Volle v. Sherwin Petroleum, Inc. ( 2020 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 DEBRA VOLLE, Case No. 19-cv-00545-PJH 8 Plaintiff, 9 v. ORDER ADOPTING IN PART REPORT AND RECOMMENDATION 10 SHERWIN PETROLEUM, INC., REGARDING MOTION FOR DEFAULT JUDGMENT 11 Defendant. 12 13 14 The court has reviewed Magistrate Judge Cousins’ Report and Recommendation 15 Re: Motion for Default Judgment. No objections to the report have been filed. The court 16 finds the report correct, well-reasoned and thorough insofar as it found defendant 17 Sherwin Petroleum, Inc.’s liability in some respects established by the well-pleaded 18 allegations of the operative complaint, and insofar as it assessed the appropriate scope 19 of injunctive relief. Accordingly, the court adopts the report in those respects. The court 20 however, addresses defendant’s liability in other respects, as well as plaintiff’s requests 21 for fees, costs, and expenses, as follows. 22 BACKGROUND 23 The pending motion for default judgment concerns an action brought pursuant to 24 the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. (“ADA”), and the Unruh 25 Act, Cal. Civ. Code §§ 51 et seq., by individual plaintiff Debra Volle against defendant 26 Sherwin Petroleum, Inc. (“Sherwin Petroleum” or “defendant”). Azim Modarressi was 27 named as a codefendant in the original complaint, but plaintiff voluntarily dismissed him 1 The court recounts the allegations of the First Amended Complaint (“FAC”) for 2 purposes of this motion. See FAC, Dkt. 16. Volle has been physically disabled for over a 3 decade after having undergone multiple back surgeries that resulted in the severing of a 4 nerve. Plaintiff depends on a scooter or a walker for mobility, and she is a resident of 5 San Jose, California. 6 On November 27, 2018, Volle visited a gas station operated by defendant with a 7 friend to purchase a lottery ticket. Plaintiff was unable to enter the gas station’s food mart 8 because the ramp to the front entry door was steep and had steep, flared sides that were 9 unable to accommodate her scooter or walker. The path at the top of the ramp was also 10 blocked by outside seating. Additionally, the width of the path by the front door was less 11 than 48 inches, and the front door clear space at push side was less than 48 inches and 12 did not have 24 inches clear space at pull side. Rather than attempting to enter in the 13 face of those conditions, plaintiff waited outside the mart as her friend made a purchase. 14 Plaintiff left feeling like a second-class citizen and has been deterred on “multiple 15 occasions” from returning to the gas station. See FAC ¶ 8. 16 Volle filed this action on January 30, 2019. Dkt. 1. Volle served the defendant’s 17 authorized agent, Mohammad Hossein Beirami, with the summons and complaint on 18 February 7, 2019. Irakli Decl., Exs. AA & DD.1 A General Order 56 joint site inspection 19 took place on March 19, 2019. FAC ¶ 10 & Ex. A. 20 On July 10, 2019, Volle filed an amended complaint incorporating findings from the 21 site inspection. See FAC. On July 17, 2019, plaintiff served the amended complaint on 22 Sherwin Petroleum’s agent, Mohammad Beirami. See Irakli Decl., Ex. BB. The 23 complaint seeks injunctive relief, damages, and recovery of attorneys’ fees and costs. 24 The Clerk of Court entered default against Sherwin Petroleum on August 27, 2019. 25 Dkt. 22. 26 1 Docket Number 27-5 is the “Irakli Decl.” Docket Number 27-13 is the “Irene Decl.” The 27 third exhibit to the Irakli Decl. is referred to in this order as Ex. CC, although plaintiff 1 On September 30, 2019, plaintiff filed a motion for default judgment. Mot., Dkt. 27- 2 1. The magistrate judge’s deputy received an email from Mohammad Beirami on 3 October 6, 2019, indicating his intention to represent Sherwin Petroleum in the case. 4 See Dkt. 30. The magistrate judge referred Mr. Beirami to a program offering free 5 assistance for pro se litigants and advised him that, if he was not an attorney, he could 6 not represent Sherwin Petroleum because Sherwin Petroleum is a corporation. Id. 7 Sherwin Petroleum has not made an appearance in this action. 8 Magistrate Judge Cousins issued a report and recommendation recommending 9 granting the motion and awarding plaintiff $12,000 in statutory damages, $10,664.50 in 10 attorneys’ fees and costs, and injunctive relief requiring modification of the property by 11 November 30, 2020. Dkt. 33. No party has objected to that report and recommendation, 12 and the deadline to do so has passed 13 DISCUSSION 14 A. Legal Standards 15 1. Review of Report and Recommendation 16 Review of a magistrate judge’s report and recommendation regarding a dispositive 17 motion is governed by Federal Rule of Civil Procedure 72(b). “Within 14 days after being 18 served with a copy of the recommended disposition, a party may serve and file specific 19 written objections to the proposed findings and recommendations.” Fed. R. Civ. 20 P. 72(b)(2). “The district judge must determine de novo any part of the magistrate judge's 21 disposition that has been properly objected to.” Fed. R. Civ. P. 72(b)(3). 22 “[W]hile the statute does not require the judge to review an issue de novo if no 23 objections are filed, it does not preclude further review by the district judge, sua sponte or 24 at the request of a party, under a de novo or any other standard.” Thomas v. Arn, 474 25 U.S. 140, 154 (1985) (discussing case where “the District Judge made a de novo 26 determination of the petition despite petitioner's failure even to suggest that the 27 Magistrate erred”); see also Piolin Prods., Inc. v. Velez, Case No. 07-cv-05245-RMW, 1 made an appearance also cannot file an objection to the magistrate judge's report and 2 recommendation. To be cautious then, the court has reviewed de novo the entirety of 3 [Magistrate] Judge Spero's report regarding the facts[.]”). “The district judge may accept, 4 reject, or modify the recommended disposition; receive further evidence; or return the 5 matter to the magistrate judge with instructions.” Fed. R. Civ. P. 72(b)(3). 6 2. Default Judgment 7 Federal Rule of Civil Procedure 55(b)(2) permits a court, following default by a 8 defendant, to enter default judgment in a case. “The district court's decision whether to 9 enter default judgment is a discretionary one.” Aldabe v. Aldabe, 616 F.2d 1089, 1092 10 (9th Cir. 1980). To assist courts in determining whether default judgment in appropriate, 11 the Ninth Circuit has enumerated the following factors for the court to consider: (1) the 12 possibility of prejudice to the plaintiff; (2) the merits of plaintiff's substantive claim; (3) the 13 sufficiency of the complaint; (4) the sum of money at stake in the action; (5) the possibility 14 of dispute concerning material facts; (6) whether default was due to excusable neglect 15 and; (7) the strong policy underlying the Federal Rules of Civil Procedure favoring 16 decisions on the merits. Eitel v. McCool, 782 F.2d 1470, 1471–72 (9th Cir. 1986). 17 Upon entry of default, all factual allegations within the complaint are accepted as 18 true, except those allegations relating to the amount of damages. TeleVideo Sys., Inc. v. 19 Heidenthal, 826 F.2d 915, 917–18 (9th Cir.1987). Where a default judgment is granted, 20 the scope of relief is limited by Federal Rule of Civil Procedure 54(c) to “what is 21 demanded in the pleadings.” Fed. R. Civ. P. 54(c). 22 3. Attorneys’ Fees, Litigation Expenses, and Costs 23 A district court may, in its discretion, allow the prevailing party in an ADA action a 24 reasonable attorney's fee, including litigation expenses and costs. 42 U.S.C. § 12205. 25 “The Supreme Court has explained that, in civil rights cases, the district court's discretion 26 is limited. A prevailing plaintiff under the ADA should ordinarily recover an attorney's fee 27 unless special circumstances would render such an award unjust.” Jankey v. Poop Deck, 1 “A ‘reasonable’ fee is a fee that is sufficient to induce a capable attorney to 2 undertake the representation of a meritorious civil rights case. The district court must 3 strike a balance between granting sufficient fees to attract qualified counsel to civil rights 4 cases and avoiding a windfall to counsel. The way to do so is to compensate counsel at 5 the prevailing rate in the community for similar work; no more, no less.” Vogel v. Harbor 6 Plaza Ctr., LLC, 893 F.3d 1152, 1158 (9th Cir. 2018) (internal quotation marks and 7 citations omitted). 8 “The most useful starting point for determining the amount of a reasonable fee is 9 the number of hours reasonably expended on the litigation multiplied by a reasonable 10 hourly rate.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). “There is a strong 11 presumption that the lodestar figure represents a reasonable fee.” Morales v. City of San 12 Rafael, 96 F.3d 359, 363 n.8 (9th Cir. 1996); Perdue v. Kenny A. ex rel. Winn, 559 U.S. 13 542, 552 (2010) (“the presumption is a ‘strong’ one”). “[T]he fee applicant bears the 14 burden of establishing entitlement to an award and documenting the appropriate hours 15 expended and hourly rates.” Hensley, 461 U.S. at 437. The fee applicant must “submit 16 evidence supporting the hours worked and rates claimed. Where the documentation of 17 hours is inadequate, the district court may reduce the award accordingly.” Id. at 433. 18 B. Damages 19 Plaintiff seeks $12,000 in statutory damages. The Unruh Act sets out a minimum 20 amount of statutory damages at $4,000 per instance of discrimination. Cal. Civ. Code 21 § 52(a). 22 “The general rule of law is that upon default the factual allegations of the 23 complaint, except those relating to the amount of damages, will be taken as true.” 24 TeleVideo Sys., 826 F.2d at 917–18 (9th Cir. 1987) (quoting Geddes v. United Financial 25 Group, 559 F.2d 557, 560 (9th Cir. 1977)). The court’s duty to take facts relating to 26 liability as true is limited to the facts in the pleading. “[F]acts which are not established by 27 the pleadings of the prevailing party, or claims which are not well-pleaded, are not 1 Cir. 1978); accord DIRECTV, Inc. v. Hoa Huynh, 503 F.3d 847, 854 (9th Cir. 2007) 2 (“defendant is not held to admit facts that are not well-pleaded or to admit conclusions of 3 law”); Cripps v. Life Ins. Co., 980 F.2d 1261, 1267 (9th Cir. 1992) (“necessary facts not 4 contained in the pleadings, and claims which are legally insufficient, are not established 5 by default”); see also Rasmussen v. Dublin Rarities, Case No. 14-cv-1534-PJH, 2015 WL 6 1133189, at *15 n.5 (N.D. Cal. Feb. 27, 2015) (allegations that appear in “declarations 7 filed in support of Plaintiff's motion for default judgment” but “do not appear in the 8 complaint” are considered “solely with respect to damages,” not liability) (adopting report 9 and recommendation); Johnson v. RK Inv. Properties, Inc., Case No. 18-cv-01132-KAW, 10 2019 WL 1575206, at *4 (N.D. Cal. Mar. 18, 2019), adopted by Case No. 18-cv-01132- 11 YGR, 2019 WL 1571071 (N.D. Cal. Apr. 11, 2019) (same). 12 Here, plaintiff amended her complaint on July 10, 2019. See FAC. Paragraph 8 of 13 that complaint indicates that plaintiff attempted to but could not enter the store on 14 November 27, 2018. FAC ¶ 8. The final sentence of that paragraph states “Plaintiff left 15 feeling like a second class citizen, suffered difficulties, discomfort, and embarrassment 16 and has been deterred on multiple occasions from returning to the Gas Station.” Id. 17 Plaintiff does not allege that she was deterred from entering on any particular subsequent 18 occasion. Rather, plaintiff relies on her vague description of being deterred on “multiple 19 occasions.” That allegation is not sufficiently-specific to support a finding of defendant’s 20 liability for any instance of discrimination, other than on November 27, 2018. 21 Plaintiff filed a declaration with her motion for default judgment in which, for the 22 first time, she stated that on January 8, 2019 and February 10, 2019, she wanted to stop 23 at the gas station but was deterred from doing so.2 Volle Decl., Dkt. 27-2 ¶ 6. Plaintiff’s 24 declaration that she was deterred provides factual support relevant to defendant’s 25 potential liability for two instances of discrimination not alleged in the complaint. But, as 26 described above, this court’s finding of liability is limited to the complaint’s well-pled 27 1 allegations. 2 The complaint supports a finding of liability for only a single instance of 3 discrimination under the Unruh Act. As such, statutory damages for violation of that act 4 must be based on that single, well-pled violation. Here, the court finds that damages in 5 the amount of $4,000 for that violation are appropriate. See Cal. Civ. Code § 52(a). 6 C. Fees 7 Plaintiff seeks $6,525 in attorneys’ fees. She seeks $2,925 for 9 hours billed by 8 Irene Karbelashvili at a rate of $325 per hour. She also seeks $3,600 for 14.4 hours 9 billed by Irakli Karbelashvili at a rate of $250 per hour.3 10 1. Irakli Karbelashvili 11 Plaintiff seeks fees for 14.4 hours Irakli worked on the case. See Irakli Decl., 12 Ex. CC.4 The hourly rate is adequately supported. 13 Regarding Irakli’s billed time, the court finds it inappropriate to award fees for the 14 hours attributed to two billing entries. 15 First, Irakli seeks fees for 0.2 hours billed on February 11, 2019 for time spent on a 16 phone call with Azim Modarressi. Modarressi was a former co-defendant against whom 17 the action was voluntarily dismissed, purportedly because he did not have an ownership 18 interest in the gas station. Plaintiff has not prevailed against him, so time spent litigating 19 against him alone is not recoverable. Because this time is identifiably distinct from any 20 work relating to the defaulting defendant, it is inappropriate to assess fees against the 21 defaulting defendant for that work. See Hensley, 461 U.S. at 435 (where “counsel's work 22 on one claim will be unrelated to his work on another claim . . . . [t]he congressional intent 23 to limit awards to prevailing parties requires that these unrelated claims be treated as if 24 they had been raised in separate lawsuits, and therefore no fee may be awarded for 25 26 3 Because the two attorneys share a last name, the court refers to each by first name. 27 4 Plaintiff’s papers cite to “Ex. CC” for Irakli’s reported hours, and as discussed above the 1 services on the unsuccessful claim”). 2 Second, Irakli seeks fees for 0.1 hours billed on August 25, 2019 for time spent 3 drafting a notice of his law firm’s change of address. This is a purely clerical task, and 4 the court declines to award fees based on an attorney’s time spent completing it. 5 Nadarajah v. Holder, 569 F.3d 906, 921 (9th Cir. 2009) (“When clerical tasks are billed at 6 hourly rates, the court should reduce the hours requested to account for the billing 7 errors.”); see also Santiago v. Equable Ascent Fin., Case No. 11-cv-3158-CRB, 2013 WL 8 3498079, at *3 (N.D. Cal. July 12, 2013) (“tasks such as mailing, obtaining transcripts, 9 researching filing procedures, the time spent recording hours worked, and collecting 10 documents [are] examples of clerical work that are not billable”). 11 2. Irene Karbelashvili 12 Plaintiff seeks fees for 9 hours Irene worked on the case. See Irene Decl., Ex. A. 13 The hourly rate is adequately supported. 14 Regarding Irene’s billed time, the court finds it inappropriate to award fees for the 15 hours attributed to three billing entries. 16 First, Irene seeks fees for 0.1 and 0.2 hours billed on February 11, 2019—across 17 two different billing entries—for time spent working on a notice of dismissal regarding 18 Modarressi. This time is not recoverable both because the work is clerical in nature, and 19 because plaintiff has not prevailed on her claim against Modarressi. This time is clearly 20 segregable as time spent litigating against him alone. 21 Second, Irene seeks fees for 0.1 hours billed on May 29, 2019 for time spent 22 drafting a notice of her personal unavailability. This is a purely clerical task not related to 23 advancing the litigation, and the court declines to award fees based on an attorney’s time 24 spent completing it. See Nadarajah, 569 F.3d at 921; Santiago, 2013 WL 3498079, at *3. 25 D. Costs 26 Plaintiff seeks recovery of litigation expenses in the amount of $625. That appears 27 to come from a $400 filing fee and $225 in costs of serving documents. See Irene Decl. 1 These costs are adequately supported, except for the fact that $75 is attributed 2 solely to serving Azim Modarressi, an individual who was dismissed without prejudice. 3 See Irene Decl., Ex. B at ECF p. 3. Plaintiff has not prevailed against Modarressi, and 4 the court declines to compel defendant to pay for costs plaintiff incurred solely to advance 5 abandoned claims against the dismissed co-defendant. 6 E. Litigation Expenses 7 Plaintiff seeks to recover litigation expenses paid to a single expert, Bassam 8 Altwal. Altwal billed plaintiff for 16 hours of work at a rate of $275/hour for substantive 9 work, and at $90/hour for administrative work. His total bill to plaintiff amounted to 10 $4,339.50. However, plaintiff seeks to recover only $3,514.50. That figure is achieved 11 by halving Altwal’s $275/hour billing rate for 6 hours of his travel time. 12 Altwal’s hourly rate for substantive work is adequately supported. 13 Regarding Altwal’s billed time, the court finds it inappropriate to award the full 14 amount sought based on hours attributed to four billing entries. See Altwal Decl., 15 Dkt. 27-10, Ex. 2. 16 First, Altwal submitted bills for 4 hours on each January 8, 2019 and March 19, 17 2019. For each entry, Altwal billed $825 for three hours spent traveling, and $275 for one 18 hour spent conducting a site visit. For the six total hours of travel time, plaintiff’s motion 19 instead seeks an hourly rate of $137.50 (totaling $825 for all six hours), based on halving 20 Altwal’s substantive $275/hour billing rate. See Mot. at 18. Notably, Altwal has himself 21 determined his billing rate for non-substantive work. He has established his rate “for 22 administrative tasks and data entry” at $90/hour. Id. at 18 n.6. Given that Altwal has 23 himself established a specific, distinct rate for this type of non-substantive work that does 24 not employ his skill as an expert, the court finds it appropriate to use that rate to calculate 25 the plaintiff’s reasonable litigation expenses for Altwal’s travel time. Accordingly, the six 26 hours of travel time justify $540 in reasonable litigation expenses, rather than the $825 27 sought. 1 attorney. However, a comparison with Irakli’s billing statement describing the same call 2 shows that only half an hour of time spent on that call was billable activity. Compare 3 Altwal Decl., Ex. 2 at 2 with Irakli Decl., Ex. CC at 1. 4 Third, Altwal submitted expenses for 0.5 hours on September 23, 2019 for time 5 spent on “administrative work (billing).” Altwal Decl., Ex. 2 at 2. The court declines to 6 award litigation expenses based on Altwal’s time performing clerical work that is better 7 considered part of his overhead. 8 CONCLUSION 9 For the foregoing reasons, the court GRANTS plaintiff’s motion for default 10 judgment in part, in accordance with this order. The court awards plaintiff the injunctive 11 relief specified in the magistrate judge’s report and recommendation. The court further 12 awards plaintiff damages totaling $4,000, costs totaling $550, attorneys’ fees totaling 13 $6,270, and litigation expenses totaling $3,047—for a total of $13,867. 14 IT IS SO ORDERED. 15 Dated: January 16, 2020 16 /s/ Phyllis J. Hamilton PHYLLIS J. HAMILTON 17 United States District Judge 18 19 20 21 22 23 24 25 26 27