Avalos v. Sandhu, No. 1:2021cv00538 - Document 12 (E.D. Cal. 2021)

Court Description: FINDINGS and RECOMMENDATIONS RECOMMENDING GRANTING PLAINTIFFS MOTION FOR DEFAULT JUDGMENT. (ECF No. 8). OBJECTIONS DUE WITHIN FOURTEEN DAYS. Signed by Magistrate Judge Stanley A. Boone on 7/26/2021. (Hernandez, M)

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Avalos v. Sandhu Doc. 12 Case 1:21-cv-00538-NONE-SAB Document 12 Filed 07/26/21 Page 1 of 25 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 GEORGE AVALOS, Case No. 1:21-cv-00538-NONE-SAB 11 Plaintiff, FINDINGS AND RECOMMENDATIONS RECOMMENDING GRANTING PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT 12 v. 13 GURDIP SINGH SANDHU, (ECF No. 8) 14 Defendant. OBJECTIONS DUE WITHIN FOURTEEN DAYS 15 16 17 I. 18 INTRODUCTION Currently before the Court is Plaintiff George Avalos’s (“Plaintiff”) motion for default 19 1 20 judgment filed on June 18, 2021. (ECF No. 8.) On July 21, 2021, the Court held a hearing on 21 the motion for default judgment, at which no appearances were made on behalf of Defendant 22 Gurdip Singh Sandhu (“Defendant”). Having considered the moving papers, the declarations 23 and exhibits attached thereto, arguments presented at the July 21, 2021 hearing and the 24 nonappearance of Defendant, as well as the Court’s file, the Court issues the following findings 25 and recommendations recommending granting Plaintiff’s motion for default judgment. 26 / / / 27 1 All references to pagination of specific documents pertain to those as indicated on the upper right corners via the 28 CM/ECF electronic court docketing system. 1 Dockets.Justia.com Case 1:21-cv-00538-NONE-SAB Document 12 Filed 07/26/21 Page 2 of 25 1 II. 2 BACKGROUND 3 A. 4 Plaintiff filed this action on March 30, 2021. (ECF No. 1.) Defendant was served with a Procedural History 5 summons on April 15, 2021, and the executed summons was filed with the Court on April 19, 6 2021. (ECF No. 5.) 7 No Defendant filed an answer, responsive pleading, or otherwise appeared in this action. 8 On May 7, 2021, Plaintiff filed a request for entry of default against Defendant. (ECF No. 6.) 9 On May 7, 2021, default was entered against Defendant. (ECF No. 7.) On June 18, 2021, 10 Plaintiff file the motion for default judgment that is currently before the Court. (ECF No. 8.) By 11 minute order on June 21, 2021, the motion was reset before the undersigned for hearing on July 12 21, 2021. (ECF No. 9.) On July 21, 2021, the Court held a hearing via videoconference, with 13 the courtroom open to the public. Counsel Osman M. Taher appeared via video on behalf of 14 Plaintiff. Nobody appeared on behalf of Defendant in person nor on the public access telephone 15 line, despite the courtroom being open to the public. Plaintiff’s Allegations 16 B. 17 Plaintiff bring this action against Defendant alleging violation of the Americans with 18 Disabilities Act of 1990, 42 U.S.C. § 12181, et seq., as amended by the ADA Amendments Act 19 of 2008 (P.L. 110-325) (the “ADA”), and California’s Unruh Civil Rights Act, California Civil 20 Code § 51, et seq. (the “Unruh Act”). (Compl., ECF No. 1; Pl.’s Mem. P. & A. Supp. Appl. 21 Default J. (“Mem.”), ECF No. 8-1.) Plaintiff, an adult California resident, is substantially 22 limited in performing one or more major life activities, including but not limited to: walking, 23 standing, ambulating, and sitting. (Compl. ¶ 1.) As a result of these disabilities, Plaintiff relies 24 on mobility devices, including at times a wheelchair, to ambulate. (Id.) Plaintiff qualifies as 25 member of a protected class under the ADA, and the regulations implementing the ADA as set 26 forth at 28 C.F.R. §§ 36.101 et seq. (Id.) Prior to the filing of this action and at the time of his 27 visit to Defendant’s facility prior to instituting this action, Plaintiff suffered from a “qualified 28 disability” under the ADA, and is also a holder of a Disabled Person Parking Placard. (Id.) 2 Case 1:21-cv-00538-NONE-SAB Document 12 Filed 07/26/21 Page 3 of 25 1 On February 20, 2021, Defendant, an individual, owned the property located at 770 North 2 Porter Road, Porterville, California, 93257 (the “Property”), upon which Save Center 4 (the 3 “Business”) is located. (Compl. ¶ 2.) Plaintiff alleges Defendant currently owns the property, 4 and that the Business is a store open to the public, and is a “place of public accommodation” as 5 that term is defined by 42 U.S.C. § 12181(7). (Compl. ¶ 4.) 6 On February 20, 2021, Plaintiff went to the Business for the dual purpose of purchasing a 7 beverage and to confirm that the Business, as a public place of accommodation, is accessible to 8 persons with disabilities within the meaning of federal and state law. (Compl. ¶ 9.) Although 9 parking spaces were one of the facilities reserved for patrons, thee were no designated parking 10 spaces available for persons with disabilities that complied with the 2010 Americans with 11 Disabilities Act Accessibility Guidelines (“ADAAG”) on such date. (Compl. ¶ 10.) 12 Specifically, instead of having architectural barrier free facilities for patrons with disabilities, 13 Defendant’s facility had barriers that included: (A) a built up curb ramp that projected from the 14 sidewalk and into the access aisle, and the curb ramp was in excess of the maximum grade 15 allowed by ADAAG specifications (§§ 406.1, 406.5, 502.4); (B) an accessible parking space that 16 did not contain compliant accessible parking signage (§ 502.6); and (C) an accessible parking 17 area that was not adequately marked (§§ 502.2, 502.3.3). (Compl. ¶ 11.) 18 Due to the architectural barriers in violation of the ADA and ADAAG specifications, the 19 parking, paths of travel, and demarcated accessible spaces at the Property, were inaccessible. 20 (Compl. ¶ 12.) Parking spaces are one of the facilities, privileges, and advantages reserved by 21 Defendant to persons at the Property serving the Business. (Compl. ¶ 13.) 22 Because Defendant owns the Property, a place of public accommodation, Plaintiff alleges 23 he is responsible for the violations of the ADA that exist in the parking area and accessible 24 routes that connect the facility’s entrance that serve customers to the Business. (Compl. ¶ 14.) 25 Plaintiff alleges he would like to return to the Business but is dissuaded from doing so because of 26 a lack of compliant facilities, and once made accessible, would like to patronize the Business 27 again without fear of discrimination. (Mem. 6.) 28 / / / 3 Case 1:21-cv-00538-NONE-SAB Document 12 Filed 07/26/21 Page 4 of 25 1 C. 2 Plaintiff sought the following relief in the complaint: (1) a preliminary and permanent Relief Sought 3 injunction enjoining Defendant from further violations of the ADA, and Unruch Act, with 4 respect to its operation of the Business and Property; (2) an award of actual damages and 5 statutory damages of not less than $4,000 per violation pursuant to the Unruh Act; (3) an 6 additional award of $4,000 as deterrence damages for each violation pursuant to Johnson v. 7 Guedoir, 218 F. Supp. 3d 1096 (E.D. Cal. 2016);2 and (4) for reasonable attorneys’ fees, 8 expenses, and costs, pursuant to 42 U.S.C. § 12205; California Civil Code § 52. (Mem. 6-7.) 9 III. 10 LEGAL STANDARD FOR DEFAULT JUDGMENT “Our starting point is the general rule that default judgments are ordinarily disfavored,” as 11 12 “[c]ases should be decided upon their merits whenever reasonably possible.” NewGen, LLC v. 13 Safe Cig, LLC, 840 F.3d 606, 616 (9th Cir. 2016) (quoting Eitel v. McCool, 782 F.2d 1470, 1472 14 (9th Cir. 1986)). Pursuant to Federal Rules of Civil Procedure 55, obtaining a default judgment is 15 a two-step process. Entry of default is appropriate as to any party against whom a judgment for 16 affirmative relief is sought that has failed to plead or otherwise defend as provided by the Federal 17 Rules of Civil Procedure and where that fact is made to appear by affidavit or otherwise. Fed. R. 18 Civ. P. 55(a). After entry of default, a plaintiff can seek entry of default judgment. Fed. R. Civ. P. 19 55(b). Federal Rule of Civil Procedure 55(b)(2) provides the framework for the Court to enter a 20 default judgment: 21 (b) Entering a Default Judgment. 22 (2) By the Court. In all other cases, the party must apply to the court for a default judgment. A default judgment may be entered against a minor or incompetent person only if represented by a general guardian, conservator, or other like fiduciary who has appeared. If the party against whom a default judgment is sought has appeared personally or by a representative, that party or its representative must be served with written notice of the application at least 7 days before the hearing. The court may conduct hearings or make referrals--preserving any federal statutory right to a jury 23 24 25 26 27 28 2 As the Court finds below, while Plaintiff passingly refers to additional deterrence fees of $4,000 requested in the complaint, it does not appear Plaintiff has moved for such fees in the filed motion for default judgment, and the Court recommends only awarding the base statutory fees and no additional deterrence fees. 4 Case 1:21-cv-00538-NONE-SAB Document 12 Filed 07/26/21 Page 5 of 25 1 trial--when, to enter or effectuate judgment, it needs to: 2 (A) conduct an accounting; 3 (B) determine the amount of damages; 4 (C) establish the truth of any allegation by evidence; or 5 (D) investigate any other matter. 6 Fed. R. Civ. P. 55. 7 The decision to grant a motion for entry of default judgment is within the discretion of the 8 court. PepsiCo, Inc. v. California Security Cans, 238 F.Supp. 1172, 1174 (C.D. Cal. 2002). The 9 Ninth Circuit has set forth the following seven factors (the “Eitel factors”) that the Court may 10 consider in exercising its discretion: 11 12 13 (1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff's 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) whether the default was due to excusable neglect, and (7) the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits. 14 Eitel, 782 F.2d at 1471-72. 15 Generally, once default has been entered, “the factual allegations of the complaint, except 16 those relating to damages, will be taken as true.” Garamendi v. Henin, 683 F.3d 1069, 1080 (9th 17 Cir. 2012) (quoting Geddes v. United Fin. Grp., 559 F.2d 557, 560 (9th Cir. 1977)); see also Fed. 18 R. Civ. P. 8(b)(6) (“An allegation--other than one relating to the amount of damages--is admitted if 19 a responsive pleading is required and the allegation is not denied.”). Accordingly, the amount of 20 damages must be proven at an evidentiary hearing or through other means. Microsoft Corp. v. 21 Nop, 549 F.Supp.2d 1233, 1236 (E.D. Cal. 2008). Additionally, “necessary facts not contained in 22 the pleadings, and claims which are legally insufficient, are not established by default.” Cripps v. 23 Life Ins. Co. of North America, 980 F.2d 1261, 1267 (9th Cir. 1992) (internal citation omitted). 24 The relief sought must not be different in kind or exceed the amount that is demanded in the 25 pleadings. Fed. R. Civ. P. 54(c). 26 IV. 27 DISCUSSION 28 The Court first determines whether the Court properly has jurisdiction in this matter, and 5 Case 1:21-cv-00538-NONE-SAB Document 12 Filed 07/26/21 Page 6 of 25 1 then turns to the Eitel factors to determine whether default judgment should be entered. 2 A. Jurisdiction 3 1. Subject Matter Jurisdiction 4 Federal courts are courts of limited jurisdiction and their power to adjudicate is limited to 5 that granted by Congress. U.S v. Sumner, 226 F.3d 1005, 1009 (9th Cir. 2000). Pursuant to 28 6 U.S.C. § 1331, federal courts have original jurisdiction over “all civil actions arising under the 7 Constitution, laws, or treaties of the United States.’ “A case ‘arises under’ federal law either 8 where federal law creates the cause of action or where the vindication of a right under state law 9 necessarily turns on some construction of federal law.” Republican Party of Guam v. Gutierrez, 10 277 F.3d 1086, 1088 (9th Cir. 2002) (internal punctuation omitted) (quoting Franchise Tax Bd. 11 v. Construction Laborers Vacation Trust, 463 U.S. 1, 8–9 (1983) (citations omitted)). “[T]he 12 presence or absence of federal-question jurisdiction is governed by the ‘well-pleaded complaint 13 rule,’ which provides that federal jurisdiction exists only when a federal question is presented on 14 the face of the plaintiff’s properly pleaded complaint.” Republican Party of Guam, 277 F.3d at 15 1089 (citations omitted). 16 Plaintiff brings this action alleging violations of the Americans with Disabilities Act of 17 1990, 42 U.S.C. § 12101, et seq. Therefore, the Court has original jurisdiction under 28 U.S.C. § 18 1331. In addition, the Court has supplemental jurisdiction under 28 U.S.C. § 1367 for Plaintiff’s 19 related state law claims brought under California’s Unruh Civil Rights Act, California Civil 20 Code § 51, et seq. 21 2. Service of Process on Defendant 22 As a general rule, the Court considers the adequacy of service of process before 23 evaluating the merits of a motion for default judgment. See J & J Sports Prods., Inc. v. Singh, 24 No. 1:13-CV-1453-LJO-BAM, 2014 WL 1665014, at *2 (E.D. Cal. Apr. 23, 2014); Penpower 25 Tech. Ltd. v. S.P.C. Tech., 627 F. Supp. 2d 1083, 1088 (N.D. Cal. 2008); Mason v. Genisco 26 Tech. Corp., 960 F.2d 849, 851 (9th Cir. 1992) (stating that if party “failed to serve [defendant] 27 in the earlier action, the default judgment is void and has no res judicata effect in this action.”). 28 A person may be served by “delivering a copy of the summons and of the complaint to the 6 Case 1:21-cv-00538-NONE-SAB Document 12 Filed 07/26/21 Page 7 of 25 1 individual personally.” Fed. R. Civ. P. 4(e)(2)(A). 2 The executed summons was returned to the Court on April 19, 2021, and the affidavit of 3 service demonstrates that Defendant Gurdip Singh Sandhu was served by personally delivering 4 copies of the summons and complaint on April 15, 2021, at 3758 E. Adams, Fresno, California, 5 93725. (ECF No. 5.) The Court thus finds service has been effectuated on Defendant in this 6 matter and shall now proceed to consideration of whether the Eitel factors weigh in favor of 7 granting Plaintiff’s motion for default judgment. 8 B. 9 The Court finds that consideration of the Eitel factors weighs in favor of granting default The Eitel Factors Weigh in Favor of Granting Default Judgment 10 judgment in favor of Plaintiff. 11 1. Prejudice to Plaintiff if Default Judgment is Not Granted 12 Plaintiff filed this action on March 30, 2021, and Defendant was served on April 15, 13 2021. (ECF Nos. 1, 5.) If default judgment is not entered, Plaintiff, a disabled individual, is 14 effectively denied a remedy for the violations of the disability statutes alleged until such time as 15 the Defendant in this action decides to appear in the litigation, which may never occur. 16 Defendant has not filed an answer, a motion to dismiss, or otherwise appeared in the action; 17 Defendant failed to file any opposition to the instant motion for default judgment; and failed to 18 make an appearance at the July 21, 2021 hearing held on the instant motion. (ECF No. 11.) 19 For these reasons, the Court finds Plaintiff would be substantially prejudiced if default 20 judgment is not granted and finds this Eitel factor weighs in favor of granting default judgment 21 in favor of Plaintiff. See Vogel v. Rite Aid Corp., 992 F. Supp. 2d 998, 1007 (C.D. Cal. 2014). 22 2. The Merits of Plaintiff’s Substantive Claims and Sufficiency of Complaint 23 The second and third Eitel factors instruct the Court to evaluate the merits of the 24 substantive claims alleged in the complaint as well as the sufficiency of the complaint itself. It is 25 appropriate for the Court to analyze these two factors together. AMUR Equip. Fin., Inc. v. CHD 26 Transp. Inc., No. 117CV00416AWISKO, 2017 WL 5477379, at *5 (E.D. Cal. Nov. 15, 2017); 27 F.D.I.C. v. Quest, F.S., Inc., No. SACV 10-00710 DOC, 2011 WL 2560428, at *2 (C.D. Cal. June 28 27, 2011). In doing so, the Court looks to the complaint to determine if the allegations contained 7 Case 1:21-cv-00538-NONE-SAB Document 12 Filed 07/26/21 Page 8 of 25 1 within are sufficient to state a claim for the relief sought. Danning v. Lavine, 572 F.2d 1386, 1388 2 (9th Cir. 1978). 3 a. 4 One of the purposes of the ADA is “to provide clear, strong, consistent, enforceable Americans with Disabilities Act 5 standards addressing discrimination against individuals with disabilities.” 42 U.S.C. § 6 12101(b)(2). “Congress enacted the statute on the premise that discrimination against the disabled 7 is ‘most often the product, not of invidious animus, but rather the thoughtlessness and 8 indifference—of benign neglect.’ ” Cohen v. City of Culver City, 754 F.3d 690, 694 (9th Cir. 9 2014) (quoting Alexander v. Choate, 469 U.S. 287, 295 (1985)). “Therefore, the ADA proscribes 10 not only ‘obviously exclusionary conduct,’ but also ‘more subtle forms of discrimination—such as 11 difficult-to-navigate restrooms and hard-to-open doors—that interfere with disabled individuals’ 12 full and equal enjoyment’ of public places and accommodations.” Cohen, 754 F.3d at 694 13 (quoting Chapman v. Pier 1 Imps. (U.S.) Inc., 631 F.3d 939, 945 (9th Cir.2011)). “An ADA 14 plaintiff suffers a legally cognizable injury under the ADA if he is ‘discriminated against on the 15 basis of disability in the full and equal enjoyment of the goods, services, [or] facilities . . . of any 16 place of public accommodation.’ ” Chapman, 631 F.3d at 952 (quoting 42 U.S.C. § 12182(a)) 17 (alteration in original). 18 “To prevail on a Title III discrimination claim, the plaintiff must show that (1) she is 19 disabled within the meaning of the ADA; (2) the defendant is a private entity that owns, leases, or 20 operates a place of public accommodation; and (3) the plaintiff was denied public accommodations 21 by the defendant because of her disability.” Molski v. M.J. Cable, Inc., 481 F.3d 724, 730 (9th 22 Cir. 2007) (citing 42 U.S.C. §§ 12182(a)-(b)). Discrimination under the ADA is defined to include 23 “a failure to remove architectural barriers, . . . in existing facilities, . . . where such removal is 24 readily achievable.” 42 U.S.C. § 12182(b)(2)(A)(iv). To state a claim for discrimination under the 25 ADA because of denial of public accommodations due to “the presence of architectural barriers in 26 an existing facility, a plaintiff must allege and prove that: ‘(1) the existing facility at the 27 defendant’s place of business presents an architectural barrier prohibited under the ADA, and (2) 28 the removal of the barrier is readily achievable.’ ” Hubbard v. 7-Eleven, Inc., 433 F. Supp. 2d 8 Case 1:21-cv-00538-NONE-SAB Document 12 Filed 07/26/21 Page 9 of 25 1 1134, 1138 (S.D. Cal. 2006) (quoting Parr v. L & L Drive-Inn Rest., 96 F. Supp. 2d 1065, 1085 2 (D. Haw. 2000)); see also Wyatt v. Ralphs Grocery Co., 65 F. App’x 589, 590 (9th Cir. 2003). 3 i. Plaintiff has Established he is Disabled under the ADA 4 Plaintiff must allege that he is disabled under the ADA. Molski, 481 F.3d at 730. The 5 ADA defines disability as “a physical or mental impairment that substantially limits one or more 6 major life activities.” 42 U.S.C. § 12102(1)(A). Major life activities include walking and 7 standing. 42 U.S.C. § 12102(2)(A). Plaintiff alleges he is substantially limited in performing one 8 or more major life activities, including but not limited to: walking, standing, ambulating, and 9 sitting; that he relies on mobility devices, including at times a wheelchair, to ambulate; that he 10 qualifies as member of a protected class under the ADA, and the regulations implementing the 11 ADA; and that he suffers from a “qualified disability” under the ADA, and is also a holder of a 12 Disabled Person Parking Placard. (Compl. ¶ 1.) Plaintiff further submits a declaration attesting 13 that his circulatory and cardiovascular systems are impaired, and as a result he is subject to falls, is 14 unsteady on his feet, cannot walk for any significant distance without have to periodically rest, and 15 often relies on mobility devices. (Decl. George Avalos Supp. Pl.’s Appl. Default J. (“Avalos 16 Decl.”) ¶ 2, ECF No. 8-4.) Plaintiff also declares that physical barriers that affect him the most are 17 those related to travel and that grasping certain objects create an unnecessary danger of falling. 18 (Avalos Decl. ¶ 3.) Specific barriers that affect Plaintiff are lack of: accessible routes to and from 19 entrances, accessible routes inside facilities, accessible parking, handrails and support, and wide 20 enough doorways. (Id.) In addition to being dangerous for because of the danger of falling, these 21 types of barriers also affect Plaintiff’s ability to use either a cane, rollator, or wheelchair if he tries 22 to gain access. (Id.) 23 Taking the allegations in the complaint, as further attested to in Plaintiff’s declaration, as 24 true for purposes of default judgment, Plaintiff has adequately established this element of his ADA 25 discrimination claim. 26 27 28 ii. Plaintiff has Established Defendant Owns, Operates, or Leases a Public Accommodation Plaintiff must allege that the Defendant “owns, leases (or leases to), or operates a place of 9 Case 1:21-cv-00538-NONE-SAB Document 12 Filed 07/26/21 Page 10 of 25 1 public accommodation.” 42 U.S.C. § 12182(a); Molski, 481 F.3d at 730. 2 Plaintiff proffers that the “subject property is a business that is expressly identified as a 3 place of public accommodation, citing 42 U.S.C. § 12181(7)(B). (Mem. 9.) This section provides 4 that the following private entities are considered public accommodations: “a restaurant, bar, or 5 other establishment serving food or drink.” 42 U.S.C. § 12181(7)(B). Plaintiff alleges he visited 6 the Business to purchase a beverage, and in fact attaches a receipt demonstrating he did in fact 7 purchase a beverage on February 20, 2021. (See Ex. 3, ECF No. 8-5 at 4; Avalos Decl. ¶¶ 4, 7.) 8 Plaintiff’s counsel performed a public records search to determine the ownership of the Property, 9 attaches the results of such search, and declares that counsel has determined Defendant owns the 10 Property. (Decl. Joseph R. Manning, Jr. Supp. Pl.’s Appl. Default J. ¶ 3 (“Manning Decl.”), ECF 11 No. 8-3; Ex. 4, ECF No. 8-6 at 1-3.) 12 The Court finds Plaintiff has sufficiently alleged that the Defendant owns or operates a 13 place of public accommodation, for purposes of default judgment. 14 iii. Plaintiff was Denied Public Accommodations due to an Architectural Barrier 15 Plaintiff must allege and prove that he was denied public accommodations by a defendant 16 because of his disability. Molski, 481 F.3d at 730. Here, Plaintiff may establish such denial by 17 demonstrating the facility presents an architectural barrier prohibited under the ADA, and the 18 removal of the barrier is readily achievable. Hubbard, 433 F. Supp. 2d at 1138. 19 1) Architectural Barrier 20 Congress entrusted the Attorney General with promulgating the implementing regulations 21 for Title III. Fortyune v. Am. Multi-Cinema, Inc., 364 F.3d 1075, 1080 (9th Cir. 2004) (citing 42 22 U.S.C. § 12186(b)). Congress provided that these implementing regulations must be consistent 23 with the minimum guidelines issued by the Architectural and Transportation Barriers Compliance 24 Board, which issued its final ADA Accessibility Guidelines for Buildings and Facilities 25 (“ADAAG”) in 1991. Id. (citing 42 U.S.C. § 12186(c); 36 C.F.R. Pt. 1191, App. A). The 26 Attorney General adopted the ADAAG as the “Standards for Accessible Design,” and they lay out 27 the technical structural requirements of places of public accommodation and are applicable during 28 the design, construction, and alteration of such facilities. Id. (citing 28 C.F.R. Pt. 36, App. A). 10 Case 1:21-cv-00538-NONE-SAB Document 12 Filed 07/26/21 Page 11 of 25 1 “Whether a facility is ‘readily accessible’ is defined, in part, by the ADA Accessibility 2 Guidelines.” Chapman, 631 F.3d at 945. Plaintiff alleges he experienced a built-up curb ramp that projected from the sidewalk and 3 4 into the access aisle in violation of ADAAG § 406.5; that the slope of the curb ramp was in excess 5 of the maximum grade allowed in violation of ADAAG §§ 406.1 & 502.4; an accessible parking 6 space did not contain compliant accessible parking signage in violation of ADAAG § 502.6; and 7 an accessible parking area was not adequately marked in violation of ADAAG §§ 502.2 & 8 502.3.3.3 (Mem. 10; Compl. ¶ 11; see also Ex. 3, ECF No. 8-5 at 2-3.) Plaintiff alleges these are 9 violations of the law as a public accommodation must maintain in operable working condition 10 those features of its facilities and equipment that are required to be readily accessible to and usable 11 by persons with disabilities, 28 C.F.R. § 36.211(a) (“A public accommodation shall maintain in 12 operable working condition those features of facilities and equipment that are required to be 13 readily accessible to and usable by persons with disabilities by the Act or this part”); and 14 Defendant has failed to make alterations in a manner, to the maximum feasible extent, so that the 15 portion of the facility are readily accessible and usable to persons with disabilities, and specifically 16 those that require the use of wheelchairs, 42 U.S.C. § 12183(a)(2).4 (Mem. 10.) 17 3 The ADAAG guidelines are available at 18 https://www.ada.gov/regs2010/2010ADAStandards/2010ADAStandards_prt.pdf (last accessed July 19, 2021). “Curb ramps and the flared sides of curb ramps shall be located so that they do not project into vehicular traffic 19 lanes, parking spaces, or parking access aisles.” ADAAG § 406.5 (2010). “Curb ramps on accessible routes shall comply with 406, 405.2 through 405.5, and 405.10.” ADAAG § 406.1 (2010). “Parking spaces and access aisles 20 serving them shall comply with 302. Access aisles shall be at the same level as the parking spaces they serve. Changes in level are not permitted.” ADAAG § 502.4 (2010). “Parking space identification signs shall include the 21 International Symbol of Accessibility complying with 703.7.2.1 . . . Signs shall be 60 inches (1525 mm) minimum 22 23 24 25 26 27 28 above the finish floor or ground surface measured to the bottom of the sign.” ADAAG § 502.6 (2010). “Car parking spaces shall be 96 inches (2440 mm) wide minimum and van parking spaces shall be 132 inches (3350 mm) wide minimum, shall be marked to define the width, and shall have an adjacent access aisle complying with 502.3.” ADAAG § 502.2 (2010). “Access aisles shall be marked so as to discourage parking in them.” ADAAG § 502.3.3 (2010). 4 This section provides: [W]ith respect to a facility or part thereof that is altered by, on behalf of, or for the use of an establishment in a manner that affects or could affect the usability of the facility or part thereof, a failure to make alterations in such a manner that, to the maximum extent feasible, the altered portions of the facility are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs. Where the entity is undertaking an alteration that affects or could affect usability of or access to an area of the facility containing a primary function, the entity shall also make the alterations in such a manner that, to the maximum extent feasible, 11 Case 1:21-cv-00538-NONE-SAB Document 12 Filed 07/26/21 Page 12 of 25 1 The Court notes that even on default judgment in ADA cases, plaintiffs often present the 2 results of an investigation by an independent consultant, such as a construction expert that takes 3 measurements, in support of the claim that there is an architectural barrier. Nonetheless, taking the 4 allegations as true for purposes of default judgment as presented by Plaintiff in his complaint and 5 supported by declarations, and based on the applicable laws and regulations, the Court finds 6 Plaintiff has sufficiently alleged and demonstrated the presence of architectural barriers present at 7 the Property and Business which violate the ADA. 8 2) Whether Removal of the Architectural Barrier is Readily Achievable 9 Removal of an architectural barrier is “readily achievable” if it is “easily accomplishable 10 and able to be carried out without much difficulty or expense.” 42 U.S.C § 12181(9). Factors to 11 be considered in determining whether such removal is readily achievable include: “(A) the nature 12 and cost of the action needed under this chapter; (B) the overall financial resources of the facility 13 or facilities involved in the action; the number of persons employed at such facility; the effect on 14 expenses and resources, or the impact otherwise of such action upon the operation of the facility; 15 (C) the overall financial resources of the covered entity; the overall size of the business of a 16 covered entity with respect to the number of its employees; the number, type, and location of its 17 facilities; and (D) the type of operation or operations of the covered entity, including the 18 composition, structure, and functions of the workforce of such entity; the geographic separateness, 19 administrative or fiscal relationship of the facility or facilities in question to the covered entity.” 20 Id. Federal regulations provide examples of readily achievable steps to remove barriers including: 21 installing ramps, making curb cuts in sidewalks and entrances, widening doors, eliminating a 22 turnstile or providing an alternative accessible path, and creating designated accessible parking 23 spaces, among other examples. 28 C.F.R. § 36.304(b). 24 25 26 27 28 the path of travel to the altered area and the bathrooms, telephones, and drinking fountains serving the altered area, are readily accessible to and usable by individuals with disabilities where such alterations to the path of travel or the bathrooms, telephones, and drinking fountains serving the altered area are not disproportionate to the overall alterations in terms of cost and scope (as determined under criteria established by the Attorney General). 42 U.S.C. § 12183(a)(2). 12 Case 1:21-cv-00538-NONE-SAB Document 12 Filed 07/26/21 Page 13 of 25 1 Plaintiff argues that the question of whether removal of a barrier is readily achievable is an 2 affirmative defense that is waived unless raised, Wilson v. Haria & Gogri Corp., 479 F. Supp. 2d 3 1127, 1133 n.7 (E.D. Cal. 2007), and that where a defendant fails to appear and answer in an 4 action, a plaintiff’s allegation in the complaint regarding the achievability of barrier removal is 5 sufficient to establish that removal of the barrier is readily achievable in a default judgment setting, 6 Vogel, 992 F. Supp. 2d at 1011. (Mem. 10-11.) The Court agrees. 7 The Ninth Circuit has not decided whether the plaintiff or defendant carries the burden of 8 proving that removal of an architectural barrier is readily achievable, and the majority of district 9 courts in the circuit have applied the Tenth Circuit’s burden-shifting framework developed in 10 Colorado Cross Disability Coal. v. Hermanson Family Ltd. P’ship I, 264 F.3d 999 (10th Cir. 11 2001). See Moore v. Robinson Oil Corp., 588 F. App’x 528, 530 (9th Cir. 2014); Vogel, 992 F. 12 Supp. 2d at 1010; Ngoc Lam Che v. Boatman-Jacklin, Inc., No. 18-CV-02060-NC, 2019 WL 13 3767451, at *2 (N.D. Cal. Aug. 9, 2019). Under the Tenth Circuit’s framework, the plaintiff bears 14 the initial burden of production to present evidence that a suggested method of barrier removal is 15 readily achievable, and then the burden shifts to the defendant who bears the ultimate burden of 16 persuasion regarding the affirmative defense that the suggested method is not readily achievable. 17 Vogel, 992 F. Supp. 2d at 1010 (citing Colorado Cross, 264 F.3d at 1006). 18 Plaintiff alleges that the Defendants have failed to maintain the features required to provide 19 ready access to persons with disabilities, and that the barriers identified are easily removed without 20 undue difficulty or expense. (Compl. ¶¶ 24, 25, 26.) Plaintiff specifically alleges these are the 21 type of barriers identified by the Department of Justice as presumably readily achievable to 22 remove, and that in fact, these barriers are readily achievable to remove. (Id. at ¶ 26.) 23 Additionally, Plaintiff argues there are numerous alternative accommodations that Defendants 24 could make that would provide a greater level of access if complete removal were not achievable. 25 (Id.) 26 Plaintiff’s allegation that the removal of the barriers is readily achievable is sufficient to 27 satisfy his burden of production for purposes of default judgment. See Vogel, 992 F. Supp. 2d at 28 1011 (allegation that removal of barrier readily achievable sufficient for default judgment); 13 Case 1:21-cv-00538-NONE-SAB Document 12 Filed 07/26/21 Page 14 of 25 1 Johnson v. Hall, No. 2:11-CV-2817-GEB-JFM, 2012 WL 1604715, at *3 (E.D. Cal. May 7, 2012) 2 (same); Johnson v. Beahm, No. 2:11-CV-0294-MCE-JFM, 2011 WL 5508893, at *3 (E.D. Cal. 3 Nov. 8, 2011) (same). Defendant has failed to meet their burden because they have failed to 4 appear and present any defense in this matter. 5 For purposes of default judgment, the Court accepts Plaintiff’s allegations as true and finds 6 Plaintiff has sufficiently established that removal of the architectural barriers he encountered is 7 readily achievable. 8 b. 9 Plaintiff also brings a state law claim for violation of the California’s Unruh Civil Rights California State Law Claims 10 Act. (Compl. ¶¶ 31-34.) The Unruh Act provides that “[a]ll persons within the jurisdiction of this 11 state are free and equal, and no matter what their . . . disability . . . are entitled to the full and equal 12 accommodations, advantages, facilities, privileges, or services in all business establishments of 13 every kind whatsoever.” Cal. Civ. Code § 51(a). Unlike the ADA, the Unruh Act permits the 14 recovery of monetary damages, in the form of actual and treble damages, at a statutory minimum 15 of at least $4,000.00 per violation. Cal. Civ. Code § 52(a); Molski v. M.J. Cable, Inc., 481 F.3d 16 724, 731 (9th Cir. 2007); Vogel, 992 F. Supp. 2d at 1011. After passage of the ADA in 1990, the 17 Unruh Civil Rights Act was amended to provide that a violation of the ADA constitutes a violation 18 of the Unruh Civil Rights Act. Pickern v. Best W. Timber Cove Lodge Marina Resort, 194 F. 19 Supp. 2d 1128, 1131 (E.D. Cal. 2002); Cal. Civ. Code § 54.1(d) (“A violation of the right of an 20 individual under the Americans with Disabilities Act of 1990 . . . also constitutes a violation of this 21 section.”). 22 As Plaintiff has stated a cause of action entitling him to relief under the ADA, Plaintiff has 23 also stated a claim entitling him to relief under the Unruh Act. See Vogel, 992 F. Supp. 2d at 24 1011-12; Villegas v. Beverly Corner, LLC, No. 216CV07651CASSSX, 2017 WL 3605345, at *5 25 (C.D. Cal. Aug. 18, 2017); Johnson v. Singh, No. 2:10-CV-2547 KJM JFM, 2011 WL 2709365, at 26 *1–4 (E.D. Cal. July 11, 2011). For all of the above stated reasons, the Court finds the second and 27 third Eitel factors weigh in favor of granting default judgment in favor of Plaintiff on the ADA 28 claim and the Unruh Civil Rights Act claim. 14 Case 1:21-cv-00538-NONE-SAB Document 12 Filed 07/26/21 Page 15 of 25 1 3. The Sum of Money at Stake in the Action 2 The sum of money at stake in this action also weighs in favor of granting default 3 judgment. Default judgment is disfavored where large amounts of money are involved, or the 4 award would be unreasonable in light of the defendant’s actions. G & G Closed Circuit Events, 5 LLC v. Nguyen, No. 3:11-cv-06340-JW, 2012 WL 2339699, at *2 (N.D. Cal. May 30, 2012); 6 PepsiCo, Inc. v. California Sec. Cans, 238 F. Supp. 2d 1172, 1176 (C.D. Cal. 2002) (“Under the 7 third Eitel factor, the court must consider the amount of money at stake in relation to the 8 seriousness of Defendant’s conduct.”). In addition to injunctive relief, Plaintiff is seeking 9 statutory damages in the amount of $4,000.00, attorneys’ fees in the amount of $3,675.00, and 10 costs of $538.00, for a total award of $8,213.00. (Compl. 8-9; Mem. 15-16; Ex. 5, ECF No. 8-7 11 at 2.) This is not an excessive amount of money, nor does it seem unreasonable in light of the 12 allegations contained in the complaint. See Vogel, 992 F. Supp. 2d at 1012 (citing Moore v. 13 Cisneros, No. 1:12–cv–00188 LJO SKO, 2012 WL 6523017, *4 (E.D. Cal. Dec. 13, 2012) 14 (noting an award of $10,119.70 on default judgment in ADA discrimination case was “not a 15 relatively large sum of money, nor d[id] it appear unreasonable”)); Johnson v. Huynh, No. CIV 16 S–08–1189 JAM DAD, 2009 WL 2777021, *2 (E.D. Cal. Aug. 27, 2009) (holding injunctive 17 relief and an award of $12,000.00 for ADA violations on default judgment was “relatively small 18 award of damages”). 19 As noted above, in one section of the motion, Plaintiff restates the relief sought in the 20 complaint, including a request for “[a]n additional award of $4,000 as deterrence damages for 21 each violation,” in addition to the base amount of $4,000 in statutory fees under the Unruh Act. 22 (Mem. 6-7.) It appears based on all of the filings that Plaintiff is not seeking the additional 23 deterrence fees. 24 Specifically, the subsection addressing the Unruh Act only expressly states that “[i]n the 25 present matter, the Plaintiff is asking for one statutory minimum penalty assessment[] of 26 $4,000.00 pursuant to California Civil Code § 52, and the actual attorney fees and costs that he 27 has incurred in the amount of $4,213.00.” (Mem. 11.) In the subsection addressing the Eitel 28 factor of the “sum of money at stake,” Plaintiff states he is seeking a total of $8,213.00, which 15 Case 1:21-cv-00538-NONE-SAB Document 12 Filed 07/26/21 Page 16 of 25 1 does not include the extra sum of $4,000 in deterrence statutory fees. (Mem. 12.) Plaintiff’s 2 proposed order/judgment attached to the motion for default judgment does not include the 3 separate deterrence fee of $4,000.00, but rather only the single statutory fee of $4,000.00. (ECF 4 No. 8-8 at 2.) Plaintiff concludes the motion with the statement requesting the Court issue the 5 “proposed judgment.” (Mem. 16.) 6 Based on all of the above facts, and notice provided to the Defendant in the service of the 7 motion for default judgment, the Court finds it appropriate only to award the base statutory fee of 8 $4,000.00, and not any additional deterrence statutory fee. 9 For these reasons, the Court finds this Eitel factor weighs in favor of granting default 10 judgment in favor of Plaintiff against Defendants. 11 4. The Possibility of a Dispute Concerning Material Facts 12 The next Eitel factor considers the possibility of dispute concerning material facts. As 13 discussed above, Plaintiff has sufficiently alleged disability discrimination under the ADA and the 14 Unruh Act by demonstrating his encountering of architectural barriers at the Property and 15 Business. Defendant has failed to appear and therefore has admitted all material facts alleged in 16 Plaintiff’s complaint. See Garamendi, 683 F.3d at 1080; PepsiCo, Inc. v. California Sec. Cans, 17 238 F. Supp. 2d 1172, 1177 (C.D. Cal. 2002) (“Upon entry of default, all well-pleaded facts in the 18 complaint are taken as true, except those relating to damages.”). As the Court found above, 19 Defendant was properly served and failed to appear. Thus, there is no possibility of dispute 20 regarding the material facts due to the factual allegations in the complaint being taken as true upon 21 Defendant’s default. 22 Accordingly, the Court finds this Eitel factor weighs in favor of granting default judgment 23 in favor of Plaintiff against Defendant. 24 5. Whether the Default Was Due to Excusable Neglect 25 Defendant has failed to file a responsive pleading or otherwise appear in the action. IN 26 addition to the summons and complaint, Defendant was served with the request for entry of default 27 28 16 Case 1:21-cv-00538-NONE-SAB Document 12 Filed 07/26/21 Page 17 of 25 1 as well as the motion for default judgment. (ECF Nos. 6 at 5; 8-9 at 1-2.)5 Defendant did not file 2 any opposition to the motion for default judgment and did not make an appearance at the hearing 3 on the motion for default judgment. Given these facts, there is no indication or evidence that the 4 failure to respond was due to excusable neglect. See Shanghai Automation Instrument Co. v. 5 Kuei, 194 F. Supp. 2d 995, 1005 (N.D. Cal. 2001) (“The default of defendant . . . cannot be 6 attributed to excusable neglect. All were properly served with the Complaint, the notice of entry 7 of default, as well as the papers in support of the instant motion.”). Accordingly, the Court finds this Eitel factor weighs in favor of granting default judgment 8 9 in favor of Plaintiff against Defendant. 10 6. 11 The Strong Policy Underlying the Federal Rules of Civil Procedure Favoring Decisions on the Merits Default judgments are disfavored because “[c]ases should be decided on their merits 12 13 whenever reasonably possible.” Eitel, 782 F.2d at 1472. However, the policy favoring decisions 14 on the merits does not weigh against entering default judgment where, as here, the Defendant’s 15 failure to appear has made a decision on the merits impossible at this juncture. Given the prejudice 16 to Plaintiff if default judgment is not granted as discussed above, and the merits of the allegations 17 contained in complaint, granting default judgment in this case would not violate the general policy 18 under the Federal Rules of Civil Procedure favoring decisions on the merits. See PepsiCo, 238 F. 19 Supp. 2d at 1177 (“Defendant’s failure to answer Plaintiffs’ Complaint makes a decision on the 20 merits impractical, if not impossible. Under Fed. R. Civ. P. 55(a), termination of a case before 21 hearing the merits is allowed whenever a defendant fails to defend an action.”). Accordingly, the Court finds the policy favoring decisions on the merit does not preclude 22 23 entering default judgment against Defendants under these circumstances. 24 7. The Eitel Factors Weigh in Favor of Granting Default Judgment 25 Based on the foregoing, the Court finds that the Eitel factors weigh in favor of granting 26 27 28 5 The Court notes that the proofs of service indicate that the motion for default judgment and the request for entry of default were served via postal mail to same address as personal service of the summons and complaint was effectuated. (ECF Nos. 5; 6 at 5; 8-9 at 2.) 17 Case 1:21-cv-00538-NONE-SAB Document 12 Filed 07/26/21 Page 18 of 25 1 default judgment and recommends that Plaintiff’s motion for default judgment be granted. The 2 Court now turns to the types of relief requested by Plaintiff. 3 C. 4 In addition to injunctive relief, Plaintiff is seeking statutory damages in the amount of Relief Requested 5 $4,000.00, attorneys’ fees in the amount of $3,675.00, and costs of $538.00, for a total monetary 6 award of $8,213.00. (Compl. 8-9; Mem. 11, 15-16; Ex. 5, ECF No. 8-7 at 2.) 7 1. Injunctive Relief 8 Plaintiff seeks an injunction compelling Defendants to comply with the ADA and the 9 Unruh Civil Rights Act by providing accessible routes and parking facilities for persons with 10 disabilities at the Property and Business, and to maintain accessible facilities so they remain 11 useable for persons with disabilities. (Mem. 14-15; Compl. at 7-9.) The ADA provides that 12 “injunctive relief shall include an order to alter facilities to make such facilities readily accessible 13 to and usable by individuals with disabilities to the extent required” by the ADA. 42 U.S.C. § 14 12188(a)(2). A court may grant injunctive relief for violations of the Unruh Act under § 52.1(h). 15 Vogel, 992 F. Supp. 2d at 1015; Cal. Civ. Code § 52.1 (“An action brought pursuant to this section 16 is independent of any other action, remedy, or procedure that may be available to an aggrieved 17 individual under any other provision of law.”). “Injunctive relief may be granted ‘when 18 architectural barriers at defendant’s establishment violate the ADA.’ ” Johnson v. Pizano, No. 19 2:17-CV-1655 TLN DB, 2019 WL 2499188, at *6 (E.D. Cal. June 17, 2019) (quoting Vogel, 992 20 F.Supp.2d at 1015). 21 Pursuant to federal and California law, Plaintiff is entitled to the removal of those 22 architectural barriers which he encountered on his visit to the facility that violated the ADA. 23 Therefore, an injunction should issue requiring Defendant to ensure there are accessible routes of 24 travel and parking facilities in compliance with the Americans with Disabilities Act Accessibility 25 Guidelines. 26 2. Statutory Damages 27 Plaintiff seeks statutory damages in the amount of $4,000.00 as authorized by the 28 California Unruh Civil Rights Act. The Unruh Act provides for minimum statutory damages of 18 Case 1:21-cv-00538-NONE-SAB Document 12 Filed 07/26/21 Page 19 of 25 1 $4,000.00 for each violation. Cal. Civ. Code § 52(a). Under the Unruh Act, statutory damages 2 may be recovered if a violation of one or more construction related accessibility standards denied 3 the plaintiff full and equal access to the place of public accommodation on a particular occasion. 4 Cal. Civ. Code § 55.56(a). A plaintiff is denied full and equal access only when they personally 5 encountered the violation on a specific occasion. Cal. Civ. Code § 55.56(b). A litigant need not 6 prove any actual damages to recover statutory damages of $4,000.00. Molski, 481 F.3d at 731. As discussed above, Plaintiff sufficiently alleged violation of the ADA which established a 7 8 violation of the Unruh Act, and thus the Court finds that Plaintiff is entitled to statutory damages in 9 the amount of $4,000.00.6 10 3. Attorneys’ Fees and Costs 11 Plaintiff is requesting attorney’s fees in the amount of $3,675.00 and costs in the amount of 12 $538.00. (Mem. 15-16; Manning Decl. ¶¶ 6-8; Ex. 5, ECF No. 8-7 at 2.) Pursuant to 42 U.S.C. § 13 12205, the party that prevails on a claim brought under the ADA may recover “a reasonable 14 attorney’s fee, including litigation expenses,” at the discretion of the Court. “[U]nder federal fee 15 shifting statutes the lodestar approach is the guiding light in determining a reasonable fee.” 16 Antoninetti v. Chipotle Mexican Grill, Inc., 643 F.3d 1165, 1176 (9th Cir. 2010) (internal 17 punctuation and citations omitted). The Ninth Circuit has explained the lodestar approach as 18 follows: 19 The lodestar/multiplier approach has two parts. First a court determines the lodestar amount by multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate. The party seeking an award of fees must submit evidence supporting the hours worked and the rates claimed. A district court should exclude from the lodestar amount hours that are not reasonably expended because they are excessive, redundant, or otherwise unnecessary. Second, a court may adjust the lodestar upward or downward using a multiplier based on factors not subsumed in the initial calculation of the lodestar. The lodestar amount is presumptively the 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 both specific evidence on the record and detailed findings by the lower courts that the lodestar amount is unreasonably low or unreasonably high. 20 21 22 23 24 25 Van Gerwin v. Guarantee Mut. Life Co., 214 F.3d 1041,1045 (9th Cir. 2000) (internal citations 26 27 28 6 As the Court found above, while Plaintiff passingly referred to additional deterrence fees of $4,000 requested in the complaint, it does not appear Plaintiff has moved for such fees in the filed motion for default judgment, and the Court recommends only awarding the base statutory fees and no additional deterrence fees. 19 Case 1:21-cv-00538-NONE-SAB Document 12 Filed 07/26/21 Page 20 of 25 1 and punctuation omitted). 2 Under the lodestar method, the court will first determine the appropriate hourly rate for the 3 work performed, and that amount is then multiplied by the number of hours properly expended in 4 performing the work. Antoninetti, 643 F.3d at 1176. The district court has the discretion to make 5 adjustments to the number of hours claimed or to the lodestar, but is required to provide a clear but 6 concise reason for the fee award. Gates v. Deukmejian, 987 F.2d 1392, 1398 (9th Cir. 1992). The 7 lodestar amount is to be determined based upon the prevailing market rate in the relevant 8 community. Blum v. Stenson, 465 U.S. 886, 896 (1984). 9 10 a. Reasonable hourly rate Counsel Joseph R. Manning, Jr. (“Manning”), has been in practice since 2002, and normal 11 billing rate for ADA related work is $450.00. (Manning Decl. ¶ 7.) Manning also proffers that 12 work completed by unnamed associates are billed at an hourly rate of $375.00, and that the 13 attorneys that billed at this rate have a minimum of five (5) years of experience. (Id.) The Court 14 notes that the billing timesheet only identifies one other timekeeper identified as David Fitzgerald. 15 (ECF No. 8-7 at 2.) 16 The lodestar amount is to be determined based upon the prevailing market rate in the 17 relevant community, Blum, 465 U.S. at 896 (1984), which in this matter is the Fresno Division of 18 the Eastern District of California. “To inform and assist the court in the exercise of its discretion, 19 the burden is on the fee applicant to produce satisfactory evidence—in addition to the attorney’s 20 own affidavits—that the requested rates are in line with those prevailing in the community for 21 similar services by lawyers of reasonably comparable skill, experience and reputation.” Blum, 465 22 U.S. at 895 n.11. Plaintiff has presented no evidence regarding the reasonableness of the fees in 23 this district other than stating that the requested billing rate for Manning is a “fair rate for attorneys 24 with similar experience and expertise in this nuanced area of law,” and that the associate rate is 25 “based on average attorneys’ fees charged in the general geographic area with similar experience.” 26 (Manning Decl. ¶ 7.) Thus, the Court relies on its own knowledge of customary legal local rates 27 and experience with the legal market in setting a reasonable hourly rate. Ingram v. Oroudjian, 647 28 F.3d 925, 926 (9th Cir. 2011). 20 Case 1:21-cv-00538-NONE-SAB Document 12 Filed 07/26/21 Page 21 of 25 1 In the Fresno Division of the Eastern District of California, across a variety of types of 2 non-ADA litigation generally, attorneys with experience of twenty or more years of experience 3 are awarded $325.00 to $400.00 per hour, attorneys with ten to twenty years of experience are 4 awarded $250.00 to $350.00 per hour, attorneys with five to ten years of experience are awarded 5 $225.00 to $300.00 per hour, and less than $200.00 per hour for attorneys with less than five 6 years of experience. See In re Taco Bell Wage & Hour Actions, 222 F.Supp.3d 813, 839 (E.D. 7 Cal. 2016) (noting attorneys in Fresno Division with twenty or more years of experience are 8 awarded $350.00 to $400.00 per hour, and attorneys with less than fifteen years of experience are 9 awarded $250.00 to $350.00 per hour); Garcia v. FCA US LLC, No. 1:16-CV-0730-JLT, 2018 10 WL 1184949, at *6 (E.D. Cal. Mar. 7, 2018) (awarding $400.00 per hour to attorney with nearly 11 thirty years of experience; $300.00 per hour to attorney with nearly fifteen years of experience; 12 $250.00 per hour to attorney with ten years of experience; $225.00 per hour to attorneys 13 attorney with five years of experience; and $175.00 per hour to attorney with less than five years 14 of experience); Mike Murphy’s Enterprises, Inc. v. Fineline Indus., Inc., No. 1:18-CV-048815 AWI-EPG, 2018 WL 1871412, at *3 (E.D. Cal. Apr. 19, 2018) (awarding attorney with over 16 twenty years of experience the $325.00 per hour requested, the $300.00 per hour requested by 17 attorney with nearly twenty years of experience, and attorney with seven years of experience the 18 requested $250.00 per hour); TBK Bank, SSB v. Singh, No. 1:17-CV-00868-LJO-BAM, 2018 19 WL 1064357, at *8 (E.D. Cal. Feb. 23, 2018), report and recommendation adopted, No. 20 117CV00868LJOBAM, 2018 WL 3055890 (E.D. Cal. Mar. 21, 2018) (awarding attorneys with 21 over thirty-five years of experience $400.00 per hour, attorney with twenty years of experience 22 $350.00 per hour; and attorney with ten years of experience $300.00 per hour); Roach v. Tate 23 Publ’g & Enterprises, No. 1:15-CV-00917-SAB, 2017 WL 5070264, at *10 (E.D. Cal. Nov. 3, 24 2017) (awarding attorney with sixteen years of experience $325.00 per hour in copyright action); 25 Sanchez w. Frito-Lay, Inc., No. 1:14-cv-00797-AWI-MJS, 2015 WL 4662636, at *18 (E.D. Cal. 26 Aug. 5, 2015) (in a wage and hour class action finding reasonable rate of $350.00 per hour for 27 attorneys with more than twenty years of experience and $275.00 per hour for attorney with 28 fourteen years of experience). 21 Case 1:21-cv-00538-NONE-SAB Document 12 Filed 07/26/21 Page 22 of 25 1 Specifically, in the context of cases alleging violations of the ADA, courts in this district 2 have awarded fees ranging from $250.00 to $325.00 per hour within recent years. See Cervantes 3 v. Vargas, No. 117CV00923LJOSKO, 2018 WL 2455615, at *7 (E.D. Cal. June 1, 2018) 4 (awarding $275.00 per hour to attorney with nine years of experience and representation in 275 5 ADA actions); Block v. Christian, No. 1:16–cv–00650–LJO–SKO, 2017 WL 5248402, at *4 6 (E.D. Cal. Nov. 13, 2017) (finding $325.00 per hour to be a reasonable hourly rate for an 7 attorney with twenty-four years of experience in general litigation and twelve years working on 8 ADA cases); Trujillo v. Lakhani, No. 117CV00056LJOSAB, 2017 WL 1831942, at *8 (E.D. 9 Cal. May 8, 2017) (finding $300.00 per hour to be reasonable rate both for attorney with over 10 twenty-four years of experience in general litigation and twelve years with ADA actions and 11 attorney with sixteen years of experience in civil rights litigation and eight years of ADA 12 experience); Block v. Starbucks Corp., No. 115CV00991DADCKD, 2018 WL 4352906, at *7 13 (E.D. Cal. Sept. 11, 2018) (same); Trujillo v. Singh, No. 1:16–cv–01640–LJO–EPG, 2017 WL 14 1831941, at *3 (E.D. Cal. May 8, 2017) (finding $300.00 per hour to be a reasonable hourly rate 15 for an attorney with over fifteen years experience); Tarango v. City of Bakersfield, No. 1:16-CV16 0099-JLT, 2017 WL 5564917, at *6 (E.D. Cal. Nov. 20, 2017) (awarding $250.00 per hour to 17 attorney with less than six-years of experience but extensive experience in disability 18 discrimination, $275.00 per hour for attorney with eight years of experience, and $300.00 for 19 attorney with ten years of experience); O’Campo v. Ghoman, No. 208CV1624KJMDBPS, 2017 20 WL 3225574, at *7 (E.D. Cal. July 31, 2017) (noting various cases in Sacramento awarding 21 $300.00 per hour for attorneys with over twenty years ADA experience, and awarding $300.00 22 per hour in ADA action in Sacramento division for both an attorney with over thirty years of 23 experience, and attorney with nearly twenty years of experience); Anglin v. Barron, No. 24 117CV00974AWIJLT, 2017 WL 5713375, at *8 (E.D. Cal. Nov. 28, 2017) (awarding $300.00 25 per hour rather than the requested rate of $425.00 where counsel had nineteen years of 26 experience devoted exclusively to disability law); Johnson v. Patel, No. 217CV00573KJMCKD, 27 2017 WL 3953949, at *5 (E.D. Cal. Sept. 8, 2017) (same); Arroyo v. J.S.T. LLC, No. 28 118CV01682DADSAB, 2019 WL 4877573, at *14 (E.D. Cal. Oct. 3, 2019) (same in addition to 22 Case 1:21-cv-00538-NONE-SAB Document 12 Filed 07/26/21 Page 23 of 25 1 awarding $250 per hour for attorneys with eight years of experience), report and 2 recommendation adopted, No. 118CV01682DADSAB, 2020 WL 32322 (E.D. Cal. Jan. 2, 2020). 3 Accordingly, the Court recommends that Plaintiff receive $300.00 per hour for the services 4 of counsel Manning, and recommends that Plaintiff receive $250.00 per hour for the services of 5 counsel Fitzgerald. 6 b. 7 Counsel Manning proffers he expended 3.25 hours, and the timesheet reflects the hours Reasonable number of hours 8 were expended reviewing information from the client; drafting the complaint; reviewing client 9 correspondence regarding claims; and reviewing the motion for default judgment. (Manning Decl. 10 ¶ 7; ECF No. 8-7 at 2.) The Court finds that 3.25 hours is reasonable for counsel Manning’s work 11 on this action. 12 Manning proffers that his associate Fitzgerald expended 5.9 hours, and the timesheet 13 reflects the hours were expended examining the alleged violations of the ADA guidelines; 14 researching public records to determine ownership of the Property; preparing the materials 15 associated with the complaint; reviewing court filings; executing request for default; and drafting 16 the motion for default judgment and associated materials. (Manning Decl. ¶ 7; ECF No. 8-7 at 2.) 17 The Court finds that 5.9 hours is reasonable for counsel Fitzgerald’s work on this action. 18 c. 19 The Court finds that: (1) counsel Manning reasonably expended 3.25 hours in this action at Reasonable Attorneys’ Fee Award 20 a reasonable rate of $300.00 per hour, for a total of $975.00; and (2) counsel Fitzgerald reasonably 21 expended 5.9 hours in this action at a reasonable rate of $250.00 per hour, for a total of $1,475.00. 22 Accordingly, the Court recommends that Plaintiff be awarded attorneys’ fees in the amount 23 of $2,450.00. 24 d. 25 Both the ADA and Unruh Act authorize the award of costs for an action. See 42 U.S.C. § Costs 26 12205; Cal. Civ. Code § 52(a). Plaintiff seeks costs of $400.00 for filing fees, and $138.00 for 27 service expenses. (ECF No. 8-7 at 2.) The Court finds these expenses to be reasonable and 28 recommends awarding Plaintiff a total of $538.00 in costs. 23 Case 1:21-cv-00538-NONE-SAB Document 12 Filed 07/26/21 Page 24 of 25 1 V. 2 CONCLUSION AND RECOMMENDATION 3 The Eitel factors weigh in favor of granting default judgment, and the entry of default 4 judgment is within the discretion of the Court. See Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th 5 Cir. 1980). 6 Based upon the foregoing, the Court HEREBY RECOMMENDS that: 7 1. Plaintiff’s motion for default judgment be GRANTED; 8 2. Plaintiff be AWARDED statutory damages in the amount of $4,000.00; 9 3. Plaintiff be AWARDED reduced attorneys’ fees in the amount of $2,450.00; 10 4. Plaintiff be AWARDED costs in the amount of $538.00; and 11 5. Plaintiff be GRANTED an injunction requiring Defendants to provide disability 12 access by removing architectural barriers, providing accessible routes of travel, and 13 compliant parking facilities, at 770 North Porter Road, Porterville, California, 14 93257, in accordance with the Americans with Disabilities Act and the Americans 15 with Disabilities Act Accessibility Guidelines (ADAAG). 16 This findings and recommendations is submitted to the district judge assigned to this 17 action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within fourteen 18 (14) days of service of this recommendation, any party may file written objections to this findings 19 and recommendations with the Court and serve a copy on all parties. Such a document should be 20 captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The district judge 21 will review the magistrate judge’s findings and recommendations pursuant to 28 U.S.C. § 22 636(b)(1)(C). The parties are advised that failure to file objections within the specified time may 23 result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) 24 (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 25 / / / 26 / / / 27 / / / 28 / / / 24 Case 1:21-cv-00538-NONE-SAB Document 12 Filed 07/26/21 Page 25 of 25 Further, Plaintiff is HEREBY ORDERED to serve a copy of this findings and 1 2 recommendations on Defendant within three (3) days of entry. 3 4 IT IS SO ORDERED. 5 Dated: July 26, 2021 UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 25

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