Gilbert v. Mohamad ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DARREN GILBERT, Case No. 1:22-cv-00554-JLT-EPG 12 Plaintiff, FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT PLAINTIFF’S 13 v. MOTION FOR DEFAULT JUDGMENT BE GRANTED, IN PART 14 ABDO N. MOHAMAD, et al., (ECF No. 11) 15 Defendants. OBJECTIONS, IF ANY, DUE WITHIN 16 FOURTEEN DAYS 17 18 Plaintiff Darren Gilbert moves for default judgment against Defendants Abdo N. 19 Mohamad and Nasser M. Obaid dba Olsen Service Station. The matter was referred to the 20 undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302(c)(19). For the reasons given below, the Court will recommend that Plaintiff’s motion be granted in part. 21 I. BACKGROUND 22 a. Procedural History 23 Plaintiff filed this case on May 6, 2022, alleging that Defendants violated the Americans 24 with Disabilities Act (the ADA), 42 U.S.C. §§ 12101 et seq.; California’s Unruh Civil Rights Act 25 (the Unruh Act), California Civil Code § 51, et seq.; and California Health and Safety Code 26 §§ 19955(a), 19959. (ECF No. 1). Specifically, Plaintiff alleges as follows: 27 He is substantially limited in his ability to walk and must use a wheelchair, knee scooter, 28 1 or prosthetic for mobility. Around December 18, 2021, he visited Olsen’s Gas & Liquor in 2 Modesto, California to buy refreshments, encountering the following barriers: (1) he could not 3 locate a designated accessible parking space even though the store offered customer parking with 4 marked stalls and as a result had to park in a standard parking stall that lacked an access aisle; (2) he found the ramp leading up to the store’s entrance to be too steep to safely ascend while using 5 his prosthetic because the ramp and landing were narrow and there was a large drop-off with no 6 edge protection or handrails. Because of these barriers, he was, and is, deterred from visiting the 7 store, but will return once the barriers are removed. Additionally, Plaintiff alleges that he lives 8 less than ten miles away from the store. 9 Plaintiff alleges that Defendants own, operate, and/or lease the store, which is a public 10 accommodation. Further, Defendants can easily remove the barriers without much difficulty or 11 expense. Plaintiff seeks injunctive and declaratory relief, statutory damages, and attorneys’ fees 12 and costs. 13 After Defendants failed to respond to the complaint, Plaintiff obtained a clerk’s entry of 14 default under Federal Rule of Civil Procedure 55(a) against each Defendant. (ECF Nos. 7, 9). On 15 September 23, 2022, Plaintiff moved for default judgment against the Defendants, seeking an 16 injunction requiring Defendants to modify the property to remove the alleged barriers, $4,000 in 17 damages under the Unruh Act, and attorneys’ fees and costs in the amount of $2,129.75. (ECF 18 No. 11). Defendants were served with the motion for default judgment but did not file an 19 opposition or otherwise respond to the motion. (ECF No. 11-7). 20 On October 24, 2022, the Court entered an order noting that Plaintiff’s motion did not 21 address whether Defendant Mohamad was served process at their “dwelling or usual place of 22 abode” as required by Federal Rule of Civil Procedure 4(e)(2)(B) or their “usual mailing address” 23 under California Code of Civil Procedure § 415.20(b). (ECF No. 13). Accordingly, the Court gave Plaintiff until November 18, 2022, to file a supplemental brief regarding this issue. (Id.) 24 Additionally, the Court vacated the hearing, noting that it would reset one after reviewing the 25 supplement if it believed that a hearing would be beneficial. (Id.) On November 18, 2022, 26 Plaintiff filed a supplemental declaration. (ECF No. 14). 27 Upon review of the motion for default judgment and supplement, the Court concludes that 28 1 a hearing would not be beneficial in this case. See Local Rule 230(g) (noting that a motion may 2 be submitted on the records and briefs). 3 II. LEGAL STANDARDS 4 Federal Rule of Civil Procedure 55 permits the Court to enter a default judgment against a defendant. See Fed. R. Civ. P. 55(b)(2). Whether to enter a default judgment lies within the 5 court’s discretion. Draper v. Coombs, 792 F.2d 915, 925 (9th Cir. 1986). Factors (i.e., the Eitel 6 factors) that may be considered in determining whether to enter default judgment include the 7 following: 8 (1) the possibility of prejudice to the plaintiff; (2) the merits of the plaintiff’s 9 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; (6) 10 whether the default was due to excusable neglect; and (7) the strong policy 11 underlying the Federal Rules of Civil Procedure favoring decision on the merits. See Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). 12 “The general rule of law is that upon default the factual allegations of the complaint, 13 except those relating to the amount of damages, will be taken as true.” TeleVideo Sys., Inc. v. 14 Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987) (citation omitted). Therefore, a plaintiff is 15 required to provide proof of all damages sought. 16 Before awarding a default judgment against a defendant, the Court must determine the 17 adequacy of service of process and the Court’s jurisdiction over the subject matter and the parties. 18 In re Tuli, 172 F.3d 707, 712 (9th Cir. 1999) (“When entry of judgment is sought against a party 19 who has failed to plead or otherwise defend, a district court has an affirmative duty to look into its 20 jurisdiction over both the subject matter and the parties.”); see S.E.C. v. Internet Sols. for Bus. 21 Inc., 509 F.3d 1161, 1165 (9th Cir. 2007) (“We review de novo whether default judgment is void 22 because of lack of personal jurisdiction due to insufficient service of process.”). 23 III. DISCUSSION 24 As an initial matter, while Plaintiff’s complaint asserts a cause of action under 25 California’s Health and Safety Code, Plaintiff’s motion makes no argument as to this cause of 26 action and he has thus failed to demonstrate entitlement to a default judgment. See S.A. ex rel. 27 L.A. v. Exeter Union School Dist., 1:09-cv-00834, 2009 WL 1953462 at *8 (E.D. Cal. July 7, 28 2009) (“When seeking a default judgment, a plaintiff should provide the Court with points and 1 authorities containing citations to authority showing that the plaintiff’s claim or claims include 2 allegations of all the necessary elements required for entitlement to relief. It is the parties’ burden 3 to demonstrate to the Court that under the pertinent law, the plaintiff’s claims, as alleged, are 4 legally sufficient.”). Accordingly, the Court will not address this cause of action further. Plaintiff’s motion focuses on his ADA and Unruh claims. The Court will first address its 5 subject matter jurisdiction over these claims and the adequacy of service of process. Thereafter, 6 the Court will consider the Eitel factors and the terms of the proposed judgment. 7 A. Jurisdiction and Service of Process 8 1. Subject Matter Jurisdiction 9 The Court finds that it has subject matter jurisdiction over this suit. Pursuant to 28 U.S.C. 10 § 1331, federal courts have original jurisdiction over “all civil actions arising under the 11 Constitution, laws, or treaties of the United States.” “A case ‘arises under’ federal law either 12 where federal law creates the cause of action or where the vindication of a right under state law 13 necessarily turns on some construction of federal law.” Republican Party of Guam v. Gutierrez, 14 277 F.3d 1086, 1088 (9th Cir. 2002) (internal punctuation omitted) (quoting Franchise Tax Bd. v. 15 Construction Laborers Vacation Trust, 463 U.S. 1, 8-9 (1983) (citations omitted)). 16 Here, the Court has federal question jurisdiction over the ADA claim and supplemental 17 jurisdiction over the related Unruh Act claim. See Johnson v. Morning Star Merced, LLC, No. 18 1:18-cv-0558-AWI-EPG, 2018 WL 4444961, at *2 (E.D. Cal. Sept. 14, 2018) (“[T]he Court . . . 19 has federal question jurisdiction over the ADA claim.”); see 28 U.S.C. § 1367(a) (providing for 20 supplemental jurisdiction over related state law claims). 21 2. Service of Process 22 Plaintiff states that Defendant Obaid was served pursuant to Federal Rule of Civil 23 Procedure 4(e)(2)(A), which provides than an individual may be served by “delivering a copy of the summons and of the complaint to the individual personally.” Fed. R. Civ. P. 4(e)(2)(A); (ECF 24 No. 11-1, p. 10). In support, Plaintiff points to the proof of service, which includes a declaration 25 from a process server stating that Defendant Obaid was personally served with the summons and 26 complaint on June 19, 2022. (ECF No. 4, p. 2). 27 Plaintiff states that Defendant Mohamad was served by substituted service pursuant to 28 1 Federal Rule of Civil procedure 4(e)(2)(B), which provides that an individual may be served by 2 leaving a copy “at the individual’s dwelling or usual place of abode with someone of suitable age 3 and discretion who resides there.” Fed. R. Civ. P. 4(e)(2)(B). (ECF No. 11-1, p. 2). Additionally, 4 Plaintiff states that Defendant Mohamad was served pursuant to California Code of Civil Procedure 415.20(b), which provides for substituted service by “leaving a copy of the summons 5 and complaint at the person’s dwelling house, usual place of abode, usual place of business, or 6 usual mailing address. . .in the presence of a competent member of the household.” Cal. Civ. 7 Code §415.20(b). According to the supplemental briefing, Plaintiff’s counsel verified Defendant 8 Mohamad’s address by conducting a search on the Lexis Advance public records database. (ECF 9 No. 14, p. 2; see also ECF No. 11-2, p. 3). Plaintiff also points to the proof of service that 10 includes a declaration from a process server stating that a copy of the summons and complaint 11 was left with a competent member of the household on May 22, 2022, at the same address 12 verified by Plaintiff’s counsel. (ECF No. 5, p. 2). 13 Based on these representations, the Court finds that Plaintiff properly served Defendants 14 Obaid and Mohamad. 15 B. Eitel Factors 16 1. Prejudice to Plaintiff 17 Turning to the Eitel factors, Plaintiff argues that he will be prejudiced if judgment is not 18 entered because, without an injunction requiring Defendants to make the store accessible to him, 19 he will be “unjustly deprived of recourse.” (ECF No. 11-1, p. 9). 20 The Court agrees that Plaintiff will be prejudiced if a default judgment is not granted. If 21 default judgment is not entered, Plaintiff will effectively be denied relief, as it is apparent that 22 Defendants will not defend this action. Accordingly, this Eitel factor weighs in favor of granting 23 default judgment. 2. Substantive Merits and Sufficiency of Complaint 24 “The second and third Eitel factors instruct the Court to evaluate the merits of the 25 substantive claims alleged in the complaint as well as the sufficiency of the complaint itself. It is 26 appropriate for the court to analyze these two factors together.” Arroyo v. J.S.T. LLC, 2019 WL 27 4877573 at *6 (E.D. Cal. Oct. 3, 2019) (citations omitted). The Court begins with Plaintiff’s ADA 28 1 allegations. 2 Plaintiff alleges that Defendants violated his rights under Title III of the ADA. (ECF No. 3 1, p. 4-7). “To prevail on a Title III discrimination claim, the plaintiff must show that (1) [he] is 4 disabled within the meaning of the ADA; (2) the defendant is a private entity that owns, leases, or operates a place of public accommodation; and (3) the plaintiff was denied public 5 accommodations because of [his] disability.” Molski v. MJ. Cable, Inc., 481 F.3d 724, 730 (9th 6 Cir. 2007) (citing 42 U.S.C. §§ 12182(a)-(b). The ADA defines discrimination to include “a 7 failure to remove architectural barriers . . . in existing facilities . . . where such removal is readily 8 achievable.” 42 U.S.C. § 12182(b)(2)(A)(iv). To state a claim “based on the presence of 9 architectural barriers in an existing facility, a plaintiff must allege and prove that: (1) the existing 10 facility at the defendant’s place of business presents an architectural barrier prohibited under the 11 ADA, and (2) the removal of the barrier is readily achievable.” Hubbard v. 7-Eleven, Inc., 433 12 F.Supp.2d 1134, 1138 (S.D. Cal. 2006) (internal citation and quotation marks omitted). 13 Plaintiff alleges that he is substantially limited in his ability to walk and must use devices, 14 such as a wheelchair, knee scooter, or prosthetic for mobility. (ECF No. 1, p. 2). The ADA 15 defines disability to include substantial limitations upon an ability to walk. 42 U.S.C. § 12102(1), 16 (2)(A). Taking Plaintiff’s allegations as true for purposes of this motion, Plaintiff has adequately 17 established disability under the ADA. 18 Plaintiff also alleges that the store is a public accommodation and that he went there to 19 buy refreshments. (ECF No. 1, pp. 2-3). The ADA defines sales establishments as public 20 accommodations. See 42 U.S.C. § 12181(7)(E). Plaintiff also alleges that each Defendant either 21 owns, leases, or operates the public accommodation. (ECF No. 1, p. 2). In support, he provides a 22 grant deed to Defendant Mohamad of real property featuring a description of the location of the 23 store at issue1, and an alcohol license listing Defendant Obaid as licensee of the store. (ECF No. 11-3, pp. 11-12, 14-15). 24 25 1 Plaintiff’s complaint identifies the store at issue as “Olsen’s Gas & Liquor, 1541 Crows Landing Rd. Modesto, 26 California 95358.” (ECF No. 1, p. 1). The grant deed included in Plaintiff’s motion for default does not specifically identify the address of the store; however, the grant deed does indicate that the property was transferred from Duane 27 C. Olsen and Craig D. Olsen in their respective capacities as joint-tenants and trustees to Defendant Mohamad. Further, the grant deed’s detailed description of the subject property includes references to Crows Landing Road. 28 1 Accepting these allegations as true, Plaintiff has adequately established that Defendants own, 2 lease, or operate a public accommodation. See Gilbert v. Shahi Assocs., Inc., No. 1:21-CV-01375- 3 DAD-SAB, 2022 WL 1557162, at *8 (E.D. Cal. May 17, 2022), report and recommendation 4 adopted in part, 2022 WL 3908549 (E.D. Cal. Aug. 30, 2022) (“Plaintiff produces a copy of the California Department of Alcoholic Beverage Control (“ABC”) report for Waterford Market, 5 which expressly states Nirmal Kaur is the “Primary Owner” of Waterford Market, located at 6 12828 Yosemite Blvd, Waterford, CA 95386. Therefore, Plaintiff has adequately established this 7 element of his ADA discrimination claim as to Defendant Kaur.”) (internal citation to record 8 omitted). 9 Next, Plaintiff must demonstrate that he was denied public accommodations due to his 10 disability. Under the ADA, the Attorney General is responsible for promulgating the 11 implementing regulations for Title III. Fortyune v. Am. Multi-Cinema, Inc., 364 F.3d 1075, 1080 12 (9th Cir. 2004) (citing 42 U.S.C. § 12186(b)). In Fortyune, the Ninth Circuit examined the 13 history of the ADA implementing regulations relating to public accommodation accessibility: 14 Congress further provided that these implementing regulations must be consistent 15 with the minimum guidelines issued by the Architectural and Transportation Barriers Compliance Board (“the Access Board”). See 42 U.S.C. § 12186(c). The 16 Access Board provided a notice and comment period for its proposed ADA guidelines in 1991, see 56 Fed.Reg. 2296-01 (Jan. 22, 1991), and issued its final 17 ADA Accessibility Guidelines for Buildings and Facilities (“ADAAG”) later that year. See 56 Fed.Reg. 35,408 (July 26, 1991) (codified at 36 C.F.R. Pt. 36, App. 18 A). The Attorney General adopted, in toto, the Access Board’s ADAAG as the 19 “Standards for Accessible Design.” These standards lay out the technical structural requirements of places of public accommodation and are applicable “during the 20 design, construction, and alteration of such buildings and facilities . . . under the [ADA].” See id. App. A, § 1. 21 Id. at 1080-81.2 22 The Ninth Circuit has stated that the ADAAG guidelines provide the “objective contours 23 24 2 “The 1991 ADAAG Standards are codified in 28 C.F.R. part 36, appendix D. 28 C.F.R. § 36.104.” Garcia v. Atl. 25 Repetto LLC, No. 2:20-CV-09586-FLA (MAAx), 2021 WL 4776002, at *4 (C.D. Cal. Apr. 29, 2021). As Plaintiff notes, new federal accessibility standards for alterations and new construction have since went into effect, i.e., the 2010 Standards. 28 C.F.R. § 35.151. Alterations occurring after March 15, 2012, must comply with the 2010 26 Standards. § 35.151(c); Daubert v. Lindsay Unified Sch. Dist., 760 F.3d 982, 986 n. 2 (9th Cir. 2014). Plaintiff states that he “does not know if the Facility was constructed or had any alteration done after March 15, 2012,” and thus 27 discusses the barriers under the 1991 ADAAG Standards but notes that any remedial work will be governed by the 2010 Standards. (ECF No. 11-1, p. 4). 28 1 of the standard that architectural features must not impede disabled individuals’ full and equal 2 enjoyment of accommodations.” Chapman v. Pier 1 Imports (U.S.), Inc., 631 F.3d 939, 945 (9th 3 Cir. 2011). 4 Here, Plaintiff alleges that he encountered the following barriers during his visit to the store in December 2021, which deviated from the 1991 ADAAG Standards: 5 a) Although the Facility offered customer parking with marked parking stalls, 6 Plaintiff could not find a designated accessible parking stall. He had to park in a 7 standard parking stall, which lacked an access aisle. He knows that if he returns to the Facility using his wheelchair, he would have difficulty unloading due to lack of 8 sufficient clear space next to his vehicle. 9 b) The ramp leading up to the Facility’s entrance was steep, and both the ramp and the landing at the top were narrow, with a large drop-off and no edge protection or 10 handrails. Plaintiff did not think he would be able to safely ascend the ramp and enter the door using his prosthetic for fear of losing his balance and falling off the 11 ramp or landing. He knows that if he returns to the Facility using his wheelchair he would not be able to enter, since there is not enough clear space at the top of the 12 landing to safely turn and open the door. 13 (ECF No. 1, p. 3). 14 Regarding Plaintiff’s first alleged barrier—that he had difficulty locating a properly 15 marked parking space, and as a result, had to park in a standard parking stall without an access 16 aisle—he cites 1991 ADAAG § 4.1.2(5)(b), which provides that at least one accessible space 17 must be served by an access aisle that is at a minimum of 96 inches wide and designated as “van 18 accessible.” (ECF No. 11-1, p. 5); see 28 C.F.R Pt. 36, App. D (containing the 1991 ADAAG 19 Standards). Although Plaintiff fails to clarify whether the store completely lacked a properly designated van accessible parking stall, the Court notes that Plaintiff states that this barrier could 20 be remedied “without difficulty or expense by painting pavement markings and installing 21 signage,” which indicates that existing markings are not present or, at least, hard to identify. (ECF 22 No. 11-1, p. 5). While more specifics would be beneficial, the Court finds the allegations 23 sufficient, drawing all reasonable inferences in Plaintiff’s favor, to support default judgment. See 24 Levine v. Sleep Train, No. 2:15-CV-0002-WBS-AC, 2016 WL 2961100, at *4 (E.D. Cal. May 23, 25 2016), report and recommendation adopted, 2016 WL 3418350 (E.D. Cal. June 22, 2016) (noting 26 that even if ADA allegation regarding parking was “not a model of directness and clarity, it [was] 27 sufficiently well-pled to support a default judgment”); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 28 1 (“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to 2 draw the reasonable inference that the defendant is liable for the misconduct alleged.”). 3 Regarding Plaintiff’s second alleged barrier—that the ramp leading to the store entrance 4 was improperly configured by being too steep and narrow, with a large drop-off and without any edge protection or handrails so that Plaintiff did not believe he could safely ascend while utilizing 5 his prosthetic or wheelchair—he cites to 1991 ADAAG §§4.8.2, which states that “[t]he least 6 possible slope shall be used for any ramp” and that “[t]he maximum slope of a ramp in new 7 construction shall be 1:12”; § 4.8.3, which requires a “minimum clear width” of 36 inches; § 8 4.8.4(4), which provides for proper landings at doorways; § 4.8.5, which requires “handrails on 9 both side”; and § 4.8.7, which requires that “[r]amps and landings with drop-offs shall have curbs, 10 walls, railings or projecting surfaces that prevent people from slipping off the ramp.” (ECF No. 11 11-1, p. 5). These allegations are sufficiently well pled to support a default judgment. 12 The Court next considers whether removal of the architectural barriers is readily 13 achievable. Removal of an architectural barrier is “readily achievable” if it is “easily 14 accomplishable and able to be carried out without much difficulty or expense.” 42 U.S.C. 15 § 12181(9). “All the plaintiff must do at the pleadings stage . . . is plausibly allege that the 16 barrier’s removal is readily achievable. . . .If the defendant fails to [plead an applicable 17 affirmative defense to the contrary], the plaintiff is effectively entitled to judgment on the 18 pleadings as to that claim—assuming he pleads the preceding elements of a qualifying disability, 19 a covered public accommodation, and an architectural barrier encountered.” Whitaker v. Sheikh, 20 No. 2:21-CV-0493-KJM-KJN (PS), 2022 WL 1262023, at *7 (E.D. Cal. Apr. 28, 2022), report 21 and recommendation adopted, 2022 WL 4366702 (E.D. Cal. Sept. 21, 2022). 22 Plaintiff asserts “that Defendants can easily remove the architectural barriers at the 23 Facility without much difficulty or expense [and] that the cost of removing the architectural barriers does not exceed the benefits under the particular circumstances.” (ECF No. 1, p. 5). 24 Specifically, in the motion for default judgment, Plaintiff states that removal of the architectural 25 barriers can be completed by painting pavement markings, installing signage, and replacing the 26 map leading to the store entrance. (ECF No. 11-1, pp. 5-6). Here, the Court concludes that 27 Plaintiff has plausibly alleged that the barriers’ removal is readily achievable. See Whitaker, 2022 28 1 WL 1262023, at *6 (E.D. Cal. Apr. 28, 2022) (concluding that the plaintiff plausibly alleged that 2 the removal of barriers was readily achievable where the plaintiff alleged “[t]he barriers identified 3 above [(sales counters inaccessible to wheelchair users)] are easily removed without much 4 difficulty or expense[,] . . . [which] are the types of barriers identified by the Department of Justice as presumably readily achievable to remove and, in fact, these barriers are readily 5 achievable to remove”). Moreover, because Defendants have chosen not to respond to the lawsuit, 6 they have offered no information for the Court to conclude that the barriers’ removal is not 7 readily achievable. 8 Accordingly, the Court finds that the second and third Eitel factors weigh in favor of 9 granting default judgment on Plaintiff’s ADA claim. 10 Plaintiff also brings a cause of action under California’s Unruh Civil Rights Act, which 11 provides in pertinent part that “[a]ll persons within the jurisdiction of this state are free and equal, 12 and no matter what their . . . disability . . . are entitled to the full and equal accommodations, 13 advantages, facilities, privileges, or services in all business establishments of every kind 14 whatsoever.” C.C.P. § 51(b). “Unlike the ADA, the Unruh Act permits the recovery of monetary 15 damages, in the form of actual and treble damages, at a statutory minimum of at least $4,000 per 16 violation.” Arroyo, 2019 WL 4877573 at *10 (citing C.C.P. § 52(a)). A violation of the ADA also 17 constitutes a violation of the Unruh Act. C.C.P. § 54.1(d) (“A violation of the right of an 18 individual under the Americans with Disabilities Act of 1990 . . . also constitutes a violation of 19 this section. . . .”). 20 The Court has already found that Plaintiff adequately demonstrated a violation of the 21 ADA for purposes of default judgment; thus, Plaintiff has adequately demonstrated a violation of 22 the Unruh Act as well. See Molski, 481 F.3d at 731 (“Any violation of the ADA necessarily 23 constitutes a violation of the Unruh Act.”). Therefore, the Court finds that the second and third Eitel factors weigh in favor of granting default judgment on Plaintiff’s Unruh claim. 24 3. Sum of Money in Relation to Seriousness of Conduct 25 Next, the Court considers the sum of money at stake in the action, with a lower sum 26 weighing in favor of default judgment. See G & G Closed Circuit Events, LLC v. Nguyen, 3:11- 27 cv-06340-JW, 2012 WL 2339699 at *2 (N.D. Cal. May 30, 2012) (noting that “default judgment 28 1 is generally disfavored when the sum of money at stake is either too large or unreasonable in light 2 of the defendant’s actions”). 3 Here, Plaintiff seeks $4,000.00 in statutory fees and $2.129.75 in attorneys’ fees and costs. 4 (ECF No. 11-1, p. 6, 11). As discussed below, the Court will recommend that the amount of attorneys’ fees awarded be reduced. In light of that reduction and the circumstances of the case, 5 the Court does not find these amounts to be excessive. Accordingly, the Court finds that the 6 fourth Eitel factor weighs in favor of granting default judgment. 7 4. Possibility of Dispute 8 No genuine issue of material fact is likely to exist. Defendants have not appeared to 9 respond to the complaint, and Plaintiff has adequately alleged violations of the ADA and Unruh 10 Act. Televideo Sys., 826 F.2d at 917-18. Accordingly, the Court finds that the fifth Eitel factor 11 weighs in favor of granting default judgment. 12 5. Whether the Default was Due to Excusable Neglect 13 The Court finds that the default in this matter was not due to excusable neglect. 14 Defendants were served with notice of the complaint and motion for default judgment and failed 15 to respond. Accordingly, the Court finds that the sixth Eitel factor weighs in favor of granting 16 default judgment. 17 6. Policy Favoring Decision on the Merits 18 Default judgments are disfavored because “[c]ases should be decided on their merits 19 whenever reasonably possible.” Eitel, 782 F.2d at 1472. However, the policy favoring decisions 20 on the merits does not weigh against entering default judgment here because Defendants’ failure 21 to appear has made a decision on the merits impossible. Arroyo, 2019 WL 4877573, at *11. 22 Accordingly, the Court finds that the seventh Eitel factor weighs in favor of granting default 23 judgment. 7. Conclusion 24 In light of the discussion of all the Eitel factors, the Court recommends that default 25 judgment be entered against Defendants subject to the limitations identified in this order. 26 \\\ 27 \\\ 28 1 C. Terms of Judgment 2 1. Statutory Damages 3 Turning to the terms of the judgment, Plaintiff seeks statutory damages of $4,000.00 in 4 accordance with the Unruh California Civil Rights Act, which provides for minimum statutory damages of $4,000.00 for each violation. C.C.P. § 52(a). “Under the Unruh Act, statutory 5 damages may be recovered if a violation of one or more construction related accessibility 6 standards denied the plaintiff full and equal access to the place of public accommodation on a 7 particular occasion.” Arroyo, 2019 WL 4877573 at *12 (citing C.C.P. § 55.56(a)). “The litigant 8 need not prove she suffered actual damages to recover the independent statutory damages of 9 $4,000.” Molski, 481 F.3d at 731. 10 Here, Plaintiff has adequately established violations of the ADA for purposes of this 11 default judgment motion, which, in turn, establish a violation of the Unruh Act. Therefore, 12 Plaintiff is entitled to recover $4,000.00. 13 2. Injunctive Relief 14 Plaintiff seeks injunctive relief, requiring Defendants to remove the barriers identified in 15 the complaint. Under the ADA, “injunctive relief shall include an order to alter facilities to make 16 such facilities readily accessible to and usable by individuals with disabilities to the extent 17 required” by the ADA. 42 U.S.C. § 12188(a)(2). Under federal and state law, Plaintiff is entitled 18 to an injunction requiring Defendants to remove the architectural barriers that he encountered 19 during his visit to the store that violated the ADA. Thus, an injunction should issue commanding 20 Defendants to properly mark a van accessible parking space with an adjacent access aisle and to 21 replace the ramp leading to the store’s entrance to conform with the ADA’s requirements. 22 3. Attorneys’ Fees and Costs 23 Under 42 U.S.C. § 12205, a party that prevails on an ADA claim may recover “a reasonable attorney’s fee, including litigation expenses,” at the Court’s discretion. The lodestar 24 method guides the determination of a reasonable fee. Antoninetti v. Chipotle Mexican Grill, Inc., 25 643 F.3d 1165, 1176 (9th Cir. 2010). “The ‘lodestar’ is calculated by multiplying the number of 26 hours the prevailing party reasonably expended on the litigation by a reasonable hourly rate.” 27 Morales v. City of San Rafael, 96 F.3d 359, 363 (9th Cir. 1996), opinion amended on denial of 28 1 reh’g, 108 F.3d 981 (9th Cir. 1997). 2 As to the reasonable hourly rate, it is calculated by reference to the prevailing rate within 3 the community for a similar type of work. Vogel v. Harbor Plaza Ctr., LLC, 893 F.3d 1152, 1158 4 (9th Cir. 2018). “Generally, when determining a reasonable hourly rate, the relevant community is the forum in which the district court sits.” Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 979 5 (9th Cir. 2008). 6 As for what may be reasonably billed for, “purely clerical or secretarial tasks should not 7 be billed at a paralegal or [lawyer’s] rate, regardless of who performs them.” Missouri v. Jenkins, 8 491 U.S. 274, 288 n.10 (1989). Thus, courts have discounted billing entries for “filing, transcript, 9 and document organization time.” Nadarajah v. Holder, 569 F.3d 906, 921 (9th Cir. 2009); Jones 10 v. Metropolitan Life Ins. Co., 845 F. Supp. 2d 1016, 1027 (N.D. Cal. 2012) (discounting time for 11 “filing or retrieving electronic court documents or copying”). Moreover, “[c]ounsel for the 12 prevailing party should make a good faith effort to exclude from a fee request hours that are 13 excessive, redundant, or otherwise unnecessary. . . . ” Hensley v. Eckerhart, 461 U.S. 424, 434 14 (1983). 15 a. Reasonable Hourly Rate 16 It is Plaintiff’s “burden of establishing entitlement to an award” of attorneys’ fees. Id. at 17 437. Additionally, he “has the burden of producing satisfactory evidence, in addition to the 18 affidavits of [his] counsel, that the requested rates are in line with those prevailing in the 19 community for similar services of lawyers of reasonably comparable skill and reputation.” Jordan 20 v. Multnomah Cnty., 815 F.2d 1258, 1263 (9th Cir. 1987). 21 Here, Plaintiff seeks fees for one attorney, Tanya E. Moore, and two paralegals, Whitney 22 Law and Isaac Medrano. (ECF No. 11-1, pp. 7-8). Plaintiff proposes $300.00 per hour as a 23 reasonable hourly rate for Attorney Moore and $115.00 per hour for each paralegal. (Id. at p. 8). In support, the attached declaration of Attorney Moore states that she has been practicing law for 24 over twenty years, specializing in disability litigation for over ten of these years. (ECF No. 11-2, 25 p. 2). The declaration of Paralegal Law states that she has thirteen years of paralegal experience, 26 including nine years specializing in disability litigation. (ECF No. 11-4, p. 2). The declaration of 27 Paralegal Medrano states that he has over ten years of paralegal experience, including five years 28 1 specializing in disability litigation. (ECF No. 11-5, p. 2). 2 Having reviewed the declarations of Attorney Moore, Paralegal Law, and Paralegal 3 Medrano, Plaintiff’s proposed rates are consistent with the rates of comparable lawyers and 4 paralegals in the Fresno Division. The Court therefore finds that the rates sought for Plaintiff’s counsel and paralegals are reasonable. See Gilbert v. HBA Enterprises, Inc., No. 1:21-CV-01358- 5 JLT-SAB, 2022 WL 2663761, at *17 (E.D. Cal. July 11, 2022), report and recommendation 6 adopted, 2022 WL 3327461 (E.D. Cal. Aug. 11, 2022) (concluding that $300 attorney rate and 7 $115 paralegal rate for Attorney Moore’s law firm was reasonable in ADA case). 8 b. Hours Reasonably Expended 9 At the outset, this Court notes that Attorney Moore’s firm frequently files ADA lawsuits 10 in this District, using form complaints and form motions for default judgment. For example, the 11 complaint in this case substantially tracks word-for-word prior complaints filed in this District, 12 including 1:21-cv-1251-JLT-EPG; 1:21-cv-1425-DAD-BAM, and 1:21-cv-1466-JLT-BAM. See 13 Gilbert v. Gsarwar Inc., No. 2:21-CV-02032-MCE-JDP, 2022 WL 4245325, at *3 (E.D. Cal. 14 Sept. 15, 2022), report and recommendation adopted, 2022 WL 7101283 (E.D. Cal. Oct. 12, 15 2022) (“And as several judges in this district have observed, Moore has used the same form 16 complaint and motion for default judgment in dozens of cases she has filed in this court, making 17 only minimal alterations for each case.”). As other courts have concluded, the use of form filings 18 is a consideration in evaluating the reasonableness of the hours expended. Specifically, the use of 19 form filings for repeat litigation means that her firm would reasonably be expected to expend less 20 effort and time on each individual case. 21 The Ninth Circuit, in addressing the use of form complaints in ADA litigation, recently 22 observed that “[t]he ability to file essentially the same complaints over and over again, combined 23 with the hope of intimidating the defendant into an early settlement (or of obtaining a default judgment), allows for a quick recovery of attorney’s fees with relatively minimal difficulty.” 24 Shayler v. 1310 PCH, LLC, 51 F.4th 1015, 1018 (9th Cir. 2022). Even more analogous to this 25 case, one court within this District noted that Attorney Moore’s use of form complaints and 26 motions for default judgment warranted, among other reasons, a significant reduction in the hours 27 claimed. Gilbert, 2022 WL 2663761, at *18-20 (finding that Attorney Moore reasonably 28 1 expended 2.1 hours out of a claimed 8.8 hours, that Paralegal Law reasonably expending 1.7 2 hours out of a claimed 3.5 hours, and that Paralegal Medrano reasonably expended 1.5 hours out 3 of a claimed 4.7 hours). 4 With this in mind, the Court turns to the second part of the lodestar analysis—the hours claimed to have been reasonably expended in this case. Attorney Moore seeks to recover 2.8 5 hours, Paralegal Law seeks to recover 1.9 hours, and Paralegal Medrano seeks to recover 2.6 6 hours, with a combined total of 7.3 hours claimed in this case. (ECF No. 11-1, p. 8). The claimed 7 hours generally fall within four categories: (1) investigation and other litigation preparation; (2) 8 the complaint (ECF No. 1); (3) the requests for a clerk’s entry of default (ECF Nos. 6, 8); and (4) 9 the motion for default judgment (ECF No. 11-3). (See ECF No. 11-3, pp. 2-4). 10 Attorney Moore and Paralegal Law conducted case investigation and other litigation 11 preparation. Attorney Moore spent 1.0 hours for tasks like reviewing research regarding the 12 parties and communications with her client. Paralegal Law spent .8 hours reviewing client 13 communications, researching the identify of the Defendants and location for service and 14 reviewing notes and photos from the investigation.3 The Court recommends no reduction in the 15 amount of hours spent by Attorney Moore as to pre-litigation planning. However, as Paralegal 16 Law’s review of client communications and discussion about the investigation appears partly 17 duplicative of efforts already expended by Attorney Moore, the Court recommends a reduction to 18 .5 hours. 19 Attorney Moore spent 1.3 hours preparing the complaint, including communicating with 20 Plaintiff, reviewing investigation, and drafting the complaint.4 Given Attorney Moore’s 21 experience with filing ADA complaints and because the complaint in this case was very similar to 22 others filed in past cases, the Court recommends a reduction to .5 hours. See Trujillo v. Lakhani, 23 No. 1:17-CV-00056-LJO-SAB, 2017 WL 1831942, at *7 (E.D. Cal. May 8, 2017) (“The time billed is excessive and duplicative and .5 hours would be a reasonable amount of time for Ms. 24 25 3 Because many entries record multiple tasks, some involving more than one of the four categories listed above, it is 26 impossible to determine precisely how much time was spent on any one task. Accordingly, the Court approximates the time spent as closely as the entries allow. 27 4 Paralegal Law spent some unspecified time revising the draft complaint. (See ECF No. 11-3, p. 2). However, because the pertinent entry was already discounted above in connection with the pre-litigation planning, the Court 28 will not recommend any further reduction for perhaps duplicative time spent by Paralegal Law on the complaint. 1 Moore to spend on preparing, researching, reviewing, and drafting the complaint in this action.”). 2 Attorney Moore and Paralegal Medrano were involved in seeking the two Clerk’s entries 3 of default against Defendants. Attorney Moore spent .5 hour in preparing requests for entry of 4 default and supporting declaration. Paralegal Medrano spent 1.3 hours drafting the requests for a clerk’s entry of default, drafting certificates of service, drafting declarations in support of clerk’s 5 request for entry of default and drafting letters after the entry of default to Defendants. The Court 6 does not recommend a reduction in the amount of hours spent by Attorney Moore in preparing the 7 requests. See Block v. Narwal, et al., No. 1:22-CV-00597-ADA-EPG, at * 11 (E.D. Cal. Dec. 6, 8 2022) (“Because the requests for entry of default are simple filings that are based on a template 9 that Attorney Moore has used in the past, see 2:21-cv-2032 (ECF No. 7), the Court recommends a 10 reduction to .5 hours total for both requests.”). Because Paralegal Medrano’s work on the requests 11 appears partially duplicative of the time spent by Attorney Moore and likewise involved clerical 12 tasks, like preparing certificates of service, the Court recommends a reduction to .8 hours total for 13 both requests. 14 Paralegal Law and Paralegal Medrano were involved in preparation of the instant motion 15 for default judgment. It appears that Paralegal Law had primary responsibility for drafting the 16 motion, expending 1.0 hours drafting the memorandum of points and authorities, revising 17 declaration, and reviewing documents. The Court recommends no reduction in the 1.0 hour 18 expended by Paralegal Law on the motion for default judgment. See Trujillo, 2017 WL 1831942, 19 at *8 (concluding that 1 hour was appropriate award of time for Attorney Moore’s law firm as to 20 time spent on motion for default judgment). Because some of the time spent by Paralegal 21 Medrano on the motion was for clerical tasks, such as preparing a certificate of service and 22 exhibits, as well as the fact that the motion was based off prior templates, the Court recommends 23 a reduction to 1.0 hours. Lastly, the Court notes two miscellaneous entries that it has not yet addressed: (1) 24 Paralegal Medrano spent .10 hours saving “proof of service for L&L Gremp Properties LLC to 25 drop box” and (2) Paralegal Law and Paralegal Medrano each spent .10 hours reviewing the 26 minute order vacating the scheduling conference and setting a deadline for the motion for default 27 judgment (ECF No. 10). (ECF No. 11-3, p. 2). As the certificates of proof of serviced filed in this 28 1 case, see ECF Nos. 6-2 & 8-2, are not directed to L&L Gremp Properties LLC, the Court 2 recommends that this time be reduced from the total. Additionally, because Paralegal Medrano 3 and Paralegal Law’s duplicative entries consists of clerical work, the Court recommends that no 4 fee be awarded. Adding these figures together, the Court recommends a reasonable award of 2 hours by 5 Attorney Moore, 1.6 hours by Paralegal Medrano, and 1.5 hours by Paralegal Law. 6 Accordingly, the Court’s recommended lodestar figures are as follows: 7 Person Hours Hourly Rate Total 8 Tanya E. Moore 2 $300.00 $ 600.00 9 Isaac Medrano 1.6 $115.00 $ 184.00 10 Whitney Law 1.5 $115.00 $ 172.5 11 Thus, the total amount of recommended attorneys’ fees is $956.50. 12 c. Costs 13 Plaintiff also seeks to recover $771.75 in costs. (ECF No. 11-1, p. 8). Under the ADA, a 14 court, in its discretion, can allow the prevailing party other than the United States to recover 15 reasonable attorneys’ fees, including litigation expenses and costs. 42 U.S.C. § 12205. The costs 16 Plaintiff seeks to recover include $196.89 in fees for service of the summons (ECF No. 11-3, pp. 17 6-7), $402 for the filing fee (Id. at p. 9), and $172.86 for a consultant to perform investigation (Id. 18 at p. 17). See Alvarado v. Nederend, 2011 WL 1883188 at *10 (E.D. Cal. Jan. May 17, 2011) 19 (explaining “filing fees, mediator fees . . ., ground transportation, copy charges, computer 20 research, and database expert fees” are typically identified as litigation costs); Kraus v. Ding 21 Chaun Chen, 2021 WL 856425, at *5 (E.D. Cal. Mar. 8, 2021), report and recommendation 22 adopted, 2021 WL 1388495 (E.D. Cal. Apr. 13, 2021) (finding court filing fees, costs of service, 23 and an expert witness investigator fee to be compensable expenses and recommending total award 24 of $964.32 in costs). The Court finds that these expenses are reasonable and recommends that 25 $771.75 in costs be awarded to Plaintiff. IV. CONCLUSION AND RECOMMENDATIONS 26 For the reasons discussed above, Plaintiff is entitled to default judgment in most respects. 27 Accordingly, IT IS RECOMMENDED that: 28 1 1. Plaintiff’s motion for default judgment (ECF No. 11) be GRANTED, in part, as 2 specified below: 3 a. The District Judge declare that Defendants Abdo N. Mohamad and Nasser M. 4 Obaid dba Olsen Service Station violated Title III of the Americans with Disabilities Act, for the purposes of California Unruh Civil Rights Act 5 damages. 6 b. Judgment be entered in favor of Plaintiff Darren Gilbert and against 7 Defendants Abdo N. Mohamad and Nasser M. Obaid dba Olsen Service 8 Station. 9 c. Defendants Abdo N. Mohamad and Nasser M. Obaid dba Olsen Service 10 Station be directed, within six (6) months of an order adopting these findings 11 and recommendations, to make the real property known as Olsen’s Gas & 12 Liquor, located at 1541 Crows Landing Road in Modesto, California accessible 13 to Plaintiff by making the following modifications to the property such that 14 each item is brought into compliance with the accessibility requirements of the 15 Americans with Disabilities Act and California Code of Regulations, Title 24, 16 as follows: 17 i. Provide proper signage and pavement markings to identify a designated 18 accessible parking and access aisle; 19 ii. Provide adequate space for a van-accessible access aisle; 20 iii. Provide a properly configured entrance ramp to the store. 21 d. Plaintiff be awarded statutory damages under the California Unruh Civil 22 Rights Act in the amount of $4,000.00, payable by Defendants Abdo N. 23 Mohamad and Nasser M. Obaid dba Olsen Service Station, jointly and severally, to the Moore Law Firm, P.C. Trust Account, which shall be 24 delivered to the Moore Law Firm, P.C., 300 South First Street, Suite 342, San 25 Jose, California 95113, within thirty (30) days of an order adopting these 26 findings and recommendations. 27 e. Plaintiff be awarded attorneys’ fees of $956.50.00 plus an additional $771.75 28 1 in costs, payable by Defendants Abdo N. Mohamad and Nasser M. Obaid dba 2 Olsen Service Station, jointly and severally, to the Moore Law Firm, P.C. 3 Trust Account, which shall be delivered to the Moore Law Firm, P.C., 300 4 South First Street, Suite 342, San Jose, California 95113, within thirty (30) 5 days of an order adopting these findings and recommendations; 6 2. The Clerk of Court be directed to close this case. 7 These findings and recommendations will be submitted to the United States district judge 8 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(). Within fourteen 9 (14) days after being served with these findings and recommendations, the parties may file written objections with the Court. The document should be captioned “Objections to Magistrate 8 Judge’s Findings and Recommendations.” The parties are advised that failure to file objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 2 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 13 14 | ITIS SO ORDERED. © | pated: _May 2, 2023 [sf ey □□ 16 UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 19