Pomponio v. Budwal ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MERYL POMPONIO, No. 2:19-cv-1006 TLN DB PS 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 CHARAN BUDWAL, et al., 15 Defendants. 16 17 Pending before the court is plaintiff’s motion for default judgement against defendant 18 Charan Budwal. (ECF No. 11.) Having considered all written materials submitted with respect 19 to the motion, and after hearing oral argument, the undersigned recommends that plaintiff’s 20 motion be granted as explained below. 21 BACKGROUND 22 Plaintiff Meryl Pomponio initiated this action through counsel on May 31, 2019, by filing 23 a complaint and paying the required filing fee. (ECF No. 1.) The complaint alleges that plaintiff 24 “was disabled by her extreme medical condition” Paraneoplastic Syndrome which left plaintiff 25 “unable to walk and . . . confined to using a mobility device to complete her day to day 26 activities.” (Compl. (ECF No. 1) at 2.1) Defendant Charan Budwal operated a business known as 27 1 Page number citations such as this are to the page number reflected on the court’s CM/ECF 28 system and not to the page numbers assigned by the parties. 1 “Quick Trip Market Liquor,” located at 6945 Stockton Boulevard, in Sacramento, California on 2 the date of the events at issue.2 (Id. at 3.) “In 2018,” plaintiff “encountered barriers” at the 3 business. (Id. at 4.) Specifically, the business’s accessible parking stall and access isle had 4 improper slopes making it difficult for plaintiff to use a wheeled mobility device. (Id. at 4-5.) 5 Also, the entrance door was difficult to open while seated and the sales counter “was too high[.]” 6 (Id. at 5.) Plaintiff wishes “to patronize the business in the future,” but is deterred by these 7 barriers. (Id.) 8 Pursuant to these allegations, the complaint alleges the defendant violated the Americans 9 with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq., (“ADA”), the Unruh Civil Rights Act, 10 California Civil Code § 51, (“Unruh Act”), and California Civil Code § 54. (Id. at 5-9.) On 11 November 26, 2019, plaintiff filed proof of service on the defendant. (ECF No. 5.) That same 12 day plaintiff filed a request for entry of defendant’s default. (ECF No. 7.) The Clerk entered 13 defendant’s default on November 27, 2019. (ECF No. 8.) 14 On December 3, 2019, plaintiff filed the pending motion for default judgment. (ECF No. 15 11.) Plaintiff’s motion seeks injunctive relief, statutory damages of $4,000, and attorneys’ fees 16 and costs in the amount of $4,433.25. (ECF No. 11-1 at 19-21; ECF No. 11-2 at 2.) The matter 17 came before the undersigned on January 31, 2020, pursuant to Local Rule 302(c)(19), for hearing 18 of plaintiff’s motion for default judgment. (ECF No. 15.) Attorney Daniel Malakauskas 19 appeared telephonically on behalf of the plaintiff. Defendant Charan Budwal appeared in person 20 on his own behalf. The undersigned continued the hearing to March 13, 2020, to allow the parties 21 to meet and confer and to allow defendant an opportunity to file any appropriate pleading. The 22 hearing was again continued to May 15, 2020, in light of public health and safety concerns. (ECF 23 No. 17.) 24 On April 10, 2020, plaintiff filed a supplemental declaration. (ECF No. 18.) Therein, 25 plaintiff stated that the parties spoke telephonically on February 4, 2020, discussed settlement, but 26 “no resolution or settlement was reached[.]” (Id. at 2.) In light of defendant’s failure to file any 27 2 Also named as a defendant was JS Atwal, Inc. (Compl. (ECF No. 1) at 3.) Plaintiff, however, 28 voluntarily dismissed defendant JS Atwal, Inc., on December 2, 2019. (ECF No. 9.) 1 responsive pleading, on April 23, 2020, the undersigned took plaintiff’s motion under submission. 2 (ECF No. 19.) 3 LEGAL STANDARD 4 Federal Rule of Civil Procedure 55(b)(2) governs applications to the court for default 5 judgment. Upon entry of default, the complaint’s factual allegations regarding liability are taken 6 as true, while allegations regarding the amount of damages must be proven. Dundee Cement Co. 7 v. Howard Pipe & Concrete Prods., 722 F.2d 1319, 1323 (7th Cir. 1983) (citing Pope v. United 8 States, 323 U.S. 1 (1944); Geddes v. United Fin. Group, 559 F.2d 557 (9th Cir. 1977)); see also 9 DirectTV v. Huynh, 503 F.3d 847, 851 (9th Cir. 2007); TeleVideo Sys., Inc. v. Heidenthal, 826 10 F.2d 915, 917-18 (9th Cir. 1987). 11 Where damages are liquidated, i.e., capable of ascertainment from definite figures 12 contained in documentary evidence or in detailed affidavits, judgment by default may be entered 13 without a damages hearing. Dundee, 722 F.2d at 1323. Unliquidated and punitive damages, 14 however, require “proving up” at an evidentiary hearing or through other means. Dundee, 722 15 F.2d at 1323-24; see also James v. Frame, 6 F.3d 307, 310-11 (5th Cir. 1993). 16 Granting or denying default judgment is within the court’s sound discretion. Draper v. 17 Coombs, 792 F.2d 915, 924-25 (9th Cir. 1986); Aldabe v. Aldabe, 616 F.2d. 1089, 1092 (9th Cir. 18 1980). The court is free to consider a variety of factors in exercising its discretion. Eitel v. 19 McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). Among the factors that may be considered by 20 the court are 21 (1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff’s substantive claim, (3) the sufficiency of the complaint, (4) 22 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 23 excusable neglect, and (7) the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits. 24 25 Eitel, 782 F.2d at 1471-72 (citing 6 Moore’s Federal Practice ¶ 55-05[2], at 55-24 to 55-26). 26 //// 27 //// 28 //// 1 ANALYSIS 2 A. Appropriateness of the Entry of Default Judgment under the Eitel Factors 3 Plaintiff’s motion for default judgement seeks judgement on the complaint’s claims that 4 defendant violated Title III of the Americans with Disabilities Act, and the California Unruh Civil 5 Rights Act. (Pl.’s MDJ (ECF No. 11-1) at 19-21.) The factual allegations of plaintiff’s complaint 6 are taken as true pursuant to the entry of default against the defendants. 7 1. Factor One: Possibility of Prejudice to Plaintiff 8 The first Eitel factor considers whether plaintiff would suffer prejudice if default 9 judgment is not entered. When a defendant has failed to appear and defend the claims, a plaintiff 10 will be without recourse and suffer prejudice unless default judgment is entered. Vogel v. Rite 11 Aid Corp., 992 F.Supp.2d 998, 1007 (C.D. Cal. 2014) (granting a default judgement for a 12 disabled plaintiff suing under the ADA and Unruh Act, relying upon this rationale). Here, the 13 defendant is aware of this action, having appeared before the court, but refused to defend against 14 plaintiff’s claims of discrimination under the ADA and the Unruh Act. Absent entry of default 15 judgement, plaintiff would likely be without recourse against the defendant. Because plaintiff 16 will suffer prejudice if left without recourse, this factor favors an entry of default judgment. 17 2. Factors Two and Three: The Merits of Plaintiff’s Substantive Claims and the 18 Sufficiency of the Complaint 19 The second and third factors are (1) the merits of plaintiff’s substantive claim, and (2) the 20 sufficiency of the complaint. Eitel, 782 F.2d at 1471-72. Thus, the second and third Eitel factors 21 require plaintiff to state a claim on which plaintiff can recover. PepsiCo, Inc. v. California 22 Security Cans, 238 F.Supp.2d, 1172, 1175 (2002); see Danning v. Lavine, 572 F.2d 1386, 1388 23 (9th Cir. 1978). Given the close relationship between the two inquiries, factors two and three are 24 considered together. As noted above, plaintiff seeks default judgment on the complaint’s claims 25 of discrimination in violation of Title III of the Americans with Disabilities Act and 26 discrimination in violation of the Unruh Civil Rights Act. 27 //// 28 //// 1 (1) Title III of the ADA 2 (a) Applicable Legal Standards under the ADA 3 Title III of the ADA prohibits discrimination against an individual “on the basis of 4 disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, 5 or accommodations of any place of public accommodation . . . .” Roberts v. Royal Atlantic 6 Corp., 542 F.3d 363, 368 (2nd Cir. 2008); U.S.C. § 12182(a). Generally, the concept of 7 “discrimination” under the ADA not only includes obviously exclusionary conduct — such as a 8 sign stating that persons with disabilities are unwelcome, but also extends to more subtle forms of 9 discrimination — such as difficult-to-navigate restrooms and hard-to-open doors—that interfere 10 with disabled individuals’ “full and equal enjoyment” of places of public accommodation. 11 Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 945 (9th Cir. 2011); PGA Tour, Inc. v. 12 Martin, 532 U.S. 661, 674-75 (2001). With respect to existing facilities, discrimination includes 13 “a failure to remove architectural barriers … where such removal is readily achievable.” 42 14 U.S.C. § 12182(b)(2)(A). 15 To determine if a barrier exists, the ADAAG3 establishes the technical standards. If a 16 barrier violates these standards relating to a plaintiff’s disability, it will impair the plaintiff’s full 17 and equal access, which constitutes “discrimination” under the ADA. Chapman, 631 F.3d at 947; 18 Doran v. 7–Eleven, Inc., 524 F.3d 1034, 1034 (9th Cir. 2008). Removal is readily achievable 19 where it is “easily accomplishable and able to be carried out without much difficulty or expense.” 20 42 U.S.C. § 1218(9). 21 To prevail on a Title III ADA claim, plaintiff must establish that (1) plaintiff is disabled 22 within the meaning of the ADA; (2) that defendant owns, leases, or operates a place of public 23 accommodation; and (3) that defendant discriminated against the plaintiff within the meaning of 24 the ADA. Chapman, 631 F.3d at 950. For an ADA plaintiff to establish Article III standing to 25 //// 26 3 The ADA Accessibility Guidelines (ADAAG) are promulgated by the Attorney General to 27 “carry out the provisions” of the ADA, 42 U.S.C. § 12186(b). These guidelines “lay out the technical structural requirements of places of public accommodation.” Fortyune v. Am. Multi– 28 Cinema, Inc., 364 F.3d 1075, 1080-81 (9th Cir. 2004). 1 pursue injunctive relief, plaintiff must demonstrate the threat of a future repeated injury is real 2 and immediate. Id. at 946. 3 To demonstrate sufficient likelihood of future harm, a plaintiff can establish that plaintiff 4 intends to return to a noncompliant place of public accommodation where plaintiff is “likely to 5 reencounter a discriminatory architectural barrier.” Id. at 950. Alternatively, a plaintiff 6 can show that the “discriminatory architectural barriers deter him from returning to a 7 noncompliant accommodation,” but that plaintiff would return if the barriers were removed. Id. 8 (b) Analysis 9 In the instant case, plaintiff has established standing for injunctive relief. In this regard, 10 the complaint alleges that plaintiff “wish[es] to patronize this business in future[.]” (Compl. 11 (ECF No. 1) at 5.) Plaintiff has also provided a declaration in support of the motion for default 12 judgment. Therein, plaintiff explains that plaintiff visited the business on “October 2, 2018,” and 13 has provided as an exhibit a copy of a receipt from that date. (Pomponio Decl. (ECF No. 11-3) at 14 2; Pl.’s MDJ, Ex. B (ECF No. 11-7) at 2.) Plaintiff declares that she “would like to visit ‘Quick 15 Trip Market Liquor’ again, but [is] dissuaded from doing so due to the lack of accessible 16 facilities” but plaintiff “will visit ‘Quick Trip Market Liquor’ again” once the barriers are 17 removed. (Pomponio Decl. (ECF No. 11-3) at 2-3.) The undersigned finds that plaintiff has 18 standing because plaintiff has suffered an injury-in-fact and has demonstrated a likelihood of 19 future injury sufficient to support injunctive relief. Chapman, 631 F.3d at 950. 20 As to the merits of the ADA claim, there is little dispute that the first two requirements 21 have been met. Plaintiff alleges in the complaint that plaintiff is “disabled” and “unable to 22 walk[.]” (Compl. (ECF No. 1) at 2.) Plaintiff’s declaration explains that plaintiff is “unable to 23 walk and must use a wheeled mobility device” due to Paraneoplastic Syndrome. (Pomponio 24 Decl. (ECF No. 11-3) at 2.) There can be little doubt that plaintiff is “disabled” within the 25 meaning of the ADA. See 42 U.S.C. § 12102 (defining “disability” as “a physical or mental 26 impairment that substantially limits one or more major life activities of such individual.”). 27 In addition, the complaint alleges that defendant and the store at issue “hold themselves 28 out to the public” as a business establishment. (Compl. (ECF No. 1) at 3.) A service 1 establishment is expressly identified as a place of public accommodation and subject to Title III 2 of the ADA. See 42 U.S.C. § 12181 (7)(F). 3 With respect to the third element, whether defendant discriminated against plaintiff, the 4 factual allegations of the complaint establish that defendant’s parking stall and access isle “had 5 improper slopes,” that “the entrance door was heavy and difficult to open,” and that the interior 6 sales counter “was too high[.]” (Compl. (ECF No. 1) at 5.) In support of these allegations, 7 plaintiff has offered the declaration of Jason A. Vaughan, a Certified Access Specialist. 8 Vaughn conducted a property review of defendant’s parking lot and interior on May 23, 9 2019. (Vaughn Decl. (ECF No. 11-5) at 2.) In addition to other violations, Vaughn found that 10 defendant’s parking spaces and access isles had a slope exceeding two percent and that the 11 entrance door required more than five pounds of pressure to open. (Id. at 3.) Such conditions 12 constitute barriers and, thus, discrimination.4 See Wilson v. Norbreck, LLC, No. 13 CIVS040690DLFJFM, 2005 WL 3439714, at *5 (E.D. Cal. Dec. 14, 2005) (“ADAAG 4.13.11 14 and CBC § 1133B.2.5 require doors to open with the application of not more than five pounds of 15 force”); Hubbard v. Twin Oaks Health and Rehabilitation Center, 408 F.Supp.2d 923, 931 (E.D. 16 Cal. 2004) (“Section 4.6.3 of the ADAAG requires that accessible parking spaces and access 17 aisles have a maximum slope of 2% in any direction.”). 18 Finally, the complaint alleges that the defendant owned, operated, and had “substantial 19 control over the real property at issue,” that the defendant “knew that such barriers existed,” “had 20 the financial resources to remove such barriers,” and that “such modifications were readily 21 achievable[.]” (Compl. (ECF No. 1) at 3, 5.) Therefore, removal of these barriers is “readily 22 achievable” by the defendant, and defendant’s failure to do so constitutes “discrimination” under 23 the ADA. 42 U.S.C. § 12182(b)(2)(A). 24 Accordingly, the elements of the ADA claim are satisfied, and plaintiff has met the burden 25 to state a prima facie Title III discrimination claim. The second and third Eitel factors thus favor 26 the entry of default judgment. See Lozano v. C.A. Martinez Family Ltd. Partnership, 129 27 4 Barriers are determined by reference to the ADA Accessibility Guidelines (ADAAG). 28 Chapman, 631 F.3d 939, 945. The ADAAG are listed in 36 CFR Appendix D to Part 1191. 1 F.Supp.3d 967, 972-73 (S.D. Cal. 2015); Vogel v. Rite Aid Corp., 992 F.Supp.2d 998, 1009-10 2 (C.D. Cal. 2014). 3 (2) California’s Unruh Civil Rights Act 4 The Unruh Civil Rights Act provides: “All persons within the jurisdiction of this state are 5 free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, 6 disability, medical condition, genetic information, marital status, or sexual orientation are entitled 7 to the full and equal accommodations, advantages, facilities, privileges, or services in all business 8 establishments of every kind whatsoever.” Cal. Civ. Code § 51(b). As expressly provided by 9 statute, a violation of the ADA also constitutes a violation of the Unruh Civil Rights Act. Cal. 10 Civ. Code § 51 (f); see also Munson v. Del Taco, Inc., 46 Cal. 4th 661, 664-65 (Cal. 2009). Here, 11 because plaintiff’s complaint alleges a prima facie claim under the ADA, plaintiff has also alleged 12 facts supporting a claim under the Unruh Civil Rights Act. 13 3. Factor Four: The Sum of Money at Stake in the Action 14 Under the fourth factor cited in Eitel, “the court must consider the amount of money at 15 stake in relation to the seriousness of Defendant’s conduct.” Eitel, 782 F.2d at 1471-72; see also 16 Philip Morris USA, Inc v. Castworld Prods., Inc., 219 F.R.D. 494, 500. (C.D. Cal. 2003). In this 17 case, plaintiff seeks injunctive relief; statutory damages of $4,000 under the Unruh Civil Rights 18 Act; and attorney’s fees and costs in the amount of $4,433.25, for a total award of $8,433.25. 19 (Pl.’s MDJ (ECF No. 11-2) at 2.) Although the undersigned more closely scrutinizes the 20 requested statutory damages, attorney’s fees and costs below, the undersigned does not find the 21 overall sum of money at stake to be so large or excessive as to militate against the entry of default 22 judgment. 23 4. Factor Five: The Possibility of a Dispute Concerning Material Facts 24 This Eitel factor considers the possibility that material facts are disputed. “Upon entry of 25 default, all well-pleaded facts in the complaint are taken as true, except those relating to 26 damages.” PepsiCo, Inc., 238 F.Supp.2d at 1177. Here, there appears to be no material facts in 27 dispute. This factor weighs in favor of a default judgment. 28 //// 1 5. Factor Six: Whether the Default Was Due to Excusable Neglect 2 This Eitel factor considers the possibility that the defendant’s default was the result of 3 excusable neglect. Defendant is indisputably aware of this action, having not only been properly 4 served with plaintiff’s complaint and the instant motion for default judgment but personally 5 appeared before the undersigned on January 31, 2020. (ECF No. 15.) Defendant, however, has 6 taken no action to respond to plaintiff’s complaint or motion for default judgment. Accordingly, 7 the record suggests that the defendant has chosen not to defend this action, and that the default 8 did not result from excusable neglect. Accordingly, this Eitel factor favors the entry of default 9 judgment. 10 6. Factor Seven: The Strong Policy Underlying the Federal Rules of Civil 11 Procedure Favoring Decisions on the Merits 12 The final Eitel factor examines whether the strong policy favoring deciding cases on the 13 merits prevents a court from entering default judgment. Eitel, 782 F.2d at 1472. Generally, 14 default judgments are disfavored, and a case should be decided on the merits whenever possible. 15 See Pena v. Seguros La Comercial, S.A., 770 F.2d 811, 814 (9th Cir. 1985). However, where a 16 defendant’s failure to appear “makes a decision on the merits impracticable, if not impossible,” 17 entry of default judgment is warranted. PepsiCo, Inc., 238 F.Supp.2d at 1177; see also Craigslist, 18 Inc. v. Naturemarket, Inc., 694 F.Supp.2d 1039, 1061 (N.D. Cal. 2010). Because the defendant 19 has failed to respond in this matter, a decision on the merits is impossible. Therefore, the seventh 20 Eitel factor does not preclude the entry of default judgment. 21 7. Summary of Eitel Factors 22 In sum, upon consideration of all the Eitel factors the undersigned finds that plaintiff is 23 entitled to a default judgment against the defendant and recommends that such a default judgment 24 be entered. The undersigned therefore turns to plaintiff’s requested relief. 25 B. Terms of the Judgment to Be Entered 26 1. Injunctive Relief 27 After determining that a party is entitled to entry of default judgment, the court must 28 determine the terms of the judgment to be entered. See Landstar Ranger, Inc. v. Path Enterprises, 1 Inc., 725 F.Supp.2d 916, 920 (C.D. Cal. 2010.). Plaintiff’s motion for default judgment seeks 2 injunctive relief. (Pl.’s MDJ (ECF No. 11-1) at 19.) Injunctive relief may be granted “when 3 architectural barriers at defendant’s establishment violate the ADA . . . .” Vogel, 992 F.Supp.2d 4 at 1015. 5 Having found that plaintiff has established that the defendant violated the ADA, the 6 undersigned recommends that plaintiff’s request for injunctive relief be granted, and defendant be 7 ordered to remove the barriers at the property identified in plaintiff’s complaint, to the extent the 8 defendant has the legal right to do so, so that the facility is readily accessible to and usable by 9 individuals with disabilities. See Vogel, 992 F.Supp.2d at 1015. 10 2. Statutory Damages 11 The Unruh Act provides that a plaintiff subjected to discrimination is entitled to recover 12 $4,000 for each occasion on which the plaintiff was denied equal access. Cal. Civ. Code § 52(a). 13 To recover statutory damages, a plaintiff need only show that plaintiff was denied full and equal 14 access, not that plaintiff was wholly excluded from enjoying defendant’s services. Vogel, 992 15 F.Supp.2d at 1015; Hubbard v. Twin Oaks Health and Rehabilitation Center, 408 F.Supp.2d 923, 16 932 (E.D. Cal. 2004). “A plaintiff is denied full and equal access only if the plaintiff personally 17 encountered the violation on a particular occasion, or the plaintiff was deterred from accessing a 18 place of public accommodation on a particular occasion.” Cal. Civ. Code § 55.56(b). 19 Here, plaintiff seeks $4,000 in statutory damages. (Pl.’s MDJ (ECF No. 11-1) at 18.) As 20 noted above, in support of the motion for default judgment plaintiff has submitted a declaration 21 stating that on “October 2nd, 2018,” plaintiff “personally went to ‘Quick Trip Market Liquor’” 22 and encountered the barriers at issue. (Pomponio Decl. (ECF No. 11-3) at 2.) This statement is 23 sufficient to support the award damages for the single violation sought by plaintiff. Accordingly, 24 the undersigned recommends that plaintiff be awarded $4,000 in statutory damages. 25 //// 26 //// 27 //// 28 //// 1 3. Attorney’s Fees and Costs 2 Plaintiff’s motion for default judgment seeks an award of $4,433.25 in attorney’s fees and 3 costs.5 (Pl.’s MDJ (ECF No. 11-1) at 10.) Pursuant to 42 U.S.C. § 12205, a party that prevails on 4 claims brought under the ADA may recover reasonable attorney’s fees and costs in the court’s 5 discretion. 6 Local Rule 293 sets forth certain requirements for the consideration of attorneys’ fees. In 7 this regard, a party seeking an award of attorneys’ fees must provide information from which the 8 court can determine: 9 (1) the time and labor required of the attorney(s); 10 (2) the novelty and difficulty of the questions presented; 11 (3) the skill required to perform the legal service properly; 12 (4) the preclusion of other employment by the attorney(s) because of the acceptance of the action; 13 (5) the customary fee charged in matters of the type involved; 14 (6) whether the fee contracted between the attorney and the client is 15 fixed or contingent; 16 (7) any time limitations imposed by the client or the circumstances; 17 (8) the amount of money, or the value of the rights involved, and the results obtained; 18 (9) the experience, reputation, and ability of the attorney(s); 19 (10) the “undesirability” of the action; 20 (11) the nature and length of the professional relationship between 21 the attorney and the client; 22 (12) awards in similar actions; and 23 (13) such other matters as the Court may deem appropriate under the circumstances. 24 25 Local Rule 293(b) and (c). 26 27 5 Although plaintiff’s motion fails to articulate clearly this amount or an itemization of the attorney’s fees and cost sought, the undersigned was able to determine this number from the 28 various exhibits submitted by plaintiff’s counsel in support of the motion for default judgment. 1 Similarly, with respect to costs Local Rule 292 provides: 2 Within fourteen (14) days after entry of judgment or order under which costs may be claimed, the prevailing party may serve on all 3 other parties and file a bill of costs conforming to 28 U.S.C. § 1924. The cost bill shall itemize the costs claimed and shall be supported 4 by a memorandum of costs and an affidavit of counsel that the costs claimed are allowable by law, are correctly stated, and were 5 necessarily incurred. 6 Local Rule 292(a). 7 Here, although plaintiff’s motion acknowledges Local Rule 293 and is supported by a 8 declaration from plaintiff’s counsel, plaintiff’s submission fails to comply with the provisions of 9 the Local Rules or provide the information necessary to evaluate plaintiff’s request. In this 10 regard, plaintiff’s motion only contains a vague and acknowledgement of Local Rule 293, 11 without providing all the information necessary. (Pl.’s MDJ (ECF No. 11-1) at 20.) 12 For example, there is no discussion of the reasonableness of the hours expended, the rate 13 requested, or discussion of any awards in similar actions either involving plaintiff’s counsel or 14 other similar actions in this district. See generally Roberts v. City of Honolulu, 938 F.3d 1020, 15 1024 (9th Cir. 2019) (“It is the responsibility of the attorney seeking fees to submit evidence to 16 support the requested hourly rate.”); Ingram v. Oroudjian, 647 F.3d 925, 928 (9th Cir. 2011) 17 (reasonable hourly rates calculated according to prevailing market rates in the relevant legal 18 community). Likewise, plaintiff seeks an award of $1,706.25 for costs spent on the Certified 19 Access Specialist without any discussion of whether such an award is allowable by law, 20 reasonable, or been awarded in similar cases. (Vaughn Decl. (ECF No. 11-5) at 4.) 21 Accordingly, the undersigned recommends that plaintiff’s request for attorney’s fees and 22 costs be denied without prejudice to renewal. See United States for use and benefit of Rexel, 23 Inc. v. Hubzone Corp., No. 2:16-cv-0408 JAM EFB, 2019 WL 1150028, at *5 (E.D. Cal. Mar. 24 13, 2019) (“ACIC has not submitted an affidavit addressing the criteria listed in Local Rule 293. 25 Accordingly, its requests for attorney’s fees shall be addressed in an appropriate motion filed in 26 conformance with Local Rule 293.”); Vang v. Lopey, No. 2:16-cv-2172 JAM CMK, 2017 WL 27 6055771, at *1 (E.D. Cal. Dec. 7, 2017) (“The Court also denied the County’s request for 28 1 attorney’s fees twice, most recently based on the County’s noncompliance with Local Rule 2 293(b).”); Beats Electronics, LLC v. Deng, No. 2:14-cv-1077 JAM AC (TEMP) 2016 WL 3 335833, at *7 (E.D. Cal. Jan. 28, 2016) (recommending denial of request for fees and costs for 4 failure to comply with Local Rules); Johnson v. Wells Fargo Bank N.A., No. 2:10-cv-2839 GEB 5 CKD, 2013 WL 4854790, at *1 (E.D. Cal. Sept. 11, 2013) (“Failure to comply with the local rule 6 governing the filing of motions for attorney’s fees is a reason for denial of the motion.”). 7 CONCLUSION 8 For the reasons set forth above, IT IS HEREBY RECOMMENDED that: 9 1. Plaintiff’s December 3, 2019 motion for default judgment (ECF No. 11) be granted; 10 2. Judgment be entered against defendant Charan Budwal; 11 3. Defendant be ordered to pay $4,000 in statutory damages; 12 4. Defendant be ordered to correct the violations at the property identified in plaintiff’s 13 complaint, to the extent that defendant has the legal right to do so, so that the facility is readily 14 accessible to and usable by individuals with disabilities; 15 5. Plaintiff’s request for attorney’s fees and costs be denied without prejudice to renewal; 16 and 17 6. This case be closed. 18 These findings and recommendations will be submitted to the United States District Judge 19 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within thirty (30) days 20 after these findings and recommendations are filed, any party may file written objections with the 21 court. A document containing objections should be titled “Objections to Magistrate Judge’s 22 Findings and Recommendations.” Any reply to the objections shall be served and filed within 23 fourteen (14) days after service of the objections. 24 //// 25 //// 26 //// 27 //// 28 2 fu VEY PRIN MVC Or PIO ee OY A tt 2 The parties are advised that failure to file objections within the specified time may, under 3 | certain circumstances, waive the right to appeal the District Court’s order. See Martinez v. □□□□□ 4 | 951 F.2d 1153 (9th Cir. 1991). 5 | Dated: June 26, 2020 g ORAH BARNES UNITED STATES MAGISTRATE JUDGE 9 DLB:6 10 || DB\orders\orders.civil\pomponio1006.mdj.f&rs 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14