Avalos v. Red Mountain Asset Fund I, LLC ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 GEORGE AVALOS, an individual, ) Case No.: 1:21-cv-00230-NONE-JLT ) 12 Plaintiff, ) FINDINGS AND RECOMMENDATIONS ) GRANTING IN PART MOTION FOR DEFAULT 13 v. ) JUDGMENT ) 14 RED MOUNTAIN ASSET FUND I, LLC, a ) (Doc. 10) Delaware Limited Liability Company, 15 ) ) [21-DAY OBJECTION DEADLINE] 16 Defendant. ) 17 Plaintiff seeks default judgment against Red Mountain Asset Fund I, LLC (Doc. 10), and the 18 defendant has not opposed this motion. For the following reasons, the Court recommends the motion 19 for default judgment against defendant be GRANTED IN PART. 20 I. Relevant Procedural History 21 On February 22, 2021, the plaintiff initiated this action related to alleged violations of the 22 Americans with Disabilities Act and the Unruh Civil Rights Act. (Doc. 1) The plaintiff served the 23 summons on March 21, 2021, but the defendant failed to file a responsive pleading as required by 24 Federal Rule of Civil Procedure 12(a)(1)(A)(i). 25 Upon motion by the plaintiff, the Court entered the Clerk’s Certificate of Entry of Default 26 against defendant on April 13, 2021. (Docs. 7, 8.) On May 28, 2021, plaintiff filed the motion now 27 pending before the Court seeking default judgment against defendant Red Mountain Asset Fund I, 28 LLC. (Doc. 10.) 1 II. Legal Standards Governing Entry of Default Judgment 2 The Federal Rules of Civil Procedure govern the entry of default judgment. After default is 3 entered because "a party against whom a judgment for relief is sought has failed to plead or otherwise 4 defend," the party seeking relief may apply to the court for a default judgment. Fed. R. Civ. P. 55(a)- 5 (b). Upon the entry of default, well-pleaded factual allegations regarding liability are taken as true, but 6 allegations regarding the amount of damages must be proven. Pope v. United States, 323 U.S. 1, 11 7 (1944); see also Geddes v. United Financial Group, 559 F.2d 557, 560 (9th Cir. 1977). In addition, 8 "necessary facts not contained in the pleadings, and claims which are legally insufficient, are not 9 established by default." Cripps v. Life Ins. Co. of North Am., 980 F.2d 1261, 1267 (9th Cir. 10 1992) (citing Danning v. Lavine, 572 F.2d 1386, 1388 (9th Cir. 1978)). 11 Entry of default judgment is within the discretion of the Court. Aldabe v. Aldabe, 616 F.2d 12 1089, 1092 (9th Cir. 1980). The entry of default “does not automatically entitle the plaintiff to a court- 13 ordered judgment.” Pepsico, Inc. v. Cal. Sec. Cans, 238 F.Supp.2d 1172, 1174 (C.D. Cal 14 2002), accord Draper v. Coombs, 792 F.2d 915, 924-25 (9th Cir. 1986). The Ninth Circuit determined: 15 Factors which may be considered by courts in exercising discretion as to the entry of a default judgment include: (1) the possibility of prejudice to the plaintiff, (2) the merits 16 of plaintiff's substantive claim, (3) the sufficiency of the complaint, (4) the sum of money at stake in the action, (5) the possibility of a dispute concerning material facts, 17 (6) whether the default was due to excusable neglect, and (7) the strong policy 18 underlying the Federal Rules of Civil Procedure favoring decisions on the merits. 19 Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). As a general rule, the issuance of default 20 judgment is disfavored. Id. at 1472. 21 III. Plaintiff’s Allegations 22 As asserted by the Plaintiff, he is an adult California resident. (Doc. 10-1 at 5.) Plaintiff alleges 23 that he is substantially limited in performing one or more major life activities, including but not 24 limited to: walking, standing, ambulating, sitting and grasping objects. (Id.) As a result of these 25 disabilities, Plaintiff alleges, he relies upon mobility devices, including at times a wheelchair, to 26 ambulate. (Id.) Plaintiff claims that with such disabilities, he qualifies as a member of a protected class 27 under the Americans with Disabilities Act 42 U.S.C. §12102(2) and the regulations implementing the 28 ADA set forth at 28 C.F.R. §§ 36.101 et seq. (Id.) According to the Plaintiff, at the time of his visits to 1 Defendant’s facility and prior to instituting this action, Plaintiff suffered from a “qualified disability” 2 under the ADA. (Id.) Plaintiff reports that he is also the holder of a disabled person parking placard. 3 (Id.) 4 According to the Plaintiff, on or about February 6, 2021, he went to the business located 4851 5 White Lane, Bakersfield, CA 93309 for the dual purpose of purchasing food and to confirm that this 6 public place of accommodation is accessible to persons with disabilities within the meaning of federal 7 and state law. (Id.) 8 According to the Plaintiff, although parking spaces were some of the facilities reserved for 9 patrons, there were barriers for persons with disabilities that caused the named facilities to fail as to 10 compliance with the Americans with Disability Act Accessibility Guidelines in or around February 11 2021. (Id.) Plaintiff reports that instead of having architectural barrier free facilities for patrons with 12 disabilities, Plaintiff experienced a built-up curb ramp that projected from the sidewalk and into the 13 access aisle in violation of Section 406.5. (Id. at 5-6.) Furthermore, Plaintiff alleges, the slope of the 14 curb ramp exceeds the maximum grade allowed by ADAAG specifications in violation of Section 15 406.1. (Id. at 6.) According to the Plaintiff, there were also cracked and broken surfaces in the 16 accessible parking area in violation of Sections 502.4 and 302.1. (Id.) 17 Plaintiff asserts that he would like to return to the business but is dissuaded from doing so 18 because of the lack of compliant facilities. (Id.) Plaintiff claims that as soon as the facilities are made 19 accessible, he will be able to patronize the business again without fear of discrimination. (Id.) 20 IV. Discussion and Analysis 21 Applying the factors articulated by the Ninth Circuit in Eitel, the Court finds the factors weigh 22 in favor of granting Plaintiff’s motion for default judgment. 23 A. Prejudice to plaintiff 24 The first factor considers whether the plaintiff would suffer prejudice if default judgment is not 25 entered. See Pepsico, Inc., 238 F.Supp.2d at 1177. Generally, where default has been entered against a 26 defendant, a plaintiff has no other means by which to recover damages. Id.; Moroccanoil, Inc. v. 27 Allstate Beauty Prods., 847 F.Supp.2d 1197, 1200-01 (C.D. Cal. 2012). Therefore, the Court finds 28 plaintiff would be prejudiced if default judgment is not granted. 1 B. Merits of plaintiff’s claims and the sufficiency of the complaint 2 Given the kinship of these factors, the Court considers the merits of plaintiff’s substantive 3 claims and the sufficiency of the complaint together. See J & J Sports Productions v. Hernandez, 2010 4 U.S. Dist. LEXIS 48191, at *3, n. 4 (E.D. Cal. May 17, 2010). The Ninth Circuit has suggested that, 5 when combined, these factors require a plaintiff to "state a claim on which the plaintiff may 6 recover." Pepsico, Inc., 238 F.Supp.2d at 1175 (citing Kloepping v. Fireman's Fund, 1996 U.S. Dist. 7 LEXIS 1786, at *6 (N.D. Cal. Feb. 14, 1996)). 8 1. Americans with Disabilities Act 9 Title III of the ADA prohibits discrimination by public accommodations, and provides in 10 relevant part: "No individual shall be discriminated against on the basis of disability in the full and 11 equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any 12 place of public accommodation by any person who owns, leases (or leases to), or operates a place of 13 public accommodation." 42 U.S.C. § 12182(a). 14 "To prevail on a Title III discrimination claim, the plaintiff must show that (1) she is disabled 15 within the meaning of the ADA; (2) the defendant is a private entity that owns, leases, or operates a 16 place of public accommodation; and (3) the plaintiff was denied public accommodations by the 17 defendant because of her disability." Molski v. M.J. Cable, Inc., 481 F.3d 724, 730 (9th Cir. 2007). 18 Discrimination under Title III includes "a failure to remove architectural barriers . . . in existing 19 facilities . . . where such removal is readily achievable." 42 U.S.C., § 12182(b)(2)(A)(iv). To state a 20 claim for discrimination due to an architectural barrier, a plaintiff must also establish "(1) the existing 21 facility at the defendant's place of business [or property] presents an architectural barrier prohibited 22 under the ADA and (2) the removal of the barrier is readily achievable." Johnson v. Beahm, 2011 WL 23 5508893 *2 (E.D. Cal. Nov. 8, 2011) (quoting Parr v. L&L Drive-Inn Restaurant, 96 F.Supp.2d 1065, 24 1085 (D. Haw. 2000)). 25 a. Plaintiff’s disability 26 The ADA defines disability as "a physical or mental impairment that substantially limits one or 27 more major life activities." 42 U.S.C. § 12102(1)(A). Major life activities as defined by the ADA 28 include walking and standing. Id., § 12102(2)(A). Plaintiff alleges that he is a person with disabilities 1 whose musculoskeletal and neurological systems are impaired. (Doc. 10-1 at 8.) According to the 2 Plaintiff, these impairments result in weakness, fatigue, pain, and loss of strength in his arms, hands, 3 and legs. (Id. at 8-9.) Plaintiff reports that he has also developed permanent nerve damage that has 4 caused increased pain and limits his ability to function and limits his mobility, especially for any 5 extended period of time. (Id. at 9.) Plaintiff reports that he is substantially limited in performing one or 6 more major life activities, including but not limited to: walking, standing, ambulating, and/or sitting. 7 (Id.) As a result of his impairments, Plaintiff reports, he is subject to falls, is unsteady on his feet, 8 cannot walk for any significant distance without having to periodically rest, and often relies upon 9 mobility devices to ambulate including a cane, walker, or wheelchair. (Id.) 10 Plaintiff reports that physical accessibility barriers that affect him most are those related to 11 travel or grasping certain objects because they are difficult for him and create an unnecessary danger 12 of falling. (Doc. 10-1 at 9.) Plaintiff reports that barriers that directly affect him are a lack of 13 accessible routes to and from entrances, accessible routes inside facilities, accessible parking, 14 handrails and support, and wide enough doorways. (Id.) According to Plaintiff, in addition to being 15 dangerous for him because of the danger of falling, these types of barriers also affect his ability to use 16 either a cane, rollator, or wheelchair if he tries to gain access. (Id.) Plaintiff reports that due to these 17 disabilities, he relies upon mobility devices, including, at times a wheelchair, to ambulate. (Id.) Given 18 that Plaintiff’s physical impairment limits his ability to stand and walk, the Court finds he is disabled 19 within the meaning of the ADA. 20 b. Defendant’s ownership of a place of public accommodation 21 Plaintiff alleges that the subject property is a business that is identified as a place of public 22 accommodation and subject to Title III of the ADA. (Doc. 10-1 at 9, citing 42 U.S.C. § 12181(7)(B).) 23 Plaintiff alleges that Red Mountain Asset Fund I, LLC, a Delaware limited liability company, owns 24 the property located at 4851 White Lane, Bakersfield, CA 93309 upon which Golden Ox is located. 25 (Doc. 1 at 2.) Because Red Mountain Asset Fund I, LLC is the owner of the property at issue, plaintiff 26 has established the defendant is the owner of a place of public accommodation. 27 c. Denial of access and presence of architectural barriers 28 The next two elements of an ADA architectural barriers claim require the Court to evaluate 1 whether architectural barriers worked to discriminate against the plaintiff on account of physical 2 disability. See Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 946 (9th Cir. 2011) ("an ADA 3 plaintiff suffers an injury-in-fact either because discriminatory architectural barriers deter him from 4 returning to a facility or because they otherwise interfere with his access to the facility"). 5 Plaintiff asserts that the lack of access in and around the parking lot and pathways located on 6 Defendant’ property are barriers to the Plaintiff. (Doc. 10-1 at 10.) The Americans with Disabilities 7 Act Accessibility Guidelines establish the technical standards for determining whether a barrier 8 exists. Fortyune v. Am. Multi-Cinema, Inc., 364 F.3d 1075, 1080-81 (9th Cir. 2004) (explaining that 9 the ADAAG “lay[s] out the technical structural requirements of places of public accommodation . . . 10 .”). The ADA requires that curb ramps and flared sides of curb ramps must be located so that they do 11 not project into the parking access aisle and must not be steeper than 1:10. 36 C.F.R. § Pt. 1191, App. 12 D § 406. Plaintiff reports that he experienced a built-up curb ramp that projected from the sidewalk 13 and into the access aisle. (Doc. 10-1 at 10.) Plaintiff also alleges that the slope of the curb ramp 14 exceeded the maximum grade allowed by ADAAG specifications. (Id.) However, he provides no 15 evidence to support this conclusion. (See Doc. 10-4, Avalos Decl. ¶ 6.) The photos provided do not 16 demonstrate the height of the curb or the length of the ramp (see Doc. 10-5) to allow the calculation of 17 the slope. The Court finds that the plaintiff has failed to meet his burden of establishing that this is a 18 barrier. However, the Court agrees the ramp should not be in the parking access aisle and violates of 19 the ADAAG requirements. 20 Plaintiff also alleges that there were cracked and broken surfaces in the accessible parking 21 area. (Doc. 10-1 at 10.) The ADA requires that floor and ground surfaces be stable, firm, and slip 22 resistant. 36 C.F.R. § Pt. 1191, App. D § 302. Mr. Avalos declares that the parking lot had cracked and 23 broken surfaces, and the photos support that (Avalos Dec. ¶¶ 6-7; Doc. 10-5), but he fails to evidence 24 the width of the cracks. Nevertheless, the Court finds that the photos show unmistakably, a 25 significantly large crack in the surface of the ramp, which clearly violates the ADAAG requirements. 26 Thus, plaintiff has carried his burden to identify architectural barriers in violation of the ADA 27 standards at the subject property. 28 /// 1 d. Removal of the barriers 2 A plaintiff must establish that removal of an architectural barrier "is readily achievable" to 3 state a cognizable claim for a violation of the ADA. See 42 U.S.C. § 12182(b)(2)(A)(iv); Johnson, 4 2011 WL 5508893 at *2. The term "readily achievable" means it is "easily accomplishable and able to 5 be carried out without much difficulty or expense." Id., § 12181(9). In general, whether removal "is 6 readily achievable" requires the Court to consider: 7 (A) the nature and cost of the action needed under this Act; 8 (B) the overall financial resources of the facility or facilities involved in the action; the number of persons employed at such facility; the effect on expenses and resources, or the 9 impact otherwise of such action upon the operation of the facility; 10 (C) the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and 11 location of its facilities; and 12 (D) the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, 13 administrative or fiscal relationship of the facility or facilities in question to the covered entity. 14 15 42 USCS § 12181(9). 16 Although plaintiff does not offer any information regarding these factors, the federal 17 regulations make it clear that the barriers identified by plaintiff are of the type presumed to be readily 18 removable. Under 28 C.F.R. § 36.304(c), examples of "measures to provide access to a place of public 19 accommodation from public sidewalks, parking, or public transportation" include "installing an 20 entrance ramp, widening entrances, and providing accessible parking." Moreover, plaintiff's allegation 21 that the removal of barriers is readily achievable is sufficient at this juncture. See Johnson v. Hall, 22 2012 WL 1604715 *3 (E.D. Cal. May 7, 2012) (finding the plaintiff's allegation that the barriers were 23 "readily removable" and that he sought "injunctive relief to remove all readily achievable barriers" 24 satisfied his burden); Johnson v. Beahm, 2011 WL 5508893, *3 (E.D. Cal. Nov. 8, 2011) (holding the 25 plaintiff's allegation that architectural barriers were readily removable was sufficient because it was 26 accepted as true on default); see also Sceper v. Trucks Plus, 2009 WL 3763823 *4 (E.D. Cal. Nov. 3, 27 2009) (granting default judgment on an ADA claim although the plaintiff did "not specifically allege 28 that removal of barriers was readily achievable," and pled instead that the defendants "were required to 1 remove architectural barriers"). Accordingly, the Court finds removal of the barriers identified by 2 plaintiff is "readily achievable" within the meaning of the ADA. 3 e. Conclusion 4 Based upon the foregoing, the Court finds that plaintiff has met his burden to state a prima 5 facie discrimination claim in violation of Title III of the ADA. 6 2. California’s Unruh Civil Rights Act 7 The Unruh Civil Rights Act provides: “All persons within the jurisdiction of this state are free 8 and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, 9 medical condition, genetic information, marital status, sexual orientation, citizenship, primary 10 language, or immigration status are entitled to the full and equal accommodations, advantages, 11 facilities, privileges, or services in all business establishments of every kind whatsoever.” Cal. Civ. 12 Code § 51(b). 13 Significantly, any violation of the ADA also is a violation of California's Unruh Civil Rights 14 Act. Cal. Civ. Code § 51(f); see also Molski, 481 F.3d at 731 ("Any violation of the ADA necessarily 15 constitutes a violation of the Unruh Act"). However, to be entitled to statutory damages under the 16 Unruh Act, the plaintiff must demonstrate the barriers resulted in “difficulty, discomfort or 17 embarrassment” Cal. Civ. Code § 55.56(b). 18 C. Sum of money at stake 19 In considering this factor, the Court "must consider the amount of money at stake in relation to 20 the seriousness of Defendant's conduct." Pepsico, Inc., 238 F.Supp.2d at 1176. When the amount at 21 stake is substantial or unreasonable in light of the allegations in the complaint, default judgment is 22 disfavored. See Eitel, 782 F.2d at 1472 (affirming the denial of default judgment where the plaintiff 23 sought $3 million in damages and the parties disputed material facts in the pleadings). 24 Plaintiff is seeking an award in the amount of $8,269.00. (Doc. 10-1 at 13, citing Vogel v. Rite 25 Aid Corp., 992 F. Supp. 2d 998, 1012 (C.D. Cal. 2014) (finding $13,739.20 was reasonable and 26 collecting other cases where $10,119.70 and $12,000.00 were also reasonable and, in fact, a “relatively 27 small award of damages” in similar ADA cases).) Accordingly, this factor weighs in favor of entry of 28 default judgment. 1 D. Possibility of dispute concerning material facts 2 There is no evidence of a genuine issue of material fact because the Court accepts the factual 3 allegations in the complaint as true. TeleVideo Systems, Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th 4 Cir. 1987). Notably, the defendant has submitted nothing to contradict them. 5 The plaintiff served defendant Red Mountain Asset Fund I, LLC on March 21, 2021, and the 6 defendant was given ample opportunity to respond to the complaint and to participate in the 7 proceedings. After plaintiff moved for default judgment, defendant still failed to respond. 8 Accordingly, this factor weighs in favor of granting default judgment. 9 E. Whether default was due to excusable neglect 10 The sixth Eitel factor examines whether the defendant's failure to respond to the complaint was 11 the result of excusable neglect. Eitel, 782 F.2d at 1471-72. Plaintiff properly served defendant Red 12 Mountain Asset Fund I, LLC with the summons and complaint, yet defendant made no appearance in 13 this matter and failed to respond to the present motion. There is no suggestion that this failure is due to 14 excusable neglect. See Shanghai Automation Instr. Co. v. Kuei, 194 F.Supp.2d 995, 1005 (N.D. Cal. 15 2001) (default after proper service was not excusable neglect). Thus, this factor also weighs in favor of 16 entry of default judgment because defendant has failed to make any appearance in this case. 17 F. Policy favoring decisions on the merits 18 The strong policy underlying the Federal Rules of Civil Procedure favors decisions on the 19 merits. Eitel, 782 F.2d at 1472. Nonetheless, where a defendant fails to answer the complaint, a 20 decision on the merits is "impractical, if not impossible." Elektra Ent. Group, Inc. v. Crawford, 226 21 F.R.D. 388, 393 (C.D. Cal. 2005) (citations omitted). Thus, given defendant’s failure to appear or 22 respond in any way, this factor does not preclude entry of default judgment. Id. at 393. 23 G. Conclusion 24 Based upon the foregoing, the Court finds the Eitel factors weigh in favor of granting default 25 judgment and, therefore, recommends the motion for default judgment be GRANTED. 26 /// 27 /// 28 /// 1 V. Relief Requested 2 Plaintiff seeks injunctive relief, statutory damages, and attorney’s fees and costs. (See Doc 1; 3 Doc. 10-1 at 14-16.) Unlike the ADA, the Unruh Act and California Disabled Persons Act permit the 4 recovery of monetary damages. See Molski, 481 F.3d at 731; Cal. Civ. Code §§ 52, 54.3. 5 A. Statutory Damages 6 Plaintiff seeks statutory damages for the defendant’s violations of the Unruh Act and 7 California Disabled Persons Act. (Doc. 1 at 8-9.) The Unruh Act provides that a plaintiff subjected to 8 discrimination is entitled to recover $4,000.00 for each occasion on which he was denied equal access. 9 Cal. Civ. Code § 52(a). Similarly, the California Disabled Persons Act provides for statutory damages 10 in the amount of $1,000.00. Cal. Civ. Code § 54.3. "Proof of actual damages is not a prerequisite to 11 recovery of statutory minimum damages." Hubbard v. Rite Aid Corp., 433 F.Supp.2d 1150, 1170 12 (S.D. Cal. 2006) (citing Botosan v. Paul McNally Realty, 216 F.3d 827, 835 (9th Cir. 2000)). 13 To recover statutory damages, a plaintiff must only show that he was "denied full and equal access," 14 not that he was "wholly excluded from enjoying Defendant's services." Id. (citing Hubbard v. Twin 15 Oaks Health and Rehab. Center, 408 F.Supp.2d 923, 932 (E.D. Cal. 2004)). Pursuant to Cal. Civ. Code 16 § 55.56(b), “A plaintiff is denied full and equal access only if the plaintiff personally encountered the 17 violation on a particular occasion, or the plaintiff was deterred from accessing a place of public 18 accommodation on a particular occasion.” Cal. Civ. Code § 55.56(b). A plaintiff shows he was 19 deterred from accessing a place of public accommodation where: 20 (1) The plaintiff had actual knowledge of a violation or violations that prevented or reasonably dissuaded the plaintiff from accessing a place of public accommodation that 21 the plaintiff intended to use on a particular occasion. 22 (2) The violation or violations would have actually denied the plaintiff full and equal access if the plaintiff had accessed the place of public accommodation on that particular 23 occasion. 24 Cal. Civ. Code § 55.56(d). Thus, a plaintiff may recover statutory damages even if he does not enter a 25 facility. Botosan, 216 F.3d at 835. 26 Plaintiff asserts that he went to the subject property on or about February 6, 2021 and 27 encountered barriers identified in his complaint. (Doc. 1 at 3-4.) He asserts that there were no 28 designated parking spaces available for persons with disabilities, and he encountered architectural 1 barriers for patrons with disabilities, including a built up curb ramp that projects from the sidewalk 2 and into the access aisle, a curb ramp in excess of the maximum grade allowed by ADAAG 3 specifications, and cracked and broken surfaces in the accessible parking area. (Id.) Plaintiff claims 4 that because of these deficiencies, the parking, paths of travel, and demarcated accessible spaces at the 5 property were inaccessible. (Id. at 3.) However, he fails to provide any evidence or explanation how 6 the barriers “actually denied” him full and equal access and the Court declines to speculate. The 7 complaint also fails to explain how these areas constitute barriers. 8 Liberally construed, the Court finds the plaintiff’s showing is sufficient to establish he 9 encountered barriers identified in the complaint, and he was deterred from using the services of a place 10 of public accommodation, though he does not demonstrate how each of the barriers cause the 11 deterrence. Accordingly, an award of the requested statutory minimums under the Unruh Act and 12 California Disabled Persons Act is appropriate, and the Court recommends plaintiff’s request for an 13 award in the amount of $4,000.00 be GRANTED. 14 B. Injunctive Relief 15 The court may grant injunctive relief for violations of California law under Civil Code § 16 52.1(h). To be entitled to injunctive relief under 42 U.S.C. § 12188(a)(2), a plaintiff must show the 17 defendants have violated the Americans with Disabilities Act Accessibility Guidelines. Where the 18 plaintiff meets this burden, "injunctive relief shall include an order to alter facilities to make such 19 facilities readily accessible to and usable by individuals with disabilities. . ." Id.; see also Moeller v. 20 Taco Bell, 816 F.Supp.2d 831, 859 (N.D. Cal. 2011). 21 A plaintiff is not required to satisfy other prerequisites generally necessary for injunctive relief 22 since "[t]he standard requirements for equitable relief need not be satisfied when an injunction is 23 sought to prevent the violation of a federal statute which specifically provides for injunctive 24 relief." Moeller, 816 F.Supp.2d at 859 (quoting Antoninetti v. Chipotle Mexican Grill, Inc., 643 F.3d 25 1165, 1175-76 (9th Cir. 2010)). Thus, injunctive relief is proper when architectural barriers at a 26 defendant's establishment violate the ADA and removal of the barriers is readily achievable. See, 27 e.g., Moreno v. La Curacao, 463 Fed. App’x. 669, 670 (9th Cir. Dec. 23, 2011); Johnson, 2011 WL 28 2709365 *3; Sceper, 2009 WL 3763823 at *4. 1 As discussed above, plaintiff has stated a viable Title III discrimination claim, including that 2 the removal of the barriers at the subject property is readily achievable. Plaintiff alleges that the 3 defendant is required to provide accessible routes and parking facilities for persons with disabilities, 4 and the defendant is also required to maintain the accessible facilities so that they remain useable for 5 persons with disabilities. (Doc. 10-1 at 15.) Injunctive relief compelling defendant to provide disability 6 access to the facility in accordance with the ADAAG is appropriate. See 42 U.S.C. § 12188(a)(2) 7 (authorizing injunctions under the ADA). 8 C. Request for Attorney’s Fees and Costs 9 Plaintiff also seeks an award of attorney’s fees and costs in the amount of f $4,269.25. (Doc. 10 10-3 at 2-3, Manning Decl. ¶¶ 6-8; Doc. 10-7 at 2.) Both the ADA and Unruh Act authorize the award 11 of attorney’s fees and costs for an action. See 42 U.S.C. § 12205; Cal. Civ. Code § 52(a). Attorney’s 12 fee awards are calculated using the lodestar method, which multiplies the numbers of hours reasonably 13 spent on the matter with a reasonable hourly rate. Vogel v. Harbor Plaza Ctr., LLC, 893 F.3d 1152, 14 1160 (9th Cir. 2018). When “calculating a fee applicant’s lodestar, a court has discretion to exclude 15 hours that were not reasonably expended by counsel.” McDonald v. Navy Exch. Serv. Command, 691 16 F. App’x 448, 449 (9th Cir. 2017) (internal quotations omitted). 17 Plaintiff’s counsel seeks an award of $3,731.25 in attorney fees, plus $538.00 in filing fees and 18 service costs. (Manning Decl. ¶ 8; Exh. 5.) Specifically, Plaintiff requests for 3.25 hours of work 19 expended by Joseph R. Manning at an hourly rate of $450 and for 6.00 hours spent by an associate 20 attorney, David Fitzgerald, at an hourly rate of $375. (Id.) 21 1. Hourly Rates 22 Plaintiff requests an hourly rate of $450 for Mr. Manning and $375 for Mr. Fitzgerald. 23 (Manning Decl. ¶ 8; Exh. 5.) Courts generally calculate the hourly rate to be charged according to the 24 prevailing market rates in the relevant legal community. Blum v. Stenson, 465 U.S. 886, 895, 104 S. 25 Ct. 1541, 79 L. Ed. 2d 891 (1984). In general, courts use the rates of attorneys practicing in the forum 26 district, which, in this case, is the Eastern District of California, Fresno Division. Gates v. 27 Deukmejian, 987 F.2d 1392, 1405 (9th Cir. 1993); Davis v. Mason Cnty., 927 F.2d 1473, 1488 (9th 28 Cir. 1991). The fee applicant bears the burden of producing sufficient evidence that the requested rates 1 are commensurate “with those prevailing in the community for similar services by lawyers of 2 reasonably comparable skill, experience, and reputation.” Blum, 465 U.S. at 895 n.11. 3 The declaration submitted by Mr. Manning states, “I have been in practice since 2002. My 4 billing rate for ADA related work is $450.00, which is a fair rate for attorneys with similar experience 5 and expertise in this nuanced area of law. My associate attorney’s hourly rate of $375 is based on 6 average attorneys’ fees charged in the general geographic area with similar experience. The attorneys 7 billed at the associate rate have a minimum of five years of experience.” (Manning Decl. ¶ 7.) The 8 Court finds the requested rates to be unreasonable for two reasons. First, the cursory statement in Mr. 9 Manning’s declaration provides minimal explanation for why the requested rates are justified in this 10 case. Indeed, in support of a motion for default judgment in other cases, Mr. Manning submitted an 11 identical statement, and the district court found the requested rates to be unreasonable in light of the 12 scant evidence provided. See Avalos v. Sidhu, No. 1:20-cv-01602-, 2021 U.S. Dist. LEXIS 93548, at 13 *16 (E.D. Cal. May 17, 2021); Perri v. CA 199 Arcadia Owner LLC, No. CV 20-05849-RSWL— 14 KSX, 2020 WL 6939839, at *8 (C.D. Cal. Nov. 24, 2020). Mr. Manning fails to present any evidence 15 of his qualifications, experience with ADA-related work, or any information on the rates approved by 16 other courts in this district for similar work. See i.d.; (Manning Decl. ¶ 7.) The comments in his 17 declaration, absent more, are insufficient to support the $450 hourly rate requested. Further, in support 18 of his requested rate, Mr. Manning highlights that this rate is reasonable given his “expertise in this 19 nuanced area of law.” (Manning Decl. ¶ 7.) “But, ‘such cases are ubiquitous[,] rarely have even mildly 20 complicated issues to address,’ and typically involve boilerplate filings.” Rutherford v. Lucatero, No. 21 8:19-cv-1609-JLS—JDE, 2020 WL 2132995, at *8 (C.D. Cal. Feb. 24, 2020) (internal citation 22 omitted). Given that this action and the associated filings appear to be nearly identical to the hundreds 23 of other cases filed by Mr. Manning on behalf of Plaintiff, among others, in this district, "the Court is 24 skeptical that an ordinary ADA case on default judgment justifies work at an hourly rate of 25 $450." Id. (emphasis in original). 26 Additionally, Mr. Manning failed to provide the Court with any qualifications or discussion of 27 his associate attorney’s prior experience. Based on information provided on the State Bar of 28 California’s website, Mr. Fitzgerald was admitted to the bar in 2012, was inactive in 2013 and has 1 been practicing since October 2014. Based on the lack of information supporting the requested hourly 2 rate, the Court is unable to conclude that this associate attorney’s rate is reasonable. 3 As in the prior cases, Mr. Manning’s conclusory statement is insufficient to establish that the 4 requested hourly rates of $450 for himself and $375 for his associate are reasonable. 5 Second, “[i]n the Fresno Division of the Eastern District of California, attorneys with twenty or 6 more years of experience are awarded $350.00 to $400.00 per hour.” TBK Bank, SSB v. Singh, No. 7 117CV00868LJOBAM, 2018 WL 1064357, at *7 (E.D. Cal. Feb. 23, 2018) (collecting cases), report 8 and recommendation adopted, No. 117CV00868LJOBAM, 2018 WL 3055890 (E.D. Cal. Mar. 21, 9 2018). For attorneys with “less than ten years of experience, . . . the accepted range is between $175 10 and $300 per hour.” Silvester v. Harris, No. 1:11-CV-2137 AWI SAB, 2014 WL 7239371 at *4 (E.D. 11 Cal. Dec. 17, 2014) (citing Willis v. City of Fresno, No. 1:09-CV-01766—BAM, 2014 WL 3563310 12 (E.D. Cal. July 17, 2014); Gordillo v. Ford Motor Co., No. 1:11-cv—01786 MJS, 2014 WL 2801243 13 (E.D. Cal. June 19, 2014)). Mr. Manning’s requested hourly rate of $450 is in excess of the prevailing 14 market rates in the Fresno Division, especially since Mr. Manning possesses fewer than 20 years of 15 experience. Regarding Mr. Manning’s associate attorney, the Court cannot find an hourly rate of $375 16 to be reasonable since the Court is devoid of any information about the attorney’s experience or 17 qualifications. 18 Given the lack of adequate supporting information for the requested rates, the Court 19 recommends an hourly rate of $350 for Mr. Manning and $175—a reasonable rate for a starting 20 attorney—for his associate attorney. See Avalos, 2021 U.S. Dist. LEXIS 93548, at *18 (reducing Mr. 21 Manning’s rate from $450 to $350 and the associate attorney’s rate from $375 to $175); see also Perri, 22 2020 WL 6939839, at *8. 23 2. Time Expended 24 Plaintiff requests for 3.25 hours of work expended by Mr. Manning and for 6.00 hours for his 25 associate attorney, Mr. Fitzgerald. (Manning Decl. ¶ 8; Exh. 5.) Reviewing first the hours expended by 26 Mr. Manning, the Court finds that the number of hours Mr. Manning billed in this case is not 27 reasonable given the nature of this case and his experience as a practitioner. On February 21, 2021, 28 Mr. Manning recorded 1.0 hour to “edit/draft complaint for filing.” (See Doc. 10-7 at 2.) Based upon 1 the Court’s familiarity with the actions filed by Mr. Manning in this court, the Court is aware that this 2 is basically a form complaint. The complaint filed in this action is nearly identical to complaints filed 3 by Mr. Manning in dozens of other actions in this Court, with only the names of the parties and a few 4 allegations changed to reflect the facts specific to this case. The Court finds that 0.4 hours of Mr. 5 Manning’s time is sufficient to draft and edit the complaint. See Avalos, 2021 U.S. Dist. LEXIS 6 93548, at *19 (reducing 1.0 hour billed by Mr. Manning to “edit/draft complaint for filing” to 0.4 7 hours); Perri, 2020 WL 6939839, at *9 (same). The Court will therefore deduct 0.6 hours from Mr. 8 Manning’s time entry on February 21, 2021. 9 Turning next to the number of hours expended by the associate attorney, the Court finds that 10 the amounts indicated for certain tasks are unreasonable or non-compensable and should thus be 11 reduced. On February 20, 2021, the associate attorney recorded 1.35 hours to conduct research of 12 public records to determine the identities of the business owner and owner of real property. (Doc. 10-7 13 at 2.) But “[a] basic public records search to identify the owner of the Property is not the type of legal 14 work that should be billed by an attorney at $425 per hour.” Love v. Garcia, No. 5:15—CV-02004- 15 CAS—SPX, 2017 WL 2927429, at *4 (C.D. Cal. July 7, 2017); Perri, 2020 WL 6939839, at *9 16 (disallowing time billed by Mr. Manning’s associate attorney for conducting a public records search to 17 determine the identities of business and property owners). On February 22, 2021, the associate 18 attorney recorded 0.5 hours to “review[] and execute[] the front matter (civil case coversheet, 19 summons, etc.)” (see Doc. 10-7 at 2), but these are purely clerical tasks and thus not 20 recoverable. See Brandt v. Astrue, CIV. 08-0657TC, 2009 WL 1727472, at *3 (D. Or. June 16, 2009) 21 (preparing summons and civil cover sheet is clerical); Nadarajah v. Holder, 569 F.3d 906, 921 (9th 22 Cir. 2009) (“When clerical tasks are billed at hourly rates, the court should reduce the hours requested 23 to account for the billing errors.”). This time will therefore be disallowed. 24 On April 1, 2021, the associate attorney recorded 0.4 hours (24 minutes) reviewing the “court- 25 issued summons, Notice of Assignment, [and] Standing order.” (Doc. 10-7 at 2.) Twenty-four minutes 26 for reviewing these standard court-issued documents is excessive—0.2 hours (12 minutes) is 27 sufficient. See Hensley, 461 U.S. at 433-34. Accordingly, the associate attorney’s time will be reduced 28 by 0.2 hours. 1 On April 13, 2021, the associate attorney recorded 0.7 hours (42 minutes) to review and 2 execute the request for entry of default and to “review [the] file generally to confirm service proper 3 and effected as to proper defendant.” (Doc. 10-7 at 2.) The request for entry of default and supporting 4 declaration total only two pages, excluding the captions and single-page certificate of service (see 5 Doc. 7), and are nearly identical to documents Mr. Manning’s firm has filed in other cases, except for 6 the party names and ECF document numbers. The preparation and finalization of these short, form- 7 like documents should not take more than thirty minutes (0.5 hours) total. Accordingly, the associate 8 attorney’s time will be reduced by 0.2 hours for this entry. 9 On May 24 and 25, 2021, the associate attorney recorded a total of 3.1 hours in connection 10 with the motion for entry of default judgment, including drafting and executing a declaration on behalf 11 of Plaintiff in support of the motion, preparing the motion, and finalizing the motion and supporting 12 documents. (Doc. 10-7 at 2.) The motion for default judgment filed in this case is nearly identical to 13 motions for default judgment filed by Mr. Manning’s firm in other actions before this Court. 14 Accordingly, the Court finds that 1.0 hour of the associate attorney’s time is sufficient to prepare the 15 motion and supporting documents. See Avalos, 2021 U.S. Dist. LEXIS 93548, at *21 (awarding 1.0 16 hours to prepare the application for default judgment and supporting documentation); Perri, 2020 WL 17 6939839, at *9 (awarding 0.9 hours to prepare the application for default judgment and supporting 18 declaration). 19 Based on the foregoing, the Court recommends that Plaintiff be awarded 2.65 hours of time 20 expended by Mr. Manning at an hourly rate of $350 and 1.65 hours of time expended by Mr. 21 Fitzgerald at an hourly rate of $175, for a total of $1,216.25. 22 3. Litigation Expenses and Costs 23 Plaintiff requests to recover litigation expenses and costs of $538.00. (Manning Decl. ¶ 8; Exh. 24 5.) Under the ADA, a district court, in its discretion, can allow the prevailing party other than the 25 United States to recover a reasonable attorney’s fee, including litigation expenses and costs. 42 U.S.C. 26 § 12205. The costs here include expenses for the court filing fee and the costs of service, which are 27 compensable pursuant to 42 U.S.C. § 12205. These litigation expenses may be awarded as costs to 28 plaintiff. See Alvarado v. Nederend, 2011 WL 1883188 at *10 (E.D. Cal. Jan. May 17, 2011) 1 (explaining “filing fees, mediator fees . . . , ground transportation, copy charges, computer research, 2 and database expert fees” are typically identified as litigation costs). Accordingly, the Court 3 recommends that plaintiff be awarded the sum of $538.00 for litigation expenses and costs. 4 4. Conclusion 5 Professional Hourly Rate Hours Total 6 Joseph R. Manning, Jr. $350 2.65 $927.50 7 David Fitzgerald $175 1.65 $288.75 8 Total Fees $1,216.25 9 10 Additionally, Plaintiff should be awarded $538.00 for the costs of suit. Thus, the total award of 11 damages, attorney’s fees, and costs recommended is $5,754.25. 12 VI. Findings and Recommendations 13 Based on the foregoing analysis, the Eitel factors weigh in favor of granting default judgment, 14 and the entry of default judgment is within the discretion of the Court. See Aldabe, 616 F.2d at 1092. 15 Therefore, the Court RECOMMENDS: 16 1. Plaintiff’s motion for default judgment against defendant Red Mountain Asset Fund I, 17 LLC be GRANTED; 18 2. Plaintiff be AWARDED statutory damages in the amount of $4,000.00; 19 3. Plaintiff be awarded reasonable attorney’s fees in the amount of $1,216.25 (2.65 hours 20 at $350 per hour and 1.65 hours at $175 per hour) and costs and expenses in the amount 21 of $538.00; and 22 4. Plaintiff be GRANTED an injunction requiring defendant to bring the property at 4851 23 White Lane, Bakersfield, CA 93309 into compliance with the accessibility 24 requirements of the Americans with Disabilities Act. 25 These Findings and Recommendations are submitted to the United States District Judge 26 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local 27 Rules of Practice for the United States District Court, Eastern District of California. Within twenty- 28 one days of the date of service of these Findings and Recommendations, any party may file written 1 objections with the Court. Such a document should be captioned “Objections to Magistrate Judge’s 2 Findings and Recommendations.” The parties are advised that failure to file objections within the 3 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 4 1153 (9th Cir. 1991); Wilkerson v. Wheeler, 772 F.3d 834, 834 (9th Cir. 2014). 5 6 IT IS SO ORDERED. 7 Dated: June 22, 2021 _ /s/ Jennifer L. Thurston 8 CHIEF UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28