Gilbert v. Muthana ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 DARREN GILBERT, Case No. 1:21-cv-01333-JLT-SKO 11 Plaintiff, FINDINGS AND RECOMMENDATION 12 THAT PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT BE GRANTED v. 13 IN PART 14 (Doc. 12) MOHAMMED MUTHANA and SALEH 15 MUTHANA, OBJECTIONS DUE: 21 DAYS 16 Defendants. 17 _________________________________ ___/ 18 19 On January 24, 2022, Plaintiff Darren Gilbert (“Plaintiff”) filed a motion for default 20 judgment against Defendant Mohammed Muthana (“Mohammed”), pursuant to Fed. R. Civ. P. 21 55(b) (the “Motion”). (Doc. 12). No opposition to the Motion was filed. (See Docket.) After 22 having reviewed the papers and supporting material, the matter was deemed suitable for decision 23 without oral argument pursuant to E.D. Cal. Local Rule 230(g), and the Court vacated the hearing 24 set for February 23, 2022. (Doc. 16.) On April 8, 2022, the undersigned issued findings and a 25 recommendation that the Motion be denied without prejudice, as Defendant Saleh Muthana 26 (“Saleh”) had not been properly served and Plaintiff’s claims against him remained pending. (Doc. 27 17.) 28 1 On April 15, 2022, Plaintiff filed a notice of voluntary dismissal of Mohammed (Doc. 18), 2 and the Court subsequently withdrew the pending findings and recommendation and denied the 3 Motion as moot on April 19, 2022 (Doc. 19). On April 26, 2022, Plaintiff filed a notice of errata 4 indicating that the notice of voluntary dismissal filed on April 15, 2022, dismissed the wrong 5 defendant. (Doc. 20.) Accordingly, the Court struck the notice of voluntary dismissal from the 6 docket and vacated its prior order terminating Mohammed as a defendant and denying the Motion 7 as moot. (Doc. 21.) On April 28, 2022, Plaintiff filed a notice of voluntary dismissal without 8 prejudice of Saleh, who was then terminated from the case. (Docs. 22, 23.) 9 For the reasons set forth below, the undersigned recommends that the Motion be granted in 10 part.1 11 I. BACKGROUND2 12 On September 2, 2021, Plaintiff filed a complaint against Defendants Mohammed Muthana 13 and Saleh Muthana (collectively, “Defendants”) pursuant to Title III of the Americans with 14 Disabilities Act (“ADA”), 42 U.S.C. §§ 12101–12213; the California Unruh Act (the “Unruh Act”), 15 California Civil Code § 51 et seq.; and California Health & Safety Code §§ 19955, 19959. (Doc. 1 16 (the “Complaint”).) The Complaint seeks an award of statutory damages, prejudgment interest on 17 the damages, costs of suit, attorney’s fees, and injunctive relief. Id. Plaintiff alleges that Defendants 18 own, operate, and/or lease the property that is the subject of this suit, Levi’s Tobacco & More (the 19 “Facility”), located at 241 7th St, Modesto, CA 95354. (Doc. 1, ¶¶ 1, 7.) Plaintiff further alleges 20 that he requires the use of a wheelchair or prosthetic for mobility (Doc. 1, ¶ 8), and the Facility 21 presents numerous architectural barriers that interfered with his ability to use and enjoy the goods, 22 services, privileges, and accommodations offered at the Facility (Doc. 1, ¶ 10). 23 According to the proofs of service filed by Plaintiff, Mohammed was served with copies of 24 the summons and complaint by substitute service on September 24, 2021, when the documents were 25 1 The motion for default is referred to the undersigned by E.D. Cal. Local Rule 302(c)(19) for the entry of findings and 26 recommendations. See 28 U.S.C. § 636(b)(1)(B). 2 Upon entry of default, “the factual allegations of the complaint, except those relating to the amount of damages, will 27 be taken as true.” TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917–18 (9th Cir. 1987) (quoting Geddes v. United Fin. Grp., 559 F.2d 557, 560 (9th Cir. 1977)); see also Fed. R. Civ. P. 8(b)(6) (“An allegation—other than one relating 28 to the amount of damages—is admitted if a responsive pleading is required and the allegation is not denied.”). 1 left with “Abraham Doe (refused last name),” a co-occupant at 1930 River Tree Ln, Modesto, CA 2 95351, and subsequently mailed to the same address. (Doc. 4 at 2.) A declaration from Plaintiff’s 3 counsel Tanya E. Moore indicates that Ms. Moore conducted a public records search using the Lexis 4 Advance database and determined that Mohammed resided at that address. (Doc. 12-2, ¶ 15.) 5 Substitute service was made after unsuccessful attempts to personally serve Mohammed on 6 September 21, and 22, 2021. (Doc. 4 at 3.) 7 Saleh was served with copies of the summons and complaint by substitute service on 8 September 23, 2021, when the documents were left with “Tony Doe (refused last name), Apparently 9 in Charge,” at 241 S 7th St, Modesto, CA 95354, and subsequently mailed to the same address. 10 (Doc. 5 at 2.) Substitute service was made after unsuccessful attempts to personally serve Saleh on 11 September 21, and 22, 2021. (Doc. 5 at 3.) 12 Neither of Defendants responded to the Complaint. (See Docket.) Plaintiff requested the 13 Clerk of Court to enter default against Defendants on November 5, 2021, which was entered that 14 same day. (Docs. 8, 9.) On January 24, 2022, Plaintiff filed a motion for default judgment against 15 Mohammed, which is currently pending before Court. (Doc. 12.) 16 II. DISCUSSION 17 A. Legal Standard 18 Federal Rule of Civil Procedure 55(b) permits a court-ordered default judgment following 19 the entry of default by the clerk of the court under Rule 55(a). It is within the sole discretion of the 20 court as to whether default judgment should be entered. See Aldabe v. Aldabe, 616 F.2d 1089, 1092 21 (9th Cir. 1980). A defendant’s default by itself does not entitle a plaintiff to a court-ordered 22 judgment. See id. Instead, the Ninth Circuit has determined a court should consider seven 23 discretionary factors, often referred to as the “Eitel factors,” before rendering a decision on default 24 judgment. See Eitel v. McCool, 782 F.2d 1470, 1471–72 (9th Cir. 1986). The Eitel factors include 25 (1) the possibility of prejudice to the plaintiff; (2) the merits of the plaintiff’s substantive claim; (3) 26 the sufficiency of the complaint; (4) the sum of money at stake in the action; (5) the possibility of a 27 dispute concerning material facts; (6) whether the default was due to excusable neglect; and (7) the 28 strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits. Id. 1 A plaintiff is required to prove all damages sought in the complaint. See Televideo Sys., Inc. 2 v. Heidenthal, 826 F.2d 915, 917–18 (9th Cir. 1992). In addition, any relief sought may not be 3 different in kind from, or exceed in amount, what is demanded in the complaint. Fed. R. Civ. P. 4 54(c). If the facts necessary to determine the damages are not contained in the complaint, or are 5 legally insufficient, they will not be established by default. See Cripps v. Life Ins. Co. of N. Am., 6 980 F.2d 1261, 1267 (9th Cir. 1992). Once the court clerk enters a default, the well-pleaded factual 7 allegations of the complaint are taken as true, except for those allegations relating to damages. See 8 Televideo Sys., Inc., 826 F.2d at 917. 9 “In addition, before awarding a default judgment against a defendant, the court must 10 determine the adequacy of service of process, as well as the court’s jurisdiction over the subject 11 matter and the parties.” Sentinel v. Komar, No. 119CV00708DADEPG, 2021 WL 1346025, at *6 12 (E.D. Cal. Apr. 12, 2021) (citing In re Tuli, 172 F.3d 707, 712 (9th Cir. 1999); Kaldawi v. Kuwait, 13 709 F. App’x 452, 453 (9th Cir. 2017); S.E.C. v. Internet Sols. for Bus. Inc., 509 F.3d 1161, 1165 14 (9th Cir. 2007)). 15 B. Analysis 16 1. Defendant Mohammed Muthana Was Properly Served 17 Service of a complaint in federal court is governed by Federal Rule of Civil Procedure 4. 18 Under Rule 4, an individual may be served by: (1) delivering a copy of the summons and of the 19 complaint to that person personally; (2) leaving a copy of each at the individual’s dwelling or usual 20 place of abode with someone of suitable age and discretion who resides there; or (3) delivering a 21 copy of each to an agent authorized by appointment or by law to receive service of process. Fed. R. 22 Civ. P. 4(e)(2). 23 The Court finds that adequate service has been made on Mohammed. Counsel for Plaintiff, 24 Ms. Moore, determined Mohammed’s residential address by conducting a public records search 25 using the Lexis Advance database. (Doc. 12-2, ¶ 15.) After two unsuccessful attempts at personal 26 service at that address on September 21, and 22, 2021, the process server left copies of the complaint 27 and summons with “Abraham Doe (refused last name),” a co-occupant at 1930 River Tree Ln, 28 Modesto, CA 95351, and subsequently mailed to the same address. (Doc. 4 at 2.) Accordingly, the 1 undersigned concludes that service of Mohammed was adequate under Federal Rule of Civil 2 Procedure 4(e)(2). See Fed. R. Civ. P. 4(e)(2) (permitting service on an individual by leaving a copy 3 of each at the individual’s dwelling or usual place of abode with someone of suitable age and 4 discretion who resides there). 5 2. The Court Has Jurisdiction Over This Case 6 District courts have subject matter jurisdiction of all civil actions arising under the laws of 7 the United States. 28 U.S.C. § 1331. In any civil action where the district courts have subject matter 8 jurisdiction, the courts will also have supplemental jurisdiction over all other claims that are “so 9 related to claims in the action,” such that “they form part of the same case or controversy.” 28 10 U.S.C. § 1367. Here, subject matter jurisdiction exists over Plaintiff’s ADA claim because it arises 11 under a federal law. The Court has supplemental jurisdiction over Plaintiff’s state law claim under 12 the California Unruh Act as it arises out of the same “case or controversy” as the ADA claim, namely 13 Plaintiff’s visit to the Facility where he encountered alleged violations of both laws. See 28 U.S.C. 14 § 1367(a). 15 The Court also has personal jurisdiction over Defendant Mohammed because he has “certain 16 minimum contacts” with California such that “the suit does not offend ‘traditional notions of fair 17 play and substantial justice.’ ” Calder v. Jones, 465 U.S. 783, 788 (1984) (citation omitted). 18 Specifically, Mohammed owns, operates, and/or leases the Facility located at 241 7th St, Modesto, 19 CA 95354. (Doc. 1, ¶¶ 1, 7.) 20 Therefore, the Court has jurisdiction over this matter. 21 3. The Eitel Factors Weigh in Favor of Granting a Default Judgment 22 a. Possibility of Prejudice to Plaintiff 23 If default judgment is not entered, Plaintiff will effectively be denied a remedy until 24 Defendants participate and make an appearance in the litigation—which may never occur. Denying 25 Plaintiff a means of recourse is, by itself, sufficient to meet the burden imposed by this factor. See 26 Philip Morris USA, Inc. v. Castworld Prods., Inc., 219 F.R.D. 494, 499 (C.D. Cal. 2003) 27 (“prejudice” exists where the plaintiff has no “recourse for recovery” other than default judgment). 28 Therefore, Plaintiff would be prejudiced if the Court were to deny its motion. This factor weighs in 1 favor of default judgment. 2 b. Merits of Plaintiff’s Substantive Claims and the Sufficiency of the Complaint 3 The next relevant Eitel factor include an evaluation of the merits of the substantive claims 4 pled in the complaint as well as the general sufficiency of the complaint. In weighing this factor, 5 courts evaluate whether the complaint is sufficient to state a claim that supports the relief sought. 6 See Danning v. Lavine, 572 F.2d 1386, 1388 (9th Cir. 1978); see also DIRECTV, Inc. v. Huynh, 503 7 F.3d 847, 854 (9th Cir. 2007) (“[A] defendant is not held to admit facts that are not well-pleaded or 8 to admit conclusions of law.”) (internal quotation marks omitted). 9 Title III of the ADA provides that “[n]o individual shall be discriminated against on the basis 10 of disability” in places of public accommodation. 42 U.S.C. § 12182(a). “Discrimination” is 11 defined as a failure to remove “barriers . . . where such removal is readily achievable.” Id. at § 12 12182(b)(2)(A)(iv); see also Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 945 (9th Cir. 13 2011) (en banc). Where a barrier’s removal is not “readily achievable,” a public accommodation 14 must make its facilities available through “alternative methods if such methods are readily 15 achievable.” 42 U.S.C. § 12182(b)(2)(A)(v). 16 “To prevail on a Title III discrimination claim, the plaintiff must show that (1) [he or she] is 17 disabled within the meaning of the ADA; (2) the defendant is a private entity that owns, leases, or 18 operates a place of public accommodation; and (3) the plaintiff was denied public accommodations 19 by the defendant because of her [or his] disability.” Molski v. M.J. Cable, Inc., 481 F.3d 724, 730 20 (9th Cir. 2007). Further, “[t]o succeed on an ADA claim of discrimination on account of one’s 21 disability due to an architectural barrier, the plaintiff must also prove that: (1) the existing facility 22 at the defendant’s place of business presents an architectural barrier prohibited under the ADA, and 23 (2) the removal of the barrier is readily achievable.” Parr v. L & L Drive-Inn Rest., 96 F. Supp. 2d 24 1065, 1085 (D. Haw. 2000). 25 According to the complaint, Plaintiff is “substantially limited in his ability to walk, “must 26 use a wheelchair or prosthetic for mobility,” and he is thus “physically disabled” as defined by the 27 applicable California and federal laws. (Doc. 1, ¶ 8.) Plaintiff alleges that the Facility is a facility 28 1 of public accommodation, does not function as a residence, and its activity affects commerce. (Id. 2 ¶ 9.) Plaintiff further alleges that Mohammed owns, operates, and/or leases the Facility, (Id. ¶ 7), 3 and is liable for the Facility’s compliance with the ADA.3 4 Plaintiff visited the Facility on or about July 24, 2021, and alleges that Mohammed failed to 5 provide barrier-free access to the Facility in the following ways: (1) the surface of the parking stall 6 was uneven, with large cracks in the pavement, which could have caused his wheelchair or knee 7 scooter to “get stuck” had Plaintiff been using one of them; and (2) the route between the curb ramp 8 and the Facility entrance was obstructed by both an ice machine and the propped-open door to the 9 Facility, which made the route difficult for Plaintiff to maneuver. (Doc. 1, ¶ 10.) 10 Plaintiff alleges that the removal of these architectural barriers is readily achievable, or 11 alternatively, the services could have been made available through alternative methods that were 12 readily achievable. (Doc. 1, ¶¶ 21-22.) As these facts are taken as true regarding Defendant 13 Mohammed following entry of default against him, Plaintiff has met his burden of stating a prima 14 facie Title III discrimination claim. 15 Pursuant to the Unruh Civil Rights Act, all persons are “entitled to the full and equal 16 accommodations, advantages, facilities, privileges, or services in all business establishments of 17 every kind whatsoever.” Cal Civ. Code, § 51(b). Additionally, no business establishment of any 18 kind whatsoever shall discriminate against any person in California on account of disability. Cal. 19 Civ. Code, § 51.5. The Unruh Act also incorporates an individual’s rights under the ADA by 20 reference, such that a violation of the ADA also constitutes a violation of the Unruh Civil Rights 21 Act. Cal. Civ. Code, § 51(f). Here, Plaintiff alleges that Defendants denied him full and equal 22 accommodations, advantages, facilities, privileges and services in a business establishment based 23 on his disability. (Doc. 1, ¶ 38.) Because Plaintiff’s complaint properly alleges a prima facie claim 24 under the ADA, Plaintiff has also properly alleged facts establishing the necessary elements for an 25 Unruh Civil Rights Act claim. 26 California Health and Safety Code § 19955, mandates that all public accommodations 27 28 3 Defendants are jointly and severally liable for ADA violations in any of these capacities. See Botosan v. McNally 1 constructed in California comply with the requirements of California Government Code § 4450. 2 Pursuant to Section 4450, “all buildings, structures, sidewalks, curbs, and related facilities, 3 construed in this state by the use of state, county, or municipal funds, or the funds of any political 4 subdivision of the state shall be accessible to and usable by persons with disabilities.” Cal. Gov. 5 Code, § 4450(a). Additionally, non-exempt public accommodations constructed prior to July 1, 6 1970, and later altered or structurally repaired, are required to comply with the same requirements 7 of the California Health and Safety Code. Cal. Health & Safety Code § 19959. 8 For purposes of pleading his claim, Plaintiff incorporates his prior allegations regarding the 9 barrier he encountered at the Facility (Doc. 1, ¶ 42), and further alleges that the Facility is a public 10 accommodation “constructed, altered, or repaired in a manner that violates Part 5.5 of the Health 11 and Safety Code or Government Code § 4450 (or both), and that the Facility was not exempt under 12 the Health and Safety Code § 19956” (Doc. 1, ¶ 45). Although substantially boilerplate, this claim 13 is sufficiently pleaded. See Loskot v. D & K Spirits, LLC, No. 2:10-cv-0684-WBS-DAD, 2011 WL 14 567364 at *3 (E.D. Cal. Feb. 15, 2011) (noting that, although “plaintiff’s complaint is largely 15 boilerplate, it is sufficient to support the requested relief” under the ADA for purposes of default 16 judgment). See also Gutierrez v. Leng, No. 1:14-CV-01027-WBS, 2015 WL 1498813, at *4 (E.D. 17 Cal. Mar. 31, 2015) (same). 18 The Complaint sufficiently states Plaintiff’s claim under Title III of the ADA, the Unruh 19 Civil Rights Act, and California Health and Safety Code §§ 19955 and 19959, and the substantive 20 allegations appear to have merit. As such, these Eitel factors weigh in favor of default judgment. 21 c. The Sum of Money at Stake in the Action 22 The fourth Eitel factor, the sum of money at stake, weighs in favor of granting default 23 judgment. Default judgment is disfavored when a large amount of money is involved or is 24 unreasonable considering the defendant’s actions. See Truong Giang Corp. v. Twinstar Tea Corp., 25 No. C 06–03594–JSW, 2007 WL 1545173 at *12 (N.D. Cal. May 29, 2007). Here, Plaintiff is 26 seeking a default judgment in the amount of $7,621.90, which includes attorney’s fees and costs.4 27 28 4 Plaintiff requests statutory damages in the amount of $4,000.00 and attorney’s fees and costs in the amount of 1 This is not a relatively large sum of money, nor does it appear unreasonable, subject to the 2 deductions set forth below. 3 d. The Possibility of a Dispute Concerning the Material Facts 4 Regarding this factor, no genuine issues of material fact are likely to exist because the 5 allegations in the complaint are taken as true, Televideo Sys., 826 F.2d at 917–18, and Defendants 6 have submitted nothing to contradict the well-pleaded allegations in the Complaint. See United 7 Specialty Insurance Co. v. Saleh, No. 1:16–cv–00632–DAD–MJS, 2016 WL 4434479, at *2 (E.D. 8 Cal. Aug. 22, 2016) (“Inasmuch as default serves as an admission of Plaintiff’s well-pled allegations 9 of fact, it must be concluded that there is no dispute as to any material fact.”) (internal citation 10 omitted). Accordingly, this factor favors entry of default judgment. 11 e. Whether Default Was Due to Excusable Neglect 12 Defendant Mohammed failed to file responsive pleadings or oppose Plaintiff’s motion for 13 default judgment. The Court has no evidence before it to establish that Mohammed’s failure to 14 participate in the litigation is due to excusable neglect. Thus, this factor weighs in favor of granting 15 default judgment. 16 f. Policy Favoring Decision on the Merits 17 This factor inherently weighs strongly against awarding default judgment in every case. In 18 the aggregate, however, this factor is outweighed in consideration of the other applicable factors 19 that weigh in favor of granting default judgment. 20 4. Terms of the Judgment and Proof of Damages 21 While analysis of the Eitel factors supports a default judgment, the Court also considers the 22 proof of the damages and the terms of the judgment sought by Plaintiff. 23 a. Injunctive Relief 24 Plaintiff’s Complaint and motion for default judgment seek an injunction requiring 25 Defendant Mohammed to make several changes and accommodations at the Facility. (Doc. 1, ¶ 10; 26 Doc. 12-1 at 5.) As the factual allegations in the complaint are taken as true, Plaintiff is entitled to 27 injunctive relief as requested pursuant to both state and federal law. See Wander v. Kaus, 304 F.3d 28 856, 858 (9th Cir. 2002) (“Damages are not recoverable under Title III of the ADA—only injunctive 1 relief is available for violations of Title III.”). 2 b. Statutory Damages 3 The Unruh Civil Rights Act provides for, among other things, a minimum statutory damages 4 amount of $4,000 per violation. Cal. Civ. Code § 52(a); Grove v. De La Cruz, 407 F. Supp. 2d 5 1126, 1133 (C.D. Cal. 2005) (the Unruh Act “provides for statutory damages up to a maximum of 6 three times the actual damages but no less than $4,000 for each instance of discrimination”). A 7 violation of the ADA constitutes a violation of the Unruh Act. As such, Plaintiff asserts that he is 8 entitled to $4,000 in statutory damages pursuant to the California Civil Code § 52(a). (Doc. 1, ¶ 9 40.) 10 Plaintiff has sufficiently alleged facts indicating he visited the Facility on or about July 24, 11 2021, and encountered barriers that interfered with his ability to use and enjoy the goods, services, 12 privileges, and accommodations offered at the Facility. (Doc. 1, ¶ 10.) Thus, Plaintiff is entitled to 13 an award of $4,000 in statutory damages. 14 c. Attorney’s Fees and Costs of Litigation 15 Pursuant to 42 U.S.C. § 12205, a party that prevails on claims brought under the ADA may 16 recover reasonable attorney’s fees and costs, in the court’s discretion. California Civil Code § 55 17 also provides for attorney’s fees and costs for obtaining injunctive relief; section 54.3 provides fees 18 for recovery of damages to enforce the “full and equal access” guaranteed to disabled persons by 19 Section 54.1. 20 Attorney’s fee awards are calculated using the lodestar method whereby the hours 21 reasonably spent in the litigation are multiplied by a reasonable hourly rate. Gonzalez v. City of 22 Maywood, 729 F.3d 1196, 1202 (9th Cir. 2013); see also Camacho v. Bridgeport Fin., Inc., 523 23 F.3d 973, 978 (9th Cir. 2008); Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). The Ninth Circuit 24 has explained the lodestar approach as follows: 25 The lodestar/multiplier approach has two parts. First a court determines the “lodestar” amount by multiplying the number of hours reasonably expended on the 26 litigation by a reasonable hourly rate. [See D’Emanuele v. Montgomery Ward & Co., Inc., 904 F.2d 1379, 1383 (9th Cir. 1990); Hensley v. Eckerhart, 461 U.S. 424,] 461 27 (1983)]. The party seeking an award of fees must submit evidence supporting the hours worked and the rates claimed. See Hensley, 461 U.S. at 433. 28 1 reasonably expended because they are “excessive, redundant, or otherwise unnecessary.” Id. at 434. Second, a court may adjust the lodestar upward or 2 downward using a “multiplier” based on factors not subsumed in the initial calculation of the lodestar. [Footnote omitted] See Blum v. Stenson, 465 U.S. 886, 3 898-901 (1984) (reversing upward multiplier based on factors subsumed in the lodestar determination); Hensley, 461 U.S. at 434 n.9 (noting that courts may look at 4 “results obtained” and other factors but should consider that many of these factors are subsumed in the lodestar calculation). The lodestar amount is presumptively the 5 reasonable fee amount, and thus a multiplier may be used to adjust the lodestar amount upward or downward only in “‘rare’ and ‘exceptional’ cases, supported by 6 both ‘specific evidence’ on the record and detailed findings by the lower courts” that the lodestar amount is unreasonably low or unreasonably high. See Pennsylvania v. 7 Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546, 565 (1986) (quoting Blum, 465 U.S. at 898-901); Blum, 465 U.S. at 897; D’Emanuele, 904 F.2d at 1384, 8 1386; Cunningham v. County of Los Angeles, 879 F.2d 481, 487 (9th Cir. 1989). 9 Van Gerwin v. Guarantee Mut. Life Co., 214 F.3d 1041,1045 (9th Cir. 2000). 10 Here, Plaintiff seeks an award of $3,085.50 for total billable time spent on the case by the 11 Mission Law Firm, as well as $536.40 for costs. (Doc. 12-1 at 7–10.) Specifically, Plaintiff requests 12 (1) $2,430.00 for 8.1 hours of work expended by Tanya E. Moore, Esq., at an hourly rate of $300; 13 (2) $322.00 for 2.8 hours spent by paralegal Whitney Law at an hourly rate of $115; and (3) $333.50 14 for 2.9 hours spent by paralegal Isaac Medrano at an hourly rate of $115. (Doc. 12-1 at 7.) 15 i. Ms. Moore’s Time Expended and Hourly Rate 16 The Court finds that the number of hours Ms. Moore billed in this case is not reasonable 17 given the nature of this case and Ms. Moore’s experience in these types of actions. On August 29, 18 2021, Ms. Moore recorded 1.0 hour reviewing and finalizing a draft of the complaint, including 19 reviewing “all information obtained from the client” and “independent investigation to confirm 20 barriers encountered constitute violations of ADA.” (Doc. 12-3, Ex. A.) That entry also recorded 21 time for “communications with the client and instructions to JM re finaliz[ing] the complaint for 22 filing.” (Id.) Based upon the Court’s familiarity with the actions filed by Ms. Moore’s firm in this 23 court, the Court is aware that this is basically a form complaint. The Complaint filed in this action 24 is nearly identical to complaints filed by Ms. Moore in dozens of other actions in this Court, with 25 only the names of the parties and the allegations in paragraph ten changed to reflect the facts specific 26 to this case. The Court finds that 0.5 hours of Ms. Moore’s time is sufficient to finalize the 27 Complaint and review the supporting information. The Court will therefore deduct 0.5 hours from 28 Ms. Moore’s time entry on August 29, 2021. 1 On October 18 and 19, 2021, Ms. Moore recorded 0.5 hours reviewing proofs of service and 2 instructing paralegal Isaac Medrano regarding “same.” (Doc. 12-3, Ex. A.) Fees for work that is 3 clerical in nature are considered part of normal overhead costs and are not included in recoverable 4 hours. See Nadarajah v. Holder, 569 F.3d 906, 921 (9th Cir. 2009). The Court finds that reviewing 5 proofs of service is a clerical task and will thus deduct 0.5 hours from Ms. Moore’s time. See, e.g., 6 Trujillo v. Malwa Food Mart Inc., No. 1:21–CV–01580–AWI–BAM, 2022 WL 1214849, at *7 7 (E.D. Cal. Apr. 25, 2022) (deducting time for reviewing proofs of service). 8 Finally, on January 3 and 10, 2022, Ms. Moore spent 1.5 hours in connection with the motion 9 for entry of default judgment, including preparing and reviewing the motion and supporting 10 declarations. (Doc. 12-3, Ex. A.) Ms. Law reported spending a total of 1.9 hours on November 9 11 and 24, 2021, and January 3 and 4, 2022, in connection with that motion, including reviewing the 12 case file “re: readiness for default judgment motion,” instructing Mr. Medrano regarding the 13 preparation of the motion, and reviewing and revising the motion for and supporting documents 14 prepared by Mr. Medrano. (Id.) Mr. Medrano reported spending a total of 1.5 hours drafting the 15 motion and supporting documents on January 3, 2022. (Id.) The motion for default judgment filed 16 in this case is nearly identical to motions for default judgment filed by Ms. Moore in other actions 17 before this Court. Accordingly, the Court finds that one hour of Ms. Moore’s time and one hour of 18 paralegal time is sufficient to prepare the motion. See Gutierrez, 2015 WL 1498813, at *9; Moore 19 v. E-Z-N-Quick, No. 1:13–cv–01522–LJO–SAB, 2014 WL 1665034 (E.D. Cal. Apr. 24, 2014); 20 Trujillo v. Ali, No. 1:16–cv–00694–LJO–SKO, 2016 WL 6902313, at *7 (E.D. Cal. Nov. 23, 2016). 21 The Court will therefore deduct 0.5 hours from Ms. Moore’s time entries, 1.4 hours from Ms. Law’s 22 time entries, and 1.0 hour from Mr. Medrano’s time entries, which are related to the preparation and 23 filing of the motion for default judgment. 24 With regard to the hourly rate to be charged, courts generally calculate these rates according 25 to the prevailing market rates in the relevant legal community. Blum, 465 U.S. at 895. In general, 26 courts use the rates of attorneys practicing in the forum district, here, the Eastern District of 27 California, Fresno. Gates v. Deukmejian, 987 F.2d 1392, 1405 (9th Cir. 1993); Davis v. Mason 28 Cnty., 927 F.2d 1473, 1488 (9th Cir. 1991). The fee applicant bears the burden of producing 1 sufficient evidence that the requested rates are commensurate “with those prevailing in the 2 community for similar services by lawyers of reasonably comparable skill, experience, and 3 reputation.” Blum, 465 U.S. at 895 n.11. 4 Plaintiff asserts that Ms. Moore specializes in representing plaintiffs in disability actions, 5 and Ms. Moore’s declaration states she has filed and successfully prosecuted over 1,500 civil rights 6 actions, she has handled numerous litigation matters through trial, and has been practicing law for 7 twenty years—eleven of which have been spent specializing in disability access litigation. (Doc. 8 12-2, ¶¶ 3–4.) She usually bills at $495 per hour but has reduced her hourly rate requested in this 9 case to $300. (Id. ¶ 6.) 10 This Court has previously found Ms. Moore’s hourly rate of $300 to be within the adjusted 11 prevailing hourly rate for the Fresno area, based on the Laffey Matrix and the United States Bureau 12 of Labor Statistics wage estimates. See Trujillo v. Malwa Food Mart Inc., 2022 WL 1214849, at 13 *6. Accord Trujillo v. Singh, No. 1:16–cv–01640–LJO–EPG, 2017 WL 1831941, at *3 (E.D. Cal. 14 May 8, 2017); Trujillo v. Lakhani, No. 1:17–cv–00056–LJO–SAB, 2017 WL 1831942, at *7 (E.D. 15 Cal. May 8, 2017). Accordingly, the Court finds that Ms. Moore’s requested hourly rate of $300 is 16 reasonable and recommends that Plaintiff be awarded the sum of $1.980.00 for work performed by 17 Ms. Moore.5 18 ii. Paralegal Rate and Time Expended 19 Plaintiff seeks compensation for 2.8 hours expended by paralegal Ms. Law at $115 per hour, 20 and 2.9 hours expended by paralegal Mr. Medrano at $115 per hour. (See Doc. 12-1 at 6–7; Doc. 21 12-3, Ex. A; Doc. 12-4; Doc. 12-5.) The Court finds that these requested hourly rates reasonable. 22 See, e.g., Trujillo v. Malwa Food Mart Inc., 2022 WL 1214849, at *6; Trujillo v. Singh, 2017 WL 23 1831941, at *3. See also Silvester v. Harris, No. 1:11–CV–2137 AWI SAB, 2014 WL 7239371 at 24 *4 (E.D. Cal. Dec. 17, 2014). 25 Regarding the number of hours expended by Ms. Law, her total hours are reduced by 1.4 26 hours, as discussed above, and an additional 0.1 hours for time spent reviewing the Court’s minute 27 5 This amount consists of the amount of time recorded by Ms. Moore (8.1 hours) minus the Court-recommended 28 reduction in time spent in excessive or duplicative tasks (1.5 hours), for an adjusted time of 6.6 hours multiplied by Ms. 1 order continuing the scheduling conference, which is a clerical task, on November 10, 2021 (see 2 Doc. 12-3, Ex. A), for a total of 1.3 hours. With respect to the number of hours expended by Mr. 3 Medrano, the Court finds that the amounts indicated for certain tasks are reasonable; however, some 4 of the time expended—in addition to that noted above—are unreasonable, duplicative, or 5 inadequately documented and should be reduced. On September 7, 2021, Mr. Medrano recorded 6 0.2 hours to review the order setting scheduling conference, calendar the hearing date, set the 7 deadline for Rule 26 meet and confer, and set the deadline to file a joint scheduling report. (Doc. 8 12-3. Ex. A.) On October 25, 2021, Mr. Medrano recorded 0.1 hours for updating Defendant 9 Mohammed’s address for service on the CCDA portal. (Id.) The Court finds that these billable 10 entries generally describe clerical tasks and should not be reimbursed at a paralegal rate. 11 Accordingly, 0.3 hours will be deducted from Mr. Medrano’s time. See Trujillo v. Malwa Food 12 Mart Inc., 2022 WL 1214849, at *7 (deducting Mr. Medrano’s time for those same tasks). 13 Based on the foregoing, the Court recommends Plaintiff be awarded 1.3 hours of time 14 expended by Ms. Law at an hourly rate of $115, and 1.6 hours of time expended by Mr. Medrano at 15 an hourly rate of $115, for a total of $333.50. 16 iii. Costs 17 Plaintiff seeks to recover costs in the amount of $536.40. (Doc. 12-1 at 7; Doc. 12-2, ¶¶ 12– 18 13; Doc. 12-2, Exs. B & C.) In Section 12205 of the ADA, Congress authorized a district court, in 19 its discretion, to allow the prevailing party other than the United States to recover a reasonable 20 attorney’s fee, including litigation expenses and costs. 42 U.S.C. § 12205. The statutory provisions 21 of the ADA provide direct authority for the award of expert witness fees as litigation expenses under 22 the ADA. See Lovell v. Chandler, 303 F.3d 1039, 1058 (9th Cir. 2002). The costs here include 23 expenses for the court filing fee and costs of service, which are compensable pursuant to 42 U.S.C. 24 § 12205 and Lovell. 303 F.3d at 1058. Plaintiff’s overall costs are compensable and should be 25 awarded. Accordingly, it is recommended that Plaintiff be awarded the sum of $536.40 for costs. 26 /// 27 /// 28 /// 1 d. Conclusion 2 For the reasons set forth above, the Court recommends Plaintiff be awarded the following 3 fees: 4 Professional Hourly Rate Hours Total 5 Ms. Tanya Moore $300 6.6 $1,980.00 6 Ms. Whitney Law $115 1.3 $149.50 7 Mr. Isaac Medrano $115 1.6 $184.00 8 Total Fees $2,313.50 9 Additionally, Plaintiff should be awarded $536.40 for the costs of suit and $4,000 in statutory 10 damages. Thus, the total award of damages, fees, and costs recommended is $6,849.90. 11 III. CONCLUSION AND RECOMMENDATION 12 Based on consideration of the declarations, pleadings, and exhibits to the present motion, it 13 is HEREBY RECOMMENDED that: 14 1. Plaintiff’s motion for default judgment (Doc. 12) be GRANTED IN PART; 15 2. Judgment be entered in Plaintiff’s favor and against Defendant Mohammed 16 Muthana; 17 3. Defendant Mohammed Muthana be found and declared to be in violation of Title III 18 of the Americans with Disabilities Act; 19 4. Plaintiff be awarded statutory damages under the Unruh Act in the amount of $4,000; 20 5. Plaintiff be awarded reasonable attorney’s fees in the amount of $1,980.00 (6.6 hours 21 at $300 per hour), paralegal fees in the amount of $333.50 (2.9 hours at $115 per 22 hour), and costs of suit in the amount of $536.40; and 23 6. Defendants be ordered to make the following modifications to the property known 24 as Levi’s Tobacco & More, located at 241 7th Street in Modesto, California (the 25 “Facility”), such that each item is brought into compliance with the accessibility 26 requirements of the Americans with Disabilities Act and California Code of 27 Regulations, Title 24, as follows: 28 a. Provide a properly configured and identified accessible parking stall with 1 adjacent access aisle, which shall be free of excessive slopes, height changes, 2 and openings in the walking surface; and 3 b. Provide and maintain properly configured accessible route of travel from the 4 designated accessible parking to the Facility entrance. 5 Furthermore, Plaintiff is HEREBY ORDERED to mail a copy of these findings and 6 recommendations to Defendant Mohammed Muthana at his last known address. 7 These findings and recommendations are submitted to the district judge assigned to this 8 action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within twenty-one 9 (21) days of service of this recommendation, any party may file written objections to these findings 10 and recommendations with the Court and serve a copy on all parties. Such a document should be 11 captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The district judge 12 will review the magistrate judge’s findings and recommendations pursuant to 28 U.S.C. § 13 636(b)(1)(C). The parties are advised that failure to file objections within the specified time may 14 waive the right to appeal the district judge’s order. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th 15 Cir. 2014). 16 IT IS SO ORDERED. 17 18 Dated: June 17, 2022 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28