Trujillo v. Hernandez ( 2023 )

1 `` 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOSE TRUJILLO, Case No. 1:22-cv-00643-ADA-BAM 12 Plaintiff, FINDINGS AND RECOMMENDATIONS 13 v. REGARDING PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT (Doc. 11) 14 ELVIA HERNANDEZ, individually and dba TAQUERIA GUADALAJARA; JOSE FOURTEEN (14) DAY DEADLINE 15 OSCAR HERNANDEZ, individually and dba TAQUERIA GUADALAJARA, 16 Defendants. 17 18 19 Currently pending before the Court is Plaintiff Jose Trujillo’s (“Plaintiff”) motion for 20 default judgment against Defendants Elvia Hernandez, individually and dba Taqueria 21 Guadalajara, and Jose Oscar Hernandez, individually and dba Taqueria Guadalajara (collectively 22 “Defendants”). (Doc. 11.) The motion was referred to the undersigned pursuant to 28 U.S.C. § 23 636(b)(1)(B) and Local Rule 302. 24 Having considered the moving papers and the record in this action, and for the reasons 25 that follow, the Court RECOMMENDS that Plaintiff’s motion for default judgment be granted in 26 part. 27 /// 28 1 I. FACTUAL AND PROCEDURAL BACKGROUND 2 On May 27, 2022, Plaintiff filed this action pursuant to the Americans with Disabilities 3 Act of 1990 (“ADA”), 42 U.S.C. § 12181 et seq., California’s Unruh Civil Rights Act, 4 California Civil Code § 51, and the California Health and Safety Code, alleging violations at 5 Taqueria Guadalajara, located at 700 West Inyo Avenue, Tulare, California 93274 (the 6 “Facility”), which is owned, operated and/or leased by Defendants. (Doc. 1, Compl. at ¶¶ 1-2, 7 7.) 8 Plaintiff alleges that he is substantially limited in his ability to walk, uses a wheelchair or 9 cane for mobility, and is physically disabled under state and federal law. (Id. at ¶ 8.) Plaintiff 10 asserts that he lives less than fifteen miles from the Facility and visited the Facility on July 29, 11 2021, to have dinner. During his visit, Plaintiff encountered barriers that interfered with, if not 12 outright denied, his ability to use and enjoy the goods, services, privileges and accommodations 13 offered at the Facility. (Id. at ¶10.) Plaintiff’s complaint seeks statutory damages, attorneys’ 14 fees and costs, injunctive relief and declaratory relief. (Id. at pp. 8-9.) 15 Plaintiff served Defendant Elvia Hernandez personally with the summons and complaint 16 on June 17, 2022. (Doc. 4.) Plaintiff served Defendant Jose Oscar Hernandez with the 17 summons and complaint on June 17, 2022, by substituted service on Elvia Hernandez. (Doc. 5.) 18 The Clerk of the Court entered default against Defendants Elvia Hernandez and Jose Oscar 19 Hernandez on July 11, 2022. (Doc. 7.) 20 Plaintiff filed the instant motion against Defendants on September 28, 2022, seeking 21 default judgment in the total sum of $7,249.89 for statutory damages and attorneys’ fees and 22 costs, along with declaratory and injunctive relief based only on his claims arising under the 23 ADA and the Unruh Act. (Docs. 11 and 11-1.) Plaintiff served Defendants with a copy of the 24 motion by mail. (Doc. 11-7.) No timely opposition was filed. See L.R. 230(c) (“Opposition, if 25 any, to the grating of the motion shall be in writing and shall be filed and served no later than 26 fourteen (14) days after the motion was filed.”). 27 On November 18, 2022, the undersigned issued findings and recommendations that 28 recommended Plaintiff’s motion for default judgment be granted in part. (Doc. 13.) After 1 considering the matter further, and before the findings and recommendations were accepted, 2 rejected, or otherwise modified, the undersigned vacated the findings and recommendations and 3 issued an order for Plaintiff to show cause why the Court should not decline to exercise 4 supplemental jurisdiction over Plaintiff’s Unruh Act claim. (Doc. 15.) 5 Following Plaintiff’s response to the show cause order (Doc. 16), the undersigned issued 6 findings and recommendations on March 10, 2023, which recommended the Court decline to 7 exercise supplemental jurisdiction over Plaintiff’s Unruh Act and Health & Safety Code 8 construction-related accessibility claims and that those claims be dismissed without prejudice 9 pursuant to 28 U.S.C. § 1367(c)(4). (Doc. 17.) On June 8, 2023, the Court adopted the findings 10 and recommendations in full, declined to exercise supplemental jurisdiction over Plaintiff’s 11 Unruh Act and Health & Safety Code construction-related accessibility claims, dismissed 12 Plaintiff’s Unruh Act and Health & Safety Code construction-related accessibility claims without 13 prejudice, and referred the matter back to the undersigned for further proceedings consistent with 14 the Court’s order. (Doc. 18.) 15 Based on the Court’s order and referral, the undersigned now addresses Plaintiff’s motion 16 for default judgment limited to Plaintiff’s claim arising under the ADA. 17 II. LEGAL STANDARD FOR DEFAULT JUDGMENT 18 Pursuant to Federal Rule of Civil Procedure 55(b)(2), a plaintiff can apply to the court for 19 a default judgment against a defendant that has failed to plead or otherwise defend against the 20 action. Fed. R. Civ. P. 55(b)(2). “Upon default, the well-pleaded allegations of a complaint 21 relating to liability are taken as true.” Dundee Cement Co. v. Howard Pipe & Concrete Prods., 22 Inc., 722 F.2d 1319, 1323 (7th Cir. 1983); TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917- 23 18 (9th Cir. 1987). 24 Factors which may be considered by courts in exercising discretion as to the entry of a 25 default judgment include: (1) the possibility of prejudice to the plaintiff; (2) the merits of 26 plaintiff’s substantive claim; (3) the sufficiency of the complaint; (4) the sum of money at stake in 27 the action; (5) the possibility of a dispute concerning material facts; (6) whether the default was 28 due to excusable neglect; and (7) the strong policy underlying the Federal Rules of Civil 1 Procedure favoring decisions on the merits. Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 2 1986); PepsiCo, Inc. v. Cal. Sec. Cans, 238 F. Supp. 2d 1172, 1174 (C.D. Cal. 2002). 3 III. DISCUSSION 4 A. Service of Process 5 In deciding whether to grant or deny a default judgment, a court should assess the 6 adequacy of the service of process on the party against whom default is requested. See, e.g., 7 Trujillo v. Harsarb, Inc., No. 1:21-cv-00342-NONE-SAB, 2021 WL 3783388, at *4 (E.D. Cal. 8 Aug. 26, 2021) (“As a general rule, the Court considers the adequacy of service of process before 9 evaluating the merits of a motion for default judgment.”); Coach, Inc. v. Diva Shoes & 10 Accessories, No. 10-5151 SC, 2011 WL 1483436, at *2 (N.D. Cal. Apr. 19, 2011); Katzakian v. 11 Check Resolution Service, Inc., No. 1:10-cv-00716 AWI GSA, 2010 WL 5200912, at *2 (E.D. 12 Cal. Dec. 15, 2010). 13 Individual Defendants 14 Federal Rule of Civil Procedure 4 sets forth the requirements for serving an individual 15 within a judicial district of the United States. An individual may be served by: 16 (1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service 17 is made; or 18 (2) doing any of the following: 19 (A) delivering a copy of the summons and of the complaint to the individual personally; 20 (B) leaving a copy of each at the individual's dwelling or usual place of 21 abode with someone of suitable age and discretion who resides there; or 22 (C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process. 23 Fed. R. Civ. P. 4(e). According to the executed returns of service on file, Defendant Elvia 24 Hernandez was personally served with the summons and complaint. (Doc. 4.) Defendant Jose 25 Oscar Hernandez was served by leaving a copy of the summons and complaint at his dwelling or 26 usual place of abode, 238 Martin St., Tulare, California 93724, with co-occupant Elvia 27 Hernandez. (Doc. 5.) The summons and complaint were subsequently mailed to Defendant Jose 28 1 Oscar Hernandez at the same address. (Id. at 3.) 2 The Court finds that Plaintiff properly served Defendants Elvia Hernandez and Jose 3 Oscar Hernandez pursuant to Federal Rule of Civil Procedure 4(e). 4 B. The Eitel Factors Weigh in Favor of Default Judgment 5 1. Possibility of Prejudice to Plaintiff 6 The first factor considers whether a plaintiff would suffer prejudice if default judgment is 7 not entered. See PepsiCo, Inc., 238 F. Supp. 2d at 1177. Generally, where default has been 8 entered against a defendant, a plaintiff has no other means by which to recover against that 9 defendant. Id.; Moroccanoil, Inc. v. Allstate Beauty Prods., 847 F. Supp. 2d 1197, 1200-01 (C.D. 10 Cal. 2012). Here, the Court finds Plaintiff would be prejudiced if default judgment were not 11 granted. Default has been entered against Defendants and Plaintiff has no other means to recover 12 against them. This factor weighs in favor of default judgment. 13 2. Merits of Plaintiff’s Claims and Sufficiency of the Complaint 14 The second and third Eitel factors, taken together, “require that [the] plaintiff[s] state a 15 claim on which [they] may recover.” PepsiCo, Inc., 238 F. Supp. 2d at 1175. Notably a 16 “defendant is not held to admit facts that are not well-pleaded or to admit conclusions of law.” 17 DIRECTV, Inc. v. Hoa Huynh, 503 F.3d 847, 854 (9th Cir. 2007). 18 ADA 19 “An ADA plaintiff suffers a legally cognizable injury under the ADA if he is 20 ‘discriminated against on the basis of disability in the full and equal enjoyment of the goods, 21 services, [or] facilities ... of any place of public accommodation.’” Chapman v. Pier 1 Imports 22 (U.S.) Inc., 631 F.3d 939, 952 (9th Cir. 2011) (quoting 42 U.S.C. § 12182(a)). As relevant here, 23 discrimination is defined as “a failure to remove architectural barriers . . . where such removal is 24 readily achievable.” 42 U.S.C. § 12182(b)(2)(A)(iv). 25 “To prevail on a Title III discrimination claim, the plaintiff must show that (1) [he] is 26 disabled within the meaning of the ADA; (2) the defendant is a private entity that owns, leases, or 27 operates a place of public accommodation; and (3) the plaintiff was denied public 28 accommodations by the defendant because of [his] disability.” Molski v. M.J. Cable, Inc., 481 1 F.3d 724, 730 (9th Cir. 2007) (citing 42 U.S.C. §§ 12182(a)-(b)). “To succeed on a ADA claim of 2 discrimination on account of one’s disability due to an architectural barrier, the plaintiff must 3 also prove that: (1) the existing facility at the defendant’s place of business presents an 4 architectural barrier prohibited under the ADA, and (2) the removal of the barrier is readily 5 achievable.” Parr v. L & L Drive-Inn Restaurant, 96 F. Supp. 2d 1065, 1085 (D. Hawai’i 2000) 6 (emphasis in original). 7 A private party is only entitled to injunctive relief under Title III of the ADA; however, 8 the ADA gives the court discretion to award attorney fees to the prevailing party. Molski, 481 9 F.3d at 730. 10 Plaintiff alleges that he is substantially limited in his ability to walk and uses a wheelchair 11 or cane for mobility and that he therefore is disabled as defined by applicable law. Plaintiff also 12 alleges that the Facility is a public accommodation and open to the public. (Compl. at ¶¶ 8-9.) 13 Plaintiff further alleges that Defendants own, operate and/or lease the Facility and the 14 architectural barriers identified are easily removed without much difficulty or expense. (Id. at ¶¶ 15 7, 21.) 16 Specifically, Plaintiff contends that he lives less than fifteen (15) miles from the Facility 17 and visited the Facility on July 29, 2021, to have dinner. (Id. at ¶ 10). On the date of his visit, he 18 could not locate any designated accessible parking in the Facility’s parking lot. The lot was full, 19 and he ended up having to park on the street, where it was difficult for him to unload due to 20 excessive ground slopes. It also was difficult for Plaintiff to maneuver his wheelchair along the 21 path of travel to the Facility’s service windows and dining area, because the surface of the route 22 was uneven and damaged, with large cracks, height changes, and gaps. (Id.) Additionally, none 23 of the dining tables were accessible. They were concrete picnic bench-style tables that had a high 24 surface and lacked clear space for a wheelchair. Plaintiff asserts that he could not sit comfortably 25 at the table. Plaintiff further asserts that the service window and transaction counter were too 26 high and narrow for Plaintiff to use the payment device without assistance. The pick-up window 27 and counter were even higher, making it difficult for Plaintiff to retrieve his food. The Facility’s 28 menu also was mounted high on the wall above the service windows, with small type, and 1 Plaintiff had difficulty seeing it from his wheelchair-seated position. (Id.) Plaintiff asserts that he 2 was denied full and equal enjoyment and use of the goods, services, facilities, privileges and 3 accommodations of the Facility. (Id. at ¶ 18.) 4 These allegations are taken as true due to Defendants’ default, and Plaintiff has met his 5 burden of stating a prima facie claim for discrimination under Title III. Plaintiff is thereby 6 entitled to injunctive relief for the violations of the ADA. The Court finds that the second and 7 third Eitel factors weigh in favor of default judgment. 8 3. The Sum of Money at Stake in the Action 9 Under the fourth factor cited in Eitel, “the court must consider the amount of money at 10 stake in relation to the seriousness of Defendant’s conduct.” PepsiCo, Inc., 238 F. Supp. 2d at 11 1176; see also Philip Morris USA, Inc. v. Castworld Prods., Inc., 219 F.R.D. 494, 500 (C.D. Cal. 12 2003). 13 Here, setting aside the amount Plaintiff sought under the now dismissed Unruh Act claim, 14 Plaintiff seeks attorneys’ fees and costs incurred in the amount of $3,249.89. (Doc. 11-1 at pp. 8- 15 9.) The amount of money at stake is relatively small and it does not seem unreasonable in light of 16 the allegations contained in the complaint. Accordingly, this factor does not weigh against entry 17 of default judgment. 18 4. The Possibility of a Dispute Concerning Material Facts 19 Following the Clerk’s entry of default, the Court may assume the truth of well-pled facts 20 in the complaint and, thus, there is no likelihood that any genuine issue of material fact exists. 21 Further, Defendants’ failure to file an answer in this case and their failure to file a response to the 22 request for entry of default or a response to the instant motion supports the conclusion that the 23 possibility of a dispute as to material facts is minimal. See, e.g., Elektra Entm’t Grp. Inc. v. 24 Crawford, 226 F.R.D. 388, 393 (C.D. Cal. 2005) (“Because all allegations in a well-pleaded 25 complaint are taken as true after the court clerk enters default judgment, there is no likelihood that 26 any genuine issue of material fact exists.”). This factor therefore weighs in favor of default 27 judgment. 28 /// 1 5. Whether the Default Was Due to Excusable Neglect 2 The sixth Eitel factor considers the possibility that Defendants’ default resulted from 3 excusable neglect. PepsiCo, Inc., 238 F. Supp. 2d at 1177. Courts have found that where a 4 defendant was “properly served with the complaint, the notice of entry of default, as well as the 5 paper in support of the [default judgment] motion,” there is no evidence of excusable neglect. 6 Shanghai Automation Instrument Co. v. Kuei, 194 F. Supp. 2d 995, 1005 (N.D. Cal. 2001). 7 Upon review of the record, the Court finds that the default was not the result of excusable 8 neglect. See PepsiCo, Inc., 238 F. Supp. 2d at 1177. Defendants were properly served with the 9 complaint, the request for entry of default, (see Doc. 6-2), and the motion for default judgment, 10 which included notification of the Clerk’s entry of default. Despite service with these documents, 11 Defendants have not appeared in this action. Thus, the record suggests that Defendants have 12 chosen not to participate in this action, and not that the default resulted from any excusable 13 neglect. Accordingly, this factor weighs in favor of the entry of a default judgment. 14 6. The Strong Policy Favoring Decisions on the Merits 15 “Cases should be decided upon their merits whenever reasonably possible.” Eitel, 782 16 F.2d at 1472. However, district courts have concluded with regularity that this policy, standing 17 alone, is not dispositive, especially where a defendant fails to appear or defend itself in an action. 18 PepsiCo, Inc., 238 F. Supp. 2d at 1177; see also Craigslist, Inc. v. Naturemarket, Inc., 694 F. 19 Supp. 2d 1039, 1061 (N.D. Cal. Mar. 5, 2010). Although the Court is cognizant of the policy 20 favoring decisions on the merits, that policy is unavailable here because Defendants have not 21 appeared in this action. Accordingly, the Court finds that this factor does not weigh against entry 22 of default judgment. 23 C. Damages 24 1. Injunctive Relief 25 Plaintiff seeks injunctive relief under the ADA for violations alleged in the complaint. In 26 particular, Plaintiff seeks an injunction requiring removal of all architectural barriers to Plaintiff’s 27 access to the facility. 42 U.S.C. § 12188 provides that “injunctive relief shall include an order to 28 alter facilities to make such facilities readily accessible to and usable by individuals with 1 disabilities to the extent required” the ADA. 42 U.S.C. § 12188(a)(2). Pursuant to federal law, 2 Plaintiff is entitled to the removal of those architectural barriers which he encountered on his visit 3 to the facility that violated the ADA. Therefore, an injunction should issue requiring Defendants 4 to provide accessible parking, an accessible route of travel from the accessible parking stall(s) to 5 the Facility service window, an accessible dining table, an accessible portion of the service 6 window and transaction counter, and a menu visible from a wheelchair-seated position and/or a 7 printed menu that can be handed to customers. 8 2. Attorneys’ Fees and Costs 9 Plaintiff also seeks an award of attorneys’ fees and costs. The ADA authorizes the award 10 of attorney's fees and costs for an action. See 42 U.S.C. § 12205. Attorney fee awards are 11 calculated using the lodestar method, which multiplies the numbers of hours reasonably spent on 12 the matter with a reasonable hourly rate. Vogel v. Harbor Plaza Ctr., LLC, 893 F.3d 1152, 1160 13 (9th Cir. 2018). The district court has the discretion to make adjustments to the number of hours 14 claimed or to the lodestar, but is required to provide a clear but concise reason for the fee award. 15 Gates v. Deukmejian, 987 F.2d 1392, 1398 (9th Cir. 1992). 16 Here, Plaintiff's counsel seeks an award of $2,456.00 in attorneys’ fees, plus $793.89 in 17 litigation costs. (Docs. 11-1 at 9; Doc.11-3, Exs. A-C, F to Declaration of Tanya E. Moore 18 (“Moore Decl.”.) Specifically, Plaintiff requests: (1) $1,950.00 for 6.5 hours of work expended 19 by attorney Tanya E. Moore at an hourly rate of $300; (2) $184.00 for 1.6 hours of work 20 expended by paralegal Whitney Law at an hourly rate of $115.00; and (3) $322.00 for 2.8 hours 21 of work expended by paralegal Isaac Medrano at an hourly rate of $115.00. (Doc. 11-1 at 9.) 22 Hourly Rates 23 As indicated, Plaintiff requests an hourly rate of $300.00 for work by attorney Tanya 24 Moore and $115.00 for work by paralegals Whitney Law and Isaac Medrano. (Doc. 11-1 at 9.) 25 Courts in this district have found these rates reasonable for the services of attorney Moore and for 26 the services of her paralegals. See Trujillo v. Singh, Case No. 1:16-cv-01640 LJO-EPG, 2017 27 WL 1831941, at *3 (E.D. Cal. May 8, 2017); accord e.g., Trujillo v. GH Food Mart, Inc., No. 28 1:20-cv-00368-AWI-SKO, 2020 WL 4697139, at *7 (E.D. Cal. Aug. 13, 2020); Trujillo v. La 1 Valley Foods, Inc., No. 1:16-cv-01402-AWI-BAM, 2017 WL 2992453, at *5 (E.D. Cal. Jul. 14, 2 2017); Trujillo v. Lakhani, No. 1:17-cv-00056-LJO-SAB, 2017 WL 1831942, at *7 (E.D. Cal. 3 May 8, 2017). The Court therefore finds the requested hourly rates to be reasonable for Ms. 4 Moore and her paralegals. 5 Attorney Time Expended by Ms. Moore 6 Plaintiff seeks recovery for 6.5 hours of work performed by Ms. Moore at $300.00 per 7 hour. (Doc. 11-1 at 9.) When considering the billing entries and time records submitted by 8 Plaintiff's counsel, the Court finds that the 6.5 hours billed by Ms. Moore is reasonable. (Doc. 9 11-3, Ex. A to Moore Decl.) The Court will recommend awarding Plaintiff $1,950.00 for 6.5 10 hours of work by Ms. Moore to litigate this case. 11 Paralegal Time Expended by Whitney Law and Isaac Medrano 12 Plaintiff seeks compensation for 1.6 hours expended by paralegal Whitney Law at 13 $115.00 per hour, and 2.8 hours expended by paralegal Isaac Medrano at $115.00 per hour. (Doc. 14 11-1 at 9.) When considering the billing entries and time records submitted by Plaintiff's counsel, 15 the Court finds that the 1.6 hours billed by Whitney Law is reasonable. (Doc. 11-3, Ex. A to 16 Moore Decl.) However, a review of the billing records of Isaac Medrano reveals that certain 17 tasks he provided in this action were clerical in nature. In billing for legal services, “purely 18 clerical or secretarial tasks should not be billed at a paralegal rate, regardless of who performs 19 them.” Missouri v. Jenkins by Agyei, 491 U.S. 274, 288 n.10 (1989). Specifically, Mr. Medrano 20 billed .30 on June 1, 2022, to review the order setting scheduling conference, calendaring the 21 scheduling conference date, setting the deadline for Rule 26 meet and confer, and setting the 22 deadline to file a joint scheduling report. (Doc. 11-3, Ex. A to Moore Decl.) The Court finds that 23 this billable entry generally describes clerical tasks and should not be reimbursed at a paralegal 24 rate. The Court will deduct .30 hours from Isaac Medrano’s time. 25 Based on the above, the Court will recommend an award of 4.1 hours of paralegal time 26 comprised of 1.6 hours for Whitney Law ($115.00 hourly rate) and 2.5 (2.8 - .30) hours for Isaac 27 Medrano ($115.00 hourly rate) for a total of $471.50. 28 /// 1 Litigation Expenses and Costs 2 Plaintiff requests recovery of litigation expenses and costs of $793.89. (Doc. 11-1 at 9; 3 Doc. 11-3, Exs. B, C and F to Moore Decl.) Under the ADA, a district court, in its discretion, can 4 allow the prevailing party other than the United States to recover a reasonable attorney's fee, 5 including litigation expenses and costs. 42 U.S.C. § 12205. The costs here include the court filing 6 fee, costs of service, and fee for a pre-filing site inspection of the facility, which are compensable. 7 See Trujillo v. La Valley Foods, Inc., 2017 WL 2992453, at *7 (finding costs for court filing fee, 8 costs of service, and fee for a pre-filing site inspection of the facility compensable). Accordingly, 9 the Court will recommend that Plaintiff be awarded the sum of $793.89 for litigation expenses 10 and costs. 11 V. CONCLUSION AND RECOMMENDATION 12 Based on the foregoing, the Court HEREBY RECOMMENDS as follows: 13 1. Plaintiff's motion for default judgment be GRANTED IN PART; 14 2. Defendants be found and declared to be in violation of Title III of the Americans 15 with Disabilities Act; 16 3. Defendants be ordered to make the following modifications to the facility known 17 as Taqueria Guadalajara, located at 700 West Inyo Avenue in Tulare, California 93274, such that 18 each item is brought into compliance with the accessibility requirements of the Americans with 19 Disabilities Act as follows: 20 a) Provide the required number of properly configured and identified accessible parking 21 stall(s); 22 b) Provide a properly configured accessible route of travel from the designated accessible 23 parking to the Facility service window; 24 c) Provide a properly configured accessible dining table; 25 d) Provide a properly configured accessible portion of the service window and transaction 26 counter; 27 e) Provide a menu visible from a wheelchair-seated position and/or printed menu that can 28 be handed to customers; 1 4. Judgment be entered in Plaintiff's favor and against Defendants in the amount of 2 $3,215.39, consisting of attorney’s fees in the amount of $1,950.00 (6.5 hours at $300 per hour), 3 paralegal fees in the amount of $471.50. (4.1 hours at $115.00 per hour), and costs of suit in the 4 amount of $793.89; and 5 5. Plaintiff is HEREBY ORDERED to mail a copy of these findings and 6 recommendations to each defendant at that defendant’s last known address. 7 These Findings and Recommendations will be submitted to the United States District 8 Judge assigned to the case, as required by 28 U.S.C. § 636(b)(l). Within fourteen (14) days after 9 being served with these findings and recommendations, the parties may file written objections 10 with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings 11 and Recommendations.” The parties are advised that the failure to file objections within the 12 specified time may result in the waiver of the “right to challenge the magistrate’s factual 13 findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 14 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 15 IT IS SO ORDERED. 16 17 Dated: June 12, 2023 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28