1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ORLANDO GARCIA, Case No. 21-cv-05079-DMR
8 Plaintiff, ORDER GRANTING MOTION FOR 9 v. DEFAULT JUDGMENT
10 TEGSTI WOLDEMICHAEL, Re: Dkt. No. 31 11 Defendant.
12 13 Plaintiff Orlando Garcia filed a complaint against Defendant Tegsti Woldemichael, owner 14 of La Dolce Vita, an establishment in Oakland, California. Garcia alleges that Woldemichael 15 violated the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq. and the Unruh 16 Civil Rights Act, Cal. Civ. Code section 51 et seq. Woldemichael previously appeared in this 17 action through counsel but subsequently failed to respond or defend himself.1 Accordingly, 18 Garcia filed this motion for default judgment. [Docket No. 31.] On July 13, 2022, 19 Woldemichael’s counsel submitted a sworn declaration representing that Defendant does not 20 oppose the motion and counsel did not intend to appear for the scheduled motion hearing on July 21 14, 2022. Declaration of Dan T. Danet (“Danet Decl.”) ¶ 7 [Docket No. 35.] Accordingly, the 22 court vacated the hearing and ruled that the matter may be resolved without a hearing. [Docket 23 No. 36.] See Civ. L.R. 7-1(b). For the following reasons, the court grants Garcia’s unopposed 24 motion for default judgment. 25 26
27 1 Both parties consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C. § 636(c). 1 I. BACKGROUND 2 Garcia is a person with disabilities who suffers from cerebral palsy and manual dexterity 3 issues. Compl. ¶ 1. He cannot walk and uses a wheelchair for mobility. Woldemichael owns La 4 Dolce Vita, an establishment located at 3931 Telegraph Avenue in Oakland. Id. ¶ 3. La Dolce 5 Vita is a facility open to the public, a place of public accommodation, and a business 6 establishment. Id. ¶ 9. 7 Garcia visited La Dolce Vita in May 2021 with “the intention to avail himself of its goods 8 or services” and to assess the business for compliance with disability access laws. Compl. ¶ 8. He 9 alleges that Woldemichael failed to provide wheelchair-accessible dining surfaces inside and 10 outside the establishment. Id. ¶ 10. One problem he personally encountered was a lack of 11 sufficient knee or toe clearance for wheelchair users. Id. ¶¶ 12, 15. He also alleges his belief that 12 “there are other features of the dining surfaces that likely fail to comply with the ADA Standards,” 13 but he does not describe any other specific violations. See id. ¶ 13. Garcia claims that these 14 violations caused him difficulty and discomfort. Id. ¶¶ 15-17. He intends to return to the 15 establishment but is currently deterred from doing so due to these accessibility barriers. Id. ¶ 20. 16 Garcia filed the complaint on June 30, 2021 and served Woldemichael with the summons 17 and complaint on July 27, 2021. [Docket Nos. 1, 8.] Counsel for Woldemichael subsequently 18 entered an appearance. On September 20, 2021, Garcia notified the court that the parties had 19 reached a tentative settlement. [Docket No. 15.] On October 18, 2021, the court conditionally 20 dismissed the case. [Docket No. 18.] Woldemichael’s counsel then informed Garcia’s counsel 21 that Woldemichael was “unable to proceed with the settlement agreement due to recent unforeseen 22 circumstances,” and that the settlement agreement was not executed. [Docket No. 19.] Garcia 23 moved to reopen the case, which the court granted. [Docket Nos. 19, 23.] 24 Thereafter, the clerk entered default against Woldemichael on January 27, 2022. [Docket 25 No. 26.] Garcia filed this motion on April 7, 2022 (“Mot.”) and served it on Woldemichael’s 26 counsel—which has not moved to withdraw—electronically and via mail. [Docket No. 31-11 ¶ 5, 27 -15.] See Fed. R. Civ. P. 55(b)(2) (“If the party against whom a default judgment is sought has 1 written notice of the application at least 7 days before the hearing.”). No opposition was filed. 2 II. LEGAL STANDARDS 3 Federal Rule of Civil Procedure 55(b)(2) permits a court to enter a final judgment in a case 4 following a defendant’s default. Shanghai Automation Instrument Co. v. Kuei, 194 F. Supp. 2d 5 995, 999 (N.D. Cal. 2001). Whether to enter a judgment lies within the court’s discretion. 6 Pepsico, Inc. v. Cal. Sec. Cans, 238 F. Supp. 2d 1172, 1174 (C.D. Cal. 2002) (“A defendant’s 7 default does not automatically entitle the plaintiff to a court-ordered judgment.” (citing Draper v. 8 Coombs, 792 F.2d 915, 924-25 (9th Cir. 1986))). 9 Before assessing the merits of a default judgment, a court must ensure the adequacy of 10 service on the defendant, as well as confirm that it has subject matter jurisdiction over the case and 11 personal jurisdiction over the parties. See In re Tuli, 172 F.3d 707, 712 (9th Cir. 1999). If the 12 court finds these elements satisfied, it turns to the following factors (“the Eitel factors”) to 13 determine whether it should grant a default judgment:
14 (1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff’s substantive claim, (3) the sufficiency of the complaint, (4) 15 the sum of money at stake in the action[,] (5) the possibility of a dispute concerning material facts[,] (6) whether the default was due 16 to excusable neglect, and (7) the strong policy underlying the Federal Rules of Civil Procedure favoring decision on the merits. 17 18 Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986) (citation omitted). In this analysis, “the 19 well-pleaded allegations of the complaint relating to a defendant’s liability are taken as true.” 20 Pepsico, Inc., 238 F. Supp. 2d at 1175 (citing Televideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 21 917-18 (9th Cir. 1987)). Nevertheless, default does not compensate for essential facts not within 22 the pleadings and those legally insufficient to prove a claim. Cripps v. Life Ins. Co. of N. Am., 980 23 F.2d 1261, 1267 (9th Cir. 1992). 24 III. ANALYSIS 25 A. Jurisdiction 26 Before entering default judgment, a federal court has an “affirmative duty to look into its 27 jurisdiction over both the subject matter and the parties.” In re Tuli v. Rep. of Iraq, 172 F.3d 707, 1 jurisdiction over the parties. 2 1. Subject Matter Jurisdiction 3 Garcia alleges disability discrimination in violation of the ADA, 42 U.S.C. § 12101 et seq. 4 The court has subject matter jurisdiction over that claim pursuant to 28 U.S.C. § 1331. The court 5 has supplemental jurisdiction over the related Unruh Act claim under 28 U.S.C. § 1367(a). 6 2. Personal Jurisdiction 7 Personal jurisdiction may be either general or specific. Bristol-Myers Squibb Co. v. Sup. 8 Ct. Cal., San Francisco Cty., 137 S. Ct. 1773, 1780 (2017). Traditional bases for personal 9 jurisdiction include domicile or personal service within the forum state. See Mulato v. Wells 10 Fargo Bank, N.A., 76 F. Supp. 3d 929, 943 (N.D. Cal. 2014) (citing J. McIntyre Mach., Ltd. v. 11 Nicastro, 564 U.S. 873, 880 (2011)). According to the proof of service, Garcia served 12 Woldemichael by personal service at 3631 Telegraph Avenue, Oakland, California, on July 16, 13 2021. [Docket No. 8.] Accordingly, the court may exercise personal jurisdiction over 14 Woldemichael. 15 B. Adequacy of Service 16 Federal Rule of Civil Procedure 4(e) allows for an individual to be served by “delivering a 17 copy of the summons and of the complaint to the individual personally. Fed. R. Civ. P. 18 4(e)(2)(A). Here, the proof of service indicates that the summons and complaint were served on 19 Woldemichael personally. [Docket No. 8.] Woldemichael’s counsel also appeared in this action, 20 which supports a finding that service was adequate. The court concludes that service of process 21 was properly accomplished. 22 C. Application of the Eitel Factors 23 Having found that the jurisdictional and service requirements are met, the court now turns 24 to the Eitel factors to determine whether default judgment should be granted. 25 1. Prejudice 26 Garcia argues that, in absence of a default judgment, he will be left without other recourse 27 and will suffer prejudice unless default judgment is entered. Mot. at 4. Since Woldemichael has 1 reopened the case, Garcia will likely have no other avenue for recovery available to him. See 2 Vogel v. Rite Aid Corp., 992 F. Supp. 2d 998, 1007 (C.D. Cal. 2014) (finding prejudice to plaintiff 3 where a defendant sued under the ADA and Unruh Act failed to appear in the action). This factor 4 weighs in favor of granting default judgment. 5 2. Merits of Plaintiff’s Substantive Claims and the Sufficiency of the 6 Complaint 7 “Under an Eitel analysis, the merits of plaintiff’s substantive claims and the sufficiency of 8 the complaint are often analyzed together.” Dr. JKL Ltd. v. HPC IT Educ. Ctr., 749 F. Supp. 2d 9 1038, 1048 (N.D. Cal. 2010). After an entry of default, well-pleaded allegations in the complaint 10 are deemed true, except for the amount of damages. Fair Hous. of Marin v. Combs, 285 F.3d 899, 11 906 (9th Cir. 2002). 12 a. ADA 13 “Title III of the ADA prohibits discrimination on the basis of disability in the ‘full and 14 equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of 15 any place of public accommodation’ with a nexus in interstate commerce.” Oliver v. Ralphs 16 Grocery Co., 654 F.3d 903, 904 (9th Cir. 2011) (quoting 42 U.S.C. §§ 2000a(b), 12182(a)). To 17 prevail on a Title III discrimination claim, a plaintiff must show that (1) they are disabled within 18 the meaning of the ADA; (2) the defendant is “a private entity that owns, leases, or operates a 19 place of public accommodation”; and (3) the defendant discriminated against the plaintiff by 20 denying public accommodations because of the plaintiff’s disability. Lopez v. Catalina Channel 21 Express, Inc., 974 F.3d 1030, 1033 (9th Cir. 2020). 22 Unlawful discrimination under the ADA occurs when features of a public accommodation 23 deny equal access to disabled persons:
24 It shall be discriminatory to subject an individual or class of individuals on the basis of a disability or disabilities of such 25 individual or class, directly, or through contractual, licensing, or other arrangements, to a denial of the opportunity of the individual or class 26 to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations of an entity. 27 1 discrimination. 42 U.S.C. § 12182(b)(2)(A)(i)-(v). The subsection at issue in this case is 42 2 U.S.C. § 12182(b)(2)(A)(iv) (“Section IV”). Discrimination under Section IV includes “a failure 3 to remove architectural barriers, and communication barriers that are structural in nature, in 4 existing facilities . . . where such removal is readily achievable.” Id. Under the ADA, a plaintiff 5 can sue only for injunctive relief, i.e., removal of any barriers. Monetary damages are not 6 available for private plaintiffs. Oliver, 654 F.3d at 905. 7 To prove discrimination under Section IV, a plaintiff must show a violation of applicable 8 accessibility standards. Moeller v. Taco Bell Corp., 816 F. Supp. 2d 831, 847 (N.D. Cal. 2011) 9 (citing Chapman v. Pier 1 Imports (U.S.), Inc., 631 F.3d 939, 945 (9th Cir. 2011) (en banc); 10 Donald v. Cafe Royale, 218 Cal. App. 3d 168, 183 (1990)). There are three categories of 11 accessibility requirements under Title III of the ADA—the ‘new construction’ provisions . . . ; the 12 ‘alteration’ provisions . . . ; and the ‘readily achievable’ provisions.” Moeller, 816 F. Supp. 2d at 13 847. “In the case of newly constructed facilities, compliance with the ADA’s antidiscrimination 14 mandate requires that facilities be ‘readily accessible to and usable by individuals with 15 disabilities.’” Chapman, 631 F.3d at 945 (quoting 42 U.S.C. § 12183(a)(1)); see also Moeller, 16 816 F. Supp. 2d at 847.2 Existing facilities that were altered after January 26, 1992 are also 17 required, “to the maximum extent feasible, to be ‘readily accessible to and useable by’ individuals 18 with disabilities.” Moeller, 816 F. Supp. 2d at 847 (citing 42 U.S.C. § 12183(a)(2)).3 “In existing 19 but unaltered facilities, barriers must be removed where it is ‘readily achievable’ to do so.” Id. 20 To satisfy these standards, buildings with new construction or post-January 1992 21 alterations must comply with either the 1991 or 2010 ADA Standards for Accessible Design 22
23 2 The ADA defines newly constructed facilities as construction intended for “first occupancy later than 30 months after July 26, 1990,” which was the date the ADA was enacted. 42 U.S.C. § 24 12183(a)(1); 28 C.F.R. § 36.401(a)(1) (“discrimination for purposes of this part includes a failure 25 to design and construct facilities for first occupancy after January 26, 1993, that are readily accessible to and usable by individuals with disabilities.”). 26 3 The Justice Department’s ADA Architectural Guidance defines alteration as “a change to a place 27 of public accommodation or a commercial facility that affects or could affect the usability of the building or facility or any part thereof.” Rodriguez v. Barrita, Inc., 10 F. Supp. 3d 1062, 1079 1 (“ADAAG”), depending on the date the construction or alterations began. 28 C.F.R. § 36.406; 2 Lane v. Landmark Theatre Corp., No. 16-CV-06790-BLF, 2020 WL 1976420, at *8 (N.D. Cal. 3 Apr. 24, 2020).4 The ADAAG standards “lay out the technical structural requirements of places of 4 public accommodations.” Chapman, 631 F.3d at 945. Facilities must conform to the updated 5 2010 ADAAG standards unless they have not been altered since March 15, 2012 and comply with 6 the 1991 standards. Kohler v. Flava Enters., Inc., 779 F.3d 1016, 1019 (9th Cir. 2015). For 7 existing but unaltered facilities, “discrimination includes ‘a failure to remove architectural barriers 8 . . . where such removal is readily achievable.’” Id. (quoting 42 U.S.C. § 12182(b)(2)(A)(iv)); see 9 also Moeller, 816 F. Supp. 2d at 847. 42 U.S.C. § 12181(9). Where no alteration to the 10 establishment has occurred on or after March 15, 2012, “elements in the [facility] are actionable 11 barriers only if they fail to comply with the 1991 ADAAG Standards.” Lane v. Landmark Theatre 12 Corp., 2020 WL 1976420, at *13 (N.D. Cal. Apr. 24, 2020). In other words, “Defendants are 13 liable for failing to fix the barriers alleged by Plaintiffs if and only if (1) the Item constitutes a 14 violation of the 1991 ADAAG Standards, and (2) it is ‘readily achievable’ to modify the element 15 to comply with the 2010 ADAAG Standards.” Id. 16 To prevail on a discrimination claim involving an existing but unaltered facility, the 17 plaintiff must establish that alterations to the challenged barrier were readily achievable—defined 18 as “easily accomplishable and able to be carried out without much difficult or expense,” 42 U.S.C. 19 § 12181—or that access could have been made available “through alternative methods without 20 much difficulty or expense.” Lopez, 974 F.3d at 1034. 21 22 4 When Congress enacted the ADA in 1991, it directed the Department of Justice to issue 23 interpretive regulations consistent with guidelines published by the Architectural and Transportation Barriers Compliance Board (the Access Board), an independent federal agency. 24 Kirola v. City & Cty. of S.F., 860 F.3d 1164, 1176-77 (9th Cir. 2017); Miller v. Cal. Speedway 25 Co., 536 F.3d 1030, 1025-26 (9th Cir. 2008). The Department of Justice adopted the 1991 ADAAG standards promulgated by the Access Board; although the Access Board subsequently 26 issued revisions, “the only binding ADAAG requirements were the original ones adopted in 1991.” Kirola, 860 F.3d at 1177. “In 2004, the Access Board published a wholesale revamp of 27 ADAAG. Again, the new regulations were not then binding. But on September 15, 2010, DOJ 1 i. Disability 2 The ADA defines a disability as a “physical or mental impairment that substantially limits 3 one or more major life activities of such individual.” 42 U.S.C. § 12102(1)(A). Major life 4 activities include “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, 5 walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, 6 communicating, and working.” 42 U.S.C. § 12102(2)(A). 7 As Garcia alleges that he “cannot walk” and “uses a wheelchair for mobility,” he has 8 established that he is a disabled person within the meaning of the ADA. See Compl. ¶ 1. 9 ii. Owns, Operates, or Leases a Public Accommodation 10 “[A] restaurant, bar, or other establishment serving food or drink” is considered a public 11 accommodation under the ADA. 42 U.S.C.A. § 12181(7)(B). Garcia alleges that La Dolce Vita is 12 a “facility open to the public, a place of public accommodation, and a business establishment.” 13 Compl. ¶¶ 9. He further alleges that Woldemichael owned La Dolce Vita in May 2021 and 14 currently owns the establishment. Id. ¶¶ 2, 3. Accordingly, he has adequately pleaded that 15 Woldemichael owns, operates, or leases a place of public accommodation. 16 iii. Discrimination 17 As noted, to prove discrimination under Section IV, Garcia must show a violation of 18 applicable accessibility standards. Garcia alleges that Woldemichael failed to provide wheelchair 19 accessible indoor and outdoor dining surfaces in conformance with the ADA Standards. Compl. 20 ¶ 11. Specifically, he experienced a “lack of sufficient knee or toe clearance under the inside and 21 outside dining surfaces for wheelchair users.” Id. ¶ 12. 22 Garcia assumes without support that challenged barrier violates the 2010 ADAAG 23 standards. See Mot. at 9. However, he offers no allegations or evidence to establish that the 24 property was constructed or altered since 2012, which would trigger La Dolce Vita’s obligation to 25 meet the 2010 standards. See Kohler, 779 F.3d at 1019; Lane, 2020 WL 1976420, at *8. As 26 Garcia has not established the applicability of either the 2010 or the 1991 ADAAG standards, the 27 court treats La Dolce Vita as subject to the least restrictive requirements for public 1 have not been altered. The court relies on the 2010 and 1991 standards solely as guidance for 2 whether La Dolce Vita contains architectural barriers. See id.5 3 2010 ADAAG § 902.1 obligates dining surfaces to comply with the knee and toe clearance 4 requirements set forth in Standard § 902.3. That provision requires that the tops of dining surfaces 5 and work surfaces be 28 inches minimum and 34 inches maximum above the finish floor or 6 ground. 2010 ADAAG Standard § 902.3. 2010 ADAAG § 902.2 also requires a clear floor space 7 that complies with the requirements for knee and toe clearance in 2010 ADAAG Standard § 306. 8 Knee clearance must be “11 inches (280 mm) deep minimum at 9 inches (230 mm) above the 9 finish floor or ground, and 8 inches (205 mm) deep minimum at 27 inches (685 mm) above the 10 finish floor or ground.” 2010 ADAAG Standard § 306.3.3. Toe clearance must be “11 inches 11 (280 mm) deep minimum at 9 inches (230 mm) above the finish floor or ground, and 8 inches (205 12 mm) deep minimum at 27 inches (685 mm) above the finish floor or ground.” 2010 ADAAG 13 Standard § 306.2.3. 14 The 1991 ADAAG Standard § 4.32.3 requires knee clearance for wheelchair-accessible of 15 at least 27 inches high, 30 inches wide, and 19 inches deep. 1991 ADAAG Standard § 5.1 16 requires that all restaurants offer wheelchair-accessible tables for at least five percent of their fixed 17 tables that comply with the requirements of 1991 ADAAG Standard § 4.32. 18 In support of the allegations of inadequate surfaces with insufficient knee or toe clearance, 19 Garcia submitted a report and photos from a third-party investigator confirming that La Dolce Vita 20 “provided inside and outside dining surfaces with no knee clearance measuring at least 27 inches 21 high, 30 inches wide and 19 inches deep.” Declaration of Robert Marquis ¶ 2 [Docket No. 31-4], 22 Ex. 4 [Docket No. 31-6.] At minimum, those measurements violate the 1991 ADAAG Standard § 23 4.32.3 and 2010 ADAAG Standard §§ 902.1-.3. Taking the allegations in the complaint as true 24 and as confirmed by the investigator’s report, the court finds that Garcia adequately pleaded an 25
26 5 The 1991 ADAAG standards are available at ADA Accessibility Guidelines (ADAAG), U.S. 27 Access Board, https://www.access-board.gov/adaag-1991-2002.html. The 2010 ADAAG standards are available at Americans with Disabilities Act Accessibility Standards, U.S. Access 1 architectural barrier to wheelchair accessibility. See Johnson v. Prospect Venture LLC, No. 21-cv- 2 04195-EJD, 2022 WL 2276890, at *4 (N.D. Cal. June 23, 2022) (on motion for default judgment, 3 accepting allegations of wheelchair accessibility barrier as true and considering evidence provided 4 in support of motion). 5 With respect to the removal of the barriers, “[t]he Ninth Circuit recently decided to follow 6 a burden-shifting framework to determine who bears the burden of proving that removal of an 7 architectural barrier is readily achievable.” Prospect Venture, 2022 WL 2276890, at *4 (citing 8 Lopez, 974 F.3d 1030). “Under this burden-shifting analysis, the plaintiff bears the initial burden 9 of plausibly showing that a proposal for removing a barrier is readily achievable, and then the 10 defendant bears the ultimate burden of persuasion on an affirmative defense that removal of a 11 barrier is not readily achievable.” Johnson v. In Suk Jun, No. 19-cv-06474-BLF, 2020 WL 12 6507995, at *5 (N.D. Cal. Nov. 5, 2020) (granting motion for default judgment). 13 Here, Garcia alleges that the architectural barriers he identifies are “easily removed 14 without much difficulty or expense” and are “readily achievable.” Compl. ¶ 19. He further claims 15 that that “there are numerous alternative accommodations” to provide people with disabilities a 16 greater level of access even if Woldemichael could not achieve a complete removal of the barrier. 17 Id. Federal regulations provide a non-exhaustive list of “steps to remove barriers,” such as 18 rearranging tables and chairs. 28 C.F.R. § 36.304(b)(4). At default judgment stage, courts have 19 found that allegations like Garcia’s to be adequate. See Prospect Venture, 2022 WL 2276890, at 20 *5 (citing cases). 21 As Garcia has adequately alleged both the existence of an architectural barrier and that 22 removal of the barrier is readily achievable, he has sufficiently pleaded a claim for disability 23 discrimination under the ADA. 24 b. Unruh Civil Rights Act 25 The Unruh Act provides that “[a] violation of the right of any individual under the [ADA] 26 shall also constitute a violation of” the Unruh Act. Cal. Civ. Code § 51(f). Since Garcia has 27 established a claim against Woldemichael of disability access discrimination under the ADA, he 3. Sum of Money at Stake in the Action 1 The fourth Eitel factor focuses on the amount of money at issue in the action. “[C]ourts 2 should be hesitant to enter default judgment in matters involving large sums of money.” Yelp Inc. 3 v. Catron, 70 F. Supp. 3d 1082, 1099-1100 (N.D. Cal. 2014); see also Bd. of Tr. v. Core Concrete 4 Const., Inc., No. 11-cv-02532-LB, 2012 WL 380304, at *1, *4 (N.D. Cal. Jan. 7, 2012) (“When 5 the money at stake in the litigation is substantial or unreasonable, default judgment is 6 discouraged.”). However, when “the sum of money at stake is tailored to the specific misconduct 7 of the defendant, default judgment may be appropriate.” Id. “Damages are not recoverable under 8 Title III of the ADA—only injunctive relief is available for violations of Title III.” Wander v. 9 Kaus, 304 F.3d 856, 858 (9th Cir. 2002). A plaintiff can recover statutory damages for an Unruh 10 Act claim if a violation of construction-related accessibility standards “denied the plaintiff full and 11 equal access to the place of public accommodation on a particular occasion.” Cal. Civ. Code § 12 55.56(a). The amount of damages provided under the Unruh Act for a single violation is “a 13 maximum of three times the amount of actual damage but in no case less than four thousand 14 dollars.” Cal. Civ. Code § 52(a). 15 Garcia seeks statutory damages of $4,000 under the Unruh Act, as well as $3,917 in 16 attorneys’ fees and costs. Mot. at 14. The total amount requested is thus $7,917. Garcia’s request 17 is authorized by the applicable statutes and the complaint tailors the amount requested to the 18 conduct alleged. This factor weighs in favor of granting default judgment. 19 4. Possibility of Dispute Concerning Material Facts 20 When a party “fail[s] to appear or otherwise respond . . . in defaulting, defendants are 21 deemed to have admitted all well-pleaded factual allegations contained in the complain[t].” 22 DirecTV v. Hoa Huynh, 503 F.3d 847, 851 (9th Cir. 2007) (citing Fed. R. Civ. P. 55(a)). All 23 allegations in the complaint are taken as true, except for those regarding damages. TeleVideo Sys., 24 Inc., 826 F.2d at 917-18. 25 Here, the possibility of a dispute about the material facts is unlikely. Woldemichael was 26 served with the complaint and appeared through counsel; after settlement negotiations collapsed, 27 he has not responded or defended himself in the action. The clerk accordingly entered default 1 against them. Garcia also mailed and electronically served this motion on Woldemichael’s 2 counsel, who remains on the docket and continues to receive electronic filing notices. [Docket 3 No. 31-13; see also Docket No. 31-11 at ¶ 5.] Woldemichael’s counsel subsequently represented 4 that Woldemichael “fully, knowingly, and voluntarily desired to allow Default Judgment to be 5 entered.” Danet Decl. ¶¶ 3, 7. As set forth above, Garcia’s well-pleaded allegations are presumed 6 to be true, and he adequately alleged ADA and Unruh Act claims against Woldemichael. 7 Woldemichael’s non-opposition to default judgment renders it unlikely that there is a dispute 8 about the material facts of the case. 9 5. Default Due to Excusable Neglect 10 The sixth Eitel factor considers whether a defendant’s default resulted from excusable 11 neglect. Eitel, 782 F.2d at 1472. When a defendant is properly served with the complaint and the 12 motion for default judgment, an entry of default judgment is favored. W. States Insulators & 13 Allied Workers Pension Plan v. Jenco Mech. Insulation, Inc., No. 11-cv-0175 EMC, 2012 WL 14 1123229, at *3 (N.D. Cal. Apr. 3, 2012). 15 As detailed above, Garcia accomplished service of the summons and complaint on 16 Woldemichael in July 2021 and engaged in settlement negotiations with Woldemichael. Given 17 the length of time that has elapsed since the court reopened the case and in light of 18 Woldemichael’s non-opposition to this motion, Woldemichael’s failure to respond is not due to 19 excusable neglect. This factor weighs in favor of granting default judgment. 20 6. Policy of Favoring a Decision on the Merits 21 Despite the policy of favoring a decision on the merits, default judgment is appropriate 22 when a defendant refuses to litigate a case. Fed. R. Civ. P. 55(b). “Defendant’s failure to answer 23 Plaintiffs’ Complaint makes a decision on the merits impractical, if not impossible.” PepsiCo, 24 Inc, 238 F.2d at 1177. Here, Woldemichael did not answer the complaint, and he has remained 25 unresponsive since the case was reopened. A decision on the merits is impractical as 26 Woldemichael has refused to litigate this action. 27 On balance, the Eitel factors weigh in favor of granting Garcia’s motion for default 1 D. Remedies 2 Although the factual contentions of the operative complaint are accepted as true when 3 determining the liability of a defaulting defendant, this rule does not apply to statements regarding 4 damages. See TeleVideo, 826 F.2d at 917-18. To recover damages after securing a default 5 judgment, a plaintiff must prove the relief it seeks through testimony or written affidavit. Bd. of 6 Trs. of the Boilermaker Vacation Trust v. Skelly, Inc., 389 F. Supp. 2d 1222, 1226 (N.D. Cal. 7 2005); see PepsiCo, Inc., 238 F. Supp. 2d at 1175 (citing Televideo Sys., Inc., 826 F.2d at 917-18). 8 1. Statutory Damages 9 A plaintiff can recover statutory damages for an Unruh Act claim if a violation of 10 construction-related accessibility standards “denied the plaintiff full and equal access to the place 11 of public accommodation on a particular occasion.” Cal. Civ. Code § 55.56(a). The Unruh Act 12 authorizes statutory damages of “no less than four thousand dollars ($4,000)” for each occasion on 13 which a plaintiff was denied equal access. Id. § 52(a). “The litigant need not prove she suffered 14 actual damages to recover the independent statutory damages of $4,000.” Molski, 481 F.3d at 731; 15 see also Botosan v. Paul McNally Realty, 216 F.3d 827, 835 (9th Cir. 2000) (explaining that “[t]he 16 statute lists actual damages and statutory damages as two separate categories of damages that a 17 plaintiff may recover”). 18 Garcia alleges, and his declaration confirms, that he visited La Dolce Vita once in May 19 2021 and eventually intends to “once it is represented to him that La Dolce Vita and its facilities 20 are accessible.” Compl. ¶¶ 8, 20; Declaration of Orlando Garcia (“Garcia Decl.”) ¶¶ 2, 7-8 21 [Docket No. 31-4.]6 He requests an award of $4,000 in statutory damages. Mot. at 16. Because 22 Garcia visited the established on one occasion, he is entitled to $4,000 in statutory damages. The 23 6 Garcia’s assertions that he visited the facility once on an unspecified date in May 2021 and “will 24 return” are suspiciously vague. Nevertheless, the court must take Garcia’s allegations as true on a motion for default judgment. Cf. Garcia v. Chung Enters., L.P., No. 21-cv-05088-WHO, 2021 25 WL 7285264, at *4-5 (N.D. Cal. Dec. 14, 2021) (on a motion to dismiss for lack of subject-matter jurisdiction, finding that similar allegations by Garcia that “he went to the business, encountered a 26 barrier, was deterred (and thereby injured), and ‘will return to [the establishment] to avail himself of its goods or services and to determine compliance with the disability access laws once it is 27 represented to him that … [the establishment is] accessible’” are “what is required to proceed” at 1 court according awards him $4,000. 2 2. Injunctive Relief 3 An ADA plaintiff who establishes that a public accommodation has architectural barriers 4 and that removal of those barriers is “readily achievable” is entitled to injunctive relief. Moreno v. 5 La Curacao, 463 F. App’x 669, 670 (9th Cir. 2011). Courts may also grant injunctive relief for 6 violations of the Unruh Act. See Cal. Civ. Code § 52.1(h). “[I]njunctive relief shall include an 7 order to alter facilities to make such facilities readily accessible to and usable by individuals with 8 disabilities.” 42 U.S.C.A. § 12188(a)(2). 9 As discussed above, Garcia has adequately pleaded that La Dolce Vita has architectural 10 barriers that readily can be removed. Accordingly, the court enters an injunction requiring 11 Woldemichael to provide compliant wheelchair-accessible indoor and outdoor dining surfaces at 12 La Dolce Vita. 13 3. Attorneys’ Fees and Costs 14 The ADA gives courts the discretion to award attorneys’ fees, including litigation expenses 15 and costs, to prevailing parties. Molski, 481 F.3d at 730 (citing 42 U.S.C. § 12205). Additionally, 16 the Unruh Act provides that “[i]n addition to any damages, injunction, or other equitable relief 17 awarded in an action brought pursuant to [Cal. Civ. Code § 52.1(b)], the court may award the 18 petitioner or plaintiff reasonable attorney’s fees.” Cal. Civ. Code § 52.1(h). 19 District courts in the Ninth Circuit typically employ the “lodestar analysis” in calculating 20 fee awards. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); Camacho v. Bridgeport Fin., Inc., 21 523 F.3d 973, 978 (9th Cir. 2008) (citations omitted). “The lodestar figure is calculated by 22 multiplying the number of hours the prevailing party reasonably expended on the litigation (as 23 supported by adequate documentation) by a reasonable hourly rate for the region and for the 24 experience of the lawyer.” Yamada v. Nobel Biocare Holding AG, 825 F.3d 536, 546 (9th Cir. 25 2016) (internal citation omitted). Fee awards calculated under the lodestar method generally are 26 presumed to be reasonable, Gonzalez v. City of Maywood, 729 F.3d 1196, 1208–09 (9th Cir. 27 2013), although the court ultimately retains discretion to modify the amount based on the specific 1 hours expended litigating the case and must provide detailed time records documenting the tasks 2 completed and the amount of time spent. Hensley, 461 U.S. at 434; Welch v. Metro. Life Ins. Co., 3 480 F.3d 942, 945–46 (9th Cir. 2007). The requesting party also has the burden to demonstrate 4 that the rates requested are “in line with the prevailing market rate of the relevant community.” 5 Carson v. Billings Police Dep’t, 470 F.3d 889, 891 (9th Cir. 2006) (internal quotation marks and 6 citation omitted). The court bears the discretion to impose a small “haircut” of ten percent or less 7 without specific explanation to account for unnecessarily duplicative fees. Moreno v. City of 8 Sacramento, 534 F.3d 1106 (9th Cir. 2008). 9 Here, Garcia’s counsel request attorneys’ fees in the amount of $3,085 representing 12.6 10 hours of work by numerous timekeepers. Mot. at 16; Declaration of Russell Handy (“Handy 11 Decl.”). They seek hourly rates for attorneys Mark Potter at $650; Amanda Seabock at $500; 12 Isabel Masanque at $500, and Tehniat Zaman at $400. Handy Decl. ¶¶ 2-6.7 They also request a 13 $100 hourly rate for work completed by legal assistants and paralegals, with the exception of 14 Marcus Handy, for whom they request a $200 hourly rate. Id. ¶¶ 7-8.8 Garcia’s counsel 15 declaration does not list each paralegal or legal assistant individually, but the time records reveal 16 that fourteen such individuals billed time to this matter. Counsel also submits declarations filed 17 by attorneys’ fees experts Richard Pearl and John D. O’Connor in other cases, as well as excerpts 18 from Real Rate Report. Handy Decl. Exs. 6-8. The court disregards these third-party materials as 19 20
21 7 Counsel’s papers are carelessly prepared. The counsel declaration discusses a $650 hourly rate for attorney Russell Handy, but the record shows he was not a timekeeper in this matter. 22 Meanwhile, the motion proffers different rates for attorneys Potter, Handy, Zaman, and an unexplained attorney Gutierrez—without mentioning attorneys Seabock and Masanque, who 23 billed time on this case. Mot. at 23. The court considers the rates in the Handy Declaration only for the timekeepers in this action. Garcia’s counsel at Potter Handy is again admonished for its 24 deficient lawyering. See Langer v. Pep Boys Manny Moe & Jack of California, No. 20-CV- 06015-DMR, 2021 WL 5444784, at *1 (N.D. Cal. Feb. 22, 2021) (noting that “th[is] court 25 repeatedly has had to use its resources to prod [the Center for Disability Access] to address deficiencies in their litigation practices, including late filings, incorrectly noticed hearings, and 26 failures to respond to court orders.”). 27 8 The declaration erroneously re-starts the paragraph enumeration at the seventh paragraph, misstating paragraph seven as paragraph one, and so forth. For clarity, the court renumbers each 1 they are irrelevant.9 2 Multiple courts in this district have held that Garcia’s counsel’s proposed rates are 3 unreasonably high, given the “routine and formulaic nature of the ADA cases litigated by Potter 4 Handy LLP.” Prospect Venture, 2022 WL 2276890, at *7 (citing cases); Ghadiri v. Rampur, No. 5 19-cv-2675-YGR-DMR, slip op. at 17-19 (N.D. Cal. Apr. 8, 2020) (ECF No. 20). “Many of these 6 cases have considered the same evidence that [Garcia] submits here and found that it does not 7 support the rates he seeks.” Johnson v. Iguanas Burritozilla, Corp., No. 21-cv-08471-BLF, 2022 8 WL 1750472, at *5 (N.D. Cal. May 31, 2022) (citing cases); Johnson v. Lo, No. 20-cv-06096- 9 PJH-AGT, 2021 WL 5236552, at 4 (N.D. Cal. Oct. 21, 2021) (evidence “not particularly 10 persuasive”); Johnson v. Nuoc Mia Vien Dong 2, LLC, No. 21-CV-01618-CRB, 2021 WL 11 3271232, at *5 (N.D. Cal. July 30, 2021) (evidence provided “limited value”); see also Rampur, 12 No. 19-cv-2675-YGR-DMR, slip op. at 17-18 & n.5. 13 Recently, courts in this district have found that the following hourly rates for Garcia’s 14 counsel are reasonable: $475 for Potter; $350 per hour for Seabock and Masanque, and $250 for 15 Zaman. Prospect Venture, 2022 WL 227690, at *7; Johnson v. Pennylane Frozen Yogurt, LLC, 16 No. 22-cv-00609-BLF, 2022 WL 1750382, at *5 (N.D. Cal. May 31, 2022); Johnson v. MKB 17 Rescom LLC, No. 20-cv-01460-BLF, 2022 WL 1062059, at *5 (N.D. Cal. Apr. 8, 2022); Johnson 18 v. La Fontaine Food, Inc., No. 21-cv-04838-BLF, 2022 WL 827646, at *5-6 (N.D. Cal. Mar. 18, 19 2022); Johnson v. Ramirez, No. 20-cv-04359-TSH, 2022 WL 1019554, at *12 (N.D. Cal. Mar. 15, 20 2022); Lo, 2021 WL 5236552, at *4; Nuoc Mia Vien Dong 2, 2021 WL 3271232, at *6; Johnson v. 21 Patel, No. 18-cv-00211-MMC, 2020 WL 1865304, at *5-6 (N.D. Cal. Apr. 14, 2020); Rampur, 22 No. 19-cv-2675-YGR-DMR, slip op. at 19. The court finds that those hourly rates are reasonable. 23 As for paralegal and legal assistant work, courts in this district regularly have affirmed the 24 $100 hourly rate for all paralegals and declined to award a higher rate for legal assistant work 25 9 The Pearl Declaration is irrelevant because it was filed in 2010 in a wholly different case before 26 the Ninth Circuit litigated by different lawyers than Garcia’s counsel. Handy Decl. Ex. 6. The excerpts from the Real Rate Report are irrelevant because they are from 2020 and do not include 27 rates from the San Francisco Bay Area, contrary to Garcia’s assertion in his motion. Handy Decl. 1 performed by Marcus Handy based on similar submissions. See, e.g., Pennylane, 2022 WL 2 1750382, at *5; MKB Rescom, 2022 WL 1062059, at *5; La Fontaine, 2022 WL 827646, at *5-6; 3 Ramirez, 2022 WL 1019554, at *12; Nuoc Mia Vien Dong 2, LLC, 2021 WL 3271232, at *6. The 4 court agrees with those decisions and applies a $100 hourly rate for paralegals and legal assistants, 5 including Marcus Handy. 6 Collectively, Garcia’s counsel billed a total of 12.6 hours, comprised of 4.5 hours of 7 attorney time and 8.1 hours of non-attorney time. The court concludes that it is unreasonable for 8 four attorneys to bill time on a single simple case that falls within the formulaic run of cases filed 9 by this plaintiff and the Potter Handy firm. The court further finds that the use of fourteen 10 paralegals and legal assistants to perform 8.1 hours of work is unreasonable “given the inherent 11 duplication of effort and inefficiency arising from the circumstances of so many individuals 12 performing the same limited tasks.” Iguanas Burritozilla, 2022 WL 1750472, at *6 (reducing 13 paralegal and staff time). Garcia’s counsel fails to justify their need for four attorneys and 14 fourteen support staff or how they delegated or divided their work on this case. To account for 15 duplicated efforts and overstaffing by attorneys and non-attorney staff, the court awards fees for 16 the three attorney timekeepers who billed the most time to this case— Amanda Seabock, Isabel 17 Masanque, and Tehniat Zaman. The court does not award fees for Mark Potter, who only billed 18 0.5 hours to the case. The court also awards fees for the three paralegals and legal support staff 19 who billed the most time—Sachin Bukkan (2.2 hours), Marcus Handy (1.4 hours), and Leonardo 20 Pahuriray (0.9 hours). 21 In accordance with the adjusted rates and time above, the court awards total fees of $1,939 22 as follows: Timekeeper Adjusted Adjusted Total 23 Hourly Rate Hours Amanda Seabock $350 1.5 $525.00 24 Isabel Masanque $350 0.6 $210.00 Tehniat Zaman $250 1.9 $475.00 25 Paralegals/ $100 7.29 $729.00 Legal Assistants 26 TOTAL $1,939 27 Garcia’s counsel also seeks $832 in costs, comprised of filing, service, and investigator 1 IV. CONCLUSION 2 For the foregoing reasons, the court grants Garcia’s motion for default judgment in part. 3 The court orders an injunction requiring Woldemichael to provide compliant wheelchair- 4 accessible indoor and outdoor dining surfaces at La Dolce Vita. The court also awards Garcia 5 $4,000 in statutory damages, $1,939 in attorneys’ fees, and $832 in costs, for a total monetary 6 award of $6,771.00. The clerk is ordered to enter default judgment in favor of Garcia and close 7 the case. 8 Garcia shall promptly serve Woldemichael with this order and the Default Judgment and 9 file a proof of service. P DISTRI 10 «by oO S ON 11 IT IS SO ORDERED. KS) &y RED] = 12 || Dated: August 22, 2022 > \ iris sO ORDE ~ □ 13 oe AN \ COAG □□□ □□ ONnket yoked MASI Stiais ae iS 15 oO LY < Y VDF ZO ISTRIC = 17
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