Johnson v. VN Alliance LLC et al, No. 5:2018cv01372 - Document 26 (N.D. Cal. 2019)

Court Description: ORDER GRANTING 23 PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT. Signed by Judge Beth Labson Freeman on 6/18/2019. (blflc3S, COURT STAFF) (Filed on 6/18/2019)

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1 2 UNITED STATES DISTRICT COURT 3 NORTHERN DISTRICT OF CALIFORNIA 4 SAN JOSE DIVISION 5 6 SCOTT JOHNSON, Case No. 18-cv-01372-BLF Plaintiff, 7 ORDER GRANTING PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT v. 8 9 VN ALLIANCE LLC, [Re: ECF 23] Defendant. 10 United States District Court Northern District of California 11 12 In this action, Plaintiff Scott Johnson asserts claims under Title III of the Americans with 13 Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101, et seq. and the California Unruh Civil 14 Rights Act (“Unruh Act”), Cal. Civ. Code §§ 51–53. See generally Complaint, ECF 1. Plaintiff 15 seeks injunctive relief along with statutory damages, attorney’s fees, and costs of suit. Id. 16 Defendant VN Alliance LLC (“VN Alliance”) failed to answer the complaint or to 17 otherwise appear in this matter. Therefore, at Mr. Johnson’s request, the Clerk of Court entered 18 default as to VN Alliance on May 9, 2018. Entry of Default, ECF 13. Now before the Court is 19 Mr. Johnson’s Motion for Default Judgment (“Motion”). Motion, ECF 23. Because VN Alliance 20 has not appeared in this case, there is no notice requirement for either the entry of default or 21 Plaintiff’s motion1 for default judgement. See Fed. R. Civ. P. 55(a), (b)(2). VN Alliance did not 22 oppose or otherwise respond to the Motion. Briefing on the matter is now closed. Civ. L.R. 7- 23 3(a). This matter was previously deemed suitable for determination without oral argument. See 24 ECF 25. For the reasons discussed below, the Court GRANTS Plaintiff’s motion for default 25 judgment. 26 27 28 1 The docket indicates that Mr. Johnson served his original motion papers (ECF 21) by mailing them to VN Alliance’s registered agent for service of process on January 29, 2019. See Proof of Service, ECF 21-9. However, Mr. Johnson withdrew the motion at ECF 21, see ECF 22, replacing it with the instant motion at ECF 23. 1 2 BACKGROUND According to his complaint, Plaintiff is a level C-5 quadriplegic who cannot walk and has 3 significant manual dexterity impairments. Mr. Johnson says he uses a wheelchair for mobility and 4 has a specially equipped van. Complaint ¶ 1. Defendant VN Alliance LLC (“VN Alliance”) is the 5 alleged owner of the Caravelle Inn (“Inn”) in San Jose, California, and of the parcel of real 6 property where the Inn is located. Complaint ¶¶ 2–11. 7 United States District Court Northern District of California I. Mr. Johnson alleges that barriers at the Inn prevented him from enjoying full and equal 8 access at the facility. Specifically, the complaint alleges that Mr. Johnson visited the Inn on 9 several occasions, including on May 2017, August 2017, October 2017, and November 2017. 10 Complaint ¶ 16. During each of those visits, he says he encountered the following types of access 11 barriers: 12 1. Mr. Johnson claims that persons with disabilities cannot access the parking lot serving 13 the Inn. The parking spaces did not have the required “Minimum Fine $250” or tow- 14 away signages. Complaint ¶ 20. The access aisles for these parking spaces did not 15 have the required “NO PARKING” lettering or the required blue border. Complaint 16 ¶¶ 22–23. Finally, non-disabled individuals parked in the supposedly handicap parking 17 spaces and access aisles with impunity. Complaint ¶ 24. 18 2. In addition, Mr. Johnson claims that people with disabilities encounter difficulties 19 accessing the Inn’s guestrooms. Complaint ¶¶ 26–31. Mr. Johnson claims that he 20 requires two beds: one for himself and one for his aide, but the Inn does not provide 21 rooms with two beds. Complaint ¶ 29. Finally, Mr. Johnson claims that restrooms 22 within these guestrooms do not have proper protective covering. See Motion at 11; see 23 also Photos & Receipts from Johnson at 8, Ex. 4 to Motion, ECF 23-6. 24 3. Mr. Johnson claims that he encountered multiple physical barriers at the Inn. 25 Complaint ¶¶ 36–38. At the entrance to the Inn, he alleges that the door’s hardware is 26 “a pull bar style handle that requires tight grasping to operate.” Complaint ¶ 37. 27 Finally, Mr. Johnson claims that he had to conduct transactions over a counter that is 28 55-inches high. Complaint ¶¶ 41–44. 2 According to Mr. Johnson, the barriers he encountered “caused him difficulty, discomfort, 1 2 and embarrassment.” Complaint ¶ 46. While he says would like to return and patronize the Inn, 3 Mr. Johnson claims that he “will be deterred from visiting until the defendants remove the 4 barriers.” Complaint ¶ 53. 5 II. LEGAL STANDARD Default may be entered against a party who fails to plead or otherwise defend an action, United States District Court Northern District of California 6 7 who is neither a minor nor an incompetent person, and against whom a judgment for affirmative 8 relief is sought. Fed. R. Civ. P. 55(a). 9 After entry of default, a court may, in its discretion, enter default judgment. Fed. R. Civ. 10 P. 55(b)(2); Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). In deciding whether to enter 11 default judgment, a court may consider the following factors: (1) the possibility of prejudice to the 12 plaintiff; (2) the merits of the plaintiff’s substantive claim; (3) the sufficiency of the complaint; 13 (4) the sum of money at stake in the action; (5) the possibility of a dispute concerning material 14 facts; (6) whether the default was due to excusable neglect; and (7) the strong policy underlying 15 the Federal Rules of Civil Procedure favoring decisions on the merits. Eitel v. McCool, 782 F.2d 16 1470, 1471–72 (9th Cir. 1986). In considering these factors, all factual allegations in the 17 plaintiff’s complaint are taken as true, except those relating to damages. TeleVideo Sys., Inc. v. 18 Heidenthal, 826 F.2d 915, 917–18 (9th Cir. 1987). When the damages claimed are not readily 19 ascertainable from the pleadings and the record, a court may hold a hearing to conduct an 20 accounting, determine the amount of damages, establish the truth of any allegation by evidence, or 21 investigate any other matter. Fed. R. Civ. P. 55(b)(2). 22 III. DISCUSSION 23 “When entry of judgment is sought against a party who has failed to plead or otherwise 24 defend, a district court has an affirmative duty to look into its jurisdiction over both the subject 25 matter and the parties.” In re Tuli, 172 F.3d 707, 712 (9th Cir. 1999). The Court discusses in turn 26 jurisdiction, service of process, the Eitel factors, and Plaintiff’s requested relief. 27 A. 28 Federal question jurisdiction is based on Mr. Johnson’s ADA claim for relief. 28 U.S.C. Jurisdiction 3 United States District Court Northern District of California 1 § 1331. The Court has supplemental jurisdiction over his California Unruh Act claim pursuant to 2 28 U.S.C. § 1367. 3 This Court is also satisfied that personal jurisdiction exists over VN Alliance. Mr. 4 Johnson’s complaint indicates that VN Alliance is a California company that owns the Inn and the 5 real property in San Jose, California, on which the Inn is located. Complaint ¶¶ 2–11. See Daimler 6 AG v. Bauman, 571 U.S. 117, 137 (2014) (stating that a corporation’s general jurisdiction is its 7 place of incorporation or principal place of business); Goodyear Dunlop Tires Operations, S.A. v. 8 Brown, 564 U.S. 915, 924 (2011) (stating that general jurisdiction for a corporation is where it is 9 fairly regarded as at home). 10 B. 11 Pursuant to Rule 4(h)(1)(B) of the Federal Rules of Civil Procedure, a domestic 12 13 14 15 Service of Process corporation may be served: by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process and—if the agent is one authorized by statute and the statute so requires—by also mailing a copy of each to the defendant. Fed. R. Civ. P. 4(h)(1)(B). Alternatively, Rule 4 provides that service on a corporation may be 16 made by “following state law for serving a summons in an action brought in courts of general 17 jurisdiction in the state where the district court is located or where service is made.” Fed. R. Civ. 18 19 P. 4(e)(1), (h)(1)(A). California Code of Civil Procedure section 416.10 provides that a corporation may be 20 served by “delivering a copy of the summons and the complaint . . . [t]o the person designated as 21 agent for service of process” or “[t]o the president, chief executive officer, or other head of a 22 23 24 25 26 27 corporation, a vice president, a secretary or assistant secretary, a treasurer or assistant treasurer, a controller or chief financial officer, a general manager or person authorized by the corporation to receive service of process.” Cal. Code Civ. Proc. § 416.10(a), (b). Mr. Johnson successfully served VN Alliance on April 2, 2018, by delivering copies of the summons and complaint via personal service to an officer of the company, Cindy Vu. See Returned Summons, ECF 11; Public Records at 12, Ex. 5 to Motion, ECF 23-7. As such, the 28 4 1 Court is satisfied that Mr. Johnson gave VN Alliance proper service of process under both the 2 Federal Rules of Civil Procedure and the California Code of Civil Procedure. 3 C. 4 For the reasons to be discussed, the Eitel factors weigh in favor of entering default 5 judgment. 6 United States District Court Northern District of California 7 Eitel Factors 1. The possibility of prejudice to Mr. Johnson The first Eitel factor requires the Court to consider whether Mr. Johnson would be 8 prejudiced if default judgment is not entered. Unless default judgment is entered, Mr. Johnson 9 will have no other means of recourse against VN Alliance. As such, there would be prejudice 10 against Mr. Johnson. See, e.g., Ridola v. Chao, 2018 WL 2287668, at *5 (N.D. Cal., May 18, 11 2018) (finding that the plaintiff would be prejudiced if default judgment were not entered because 12 she “would have no other means of recourse against Defendants for the damages caused by their 13 conduct”). 14 2. The merits of Mr. Johnson’s claims and the sufficiency of the complaint 15 Pursuant to the second and third Eitel factors, this Court concludes that the complaint 16 17 18 alleges meritorious substantive claims for relief. a. ADA Title III, 42 U.S.C. § 12101, et seq. Title III of the ADA prohibits discrimination by places of public accommodation: “No 19 individual shall be discriminated against on the basis of disability in the full and equal enjoyment 20 of the goods, services, facilities, privileges, advantages, or accommodations of any place of public 21 accommodation by any person who owns, leases (or leases to), or operates a place of public 22 accommodation.” 42 U.S.C. § 12182(a). For purposes of Title III, discrimination includes “a 23 failure to remove architectural barriers . . . in existing facilities . . . where such removal is readily 24 achievable.” Id. § 12182(b)(2)(A)(iv). “Readily achievable” is defined as “easily accomplishable 25 and able to be carried out without much difficulty or expense.” Id. § 12181(9). 26 27 28 i. Mr. Johnson’s Article III Standing To establish Article III standing for an ADA claim, Mr. Johnson must demonstrate he suffered an injury in fact, traceable to VN Alliance’s conduct, and redressable by a favorable court 5 1 decision. Ridola, 2018 WL 2287668 at *5 (citing Hubbard v. Rite Aid Corp., 433 F. Supp. 2d 2 1150, 1162 (S.D. Cal. 2006)). Mr. Johnson argues that he suffers from a disability within the 3 meaning of the ADA. See Motion at 10. He also alleges that the Inn denied him goods and 4 services offered to its non-disabled guests, and he personally encountered barriers to full and equal 5 access of the Inn’s facilities. Complaint ¶¶ 45–47. As discussed above, Mr. Johnson claims that 6 he did not have access to the handicapped parking space. Complaint ¶ 19. Mr. Johnson also 7 alleges that he requires a guestroom with two beds, but the Inn only has rooms with a single bed. 8 Complaint ¶ 29. He encountered difficulties entering the entrance of the Inn. Complaint ¶¶ 36– 9 37. He says that the Inn’s transaction counter is too high for use by persons in wheelchairs. 10 Complaint ¶¶ 42–44. The complaint further alleges that VN Alliance failed to maintain the facilities in useable United States District Court Northern District of California 11 12 and working condition for disabled persons, and it failed to remove some of the specified barriers. 13 Complaint ¶¶ 47–48. Moreover, Mr. Johnson claims that he is deterred from returning to the Inn 14 because of the alleged barriers. Complaint ¶¶ 53–54. See Vogel v. Rite Aid Corp., 992 F. Supp. 15 2d 998, 1008 (C.D. Cal. 2014) (“Indeed, ‘[d]emonstrating an intent to return to a non-compliant 16 accommodation is but one way for an injured plaintiff to establish Article III standing to pursue 17 injunctive relief. A disabled individual also suffers a cognizable injury if he is deterred from 18 visiting a noncompliant public accommodation because he has encountered barriers related to his 19 disability there.’”) (quoting Chapman v. Pier 1 Imports (U.S.), Inc., 631 F.3d 939, 949 (9th Cir. 20 2011)). 21 Mr. Johnson’s factual allegations are accepted as true by VN Alliance’s default, and an 22 award of statutory damages and injunctive relief would redress Mr. Johnson’s alleged injuries. 23 Accordingly, this Court finds that Mr. Johnson has Article III standing to sue under the ADA. 24 25 ii. ADA Claim Elements To prevail on his Title III discrimination claim, Mr. Johnson must show that (1) he is 26 disabled within the meaning of the ADA; (2) VN Alliance is a private entity that owns, leases, or 27 operates a place of public accommodation; and (3) he was denied public accommodations by VN 28 Alliance because of his disability. See Molski v. M.J. Cable, Inc., 481 F.3d 724, 730 (9th Cir. 6 1 2007). To succeed on an ADA claim based on architectural barriers, Mr. Johnson “must also 2 prove that: (1) the existing facility presents an architectural barrier prohibited under the ADA; and 3 (2) the removal of the barrier is readily achievable.” Ridola, 2018 WL 2287668 at *5 (citations 4 omitted). Assuming the truth of the complaint’s factual allegations, Mr. Johnson has established that United States District Court Northern District of California 5 6 he has a disability within the meaning of the ADA. Under the ADA, a physical impairment that 7 substantially affects a major life activity, such as walking, qualifies as a disability. 42 U.S.C. 8 §§ 12102(1)(A), 12102(2)(A). As discussed above, Mr. Johnson says he is a C-5 quadriplegic 9 who uses a wheelchair for mobility. Complaint ¶ 1. Mr. Johnson further alleges that VN Alliance 10 owns the Inn, a place of public accommodation. Complaint ¶¶ 2–11; see 42 U.S.C. § 12181(7)(A) 11 (listing “an inn, hotel, or other place of lodging” as a public accommodation). Mr. Johnson also 12 alleges that during several visits to the Inn, he personally encountered access barriers with respect 13 to the parking lot, sleeping accommodations, and entrance to the Inn and guestrooms. Complaint 14 ¶¶ 18–47. 15 Mr. Johnson contends that the alleged barriers violate the current 2010 Standards of the 16 ADA Accessibility Guidelines (“ADAAG”). The ADAAG provide “objective contours of the 17 standard that architectural features must not impede disabled individuals’ full and equal enjoyment 18 of accommodations.” Chapman, 631 F.3d at 945. As such, “a violation of the ADAAG 19 constitutes a barrier under the ADA.” Ridola, 2018 WL 2287668 at *7. However, Mr. Johnson 20 incorrectly applies the 2010 Standards to his claims. It is the Court’s understanding that the 1991 21 Standards apply to construction completed before March 15, 2012, and that the 2010 Standards 22 apply to construction or alterations after that date. See id. Here, Mr. Johnson submits public 23 records showing that the Inn was constructed prior to March 2012, see Public Records at 3, 24 ECF 23-7, but does not submit evidence that construction or alteration has been made to the Inn 25 since March 15, 2012. Accordingly, the Court applies the 19912 ADAAG Standards. However, 26 27 2 28 The Court notes that even if the 2010 Standards applied, the Court would still find that VN Alliance violated the ADAAG. 7 1 the 2010 Standards govern any injunction that the Court issues, as all remedial work will be 2 undertaken after March 15, 2012. 3 Mr. Johnson claims that the Inn’s failure to provide accessible parking spaces violates the 4 2010 Standards. Under the 1991 Standards, one in every eight accessible parking spaces must be 5 van accessible. 28 C.F.R. Pt. 36, App. A § 4.1.2(5)(b). During Mr. Johnson’s visits to the Inn, he 6 did not encounter any compliant parking spaces. Complaint ¶¶ 19–24. Therefore, the Court 7 agrees with Mr. Johnson’s allegations that the lack of van accessible parking represents a violation 8 of the ADA. United States District Court Northern District of California 9 In addition, Mr. Johnson alleges that the Inn failed to offer two beds in the designated 10 accessible guestrooms. Complaint ¶ 29. Indeed, § 9.1.4 of the 1991 Standards requires that places 11 of lodging have accessible rooms and that “such rooms must be dispersed among the various 12 classes of sleeping accommodations to provide a range of options applicable to room size, costs, 13 amenities, and number of beds.” Ridola, 2018 WL 2287667 at *7; see also 1991 ADAAG, 28 14 C.F.R. Pt. 36, App. D §§ 9.1.2, 9.1.4. The 1991 Standards require that places of lodging with as 15 few as 1 to 25 rooms for rent have at least one room with the required mobility features. 28 16 C.F.R. Pt. 36, App. A § 9.1.2. Here, Mr. Johnson submits that the Inn has at least 1 to 25 rooms 17 for rent and alleges that none of the guestrooms at the Inn had two beds. Complaint ¶ 29; see also 18 Motion at 11. Assuming the truth of Mr. Johnson’s allegations, the Court is satisfied that VN 19 Alliance’s guestrooms constitute a violation of the ADA. 20 Furthermore, Mr. Johnson alleges issues with the Inn’s doors. The Inn’s entrance door is 21 “a pull bar style handle that required tight grasping to operate.” Complaint ¶ 37. The 1991 22 Standards provide: “Handles, pulls, latches, locks, and other operating devices on accessible doors 23 shall have a shape that is easy to grasp with one hand and does not require tight grasping, tight 24 pinching, or twisting of the wrist to operate.” 28 C.F.R. Pt. 36, App. A § 4.13.9. Therefore, 25 assuming the truth of Mr. Johnson’s allegation regarding the Inn’s doorknobs, the Court finds 26 these facilities in violation of the ADA. 27 28 Finally, Mr. Johnson alleges that the Inn’s transaction counter was more than 36 inches high, and no lowered 36-inch portion of the counter could be used by persons in wheelchairs. 8 1 Complaint ¶¶ 42–43. The 1991 Standards provide that for hotel counters, a portion of the main 2 counter which is a minimum of 36 in (915 mm) in length shall be provided with a maximum 3 height of 36 in (915 mm).” 28 C.F.R. Pt. 36, App. A § 7.2(2)(i). If the main counter does not 4 meet these requirements, then “an auxiliary counter with a maximum height of 36 in (915 mm) in 5 close proximity to the main counter shall be provided.” 28 C.F.R. Pt. 36, App. A § 7.2(2)(ii). 6 Assuming the truth of Mr. Johnson’s allegations, the Court also finds that the height of the Inn’s 7 counters violated portions of the ADA. 8 United States District Court Northern District of California 9 As for the “readily achievable” element of his ADA claim, citing Wilson v. Haria & Gogri Corp., 479 F. Supp. 2d 1127 (E.D. Cal. 2007), Mr. Johnson argues that this is an affirmative 10 defense that is waived unless raised by the defendant. See Motion at 12. Therefore, Mr. Johnson 11 believes that this affirmative defense has been waived because VN Alliance has not appeared in 12 this matter. See id. 13 “The Ninth Circuit has yet to decide who bears the burden of proving that removal of an 14 architectural barrier is readily achievable.” Johnson v. Altamira Corp., 2017 WL 1383469, at *3 15 (N.D. Cal., Mar. 27, 2017) (internal citation and quotation omitted). On one hand, several federal 16 courts, including district courts within the Ninth Circuit, follow the burden-shifting framework 17 articulated by the Tenth Circuit. See, e.g., Vogel, 992 F. Supp. 2d at 1010 (citing Colorado Cross 18 Disability v. Hermanson Family, Ltd., 264 F.3d 999 (10th Cir. 2001)). Under the Colorado Cross 19 burden-shifting analysis, the plaintiff bears the initial burden of production to show that a 20 suggested method for removing a barrier is readily achievable, and the defendant bears the 21 ultimate burden of persuasion on an affirmative defense that removal of a barrier is not readily 22 achievable. See id. (citing Colorado Cross, 264 F.3d at 1006). On the other hand, at least in the 23 historic facilities context, the Ninth Circuit declined to adopt the Colorado Cross burden-shifting 24 framework and instead placed the burden of production squarely upon the defendant as “the party 25 with the best access to information regarding the historical significance of the building.” Molski v. 26 Foley Estates Vineyard and Winery, LLC, 531 F.3d 1043, 1048 (9th Cir. 2008). Although limited 27 to the historic facilities context, Foley Estates recognized that Congress relies on private 28 individuals to enforce the ADA and noted the general principle espoused by the Colorado Cross’s 9 1 dissent: “‘[i]f plaintiffs must all but present the court with a pre-approved construction contract for 2 a sum certain which includes detailed plans, impact statements, engineering studies, and permits to 3 meet their threshold burden, virtually no plaintiff could afford to bring an architectural barrier 4 removal claim under 42 U.S.C. § 12182(b)(2)(A)(iv).’” Id. at 1048–49 (quoting Colorado Cross, 5 264 F.3d at 1011). “We need not require an ADA plaintiff to undertake such heroic measures.” 6 Id. at 1049. United States District Court Northern District of California 7 Regardless of who bears the burden of proof, Foley Estates’ general observations, as well 8 as cases applying the Colorado Cross burden-shifting framework, suggest that the plaintiff’s 9 initial burden, at least in the default judgment context, is not onerous. See, e.g., Johnson v. Hall, 10 2012 WL 1604715, at *3 (E.D. Cal., May 7, 2012) (concluding that the plaintiff met his burden 11 where the complaint’s allegation that the barriers “are readily removable” was deemed true on 12 default and where he sought injunctive relief to remove barriers if it was readily achievable to do 13 so); Johnson v. Beahm, 2011 WL 5508893, at *3 (E.D. Cal., Nov. 8, 2011) (same). 14 In this action, Mr. Johnson alleges that the identified barriers are “easily removed without 15 much difficulty or expense” and “are the types of barriers identified by the Department of Justice 16 as presumably readily achievable to [be] remove[d] . . . .” Complaint ¶ 54. Additionally, the 17 complaint alleges that “there are numerous alternative accommodations” to provide people with 18 disabilities a greater level of access even if VN Alliance could not achieve a complete removal of 19 barriers. Complaint ¶ 54. Mr. Johnson alleges that VN Alliance could easily fix these barriers 20 without great cost. Complaint ¶ 55. 21 Federal regulations provide a non-exclusive list of steps to remove barriers, including 22 “[i]nstalling accessible door hardware,” 28 C.F.R. § 36.304(b)(11), and courts have observed that 23 the listed items are “examples of readily achievable steps to remove barriers . . . .” Altimira Corp., 24 2017 WL 1383469, at *3; see also Vogel, 992 F. Supp. 2d at 1011 (concluding that the plaintiff 25 met his initial burden of showing that the barrier removal was readily achievable where he alleged 26 that the defendant had the financial resources to remove the barriers without difficulty, but refused 27 to do so, and where many of the barriers in question were among those listed in 28 C.F.R. 28 § 36.304(b)). Moreover, at the default judgment stage, courts have found allegations similar to 10 1 Mr. Johnson’s allegations sufficient to show that the removal of the barriers at issue is readily 2 achievable. See, e.g., Ridola, 2018 WL 2287668 at *11 (concluding that the plaintiff met her 3 initial burden with respect to the defendant motel’s sleeping accommodations, as well as other 4 alleged barriers listed in 28 C.F.R. § 36.304(b)); Altimira, 2017 WL 1383469, at *3 (concluding 5 that the plaintiff met his burden with respect to the defendant’s sales counter and other alleged 6 barriers) (citing Hall, 2012 WL 1604715, at *3)). United States District Court Northern District of California 7 Here, VN Alliance defaulted and has not defended this action. Thus, VN Alliance has 8 failed to meet its burden to show that removal of the identified barriers is not readily achievable. 9 Moreover, even if Mr. Johnson bears the burden of proving that removal of the barrier is not 10 readily achievable, the Court finds that in this default proceeding Mr. Johnson has satisfied this 11 burden. In sum, the Court finds that Mr. Johnson has met the requisite ADA claim elements. 12 13 b. Unruh Act Claim “Any violation of the ADA necessarily constitutes a violation of the Unruh Act.” MJ 14 Cable, Inc., 481 F.3d at 731 (citing Unruh Act, Cal. Civ. Code § 51(f)). Thus, to the extent Mr. 15 Johnson has an ADA claim based on the Inn’s sleeping accommodations, entrance door, and 16 transaction counter, he also has an Unruh Act claim based on those barriers. 17 18 3. The amount of money at stake This Eitel factor requires the Court to consider the sum of money at stake in relation to the 19 seriousness of a defendant’s conduct. Love v. Griffin, 2018 WL 4471073, at *5 (N.D. Cal., Aug. 20 20, 2018). Mr. Johnson seeks only statutory damages under the Unruh Act. While the sum 21 requested is not insignificant, the Court finds it proportional to the conduct alleged. 22 23 4. The possibility of a dispute concerning material facts and whether VN Alliance’s default was due to excusable neglect Under the fourth and fifth Eitel factors, the Court considers whether there is a possibility of 24 a dispute over any material fact and whether VN Alliance’s failure to respond was the result of 25 excusable neglect. Love, 2018 WL 4471073 at *5; Ridola, 2018 WL 2287668 at *13. Because 26 Mr. Johnson pleads plausible claims for violations of the ADA and the Unruh Act, and as all 27 liability-related allegations are deemed true, there is nothing before the Court that indicates a 28 11 1 possibility of a dispute as to material facts. Moreover, there is no indication that VN Alliance’s 2 default was due to excusable neglect. VN Alliance has not appeared or responded in this action, 3 suggesting that it has chosen not to present a defense in this matter. Accordingly, these factors 4 weigh in favor of default judgment. United States District Court Northern District of California 5 5. The strong policy favoring decisions on the merits 6 While the Court prefers to decide matters on the merits, VN Alliance’s failure to 7 participate in this litigation makes that impossible. See Ridola, 2018 2287668 at *13 (“Although 8 federal policy favors decision on the merits, Rule 55(b)(2) permits entry of default judgment in 9 situations, such as this, where a defendant refuses to litigate.”). Default judgment therefore is Mr. 10 Johnson’s only recourse. See United States v. Roof Guard Roofing Co, Inc., 2017 WL 6994215, 11 at *3 (N.D. Cal., Dec. 14, 2017) (“When a properly adversarial search for the truth is rendered 12 futile, default judgment is the appropriate outcome.”). 13 D. 14 Because this Court concludes that default judgment is warranted, it now considers Mr. Requested Relief 15 Johnson’s request for injunctive relief, statutory damages under the Unruh Act, and attorney’s fees 16 and costs. 17 18 1. Injunctive Relief Mr. Johnson requests an order directing VN Alliance to bring one of its hotel rooms at the 19 Inn into compliance with the 2010 ADAAG Standards. See Motion at 2. Plaintiff’s proposed 20 judgment (ECF 23-1) also includes injunctive relief regarding the transaction counter. However, 21 the Court does not read Plaintiff’s motion for default judgment as requesting this relief. See 22 generally Motion. Therefore, Plaintiff’s request for injunctive relief with respect to the transaction 23 counter is denied. 24 Aggrieved individuals “may obtain injunctive relief against public accommodations with 25 architectural barriers, including ‘an order to alter facilities to make such facilities readily 26 accessible to and usable by individuals with disabilities.’” MJ Cable, Inc., 481 F.3d at 730 27 (quoting 42 U.S.C. § 12188(a)(2)). Injunctive relief is also available under the Unruh Act. See 28 Cal. Civ. Code § 52.1(h). “A plaintiff need not satisfy ‘[t]he standard requirements for equitable 12 1 relief . . . when an injunction is sought to prevent the violation of a federal statute [that] 2 specifically provides for injunctive relief.’” Love, 2018 WL 4471073 at *6 (quoting Moeller v. 3 Taco Bell, 816 F. Supp. 2d 831, 859 (N.D. Cal. 2011)). Thus, injunctive relief is proper under the 4 ADA where the plaintiff establishes that “architectural barriers at the defendant’s establishment 5 violate the ADA and the removal of the barriers is readily achievable.” Ridola, 2018 WL 2287668 6 at *13 (citing Moreno v. La Curacao, 463 Fed. Apps. 669, 670 (9th Cir. 2011)). For the reasons 7 discussed above, Mr. Johnson has done so here. Accordingly, the Court grants Mr. Johnson’s 8 request for injunctive relief to bring one of the Inn’s guestrooms in line with the 2010 ADAAG 9 Standards. 10 United States District Court Northern District of California 11 2. Statutory Damages Monetary damages are not available in private suits under Title III of the ADA. MJ Cable, 12 Inc., 481 F.3d at 730 (citing Wander v. Kaus, 304 F.3d 856, 858 (9th Cir.2002)). However, the 13 Unruh Act provides a minimum statutory damages award of $4,000 “for each occasion an 14 individual is denied equal access to an establishment covered by the Unruh Act . . . .” Ridola, 15 2018 WL 2287668 at *15 (citing Cal. Civ. Code § 52(a)). Mr. Johnson “need not prove [he] 16 suffered actual damages to recover the independent statutory damages of $4,000.” MJ Cable, Inc., 17 481 F.3d at 731. As such, Mr. Johnson requests damages of $4,000 for the barriers he 18 encountered, and the Court finds that Mr. Johnson has established his entitlement to that award. 19 20 3. Attorney’s Fees and Costs Mr. Johnson requests $6,313 in attorney’s fees and $630 in costs. See Motion at 2; Billing 21 Statement, Ex. 7 to Motion, ECF 23-9. However, in support of attorney’s fees, Plaintiff submits 22 two billing statement with different billing rates. See Decl. of Dennis Price at 9, Ex. 1 to Motion, 23 ECF 23-3; see also Billing Statement at 2, Ex. 7 to Motion, ECF 23-9. Because Plaintiff’s 24 attorney’s declaration in support of fees only mentions the lower rates, the Court’s only evidence 25 of the billing rates corresponds to the lower rates. See Decl. of Dennis Price ¶¶ 7–11, Ex. 1 to 26 Motion, ECF 23-3. Therefore, the Court awards attorney’s fees based on the lower rates. 27 28 The ADA gives courts the discretion to award attorney’s fees, including litigation expenses and costs, to prevailing parties. MJ Cable, Inc., 481 F.3d at 730 (citing 42 U.S.C. § 12205). 13 1 Additionally, the Unruh Act provides that “[i]n addition to any damages, injunction, or other 2 equitable relief awarded in an action brought pursuant to [Cal. Civ. Code § 52.1(b)], the court may 3 award the petitioner or plaintiff reasonable attorney’s fees.” Cal. Civ. Code § 52.1(h). 4 5 lodestar approach. “The most useful starting point for determining the amount of a reasonable fee 6 is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly 7 rate.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983), abrogated on other grounds by Tex. State 8 Teachers Ass’n. v. Garland Indep. Sch. Dist., 489 U.S. 782 (1989). The party seeking an award of 9 fees should submit evidence supporting the hours worked and rates claimed. Id. 10 United States District Court Northern District of California Whether calculating attorney’s fees under California or federal law, courts follow the “In determining a reasonable hourly rate, the district court should be guided by the rate 11 prevailing in the community for similar work performed by attorneys of comparable skill, 12 experience, and reputation.” Chalmers v. City of Los Angeles, 796 F.2d 1205, 1210–11 (9th Cir. 13 1986), reh’g denied, amended on other grounds, 808 F.2d 1373 (9th Cir. 1987) (citing Blum v. 14 Stenson, 465 U.S. 886, 895 n.11 (1984)). The fee applicant has the burden of producing evidence, 15 other than declarations of interested counsel, that the requested rates are in line with those 16 prevailing in the community for similar services by lawyers of reasonably comparable skill, 17 experience and reputation. Blum, 465 U.S. at 896 n.11. “Affidavits of the plaintiffs’ attorney . . . 18 setting a rate for the plaintiffs’ attorney, are satisfactory evidence of the prevailing market rate.” 19 United Steelworkers of America v. Phelps Dodge Co., 896 F.2d 403, 407 (9th Cir. 1990). 20 Here, Mr. Mark Potter, Mr. Russell Handy, and Ms. Phyl Grace charged $425 per hour 21 while Ms. Christina Carson and Mr. Dennis Price charged $350 per hour. See Decl. of Dennis 22 Price at 9, Ex. 1 to Motion, ECF 23-3. The attorneys who charged $425 per hour spent 7.0 hours 23 on the case while the attorneys who charged $350 per hour worked 4.3 hours on the case. See id. 24 As such, Plaintiff’s attorneys spent a total of 11.3 hours on the case for a total of $4,480 in 25 attorney fees. Plaintiff cites several decisions from the Northern District of California to support 26 the reasonableness of Plaintiff attorneys’ hourly rates. See Motion at 16 (citing Armstrong v. 27 Brown, 805 F. Supp. 2d 918, 922–23 (N.D. Cal. 2011) (Appendix A); Elder v. National 28 Conference of Bar Examiners, C-11-00199-SI, 2011 WL 4079623 (N.D. Cal. Sept. 12, 2011)). 14 1 The Court has reviewed the experience of Plaintiff’s attorneys. See Decl. of Dennis Price, Ex. 1 to 2 Motion, ECF 23-3. Here, the rates of Plaintiff’s attorneys appear to be reasonable given the 3 history of rates charged in the Northern District of California in ADA cases. See Motion at 16. 4 Additionally, the Court has reviewed the itemized statement of Plaintiff’s counsel’s legal work 5 and finds no issue with the amount of time or activities that plaintiff’s counsel has conducted. See 6 Decl. of Dennis Price at 9, Ex. 1 to Motion, ECF 23-3. Accordingly, the Court finds no issue with 7 the fees charged by Plaintiff’s attorneys. In addition, Mr. Johnson has substantiated his request for $630 in filing fees and service 8 United States District Court Northern District of California 9 costs. See generally Complaint (confirming receipt number and payment of the $400 filing fee); 10 see Billing Statement, Ex. 7 to Motion, ECF 23-9 (billing statement for investigator fees and 11 service costs). In sum, the Court awards $4,480 in attorney’s fees and $630 in costs, for a total award of 12 13 14 15 $5,110 in fees and costs. IV. CONCLUSION For the foregoing reasons, IT IS ORDERED THAT: 16 1. Mr. Johnson’s motion for default judgment is granted. 17 2. Mr. Johnson is awarded statutory damages in the amount of $4,000. 18 3. Mr. Johnson is awarded $5,110 in attorney’s fees and costs. 19 4. Mr. Johnson is granted an injunction requiring VN Alliance to bring one of its guestrooms 20 at the Inn into compliance with the 2010 ADAAG Standards no later than six months after 21 service of this injunction. 22 Mr. Johnson shall promptly serve VN Alliance with this Order and file a proof of service 23 with the Court. 24 25 26 27 28 IT IS SO ORDERED. Dated: June 18, 2019 ______________________________________ BETH LABSON FREEMAN United States District Judge 15

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