not made any attempt to challenge Plaintiffs' Complaint or even appear in the case. Thus, this factor favors the entry of default.
5. Whether Default Was Due to Excusable Neglect
The sixth Eitel factors considers whether the failure to answer or otherwise respond is due to excusable neglect. Eitel, 782 F.2d at 1472. In this case, Defendant was properly served with the Summons and Complaint on August 20, 2005; a Request for Entry of Clerk's Default on October 18, 2005; and with the Application for Default Judgment on November 18, 2005. Affidavit of Michelle L. Wakefield in Support of Request for Entry of Clerk's Default at 2. Defendant failed to answer the Complaint and has not filed an opposition to this motion. Given these circumstances, it is unlikely that Defendant's failure to answer or otherwise respond is due to excusable neglect. Therefore, this factor favors the entry of default.
6. Policy for Deciding on the Merits
"Cases should be decided upon their merits whenever reasonably possible." Eitel, 782 F.2d at 1472. However, "the mere existence of Fed.R.Civ.P. 55(b) indicates that the seventh Eitel factor is not alone dispositive." Philip Morris USA, Inc. V. Castworld Products, Inc., 219 F.R.D. 494, 501 (C.D. Cal. 2003). "Defendant's failure to answer [Plaintiff's] Complaint makes a decision on the merits impractical, if not impossible. Under FRCP 55(a), termination of a case before hearing the merits is allowed whenever a defendant fails to defend an action." Id. (quoting PepsiCo, Inc. v. Cal Sec. Cans, 238 F. Supp. 2d 1172, 1177 (C.D. Cal. 2002)). Plaintiffs have filed a well-pled Complaint alleging the facts necessary to establish their causes of action. Defendant has not responded to Plaintiffs' Summons and Complaint, Request for Entry of Default and Application for Default Judgment. Therefore, the seventh Eitel factor does not preclude the Court from entering default judgment against Defendant.
C. Remedies
Fed.R.Civ.P. 54(c) provides that "[a] judgment by default shall not be different in kind from or exceed in amount that prayed for in the demand for judgment." The demand for relief must be specific. Fed.R.Civ.P. 8(a)(3). Plaintiffs seek statutory damages in the amount of $12,000.00, attorneys' fees in the amount of $3,700.00 and costs in the amount of $576.68. These remedies do not differ from the relief requested in the Complaint. Complaint ¶ 41.
1. Statutory Damages
Plaintiffs request a total of $12,000.00 in statutory damages for architectural barriers making entrance into Defendant's establishment and neighboring establishments difficult/not possible, for impermissibly narrow travel pathways and for an impermissibly high cashier counter without any signage informing disabled patrons that assistance is available upon request. Pltfs.' Memo of PAs In Support of Application for Default Judgment at 3-4.
Cal. Civ. Code § 52 provides that whoever violates the Unruh Act is liable for "each and every offense for the actual damages and any amount that may be determined by a jury, or a court sitting without a jury, 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 in addition thereto." Cal. Civ. Code § 52(a). Thus, the statute provides for a statutory minimum of $4,000.00 per violation of the Unruh Act, regardless of the amount of actual damages. Id. "The straightforward proscription of the Act should be respected." Id. at 39.
In this case, the Court finds that Plaintiffs have established at least three instances of discrimination under the Unruh Act: (1) architectural barriers at the entrance of Defendant's establishment, (2) impermissibly narrow travel ways, and (3) impermissibly high counters. Thus, the Court finds that Plaintiffs are entitled to statutory damages in the amount $12,000.00 pursuant to Cal. Civ. Code § 52(a).
2. Attorneys' Fees
Plaintiffs seek reasonable attorneys' fees based on ADA code sections 42 U.S.C. §§ 12188(a) and (b) and Cal. Civ. Code §§ 52 and 54.3. 42 U.S.C. § 12205 provides that "the court . . ., in its discretion, may allow the prevailing party . . . a reasonable attorney's fee, including litigation expenses, and costs." 42 U.S.C. § 12205. A "prevailing" party who may recover attorneys fees under the ADA is one who secures an enforceable judgment on the merits or a court-ordered consent decree. Buckhannon Bd. Care Home, Inc. v. West Virginia Dep't of Health Human Res., 532 U.S. 598, 604 (2001). The United States Supreme Court further states that a "prevailing party" is one who has been rewarded some relief by the Court. Id.; Farrar v. Hobby, 506 U.S. 103, 109 (1992). Attorneys' fees are also available through Cal. Civ. Code § 52(a) which provides that anyone who makes any discrimination or distinction contrary to the Unruh Act, Cal. Civ. Code § 51, is liable for attorneys' fees. Doran v. North State Grocery, Inc., 39 Cal. Rptr. 3d 922, 925 (Cal.App. 3d Dist. 2006); Cal. Civ. Code § 52(a). Having found that Plaintiffs are entitled to $12,000.00 in statutory damages pursuant to Plaintiffs' California Unruh Act claims, the Court finds that Plaintiffs are the prevailing party and are entitled to reasonable attorneys' fees.
Under the ADA, courts are required to employ the lodestar method in calculating attorneys' fees. Feezor v. Del Taco, Inc., No. 04 CV 0097 J RBB, 2005 WL 3619388, *1 (S.D. Cal. June 23, 2005); Staton v. Boeing Co., 327 F.3d 938, 965 (9th Cir. 2003). The lodestar rate is assessed by multiplying the hours reasonably expended on the litigation by a reasonable hourly rate. Morales v. City of San Rafael, 96 F.3d 359, 363 (9th Cir. 1996); Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); Gates v. Deukmejian, 987 F.2d 1392, 1397 (9th Cir. 1992). In rare cases, the Court can make an upward or downward adjustment to the product of this presumptively reasonable calculation, or "lodestar" number, by considering the factors set out in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 69-70 (9th Cir. 1975). Gates, 987 F.2d at 1402. The proper reference point for a reasonable hourly rate is "the rate prevailing in the community for similar work performed by attorneys of comparable skill, experience, and reputation." Trevino v. Gates, 99 F.3d 911, 924-25 (9th Cir. 1996) (citation and internal quotation marks omitted). "The fee applicant has the burden of producing satisfactory evidence, in addition to the affidavits of its counsel, that the requested rates are in line with those prevailing in the community for similar services of lawyers of reasonably comparable skill and reputation." Jordan v. Multnomah County, 815 F.2d 1258, 1263 (9th Cir. 1987) (emphasis added); see also Blum v. Stenson, 465 U.S. 886, 895 n. 11 (1984) ("To inform and assist the court in the exercise of its discretion, the burden is on the fee applicant to produce satisfactory evidence-in addition to the attorney's 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"). The fee applicant also bears the burden of documenting the hours expended and must present evidence in support of those hours worked. Hensley, 461 U.S. at 433, 437; Gates, 987 F.2d at 1397-98.
The factors set out in Kerr include: (1) the time and labor required; (2) the novelty and difficulty of the issues involved; (3) the skill required to perform the legal services properly; (4) the preclusion of other employment by an attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by a client or the circumstances; (8) the amount in question and results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the "undesirability" of the case; (11) the nature and length of the professional relationship with the client; and, (12) awards in similar cases. Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975).
Plaintiffs seek attorneys' fees in the amount of $3,700.00 representing Attorney Michelle L. Wakefield's ("Wakefield") legal services for 12.32 billable hours at $300.00 per hour. Exh. A to Declaration of Michelle L. Wakefield in Support of PAs for Pltfs.' Application for Default. In support of their request for reasonable attorneys' fees, Plaintiffs submitted to the Court the Declaration of Michelle L. Wakefield in Support of Plaintiffs' Memorandum of Points and Authorities in Support of Plainiffs' Application for Default Judgment by Court and several accompanying exhibits including an itemized billing summary. In her Declaration, Wakefield states that she has litigated over four hundred cases based on the ADA over the last six years. Declaration of Michelle L. Wakefield in Support of PAs for Pltfs.' Application for Default ¶ 5. Wakefield also states that she has litigated ADA cases before the 9th Circuit and that "[t]he federal and state court records are replete with cases filed and settled by [her] on behalf of individuals with disabilities." Id. Wakefield further declares that her hourly rate is within the range of reasonable fees for lawyers in a particular expertise and that her rates are a "reasonable rate to charge clients in the San Diego community" for this type of litigation. Id. at ¶¶ 9, 10.
The Court finds that Wakefield has satisfied her burden of documenting the hours expended and presenting the Court with evidence in support of those hours worked by attaching an itemized billing summary to her Declaration. Exh. A to Declaration of Michelle L. Wakefield in Support of PAs for Pltfs.' Application for Default. However, the Court finds that Plaintiffs have not satisfied their burden of producing satisfactory evidence establishing that the requested rates are in line with those prevailing in the community for similar services of lawyers of reasonably comparable skill and reputation. Plaintiffs must present evidence in addition to the affidavit of their counsel in order to establish the reasonable rate. Jordan, 815 F.2d at 1263; Blum, 465 U.S. at 895 n. 11.
Accordingly, Plaintiffs are granted leave to submit evidence supporting the billing rate for Attorney Michelle L. Wakefield. Plaintiffs may not, however, request any additional fees for the preparation of such evidence because Plaintiffs should have provided such information with its original request for fees.
CONCLUSION
The Court has determined that Plaintiffs' have established all the elements necessary for their ADA claims pursuant to 42 U.S.C. §§ 12182 and 12188 and their California State law claims pursuant to Cal. Civ. Code §§ 51, 54, and 54.1. For the foregoing reasons, the Court finds that Plaintiffs' are entitled to statutory damages in the amount of $12,000.00. The Court also finds that Plaintiffs are entitled to reasonable attorneys' fees in an amount to be determined after further briefing has been filed on the matter. Additionally, the Court finds that Plaintiffs are entitled to costs. IT IS HEREBY ORDERED that the (1) Plaintiff's Application for Default Judgment Against Defendant Claudia O. Granados d.b.a. Chiquita 99 By Court (Doc. No. 25) is GRANTED and Plaintiffs are awarded damages in the amount of $12,000.00 and costs.
IT IS FURTHER ORDERED that Plaintiffs must file, within 10 days of this Order, supplemental briefing providing evidence in support of the billing rates for Attorney Michelle L. Wakefield.