Gilbert v. Rashid ( 2023 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF CALIFORNIA 8 9 DARREN GILBERT, Case No. 1:22-cv-00674-ADA-HBK 10 Plaintiff, FINDINGS AND RECOMMENDATIONS TO GRANT IN PART PLAINTIFF’S MOTION 11 v. FOR DEFAULT JUDGMENT1 12 HAROON AL RASHID, individually and OBJECTIONS DUE IN FOURTEEN DAYS dba RAHMAN GAS AND MARKET aka 13 TRIPLE R GASOLINE (Doc. No. 9) 14 Defendants. 15 16 Pending before the Court is Plaintiff’s Motion for Default Judgment filed pursuant to Fed. 17 R. Civ. P. 55(b). (Doc. No. 9, “Motion”). The Defendant has not answered nor responded to the 18 Complaint. Nor have Defendant filed any opposition or taken any actions in this case. The Court 19 found the Motion suitable for disposition without oral argument under Civil Local Rule 230(g) 20 and vacated the hearing scheduled for February 8, 2023. (Doc. No. 10). For the reasons set forth 21 below, the undersigned recommends the district court grant in part Plaintiff’s Motion. 22 I. BACKGROUND 23 On June 3, 2022, Plaintiff Darren Gilbert commenced this action by filing a complaint 24 against Defendant Haroon Al Rashid, doing business as Rahman Gas and Market a/k/a Triple R 25 Gasoline, (collectively referred to as “Defendant”) alleging violations of Title III of the 26 Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12101 et seq; the California 27 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 28 (E.D. Cal. 2022). 1 Unruh Act, California Civil Code § 51 et seq.; and California Health & Safety Code §§ 19955, 2 19959. (Doc. No. 1, “Complaint”). Plaintiff seeks an award of statutory damages, costs of suit, 3 attorney’s fees, litigation expenses, injunctive or preventative relief, and interest at the legal rate 4 from the date of filling of the Complaint. (Id. at 8). 5 The Complaint sets forth the following facts in support of Plaintiff’s claims. Plaintiff is a 6 person with physical disabilities and is “substantially limited in his ability to walk,” requiring the 7 use of a wheelchair, knee scooter, or prosthetic for mobility. (Id at 2, ¶8). Defendant is the 8 alleged owner, operator, or lessor of Rahman Gas and Market, a/k/a Triple R Gasoline 9 (hereinafter referred to as “the Facility”) which is located at 2925 E. Whitmore Avenue, Ceres, 10 CA. (Id. at 1, ¶¶1-2; at 2, ¶7). The Facility is open to the public and intended for non-residential 11 use and affects commerce. (Id. at 2, ¶9). On December 18, 2021, Plaintiff, who lives less than 12 ten miles from the Facility, visited the Facility to purchase refreshments, but “barriers” prevented 13 him from accessing their “goods, services, privileges and accommodations.” (Id. at 2-3, ¶10). 14 Specifically, there was no curb ramp at the Facility entrance and Plaintiff had difficulty stepping 15 over the curb while using his prosthetic, and there was an extension cord taped to the floor at the 16 Facility entrance, which created an excessive height change causing Plaintiff to almost trip. (Id. 17 at 3 ¶10). As a result, Plaintiff was deterred from visiting the Facility but states he will return 18 once the barriers are removed. (Id. ¶12). 19 Plaintiff filed a Proof of Service of Summons as to Defendant Haroon Al Rashid, 20 individually and doing business as Rahman Gas and Market a/k/a Triple R. Gasoline, on August 21 1, 2022. (Doc. No. 4). Defendant never appeared nor answered. See docket. On August 31, 22 2022, Plaintiff requested the Clerk of Court enter a Rule 55(a) clerk’s default against the 23 Defendant. (Doc. No. 6). The Clerk of Court entered the default on the same day. (Doc. No. 7). 24 On December 9, 2022, Plaintiff filed this Motion seeking a default judgment as to all defendants. 25 (Doc. No. 9). 26 On March 13, 2023, the Court ordered Plaintiff to show cause why the Court should not 27 decline to exercise supplemental jurisdiction over Plaintiff’s Unruh Act and California Health and 28 Safety Code claims for the reasons set forth in Vo v. Choi, 49 F.4th 167 (9th Cir. 2022) and 1 Arroyo Jr. v. Rosas, 19 F.4th 1202 (9th Cir. 2021). (Doc. No. 11). Plaintiff failed to respond to 2 the Court’s March 13, 2023 Order. See docket. On August 15, 2023, the undersigned issued 3 findings and recommendation to decline supplemental jurisdiction over Plaintiff’s Unruh Act and 4 Health and Safety Code Claims. (Doc. No. 12). On September 6, 2023, the district court adopted 5 the findings and recommendation in full, declined to exercise supplemental jurisdiction over 6 Plaintiff’s Unruh Act and Health and Safety Code claims, and dismissed Plaintiff’s Unruh Act 7 and Health and Safety Code claims without prejudice. (Doc. No. 13). 8 II. ANALYSIS 9 A. Legal Standard 10 Federal Rule of Civil Procedure 55(b)(2) allows the court to enter judgment against a 11 party following the Clerk of Court’s entry of default under 55(a). The court cannot enter default 12 judgment if the defendants were not properly served. Mason v. Genisco Tech. Corp., 960 F.2d 13 849, 851 (9th Cir. 1992). If the court determines service was proper, the court is bound to 14 undertake an analysis applying the “Eitel” factors enumerated in Eitel v. McCool, 782 F.2d 1470, 15 1471-72 (9th Cir. 1986) before entering a default judgment. Specifically, the court considers the 16 following factors: (1) the potential prejudice to the plaintiff, (2) the underlying claim’s merits and 17 sufficiency, (3) the amount of money at stake, (4) the possibility of a factual dispute, (5) whether 18 the default resulted from excusable neglect, and (6) the court’s overriding preference to issue 19 decisions on the merits. (Id). 20 After the clerk enters a default, the court shall accept “as true all factual allegations in the 21 complaint, except those as to the amount of damages.” Yoon Chul Yoo v. Arnold, 615 F. App’x. 22 868, 870 (9th Cir. 2015); Fed. R. Civ. P. 8(b)(6). Allegations about “the amount of damages must 23 be proven.” Strojnik v. JW World Enterprises, Inc. Best W. Bakersfield N., 2021 WL 22137, at *1 24 (E.D. Cal. Jan. 4, 2021). The court also does not accept facts that are not well pled or statements 25 that constitute conclusions of law. Wecosign, Inc. v. IFG Holdings, Inc., 845 F. Supp. 2d 1072, 26 1078 (C.D. Cal. 2012). Ultimately, the decision of whether to grant a default judgment lies 27 within the discretion of the court. Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). 28 //// 1 B. The Eitel Factors 2 1. Defendants Were Properly Served with Process 3 Defendants were properly served, and the Clerk of Court rightfully entered defaults 4 against defendants. (Doc. Nos. 4, 7). Service is effectuated under Federal Rule of Civil 5 Procedure 4(e) by “following state law for serving a summons . . . in the state where the district 6 court is located or where service is made,” or by “delivering a copy of [the summons and 7 complaint] to an agent authorized by appointment or by law to receive service of process.” 8 California law permits service of the summons and complaint by personal service or by leaving 9 them with a “competent member of the household or a person apparently in charge of his or her 10 office [or] place of business,” among other methods. Cal. Code Civ. P. § 415.10-20. All methods 11 require that the service be handled by an individual who is not a party to the action. (Id.). 12 The record reflects a registered process server personally served a person identified as the 13 manager and the person apparently in charge of Defendant Haroon Al Rashid’s place of business 14 at the Facility on July 10, 2022, at 12:40 p.m. (Doc. No. 4). The person apparently in charge of 15 the Facility refused to give his name but was described as a twenty-five- to thirty-five-year-old 16 John Doe. (Id.). On July 20, 2022, a registered process server also mailed, via first-class mail, a 17 copy of the complaint and summons to Defendant Haroon Al Rashid using the address for the 18 Facility. (Id.). California law permits service by leaving a copy of the summon and complaint 19 with a person of at least 18 years of age at a defendant’s office during usual office hours, and 20 after leaving a copy of the summons and complaint, the complaint and summons must be mailed, 21 via first-class mail, to the defendant at his or her place of business. See Cal. Civ. Proc. Code 22 §§415.10, 415.20(b). Therefore, because service on Defendant Haroon Al Rashid complies with 23 California law and the proof of service was filed, Defendant Paramjit Singh was properly served 24 consistent with Fed. R. Civ. P. 4. 25 2. Application of the Six Eitel Factors 26 a. Potential Prejudice to Plaintiff 27 The Court first considers whether Plaintiff will suffer prejudice if a default judgment is 28 not entered. When a defendant neglects to respond to a complaint, a plaintiff lacks means to 1 recover beyond a default judgment. True Religion Apparel, Inc. v. Jet 2A, 2009 WL 10671791, at 2 *3 (C.D. Cal. Feb. 11, 2009). Here, Plaintiff claims he wishes to patronize the Defendant’s 3 establishment, and he will continue to suffer discrimination due to his disability without recourse 4 against the Defendant. The “[p]otential prejudice to the plaintiff militates in favor of granting 5 default judgment.” Solis v. Orland Sand & Gravel Corp., 2013 WL 85403, at *3 (E.D. Cal. Jan. 6 8, 2013). The first Eitel factor therefore weighs in favor of default judgment. 7 b. The Underlying Claim’s Merits and Sufficiency 8 The Court next weighs the merits and sufficiency of Plaintiff’s Complaint. Default 9 judgment will only be granted if the plaintiff’s complaint states a claim that supports the desired 10 relief. Danning v. Lavine, 572. F.2d 1386, 1388 (9th Cir. 1978); Wells Fargo Equip. Fin., Inc. v. 11 Virk Sys., Inc., 2021 WL 347408, at *2 (E.D. Cal. Feb. 2, 2021). While well-plead “allegations in 12 the complaint are admitted by a defendant’s failure to respond, ‘necessary facts not contained in 13 the pleadings, and claims which are legally insufficient, are not established by default.” Soto v. 14 Rio Gary II, L.P., 2022 WL 112047, *2 (C.D. Cal. Jan. 12, 2022) (citing Cripps v. Life Ins. Co. of 15 N. Am., 980 F.2d 1261, 1267 (9th Cir. 1992). 16 Plaintiff’s Complaint alleges Defendant violated Title III of the ADA, which provides that 17 in public places of accommodation “[n]o individual shall be discriminated against on the basis of 18 disability.” 42 U.S.C. § 12182(a). To prevail on a Title III ADA claim, Plaintiff “must establish 19 that: (1) he is disabled within the meaning of the ADA; (2) [Defendant] is a private entity that 20 owns, leases, or operates a place of public accommodation; and (3) [Defendant] discriminated 21 against him by denying him public accommodations because of his disability.” Lopez v. Catalina 22 Channel Express, Inc., 974 F.3d 1030, 1033 (9th Cir. 2020). 23 The ADA defines disability as “[a] physical or mental impairment that substantially limits 24 one or more major life activities ... [,] a record of such an impairment [,] or being regarded as 25 having such an impairment.” 42 U.S.C. § 12102(1). Major life activities as defined by the ADA 26 include walking and standing. Id., § 12102(2). Plaintiff represents he is “physically disabled” 27 and requires the use of a wheelchair, knee scooter, or prosthetic. (Doc. No. 1 at 2, ¶8). Accepting 28 the allegation as true, Plaintiff is deemed to have physical impairment that substantially limits the 1 major activity of walking and standing and therefore is disabled within the meaning of the ADA. 2 Plaintiff, who lives less than ten miles from the Facility, states that he arrived at the 3 Facility on or about December 18, 2021, with the intention of patronizing the business. (Id. at 2- 4 3, ¶10). Plaintiff had trouble stepping over the curb while using his prosthetic because there was 5 no curb ramp at the Facility’s entrance. (Id. at 3 ¶10). Additionally, Plaintiff almost tripped over 6 an extension cord taped to the floor near the Facility’s entrance. (Id.). As a result, Plaintiff was 7 and continues to be deterred from vising the Facility. (Id. at ¶12). 8 Plaintiff claims he is disabled under the ADA and his depiction of the Facility is one of 9 public accommodation. Despite the Facility being a place of public accommodation, Plaintiff was 10 unable to access the Facility’s services due to architectural barriers. Such barriers to access are 11 “discrimination” under the ADA. 42 U.S.C. § 12182(b)(2)(A)(iv). Because these facts are taken 12 as true following Defendants’ entry of default, Plaintiff has stated a prima facie Title III 13 discrimination claim. Given the district court’s ruling to decline supplemental jurisdiction over 14 Plaintiff’s Unruh Act and California Health and Safety Code claims, the undersigned omits any 15 evaluation of the sufficiency of these claims. (See Doc. Nos. 12, 13). 16 While Plaintiff’s Complaint is largely boilerplate, his allegations are taken as true due to 17 Defendant’s default. Therefore, Plaintiff sufficiently pled his claims and demonstrated that they 18 have merit. Trujillo v. GH Food Mart, Inc., 2020 WL 4697139, at *4 (E.D. Cal. Aug. 13, 2020). 19 Plaintiff’s Complaint meets the low bar to put Defendant on notice by providing enough factual 20 details to determine how he was denied full and equal enjoyment of the Facility. See Whitaker v. 21 Tesla Motors, Inc., 985 F.3d 1173, at 1177 (9th Cir. 2021) (holding that a complaint cannot recite 22 legal conclusion and the elements of an ADA claim but must put a defendant on notice by 23 alleging sufficient factual details to determine how a plaintiff was denied full and equal 24 enjoyment of the premises); see also Gilbert v. HBA Enter., Inc., 2022 WL 2663761 (E.D. Cal. 25 Jul. 8, 2022); Trujillo, 2022 WL 2236932. As such, the second Eitel factor weighs in favor of 26 default judgment. 27 c. The Amount of Money at Stake 28 Default judgment “is disfavored where large amounts of money are involved.” 1 Christofferson v. All Pure Pool Serv. of Cent. California, Inc., 2020 WL 3249323, at *19 (E.D. 2 Cal. June 16, 2020), report and recommendation adopted sub nom. Christofferson, v. All Pure 3 Pool Serv. of Cent. California, Inc, WL 3819413 (E.D. Cal. July 8, 2020). Here, Plaintiff seeks 4 statutory damages in the amount of $4,000.00, plus $3,074.23 in attorney’s fees and costs. 5 Plaintiff’s request for statutory damages is premised on his Unruh Act claim. (Doc. No. 9-1 at 4- 6 7). Because the district court declined supplemental jurisdiction over Plaintiff’s Unruh Act claim, 7 the undersigned recommends that the district court deny Plaintiff’s request for $4,000.00 in 8 statutory damages. Thus, only Plaintiffs’ request for attorney fees remains. Given the rather 9 modest sum of the attorney fees requested, the undersigned finds the third factor weighs in favor 10 of default judgment. 11 d. The Possibility of a Factual Dispute 12 The Clerk of Court’s entry of default requires this Court to accept Plaintiff’s well-pled 13 factual allegations as true. Despite being properly served, Defendant failed to appear, answer, or 14 otherwise respond. Thus, the only facts before the Court are those presented by Plaintiff in the 15 Complaint, which are well-pled and must be accepted as true. There is accordingly no factual 16 dispute. United Specialty Insurance Co. v. Saleh, 2016 WL 4434479, at *2 (E.D. Cal. Aug. 22, 17 2016). Thus, the fourth Eitel factor does not preclude entry of a default judgment. 18 e. Whether the Default Resulted from Excusable Neglect 19 Defendant was properly served yet has not appeared over a year since service was 20 effectuated. When service is proper it suggests there was not excusable neglect. USA Truck, Inc. 21 v. Jugan Express Inc., 2020 WL 2128387, at *2 (E.D. Cal. May 5, 2020), report and 22 recommendation adopted, 2020 WL 3451580 (E.D. Cal. June 24, 2020). The undersigned 23 therefore finds the fifth Eitel factor weighs in favor of default judgment. 24 f. The Court’s Overriding Preference to Issue Decisions on the Merits 25 Eitel emphasizes that “[c]ases should be decided upon their merits whenever reasonably 26 possible.” 782 F.2d at 1472. Here, with no appearance from Defendant, there is no reasonable 27 possibility of deciding this matter on the merits. Because this sixth and each of the above Eitel 28 factors overwhelmingly weigh in favor default judgment, the undersigned recommends the 1 district court grant Plaintiff’s motion for default judgment. 2 3. Terms of the Judgment and Proof of Damages 3 a. Injunctive Relief 4 Plaintiff seeks injunctive relief requiring Defendants to make a change and alteration to 5 their businesses. (Doc. No. 9-1 at 3-5). For Title III ADA violations “only injunctive relief is 6 available.” Wander v. Kaus, 304 F.3d 856, 858 (9th Cir. 2002). Injunctive relief “may be granted 7 when architectural barriers at defendant's establishment violate the ADA.” Kraus v. Rattu, 2020 8 WL 526105, at *5 (E.D. Cal. Feb. 3, 2020), report and recommendation adopted, 2020 WL 9 1274269 (E.D. Cal. Mar. 17, 2020). Plaintiff alleges the Facility was designed or constructed 10 after January 26, 1993, therefore the 1991 ADA Standards for Accessible Design apply for 11 purposes of determining whether a barrier existed. (Doc. No. 1 at 5, ¶23). However, because any 12 remedial work to the Facility will occur after March 15, 2012, Plaintiff submits the 2010 13 standards govern any injunction. (Doc. No. 9-1 at 3). 14 A plaintiff bears the initial burden to “plausibly show how the cost of removing the 15 architectural barrier at issue does not exceed the benefits under the circumstances. Lopez, 974 16 F.3d at 1038. A plaintiff is not required to give precise cost estimates or give specific designs for 17 the proposed accommodations. Id. Plaintiff identifies two barriers: no curb ramp at the Facility 18 entrance and an extension cord taped to the floor at the Facility’s entrance, which created an 19 excessive height change. The undersigned finds removal of first barrier is readily achievable, as 20 it can be completed without difficulty or expense by installing a properly configured curb ramp or 21 making curb cuts into sidewalk and entrance. “‘Installing ramps’ and ‘making curb cuts in 22 sidewalks and entrances’ have been identified as ‘examples of readily achievable steps to remove 23 barriers.’” Gilbert v. Jabar Wireless Inc., 2023 WL 3055108, at *4 (E.D. Cal. Apr. 24, 2023) 24 (citing Johnson v. Altimira Corps., 2017 WL 1383469, at *3 (N.D. Cal. Mar. 27, 2017)), findings 25 and recommendations adopted by, 2023 WL 405431 (E.D. Cal. Jun. 16, 2023). Furthermore, the 26 undersigned finds the removal of second barrier, removal of the taped cord at the Facility 27 entrance is “easy accomplishable and able to be carried out without much difficulty or expense” 28 and therefore is readily achievable. 43 U.S.C. § 12181. 1 Accepting Plaintiff’s allegations as true and considering Defendants’ nonresponse, the 2 undersigned finds Plaintiff is entitled to the requested injunctive relief requested. The 3 undersigned accordingly recommends injunctive relief requiring Defendants, within sixty (60) 4 days of the district court’s order, to remove the barriers by providing: (1) a curb ramp to afford an 5 accessible route crossing the curb to the Facility entrance as required by 1991 ADAAG § 4.7.1 6 and 2010 ADAAG § 406; and (2) level and clear entrance by removing the taped cord as required 7 by 1991 ADAAG § 4.13.6 (“The floor or ground area within the required [maneuvering] 8 clearances shall be level and clear.”) and 2010 ADAAG § 404.2.4.4 (“Floor or ground surface 9 within required maneuvering clearances shall comply with 302. Changes in level are not 10 permitted.”). 11 b. Statutory Damages 12 The district court declined to exercise supplemental jurisdiction over Plaintiff’s Unruh Act 13 and Health and Safety Code Claims. (See Doc. Nos. 12, 13). Accordingly, because the district 14 court declined to exercise supplemental jurisdiction over Plaintiff’s state law claims, the 15 undersigned recommends that the district court decline to award Plaintiff $4,000.00 in statutory 16 damages under the Unruh Act. 17 c. Attorney’s Fees and Costs of Litigation 18 The ADA permits the recovery of attorney’s fees and costs upon receiving injunctive 19 relief. 42 U.S.C. § 12205. Attorney’s fee awards are calculated using the lodestar method, which 20 multiplies the numbers of hours reasonably spent on the matter with a reasonable hourly rate. 21 Vogel v. Harbor Plaza Ctr., LLC, 893 F.3d 1152, 1160 (9th Cir. 2018). When “calculating a fee 22 applicant's lodestar, a court has discretion to exclude hours that were not reasonably expended by 23 counsel. McDonald v. Navy Exch. Serv. Command, 691 F. App’x 448, 449 (9th Cir. 2017) 24 (internal quotations omitted). 25 Plaintiff’s counsel seeks an award of $2,140.00 for total billable time spent by the Moore 26 Law Firm, plus $934.23 for costs and litigation expenses. (Doc. No. 9-1 at 6-7.) The billable 27 time encompasses: (1) $1,680.00 for 5.6 hours worked by attorney Tanya E. Moore at an hourly 28 rate of $300.00; (2) $126.50 for 1.1 hours worked by paralegal Whitney Law at an hourly of 1 $115.00; and (3) $333.50 for 2.9 hours worked by paralegal Isaac Medrano at an hourly rate of 2 $115.00. (Id.). 3 i. Billable Time 4 Plaintiff’s counsel provided the court with the time entries detailing the firm’s efforts in 5 this matter. (Doc. No. 9-3 at 2-4). These entries do not indicate time was unreasonably 6 expended. While certain paralegal entries include calendaring deadlines, these tasks were 7 dependent upon a review of the Court’s Orders; and thus, do not appear to justify reductions as 8 merely clerical functions. The Court previously recognized in December 2022 that a paralegal 9 hourly rate of $115.00 was reasonable. Trujillo v. 4B Market Incorporated, et al., 2022 WL 10 17667894 (E.D. Cal. Dec. 14, 2022); findings and Recommendations adopted in full, 2022 WL 11 18027841 (E.D. Cal. Dec. 30, 2022). Similarly, this Court additionally has previously determined 12 in December 2020 that a $300.00 hourly rate was reasonable where the lead attorney has 13 considerable experience in ADA matters. Id. Ms. Moore has been an attorney for over 20 years 14 with the last 10 years specially practicing in “disability access litigation.” (Doc. No. 9-2 at 2). 15 Because both the time spent and rate requested are reasonable, the undersigned recommends 16 Plaintiff’s counsel be awarded $2,140.00 in attorney’s fees. 17 ii. Litigation Expenses and Costs 18 Plaintiff moves to recover litigation expenses and costs of $934.23. (Doc. Nos. 9-1 at 5-7; 19 9-3 at 7-12). Plaintiff has attached receipts for the filing fee, a pre-filing investigation, and 20 process server fees, which are recoverable under the ADA. Trujillo v. La Valley Foods, Inc., 21 2017 WL 2992453, at *7 (E.D. Cal. July 14, 2017); Moralez v. 76 Orinda, 830 F. App’x 209, 210 22 (9th Cir. 2020); 42 U.S.C. § 12205. The receipts include: (1) an invoice in the amount of $164.72 23 from One Legal for unsuccessful service on Defendant Haroon Al Rashid dated June 28, 2022 24 (Doc. No. 9-3 at 7); (2) an invoice in the amount of $113.76 from One Legal for the service on 25 Defendant Haroon Al Rashid dated July 22, 2022 (Id. at 8); (3) a receipt in the amount of 26 $402.00 for this Court’s filing fees dated April 24, 2022 (Id. at 10); and (4) an invoice from 27 Robert Ferris Investigations in the amount of $253.75 for a pre-filing investigation dated May 9, 28 2022 (Id. at 12). These receipts total $934.23. Accordingly, the undersigned recommends that 1 Plaintiff be awarded the sum of $934.23 for litigation expenses and costs. 2 Below is a summary of the total amount in attorney fees and costs the undersigned 3 recommends be awarded to Plaintiff’s counsel: 4 Professional Hourly Rate Hours Total 5 Ms. Tanya E. Moore $300.00 5.6 $1,680.00 6 Ms. Whitney Law $115.00 1.1 $126.50 7 Mr. Isaac Medrano $115.00 2.9 $333.50 8 Costs and Expenses $934.23 9 Total $3,074.23 10 11 Accordingly, it is ORDERED: 12 Plaintiff must mail a copy of these findings and recommendations to Defendants at their 13 last known address and file with the court proof of service within fourteen (14) business days of 14 the date of this Order. 15 It is further RECOMMENDED: 16 Plaintiff’s Motion for Default Judgment (Doc. No. 9) be GRANTED in part as follows: 17 a. Judgment be entered in Plaintiff’s favor and against Defendants; 18 b. The district court decline to award Plaintiff statutory damages in the amount of 19 $4,000.00; 20 c. Plaintiff be awarded attorney’s fees, litigation expenses and costs in the amount 21 of $3,074.23; and 22 d. Defendants be required within sixty (60) days of the district court’s order be 23 required to (1) properly configure a curb ramp at the Facility affording an 24 accessible route crossing the curb to the Facility entrance as required by 2010 25 ADAAG § 406; and (2) provide a level and clear entrance at the Facility as 26 required by 2010 ADAAG § 404.2.4.4. 27 //// 28 1 NOTICE TO PARTIES 2 These findings and recommendations will be submitted to the United States district judge 3 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) 4 | days after being served with these findings and recommendations, a party may file written 5 | objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 6 | Findings and Recommendations.” Parties are advised that failure to file objections within the 7 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 8 | 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 9 Dated: _ September 11, 2023 Wile. Wh. arch Yack 11 HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12