Acosta v. Martinez.

• Court: District Court, E.D. California
• Decided: March 3, 2020
• Docket: 1:19-cv-00307
• Status: Unknown

Opinion

4 5

6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOSE ACOSTA, Case No. 1:19-cv-00307-AWI-EPG 12 Plaintiff, FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT PLAINTIFF’S 13 v. MOTION FOR DEFAULT JUDGMENT BE GRANTED IN PART 14 MARIA MARTINEZ, et al.,

15 Defendants. (ECF NO. 16) 16 17 On March 5, 2019, Plaintiff Jose Acosta (“Plaintiff”) filed this suit against Defendants 18 Maria Martinez a/k/a Maria Lourdes Martinez Vasquez d/b/a Accesorios Martinez (“Defednant 19 Martinez”) and TBS Properties, Inc. (collectively “Defendants”) for alleged violations of the 20 Americans with Disabilities Act, 42 U.S.C. §§ 12101, et seq. (“ADA”) and related California 21 statutes. (ECF No. 1.) 22 To date, neither Defendant Martinez nor TBS Properties, Inc. has filed any response to the 23 Complaint. On October 2, 2019, Plaintiff filed the instant motion for default judgment. (ECF No. 24 16.) Neither Defendant filed a response to the motion. For the reasons that follow, the Court 25 recommends that the motion for default judgment be granted in part. 26 I. BACKGROUND 27 Plaintiff filed this action on March 5, 2019, alleging causes of action under Title III of the 28 1 ADA, California’s Unruh Civil Rights Act, and the California Health and Safety Code. The 2 specifics of the allegations are addressed in more detail below, but generally, Plaintiff claims that 3 Defendants own, operate, or lease “Accesorios Martinez,” a public business affecting commerce 4 located at 108 S. Chesnut Avenue, Fresno CA 93720 (“the subject facility”). Plaintiff claims that 5 he visited the subject facility on or about January 13, 2019, to buy a gift for his niece. However, 6 he encountered “barriers” that “interfered with, if not outright denied, Plaintiff’s ability to use and 7 enjoy the goods, services, privileges and accommodations offered at the Facility.” (ECF No. 1, p. 8 2.) 9 On April 10 and April 11, 2019, Plaintiff filed proof of service into the record. (ECF Nos. 10 4-5.)1 Neither Defendant, however, responded to the Complaint. On May 15, 2019, Plaintiff filed 11 a request for default judgment against Defendants. (ECF No. 6.) On May 15 and May 16, 2019, 12 the Clerk of Court entered default against Defendants. (ECF Nos. 6-7.) On June 7, 2019, Plaintiff 13 filed a motion for default judgment against Defendants. (ECF No. 9.) Plaintiff mailed copies of 14 the motions for default judgment and all accompanying documents to Defendants at the addresses 15 at which service of process was accomplished. (ECF Nos. 9-11.) 16 Neither Defendant filed any response to the motion for default judgment. On July 12, 17 2019, the Court held a hearing on Plaintiff’s motion for default judgment. Defendant TBS 18 Properties Inc. did not appear at the hearing. Defendant Martinez, however, personally appeared 19 at the hearing pro se. Defendant Martinez spoke no English and had to communicate with the 20 Court through her daughter, who acted as an interpreter. 21 At the July 12, 2019 hearing, Plaintiff withdrew his motion for default judgment as to 22 Defendant Martinez, who indicated a desire to respond to the Complaint. The Clerk of Court 23 accordingly vacated the entry of default against Defendant Martinez. (ECF No. 7.) 24 On July 19, 2019, the Court issued an order commanding Defendant Martinez to file 25 responsive pleadings no later than September 13, 2019. (ECF No. 13.) The Court’s order set forth 26 the pertinent Federal Rules of Civil Procedure relating to responsive pleadings. 27 As for Defendant TBS Properties, Inc., the Court deferred ruling on the motion for default

28 1 The Court addresses the adequacy of service of process in the analysis section below. 1 judgment and ordered Plaintiff to notify the Court by August 16, 2019, whether he wished to 2 proceed with the motion for default judgment against that Defendant. 3 On August 16, 2019, Plaintiff filed a notice indicating a desire to proceed with default 4 judgment proceedings against both Defendants. (ECF No. 14.) Defendant Martinez failed to file 5 responsive pleadings or otherwise communicate with the Court by the September 13, 2019 6 deadline. Accordingly, on October 2, 2019, Plaintiff filed a renewed motion for default judgment 7 against Defendants. (ECF No. 16.) Plaintiff mailed copies of the motions for default judgment 8 and all accompanying documents to Defendants at the addresses at which service of process was 9 accomplished. (ECF No. 16-11.) Again, neither Defendant filed a response to the motion. 10 The Court held a hearing on the October 2, 2019 motion for default judgment on 11 November 8, 2019. Defendant TBS Properties, Inc. did not appear. Defendant Martinez again 12 appeared with her daughter. Martinez explained that she attempted to retain the services of an 13 attorney to respond to Plaintiff’s Complaint, or at least to speak with Plaintiff’s counsel about 14 resolution of the matter. (ECF No. 22, p. 2.) She stated that a lawyer tried to reach defense 15 counsel but was unable to reach him. (Id.)2 16 Defendant Martinez asked for additional time to allow her to continue to attempt to retain 17 an attorney or speak directly with Plaintiff’s counsel about the Complaint and pending motion for 18 default judgment. (Id.) Counsel for Plaintiff, Ms. Moore, provided her contact information to 19 Martinez and spoke to her in Spanish about how to reach her. (Id.) At the conclusion of the 20 November 8, 2019 hearing, the Court explained that it would hold Plaintiff’s Motion for Default 21 Judgment in abeyance until January 8, 2020, to allow Defendant Martinez time to respond to the 22 Complaint if she was unable to reach a resolution with Plaintiff. (Id. at p. 3.) But Defendant 23 Martinez failed to file responsive pleadings by the January 8, 2020 deadline, and on January 14, 24 2020, the Clerk of Court re-entered default against Defendant Martinez. Plaintiff’s motion for 25 default judgment remains pending. 26 ///

27 2 Plaintiff’s counsel, Ms. Tanya Moore, explained that prior co-counsel, Zachary Best, recently left the firm representing Plaintiff. 28 1 II. LEGAL STANDARDS FOR DEFAULT JUDGMENT 2 Federal Rule of Civil Procedure 55(b) permits a court to enter default judgment following 3 a defendant’s default. Boards of Trustees v. Energy Management, 2012 WL 1657523 at *1 (N.D. 4 Cal. 2012) (citation omitted). Rule 55 specifically provides that: 5 (a) Entering a Default. When a party against whom a judgment for affirmative relief is 6 sought has failed to plead or otherwise defend, and that failure is shown by affidavit or 7 otherwise, the clerk must enter the party’s default. 8 (b) Entering a Default Judgment 9 (1) By the Clerk. If the plaintiff’s claim is for a sum certain or a sum that can be made 10 certain by computation, the clerk—on the plaintiff’s request, with an affidavit 11 showing the amount due—must enter judgment for that amount and costs against a 12 defendant who has been defaulted for not appearing and who is neither a minor nor 13 an incompetent person. 14 (2) By the Court. In all other cases, the party must apply to the court for a default 15 judgement. A default judgment may be entered against a minor or incompetent 16 person only if represented by a general guardian, conservator, or other like 17 fiduciary who has appeared personally or by a representative, that person or its 18 representative must be served with written notice of the application at least 7 days 19 before the hearing. The court may conduct hearings or make referrals—preserving 20 any federal statutory right to a jury trial—when, to enter or effectuate judgment, it 21 needs to: 22 (A) Conduct an accounting; 23 (B) Determine the amount of damages; 24 (C) Establish the truth of any allegation by evidence; or 25 (D) Investigate any other matter. 26 Whether to enter a default judgment lies within the court’s discretion. Draper v. Coombs, 27 792 F.2d 915, 924-25 (9th Cir. 1986). The Ninth Circuit has enumerated the following factors 28 (collectively, the Eitel factors) that a court may consider in determining whether to grant default 1 judgment: (1) the possibility of prejudice to the plaintiff; (2) the merits of plaintiff’s substantive 2 claim; (3) the sufficiency of the complaint; (4) the sum of money at stake in the action; (5) the 3 possibility of a dispute concerning material facts; (6) whether the default was due to excusable 4 neglect; and (7) the strong policy underlying the Federal Rules of Civil Procedure favoring 5 decision on the merits. See Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). 6 “Upon entry of default, the well-pleaded allegations of the complaint relating to a 7 defendant’s liability are taken as true, with the exception of the allegations as to the amount of 8 damages.” PepsiCo, Inc. v. Cal. Security Cans, 238 F.Supp.2d 1172, 1175 (C.D. Cal. 2002) 9 (citation omitted). Therefore, the plaintiff is required to provide proof of all damages sought in 10 the complaint. 11 III. ANALYSIS 12 The Court first addresses its subject matter jurisdiction for entering default judgment 13 before examining the adequacy of service of process. Finally, the Court examines the Eitel factors 14 and whether same weigh in favor of entering default judgment. 15 A. Jurisdiction 16 1. Subject Matter Jurisdiction 17 Initially, the Court finds that it has subject matter jurisdiction over this suit. Pursuant to 28 18 U.S.C. § 1331, federal courts have original jurisdiction over “all civil actions arising under the 19 Constitution, laws, or treaties of the United States.” “A case ‘arises under’ federal law either 20 where federal law creates the cause of action or where the vindication of a right under state law 21 necessarily turns on some construction of federal law.” Republican Party of Guam v. Gutierrez, 22 277 F.3d 1086, 1088 (9th Cir. 2002) (internal punctuation omitted) (quoting Franchise Tax Bd. v. 23 Construction Laborers Vacation Trust, 463 U.S. 1, 8-9 (1983) (citations omitted)). 24 Here, Plaintiff alleges a cause of action pursuant to the Americans with Disabilities Act of 25 1990, 42 U.S.C. § 12101, et seq. The Court has federal question jurisdiction over this claim under 26 28 U.S.C. § 1331. The Court also has supplemental jurisdiction over the related cause of action 27 under California’s Unruh Civil Rights Act. See Generally U.S.C. § 1967. 28 /// 1 2. Service of Process on Defendants 2 “As a general rule, the Court considers the adequacy of service of process before 3 evaluating the merits of a default judgment.” Arroyo v. J.S.T. LLC, 1:18-cv-01682-DAD-SAB, 4 2019 WL 4877573 at *4 (E.D. Cal. Oct. 3, 2019) (collecting cases). 5 Under Federal Rule of Civil Procedure 4(e), service of process of the summons and the 6 complaint on an individual may be made: (1) by mailing a copy of the summons and complaint 7 to the individual defendant with a notice and request for waiver; (2) pursuant to state law; (3) by 8 delivering a copy of the summons and complaint to the individual defendant personally; (4) by 9 leaving a copy of the summons and complaint at the individual defendant’s dwelling house or 10 usual place of abode with some person of suitable age and discretion then residing therein; or (5) 11 by delivering a copy of the summons and complaint to an agent authorized by appointment or by 12 law to receive service of process. Fed. R. Civ. P. 4(e). 13 “Under California law, Code of Civil Procedure (C.C.P.) §§§ 415.10, et seq., provides that 14 service of process of the summons and complaint may be made: (1) by mailing a copy of the 15 summons and complaint to the individual defendant with a notice and acknowledgement of 16 receipt; (2) by delivering a copy of the summons and complaint to the individual defendant 17 personally; (3) by leaving a copy of the summons and complaint at the individual defendant’s 18 office; or (4) by leaving a copy of the summons and complaint at the individual defendant’s 19 ‘dwelling house, usual place of abode, usual place of business, or usual mailing address other 20 than a United States Postal Service post office box;’ plus mailing to the location at which the 21 summons and complaint have been left.” Bonita Packing Co. v. O’ Sullivan, 165 F.R.D. 610, 613 22 (C.D. Cal. 1995) (quoting C.C.P. §§ 415.10). 23 “All means other than personal delivery to the defendant are considered substituted 24 service, and personal service must have been diligently attempted before substituted service may 25 be performed.” Id. “‘Ordinarily,…two or three attempts at personal service at a proper place 26 should fully satisfy the requirement of reasonable diligence and allow substituted service to be 27 made.’” Bein v. Brechtel-Jochim Group, Inc., 8 Cal.Rptr.2d 351, 352 (Cal. App. 1992) (further 28 citations omitted). 1 As for service on a California corporation, the Federal Rules of Civil Procedure provide 2 for two ways to effectuate service. A corporation may be served in accordance with the law of the 3 state in which the service is to be made, or service may be made by delivering a copy of the 4 summons and of the complaint to an officer, a managing or general agent, or any agent, 5 authorized by appointment or by law to receive service of process. See Fed. R. Civ. P. 4(h). 6 “Under California law, service on a corporation may be made by service on the person 7 designated as agent for service of process or ‘the president, chief executive officer, or other head 8 of the corporation, a vice president, a secretary or assistant secretary, a treasurer or assistant 9 treasurer, a controller or chief financial officer, a general manager, or a person authorized by the 10 corporation to receive service of process.’” Arroyo, 2019 WL 4877573 at *2 (quoting C.C.P. § 11 416.40). 12 The Court finds that service of process was adequate here. As to Defendant Martinez, 13 after attempting personal service twice, the process server left copies of the summons, complaint, 14 and other pertinent documents with one Angel Perez at 108 S. Chesnut Ave., Fresno, CA 15 93702—the address of the subject facility and accordingly Martinez’s business address. (ECF No. 16 4.) The process server’s declaration states that Perez was Martinez’s husband, 37 years old, and 17 “apparently in charge.” (Id.) The process server then mailed a copy of the summons and the 18 complaint by first-class mail, to Martinez, at the subject facility. (Id.) This is sufficient service on 19 an individual under California law. See C.C.P. § 415.20.(b)3 20 Similarly, as for Defendant TBS Properties, the proof of service document shows that 21 substituted service was issued to Tobias Teran, the chief executive officer of TBS Properties, Inc. 22 More specifically, the process server left a copy of the summons and complaint with the 23

24 3 The section specifically states that: “[i]f a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served, as specified in Section 416.60, 416.70, 416.80, or 416.90, a summons 25 may be served by leaving a copy of the summons and complaint at the person’s dwelling house, usual place of abode, usual place of business, or usual mailing address other than a United States Postal Service post office box, in the presence of a competent member of the household or a person apparently in charge of his or her office, place of 26 business, or usual mailing address other than a United States Postal Service post box office, at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the complaint 27 by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left. Service of summons in this manner is deemed complete on the 10th day after the mailing.” 28 C.C.P. § 415.20(b). 1 corporation’s manager, James Sugar, a person at least 18 years of age and apparently in charge of 2 the office or the usual place of business of the entity served. (ECF No. 5.) The process server also 3 mailed a copy of the summons and complaint to Tobias Teran by first-class mail at the same 4 address. (Id.) Plaintiff adequately served Defendant TBS Properties, Inc. pursuant to California 5 law. See C.C.P. § 415.20. The Court now turns to whether the Eitel factors weigh in favor of 6 default judgment. 7 B. Application of the Eitel Factors 8 1. Prejudice to Plaintiff if Default Judgment is not Granted 9 The Court initially finds that Plaintiff will be prejudiced if a default judgment is not 10 granted. Plaintiff filed this lawsuit on March 5, 2019. If default judgment is not entered, Plaintiff 11 will effectively be denied relief, as it is apparent that Defendants will not appear to defend this 12 action despite adequate service of same. Accordingly, this Eitel factor weighs in favor of default 13 judgment. 14 2. The Merits of Plaintiff’s Substantive Claims and Sufficiency of 15 Complaint 16 “The second and third Eitel factors instruct the Court to evaluate the merits of the 17 substantive claims alleged in the complaint as well as the sufficiency of the complain itself. It is 18 appropriate for the court to analyze these two factors together.” Arroyo, 2019 WL 4877573 at *6 19 (citations omitted). The Court, then, examines the complaint to determine whether it states a 20 claim for the relief sought. 21 a. Americans with Disabilities Act 22 Plaintiff alleges that Defendants violated his rights under Title III of the ADA. “To prevail 23 on a Title III discrimination claim, the plaintiff must show that (1) [he] is disabled within the 24 meaning of the ADA; (2) the defendant is a private entity that owns, leases, or operates a place of 25 public accommodation; and (3) the plaintiff was denied public accommodations because of [his] 26 disability.” Molski v. MJ. Cable, Inc., 481 F.3d 724, 730 (9th Cir. 2007) (citing 42 U.S.C. §§ 27 12182(a)-(b). The ADA defines discrimination to include “a failure to remove architectural 28 barriers,…in existing facilities,…where such removal is readily achievable.” 42 U.S.C. § 1 12182(b)(2)(A)(iv). To state a claim for discrimination under the ADA because of “the presence 2 of architectural barriers in an existing facility, a plaintiff must allege and prove that: ‘(1) the 3 existing facility at the defendant’s place of business presents an architectural barrier prohibited 4 under the ADA, and (2) the removal of the barrier is readily achievable.’” Hubbard v. 7-Eleven, 5 Inc., 433 F.Supp.2d 1134, 1138 (S.D. Cal. 2006) (quoting Parr v. L & L Drive-Inn Rest., 96 6 F.Supp.2d 1065, 1085 (D. Haw. 2000)). 7 (i) Plaintiff has Established that He is Disabled under 8 the ADA 9 Initially, Plaintiff alleges that he is substantially limited in his ability to walk and must use 10 a wheelchair for mobility. The ADA defines disability to include substantial limitations upon an 11 ability to walk. See 42 U.S.C. § 12102. Taking Plaintiff’s allegations as true for purposes of this 12 motion, Plaintiff has adequately established disability under the ADA. 13 (ii) Plaintiff has Established Defendants Own, 14 Operate, or Lease a Public Accommodation 15 Plaintiff must allege that each Defendant “is a private entity that owns, leases or operates 16 a place of public accommodation.” Molski, 481 F.3d at 730. Plaintiff alleges that the subject 17 facility is a public accommodation and that he went there to buy a gift. The ADA expressly 18 defines sales establishments as public accommodations. See 42 U.S.C. § 12181(7)(E). Plaintiff 19 also expressly alleges that each Defendant either owns, leases, or operates the public 20 accommodation. Again, such allegations are accepted as true for purposes of this default 21 judgment motion. 22 (iii) Plaintiff was Denied Public Accommodations due 23 to an Architectural Barrier 24 Next, Plaintiff must demonstrate that he was denied public accommodations due to an 25 architectural barrier. Under the ADA, the Attorney General is responsible for promulgating the 26 implementing regulations for Title III. Fortyune v. Am. Multi-Cinema, Inc., 364 F.3d 1075, 1080 27 (9th Cir. 2004) (citing 42 U.S.C. § 12186(b)). In Fortyune, the Ninth Circuit examined the 28 history of ADA implementing regulations related to public accommodation accessibility: 1 Congress further provided that these implementing regulations must be consistent with the minimum guidelines issued by the Architectural and Transportation 2 Barriers Compliance Board (“the Access Board”). See 42 U.S.C. § 12186(c). The Access Board provided a notice and comment period for its proposed ADA 3 guidelines in 1991, see 56 Fed.Reg. 2296-01 (Jan. 22, 1991), and issued its final ADA Accessibility Guidelines for Buildings and Facilities (“ADAAG”) later that 4 year. See 56 Fed.Reg. 35,408 (July 26, 1991) (codified at 36 C.F.R. Pt. 36, App. A.) These standards lay out the technical structural requirements of places of 5 public accommodation and are applicable “during the design, construction, and alteration of such buildings and facilities…under the [ADA].” See id. App. A, § 1. 6 Id. at 1080-81. 7 The Ninth Circuit has stated that the ADAAG guidelines provide the “objective contours 8 of the standard that architectural features must not impede disabled individuals’ full and equal 9 enjoyment of accommodations.” Chapman v. Pier 1 Imports (U.S.), Inc., 631 F.3d 939, 945 (9th 10 Cir. 2011) (citing Pascuiti v. N.Y. Yankees, 87 F.Supp.2d 221, 225 (S.D.N.Y. 1999) (quoting a 11 letter in which the Department of Justice stated that it “consider[ed] any element in a facility that 12 does not meet or exceed the requirements set forth in the [ADAAG] to be a barrier to access.”). 13 Here, Plaintiff alleges the subject facility deviated from the ADAAG in two respects. 14 First, Plaintiff alleges that there were no designated accessible parking stalls at the subject facility 15 and, as a result, Plaintiff had to park in a standard parking space, which lacked an access aisle. 16 Plaintiff is correct that, under the 1991 ADAAG standards, public accommodations must offer 17 accessible parking stalls. See 28 C.F.R., Part 36, App. D. § 4.1.5 (requiring public 18 accommodations to offer at least one accessible parking stall). Accordingly, Plaintiff has alleged a 19 violation of the ADAAG and an architectural barrier under the ADA. These allegations are taken 20 as true for purposes of this motion. 21 Plaintiff next alleges that “the path of travel along the front of the building leading to the 22 entrance was obstructed by the front of vehicles parked adjacent to the building and mannequins 23 displayed on a sidewalk. Accordingly, Defendants failed to provide and maintain proper clear 24 width of the accessible route of travel from the parking to the entrance, pursuant to 1991 ADAAG 25 § 4.3.2 and 2010 Standards § 403.5.1” (ECF No. 16-1, p. 5.) The ADAAG require an accessible 26 route of travel from the accessible parking to the accessible building entrance they serve. See 28 27 C.F.R., Part 36, App. D. § 4.3.2 (requiring at least one accessible route from accessible parking to 28 1 the accessible building entrance). Thus, the Court also finds that these allegations, taken as true 2 for purposes of this default judgment motion, demonstrate a violation of the ADAAG and, 3 accordingly, an architectural barrier under the ADA.4 4 This does not end the inquiry, however. The Court must also determine that removal of 5 the architectural barriers is readily achievable. Removal of an architectural barrier is “readily 6 achievable” if it is “easily accomplishable and able to be carried out without much difficulty or 7 expense.” 42 U.S.C. § 12181(9). 8 Plaintiff argues that it does not bear the burden of proof as to whether the required 9 changes are readily achievable; instead, Plaintiff contends that whether the barriers are readily 10 achievable is an affirmative defense that is waived unless raised. And, because Defendants have 11 not answered the complaint, the defense is waived here. 12 “The Ninth Circuit has not decided whether the plaintiff or defendant carries the burden of 13 proving that removal of an architectural barrier is readily achievable, and the majority of district 14 courts in the circuit have applied the Tenth Circuit’s burden-shifting framework developed in 15 Colorado Cross Disability Coal v. Hermanson Family Ltd. P’ship I, 264 F.3d 999 (10th Cir. 16 2010).” Arroyo, 2019 WL 4877573 at *10 (collecting cases). Under the Tenth Circuit framework, 17 the plaintiff must initially produce evidence that a suggested method of barrier removal is readily 18 achievable, and then the burden shifts to the defendant who bears the ultimate burden of 19 persuasion regarding the affirmative defense that the suggested method is not readily achievable. 20 Colorado Cross, 263 F.3d at 1006. 21 Here, Plaintiff alleges that removal of the barriers is readily achievable. This is sufficient 22 to satisfy his burden under the Colorado Cross framework. See Vogel v. Rite Aid Corp., 992 23 F.Supp. 2d 998, 1011 (C.D. Cal. 2014) (finding that allegation that removal of barrier readily 24 achievable is sufficient for purposes of default judgment); Johnson v. Hall, 2:11-cv-2817-GEM- 25

4 As Plaintiff correctly observes, in 2012, new federal accessibility standards for alterations and new construction 26 went into effect, known as the 2010 ADA Standards for Accessible Design (“2010 Standards”). 28 C.F.R. § 35.151. Alterations to facilities after March 15, 2012, must comply with the 2010 standards. Thus, the 2010 standards govern 27 any injunction that issues here. Under the 2010 standards, like the 1991 ADAAG standards, public accommodations must include designated accessible parking stalls and an accessible route of travel from the parking to the entrance. 28 See 2010 Standards §§ 208.2, 403.5.1, and 502. 1 JFM, 2012 WL 1604715 at *3 (E.D. Cal. May 7, 2012) (same). “Defendants have failed to meet 2 their burden because they have failed to appear and present any defense in this matter.” Arroyo, 3 2019 WL 4877573 at *10 (finding that the plaintiff in a default judgment proceeding adequately 4 demonstrated removal of barriers was readily achievable when he alleged same and the 5 defendants failed to appear). 6 Accordingly, Plaintiff has adequately shown violations of Title III of the ADA for 7 purposes of this default judgment motion. 8 b. California State Law Claim5 9 Plaintiff also brings a cause of action under California’s Unruh Civil Rights Act, which 10 provides in pertinent part that “[a]ll persons within the jurisdiction of this state are free and equal, 11 and no matter what their…disability…are entitled to the full and equal accommodations, 12 advantages, facilities, privileges, or services in all business establishments of every kind 13 whatsoever.” C.C.P. § 51(a). “Unlike the ADA, the Unruh Act permits the recovery of monetary 14 damages, in the form of actual and treble damages, at a statutory minimum of at least $4,000 per 15 violation.” Arroyo, 2019 WL 4877573 at *10 (citing C.C.P. § 52(a)). A violation of the ADA also 16 constitutes a violation of the Unruh Act. C.C.P. § 54.1(d) (“A violation of the right of an 17 individual under the Americans with Disabilities Act of 1990…also constitutes a violation of this 18 section.”). 19 The Court has already determined that Plaintiff adequately demonstrated a violation of the 20 ADA for purposes of default judgment; thus, Plaintiff has adequately demonstrated a violation of 21 the Unruh Act as well. See Vogel, 992 F.Supp.2d at 1011-12; Villegas v. Beverly Corner, LLC, 22 2:16-cv-07651 CASSSX, 2017 WL 3605345 at *5 (C.D. Cal. Aug. 18, 2017). Therefore, the 23 second and third Eitel factors support default judgment here. 24

25 5 Plaintiff’s Complaint also references a cause of action under California’s Health and Safety Code §19953. However, Plaintiff’s brief does not reference this cause of action. Thus, to the extent such a claim is alleged, the Court finds that Plaintiff has failed to demonstrate entitlement to a default judgment. See S.A. ex rel. L.A. v. Exeter 26 Union School Dist., 1:09-cv-00834, 2009 WL 1953462 at *8 (E.D. Cal. July 7, 2009) (“When seeking a default judgment, a plaintiff should provide the Court with points and authorities containing citations to authority showing 27 that the plaintiff’s claim or claims include allegations of all the necessary elements required for entitlement to relief. It is the parties’ burden to demonstrate to the Court that under the pertinent law, the plaintiff’s claims, as alleged, are 28 legally sufficient.”). 1 3. The sum of Money at Stake in this Action 2 Next, the Court considers the sum of money at stake in the action, with a lower sum 3 supporting default judgment. See G & G Closed Circuit Events, LLC v. Nguyen, 3:11-cv-06340- 4 JW, 2012 WL 2339699 at *2 (N.D. Cal. May 30, 2012); PepsiCo Inc., 238 F.Supp.2d at 1176. 5 (“Under the third Eitel factor, the court must consider the amount of money at stake in relation to 6 the seriousness of Defendant’s conduct.”). 7 Here, Plaintiff seeks statutory fees in the amount of $4,000.00, $1,870.50 in attorney fees, 8 and costs in the amount of $797.43. The Court does not find these amounts to be excessive. 9 Accordingly, the third Eitel factor weighs in favor of default judgment. See, e.g, Arroyo, 2019 10 WL 4877573 at *10 (finding that the third Eitel factor supported default judgment in ADA case 11 where the plaintiff sought $4,000.00 in statutory damages, $4,000.00 in attorney fees, and 12 $650.00 in costs); Moore v. Cisneros, 12-cv-00188-LJO-SKO, 2012 WL 6523017 at *4 (E.D. 13 Cal. Dec. 13, 2012) (noting an award of $10,119.70 on default judgment in ADA discrimination 14 case was “not a relatively large sum of money, nor d[id] it appear unreasonable”). 15 4. The Possibility of a Dispute Concerning Material Facts 16 The Court finds there is no possibility of a dispute concerning material facts. Plaintiff 17 adequately alleged violations of the ADA and Unruh Act, and those allegations are taken as true 18 due to Defendants failure to appear despite adequate service of process. See PepsiCo Inc., 238 19 F.Supp.2d at 1177 (“[U]pon entry of default, all well-pleaded facts in the complaint are taken as 20 true, except those facts related to damages.”). This Eitel factor supports default judgment. 21 5. Whether the Default was Due to Excusable Neglect 22 The Court finds that the default in this matter was not due to excusable neglect. 23 Defendants were adequately served with notice of the Complaint—as well as this motion— and 24 failed to respond. As to Defendant Martinez in particular, the Court twice postponed the default 25 judgment proceedings to allow her time to consult an attorney and determine how to best proceed. 26 The second order noted that the default judgment motion would be held in abeyance until January 27 8, 2020 and warned Defendant Martinez that the Court would issue an order potentially granting 28 the default judgment if she did not respond to the Complaint by that date. While the Court is 1 sympathetic to Defendant Martinez’s situation, the failure to respond to Plaintiff’s Complaint in 2 the year since it was filed is not due to excusable neglect. 3 Accordingly, the Court finds that this Eitel factor weighs in favor of granting default 4 judgment against Defendants. 5 6. The Strong Policy Underlying the Federal Rules of Civil Procedure 6 Favoring Decisions on the Merits 7 Although the Court notes the general policy against default judgment, that policy does not 8 preclude default judgment here. This is so because Defendants’ failure to appear “has made a 9 decision on the merits impossible at this juncture.” Arroyo, 2019 WL 4877573 at *11. 10 Accordingly, the Court finds that the policy favoring decisions on the merits, as with all 11 the Eitel factors, supports default judgment and recommends that Plaintiff’s motion for default 12 judgment be granted. 13 C. Relief Requested 14 1. Injunctive Relief 15 Plaintiff seeks injunctive relief. Specifically, Plaintiff seeks an injunction compelling 16 Defendants to comply with the ADA and the California Unruh Civil Rights Act by removing the 17 barriers identified in the Complaint (i.e. lack of accessible parking stalls and obstructed route of 18 travel along the front of the building). Pursuant to the ADA, “injunctive relief shall include an 19 order to alter facilities to make such facilities readily accessible to and usable by individuals with 20 disabilities to the extent required” by the ADA. 42 U.S.C. § 12188(a)(2). Under federal and state 21 law, Plaintiff is entitled to an injunction requiring Defendants to remove the architectural barriers 22 that he encountered during his visit to the subject facility that violated the ADA. See Arroyo, 23 2019 WL 4877573 at *12 (recommending injunctive relief under similar circumstances where the 24 plaintiff alleged non-compliance with the ADA due to obstructed paths of travel at the subject 25 property). Thus, an injunction should issue commanding Defendants to provide an accessible 26 parking stall and to provide accessible paths of travel to the subject facility in compliance with 27 the 2010 ADA Standards for Accessible Design. 28 /// 1 2. Statutory Damages 2 Plaintiff seeks statutory damages of $4,000.00 in accordance with the Unruh California 3 Civil Rights Act, which provides for minimum statutory damages of $4,000.00 for each violation. 4 C.C.P. § 52(a). “Under the Unruh Act, statutory damages may be recovered if a violation of one 5 or more construction related accessibility standards denied the plaintiff full and equal access to 6 the place of public accommodation on a particular occasion.” Arroyo, 2019 WL 4877573 at *12 7 (citing C.C.P. § 55.56(a)). A litigant need not prove actual damages to recover statutory damages 8 under the California Unruh Civil Rights Act. 9 Here, the Court finds that Plaintiff has adequately established violations of the ADA for 10 purposes of this default judgment motion, which, in turn, establish violations of California’s 11 Unruh Civil Rights Act. Therefore, Plaintiff is entitled to recover statutory damages in the amount 12 of $4,000.00. 13 3. Attorney Fees and Costs 14 The party that prevails on a claim under the ADA may recover “a reasonable attorney’s 15 fee, including litigation expenses,” at the Court’s discretion. “[U]nder the federal fee shifting 16 statutes the lodestar amount is the guiding light in determining a reasonable fee.” Antoninetti v. 17 Chipotle Mexican Grill, Inc., 643 F.3d 1165, 1176 (9th Cir. 2010) (internal punctuations and 18 citations omitted). “The ‘lodestar’ amount is calculated by multiplying the number of hours the 19 prevailing party reasonably expended on the litigation by a reasonable hourly rate.” Ferland v. 20 Conrad Credit Corp., 244 F.3d 1145, 1149 n.4 (9th Cir. 2001) (citations omitted). “Counsel for 21 the prevailing party should make a good faith effort to exclude from a fee request hours that are 22 excessive, redundant, or otherwise unnecessary…” Hensley v. Eckerhart, 461 U.S. 424, 434 23 (1983). 24 As to the reasonable hourly rate, reasonable hourly rates are calculated by reference to 25 “prevailing market rates in the relevant community,” with a special emphasis on fees charged by 26 lawyers of “comparable skill, experience, and reputation.” Davis v. City of San Francisco, 976 27 F.2d 1536, 1546 (9th Cir. 1992), vacated on other grounds, 984 F.2d 345 (9th Cir. 1993). 28 Generally, when determining a reasonable hourly rate, the relevant community is the forum in 1 which the district court sits. Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 979 (9th Cir. 2008) 2 (citation omitted). 3 a. Reasonable Hourly Rate 4 Here, Plaintiff seeks attorney fees for two attorneys, Zachary M. Best and Tanya E. 5 Moore, and two paralegals, Whitney Law and David Guthrie. Plaintiff proposes $300.00 per hour 6 as a reasonable hourly rate for each attorney. Plaintiff proposes a $115.00 an hour rate for 7 paralegal Law and a $95.00 an hour rate for paralegal Guthrie. In support, Plaintiff states that Mr. 8 Best has been practicing law for over 25 years and regularly bills at $550.00 an hour, and that Ms. 9 Moore has been practicing law for 19 years and regularly bills at $475.00 an hour. Additionally, 10 Ms. Law has more than 10 years of experience and regularly bills at $150.00 an hour, while Mr. 11 Guthrie has over five years of experience and regularly bills at $120.00 an hour. 12 Courts in this district have found these billing rates reasonable for Mr. Best, Ms. Moore, 13 Mr. Guthrie, and Ms. Law. See, e.g, Blocks v. Starbucks Corp., No. 15-cv-00991, 2018 WL 14 4352906 at *7-8 (E.D. Cal. Sept. 11, 2018) (finding identical rates for Mr. Best, Ms. Moore, Mr. 15 Guthrie, and Ms. Law to be reasonable); Trujillo v. Singh, 16-cv-01640-LJO-EPG, 2017 WL 16 1831941 at *2, 2017 LEXIS 70092 at *3 (E.D. Cal. May 8, 2017) (same). The undersigned 17 follows suit and finds that the rates sought for Plaintiff’s counsel and paralegals are reasonable. 18 b. Hours Reasonably Expended 19 Turning to the second part of the lodestar analysis, the hours reasonably expended, Mr. 20 Best spent 1.5 hours on this matter, which consisted primarily of reviewing and revising filings, 21 including the complaint, request for default, and motion for a default judgment. See (ECF No. 16- 22 3, p. 2-3). Ms. Moore spent 1.1 hours on this matter, which consisted of reviewing information 23 provided by the client and correspondence with the client. The Court finds that the hours 24 expended by Mr. Best and Ms. Moore were reasonable. 25 Turning to the paralegals, Mr. Guthrie spent 4.7 hours on this matter, which consisted of 26 factual research regarding owners and proprietors of the subject facility, drafting the complaint, 27 revising the complaint, sending the summons and complaint out for service, reviewing proof of 28 service, and filing proof of service. The Court finds that these tasks were mostly reasonable. 1 However, the Court will recommend deduction of .5 hours for filing the proofs of service and 2 sending the summons and complaint out for service, as these tasks are secretarial in nature and 3 not compensable. See Nadarajah v. Holder, 569 F.3d 906, 921 (9th Cir. 2009) (reducing fees for 4 clerical tasks such as filing and organization); see also Sterling v. Savings Bank v. Sequoia 5 Crossing LLC, Civ. No. 09-555-AC, 2010 WL 3210855 at *7 (D. Or. Aug 11, 2010) (“Tasks 6 considered clerical include, but are not limited to, filing motions with the court, filling out and 7 printing documents, preparing affidavits and drafting certificates of service, organizing files, 8 calendaring dates, rescheduling depositions, and sending documents.”). Thus, the Court finds that 9 Mr. Guthrie reasonably expended 4.2 hours on this matter. 10 As for Ms. Law, Plaintiff seeks 5.6 hours, which generally consists of reviewing and 11 revising the complaint; sending default letters to Defendants; preparing the request for entry of 12 default; preparing the notice of motion for default judgment, proposed judgment, and supporting 13 declarations; revising the motion for default judgment; and creating exhibits accompanying the 14 motion for default judgment. The Court finds that the entirety of Ms. Law’s 5.6 hours were 15 reasonably expended. 16 Accordingly, the Court’s recommended lodestar figures are as follows: 17 Name Hours Hourly Rate Total 18 Zachary M. Best 1.5 $300.00 $450.00 19 Tanya E. Moore 1.1 $300.00 $330.00 20 Whitney Law 5.6 $115.00 $644.00 21 David Guthrie 4.2 $95.00 $399.00 22 Thus, the total amount of recommended attorney fees is $1,823.00. 23 c. Costs 24 Plaintiff also seeks $797.43 in costs. In section 12205 of the ADA, Congress authorized a 25 district court, in its discretion, to award the prevailing party its litigation expenses and costs. 42 26 U.S.C. § 12205. “The term ‘litigation expenses’ in section 12205 has been interpreted to include 27 ‘the same out-of-pocket expenses that are recoverable under 42 U.S.C. § 1988.’” Riker v. 28 1 Distillery, 2:08-cv-00450-MCE-JFM, 2009 WL 4269466 at *5 (E.D. Cal. Nov. 25, 2009) 2 (quoting Robbins v. Scholastic Book Fairs, 928 F.Supp. 1027, 1037 (D. Or. 1996) (discussing the 3 legislative intent of section 12205 and finding that “litigation expenses” under section 12205 4 include the same out-of-pocket expenses that are recoverable under 42 U.S.C. § 1988. Under 5 section 1988, Plaintiff may recover those out-of-pocket expenses that “would normally be 6 charged to a fee-paying client.” Harris v. Marhoefer, 24 F.3d 16, 19 (9th Cir. 1994). 7 Here, however, Plaintiff has not provided any itemized breakdown of costs. Plaintiff states 8 that such information is contained in Ms. Moore’s declaration (ECF No. 4), but the Court is 9 unable to locate it. As the Court is unable to determine how Plaintiff arrived at the $797.43 10 number, and because Plaintiff offers no proof in support of his request for costs, the Court 11 recommends that Plaintiff’s request for costs be denied. 12 IV. CONCLUSION AND RECOMMENDATIONS 13 Based on the foregoing, the Court HEREBY RECOMMENDS that: 14 1. Plaintiff’s motion for default judgment be granted as to his claims under the ADA and 15 California’s Unruh Civil Rights Act; 16 2. Plaintiff be awarded statutory damages in the amount of $4,000.00; 17 3. Plaintiff be awarded attorney fees in the amount of $1,823.00; 18 4. Plaintiff be GRANTED an injunction requiring Defendants to (1) provide a properly 19 configured, located and identified accessible parking stall with an adjacent access 20 aisle, and (2) provide and maintain proper clear width of the route of travel from the 21 designated accessible parking to the entrance of the subject facility; and 22 5. Plaintiff’s request for costs be denied. 23 These findings and recommendations are submitted to the district judge assigned to the 24 case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within thirty days after being 25 served with these findings and recommendations, any party may file written objections with the 26 Court, such a document should be captioned “Objections to Magistrate Judge’s Findings and 27 Recommendations.” Plaintiff is advised that failure to file objections within the specified time 28 may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 1 | 2014) (citation omitted). 2 Finally, the Clerk of Court is directed to mail a copy of these findings and 3 || recommendations to Defendant Maria Martinez at 108 S. Chestnut Avenue, Fresno CA, 93702. 4 IT IS SO ORDERED.

6 | Dated: _ March 3, 2020 [Jee ey □□ 7 UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19