Opinion
Case No. 19-cv-06206-TSH
05-21-2020
SCOTT JOHNSON, Plaintiff, v. ALESSANDRO F. BAGLIETTO, et al., Defendants.
REQUEST FOR REASSIGNMENT WITH REPORT & RECOMMENDATION RE: MOTION FOR DEFAULT JUDGMENT
Re: Dkt. No. 19
I. INTRODUCTION
Plaintiff Scott Johnson brings this case under the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101, et seq., to compel Defendants Alessandro and Nancy Baglietto to provide an accessible path of travel to the store entrance and accessible parking spaces at the Olsen Nolte Saddle Shop. Pending before the Court is Johnson's Motion for Default Judgment. ECF No. 19. Defendants have not opposed the motion or moved to set aside default. The undersigned finds this matter suitable for disposition without oral argument and VACATES the June 11, 2020 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
Johnson is a quadriplegic who cannot walk and has significant manual dexterity impairments. Compl. ¶1, ECF No. 1; Johnson Decl. ¶ 2, ECF No. 19-4. He uses a wheelchair for mobility. Id. (both). Johnson drives a specially equipped van and has a disabled persons parking placard issued by the State of California. Compl. ¶ 1; Johnson Decl. ¶ 3. His van deploys a ramp so that he can wheel in and out of his vehicle. Johnson Decl. ¶ 3. Johnson needs the full "van accessible" access aisle in order to safely transfer to and from his van. Id. He avoids using non-marked, non-reserved, non-accessible parking spaces because, in the past, he has parked in regular stalls and found himself trapped outside his vehicle because someone else parked lawfully next to him. Id. ¶ 4.
On October 22, 2018, Johnson went to the Olsen Nolte Saddle Shop, located at 1580 El Camino Real, San Carlos, California, in order to look for some things that he wanted to buy. Compl. ¶ 9; Johnson Decl. ¶ 5. When he got to the shop, he found that the front entrance had two steps and there was no ramp or lift for a wheelchair user. Johnson Decl. ¶ 6. There was also no directional signage indicating an alternative entrance or other way for a wheelchair user to gain access. Id. Johnson drove around the back and found a small parking lot with spaces for approximately six vehicles but no lines delineating stall boundaries. Id. ¶ 7. There were signs specifically identifying this area as parking for customers of Olsen Nolte Saddle Shop. Id. The idea of parking in a non-reserved parking stall with no access aisle gave Johnson great discomfort, so he left to shop elsewhere. Id. ¶ 8.
On April 11, 2019, Johnson was on El Camino Real and would have shopped at the Olsen Nolte Saddle Shop, but he was deterred from doing so because of his knowledge about the barriers that exist there. Id. ¶ 9. Due to the lack of accessible entrance and parking, he is deterred from further attempting to shop at the Olsen Nolte Saddle Shop and will not return until he has been informed that the shop claims compliance with disability access laws. Id. ¶ 10. He is regularly in this geographical area and plans to return to the Olsen Nolte Saddle Shop when it is in compliance - both to make purchases and to assess the shop for compliance with the ADA. Id. ¶ 11.
Johnson filed this case on September 30, 2019. He brings claims under the ADA for failure to provide accessible paths of travel and an accessible parking space, 42 U.S.C. §§ 12182-83, and under 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. On January 3, 2020, personal service was effectuated on Nancy Baglietto at her home at 143 Brookside Drive, Portola Valley, California. ECF No. 11. At the same time, substitute service was effectuated on Alessandro Baglietto by leaving a copy of the process with his wife Nancy at their home, followed up by first-class mail service on January 15, 2020. ECF No. 12. After neither answered the complaint, the Clerk entered their defaults. ECF Nos. 14, 17. Johnson filed the present motion on May 5, 2020.
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 Johnson has asserted 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 also 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., Office 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 Defendants because they are domiciled in California and operate the business at which the incident giving rise to this action occurred. See Daimler AG v. Bauman, 571 U.S. 117, 137 (2014) ("For an individual, the paradigm forum for the exercise of general jurisdiction is the individual's domicile . . . .") (internal quotations and citation omitted); 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."); see also Compl. ¶¶ 2-4; ECF No. 19-7 (public records for Olsen Nolte Saddle Shop, Inc.).
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 Rule 4(e)(1), and the Clerk subsequently entered default against them. ECF Nos. 8-9, 12. Thus, service was proper. See also Cal. Civ. Proc. §§ 415.10 (personal service), 415.20(a) (substitute service). 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. Courts have held that prejudice exists where denying the requested default judgment would leave the plaintiff without a proper remedy. See, e.g., IO Grp., Inc. v. Jordon, 708 F. Supp. 2d 989, 997 (N.D. Cal. 2010). Here, Johnson will be without a remedy for Defendants' alleged violations of the ADA and the Unruh Act if default judgment is not entered. 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 Johnson'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. "Together, these factors require that plaintiff assert claims upon which it may recover." IO Grp., 708 F. Supp. 2d at 989 (citing Philip Morris USA, Inc. v. Castworld Prods., Inc., 219 F.R.D. 494, 500 (C.D. Cal. 2003)).
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, Johnson 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 Johnson 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 Johnson is a quadriplegic who is substantially limited in his ability to walk and uses a wheelchair 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); Love v. Griffin, 2018 WL 4471073, at *3 (N.D. Cal. Aug. 20, 2018), report and recommendation adopted, 2018 WL 4471149 (N.D. Cal. Sept. 17, 2018) (same).
ii. Whether Olsen Nolte 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 establishments such as Olsen Nolte Saddle Shop. Id. § 12181(7)(E). 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 Johnson's allegations as true, he has established this element.
iii. Whether Johnson Was Denied Public Accommodation
Finally, the Court must determine whether Johnson was denied access to the property based on his disability. Johnson alleges that he personally encountered the parking barrier during his visit to Olsen Nolte Saddle Shop in October 2018 and April 2019. Compl. ¶¶ 8-9. 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).
Here, Johnson does not allege the property was built after January 26, 1993, 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 ramps and creating designated accessible parking spaces. Thus, the lack of accessible entrance and parking barrier alleged in Johnson'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": and "[c]reating designated accessible parking spaces" 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 Coalition 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 Defendants would ordinarily be entitled to prove that the removal of the alleged architectural barriers is not "readily achievable," Defendants have 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 Johnson 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).
Since Johnson 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, Johnson seeks a judgment of $13,715, which includes statutory damages under the Unruh Act and attorneys' fees and costs. 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 appear and defend against Johnson's adequately pled claims. See 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)). Further, evidence submitted by Johnson in support of his motion for default judgment—photographs of Olsen Nolte Saddle Shop's parking lot and signage—supports his allegations that the lot contains no designated accessible parking. See ECF No. 19-5. 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, Johnson provided adequate notice of this action, see ECF Nos. 11-12, yet Defendants made no appearance and failed to respond to the present motion. 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). Further, there is nothing in the record suggesting this 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)). And a defendant's failure to appear makes a decision on the merits impracticable, if not impossible. Craigslist, Inc. v. Naturemarket, Inc., 694 F. Supp. 2d 1039, 1061 (N.D. Cal. 2010) (citation and quotation marks omitted).
Given that Defendants made no effort to respond to communication attempts by Johnson and in no way participated 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 Trustees 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).
7. Summary of the Eitel Factors
Based on the analysis above, the undersigned finds each of the Eitel factors weighs in favor of granting default judgment. Accordingly, the undersigned RECOMMENDS the District Court GRANT the motion and enter default judgment against Defendants.
C. Relief Sought
Once liability is established, the plaintiff seeking default judgment must then establish that the requested relief is appropriate. Bay Area Painters v. Alta Specialty, 2008 WL 114931, at *3 (N.D. Cal. Jan. 10, 2008) (citing Geddes v. United Fin. Grp., 559 F.2d 557, 560 (9th Cir. 1977)).
1. Injunctive Relief
Johnson seeks an injunction requiring Defendants to provide an accessible path of travel to the store entrance and accessible parking at the Olsen Nolte Saddle Shop. "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 quotation marks 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." 2010 Standards § 208.2.4. Accordingly, the undersigned RECOMMENDS the Court enter an injunction requiring Defendants to provide an accessible path of travel and accessible parking in compliance with the 2010 ADA Standards for Accessible Design.
2. Damages
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, 2011 WL 3667458, at *6 (N.D. Cal. Aug. 22, 2011) (citation omitted). Where the amount of damages "is liquid or capable of ascertainment from definite figures contained in documentary evidence or detailed affidavits, the Court may enter default judgment without a hearing on damages." Id. (internal quotation marks and citation omitted); see also Pope v. United States, 323 U.S. 1, 12 (1944) ("It is a familiar practice and an exercise of judicial power for a court upon default, by taking evidence when necessary or by computation from facts of record, to fix the amount which the plaintiff is entitled to recover and to give judgment accordingly."). Similarly, if the plaintiff can meet his burden of proving an amount of damages "capable of mathematical calculation" through evidence, testimony, or written affidavit, there is no need for an evidentiary hearing on damages. Davis v. Fendler, 650 F.2d 1154, 1161 (9th Cir. 1981); Bd. of Trs. of the Boilermaker Vacation Trust v. Shelly, Inc., 389 F. Supp. 2d 1222, 1226 (N.D. Cal. 2005).
Johnson seeks $8,000 in statutory damages for Defendants' violations of the Unruh Act ($4,000 for his visit in October 2018 and $4,000 for his visit in April 2019). 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. 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, 216 F.3d at 835 (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, Johnson has adequately pled that Defendants' failure to provide an accessible store entrance and accessible parking space deterred him from attempting to enter the establishment on at least two occasions. Thus, he is entitled to statutory minimum damages under the Unruh Act, and the undersigned RECOMMENDS the Court award $8,000 in statutory damages. See Johnson v. Guedoir, 218 F. Supp. 3d 1096, 1100 (E.D. Cal. 2016) (awarding $8,000 in statutory damages where Johnson had an actual encounter with inaccessible parking and an incident of deterrence a year later); Johnson v. McBain, 2018 WL 5840611, at *4 (N.D. Cal. Nov. 6, 2018) (same).
3. Attorneys' Fees and Costs
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. Cal. v. Kennesaw Life & Accident 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, Johnson's counsel seeks rates between $450 per hour and $650 per hour. Specifically, counsel seeks $650 per hour for attorneys Mark Potter and Russell Handy, and $450 per hour for attorney Amanda Seabock. Handy Decl. ¶¶ 8-9, ECF No. 21. Counsel submitted the declaration of John O'Connor to justify their claimed hourly rates. ECF No. 19-10. According to O'Connor, partners Potter and Handy have 26 and 21 years of experience, respectively. Id. ¶ 30. Attorney Seabock—an associate — has six years of experience. Id. Based on the experience of the attorneys at issue in the instant case, O'Connor opined that the most appropriate rate for partners such as Potter and Handy's ADA services range from $450 to $750 per hour. Id. ¶ 27. For associates' services, the most appropriate range is from $300 to $550 per hour. Id. O'Connor declared that his opinion was also based on "recent rates awarded in the Northern District, and disability rates in the Bay Area in general," which he has "kept abreast of . . . since at least 2000." Id. ¶ 29.
O'Connor's declaration alone does not justify Plaintiff's counsel's claimed rates of $650 per hour for Potter and Handy and $450 Seabock. These rates are all on the higher end of O'Connor's claimed reasonable rates, and Plaintiff's counsel does not adequately justify these specific rates. For example, in ADA cases, courts typically permit analogous rates for attorneys with far more experience than Plaintiff's counsel. See, e.g., Rodriguez, 53 F. Supp. 3d at 1268 (awarding fees at $645 per hour for an attorney who was a "member of the California bar for over forty-five years" and because "defendants d[id] not contest that $645/hour [was] a reasonable rate"); Martin v. Diva Hosp. Grp., Inc., 2018 WL 6710705, at *2 (N.D. Cal. Dec. 7, 2018) (awarding fees of $700 per hour for attorneys with almost thirty years of experience and awarding fees of $795 per hour for an attorney with almost fifty years of experience—rates that the defendants did not contest as unreasonable). Even then, however, courts have noted "that a rate over $700/hour is the exception, and not the norm, for disability cases." Johnson v. Rocklin of Cal. LLC, 2019 WL 3854308, at *10 (N.D. Cal. Aug. 16, 2019) (citing Chapman v. NJ Properties, Inc., 2019 WL 3718585, at *4 (N.D. Cal. Aug. 7, 2019). Rather, "[f]or attorneys with approximately 20 or more years of experience, courts have generally approved rates ranging from $350 to $495 in disability cases." Id. (collecting cases).
The Court acknowledges that Johnson's counsel has previously obtained a fees award consistent with what counsel requests in the instant case. See, e.g., Love v. Rivendell II, Ltd., et al., Case No. 18-cv-03907-JST (EDL), ECF No. 25 (N.D. Cal. Mar. 11, 2019) (report and recommendation granting hourly rate of $650 for attorneys Potter and Handy); see id., ECF No. 30 (adopting report and recommendation). However, as multiple courts in this district noted, "that lone order granting an unopposed motion does not accurately reflect the prevailing rate in the community for work similar to this action," as "that order cited cases that concerned work substantially different from the work performed in this action." Johnson v. AutoZone, Inc., 2019 WL 2288111, at *6 n.4 (N.D. Cal. May 29, 2019); Rocklin of Cal. LLC, 2019 WL 3854308, at *9 (drawing same distinction). Specifically, the cases that Rivendell relied upon involved "a complex class action matter involving 54 hotels spread among multiple states" and set "'new precedent' that caused the California State Bar to 'change a policy which impacts potentially hundreds of individuals each year across California.'" Rocklin of Cal. LLC, 2019 WL 3854308, at *9 (distinguishing Rivendell). Nothing of that sort is at issue in the instant case.
In contrast, when a matter "is a relatively simple one, involving straight-forward application of the law, and which does not present novel or difficult issues requiring a high level of skill or specialization," courts have generally found that higher rates are unwarranted. See Johnson v. Oakwood Ctr. LLC, 2019 WL 7209040, at *13 (N.D. Cal. Dec. 27, 2019). The sheer number of ADA cases that Johnson's counsel is litigating simultaneously underscores the straightforward nature of their cases. Attorney D. Price has stated that as of November 7, 2019, Potter Handy, LLP, 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. Johnson v. Cala Stevens Creek/Monroe, LLC, 2020 WL 2556989, at *6 (N.D. Cal. May 20, 2020) (citing Johnson v. Maple Tree Investors et al., No. 17-cv-06762-LHK, ECF No. 62 at 17, 34-36 (N.D. Cal. Dec. 4, 2019)). The law firm had previously litigated approximately 2,500 ADA cases in the Eastern District of California. Id.
Further, as noted above, Plaintiff's own expert, John O'Connor, explains that the floor for reasonable ADA rates in this district is $450 per hour for partners and $300 per hour for associates. O'Connor Decl. ¶ 27. Recent decisions out of this district confirm that rates similar to these are reasonable. Cala Stevens Creek/Monroe, 2020 WL 2556989, at *6 (granting rates of $475 per hour for attorneys Potter and Handy and $350 per hour for attorney Seabock); Rocklin of Cal. LLC, 2019 WL 3854308, at *12 (same); Shaw v. Kelley, 2019 WL 5102610, at *5 (N.D. Cal. Oct. 11, 2019) (awarding $475 per hour for attorney Potter and $350 per hour for Seabock); Oakwood Ctr. LLC, 2019 WL 7209040, at *13 (same); Johnson v. Johnson, 2020 WL 901517, at *6 (N.D. Cal. Feb. 25, 2020) (awarding $475 per hour to attorneys Potter and Handy); Autozone, Inc., 2019 WL 2288111, at *6 (awarding $425 per hour to Potter and Handy and $300 to Seabock); Love v. Canales, No. 19-cv-1527-WHA, ECF No. 43 at 4-5 (N.D. Cal. May 8, 2020) (awarding $425 per hour to Potter and Handy and $300 to Seabock).
Finally, these rates are reasonable for this district because, as the Ninth Circuit has explained, "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, 893 F.3d at 1158 (quotation marks omitted). The undersigned notes that Johnson's counsel has filed scores of cases in this district, and there is no evidence that rates of approximately $475 per hour for partners and $350 per hour for associates are insufficient to induce capable attorneys to undertake ADA litigation in this district. See id.; see also Cala Stevens Creek/Monroe, 2020 WL 2556989, at *6 (citing Maple Tree Investors, No. 17-cv-06762-LHK, ECF No. 62 at 17, 34-36). Indeed, the Ninth Circuit has noted "district court[s] must strike a balance between granting sufficient fees to attract qualified counsel to civil rights cases and avoiding a windfall to counsel." Vogel, 893 F.3d at 1158 (emphasis added and quotation marks, citations, and internal alterations omitted). The undersigned finds that awarding the fees requested by Johnson's counsel would be little more than a prohibited windfall. See id.
Accordingly, in light of Johnson's declarations and evidence, case law from this district concerning reasonable attorney's fees, and binding Ninth Circuit precedent, the undersigned RECOMMENDS that the following hourly rates are reasonable for the instant case: $475 per hour for attorneys Potter and Handy; and $350 per hour for attorney Seabock.
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).
At the outset, the undersigned notes that Johnson's counsel's billing records indicate that three attorneys expended 8.3 hours litigating the instant case. Handy Decl., Ex. 1 ("Billing Summary"). The undersigned further notes that Attorney D. Price has stated that as of November 7, 2019, Potter Handy, 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. Cala Stevens Creek/Monroe, 2020 WL 2556989, at *6 (citing Maple Tree Investors et al., No. 17-cv-06762-LHK, ECF No. 62 at 17, 34-36). His law firm had previously litigated approximately 2,500 ADA cases in the Eastern District of California. Id. With over a thousand ADA cases in the United States District Court for the Northern District of California alone and experience with approximately 5,000 ADA cases in the United States District Courts for the Eastern, Northern, and Central Districts of California, the undersigned would expect significant efficiencies as well as templates that counsel could use in every case.
However, any such efficiencies are not apparent from Johnson's counsel's billing entries. For example, attorney Seabock repeatedly billed six minutes to review short boilerplate docket entries and orders. See Handy Decl., Ex. 1 (charging 0.1 hours to "Review[] order granting stipulation to file SAC"; 0.1 hours to "Review[] the Notice of Assignment and Initial Case Management Scheduling Order"; 0.1 hours to "Review[] Court's order granting Motion for Administrative Relief," which was merely the proposed order filed by Johnson's counsel; charging 0.1 hours to "Review[] Clerk's Entry of Default as to Nancy O. Baglietto"; 0.1 hours to "Review[] Court's Notice re: Default Judgment Procedure; and 0.1 hours to "Review[] Clerk's Entry of Default as to Alessandro F. Baglietto). These short docket entries are common to all ADA cases. Though a six minute timekeeping practice is "generally reasonable[,] . . . a reduction is warranted." Kalani v. Starbucks Corp., 2016 WL 379623, at *8 (N.D. Cal. Feb. 1, 2016); see also Jacobson v. Persolve, LLC, 2016 WL 7230873, at *10 (N.D. Cal. Dec. 14, 2016) ("[B]illing 0.1 hours for certain practices sometimes requires a reduction."). Indeed, courts in this district have admonished Johnson's counsel to not excessively bill for tasks that include reviewing administrative docket entries. Gonzalez v. Machado, 2019 WL 3017647, at *6 (N.D. Cal. July 10, 2019). This is so because Johnson's counsel are "ADA lawyer[s] who presumably [are] familiar with routine notices received at the outset of a case, as well as with the General Order No. 56 schedule for ADA cases." Kalani, 2016 WL 379623, at *8. In such situations, courts typically "reduce[] the hours by 50%." Gonzalez, 2019 WL 3017647, at *6 (citing Kalani, 2016 WL 379623, at *8, and Jacobson v. Persolve, LLC, 2016 WL 7230873, at *10 (N.D. Cal. Dec. 14, 2016)). Accordingly, the undersigned finds a 50% reduction appropriate for .6 hours of Seabock's billing entries and RECOMMENDS the Court reduce her claimed hours by .3.
The undersigned finds that none of the remaining hours are duplicative or excessive, and they are therefore reasonable.
c. Lodestar Calculation
Based on this analysis, the undersigned finds Johnson's counsel reasonably billed 8.0 hours as follows: Mark Potter (1.1 hours @ $475/hour = $522.50); Russell Handy (4.8 hours @ $475/hour = $2,280); and Amanda Seabock (2.1 hours @ $350/hour = $735). Accordingly, the undersigned RECOMMENDS the Court award Johnson's counsel fees in the amount of $3,537.50.
d. Costs
Johnson also seeks costs in the amount of $800: $100 for investigation fees, $400 for filing fees, and $300 for service fees. The undersigned has reviewed the costs and finds them reasonable. See Rodriguez, 53 F. Supp. 3d at 1295 (awarding investigator costs in ADA case); Cruz v. Starbucks Corp., 2013 WL 2447862, at *10 (N.D. Cal. June 5, 2013) (awarding costs for filing and service of process fees). Accordingly, the undersigned RECOMMENDS the Court award Johnson costs in the amount of $800.
V. CONCLUSION
Based on the above analysis, the undersigned RECOMMENDS the District Court GRANT Plaintiff Scott Johnson's Motion for Default Judgment and enter judgment against Defendants Alessandro Baglietto and Nancy Baglietto. The undersigned further RECOMMENDS the Court:
(1) GRANT Johnson's request for injunction relief requiring Defendants to provide an accessible path of travel to the store entrance and accessible parking spaces at the Olsen Nolte Saddle Shop located at 1580 El Camino Real, San Carlos, California, in compliance with the 2010 ADA Standards for Accessible Design;
(2) AWARD $8,000 in statutory damages under the Unruh Act; and
(3) AWARD $$3,537.50 in attorneys' fees and $800 in costs.
Johnson 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. Dated: May 21, 2020
/s/_________
THOMAS S. HIXSON
United States Magistrate Judge