Project Sentinel v. Komar ( 2021 )

Case 1:19-cv-00708-DAD-EPG Document 85 Filed 04/12/21 Page 1 of 42 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 PROJECT SENTINEL, No. 1:19-cv-00708-DAD-EPG 12 Plaintiff, FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT PLAINTIFF’S 13 v. MOTION FOR DEFAULT JUDGMENT BE GRANTED IN PART AND DENIED IN PART 14 JEANETTE KOMAR and SARAH KOMAR, (ECF No. 68) 15 Defendants. FOURTEEN-DAY DEADLINE 16 17 Plaintiff Project Sentinel (“Plaintiff”) commenced this action on May 20, 2019, by filing a 18 complaint alleging Defendants Jeanette Komar, Sarah Komar (with Jeanette Komar, 19 “Defendants”) and Meyer Komar1 violated the Fair Housing Act (“FHA”); the Civil Rights Act of 20 1866; and various California state laws by engaging in discriminatory housing practices, 21 including the Fair Employment and Housing Act (“FEHA”). (ECF No. 1). 22 On December 24, 2020, Plaintiff filed a motion for a default judgment against Defendants. 23 (ECF No. 68). Defendants have not filed any appearance in this case and did not file any response 24 to the motion. On February 5, 2021, the Court held a telephonic hearing on the motion. Counsel 25 Liza Cristol-Deman appeared for Plaintiff. Defendants did not appear. The motion for a default 26 judgment is now pending before the Court. For the following reasons, the Court recommends 27 1 On January 4, 2021, Defendant Meyer Komar was dismissed from this action without prejudice after Plaintiff 28 located an obituary for him. (ECF No. 76). 1 Case 1:19-cv-00708-DAD-EPG Document 85 Filed 04/12/21 Page 2 of 42 1 granting the motion in part, and denying it in part. 2 I. BACKGROUND AND EVIDENCE IN SUPPORT OF DEFAULT JUDGMENT 3 A. Summary of Complaint 4 Plaintiff’s complaint (ECF No. 1) alleges as follows: 5 1. Parties 6 Plaintiff is a non-profit organization with the organizational mission “to develop and 7 promote fairness and equality of housing for all persons and to advocate peaceful resolutions for 8 community welfare and harmony.” (Id. at 2). It provides community education, conducts training, 9 and provides fair housing counseling. (Id.). 10 Meyer and Jeanette Komar, at the time Plaintiff filed the complaint, owned and managed a 11 three-unit residential rental property at 2200 San Lucas Court, Modesto, California (the 12 “Property”). Jeanette and Meyer Komar’s daughter, Sarah Komar, also managed the Property. 13 Since this action began, it appears that Meyer Komar has died. (See ECF No. 76). In 14 addition, Plaintiff informs the Court that the Property has been sold but Jeanette Komar owns 15 another rental property. (ECF No. 78). 16 2. Investigation 17 On March 31, 2017, a neighbor of the Property contacted Plaintiff about Defendants’ 18 apparent racial discrimination in selecting renters. The neighbor reported that one of her 19 acquaintances called in response to an advertised vacancy at the Property and spoke with an 20 unidentified woman. The unidentified woman told the acquaintance, “ ‘You sound Black, I don’t 21 rent to black people,’ or words to that effect. The [neighbor] also said the landlords at the subject 22 property called someone the ‘N’ word in public.” (ECF No. 1 at 3). 23 Plaintiff investigated these claims. First, Plaintiff confirmed the Property was available for 24 rent and noted the phone number on the for-rent sign. Second, Plaintiff had “testers” call the 25 listed number. 26 The first tester was “a Black woman with a racially-identifiable voice” and used the name 27 “Lakisha Robinson.” (Id. at 3). This tester left a voicemail with her name and contact information 28 and requested a return call about the unit. She did not receive a return call. The second tester was 2 Case 1:19-cv-00708-DAD-EPG Document 85 Filed 04/12/21 Page 3 of 42 1 “a white woman with a racially identifiable voice” and used the name “Allison Sullivan.” (Id.). 2 This tester left a voicemail two days after the first tester. She received a call from a woman who 3 identified herself as “Sarah” five minutes after leaving the voicemail. Plaintiff alleges this 4 “Sarah” was Defendant Sarah Komar. Sarah Komar provided various instructions about the 5 application process. Thirty minutes after Sarah Komar returned “Allison Sullivan’s” call, 6 “Lakisha Robinson” called the listed phone number again and left another voicemail. “Lakisha 7 Robinson” did not receive a response. 8 Plaintiff repeated this process with two more testers—a black woman who used the name 9 “Aisha Washington” and “a white woman with a racially-identifiable voice” who used the name 10 “Meredith O’Brien.” (Id. at 4). There were similar results: Sarah Komar called “Meredith 11 O’Brien” back and gave her information about the property. No one returned “Aisha 12 Washington’s” call. (Id.). At one point, “Meredith O’Brien” asked Sarah Komar on the phone 13 whether she was the owner. “Sarah Komar responded, ‘I am the owner, there is no property 14 management,’ or words to that effect.” (Id. at 5). 15 3. Standing Allegations 16 Plaintiff alleges that Defendants engage in a pattern or practice of racial discrimination, 17 preventing black home-seekers from residing at the Property. 18 Plaintiff diverted its resources as a result of this discrimination. Instead of engaging in its 19 ordinary work, Plaintiff identified and investigated Defendants’ housing practices. It conducted 20 targeted education and outreach efforts to combat the effects of Defendants’ acts. Plaintiff 21 devoted significant staff time to the project, provided fair-housing information at a community 22 event that served many of Modesto’s black residents, and distributed educational literature to 23 redress the impact of Defendants’ discrimination. 24 Plaintiff’s mission was also frustrated. Plaintiff will need to invest resources into 25 monitoring Defendants’ rental properties and undertaking education and outreach efforts. It will 26 also conduct future monitoring, testing, and training. 27 4. Claims 28 Plaintiff brings federal law claims under the Fair Housing Act, 42 U.S.C. § 3601, et seq., 3 Case 1:19-cv-00708-DAD-EPG Document 85 Filed 04/12/21 Page 4 of 42 1 and Civil Rights Act of 1866, 42 U.S.C. § 1981. Plaintiff also brings statutory state-law claims 2 under the California Fair Employment and Housing Act (“FEHA”), California Civil Code section 3 1714 (negligence), and California Business and Professional Code section 17200 et seq. (unfair 4 business practices). 5 B. Service and Default of Defendants 6 1. Service 7 Plaintiff’s process server personally served Meyer Komar at 1523 Gary Lane, Modesto, 8 California on June 24, 2019. (ECF No. 4). Concurrently, the process server also left summonses 9 for Defendants Jeanette and Sarah Komar with Meyer Komar. (ECF Nos. 5 & 6). The deed for 10 1523 Gary Lane indicates it was owned by Meyer and Jeanette Komar, “husband and wife as joint 11 tenants.” (ECF No. 71-4 at 3). The process server’s office proceeded to mail copies of the same 12 documents to Sarah and Jeanette Komar at 1523 Gary Lane after serving Meyer Komar. (ECF 13 No. 82-6). 14 Accurint records list Sarah Komar’s address at the time of service of process as 3616 15 Shady Valley Court, Modesto, California. (ECF No. 82-7 at 2). The search tool Accurint showed 16 that Sarah Komar lived at Shady Valley Court at the relevant time. (ECF No. 82-7 at 2). 17 Sarah Komar appears to be related to Meyer and Jeanette. Along with sharing the same 18 last name, Meyer and Sarah Komar both had licenses with the Department of Insurance registered 19 at 3616 Shady Valley Court, Modesto, California. (ECF No. 71-5 at 2, 5). Plaintiff’s Accurint 20 search records list “Meyer Komar” and “Jeanette M. Komar” as “possible relatives” of Sarah. 21 (ECF No. 82-3 at 4). According to Plaintiff’s counsel, one of Plaintiff’s former staff attorneys 22 informed her that Sarah was Meyer and Jeanette Komar’s adult daughter. (ECF No. 82-1 at 2). 23 Counsel does not recall how the staff attorney learned that information. (Id.). 24 A process server attempted to serve Sarah Komar at the 3616 Shady Valley Court address 25 five times but was unsuccessful. (ECF No. 82-5) (process server’s report). Only after these 26 attempts, the last of which occurred on June 6, 2019, did the process server serve Meyer Komar 27 with summons for Sarah Komar at 1523 Gary Lane. In September 2019, Plaintiff’s counsel asked 28 a process server, Gary Ermoian, to serve Sarah Komar at a separate address after finding the 4 Case 1:19-cv-00708-DAD-EPG Document 85 Filed 04/12/21 Page 5 of 42 1 address on Accurint. (ECF No. 82-1 at 3). According to counsel’s declaration, no one answered 2 the door at that location the two times he attempted to serve her there. (Id.). Ermoian’s declaration 3 does not mention going to that location. (ECF No. 82-6). 4 On August 19, 2019, Meyer Komar informed Plaintiff that Sarah Komar had “moved out 5 of the area” but declined to provide a new address. (ECF No. 82-1 at 3).2 6 2. Defendants’ Participation in This Lawsuit 7 Meyer Komar participated in the lawsuit several times. (ECF Nos. 8 (answer); 13 8 (response to order to show cause for failure to appear at scheduling conference); 29 (motion to 9 dismiss)). Several times, he indicated that he represented his family members. (ECF Nos. 13 (“If 10 project Sentin[e]l plans to move their case against me to trial I will represent and defend my 11 family at that time.”) & 29 (immediately before signature in motion to dismiss, “Submitted by 12 Meyer Komar (defendant for himself & Jeanette and Sarah Komar)”). In addition, according to 13 counsel’s declaration, Meyer Komar sent counsel an email stating “I will represent the Komar 14 family exclusively.” (ECF No. 71 at 6-7). 15 Although she has never answered the complaint or otherwise formally appeared, 16 Defendant Jeanette Komar has filed numerous documents with the Court. On February 27, 2020, 17 Defendant Jeanette Komar filed a letter with the Court, indicating that Meyer Komar was in ill 18 health. (ECF No. 39). The letter attached an email Jeanette sent to counsel, stating that neither she 19 nor Sarah waived service of process. On April 8, 2020, Jeanette filed a second letter, providing 20 additional information concerning Meyer Komar’s ill health. (ECF No. 41). On July 14, 2020, 21 Jeanette filed another letter, which mostly discussed discovery issues and Meyer’s continued ill 22 health. (ECF No. 52). According to counsel’s declaration, Jeanette also communicated with 23 counsel over the phone, through voicemail messages, via email, and via physical mail. (ECF No. 24 71 at 9-12). 25 Sarah Komar has not filed any documents. Counsel states that she has not received any 26 communication from Sarah. (ECF No. 71 at 12). 27 2 The Court subsequently granted Plaintiff’s motion to compel Meyer Komar to, inter alia, inform Plaintiff of Sarah Komar’s address. (ECF No. 51 at 9-10). It appears that Meyer Komar subsequently died; he did not comply with the 28 order before his apparent death. (See ECF No. 60). 5 Case 1:19-cv-00708-DAD-EPG Document 85 Filed 04/12/21 Page 6 of 42 1 3. Entry of Default and Motion for Default Judgment 2 On September 20, 2019, Plaintiff requested an entry of default as to Defendants. (ECF No. 3 14). The clerk entered the default on September 24, 2019. (ECF No. 16). On December 24, 2020, 4 Plaintiff filed the motion for default judgment, which is now before the Court. (ECF No. 68). 5 On February 4, 2021, Plaintiff filed an additional declaration concerning an apparent 6 change in the ownership of the property that is the subject of this lawsuit. (ECF No. 78). On 7 February 5, 2021, the Court held a telephonic hearing on the motion. Counsel Liza Cristol-Deman 8 appeared for Plaintiff. Defendants did not appear. 9 The Court requested additional information concerning service on Sarah Komar (ECF No. 10 81) and Plaintiff’s damages’ calculations (ECF No. 83). Plaintiff filed the additional information 11 concerning service on Sarah Komar on March 15, 2021, (ECF No. 82) and Plaintiff’s damages’ 12 calculations on March 30, 2021, (ECF No. 84). 13 C. Summary of Motion for Default Judgment 14 Plaintiff argues that Defendants have defaulted by failing to answer the complaint or 15 meaningfully participate in the action. Plaintiff argues the Eitel factors favor granting a default 16 judgment and that Plaintiff is entitled to compensatory damages and attorneys’ fees. Defendants 17 have not filed an opposition. The Court highlights a few aspects of the motion and its related 18 filings. 19 1. Standing 20 Plaintiff argues that it has standing to because its resources were drained and its mission 21 was frustrated. (ECF No. 69 at 17-18). Plaintiff also filed a declaration by its executive director, 22 Ann Marquat, which appears to concern standing. (ECF No. 70). 23 Plaintiff is a fair-housing organization. Plaintiff conducts “investigations and research 24 regarding housing discrimination,” provides “more than 50 housing-related programs, including 25 educational seminars . . . on fair housing,” and “conducts regular trainings for real estate 26 professionals and rental housing owners regarding fair housing laws[.]” (Id. at 1-3). It also 27 conducts testing, in cases such as these. (Id. at 3). It must recruit, train and pay testers, requiring a 28 significant amount of staff time, including conducting four trainings per year. (Id. at 4). 6 Case 1:19-cv-00708-DAD-EPG Document 85 Filed 04/12/21 Page 7 of 42 1 In order to conduct this case, Plaintiff had to expend resources documenting the 2 complainant’s story; investigating Defendants’ conduct; filing a complaint with the Department 3 of Housing and Urban Development; and pursuing that complaint with the California Department 4 of Fair Employment and Housing, to which the Department of Housing and Urban Development 5 transferred the complaint. This involved attorneys’ and staff members’ time. (Id. at 6-10). Staff’s 6 doing so constituted a diversion of resources to counteract Defendants’ discrimination: 7 Defendants’ discriminatory housing practices caused Project Sentinel to focus on 8 investigating their rentals and counteracting the discrimination uncovered. If Project Sentinel had not been forced to divert its resources to investigating 9 defendants’ discriminatory housing practices, Project Sentinel could have invested those same resources into its affirmative, proactive programs designed to 10 promote and protect equal opportunities in housing. Project Sentinel also diverted its resources to activities to counteract the effects of defendants’ discrimination – 11 resources which could have been allocated to other programs if defendants had 12 not engaged in discrimination. Every discriminatory housing practice reported and investigated means less time to counsel their complainants and investigate other 13 matters, engage in community education, and support the various other programs administered by Project Sentinel. 14 (Id. at 9). 15 Going forward, Plaintiff intends to continue to monitor Defendants’ fair-housing practices 16 by conducting two tests per year over the next three years and monitoring Defendants’ 17 advertisements and signs. (Id. at 13). 18 Marquat also declares that Defendants’ actions had a broader effect on the community: 19 53. Defendants’ discrimination here may have had an effect far beyond the 20 incidents of discrimination that are the basis of this lawsuit. On a broader 21 community level, Project Sentinel needs to take action in the future to increase awareness of housing discrimination based on race and the consequences of that 22 discrimination. The discrimination by the Komars should serve as a wake-up call that discrimination based on race still happens. And that it happens here in 23 California. Discrimination that goes unchecked sends a message to landlords that they can act with impunity. It also sends a message to renters that they have no 24 rights or that their rights are meaningless. In short, Project Sentinel’s mission 25 remains critical. The agency has to work hard to ensure that the community is aware of the housing discrimination laws and the ways in which they can be 26 enforced. 27 54. Project Sentinel will target its outreach and training efforts to segments of the 28 community affected by the housing discrimination uncovered in this case. Such 7 Case 1:19-cv-00708-DAD-EPG Document 85 Filed 04/12/21 Page 8 of 42 1 trainings will include one for the West Modesto Community Center regarding housing discrimination based on race. In addition, Project Sentinel seeks to create 2 approximately 1000 flyers regarding housing discrimination based on race and 3 plans to distribute them in the same census tract where the defendants’ rental premises is located. 4 55. These community outreach and training efforts will require approximately 8 5 hours of staff time, plus expenses for mailing and copying. 6 (Id. at 14). 7 2. Summary of Plaintiff’s Arguments 8 Plaintiff argues that it is entitled to a default judgment because it has already received a 9 clerk’s entry of default, (ECF No. 16), and the Eitel factors, which the Ninth Circuit uses to 10 consider motions for default judgment, favor granting a default judgment. (ECF No. 69 at 9-17). 11 Plaintiff argues that it is entitled to damages because it diverted its resources and its 12 mission was frustrated by Defendants’ conduct. (Id. at 17-18). It further seeks injunctive relief 13 and attorneys’ fees and costs. (Id. at 18-23). 14 Defendants have not responded to the motion or any of Plaintiff’s additional filings. 15 II. LEGAL STANDARDS FOR DEFAULT JUDGMENT 16 Federal Rule of Civil Procedure 55(b) permits a court to enter default judgment following 17 a defendant’s default. Boards of Trustees v. Energy Management, 2012 WL 1657523 at *1 (N.D. 18 Cal. 2012) (citation omitted). Rule 55 specifically provides that: 19 (b) Entering a Default Judgment (1) By the Clerk. If the plaintiff’s claim is for a sum certain or a sum that can 20 be made certain by computation, the clerk—on the plaintiff’s request, with an 21 affidavit showing the amount due—must enter judgment for that amount and costs against a defendant who has been defaulted for not appearing and who is 22 neither a minor nor an incompetent person. (2) By the Court. In all other cases, the party must apply to the court for a 23 default judgement. A default judgment may be entered against a minor or 24 incompetent person only if represented by a general guardian, conservator, or other like fiduciary who has appeared personally or by a representative, that 25 person or its representative must be served with written notice of the application at least 7 days before the hearing. The court may conduct hearings 26 or make referrals—preserving any federal statutory right to a jury trial—when, to enter or effectuate judgment, it needs to: 27 (A) Conduct an accounting; 28 (B) Determine the amount of damages; 8 Case 1:19-cv-00708-DAD-EPG Document 85 Filed 04/12/21 Page 9 of 42 1 (C) Establish the truth of any allegation by evidence; or (D) Investigate any other matter. 2 Whether to enter a default judgment lies within the court’s discretion. Draper v. Coombs, 3 792 F.2d 915, 924-25 (9th Cir. 1986). The Ninth Circuit has enumerated the following factors 4 (collectively, the Eitel factors) that a court may consider in determining whether to grant default 5 judgment: (1) the possibility of prejudice to the plaintiff; (2) the merits of the plaintiff’s 6 substantive claim; (3) the sufficiency of the complaint; (4) the sum of money at stake in the 7 action; (5) the possibility of a dispute concerning material facts; (6) whether the default was due 8 to excusable neglect; and (7) the strong policy underlying the Federal Rules of Civil Procedure 9 favoring decision on the merits. See Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). 10 As stated above, “The general rule of law is that upon default the factual allegations of the 11 complaint, except those relating to the amount of damages, will be taken as true.” TeleVideo Sys., 12 826 F.2d at 917–18 (9th Cir. 1987). Therefore, the plaintiff is required to provide proof of all 13 damages sought in the complaint. 14 In addition, before awarding a default judgment against a defendant, the court must 15 determine the adequacy of service of process, as well as the court’s jurisdiction over the subject 16 matter and the parties. In re Tuli, 172 F.3d 707, 712 (9th Cir. 1999) (“When entry of judgment is 17 sought against a party who has failed to plead or otherwise defend, a district court has an 18 affirmative duty to look into its jurisdiction over both the subject matter and the parties.”); 19 Kaldawi v. Kuwait, 709 F. App’x 452, 453 (9th Cir. 2017) (“When entry of judgment is sought 20 against a party who has failed to plead or otherwise defend, a district court has an affirmative 21 duty to look into its jurisdiction over both the subject matter and the parties.”); cf. S.E.C. v. 22 Internet Sols. for Bus. Inc., 509 F.3d 1161, 1165 (9th Cir. 2007) (“We review de novo whether 23 default judgment is void because of lack of personal jurisdiction due to insufficient service of 24 process.”). 25 26 27 28 9 Case 1:19-cv-00708-DAD-EPG Document 85 Filed 04/12/21 Page 10 of 42 1 III. ANALYSIS 2 A. Plaintiff’s Standing 3 1. Legal Standards 4 Courts “have an independent obligation to determine whether subject-matter jurisdiction 5 exists, even in the absence of a challenge from any party.” Arbaugh v. Y&H Corp., 546 U.S. 500, 6 514 (2006). Courts lack subject-matter jurisdiction over suits brought by plaintiffs without 7 standing. Cetacean Cmty. v. Bush, 386 F.3d 1169, 1174 (9th Cir. 2004). There are three 8 constitutional requirements for standing: 9 First, the plaintiff must have suffered an “injury in fact”—an invasion of a legally 10 protected interest which is (a) concrete and particularized, and (b) actual or imminent. Second, there must be a causal connection between the injury and the 11 conduct complained of. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. 12 13 Walker v. City of Lakewood, 272 F.3d 1114, 1123 (9th Cir. 2001) (quoting Lujan v. Defenders of 14 Wildlife, 504 U.S. 555, 560-61 (1992)) (alterations omitted). 15 There are no additional requirements for standing under the Fair Housing Act: “The sole 16 requirement for standing to sue under the FHA is the Article III minima of injury in fact: that the 17 plaintiff allege that as a result of the defendant’s actions he has suffered a distinct and palpable 18 injury.” Walker v. City of Lakewood, 272 F.3d 1114, 1123 (9th Cir. 2001) (quoting Havens Realty 19 Corp. v. Coleman, 455 U.S. 363, 372 (1982)) (alterations omitted). 20 An organization may suffer an injury in fact for standing purposes when it suffers a 21 diversion of its resources and a frustration of its mission. Havens Realty Corp. v. Coleman, 455 22 U.S. 363, 379 (1982); Fair Hous. of Marin v. Combs, 285 F.3d 899, 905 (9th Cir. 2002). 23 “Organizations divert resources when they alter their resource allocation to combat the challenged 24 practices, but not when they go about their business as usual.” Friends of the Earth v. Sanderson 25 Farms, Inc., --- F.3d ----, 2021 WL 1205023, at *2 (9th Cir. Mar. 31, 2021). 26 The United States Supreme Court addressed organizational standing in a similar situation 27 Havens Realty. There, plaintiff HOME was a fair housing non-profit organization “whose 28 purpose was to make equal opportunity in housing a reality in” its local area. 455 U.S. at 368. It 10 Case 1:19-cv-00708-DAD-EPG Document 85 Filed 04/12/21 Page 11 of 42 1 operated a housing counseling service and investigated complaints concerning housing 2 discrimination. Id. HOME alleged that it sent two testers to determine whether an apartment 3 complex was violating housing discrimination laws, that the white tester was told apartments 4 were available, and that the black tester was told otherwise. HOME alleged the defendant’s 5 racial-steering practices frustrated “its efforts to assist equal access to housing through counseling 6 and other referral services” and that “HOME has had to devote significant resources to identify 7 and counteract the defendant’s racially discriminatory steering practices.” Id. at 379. These 8 allegations stated an injury in fact: 9 If, as broadly alleged, petitioners’ steering practices have perceptibly impaired 10 HOME’s ability to provide counseling and referral services for low-and moderate- income homeseekers, there can be no question that the organization has suffered 11 injury in fact. Such concrete and demonstrable injury to the organization’s activities—with the consequent drain on the organization’s resources—constitutes 12 far more than simply a setback to the organization’s abstract social interests. 13 Id. 14 The Ninth Circuit conducted a detailed analysis of Havens standing in Combs. There, a 15 fair-housing organization sued an apartment-complex owner under the FHA, the Civil Rights Act 16 of 1866, and California state laws for illegal housing discrimination on the basis of race. Id. at 17 902. 18 Among its many activities to further its mission of promoting equal housing 19 opportunities, Fair Housing investigates allegations of discrimination, conducts tests of housing facilities to determine whether equal opportunity in housing is 20 provided, takes such steps as it deems necessary to assure equal opportunity in housing and to counteract and eliminate unlawful discriminatory housing 21 practices, and provides outreach and education to the community regarding fair housing. 22 Id. The district court found that: 23 24 one of Fair Housing’s activities in combating illegal housing discrimination is to provide outreach and education to the community regarding fair housing. Fair 25 Housing alleges that, as a result of defendant’s discriminatory practices, it has suffered injury to its ability to carry out its purposes and economic losses in staff 26 pay, in funds expended in support of volunteer services, and in the inability to undertake other efforts to end unlawful housing practices. Thus, fairly construed, 27 Fair Housing complains that defendant’s discrimination against African 28 Americans has caused it to suffer injury to its ability to provide outreach and 11 Case 1:19-cv-00708-DAD-EPG Document 85 Filed 04/12/21 Page 12 of 42 1 education (i.e., counseling). 2 Id. at 905 (quotation marks, citations and alterations omitted). 3 The Ninth Circuit held that, with respect to diversion of resources, “an organization could 4 have standing if it had proven a drain on its resources resulting from counteracting the effects of 5 the defendant’s actions.” Id. at 904 (quoting La. ACORN Fair Hous. v. LeBlanc, 298, 305 (5th 6 Cir. 2000)). Because the plaintiff “showed a drain on its resources from both a diversion of its 7 resources and frustration of its mission,” it had direct standing to sue. Id. at 905. 8 Organizations may also have standing under FEHA using the same analysis. In Sisemore 9 v. Master Financial, Inc., 151 Cal. App. 4th 1386, 1424-26 (2007), the California Court of 10 Appeals looked to federal law and determined that Plaintiff (which was a plaintiff in that case, 11 too) had standing to bring its FEHA claims under Havens Realty. There, because Plaintiff 12 “alleged that it has been required to divert scarce resources to address Master Financial’s alleged 13 wrongful conduct, we conclude that Project Sentinel is a ‘person aggrieved’ under section 14 12989.1 and has standing to assert a FEHA claim.” Id. at 1426. Citing Sisemore, the Central 15 District of California found a fair-housing organization had standing to bring a FEHA claim in 16 federal court. See Intervention911 v. City of Palm Springs, 2014 WL 12853165, at *15 n.117 17 (C.D. Cal. July 7, 2014) (“As with its federal claims, Intervention has standing to bring a claim as 18 an ‘aggrieved person’ under Government Code § 12989.1.”). 19 2. Application to Plaintiff 20 Plaintiff contends it has suffered diversion-of-resources and frustration-of-mission 21 damages. (ECF No. 70-2 at 9-13) (in Marquat declaration, sections entitled “Damages for 22 Diversion of Resources” and “Frustration of Mission Damages”). 23 Marquat avers Plaintiff conducts investigations, provides housing-related programs and 24 educational seminars, conducts trainings, and tests landlords’ fair-housing practices. These 25 practices require a significant amount of staff time. (ECF No. 70 at 1-4). Plaintiff diverted its 26 resources away from some of those other missions to investigate and combat Defendants’ 27 conduct. Specifically, Marquat declares that: 28 12 Case 1:19-cv-00708-DAD-EPG Document 85 Filed 04/12/21 Page 13 of 42 1 Project Sentinel suffered damages for diversion of resources caused by 2 responding to the complaint of discrimination. The complaint required Project 3 Sentinel to take its focus and resources away from its educational programs, counseling, and other programs and activities, and instead direct its resources to 4 the investigation of defendants’ housing practices. 5 (ECF No. 70 at 9). 6 Plaintiff has produced evidence that instead of working on its educational programs, 7 counseling, and various other activities, it investigated defendants’ housing practices. For 8 instance, it has filed timesheets showing that its staff was diverted, (ECF No. 70-3), and 9 summaries of other expenditures Plaintiff encountered, such as the costs of testing and out-of- 10 pocket expenses, (ECF Nos. 70 at 9-12 (discussing testing and investigation costs for this case); 11 70-2 (showing summary of damages, including out-of-pocket expenses)). To counteract 12 Defendants’ allegedly illegal conduct, Plaintiff also conducted outreach and community education 13 efforts. (ECF Nos. 70 at 11 (discussing staff attorney Jennifer Reynolds’ outreach and education 14 efforts); 70-3 at 7 (Reynolds’ time sheet)). These were diversions of Plaintiff’s resources. 15 In fact, Plaintiff’s diversion is nearly identical to Fair Housing of Marin’s in Combs. Both 16 organizations seek to reduce illegal housing discrimination. Both investigated their respective 17 defendants’ illegal activities after receiving complaints. Combs, 285 F.3d at 902 (“air Housing 18 received complaints that Combs was racially discriminating against black tenants and black 19 potential tenants. In response, Fair Housing conducted two sets of controlled tests where a black 20 tester was shown a unit at Waters Edge followed by a white tester.”); (ECF No. 1 at 3-5) 21 (allegations in complaint concerning tip Plaintiff received and subsequent testing). Both provided 22 education and outreach to the affected communities to counteract the discrimination, and 23 expended staff time and resources to do so. Combs at 905 (finding organization’s “resources were 24 diverted to investigating and other efforts to counteract Combs’ discrimination”);3 (ECF No. 70 at 25 9-12) (discussing testing and investigating costs). Accordingly, just as Fair Housing of Marin had 26 standing to pursue its Fair Housing Act, Civil Rights Act, and state-law claims such as the Fair 27 3 The Ninth Circuit affirmed the district court’s award of $14,217 diversion-of-resources damages. Id. These included staff time investigating and litigating the complaints, testing costs, and tester recruitment. Fair Housing of Marin v. 28 Combs, 2000 WL 365029, at *3 (N.D. Cal. March 29, 2000). 13 Case 1:19-cv-00708-DAD-EPG Document 85 Filed 04/12/21 Page 14 of 42 1 Employment and Housing Act, so too does Plaintiff. See Combs, 285 F.3d at 902, 905. 2 In addition, Plaintiff contends it suffered additional frustration-of-mission damages. 3 Marquat declares: 4 When a landlord engages in discrimination, it is extremely important for Project Sentinel to take action to counteract the effects of that discrimination. Although 5 we do not know how many people of color called the phone number on the rental 6 sign and never received a call back, defendants’ race-based screening tactics likely affected more people than just the ones we know about. Likewise, this 7 discrimination may have taken place at defendants’ other rental properties. Defendants who discriminate at one rental property are likely to discriminate at all 8 of their rental properties. The number of people of color prevented from applying during previous vacancies or at defendants’ other rental properties is unknown. 9 All of these practices frustrate Project Sentinel’s mission. 10 (ECF No. 70 at 13). 11 Plaintiff contends its frustration of mission damages include: having to conduct future 12 testing and training, having to monitor Defendants’ future advertisements and records, having 13 staff attorneys conduct trainings to counteract Defendants’ conduct, and creating and mailing 14 information concerning race discrimination and fair housing rights to the relevant census tract. 15 (EF No. 70-2 at 3-4). In Combs, Fair Housing of Marin “suffered $10,160 in frustration of 16 mission damages, namely for design, printing, and dissemination of literature aimed at redressing 17 the impact Combs’ discrimination had on the Marin housing market.” 285 F.3d at 905. Plaintiff 18 incurred these types of damages, too. (ECF Nos. 70 at 9-11 (discussing plan to counteract 19 Defendants’ conduct by, inter alia, printing and distributing brochures and Reynolds’ distribution 20 of such brochures); 84-1 at 2 (stating Plaintiff incurred $5,369.30 in damages for community 21 outreach and brochure drops)). 22 Plaintiff has suffered the same type of diversion-of-resources and frustration-of-mission 23 damages that Fair Housing of Marin did. Thus, as there, Plaintiff here “has direct standing to sue 24 because it showed a drain on its resources from both a diversion of its resources and frustration of 25 its mission.” Combs, 285 F.3d at 905. 26 27 28 14 Case 1:19-cv-00708-DAD-EPG Document 85 Filed 04/12/21 Page 15 of 42 1 B. Service of Process 2 1. Service on Jeanette Komar 3 Under Federal Rule of Civil Procedure 4(e)(2)(B), a plaintiff may serve an individual in a 4 judicial district of the United States by “leaving a copy of [the summons and complaint] at the 5 individual’s dwelling or usual place of abode with someone of suitable age and discretion who 6 resides there[.]” 7 On July 2, 2019, Plaintiff filed executed summonses for Defendants and then-defendant 8 Meyer Komar. (ECF Nos. 4-6). The filings indicated that Meyer Komar was served personally at 9 1523 Gary Lane, Modesto, California, 95355, and the process server left additional copies of the 10 relevant documents with Meyer Komar to serve Defendants. (Id.). Jeanette Komar owned that 11 house with Meyer Komar. (ECF No. 71-4 at 3). Thus, Plaintiff properly served Jeanette Komar 12 under Rule 4(e)(2)(B). 13 2. Service on Sarah Komar 14 Plaintiff argues that it served Sarah Komar under California Code of Civil Procedure 15 section 415.20(b), which is permitted by Federal Rule of Civil Procedure 4(e)(1). (ECF No. 82 at 16 4-7). In the alternative, Plaintiff argues due process was met here because substituted service was 17 reasonably certain to inform Sarah Komar. (Id. at 7-8). 18 Under Rule 4(e)(1), an individual may also be served by “following state law for serving a 19 summons in an action brought in courts of general jurisdiction in the state where the district court 20 is located or where service is made[.]” Here, California law applies, as the Court is in, and the 21 purported service occurred in, California. California’s substituted service statute provides as 22 follows: 23 If a copy of the summons and complaint cannot with reasonable diligence be 24 personally delivered to the person to be served, as specified in Section 416.60, 416.70, 416.80, or 416.90, a summons may be served by leaving a copy of the 25 summons and complaint at the person’s dwelling house, usual place of abode, usual place of business, or usual mailing address other than a United States Postal 26 Service post office box, in the presence of a competent member of the household or a person apparently in charge of his or her office, place of business, or usual 27 mailing address other than a United States Postal Service post office box, at least 28 18 years of age, who shall be informed of the contents thereof, and by thereafter 15 Case 1:19-cv-00708-DAD-EPG Document 85 Filed 04/12/21 Page 16 of 42 1 mailing a copy of the summons and of the complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and 2 complaint were left. 3 Cal. Civ. Proc. Code § 415.20(b). 4 “Statutes governing substitute service shall be liberally construed to effectuate service and 5 uphold jurisdiction if actual notice has been received by the defendant.” Ellard v. Conway, 94 6 Cal. App. 4th 540, 544 (2001) (internal quotation marks and citation omitted). 7 Plaintiff argues that the process server used reasonable diligence to accomplish personal 8 service by attempting to serve Sarah Komar at the Shady Valley Court home, which was her 9 business address and appeared to be her residence, five times. (ECF No. 82 at 5-6). Those 10 attempts constitute reasonable diligence. See Bein v. Brechtel-Jochim Grp., Inc., 6 Cal. App. 4th 11 1387, 1391–92 (1992) (“Ordinarily, two or three attempts at personal service at a proper place 12 should fully satisfy the requirement of reasonable diligence and allow substituted service to be 13 made.” (alterations, quotation marks and citation omitted)). 14 However, there is no evidence that 1523 Gary Lane was Sarah Komar’s dwelling house, 15 usual place of abode, usual place of business, or usual mailing address. “It is crucial that a 16 connection be shown between the address at which substituted service is effectuated and the party 17 alleged to be served.” Corcoran v. Arouh, 24 Cal. App. 4th 310, 315 (1994). Plaintiff does not 18 point the Court to any factually similar California cases finding that the type of service completed 19 here was proper. 20 There are, however, cases indicating that service was not accomplished. In BMG Music v. 21 Clayton, 2009 WL 5195873 (N.D. Cal. Dec. 22, 2009), Clayton allegedly infringed BMG’s 22 copyrights while at an Arizona university. Unable to find her in Arizona, BMG determined that 23 Clayton’s mailing address was in Petaluma, California, but was still unable to personally serve 24 her. Id. at *3. A process server served Clayton’s father at the Petaluma address instead. At a 25 hearing, the father informed the court that Clayton did not live with him nor did Clayton receive 26 mail there. On these grounds, the court denied a motion for a default judgment: 27 Plaintiffs’ eight failed attempts to serve Defendant in person at 312 6th Street 28 satisfied the reasonable diligence requirement of section 415.20(b) and warranted 16 Case 1:19-cv-00708-DAD-EPG Document 85 Filed 04/12/21 Page 17 of 42 1 Plaintiffs’ attempt at substitute service. See Bein, 6 Cal.App.4th at 1393, 8 Cal.Rptr.2d 351 (“two or three” attempts are sufficient). Plaintiffs’ counsel states 2 that Defendant received substitute service at her regular mailing address pursuant 3 to section 415.20(b). See Kerr Decl. at ¶¶ 22-23. While [the father] Val Clayton, who resides at 312 6th Street, claims that Defendant neither resides nor receives 4 mail there, Plaintiff has shown it is her most current address. It appears that Defendant may be attempting to evade service and may know of the lawsuit 5 through her father. At the same time, Val Clayton disputes that he accepted service for her at that address. Due process concerns require courts to ensure that 6 every effort has been made to give defendants actual notice prior to entering 7 default judgments against them. See generally Mennonite Board of Missions, 462 U.S. at 795; Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 8 S.Ct. 652, 94 L.Ed. 865 (1950). 9 Because there is a dispute as to whether substitute service was effected, the Court cannot be certain that Defendant had notice of this lawsuit, or that sufficient 10 efforts have been made as of yet to give her notice. 11 Id. at *3-4. 12 As there, Plaintiff here was unable to effect personal service on a young adult defendant. 13 Instead, Plaintiff attempted substituted service by serving the defendant’s parent at the parent’s 14 house. And as in Clayton, it appears that Sarah Komar may know of the lawsuit through her 15 parents, (see ECF No. 29 at 1-2) (in Meyer Komar’s motion to dismiss, “Submitted by Meyer 16 Komar (defendant for himself & Jeanette and Sarah Komar”), and it is possible that she is 17 evading service of process. 18 Sarah Komar’s link to the house here appears even more attenuated than the defendant’s 19 in Clayton because in Clayton, records showed that Clayton lived at the address served. See 20 Clayton, 2009 WL 5195873 at *3 (“The United States Postal Service confirmed that the address 21 in question was Defendant’s mailing address and that it listed no more recent mailing address for 22 her.”). Here, however, public records showed otherwise. (See ECF No. 82-3) (Accurint search 23 results not showing 1523 Gary Lane as a possible address). 24 In sum, Plaintiff has not shown that Sarah Komar’s place of abode was 1523 Gary Lane. 25 Therefore, the Court finds that Plaintiff did not accomplish substituted service on her. See 26 Clayton, 2009 WL 5195873, at *4; see also Zirbes v. Stratton, 187 Cal. App. 3d 1407, 1417-18 27 (1986) (substituted service of defendant at parent’s residence not effective because public records 28 17 Case 1:19-cv-00708-DAD-EPG Document 85 Filed 04/12/21 Page 18 of 42 1 indicated defendant lived elsewhere). 2 Plaintiff also contends that service was proper because, under the facts presented here, 3 Sarah Komar’s due process rights have been satisfied. (ECF No. 82 at 7-8). Regardless of 4 whether Sarah Komar’s due process rights have been satisfied, Plaintiff does not point the Court 5 to any cases showing that due process alone constitutes proper service. 6 The Court finds that Plaintiff did not adequately serve Sarah Komar. There can be no 7 default judgment without service of process. Because Sarah Komar has not been served, the Court 8 recommends denying the default judgment as to Defendant Sarah Komar and vacating the clerk’s 9 entry of default as to her only. The Court further recommends entering an order to show cause 10 why Sarah Komar should not be dismissed without prejudice for failure to effect service of 11 process, see Fed. R. Civ. P. 4(m) (“If a defendant is not served within 90 days after the complaint 12 is filed, the court--on motion or on its own after notice to the plaintiff--must dismiss the action 13 without prejudice against that defendant or order that service be made within a specified time. But 14 if the plaintiff shows good cause for the failure, the court must extend the time for service for an 15 appropriate period.”). 16 C. Application of the Eitel Factors 17 The Court now reviews the Eitel factors, 782 F.2d at 1471-72, for a default judgment as to 18 Jeanette Komar. 19 1. Prejudice to Plaintiff 20 Plaintiff will be prejudiced without a default judgment. Plaintiff lacks any recourse against 21 Jeanette Komar without a default judgment, as she has proven herself unwilling to participate in 22 this action. She has repeatedly contested the adequacy of her service despite the entry of a default 23 against her, and she has not contested this motion for a default judgment. Thus, absent a default 24 judgment, Plaintiff will have no effective relief against her. Accordingly, this Eitel factor weighs 25 in favor of a default judgment. 26 2. Substantive Merits and Sufficiency of Complaint 27 The Court will address the second and third Eitel factors together because they both 28 “address the merits and sufficiency of the claims pled in the complaint.” Topete v. Ramos 18 Case 1:19-cv-00708-DAD-EPG Document 85 Filed 04/12/21 Page 19 of 42 1 Furniture, No. 1:16-cv-271-DAD-EPG, 2018 WL 4006556, at *5 (E.D. Cal. Aug. 20, 2 2018), report and recommendation adopted, 2018 WL 6615107 (E.D. Cal. Nov. 16, 2018) 3 (quoting Lyon v. Bergstrom Law, Ltd., No. 1:16-cv-401-DAD-SKO, 2017 WL 2350447, at *3 4 (E.D. Cal. May 31, 2017)) (addressing the factors together). 5 The District Court has already determined in this case that Plaintiff stated a claim against 6 Meyer Komar in its ruling denying his motion to dismiss. (ECF No. 50 at 4) (“Though defendant 7 has not challenged whether any of plaintiff’s claims are adequately pled or legally sufficient, the 8 court has nonetheless taken the extra step of preliminarily reviewing the complaint and concludes 9 that plaintiff has alleged cognizable legal theories of housing discrimination and sufficient facts to 10 make its claims facially plausible. Accordingly, defendant’s motion under Rule 12(b), or 11 alternatively, Rule 12(c), must be denied.”). However, the order only explicitly discusses 12 “housing discrimination,” and Plaintiff’s arguments now are tailored only to the FHA, FEHA and 13 Civil Rights Act of 1866. (ECF No. 69 at 11-13). The Civil Rights Act of 1866 argument is 14 cursory and does not firmly establish Defendants’ liability. Thus, the only claims adequately 15 argued are Plaintiff’s FHA and FEHA claims. 16 For completeness, the Court notes that Plaintiff has sufficiently alleged discrimination 17 under the FHA and FEHA. At the pleading stage, a plaintiff must plead the statutory elements of 18 an FHA claim: 19 the vitality of a fair housing complaint should be judged by the statutory elements of an FHA claim rather than the structure of the prima facie case. The FHA 20 provides a private right of action for an “aggrieved person” subjected to “an 21 alleged discriminatory housing practice.” 42 U.S.C. § 3613(a)(1)(A). The Gilligans are “aggrieved persons” under the statutory definition because they 22 “claim to have been injured by a discriminatory housing practice.” § 3602(i). The definition of “discriminatory housing practice” includes acts unlawful under 42 23 U.S.C. § 3604. 24 Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 250 (9th Cir. 1997) (case citation omitted). 25 Plaintiff’s complaint includes 42 U.S.C. § 3604(a) as a claim for relief. (ECF No. 1 at 8). 26 Under that section, it is unlawful to “to refuse to negotiate for the sale or rental of, or otherwise 27 make unavailable or deny, a dwelling to any person because of race … .” 42 U.S.C. § 3604(a). 28 /// 19 Case 1:19-cv-00708-DAD-EPG Document 85 Filed 04/12/21 Page 20 of 42 1 Thus, in this case, Plaintiff may adequately allege an FHA violation by alleging that: (1) it 2 is an aggrieved person, Gillian, 108 F.3d at 250, and (2) it was subject to a discriminatory 3 housing practice, id., by (a) “mak[ing] unavailable” (b) “a dwelling,” (c) “because of race,” 42 4 U.S.C. § 3604(a). 5 Here, Plaintiff is an aggrieved person for the same reasons it has standing. It alleges 6 Defendants made the Property unavailable by refusing to return black testers’ calls. The Property, 7 which Plaintiff alleges is a “three-unit residential rental property,” (ECF No. 1 at 2), is a 8 “dwelling” under the FHA. See 42 U.S.C. § 3602(b) (“ ‘Dwelling’ means any building … which 9 is occupied as, or designed or intended for occupancy as, a residence by one or more 10 families … .”). Plaintiff alleges that Sarah Komar returned white testers’ callers, but not black 11 testers’ callers and, hence, the dwelling was made unavailable because of race. Therefore, 12 Plaintiff has adequately pleaded a claim for discrimination under the FHA. 13 Because FEHA is at least as broad as the FHA, Plaintiff has adequately pleaded a FEHA 14 action too. See Cal. Gov’t Code § 12955.6 (“Nothing in this part shall be construed to afford to 15 the classes protected under this part, fewer rights or remedies than the federal Fair Housing 16 Amendments Act of 1988 and its implementing[.]” (citations omitted)). 17 The fact that Sarah Komar will not be held liable does not affect Jeanette Komar’s 18 liability. Based on the allegations of the complaint, Sarah Komar was Jeanette Komar’s agent 19 because she was the representative who dealt with prospective tenants, (ECF No. 1 at 3), and 20 Plaintiff specifically alleged each defendant was an agent and acted within the scope of said 21 agency, (id. at 2). Thus, for these purposes, Jeanette Komar is liable for Sarah Komar’s actions. 22 See Holley v. Crank, 400 F.3d 667, 673-74 (9th Cir. 2005) (real estate business owner liable for 23 employee’s discrimination under Fair Housing Act); Krug, 564 F. Supp. 2d at 1150 (“Co- 24 Defendants Robert Krug, Elizabeth Krug, and Mr. Hodgkinson, all of whom owned the property 25 and for whom Ms. Hebert worked, are vicariously liable for Ms. Hebert’s discriminatory acts 26 because she was acting in her role as an agent as she showed available units at the property.” 27 (citing id. at 670-71). Accordingly, the Court finds that notwithstanding the lack of service on 28 Sarah Komar, Plaintiff’s allegations are still sufficient to state claims under the FHA and FEHA 20 Case 1:19-cv-00708-DAD-EPG Document 85 Filed 04/12/21 Page 21 of 42 1 as to Jeanette Komar. 2 Therefore, the Court finds that these factors favor entering a default judgment on 3 Plaintiff’s FHA and FEHA claims. However, as the remaining claims were insufficiently briefed, 4 the Court finds that this factor weighs against granting Plaintiff’s motion as to all other claims. 5 3. Sum of Money in Relation to Seriousness of Conduct 6 The fourth factor considers “the amount of money at stake in relation to the seriousness of 7 [the defendant’s] conduct.” PepsiCo, Inc. v. Cal. Sec. Cans, 238 F. Supp. 2d at 1176-77. “This 8 requires the court [to] assess whether the recovery sought is proportional to the harm caused by 9 [the] defendant’s conduct.” Landstar Ranger, Inc. v. Parth Enters., Inc., 725 F. Supp. 2d 916, 921 10 (C.D. Cal. 2010) (citing Walters v. Statewide Concrete Barrier, Inc., No. C 04–2559-JSW, 2006 11 WL 2527776, at *4 (N.D. Cal. Aug. 30, 2006)). “Default judgment is disfavored when a large 12 sum of money is involved.” See Moore v. Cisneros, No. 1:12–cv–00188–LJO–SKO, 2012 WL 13 6523017, at *4 (E.D. Cal. Dec. 12, 2013) (citation omitted); see also BR North 223, LLC v. 14 Glieberman, No. 1:10–cv–02153 LJO–BAM, 2012 WL 639500, at *5 (E.D. Cal. Feb. 27, 2012) 15 (“In general, the fact that a large sum of money is at stake is a factor disfavoring default 16 judgment.” (citations omitted)). “The Court considers [a plaintiff’s] declarations, calculations, 17 and other documentation of damages in determining if the amount at stake is reasonable.” HICA 18 Educ. Loan Corp. v. Warne, No. 11–CV–04287–LHK, 2012 WL 1156402, at *3 (N.D. Cal. Apr. 19 6, 2012) (citation omitted). 20 Here, Plaintiff seeks $33,812.67 in damages and $76,075 in attorneys’ fees and costs 21 against two individuals—although the Court recommends granting default judgment against only 22 one of them. That money is a substantial sum for an individual. However, Jeanette Komar’s 23 alleged conduct is very serious: i.e., discriminating against renters based on their race. Overall, 24 this factor weighs in favor of a default judgment. 25 4. Possibility of Dispute 26 No genuine issue of material fact is likely to exist because the allegations in the complaint 27 are taken as true, Televideo Sys., 826 F.2d at 917-18, and Jeanette Komar has submitted nothing 28 of substance to contradict the well-pleaded allegations despite her knowledge of this case. 21 Case 1:19-cv-00708-DAD-EPG Document 85 Filed 04/12/21 Page 22 of 42 1 Accordingly, this factor favors entry of default judgment. 2 5. Whether the Default was Due to Excusable Neglect 3 Jeanette Komar is aware of this action, as evidenced by her filing letters with the Court. 4 (See ECF Nos. 41, 52). Plaintiff’s counsel also avers they have corresponded and Jeanette Komar 5 referred to “Project Sentinel versus Komar” in a voicemail she left with counsel. (ECF No. 71 at 6 9). Nevertheless, Jeanette Komar has refused to participate meaningfully in this action. Thus, this 7 factor weighs in favor of granting default judgment. 8 6. Policy Favoring Decisions on the Merits 9 This factor inherently weighs strongly against awarding default judgment in every case. In 10 the aggregate, however, this factor is outweighed when compared with the other applicable 11 factors that weigh in favor of granting default judgment. 12 In summary, six of the seven factors weigh in favor of default judgment. In the aggregate, 13 the factor favoring decisions on the merits is outweighed when compared with the other factors, 14 which weigh in favor of granting default judgment. Accordingly, the Eitel factors weigh in favor 15 of entering default judgment. 16 D. Terms of Judgment 17 On a motion for a default judgment, the relief sought may not be different in kind from, or 18 exceed in amount, what is demanded in the complaint. Fed. R. Civ. P. 54(c). Furthermore, a 19 plaintiff is required to prove all damages sought in the complaint. See TeleVideo Sys., Inc., 826 20 F.2d at 917–18. “[A] default judgment must be supported by specific allegations as to the exact 21 amount of damages asked for in the complaint.” Philip Morris USA, Inc. v. Castworld Prod., Inc., 22 219 F.R.D. 494, 499 (C.D. Cal. 2003). A court looks to plaintiff’s “declarations, calculations, and 23 other documentation of damages in determining if the amount at stake is reasonable.” United 24 States v. Yermian, 2016 WL 1399519, at *3 (C.D. Cal. Mar. 18, 2016) (internal citations omitted). 25 If the facts necessary to determine the damages are not contained in the complaint, or are legally 26 insufficient, they will not be established by default. See Cripps v. Life Ins. Co. of N. Am., 980 27 F.2d 1261, 1267 (9th Cir. 1992). Courts have granted injunctive relief in default judgments in 28 FHA cases. See, e.g., Hous. Rts. Ctr. v. Snow, 2007 WL 91148, at *3-4 (E.D. Cal. Jan. 3, 2007) 22 Case 1:19-cv-00708-DAD-EPG Document 85 Filed 04/12/21 Page 23 of 42 1 (when granting motion for default judgment, enjoining defendants from discriminating in 2 violation of the FHA or FEHA). 3 Plaintiff, both now and in the complaint, seeks monetary damages, injunctive relief, and 4 attorneys’ fees and costs. (Compare ECF No. 1 at 11-12 (prayer for relief) with ECF Nos. 68 at 1 5 (motion for default judgment); 69 at 19-20 (memorandum of points and authorities detailing the 6 requested injunctive relief)). Plaintiff also seeks attorneys’ fees and costs. 7 1. Damages 8 Fair housing agencies may receive compensatory damages for claims brought under the 9 Fair Housing Act. 42 U.S.C. § 3613(c) (permitting award of actual and punitive damages 10 attorneys’ fees and costs); Combs, 285 F.3d at 906 (affirming award for compensatory damages 11 for diversion of resources and frustration of mission). So, too, with claims under FEHA. Cal. 12 Gov’t Code §§ 12955.6 (“Nothing in [FEHA] shall be construed to afford to the classes protected 13 under this part fewer rights or remedies than the federal Fair Housing Amendments Act of 1988 14 and its implementing regulations . . . .” (citations omitted), 12989.2(a) (permitting FEHA plaintiff 15 to recover damages)). 16 Plaintiff seeks $24,322.67 in diversion-of-resources damages and $9,490 in frustration-of- 17 mission damages, as per the table below: ITEM AMOUNT 18 Staff Time $17,640.53 19 Testing and Investigation Expenses $1,201.96 Out of Pocket expenses $110.88 20 Community outreach activities, including staff time and expenses $5,369.30 21 Total Diversion of Resources Damages $24,322.67 Future testing $1,800 22 Future training of defendants/agents $2,400 23 Future monitoring of defendants $2,100 Future community outreach activities $3,190 24 Total Frustration of Mission Damages $9,490 25 Grand Total $33,812.67 26 (ECF No. 84 at 4-5). 27 i. Staff Time 28 Staff time is a compensable type of diversion-of-resources damage. See, e.g., Krug, 564 F. 23 Case 1:19-cv-00708-DAD-EPG Document 85 Filed 04/12/21 Page 24 of 42 1 Supp. 2d at 1146-48 (awarding diversion-of-resources damages in part for staff time); cf. S. Cal. 2 Hous. Rts. Ctr. v. Los Feliz Towers Homeowners Ass’n, 426 F. Supp. 2d 1061, 1069 (C.D. Cal. 3 2005) (“the Housing Rights Center has standing because it presents evidence of actual injury 4 based on loss of financial resources in investigating this claim and diversion of staff time from 5 other cases to investigate the allegations here.”). 6 Here, Plaintiff seeks compensation for the time of eight of its staff members. Plaintiff 7 requests hourly rates from between $175 for its testing coordinator to $375 for its litigation 8 director. (ECF Nos. 70-2 at 2; 84 at 3-4). Plaintiff attaches time logs for its staff members. (ECF 9 No. 70-3). The Court has reviewed these records and finds the times are compensable. 10 ii. Testing and Investigation Expenses 11 Testing expenses can be compensable as diversion-of-resources damages. Combs, 285 12 F.3d at 905 (“Fair Housing’s resources were diverted to investigating and other efforts to 13 counteract Combs' discrimination above and beyond litigation.”); S. Cal. Hous. Rts. Ctr., 426 F. 14 Supp. 2d at 1069 (“the Housing Rights Center has standing because it presents evidence of actual 15 injury based on loss of financial resources in investigating this claim and diversion of staff time 16 from other cases to investigate the allegations here.”). The district court the Ninth Circuit 17 affirmed in Combs concluded that “the $898 requested in testing costs and tester training is 18 equally appropriate and reasonable as a measure of diversion of resources damages.” Fair Hous. 19 of Marin v. Combs, 2000 WL 365029, at *3 (N.D. Cal. Mar. 29, 2000). The Ninth Circuit 20 specifically affirmed “the district court’s finding that Fair Housing's resources were diverted to 21 investigating and other efforts to counteract Combs’ discrimination above and beyond litigation.” 22 Combs, 285 F.3d at 905. 23 Here, Marquat declares that the costs of testing include not only the amounts paid to the 24 testers but also the costs of hiring and training the testers. (ECF No. 70 at 4). “As a result of the 25 expenses and time that are required to run a testing program, HUD contracts and grants to fair 26 housing agencies typically value a paired test between $600 and $1,500, depending on the type of 27 test.” (Id. at 12). Plaintiff here seeks $1,201.96 for its testing costs, (ECF No. 84 at 4), 28 representing $275 for each of the four phone tests plus a stipend. These types of costs are 24 Case 1:19-cv-00708-DAD-EPG Document 85 Filed 04/12/21 Page 25 of 42 1 compensable. See Combs, 285 F.3d at 905. The Court finds that Plaintiff’s testing and 2 investigation expenses constitute a diversion of its resources. 3 iii. Out-of-Pocket Expenses 4 Plaintiff claims $110.88 in out-of-pocket expenses, which appear to be for printing 5 brochures and copying. (ECF Nos. 70-2 at 2; 84 at 4). These were part of Plaintiff’s work to 6 combat Defendants’ discrimination: 7 Project Sentinel’s testing uncovered clear evidence of discrimination, Project Sentinel devised and implemented a plan to counteract that discrimination. That 8 plan included distributing fair housing brochures at various Stanislaus County agencies, staffing a booth at a community health fair, and giving a presentation at 9 the local chapter of the NAACP. 10 (ECF No. 70 at 9-10). 11 As these costs were incurred directly to counteract Defendants’ discrimination, they are 12 compensable damages.4 13 iv. Community Outreach Activities 14 Plaintiff seeks $5,369.30 in damages for community outreach expenses, including related 15 staff time and expenses. (ECF No. 84 at 3-4). Plaintiff has properly documented those expenses, 16 and the staff time therein has been separated from the staff-time mentioned above. (ECF Nos. 70- 17 2 at 2; 70-3 at 2, 5, 7; 84 at 2-4). These out-of-pocket expenses are for mileage and thus are in 18 addition to the costs for copying and brochures calculated separately. (ECF No. 84 at 3-4). 19 Therefore, these are compensable expenditures. See Combs, 285 F.3d at 905 (“With respect to 20 frustration of mission, the district court found that Fair Housing suffered $10,160 in frustration of 21 mission damages, namely for design, printing, and dissemination of literature aimed at redressing 22 the impact Combs’ discrimination had on the Marin housing market.”); see also Friends of the 23 Earth, 2021 WL 1205023, at *2 (characterizing “design[ing] and disseminat[ing] literature to 24 redress the effects of the challenged discrimination” as diversion-of-resources damages). 25 26 4 The Court notes that although these costs were tabulated as diversion-of-resources damages, they might be considered frustration-of-mission damages instead. See Combs, 285 F.3d at 905 (“With respect to frustration of 27 mission, the district court found that Fair Housing suffered $10,160 in frustration of mission damages, namely for design, printing, and dissemination of literature aimed at redressing the impact Combs’ discrimination had on the 28 Marin housing market.”). However, these costs are not double counted and are compensable in any event. 25 Case 1:19-cv-00708-DAD-EPG Document 85 Filed 04/12/21 Page 26 of 42 1 v. Future Activities 2 Plaintiff also seeks damages for the costs of activities it intends to take in the future to 3 combat the frustration of their mission: testing, training Defendants and their agents, monitoring 4 costs, and community outreach costs. (ECF Nos. 70 at 12-14; 84 at 5). These costs are 5 compensable. See Krug, 564 F. Supp. 2d at 1153 (“HRC’s frustration of mission damages include 6 compensation for the costs that HRC will incur to counteract Defendants' discriminatory actions. 7 These costs include future on-site tests and surveys to monitor the property; fair housing 8 education for the subject property tenants; fair housing management education for Defendants 9 and their agents; and future advertising costs in the Pasadena Star News.”); Combs, 285 F.3d at 10 903-04 (“Expenditures to reach out to potential home buyers or renters who are steered away 11 from housing opportunities by discriminatory advertising, or to monitor and to counteract on an 12 ongoing basis public impressions created by defendants’ use of print media, are sufficiently 13 tangible to satisfy Article III's injury-in-fact requirement.” (quoting Spann v. Colonial Vill., Inc., 14 899 F.2d 24, 27-29 (D.C. Cir. 1990)). 15 vi. Conclusion 16 Plaintiff has established $33,812.67 in compensatory damages. The Court therefore 17 recommends awarding that amount. 18 2. Injunctive Relief 19 i. Availability of and Legal Standards for Injunctions 20 Injunctive relief is available under both the FHA and FEHA. In civil actions brought 21 under the FHA, “if the court finds that a discriminatory housing practice has occurred or is about 22 to occur, the court … may grant as relief, as the court deems appropriate, any permanent or 23 temporary injunction … or other order (including an order enjoining the defendant from engaging 24 in such practice or ordering such affirmative action as may be appropriate).” 42 U.S.C. § 25 3613(c)(1). Likewise, in civil actions brought under the FEHA, “the court … may grant other 26 relief, including the issuance of a temporary or permanent injunction … as it deems appropriate to 27 prevent any defendant from engaging in or continuing to engage in an unlawful practice.” Cal. 28 Gov’t Code § 12989.2. 26 Case 1:19-cv-00708-DAD-EPG Document 85 Filed 04/12/21 Page 27 of 42 1 Thus, “[w]here a fair housing violation has occurred, ‘a district court has broad and 2 flexible equitable powers to fashion a remedy that will fully correct past wrongs.’ ” Krug, 564 F. 3 Supp. 2d at 1145 (quoting Atkins v. Robinson, 545 F.Supp. 852, 889 (E.D.Va. 1982), aff’d, 733 4 F.2d 318 (4th Cir. 1984)); see also Snow, 2007 WL 91148, at *3-4 (granting injunctive relief in 5 connection with default judgment under Fair Housing Act and FEHA). “Injunctive relief should 6 be structured to achieve the twin goals of insuring that the Fair Housing Act is not violated in the 7 future and removing any lingering effects of past discrimination.” Krug, at 1145 (quoting 8 Marable v. Walker, 704 F.2d 1219, 1221 (11th Cir. 1983)). 9 Typically, parties seeking permanent injunctions must satisfy a four-part test: “(1) that it 10 has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, 11 are inadequate to compensate for that injury; (3) that, considering the balance of hardships 12 between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public 13 interest would not be disserved by a permanent injunction,” Arizona Dream Act Coal. v. Brewer, 14 855 F.3d 957, 977 (9th Cir. 2017) (quoting Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 15 141 (2010)). 16 The Ninth Circuit has held, however, that for permanent injunctions under the FHA, the 17 first element is presumed to be satisfied. Silver Sage Partners, Ltd. v. City of Desert Hot Springs, 18 251 F.3d 814, 827 (9th Cir. 2001) (in FHA case, holding “[t]he standard requirements for 19 equitable relief need not be satisfied when an injunction is sought to prevent the violation of a 20 federal statute which specifically provides for injunctive relief” and vacating district court’s 21 denial of motion for injunction because “where a defendant has violated a civil rights statute, we 22 will presume that the plaintiff has suffered irreparable injury from the fact of the defendant’s 23 violation”). 24 It is worth noting that Central District of California has found that all that must be proven 25 is a violation of the Fair Housing Act: “Where injunctive relief is expressly authorized by statute, 26 proof that the defendant violated such statute is sufficient to support an injunction remedying 27 those violations” and thus when defendants are “adjudged guilty of fair housing and anti- 28 discrimination violations, Plaintiffs have provided evidence sufficient to support a grant of 27 Case 1:19-cv-00708-DAD-EPG Document 85 Filed 04/12/21 Page 28 of 42 1 injunctive relief.” Inland Mediation Bd. v. City of Pomona, 158 F. Supp. 2d 1120, 1162 (C.D. 2 Cal. 2001); accord Gresham v. Windrush Partners, Ltd., 730 F.2d 1417, 1423 (11th Cir. 1984) 3 (“when a plaintiff who has standing to bring suit shows a substantial likelihood that a defendant 4 has violated specific fair housing statutes and regulations, that alone, if unrebutted, is sufficient to 5 support an injunction remedying those violations.” (citing TOPIC v. Circle Realty, 377 F.Supp. 6 111, 114 (C.D.Cal.1974), rev’d on other grounds, 532 F.2d 1273 (9th Cir. 1975))). 7 ii. Analysis 8 Form of Injunctive Relief 9 Plaintiff sought injunctive relief in its complaint. In its prayer for relief, Plaintiff sought 10 the Court to: 11 a. Permanently enjoin Defendants from engaging in discriminatory housing 12 practices, either directly or through others; 13 b. Order Defendants to take appropriate affirmative actions to ensure that the activities complained of above are not engaged in by them again; 14 ... e. Order Defendants to add language to all advertisements for rentals at properties 15 owned and/or managed by Defendants that Defendants are Equal Housing 16 Opportunity Providers; 17 f. Direct Defendants and those operating or managing housing on Defendants’ behalf to arrange for and attend, at Defendants’ expense, training regarding fair 18 housing obligations of housing providers under applicable law; 19 (ECF No. 1 at 11-12). 20 Now, Plaintiff seeks an injunction with the following terms: 21 1. Defendants are permanently enjoined from discriminating in the rental of 22 dwellings based on any of the characteristics protected by the Fair Housing Act, FEHA, and the Unruh Act; 23 2. Defendants and all agents who have contact with rental applicants or tenants 24 are required to attend yearly training regarding the fair housing laws with Project Sentinel or another HUD-approved agency for a period of no less than five years, 25 or until they have sold all of their rental properties; 26 3. Defendants must provide a copy of the DFEH pamphlet entitled “Fair 27 Housing” (DFEH- H03B) to all current tenants and to all applicants for a period of not less than five years; 28 28 Case 1:19-cv-00708-DAD-EPG Document 85 Filed 04/12/21 Page 29 of 42 1 4. Defendants must offer alternative forms of communication for rental inquiries 2 besides phone; for example, defendants must also include an email address, rental 3 agent location, or an open-house date, or provide at least one method besides a phone number for prospective tenants to inquire about or apply for vacancies. 4 5. In all ads, website listings, or signs regarding rental vacancies, defendants 5 must use the fair housing logo or tagline, “Equal Opportunity Housing Provider,” or similar words; 6 7 6. Defendants must maintain all records of rental inquiries and rental applications, tenant records, and move-out records for a period of not less than 8 five years, and to make such records available to Project Sentinel upon Project Sentinel’s request after receiving an allegation of discrimination. 9 10 (ECF No. 69 at 19-20). 11 Paragraphs 1, 2, and 5 are substantially the same as the injunctive relief sought in the 12 complaint in paragraphs (a), (e) and (f) in the complaint with one notable exception: the 13 complaint does not mention the Unruh Act. Thus, other than with respect to the Unruh Act, they 14 are not “different in kind from” what Plaintiff sought in the pleadings. See Fed. R. Civ. P. 54(c). 15 Requests 3, 4 and 6 arguably fall within Plaintiff’s catchall request for relief: “b. Order 16 Defendants to take appropriate affirmative actions to ensure that the activities complained of 17 above are not engaged in by them again[.]” (ECF No. 1 at 12). Although Plaintiff’s specific 18 requests now are not explicitly enumerated in the complaint, they are not “different in kind,” as 19 would be barred by Rule 54(c)(1), because they are injunctive orders for “Defendants to take 20 appropriate affirmative actions to ensure that the activities complained of above are not engaged 21 in by them again,” (ECF No. 1 at 12). 22 These forms of relief are similar to what other courts have granted. See, e.g., Snow, 2007 23 WL 91148 at *3-5 (injunction included ordering defendants not to violate FEHA or the FHA; “to 24 undergo yearly fair housing training to be provided by [plaintiff],” at defendants’ expense; to 25 maintain fair housing sign and require defendants to use words “Equal Housing Opportunity 26 Provider” or related logo in all advertising; maintain various records related to defendants 27 showing and letting properties); Mairs v. Gilbreath, 2002 WL 34272404 at *3-4 (C.D. Cal. Oct. 28 10, 2002) (affirmative injunction including specific terms about defendants following anti- 29 Case 1:19-cv-00708-DAD-EPG Document 85 Filed 04/12/21 Page 30 of 42 1 discrimination law, advertising, training, recordkeeping, and reporting to non-party Housing 2 Rights Center); Krug, 564 F. Supp. 2d at 1154-55 (similar). However, the Court notes that the 3 other cases granting injunctive relief were more specific in their requirements for how to comply 4 with FEHA and the FHA. The Court will therefore recommend using more targeted language to 5 provide Jeanette Komar with greater clarity by adopting the same injunctive language used in 6 Snow, 2007 WL 91148 at *3-4. 7 Application to Permanent Injunction Standards 8 To the extent Plaintiff needs only to prove a violation of the FHA to receive an injunction, 9 Plaintiff has done so. See Inland Mediation Bd., 158 F. Supp. 2d at 1162 (“Where injunctive relief 10 is expressly authorized by statute, proof that the defendant violated such statute is sufficient to 11 support an injunction remedying those violations.”). 12 Nevertheless, Plaintiff also meets the other parts of the larger four-part test.5 Plaintiff has 13 no adequate remedy to force Jeanette Komar to comply with the law. The relief the Court 14 recommends permitting is limited and is targeted to preventing further discrimination. The value 15 to the public in enforcing anti-discrimination laws far exceeds any burden on Jeanette Komar. 16 Finally, “[t]he public interest has been authoritatively declared by Congress in its enactment of 17 the FHA.” Bischoff v. Brittain, No. 2:14-CV-01970-KJM, 2014 WL 5106991, at *9 (E.D. Cal. 18 Oct. 10, 2014) (in considering preliminary injunction). 19 3. Attorneys’ Fees and Costs 20 The FHA and FEHA each provide that a court, “in its discretion,” may award reasonable 21 attorneys’ fees and costs to a prevailing party. 42 U.S.C. § 3613(c)(2); Cal. Gov’t Code § 22 12989.2; accord Davis v. Sundance Apartments, 2008 WL 3166479, at *1 (E.D. Cal. Aug. 5, 23 2008) (“The Fair Housing Act, FEHA and the Unruh Civil Rights Act each provide a statutory 24 basis for an award of attorneys' fees and costs in this case.”); Combs, 285 F.3d at 907-08 25 (affirming award of attorneys’ fees in FHA and FEHA case as part of default judgment); Ingram 26 5 Those factors are: “([1]) that remedies available at law, such as monetary damages, are inadequate to compensate 27 for that injury; ([2]) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and ([3]) that the public interest would not be disserved by a permanent injunction[.]” Arizona Dream 28 Act Coal., 855 F.3d at 977. 30 Case 1:19-cv-00708-DAD-EPG Document 85 Filed 04/12/21 Page 31 of 42 1 v. Oroudjian, 647 F.3d 925, 926-28 (9th Cir. 2011) (per curiam) (affirming award of attorneys’ 2 fees to plaintiffs under FHA and FEHA). FEHA, in particular, also states that expert witness fees 3 are recoverable. Cal. Gov’t Code § 12989.2 (“In a civil action brought under this section, the 4 court may, at its discretion, award the prevailing party … expert witness fees … .”). “A prevailing 5 party must be one who has succeeded on any significant claim affording it some of the relief 6 sought, either pendente lite or at the conclusion of the litigation.” Texas State Tchrs. Ass'n v. 7 Garland Indep. Sch. Dist., 489 U.S. 782, 791 (1989). 8 “[U]nder the federal fee shifting statutes the lodestar amount is the guiding light in 9 determining a reasonable fee.” Antoninetti v. Chipotle Mexican Grill, Inc., 643 F.3d 1165, 1176 10 (9th Cir. 2010) (internal punctuations and citations omitted); see also Ingram, 647 F.3d at 927-28 11 (affirming district court’s use of lodestar calculation in attorneys’ fees award under the FHA and 12 FEHA). “The ‘lodestar’ amount is calculated by multiplying the number of hours the prevailing 13 party reasonably expended on the litigation by a reasonable hourly rate.” Ferland v. Conrad 14 Credit Corp., 244 F.3d 1145, 1149 n.4 (9th Cir. 2001) (citations omitted). 15 Reasonable hourly rates are calculated by reference to “prevailing market rates in the 16 relevant community,” with a special emphasis on fees charged by lawyers of “comparable skill, 17 experience, and reputation.” Davis v. City of San Francisco, 976 F.2d 1536, 1546 (9th Cir. 1992), 18 vacated on other grounds, 984 F.2d 345 (9th Cir. 1993). Generally, when determining a 19 reasonable hourly rate, the relevant community is the forum in which the district court sits. 20 Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 979 (9th Cir. 2008) (citation omitted). 21 As to the hours reasonably expended, “[t]he district court also should exclude from this 22 initial fee calculation hours that were not reasonably expended. Cases may be overstaffed, and the 23 skill and experience of lawyers vary widely. Counsel for the prevailing party should make a good 24 faith effort to exclude from a fee request hours that are excessive, redundant, or 25 otherwise unnecessary, just as a lawyer in private practice ethically is obligated to exclude 26 such hours from his fee submission.” Hensley v. Eckerhart, 461 U.S. 424, 434 (1983) (concerning 27 fee awards under 42 U.S.C. § 1988). 28 31 Case 1:19-cv-00708-DAD-EPG Document 85 Filed 04/12/21 Page 32 of 42 1 i. Prevailing Party 2 “Courts consistently confirm that ‘a party in whose favor a judgment is rendered is 3 generally the prevailing party for purposes of awarding costs under Rule 54(d).’ ” San Diego 4 Police Officers' Ass'n v. San Diego City Employee's Ret. Sys., 568 F.3d 725, 741 (9th Cir. 2009). 5 “These [general attorneys’ fees] principles apply equally to prevailing parties who obtain 6 a default judgment in a civil rights action.” Vogel v. Harbor Plaza Ctr., LLC, 893 F.3d 1152, 7 1158 (9th Cir. 2018); cf. Combs, 285 F.3d 908 (affirming attorneys’ fees award in default 8 judgment after noting magistrate judge “made careful findings and calculations in making the 9 recommendation” including about “the hourly billing rates” and “the actual number of hours 10 spent”). 11 Here, the Court finds that Plaintiff has prevailed as to Jeanette Komar but has not 12 prevailed as to Sarah Komar for lack of service. Meyer Komar was previously dismissed. 13 However, Plaintiff alleges that the three of them acted in concert and the Court finds that Jeanette 14 Komar is jointly and severally liable for the amounts expended prosecuting the claims. However, 15 the Court will recommend reducing the amount of fees awarded to the extent the hours expended 16 dealt with Sarah Komar or Meyer Komar only. See Cunningham v. Cty. of Los Angeles, 879 F.2d 17 481, 486 (9th Cir. 1988) (“The mere fact that plaintiff was not victorious as to all defendants does 18 not automatically bar an attorney’s fees award. However, the amount of attorney’s fees they 19 receive should be based on the work performed on the issues in which they were successful.”); 20 Finkelstein v. Bergna, 804 F. Supp. 1235, 1256 (N.D. Cal. 1992) (“We conclude (and plaintiff 21 apparently concedes) that it is not reasonable to make the county defendants pay for hours spent 22 by plaintiff's counsel in his unsuccessful claims against the media defendants.”). 23 ii. Reasonable Hourly Rate 24 Here, Plaintiff seeks hourly rates of $450 for its attorney, Liza Cristol-Deman, and $110 25 for legal assistants. 26 Counsel was admitted to the California bar in 1997 and is a partner at Brancart & 27 Brancart. She has extensive experience litigating fair-housing cases in state and federal courts. 28 (ECF No. 71 at 16-17). Plaintiff argues $450 is appropriate because counsel was awarded that rate 32 Case 1:19-cv-00708-DAD-EPG Document 85 Filed 04/12/21 Page 33 of 42 1 in the San Mateo County Superior Court and because it is in line with fee awards in this district 2 for attorneys practicing other specialized areas of law. (ECF No. 69 at 20-22). 3 The work counsel performed in the San Mateo County Superior Court is not relevant for 4 present purposes. San Mateo County Superior Court falls within the Northern District of 5 California. Plaintiff is now litigating in the Eastern District. Accordingly, “[t]he relevant legal 6 community is the Fresno Division of the Eastern District of California.” Lehr v. Sierra 7 Ambulance Serv., No. 1:18-CV-831 AWI BAM, 2018 WL 6445687, at *7 (E.D. Cal. Dec. 10, 8 2018); see also Gonzalez v. City of Maywood, 729 F.3d 1196, 1205 (9th Cir. 2013) (“Generally, 9 when determining a reasonable hourly rate, the relevant community is the forum in which the 10 district court sits.” (citation and internal quotation marks omitted)). Only “if local counsel was 11 unavailable, either because they are unwilling or unable to perform because they lack the degree 12 of experience, expertise, or specialization required to handle properly the case” can rates outside 13 the district be used. Barjon v. Dalton, 132 F.3d 496, 500 (9th Cir. 1997) (affirming district court’s 14 decision to use local market’s rates after finding “insufficient evidence that competent local 15 counsel was available”). Plaintiff does not argue that local counsel was unavailable (or that the 16 cited state-court proceeding informs the rate of this federal-court proceeding). Therefore, the 17 Court will not rely on those grounds. 18 “[C]ourts in the Eastern District of California Fresno Division have approved hourly rates 19 ranging from $200.00 to $550.00 per hour.” Salgado v. T-Mobile USA, Inc., No. 1:17-CV-0339- 20 JLT, 2020 WL 3127931, at *20 (E.D. Cal. June 12, 2020) (in lodestar cross-check for 21 employment-law class-action case). Thus, hourly rates of $450 or above are found reasonable for 22 experienced attorneys in employment-law class-action cases. Englert v. City of Merced, No. 1:18- 23 CV-01239-NONE-SAB, 2020 WL 2215749, at *13 (E.D. Cal. May 7, 2020), report and 24 recommendation adopted, 2020 WL 2732031 (E.D. Cal. May 26, 2020) ($450 found reasonable 25 for lodestar crosscheck for attorney with 19 years’ experience); Urena v. Central California 26 Almond Growers Assn., No. 1:18-cv-00517-NONE-EPG, 2021 WL 942086, at *16 (E.D. Cal. 27 Mar. 12, 2021) (in undersigned’s pending findings and recommendations, recommending using 28 $530 hourly rate for lodestar cross-check purposes for partner with 24 years’ experience). As 33 Case 1:19-cv-00708-DAD-EPG Document 85 Filed 04/12/21 Page 34 of 42 1 Plaintiff noted, the undersigned awarded $450 per hour to a counsel with over 30 years’ 2 experience in E. & J. Gallo Winery v. Strategic Materials, Inc., 2019 WL 6727566, at *5 (E.D. 3 Cal. Dec. 11, 2019), which was a complex commercial dispute. Thus, the Court finds that a $450 4 hourly rate is appropriate for counsel here. 5 Plaintiff also seeks an hourly rate of $110 for paralegals. “Generally, paralegal rates 6 within the Fresno Division of the Eastern District range between $75 to approximately $150.00.” 7 Durham v. FCA US LLC, No. 2:17-CV-00596-JLT, 2020 WL 243115, at *9 (E.D. Cal. Jan. 16, 8 2020). The $110 rate falls near the middle of the range. The Court finds the amount reasonable. 9 iii. Hours Expended 10 Plaintiff seeks to recover 162.7 hours for counsel’s work. As discussed above, these 11 attorney fee awards are only being charged to Jeanette Komar. Thus, hours counsel and paralegals 12 spent on the motions to compel Meyer Komar to engage in discovery or to serve Sarah Komar are 13 not compensable. Accordingly, the Court finds that the following hours should not be charged to 14 Jeanette Komar: 15 Non-Compensable Time Entries for Counsel 16 17 Date Description Hours 9/9/2019 search for possible new addresses for Sarah Komar 0.2 18 9/9/2019 issue default letter to additional S Komar address 0.1 19 work with SD to locate new address for S Komar (0.1); email and call PI to serve new address (0.2); prepare dec in support of request for default 20 9/12/2019 (0.2)6 0.5 email from Gary E re attempted service on Sarah in Sonora (0.1); check 21 online for additional location info (0.2); check Dept of Ins for service 22 9/19/2021 info and call them re same (0.6); em Dept of Ins re same (0.2) 1.1 23 9/19/2021 Research service optionss for Sarah (0.4) 0.4 24 confer with Chris Brancart re motion to compel 9/27/2019 and re RFAs 0.1 25 10/1/2019 prepare motion to compel Initial Disclosures 0.9 26 prep brief for motion to compel Initial Disclosures (2.2); prep dec for 10/2/2019 motion to compel (.5); prep proposed order (0.2); efile all docs (.2) 3.1 27 6 The 0.2 hours spent preparing a declaration for a default judgment is compensable. Thus, the Court will permit 28 recovery on that time. 34 Case 1:19-cv-00708-DAD-EPG Document 85 Filed 04/12/21 Page 35 of 42 1 Date Description Hours 2 10/3/2019 email from Meyer re motion to compel and reply 0.1 review minute order and cal new date for 3 10/4/2019 motion to compel hearing 0.1 4 11/14/2019 prep for informal disco conf and email clerk re letter 0.1 11/15/2019 court call re informal discovery conf 1 5 11/15/2019 review motion in prep for court call 0.1 6 email from Komar responding to M&C request over disco and reply (0.2); review court procedure for informal disco conf and email Komar 7 1/23/2020 with possible times for call with judge (0.1) 0.3 8 1/24/2020 prepare letter brief 1.5 finish letter to court for informal disco conf (0.7); mark exhibits for same 9 1/27/2020 (0.1) 0.8 10 review and analyze discovery responses from def for follow up Rule 37 2/12/2021 letter (1.2); prepare email under Rule 37 (.9) 2.1 11 email def re continuing mid disco conf (0.1); prepare application to 12 continue with proposed order (0.4); efile and email order to chambers 2/19/2020 (0.1) 0.6 13 2/20/2020 email from Komar re illness and disco; reply 0.1 14 review court order continuing JSC and calendar 2/20/2020 dates 0.1 15 5/4/2020 prepare motion to compel disco 1.4 16 5/6/2020 work on Rule 37 motion 1.6 5/7/2020 work on motion to compel 3.6 17 5/8/2020 work on motion to compel 0.4 18 5/12/2020 work on motion 4 prep declaration for motion to compel (2.9); revise brief and research 19 5/13/2020 same (1.2) 4.6 20 5/14/2020 work on exhibits and citations for motion to compel 2 5/15/2020 finalize motion to compel (1.5); efile and serve all docs (0.3) 1.8 21 5/20/2020 review ECF canceling hearing on motion to compel 0.1 22 email from clerk re PO for motion to compel and reply; prepare 6/24/2020 proposed order 0.6 23 6/25/2020 prepare proposed order 2.9 24 7/7/2020 review order granting motion to compel and calendar all dates in order 0.3 7/17/2020 revise notice re fees and prepare dec for same; efile and serve 1.2 25 TOTAL 37.67 26 Upon review, the Court finds the remaining hours from counsel were reasonably 27 7 This column adds up to 37.8 hours. However, as 0.2 hours are being added back to compensable time, the Court 28 will subtract only 37.6 hours. 35 Case 1:19-cv-00708-DAD-EPG Document 85 Filed 04/12/21 Page 36 of 42 1 expended. Therefore, the Court finds counsel should be awarded her hourly rate for 125.1 hours. 2 Non-Compensable Time Entries for Paralegals 3 The Court has also reviewed the time logs for Plaintiff’s paralegals. (ECF No. 71-7). The 4 Court notes that counsel has already reduced the expenditures. For instance, counsel reduced 5 Ronnie Hodgkinson’s hours by 1.7—presumably for the 1.7 hours spent on “Converting outlook 6 emails to PDF” and “Preparing mail to send to defendants.” (Id. at 4). Likewise, Matthew Dahl’s 7 billable amount has been reduced by $22, presumably for the 0.2 hours spent on “run cost report.” 8 (Id. at 5). Spencer Campbell’s costs have been reduced by $847, or 7.7 hours. (Id. at 3). However, 9 the Court finds that the following 14.2 hours of Spencer Campbell’s costs are either non- 10 compensable because they are clerical, relate to the motions to compel Meyer Komar, or relate to 11 service on Sarah Komar: 12 Date Entry Notes Hours 13 8/5/2019 Scanning documents 0.5 14 8/12/2019 Scanning/saving response 0.5 8/29/2019 mailing letters to defendants in danger of default 1 15 9/3/2019 Served documents by mail to defendants 0.5 16 9/20/2019 Mailing notice of request for default 1 Proofing motion to compel Komar init. 17 10/2/2019 0.5 disclosures saving ecfs, printing, preparing envelope for 18 10/2/2019 0.4 service on defendant 19 Prepping mailing of retainer agreement, incl. 10/2/2019 0.5 drafting retainer cover letter 20 Assisting w proofreading and service of Request 10/17/2019 0.7 for Admissions 21 10/30/2019 downloading and saving ecfs 0.1 22 11/4/2019 saving ecfs 0.2 12/4/2019 Finalizing drafting of requests for production 1.2 23 Setting up courtcall appearance for Liza Cristol- 1/22/2020 0.4 24 Deman Proofreading LCD letter to judge re ongoing 1/27/2020 0.2 25 discovery dispute 3/5/2020 Saving ecfs 0.1 26 4/23/2020 saving ecfs 0.1 27 4/29/2020 saving ecf 0.1 28 36 Case 1:19-cv-00708-DAD-EPG Document 85 Filed 04/12/21 Page 37 of 42 1 Date Entry Notes Hours Converting + downloading files sent over by 2 expert re statistical analysis of last names for 3 5/11/2020 racial data 0.6 5/14/2020 Preparing Table of Authorities 1.1 4 5/15/2020 Preparing table of contents for motion to compel 1.6 5 5/15/2020 preparing exhibits for motion to compel 0.9 5/15/2020 Saving ecfs from motion to compel 0.5 6 5/15/2020 Saving ecfs from motion to compel 0.5 7 6/25/2020 proofreading motion to compel discovery 0.2 8/20/2020 saving ecf 0.1 8 8/25/2020 Re-adding self to ecf distribution 0.1 9 12/9/2020 saving ecf, re-adding self to ecf distribution 0.3 12/10/2020 saving ecf 0.1 10 Serving filed docs re motion to dismiss claims 11 against Meyer Komar via mail, reviewing 12/18/2020 pleadings 0.2 12 TOTAL 14.2 13 With these reductions, the Court finds that Spencer Campbell reasonably expended 8.5 14 hours, Ronnie Hodgkinson reasonably expended 9.1 hours, and Matthew Dahl reasonably 15 expended 1.9 hours. 16 iv. Reimbursable Costs 17 Plaintiff seeks $3,255.49 in expenses. (ECF Nos. 69 at 23; 71 at 22-23). 18 Both FEHA and the FHA permit awards of costs to a prevailing party. FEHA also 19 explicitly permits a court to award “expert witness fees” to prevailing parties, other than against 20 the state. Cal. Gov’t Code § 12989.2; cf. Olson v. Auto. Club of So. Cal., 42 Cal. 4th 1142, 1148 21 & n.2 (2008) (noting section 12989.2 permits award of expert witness fees). Plaintiff seeks 22 $1,318.75 for expert witness fees for Colin Holbrook, Ph.D. 23 Most of those expenses are awardable. However, the Court notes that $545 of the cited 24 expenses are related to service. (See ECF No. 71 at 23) ($200 and $345 for charges related to 25 service.) It is not clear how much of those are related to Sarah or Meyer Komar. Therefore, the 26 Court will charge Jeanette Komar only one-third of that amount: $181.67. Thus, as modified, the 27 Court recommends awarding $2,892.16 in costs. 28 37 Case 1:19-cv-00708-DAD-EPG Document 85 Filed 04/12/21 Page 38 of 42 1 v. Fees and Costs Awards Total 2 The Court recommends awarding Plaintiff the following attorneys’ fees and costs: Reasonable Hourly Hours Reasonably 3 Fee Earner / Type Rate Expended Amount 4 Liza Cristol-Deman $450 125.1 $56,295 Spencer Campbell $110 8.5 $935 5 Ronnie Hodgkinson $110 9.1 $1,001 6 Matthew Dahl $110 1.9 $209 7 Fee Subtotal $58,440 Expenses Subtotal $2,892.16 8 Total $61,332.16 9 IV. CONCLUSION AND RECOMMENDATIONS 10 For the foregoing reasons, it is HEREBY RECOMMENDED that: 11 1) Plaintiff’s motion for a default judgment (ECF No. 68) be GRANTED IN PART and 12 DENIED IN PART; 13 2) Default judgment be entered in favor of Plaintiff against Jeanette Komar, for 14 violations of the Fair Housing Act and the Fair Employment and Housing Act; 15 3) Denying Plaintiff’s motion as to Sarah Komar and as to all other causes of action; 16 4) Plaintiff be awarded $33,812.67 in compensatory damages; 17 5) Plaintiff be awarded $61,332.16 in attorneys’ fees and costs; 18 6) Issuing an injunction with the following terms: 19 a. Jeanette Komar, her agents, employees, and all persons in concert or 20 participation with any of them, is permanently enjoined from discriminating in 21 the rental of dwellings based on any of the characteristics protected by the Fair 22 Housing Act, and the Fair Employment and Housing Act, including the 23 following:8 24 i. Refusing to rent or sell a dwelling, refusing or failing to provide or 25 offer information about a dwelling, or otherwise making unavailable or 26 denying a dwelling to any person because of race, color, religion, 27 8 The language in this paragraph and the sub-paragraphs below are copied nearly verbatim from the injunction issued 28 by a court in this district in Snow, 2007 WL 91148, at *3-4. 38 Case 1:19-cv-00708-DAD-EPG Document 85 Filed 04/12/21 Page 39 of 42 1 gender, sexual orientation, national origin, familial status, marital 2 status, disability, ancestry, age, source of income or other 3 characteristics protected by law.; 4 ii. Discouraging or encouraging prospective tenants from obtaining 5 information about, viewing, applying to rent, or renting any dwelling, 6 on the basis or race, color, religion, gender, sexual orientation, national 7 origin, familial status, marital status, disability, ancestry, age, source of 8 income or other characteristics protected by law; 9 iii. Discriminating against any person in the terms, conditions or privileges 10 of rental of a dwelling, or in the provision of services or facilities in 11 connection therewith, because of race, color, religion, gender, sexual 12 orientation, national origin, familial status, marital status, disability, 13 ancestry, age, source of income or other characteristics protected by 14 law; 15 iv. Misrepresenting the availability of apartments for rent on the basis or 16 race, color, national origin, sex, handicap, familial status or religion, or 17 providing different information about the availability of apartments on 18 the basis of race, color, religion, gender, sexual orientation, national 19 origin, familial status, marital status, disability, ancestry, age, source of 20 income or other characteristics protected by law; 21 v. Withholding information regarding the availability of apartments for 22 rent on the basis of race, color, religion, gender, sexual orientation, 23 national origin, familial status, marital status, disability, ancestry, age, 24 source of income or other characteristics protected by law.; 25 vi. Taking any action tending to constructively or actually remove or assist 26 in the removal of any tenant from a rental unit on the basis of race, 27 color, religion, gender, sexual orientation, national origin, familial 28 status, marital status, disability, ancestry, age, source of income or 39 Case 1:19-cv-00708-DAD-EPG Document 85 Filed 04/12/21 Page 40 of 42 1 other characteristics protected by law, including but not limited to 2 refusing to accept tendered rent payments, issuing three-day notices, 3 filing unlawful detainer actions, or initiating any other type of legal or 4 administrative proceeding for alleged non-payment of rent on the basis 5 of race, color, religion, gender, sexual orientation, national origin, 6 familial status, marital status, disability, ancestry, age, source of 7 income or other characteristics protected by law; 8 vii. Making, printing, publishing, or causing to be made, printed, or 9 published any notice, statement or advertisement with respect to the 10 rental of a dwelling that indicates any preference, limitation or 11 discrimination on the basis of race, color, religion, gender, sexual 12 orientation, national origin, familial status, marital status, disability, 13 ancestry, age, source of income or other characteristics protected by 14 law; 15 viii. Steering persons seeking housing to particular units on the basis of 16 race, color, religion, gender, sexual orientation, national origin, familial 17 status, marital status, disability, ancestry, age, source of income or 18 other characteristics protected by law; 19 ix. Inquiring into any prospective tenant's race, color, religion, gender, 20 sexual orientation, national origin, familial status, marital status, 21 disability, ancestry, age, source of income or other characteristics 22 protected by law; and 23 x. Employing overly restrictive occupancy limits that have a disparate 24 impact on families with children; 25 b. For a period of five years, or if sooner, until Jeanette Komar sells all of her 26 rental properties: 27 i. Jeanette Komar and all agents who have contact with rental applicants 28 or tenants are required to attend yearly training regarding the fair 40 Case 1:19-cv-00708-DAD-EPG Document 85 Filed 04/12/21 Page 41 of 42 1 housing laws with Project Sentinel or another HUD-approved agency; 2 ii. Jeanette Komar must provide a copy of the DFEH pamphlet entitled 3 “Fair Housing” (DFEH- H03B) to all current tenants and to all 4 applicants; 5 iii. Jeanette Komar must offer alternative forms of communication for 6 rental inquiries besides phone; for example, Jeanette Komar must also 7 include an email address, rental agent location, or an open-house date, 8 or provide at least one method besides a phone number for prospective 9 tenants to inquire about or apply for vacancies. 10 iv. In all ads, website listings, or signs regarding rental vacancies, Jeanette 11 Komar must use the fair housing logo or tagline, “Equal Opportunity 12 Housing Provider,” or similar words; and 13 v. Jeanette Komar must maintain all records of rental inquiries and rental 14 applications, tenant records, and move-out records, and to make such 15 records available to Project Sentinel upon Project Sentinel’s request 16 after receiving an allegation of discrimination; and 17 7) Plaintiff be ordered to show cause why this action should not be dismissed as to Sarah 18 Komar, in writing, within thirty days of the order adopting these findings and 19 recommendations. 20 These findings and recommendations will be submitted to the United States district judge 21 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 22 (14) days after being served with these findings and recommendations, the parties may file 23 written objections with the Court. The document should be captioned “Objections to Magistrate 24 Judge’s Findings and Recommendations.” 25 \\\ 26 \\\ 27 \\\ 28 \\\ 41 Case 1:19-cv-00708-DAD-EPG Document 85 Filed 04/12/21 Page 42 of 42 1 The parties are advised that failure to file objections within the specified time may result 2 in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) 3 (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 4 IT IS SO ORDERED. 5 6 Dated: April 12, 2021 /s/ 7 UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 42