Gilbert v. Bonfare Markets, Inc.

District Court, E.D. California·Decided March 10, 2023·No. 1:22-cv-00605·Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DARREN GILBERT, Case No. 1:22-cv-00605-AWI-BAM 12 Plaintiff, FINDINGS AND RECOMMENDATIONS 13 v. REGARDING PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT (Doc. 21) 14 BONFARE MARKETS, INC. dba BONFARE MARKET #43, et al., FOURTEEN (14) DAY DEADLINE 15 Defendants. 16

17 18 On October 13, 2022, Plaintiff Darren Gilbert (“Plaintiff”) filed a motion for default 19 judgment against Defendants Bonfare Markets, Inc. dba Bonfare Market #43; Sameer 20 Abdulwahid Nagi dba Bonfare Market #43; Sanaa A. Obaid dba Bonfare Market #43; and Stop ' 21 N ' Save, Inc. (collectively, “Defendants”). (Doc. 21.) No opposition was filed. The motion was 22 referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. The Court 23 finds the matter suitable for decision without oral argument pursuant to Local Rule 230(g), and 24 the hearing set for December 2, 2022, was previously vacated. (Doc. 23.) 25 Having considered the moving papers and the record in this action, the Court 26 RECOMMENDS that Plaintiff’s motion for default judgment be GRANTED in part as herein 27 described. 28 1 I. FACTUAL BACKGROUND 2 On May 20, 2022, Plaintiff filed this action pursuant to the Americans with Disabilities 3 Act of 1990 (“ADA”), 42 U.S.C. § 12181 et seq., California’s Unruh Civil Rights Act, 4 California Civil Code § 51, and California Health and Safety Code, alleging violations at 5 Bonfare Market #43, located at 145 North Santa Cruz Avenue, Modesto, California 95354 (the 6 “Facility”), which is owned, operated, and/or leased by Defendants. (Doc. 1, Compl. ¶ 7.) 7 Plaintiff alleges that he is substantially limited in his ability to walk, must use a 8 wheelchair, knee scooter, or prosthetic for mobility, and is physically disabled under state and 9 federal law. (Id. ¶ 8.) Plaintiff asserts that the Facility at issue presents barriers that interfered 10 with, if not outright denied, his ability to use and enjoy the goods, services, privileges and 11 accommodations offered at the Facility. (Id. ¶10.) Plaintiff’s complaint seeks damages, 12 attorneys’ fees and costs, declaratory relief and injunctive relief. (Id. ¶ 2.) 13 On June 10, 2022, Plaintiff served Defendant Stop ‘ N ’ Save, Inc. by leaving a copy of 14 the summons and complaint with Myra Valica, a receptionist and person apparently in charge of 15 the office at 691 S. Milpitas Blvd, Suite #208 Milpitas, CA 95035. (Doc. 5 at 2.) On June 15, 16 2022, copies of the summons, complaint, and relevant case documents were subsequently mailed 17 to Defendant Stop ‘ N ’ Save, Inc. at 691 S. Milpitas Blvd, Suite #208 Milpitas, CA 95035 via 18 First Class postage. (Doc. 5 at 3.) Defendant Sanaa A. Obaid was personally served with the 19 summons and complaint on June 12, 2022. (Doc. 6 at 2.) On June 12, 2022, Plaintiff served 20 Defendant Sameer Abdulwahid Nagi dba Bonfare Market #43 by leaving a copy of the summons 21 and complaint with his wife, who was at least 18 years of age, at his household. (Doc. 12 at 2.) 22 On July 13, 2022, copies of the summons, complaint, and relevant case documents were 23 subsequently mailed to Defendant Sameer Abdulwahid Nagi via First Class postage. (Id. at 3.) 24 On August 1, 2022, Plaintiff served Bonfare Markets, Inc. dba Bonfare Market #43 by leaving a 25 copy of the summons and complaint with a person in charge of the Facility. (Doc. 14 at 2.) On 26 August 2, 2022, copies of the summons, complaint, and relevant case documents were 27 subsequently mailed to Defendant Bonfare Markets, Inc. via First Class postage. (Doc. 14 at 3.) 28 Defendants did not respond to the complaint. The Clerk of the Court entered default as to 1 Defendant Sanaa A. Obaid on July 15, 2022. (Doc. 8.) The Clerk of the Court entered default as 2 to Defendant Stop ‘ N ’ Save, Inc. on July 22, 2022. (Doc. 10.) The Clerk of the Court entered 3 default as to Defendant Sameer Abdulwahid Nagi on August 18, 2022. (Doc. 17.) The Clerk of 4 the Court entered default as to Defendant Bonfare Markets, Inc. on September 7, 2022. (Doc. 5 19.) Plaintiff filed the instant motion against Defendants on October 13, 2022, seeking default 6 judgment in the total sum of $7,537.24 for statutory damages and attorneys’ fees and costs, 7 along with injunctive and declaratory relief. (Doc. 21-1.) Plaintiff served Defendants with a 8 copy of the motion by mail. (Doc. 21-7.) 9 On December 5, 2022, the Court issued a minute order requesting supplemental briefing 10 on whether Defendant Bonfare Markets, Inc. dba Bonfare Market #43 was properly served. 11 (Doc 24.) On December 23, 2022, Plaintiff filed a Supplemental Brief in support of his Motion 12 for Default Judgment. (Doc. 26.) The same day, Plaintiff also filed a Notice of Voluntary 13 Dismissal without prejudice as to Defendant Bonfare Markets, Inc. dba Bonfare Market #43 14 pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i). (Doc. 25.) 15 On December 27, 2022, the Court issued an Order to Show Cause why the Court should 16 not decline to exercise of Supplemental Jurisdiction over Plaintiff’s Unruh Act Claim. (Doc. 17 27.) Plaintiff filed a response to the Order to Show Cause on January 13, 2023. (Doc. 28.) On 18 February 7, 2023, the Court issued its Findings and Recommendations Declining Supplemental 19 Jurisdiction and Dismissing State Law Claims Without Prejudice. (Doc. 29.) On February 7, 20 2023, the Court entered an Order Adopting the Findings and Recommendations Declining 21 Supplemental Jurisdiction of State Law Claims. (Doc. 30.) In that Order, the Court declined to 22 exercise supplemental jurisdiction over Plaintiff’s Unruh Act claim and Plaintiff’s Cal. Health & 23 Safety Code § 19955 and § 19959 claims, and dismissed those claims without prejudice. (Doc. 24 30 at 2.) 25 II. LEGAL STANDARD FOR DEFAULT JUDGMENT 26 Pursuant to Federal Rule of Civil Procedure 55(b)(2), a plaintiff can apply to the court for 27 a default judgment against a defendant that has failed to plead or otherwise defend against the 28 action. Fed. R. Civ. P. 55(b)(2). “Upon default, the well-pleaded allegations of a complaint 1 relating to liability are taken as true.” Dundee Cement Co. v. Howard Pipe & Concrete Prods., 2 Inc., 722 F.2d 1319, 1323 (7th Cir. 1983); TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917- 3 18 (9th Cir. 1987). 4 Factors which may be considered by courts in exercising discretion as to the entry of a 5 default judgment include: (1) the possibility of prejudice to the plaintiff; (2) the merits of 6 plaintiff’s substantive claim; (3) the sufficiency of the complaint; (4) the sum of money at stake in 7 the action; (5) the possibility of a dispute concerning material facts; (6) whether the default was 8 due to excusable neglect; and (7) the strong policy underlying the Federal Rules of Civil 9 Procedure favoring decisions on the merits. Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 10 1986); PepsiCo, Inc. v. Cal. Sec. Cans, 238 F. Supp. 2d 1172, 1174 (C.D. Cal. 2002). 11 III. DISCUSSION 12 A.

Free access — add to your briefcase to read the full text and ask questions with AI

6 (1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service 7 is made; or

8 (2) doing any of the following:

9 (A) delivering a copy of the summons and of the complaint to the individual personally; 10 (B) leaving a copy of each at the individual's dwelling or usual place of 11 abode with someone of suitable age and discretion who resides there; or

12 (C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process. 13 Fed. R. Civ. P. 4(e). 14 According to the proofs of service on file, Defendant Sameer Abdulwahid Nagi was 15 served by leaving a copy of the summons and complaint with his wife, who was at least 18 years 16 of age, at his household. (Doc. 11 at 2.) A copy of the summons and complaint was 17 subsequently mailed to Defendant Sameer Abdulwahid Nagi. (Doc. 11 at 3.) Defendant Sanaa 18 A. Obaid was personally served with the summons and complaint. (Doc. 6 at 2.) The Court 19 therefore finds that Plaintiff properly served Defendants Sameer Abdulwahid Nagi and Sanaa A. 20 Obaid pursuant to Federal Rule of Civil Procedure 4(e)(2). 21 Entity Defendant Stop ‘ N ’ Save, Inc.. 22 Rule 4 also sets forth the requirements for serving a corporation, partnership, or 23 association within a judicial district of the United States. Pursuant to Rule 4(h), a domestic 24 corporation, or a partnership or other unincorporated association that is subject to suit under a 25 common name, may be served by following state law for service of a summons on an individual 26 or by delivering a copy of the summons and complaint to an officer or agent and by mailing a 27 copy of each to the defendant. Fed. R. Civ. P. 4(h)(1). Under California law, a summons may be 28 1 served by personal service “to the person designated as agent for service of process as provided 2 by ... the Corporations Code.” Cal. Civ. Proc. § 416.10(a). California law also permits service 3 “by leaving a copy of the summons and complaint during usual office hours” at the agent’s office 4 “and by thereafter mailing a copy of the summons and complaint by first-class mail, postage 5 prepaid to the person to be served at the place where a copy of the summons and complaint were 6 left.” Cal. Civ. Proc. § 415.20. 7 According to the California Secretary of State, Stop ‘ N ’ Save, Inc. designated Jagjeet S. 8 Kapoor, 691 S. Milpitas Blvd, Suite #208 Milpitas, CA 95035, as its registered agent for service 9 of process. (See Doc. 21-3, Ex. F to Declaration of Tanya E. Moore (“Moore Decl.”)) On June 10 10, 2022, copies of the summons, complaint, and related case documents were served on Myra 11 Valica, a receptionist and person apparently in charge of the office at 691 S. Milpitas Blvd, Suite 12 #208 Milpitas, CA 95035. (Doc. 5 at 2.) On June 15, 2022, copies of the summons, complaint, 13 and related case documents were mailed via prepaid First Class postage to: Stop ‘ N ’ Save, Inc. 14 Jagjeet S Kapoor 691 S. Milpitas Blvd, Suite 208 Milpitas, CA 95035. (Doc. 5 at 3.) The Court 15 therefore finds that Plaintiff properly served Defendant Stop ‘ N ’ Save, Inc. pursuant to Rule 16 4(h). 17 C. The Eitel Factors Weigh in Favor of Default Judgment 18 The Court finds consideration of the Eitel factors weigh in favor of granting default 19 judgment in favor of Plaintiff as to Defendants Sameer Abdulwahid Nagi, Sanaa A. Obaid, and 20 Stop ‘ N ’ Save, Inc. 21 1. Possibility of Prejudice to Plaintiff 22 The first factor considers whether a plaintiff would suffer prejudice if default judgment 23 were not entered. See PepsiCo, Inc., 238 F. Supp. 2d at 1177. Generally, where default has been 24 entered against a defendant, a plaintiff has no other means by which to recover against that 25 defendant. Id.; Moroccanoil, Inc. v. Allstate Beauty Prods., 847 F. Supp. 2d 1197, 1200-01 (C.D. 26 Cal. 2012). Here, the Court finds Plaintiff would be prejudiced if default judgment were not 27 granted. This factor weighs in favor of default judgment. 28 2. Merits of Plaintiff’s Claims and Sufficiency of the Complaint 1 The second and third Eitel factors, taken together, “require that [the] plaintiff[s] state a 2 claim on which [they] may recover.” PepsiCo, Inc., 238 F. Supp. 2d at 1175. Notably a 3 “defendant is not held to admit facts that are not well-pleaded or to admit conclusions of law.” 4 DIRECTV, Inc. v. Hoa Huynh, 503 F.3d 847, 854 (9th Cir. 2007). 5 In the motion for default judgment, Plaintiff appears to have abandoned his California 6 Health and Safety Code claim. (See generally Doc. 21-1.) Moreover, Plaintiff’s Unruh Act and 7 Cal. Health & Safety Code § 19955 and § 19959 claims were dismissed without prejudice 8 pursuant to 28 U.S.C. § 1367(c)(4). (Doc. 30.) The Court therefore limits its discussion to 9 Plaintiff’s claims arising under the ADA. 10 “An ADA plaintiff suffers a legally cognizable injury under the ADA if he is 11 ‘discriminated against on the basis of disability in the full and equal enjoyment of the goods, 12 services, [or] facilities ... of any place of public accommodation.’” Chapman v. Pier 1 Imports 13 (U.S.) Inc., 631 F.3d 939, 952 (9th Cir. 2011) (quoting 42 U.S.C. § 12182(a)). As relevant here, 14 discrimination is defined as “a failure to remove architectural barriers . . . where such removal is 15 readily achievable.” 42 U.S.C. § 12182(b)(2)(A)(iv). 16 “To prevail on a Title III discrimination claim, the plaintiff must show that (1) [he] is 17 disabled within the meaning of the ADA; (2) the defendant is a private entity that owns, leases, or 18 operates a place of public accommodation; and (3) the plaintiff was denied public 19 accommodations by the defendant because of [his] disability.” Molski v. M.J. Cable, Inc., 481 20 F.3d 724, 730 (9th Cir. 2007) (citing 42 U.S.C. §§ 12182(a)-(b)). “To succeed on a ADA claim of 21 discrimination on account of one’s disability due to an architectural barrier, the plaintiff must 22 also prove that: (1) the existing facility at the defendant’s place of business presents an 23 architectural barrier prohibited under the ADA, and (2) the removal of the barrier is readily 24 achievable.” Parr v. L & L Drive-Inn Restaurant, 96 F. Supp. 2d 1065, 1085 (D. Hawai’i 2000) 25 (emphasis in original). 26 A private party is only entitled to injunctive relief under Title III of the ADA, however, 27 the ADA gives the court discretion to award attorney fees to the prevailing party. Molski, 481 28 F.3d at 730. 1 Plaintiff alleges that he is substantially limited in his ability to walk and must use a 2 wheelchair, knee scooter, or prosthetic for mobility and that he therefore is disabled as defined by 3 applicable law. (Doc. 1, Compl. ¶ 8.) Plaintiff also alleges that the Facility is a public 4 accommodation and open to the public. (Compl. ¶ 9.) Plaintiff further alleges that Defendants 5 own, operate and/or lease the Facility and the architectural barriers identified are easily removed 6 without much difficulty or expense. (Id. ¶¶ 7, 21.) 7 Plaintiff further contends that he lives less than ten miles from the Facility and visited the 8 Facility on December 18, 2021, to buy cigarettes. (Id. ¶ 10). Plaintiff asserts that the sole 9 designated accessible parking in the Facility’s parking lot was not van accessible and had the 10 access aisle on the driver side. (Id. ¶ 10(a).) Additionally, Plaintiff alleges that the lack of an 11 access aisle on the passenger side will make it difficult for him to return to the Facility in his 12 wheelchair. (Id.) Plaintiff further asserts that the route to the Facility entrance was excessively 13 sloped, uneven, and had broken asphalt, which made it difficult for Plaintiff to walk on his 14 prosthetic leg. (Id. ¶10(b).) Plaintiff asserts that he was denied full and equal enjoyment and use 15 of the goods, services, facilities, privileges and accommodations of the Facility. (Id. ¶ 18.) These 16 allegations are taken as true due to Defendants’ default, and Plaintiff has met his burden of stating 17 a prima facie claim for discrimination under Title III. Plaintiff is thereby entitled to injunctive 18 relief for the violations of the ADA. 19 For the reasons set forth above, the Court finds that the second and third Eitel factors 20 weigh in favor of default judgment. 21 3. The Sum of Money at Stake in the Action 22 Under the fourth factor cited in Eitel, “the court must consider the amount of money at 23 stake in relation to the seriousness of Defendant’s conduct.” PepsiCo, Inc., 238 F. Supp. 2d at 24 1176; see also Philip Morris USA, Inc. v. Castworld Prods., Inc., 219 F.R.D. 494, 500 (C.D. Cal. 25 2003). 26 Here, Plaintiff seeks actual attorneys’ fees and costs incurred in the amount of $3,537.24.1 27 1 In his Motion for Default Judgment, Plaintiff also sought a single statutory minimum penalty 28 assessment of $4,000.00 pursuant to the Unruh Act. (Doc. 21-1 at 6.) However, Plaintiff’s 1 The amount of money at stake is relatively small and it does not seem unreasonable in light of the 2 allegations contained in the complaint. Accordingly, this factor does not weigh against entry of 3 default judgment. 4 4. The Possibility of a Dispute Concerning Material Facts 5 Following the Clerk’s entry of default, the Court may assume the truth of well-pled facts 6 in the complaint and, thus, there is no likelihood that any genuine issue of material fact exists. 7 See, e.g., Elektra Entm’t Grp. Inc. v. Crawford, 226 F.R.D. 388, 393 (C.D. Cal. 2005) (“Because 8 all allegations in a well-pleaded complaint are taken as true after the court clerk enters default 9 judgment, there is no likelihood that any genuine issue of material fact exists.”). Further, 10 Defendants’ failure to file an answer in this case or a response to the instant motion supports the 11 conclusion that the possibility of a dispute as to material facts is minimal. This factor therefore 12 weighs in favor of default judgment. 13 5. Whether the Default Was Due to Excusable Neglect 14 The sixth Eitel factor considers the possibility that Defendants’ default resulted from 15 excusable neglect. PepsiCo, Inc., 238 F. Supp. 2d at 1177. Courts have found that where a 16 defendant was “properly served with the complaint, the notice of entry of default, as well as the 17 paper in support of the [default judgment] motion,” there is no evidence of excusable neglect. 18 Shanghai Automation Instrument Co. v. Kuei, 194 F. Supp. 2d 995, 1005 (N.D. Cal. 2001). 19 Upon review of the record, the Court finds that the default was not the result of excusable 20 neglect. See PepsiCo, Inc., 238 F. Supp. 2d at 1177. As discussed above, Defendants were 21 properly served with the complaint and the motion for default judgment, which included 22 notification of the Clerk’s entry of default. (See Docs. 5, 6, 7-2, 9-2, 11, 16-2, 21-7.) Despite 23 service, Defendants have not appeared. Thus, the record suggests that Defendants have chosen 24 not to participate in this action, and not that the default resulted from any excusable neglect. 25 Accordingly, this factor weighs in favor of the entry of a default judgment. 26 6. The Strong Policy Favoring Decisions on the Merits 27

28 Unruh Act claim was dismissed without prejudice pursuant to 28 U.S.C. § 1367(c)(4). (Doc. 30.) 1 “Cases should be decided upon their merits whenever reasonably possible.” Eitel, 782 2 F.2d at 1472. However, district courts have concluded with regularity that this policy, standing 3 alone, is not dispositive, especially where a defendant fails to appear or defend itself in an action. 4 PepsiCo, Inc., 238 F. Supp. 2d at 1177; see also Craigslist, Inc. v. Naturemarket, Inc., 694 F. 5 Supp. 2d 1039, 1061 (N.D. Cal. Mar. 5, 2010). Although the Court is cognizant of the policy 6 favoring decisions on the merits, that policy is unavailable here because Defendants have not 7 responded. Accordingly, the Court finds that this factor does not weigh against entry of default 8 judgment. 9 D. Remedies 10 1. Injunctive Relief 11 Plaintiff seeks injunctive relief under the ADA for violations alleged in the complaint. In 12 particular, Plaintiff seeks an injunction requiring removal of all architectural barriers to Plaintiff’s 13 access to the facility. 42 U.S.C. § 12188 provides that “injunctive relief shall include an order to 14 alter facilities to make such facilities readily accessible to and usable by individuals with 15 disabilities to the extent required” the ADA. 42 U.S.C. § 12188(a)(2). Pursuant to federal and 16 state law, Plaintiff is entitled to the removal of those architectural barriers which he encountered 17 on his visit to the facility that violated the ADA. Therefore, an injunction should issue requiring 18 Defendants Sameer Abdulwahid Nagi, Sanaa A. Obaid, and Stop ‘ N ’ Save, Inc., to provide a 19 properly configured van-accessible parking stall with an adjacent access aisle and provide a 20 properly configured accessible route of travel from the designated accessible parking stall to the 21 Facility entrance. 22 2. Statutory Damages 23 Plaintiff seeks statutory damages in the amount of $4,000.00 as authorized by California 24 law. (Doc. 21-1 at 6.) The Unruh Act provides for minimum statutory damages of $4,000 for 25 each violation. Cal. Civ. Code § 52(a); Grove v. De La Cruz, 407 F. Supp. 2d 1126, 1133 (C.D. 26 Cal. 2005). As Plaintiff’s Unruh Act claim was dismissed without prejudice pursuant to 28 27 U.S.C. § 1367(c)(4), Plaintiff is not entitled to statutory damages of $4,000.000. (Doc. 30.) 28 3. Attorneys’ Fees and Costs 1 Plaintiff also seeks an award of attorneys’ fees and costs. The ADA authorizes the award 2 of attorney's fees and costs for an action. See 42 U.S.C. § 12205. Attorney fee awards are 3 calculated using the lodestar method, which multiplies the numbers of hours reasonably spent on 4 the matter with a reasonable hourly rate. Vogel v. Harbor Plaza Ctr., LLC, 893 F.3d 1152, 1160 5 (9th Cir. 2018). The district court has the discretion to make adjustments to the number of hours 6 claimed or to the lodestar, but is required to provide a clear but concise reason for the fee award. 7 Gates v. Deukmejian, 987 F.2d 1392, 1398 (9th Cir. 1992). 8 Here, Plaintiff's counsel seeks an award of $2,305.00 in attorney fees, plus $1,232.24 in 9 litigation costs. (Doc. 21-1 at 7.) Specifically, Plaintiff requests: (1) $1,500.00 for 5 hours of 10 work expended by attorney Tanya E. Moore at an hourly rate of $300; (2) $310.50 for 2.7 hours 11 of work expended by paralegal Whitney Law at an hourly rate of $115.00; and (3) $494.50 for 4.3 12 hours of work expended by paralegal Isaac Medrano at an hourly rate of $115.00. (Id.) 13 Hourly Rates 14 As indicated, Plaintiff requests an hourly rate of $300.00 for work by attorney Tanya 15 Moore and $115.00 for work by paralegals Whitney Law and Isaac Medrano. (Id.) Courts in this 16 district have found these rates reasonable for the services of attorney Moore and for the services 17 of her paralegals. See Trujillo v. Singh, Case No. 1:16-cv-01640 LJO-EPG, 2017 WL 1831941, 18 at *3 (E.D. Cal. May 8, 2017); accord e.g., Trujillo v. GH Food Mart, Inc., No. 1:20-cv-00368- 19 AWI-SKO, 2020 WL 4697139, at *7 (E.D. Cal. Aug. 13, 2020); Trujillo v. La Valley Foods, Inc., 20 No. 1:16-cv-01402-AWI-BAM, 2017 WL 2992453, at *5 (E.D. Cal. Jul. 14, 2017); Trujillo v. 21 Lakhani, No. 1:17-cv-00056-LJO-SAB, 2017 WL 1831942, at *7 (E.D. Cal. May 8, 2017). The 22 Court therefore finds the requested hourly rates to be reasonable for Ms. Moore and her 23 paralegals. 24 Attorney Time Expended by Ms. Moore 25 Plaintiff seeks recovery for 5 hours of work performed by Ms. Moore at $300.00 per hour. 26 (Doc. 21-1 at 7.) When considering the billing entries and time records submitted by Plaintiff's 27 counsel, the Court finds that the 5 hours billed by Ms. Moore is reasonable. The Court will 28 recommend awarding Ms. Moore $1,500.00 for 5 hours of work to litigate this case. 1 Paralegal Time Expended by Ms. Law and Mr. Medrano 2 Plaintiff seeks compensation for 2.7 hours expended by paralegal Whitney Law at 3 $115.00 per hour, and 4.3 hours expended by paralegal Isaac Medrano at $115.00 per hour. (Doc. 4 27-1 at 7.) For the reasons below, the Court will reduce the number of hours expended by Mr. 5 Medrano on the Motion for Default Judgment. On July 13, 2022, Mr. Medrano billed 1.3 hours 6 preparing the motion for default judgment and the supporting documents. (Doc. 21-3, Ex. A to 7 Moore Decl. at 3.) However, the motion for default judgment filed in this case is nearly identical 8 to motions for default judgment filed by Ms. Moore in other actions before this Court. 9 Accordingly, the Court finds that one hour of Mr. Medrano’s time is sufficient to prepare the 10 motion. Trujillo v. La Valley Foods, Inc., 2017 WL 2992453 at *7. The Court will therefore 11 deduct 0.3 hours from Mr. Medrano’s time. 12 Based on the above, the Court will recommend Plaintiff be awarded 6.7 hours of paralegal 13 time comprised of 2.7 hours for Ms. Law ($115.00 hourly rate) and 4.0 hours for Mr. Medrano 14 ($115.00 hourly rate) for a total of $770.50. 15 4. Litigation Expenses and Costs 16 Plaintiff requests to recover litigation expenses and costs of $1,232.24. (Doc. 21-1 at 7.) 17 Under the ADA, a district court, in its discretion, can allow the prevailing party other than the 18 United States to recover a reasonable attorney’s fee, including litigation expenses and costs. 42 19 U.S.C. § 12205. The costs here include the court filing fee, costs of service, and fees for a pre- 20 filing investigation, which are compensable. See Trujillo v. La Valley Foods, Inc., 2017 WL 21 2992453, at *7 (finding costs for court filing fee, costs of service, and fee for a pre-filing site 22 inspection of the facility compensable); (Doc. 21-2, Moore Decl. ¶¶ 12-14; Doc. 21-3, Ex. B to 23 Moore Decl. at 7-12, Ex. C to Moore Decl. at 14; Ex. D to Moore Decl. at 16) Accordingly, the 24 Court recommends that plaintiff be awarded the sum of $1,232.24 for litigation expenses and 25 costs. 26 IV. CONCLUSION AND RECOMMENDATION 27 Based on the foregoing, the Court HEREBY RECOMMENDS as follows: 28 1. Plaintiff's motion for default judgment be GRANTED IN PART as to Defendants 1 Sameer Abdulwahid Nagi, Sanaa A. Obaid, and Stop ‘ N ’ Save, Inc. and DENIED 2 without prejudice as to Defendant Bonfare Markets, Inc. following voluntary 3 dismissal. 4 2. Pursuant to Federal Rule of Civil Procedure 54(b), the Court determines that there 5 is no just reason to delay entry of judgment. 6 3. The Clerk of the Court be directed to terminate Defendant Bonfare Markets, Inc. 7 dba Bonfare Market #43 only on the docket; 8 4. Defendants Sameer Abdulwahid Nagi, Sanaa A. Obaid, and Stop ‘ N ’ Save, Inc. 9 be found and declared to be in violation of Title III of the Americans with 10 Disabilities Act; 11 5. Defendants Sameer Abdulwahid Nagi, Sanaa A. Obaid, and Stop ‘ N ’ Save, Inc. 12 be ordered to make the following modifications to the facility known as Bonfare 13 Market #43, located at 145 North Santa Cruz Avenue, Modesto, CA, such that each 14 item is brought into compliance with the accessibility requirements of the 15 Americans with Disabilities Act and California Code of Regulations, Title 24, as 16 follows: 17 a) Provide a properly configured van-accessible parking stall with an 18 adjacent access aisle; and 19 b) Provide a properly configured accessible route of travel from the 20 designated accessible parking stall to the Facility entrance. 21 7. Judgment be entered in Plaintiff's favor and against Defendants Sameer 22 Abdulwahid Nagi, Sanaa A. Obaid, and Stop ‘ N ’ Save, Inc. in the amount of 23 $3,502.74, consisting of: attorney's fees in the amount of $1,500.00 (5 hours at 24 $300 per hour), paralegal fees in the amount of $770.50 (6.7 hours at $115.00 per 25 hour), and costs of suit in the amount of $1,232.24; 26 8. Plaintiff is HEREBY ORDERED to mail a copy of these findings and 27 recommendations to each of the Defendants at that Defendant's last known 28 address. 1 These Findings and Recommendations will be submitted to the United States District 2 Judge assigned to the case, as required by 28 U.S.C. § 636(b)(l). Within fourteen (14) days after 3 being served with these findings and recommendations, the parties may file written objections 4 with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings 5 and Recommendations.” The parties are advised that the failure to file objections within the 6 specified time may result in the waiver of the “right to challenge the magistrate’s factual 7 findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 8 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 9 IT IS SO ORDERED. 10

11 Dated: March 9, 2023 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 12

13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Gilbert v. Bonfare Markets, Inc., (E.D. Cal. 2023).

Pincite

Gilbert v. Bonfare Markets, Inc. (Gilbert v. Bonfare Markets, Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.