7 UNITED STATES DISTRICT COURT
8 NORTHERN DISTRICT OF CALIFORNIA 9 SAN JOSE DIVISION 10
11 SCOTT JOHNSON, Case No. 20-CV-02200-LHK
12 Plaintiff, ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR 13 v. DEFAULT JUDGMENT
14 12 N PARK VICTORIA LLC, and JALAL KHALILZADEH, 15 Defendants. 16
Plaintiff Scott Johnson filed this action for violation of the Americans with Disabilities Act 17 (“ADA”) and California Unruh Civil Rights Act (“UCRA”). ECF No. 1 (“Compl.”). Before the 18 Court is Plaintiff Scott Johnson’s (“Plaintiff”) motion for default judgment against Defendants 12 19 N Park Victoria LLC and Jalal Khalilzadeh (“Khalilzadeh”) (collectively, “Defendants”). ECF 20 No. 17.1 Having considered Plaintiff’s submissions, the relevant law, and the record in this case, 21 the Court GRANTS in part and DENIES in part Plaintiff’s motion for default judgment. 22 I. BACKGROUND 23 A. Factual Background 24 25
26 1 Plaintiff’s motion for default judgment contains a notice of motion that is contained in a separate document from the points and authorities in support of the motion. ECF No. 17, at 1. Civil Local 27 Rule 7-2(b) provides that the notice of motion and points and authorities must be contained in one document with the same pagination. 1 Plaintiff, a resident of California, is a level C-5 quadriplegic. Compl. at ¶ 1. Plaintiff uses 2 a wheelchair for mobility because he cannot walk and drives a specially equipped van for 3 transportation. Id. 4 Plaintiff alleges that in June of 2019, October of 2019, and January of 2020, he visited the 5 Shell Gas Station owned by Defendants in Milpitas, California (“Shell Gas Station”). Id. at ¶¶ 10, 6 3–5. Plaintiff alleges that the Shell Gas Station is “a facility open to the public, a place of public 7 accommodation, and a business establishment.” Id. at ¶ 11. Plaintiff alleges that Defendant 12 N 8 Park Victoria LLC owns the real property at the location of the Shell Gas Station, and that 9 Defendant Khalilzadeh owns the Shell Gas Station. Id. at ¶ 3, 5. 10 Plaintiff alleges that on each of the dates that Plaintiff visited the Shell Gas Station, 11 Defendants (1) “failed to provide wheelchair accessible parking in conformance with the ADA 12 Standards”; (2) “failed to provide wheelchair accessible sales counters in conformance with the 13 ADA Standards”; and (3) “failed to provide wheelchair accessible paths of travel inside the Gas 14 Station store in conformance with the ADA Standards.” Id. at ¶ 12, 14, 16. Plaintiff alleges that 15 he personally encountered these barriers, and that “[b]y failing to provide accessible facilities, the 16 defendants denied the plaintiff full and equal access.” Id. at ¶ 19. 17 Plaintiff further states that an investigator working for Plaintiff’s counsel was sent to 18 investigate Plaintiff’s claim that the Shell Gas Station lacked wheelchair accessible parking 19 spaces, a wheelchair accessible sales counter, and wheelchair accessible paths of travel inside the 20 Shell Gas Station. Mot. at 2. The investigator visited the Shell Gas Station on March 9, 2020 and 21 confirmed that “defendants failed to provide wheelchair accessible parking spaces, wheelchair 22 accessible sales counter and wheelchair accessible paths of travel inside the Gas Station store.” Id. 23 B. Procedural History 24 On April 1, 2020, Plaintiff filed the instant case against Defendants. Compl. at 1. Plaintiff 25 brings two claims against Defendants: (1) violation of the ADA, 42 U.S.C. § 12101, et seq.; and 26 (2) violation of the Unruh Civil Rights Act (“UCRA”), Cal. Civ. Code § 51 et seq. Id. at ¶¶ 25– 27 40. 1 On May 27, 2020, Plaintiff filed a Summons Returned for 12 N Park Victoria LLC. ECF 2 No. 10. On June 2, 2020, Plaintiff filed a Summons Returned for Khalilzadeh. ECF No. 11. 3 Neither Defendant has appeared in this case. 4 On June 16, 2020, Plaintiff filed a motion for entry of default as to 12 N Park Victoria 5 LLC. ECF No. 12. On June 17, 2020, the Clerk of Court entered default against 12 N Park 6 Victoria LLC. ECF No. 13. 7 On June 29, 2020, Plaintiff filed a motion for entry of default as to Khalilzadeh. ECF No. 8 14. On June 30, 2020, the Clerk of Court entered default against Khalilzadeh. ECF No. 15. 9 On February 18, 2021, Plaintiff filed the instant motion for default judgment against both 10 Defendants. ECF No. 17 (“Mot.”). 11 II. LEGAL STANDARD 12 Pursuant to Federal Rule of Civil Procedure 55(b)(2), the Court may enter a default 13 judgment when the Clerk, under Rule 55(a), has previously entered a party’s default. Fed. R. Civ. 14 P. 55(b). “The district court’s decision whether to enter a default judgment is a discretionary one.” 15 Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). Once the Clerk enters default, all well- 16 pleaded allegations regarding liability are taken as true, except with respect to damages. See Fair 17 Hous. of Marin v. Combs, 285 F.3d 899, 906 (9th Cir. 2002) (“With respect to the determination 18 of liability and the default judgment itself, the general rule is that well-pled allegations in the 19 complaint regarding liability are deemed true.”); TeleVideo Sys. v. Heidenthal, 826 F.2d 915, 917– 20 18 (9th Cir. 1987) (“[U]pon default the factual allegations of the complaint, except those relating 21 to the amount of damages, will be taken as true.”); Philip Morris USA v. Castworld Prods., 219 22 F.R.D. 494, 499 (C.D. Cal. 2003) (“[B]y defaulting, Defendant is deemed to have admitted the 23 truth of Plaintiff's averments.”). “In applying this discretionary standard, default judgments are 24 more often granted than denied.” Philip Morris, 219 F.R.D. at 498. 25 “Factors which may be considered by courts in exercising discretion as to the entry of a 26 default judgment include: (1) the possibility of prejudice to the plaintiff, (2) the merits of 27 plaintiff’s substantive claim, (3) the sufficiency of the complaint, (4) the sum of money at stake in 1 the action; (5) the possibility of a dispute concerning material facts; (6) whether the default was 2 due to excusable neglect, and (7) the strong policy underlying the Federal Rules of Civil 3 Procedure favoring decisions on the merits.” Eitel v. McCool, 782 F.2d 1470, 1471–72 (9th Cir. 4 1986). 5 III. DISCUSSION 6 A. Jurisdiction 7 “When entry of judgment is sought against a party who has failed to plead or otherwise 8 defend, a district court has an affirmative duty to look into its jurisdiction over both the subject 9 matter and the parties. A judgment entered without personal jurisdiction over the parties is void.” 10 In re Tuli, 172 F.3d 707, 712 (9th Cir. 1999) (citations omitted). In order to avoid the entry of an 11 order of default judgment that may subsequently be attacked as void, the Court must first 12 determine whether jurisdiction over the instant case exists. 13 The Court begins with subject matter jurisdiction and then proceeds to personal 14 jurisdiction. Finally, for the Court to exercise personal jurisdiction over a defendant, the 15 defendant must also have been served in accordance with Federal Rule of Civil Procedure 4. 16 Accordingly, the Court then turns to service of process. 17 1. Subject Matter Jurisdiction 18 Here, Plaintiff brings this action, in part, pursuant to federal law. Specifically, Plaintiff 19 brings a claim for violation of the ADA, 42 U.S.C. § 12101, et seq. Compl. at ¶¶ 25–35. The 20 Court has subject matter jurisdiction over Plaintiff’s ADA claim. See 28 U.S.C. § 1331 (“The 21 district courts shall have original jurisdiction of all civil actions arising under the Constitution, 22 laws, or treaties of the United States.”). 23 Plaintiff also brings a related state law claim for violation of the California Unruh Civil 24 Rights Act (“UCRA”), Cal. Civ. Code § 51 et seq. Compl. at ¶¶ 36–40. Because Plaintiff’s state 25 law claim stems from the same underlying event as Plaintiff’s federal claim—Defendants’ 26 ownership of a Shell Gas Station that allegedly does not permit access by people with 27 disabilities—the Court has supplemental jurisdiction over Plaintiff’s state law claim. See 28 1 U.S.C. § 1367(b) (“In any civil action of which the district courts have original jurisdiction, the 2 district courts shall have supplemental jurisdiction over all other claims that are so related to 3 claims in the action within such original jurisdiction that they form part of the same case or 4 controversy under Article III of the United States Constitution.”); DaimlerChrysler Corp. v. Cuno, 5 547 U.S. 332, 351 (2006) (“[F]ederal-question jurisdiction over a claim may authorize a federal 6 court to exercise jurisdiction over state-law claims that may be viewed as part of the same case 7 because they ‘derive from a common nucleus of operative fact’ as the federal claim.”) (quoting 8 Mine Workers v. Gibbs, 383 U.S. 715, 725 (1966)); DiscoverOrg Data, LLC v. Bitnine Global, 9 Inc, 2020 WL 6562333, at *3 (N.D. Cal. Nov. 9, 2020) (concluding that the Court had subject 10 matter jurisdiction where Plaintiff asserted federal claims and state law claims that stemmed from 11 the same underlying event as the federal claims). Accordingly, the Court has subject matter 12 jurisdiction over both of Plaintiff’s claims. The Court next considers whether it has personal 13 jurisdiction over Defendants. 14 2. Personal Jurisdiction 15 “The party seeking to invoke the court’s jurisdiction bears the burden of establishing that 16 jurisdiction exists.” Scott v. Breeland, 792 F.2d 925, 927 (9th Cir. 1986) (citing Data Disc, Inc. v. 17 Sys. Tech. Assocs., 557 F.2d 1280, 1285 (9th Cir. 1977)). Personal jurisdiction over an out-of- 18 state defendant is appropriate if the relevant state’s long-arm statute permits the assertion of 19 jurisdiction without violating federal due process. Schwarzenegger v. Fred Martin Motor Co., 374 20 F.3d 797, 800–01 (9th Cir. 2004). California’s long-arm statute, Cal. Civ. Proc. Code § 410.10, is 21 co-extensive with federal due process requirements, and therefore the jurisdictional analyses under 22 California law and federal due process merge into one. See Cal. Civ. Proc. Code § 410.10 (“[A] 23 court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of 24 this state or of the United States.”); Mavrix Photo, Inc. v. Brand Techs., Inc., 647 F.3d 1218, 1223 25 (9th Cir. 2011) (“California’s long-arm statute . . . is coextensive with federal due process 26 requirements, so the jurisdictional analyses under state law and federal due process are the 27 same.”). 1 For a court to exercise personal jurisdiction over a defendant consistent with due process, 2 that defendant must have “certain minimum contacts” with the relevant forum state “such that the 3 maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’” 4 Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 5 463 (1940)). In addition, “the defendant’s ‘conduct and connection with the forum State’ must be 6 such that the defendant ‘should reasonably anticipate being haled into court there.’” Sher v. 7 Johnson, 911 F.2d 1357, 1361 (9th Cir. 1990) (quoting World-Wide Volkswagen Corp. v. 8 Woodson, 444 U.S. 286, 297 (1980)). 9 A court may exercise either general or specific jurisdiction over a defendant. See Ziegler 10 v. Indian River Cty., 64 F.3d 470, 473 (9th Cir. 1995). In the instant case, the Court concludes that 11 the exercise of general jurisdiction over Defendants is appropriate. 12 General jurisdiction exists when a defendant is physically present in the forum state or 13 when a defendant’s activities in the forum state are “continuous and systematic” such that a 14 defendant’s contacts approximate physical presence in the forum state. See Schwarzenegger, 374 15 F.3d at 801 (citation omitted). 16 Here, Plaintiff alleges that Defendants are owners of the real property and non-ADA- 17 compliant Shell Gas Station at issue in the instant case, which is located in Milpitas, California. 18 Compl. at ¶ 3–5. On this basis, the Court finds that Defendants have “substantial” and 19 “continuous and systematic” contacts with the forum state that support the Court’s exercise of 20 general personal jurisdiction. See Schwarzenegger, 374 F.3d at 801 (general jurisdiction exists 21 where a defendant has “continuous and systematic general business contacts . . . that approximate 22 physical presence in the forum state” (citations omitted)); see also Golden West Veg, Inc. v. 23 Bartley, 2017 WL 2335602, at *4 (N.D. Cal. May 30, 2017) (finding that plaintiff established 24 personal jurisdiction for purposes of default judgment by alleging that defendant operated a sole 25 proprietorship continuously in the state of California); Macias v. Fasail, 2021 WL 2719297, at *5 26 (N.D. Cal. July 1, 2021) (same). Moreover, Plaintiff has provided evidence that Khalilzadeh is a 27 resident of Milpitas, California and that 12 N Park Victoria LLC is domiciled in California. ECF 1 No. 17-7, at 3-6. 2 Accordingly, the Court finds that it has general personal jurisdiction over Defendants. 3 3. Service of Process 4 Finally, for the Court to properly exercise personal jurisdiction over Defendants, 5 Defendants must have been served in accordance with Federal Rule of Civil Procedure 4. See 6 Jackson v. Hayakawa, 682 F.2d 1344, 1347 (9th Cir. 1982) (“Defendants must be served in 7 accordance with Rule 4(d) of the Federal Rules of Civil Procedure, or there is no personal 8 jurisdiction.” (footnote omitted)); see also Pension Tr. Fund for Operating Eng’rs v. Kickin 9 Enters., 2012 WL 6711557, at *3 (N.D. Cal. Dec. 20, 2012) (“[W]here entry of default judgment 10 is requested, the Court must determine whether service of process was adequate.”). 11 Service of a complaint in federal court is governed by Federal Rule of Civil Procedure 4 12 (“Rule 4”). Rule 4(e)(1) allows for service “following state law for serving a summons in an 13 action brought in courts of general jurisdiction in the state where the district court is located or 14 where service is made.” Fed. R. Civ. P. 4(e)(1). 15 Plaintiff argues that service was effectuated on both Defendants via personal service. Mot. 16 at 5. However, Plaintiff’s own proof of service filings indicate that service was made via 17 substitute service, not personal service. See ECF Nos. 10, 11 (stating that service was made via 18 substitute service). Because the requirements for service of process via substitute service are 19 different for individual defendants and entity defendants, the Court addresses the sufficiency of 20 service on the defendants separately. 21 Defendant 12 N Park Victoria LLC 22 Plaintiff’s proof of service states that 12 N Park Victoria LLC was served pursuant to 23 California Code of Civil Procedure Section 415.20. ECF No. 10. Section 415.20(a) requires (1) 24 that a copy of the summons and complaint be left during usual office hours at the company’s 25 office; (2) that the summons and complaint be left “with the person who is apparently in charge 26 thereof”; and (3) that after the summons and complaint are left, a copy of the summons and 27 complaint be mailed with prepaid postage “to the person to be served at the place where a copy of 1 the summons and complaint were left.” Cal. Civ. Proc. Code § 415.20(a). Plaintiff’s proof of 2 service demonstrate that Plaintiff has met these requirements. See ECF No. 10. 3 However, to effectuate substitute service on an entity defendant under California law, 4 Plaintiff is also required to satisfy California Code of Civil Procedure Sections 417.10(a) and 5 412.30. In the instant case, Plaintiff has failed to satisfy these additional requirements. First, 6 Plaintiff has not provided an “affidavit of the person making the service” as required under 7 California Code of Civil Procedure Section 417.10(a). Second, Plaintiff has failed to provide an 8 affidavit stating that the summons included a notice as required by California Code of Civil 9 Procedure Section 412.30. The Court addresses each requirement below. 10 First, under California Code of Civil Procedure Section 417.10(a), when a corporation is 11 served under Section 415.20, “[p]roof that a summons was served . . . shall be made . . . by the 12 affidavit of the person making the service showing the time, place, and manner of service and facts 13 showing that the service was made in accordance with this chapter.” Cal. Civ. Proc. Code § 14 417.10; see also Michael Grecco Prods., Inc. v. Enthusiast Gaming, Inc., 2020 WL 4207445, at *5 15 (N.D. Cal. July 22, 2020) (explaining requirements of Section 417.10(a)). Plaintiff has failed to 16 provide an affidavit from the person making the service in the instant case. 17 Second, this affidavit must show that “the notice required by Section 412.30 appeared on 18 the copy of the summons served, if in fact it did appear.” Cal. Civ. Proc. Code § 417.10. 19 California Code of Civil Procedure Section 412.30 requires that a copy of the summons to be 20 served contains a notice “stating in substance: ‘To the person served: You are hereby served in the 21 within action (or special proceeding) on behalf of [the corporation being served] as a person upon 22 whom a copy of the summons and of the complaint may be delivered to effect service on said 23 party under the provisions of [Sections 415.20(a) and 417.10(a)].’” Cal. Civ. Proc. Code § 412.30. 24 “If such notice does not appear on the copy of the summons served, no default may be taken 25 against such corporation or unincorporated association or against such person individually, as the 26 case may be.” Id. 27 Plaintiff has failed to provide an affidavit from the process server stating that the copy of 1 the summons served on 12 N Park Victoria LLC included the notice required under Section 2 412.30. As a result, “no default may be taken” against 12 N Park Victoria LLC. Cal. Civ. Proc. 3 Code § 412.30; see also Michael Grecco Prods., 2020 WL 4207445, at *5-6 (explaining that 4 default may not be entered if these requirements are not met). 5 Accordingly, the Court finds that Plaintiff has not demonstrated that service was proper as 6 to 12 N Park Victoria LLC. Because “[f]ailed service cannot support the entry of a default 7 judgment,” the Court DENIES Plaintiff’s motion for default judgment without prejudice as to 12 8 N Park Victoria LLC. Heifetz v. Breed Properties, 2017 WL 713303, at *3 (N.D. Cal. Feb. 23, 9 2017) (citing Mason v. Genisco Tech. Corp., 960 F.2d 849, 851 (9th Cir. 1992)). 10 Because Plaintiff could demonstrate that service of process on 12 N Park Victoria LLC 11 was proper by filing the requisite affidavit from the process server, the Court affords Plaintiff an 12 additional opportunity to demonstrate that service of process was proper. Within 7 days of this 13 Order, Plaintiff shall file proof that the purported May 25, 2020 service complied with the 14 requirements of California Code of Civil Procedure Sections 415.20(a), 417.10(a), and 412.30. If 15 service of process on 12 N Park Victoria LLC was proper, Plaintiff shall file a renewed motion for 16 default judgment by September 1, 2021. If, however, service of process on 12 N Park Victoria 17 LLC was not proper, then the Court will order the Clerk of the Court to vacate the entry of default 18 against 12 N Park Victoria LLC. Plaintiff must then properly serve 12 N Park Victoria LLC. 19 Defendant Khalilzadeh 20 An individual defendant may be served under California law through substituted service by 21 “leaving a copy of the summons and complaint during usual office hours in [the defendant’s] 22 office . . . with the person who is apparently in charge thereof . . . and by thereafter mailing a copy 23 of the summons and complaint . . . where a copy of the summons and complaint were left.” Cal. 24 Code Civ. Proc. § 415.20(a). 25 Unlike an entity defendant, substitute service under California law may be made on an 26 individual only after attempting to personally serve the defendant with “reasonable diligence.” 27 Cal. Civ. Proc. Code § 415.20(b). Generally, “two or three attempts at personal service at a proper 1 place should fully satisfy the requirement of reasonable diligence and allow substituted service to 2 be made.“ Produce v. Cal. Harvest Healthy Foods Ranch Market, 2012 WL 259575, at *5 (N.D. 3 Cal. Jan. 27, 2012) (internal quotation marks and citation omitted). After personal service has 4 been attempted with reasonable diligence, a copy of the summons and complaint may be left at the 5 defendant’s usual place of business with a “person apparently in charge” thereof, who is “at least 6 18 years of age, [and] who shall be informed of the contents” of the summons. Cal. Civ. Proc. 7 Code § 415.20(b). Furthermore, a plaintiff must then mail a copy of the documents to the 8 individual defendant at the address where service was effectuated. Id. 9 Here, the process server left the summons and other documents with Valvir Singh, an 10 employee over the age of 18, after failing to personally serve Khalilzadeh three times at the Shell 11 Gas Station. See ECF No. 11, at 3. The process server informed Singh of the general nature of 12 the documents. Id. at 1. The process server then mailed the documents to the Shell Gas Station 13 address with postage prepaid. Id. at 4. Based on these facts and the information provided by 14 Plaintiff, the Court is satisfied that Khalilzadeh was properly served pursuant to Federal Rule of 15 Civil Procedure 4(e)(1) and California Code of Civil Procedure § 415.20(b). Therefore, the Court 16 properly exercises personal jurisdiction over Khalilzadeh. 17 B. Whether Default Judgment is Proper 18 Having determined that the Court’s exercise of subject matter jurisdiction and personal 19 jurisdiction over Khalilzadeh is proper, the Court now turns to the Eitel factors to determine 20 whether entry of default judgment against Khalilzadeh is warranted. 21 1. First Eitel Factor: Possibility of Prejudice 22 Under the first Eitel factor, the Court considers the possibility of prejudice to Plaintiff if 23 default judgment is not entered against Defendant Khalilzadeh. “A plaintiff who is denied a 24 default judgment and is subsequently left without any other recourse for recovery has a basis for 25 establishing prejudice.” Michael Grecco Prods., Inc. v. Enthusiast Gaming, Inc, 2020 WL 26 7227199, at *6 (N.D. Cal. Dec. 8, 2020) (quoting DiscoverOrg, 2020 WL 6562333, at *5). Here, 27 Plaintiff has established that Plaintiff will be prejudiced because Khalilzadeh has not participated 1 in this litigation and that Plaintiff would be without recourse to recover for the damages caused by 2 Khalilzadeh if default judgment is not granted. Therefore, the first Eitel factor weighs in favor of 3 granting default judgment. 4 2. Second and Third Eitel Factors: Merits of Plaintiff’s Substantive Claims and the Sufficiency of the Complaint 5 The second and third Eitel factors address the merits and sufficiency of Plaintiff’s claims 6 as pleaded in Plaintiff’s complaint. Courts often analyze these two factors together. See Dr. JKL 7 Ltd. v. HPC IT Educ. Ctr., 749 F. Supp. 2d 1038, 1048 (N.D. Cal. 2010) (“Under an Eitel analysis, 8 the merits of plaintiff’s substantive claims and the sufficiency of the complaint are often analyzed 9 together.”). In its analysis of the second and third Eitel factors, the Court will accept as true all 10 well-pled allegations regarding liability in the complaint. See Fair Hous. of Marin, 285 F.3d at 11 906 (“[T]he general rule is that well-pled allegations in the complaint regarding liability are 12 deemed true.”). The Court will therefore consider the merits of Plaintiff’s claims and the 13 sufficiency of the complaint together. 14 In the instant case, Plaintiff brings two claims against Khalilzadeh: (1) violation of the 15 ADA, 42 U.S.C. § 12101, et seq.; and (2) violation of the Unruh Civil Rights Act (“UCRA”), Cal. 16 Civ. Code § 51 et seq. Compl. at ¶¶ 25–40. The Court first addresses Plaintiff’s ADA claim and 17 then addresses Plaintiff’s UCRA claim. 18 Title III of the ADA prohibits discrimination on the basis of disability within places of 19 public accommodation: “No individual shall be discriminated against on the basis of disability in 20 the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or 21 accommodations of any place of public accommodation by any person who owns, leases (or leases 22 to), or operates a place of public accommodation.” 42 U.S.C. § 12182(a). In order to state a claim 23 under Title III of the ADA, Plaintiff must allege that: (1) he is disabled within the meaning of the 24 ADA; (2) Defendant owns, leases, or operates a place of public accommodation; and (3) Plaintiff 25 was denied public accommodations by Defendant because of Plaintiff’s disability. Molski v. M.J. 26 Cable, Inc., 481 F.3d 724, 730 (9th Cir. 2007). Additionally, “[t]o succeed on an ADA claim 27 1 based on architectural barriers, [Plaintiff] must also prove that: (1) the existing facility presents an 2 architectural barrier prohibited under the ADA; and (2) the removal of the barrier is readily 3 achievable.” Johnson v. Shahkarami, 2021 WL 1530940, at *4 (N.D. Cal. Apr. 19, 2021) (internal 4 citation and quotation marks omitted). 5 In the instant case, Plaintiff alleges the necessary facts to establish his claim under the 6 ADA. First, Plaintiff alleges that he is disabled within the meaning of the ADA. Specifically, 7 Plaintiff alleges that he is a level C-5 quadriplegic. Compl. at ¶ 1. Plaintiff further alleges that he 8 uses a wheelchair for mobility because he cannot walk and that he uses a specially equipped van 9 for transportation. Id. 10 Second, Plaintiff alleges that Khalilzadeh is the owner of the Shell Gas Station, and that 11 the Shell Gas Station is “a facility open to the public, a place of public accommodation, and a 12 business establishment.” Id. at ¶ 11. 13 Third, Plaintiff alleges that the Shall Gas Station presents several architectural barriers 14 prohibited under the ADA. Plaintiff alleges that the Shell Gas Station: (1) “failed to provide 15 wheelchair accessible parking in conformance with the ADA Standards”; (2) “failed to provide 16 wheelchair accessible sales counters in conformance with the ADA Standards”; and (3) “failed to 17 provide wheelchair accessible paths of travel inside the Gas Station store in conformance with the 18 ADA Standards.” Id. at ¶ 12, 14, 16. 19 Specifically, Plaintiff alleges that the following barriers exist at the Shell Gas Station: (1) 20 parking stalls and access aisles in the Shell Gas Station parking lot that are not level with each 21 other in violation of ADA 2010 Standard § 502.4; (2) access isles next to the wheelchair 22 accessible parking spaces that are not marked so as to discourage parking in them in violation of 23 ADA 2010 Standard § 502.3.3; (3) a sales counter that is not 36 inches or lower in height and 24 greater than 36 inches in width in violation of ADA 2010 Standards § 904.4 and 904.4.1; and (4) 25 paths of travel inside the Shell Gas Station that are less than 36 inches in width in violation of 26 ADA 2010 Standard § 403.5.1. Mot. at 9. Plaintiff alleges that he personally encountered these 27 barriers, and that “[b]y failing to provide accessible facilities, the defendants denied the plaintiff 1 full and equal access.” Compl. at ¶ 19. Finally, Plaintiff argues that removal of these barriers is 2 “readily achievable.” Mot. at 10. Accordingly, the Court concludes that Plaintiff has adequately 3 stated an ADA claim. 4 As to Plaintiff’s UCRA claim, the UCRA provides that a violation of the ADA is a 5 violation of the UCRA. See Cal. Civ. Code, § 51(f). In the instant case, Plaintiff’s UCRA claim 6 “arises from the same nucleus of operative facts as the ADA claim.” Johnson v. Medvill 1, LLC, 7 2020 WL 7696056, at *7 (N.D. Cal. Dec. 28, 2020). Because the Court concludes that Plaintiff 8 has adequately stated an ADA claim, the Court also concludes that Plaintiff has adequately stated 9 a UCRA claim. 10 Because the Court concludes that Plaintiff has adequately stated an ADA claim and a 11 UCRA claim, the second and third Eitel factors weigh in favor of granting default judgment as to 12 both of Plaintiff’s claims. 13 3. Fourth Eitel Factor: The Amount of Money at Stake 14 Under the fourth Eitel factor, “the court must consider the amount of money at stake in 15 relation to the seriousness of Defendant’s conduct.” PepsiCo Inc. v. Cal Sec. Cans, 238 F. Supp. 16 2d 1172, 1176 (C.D. Cal. 2002); see also Eitel, 782 F.2d at 1471-72. “The Court considers 17 Plaintiff’s declarations, calculations, and other documentation of damages in determining if the 18 amount at stake is reasonable.” Trung Giang Corp. v. Twinstar Tea Corp., 2007 WL 1545173, at 19 *12 (N.D. Cal. May 29, 2007). 20 Default judgment is disfavored when a large amount of money is involved or is 21 unreasonable in light of the potential loss caused by the defendant’s actions. Id. However, courts 22 have found that this factor “presents no barrier to default judgment” as long as the potential 23 damages were “proportional to the harm alleged.” See Liu Hongwei v. Velocity V Ltd., 2018 WL 24 3414053, at *8 (C.D. Cal. July 11, 2018) (finding that a request of $4,000,000 was justified); 25 United States v. Roof Guard Roofing Co., 2017 WL 6994215, at *3 (N.D. Cal. Dec. 14, 2017) 26 (holding that a request for over $1,000,000 was reasonable because the tax debt was substantiated 27 with proof provided by the government). 1 Here, Plaintiff seeks to recover $12,000 in statutory damages and $4,640.00 in attorneys’ 2 fees and costs. For the reasons explained below, infra Section III(C)(1), the Court concludes that 3 an award of $12,000 in statutory damages and $3,640.00 in attorneys’ fees and costs is reasonable 4 and proportional to the ADA and UCRA violations alleged herein. The Court notes that, under the 5 UCRA, Plaintiff is entitled to statutory damages of $4,000 for each time he was discriminated 6 against. Cal. Civ. Code § 52(a). Plaintiff alleges that he went to the Shell Gas Station and 7 experienced its architectural barriers on three occasions, which entitles Plaintiff to $12,000 in 8 statutory damages. Compl. at ¶ 13. Therefore, the fourth Eitel factor weighs in favor of default 9 judgment. 10 4. Fifth and Sixth Eitel Factors: Potential Disputes of Material Fact and Excusable Neglect 11 The fifth Eitel factor considers the possibility of disputes as to any material facts in the 12 case. Where a defendant fails to appear in an action, a court can infer “the absence of the 13 possibility of a dispute concerning material facts.” Solaria Corp. v. T.S. Energie e Risorse, S.R.I., 14 2014 WL 7205114, at *3 (N.D. Cal. Dec. 17, 2014). Khalilzadeh has failed to make an 15 appearance in this case. The Court therefore takes the allegations in the complaint as true and 16 holds that there is no dispute over material facts. Fair Hous. of Marin, 285 F.3d at 906 (“With 17 respect to the determination of liability and the default judgment itself, the general rule is that 18 well-pled allegations in the complaint regarding liability are deemed true.”). Furthermore, the 19 evidence provided by Plaintiff establishes that the Shell Gas Station has structural barriers that 20 prevent equal access by people with disabilities. Compl. ¶¶ 9–10 (Plaintiff’s allegations based on 21 approximately three visits to the Shell Gas Station in one year and the findings of Plaintiff’s 22 counsel’s investigator). 23 The sixth Eitel factor considers whether failure to appear was the result of excusable 24 neglect. After Plaintiff made three efforts to personally serve Khalilzadeh, Khalilzadeh was 25 properly served via substitute service. See Section III(A)(3)(b), supra (explaining why service 26 was proper); ECF No. 11 (proof of service). Nonetheless, Khalilzadeh has not made an 27 1 appearance nor challenged the entry of default in this case. Based on this record, nothing before 2 the Court suggests that Khalilzadeh’s failure to appear or litigate this case was the result of 3 excusable neglect. As such, Khalilzadeh has no excusable reason to fail to appear in the instant 4 case. 5 5. Seventh Eitel Factor: Policy Favoring Decision on the Merits 6 Although the policy favoring decision on the merits generally weighs strongly against 7 awarding default judgment, district courts regularly hold that the policy against default judgment, 8 standing alone, is not dispositive, especially where a defendant fails to appear or defend himself. 9 See, e.g., Craigslist, Inc. v. Naturemarket, Inc., 694 F. Supp. 2d 1039, 1061 (N.D. Cal. 2010) 10 (explaining that where defendants have failed to appear, policy of favoring decisions on the merits 11 will not block default judgment); Hernandez v. Martinez, 2014 WL 3962647, at *9 (N.D. Cal. 12 Aug. 13, 2014) (same). Khalilzadeh was properly served and has not made an appearance nor 13 challenged the entry of default. Thus, the likelihood of the case proceeding to a resolution on the 14 merits is low. Accordingly, the Court finds that this factor slightly weighs against default 15 judgment. 16 6. Balancing of Eitel Factors 17 In sum, the following six Eitel factors weigh in favor of default judgment as to Plaintiff’s 18 ADA and UCRA claims: (1) the possibility of prejudice, (2) the merits of Plaintiff’s substantive 19 claims, (3) the sufficiency of the complaint, (4) the sum of money at stake in the action, (5) the 20 possibility of a dispute concerning material facts, and (6) excusable neglect. See Eitel, 782 F.2d at 21 1471–72. The final factor, the policy favoring decisions on the merits, weighs slightly against 22 default judgment. The Court concludes that the last Eitel factor is outweighed by the other six 23 factors that favor default judgment. See, e.g., Michael Grecco Prods., Inc., 2020 WL 7227199, at 24 *6 (concluding that the last Eitel factor, which weighed slightly against default judgment, was 25 outweighed by the first six Eitel factors, which weighed in favor of default judgment); 26 DiscoverOrg, 2020 WL 6562333, at *8 (same). Thus, the Court concludes that default judgment 27 is appropriate. C. Damages 1 A plaintiff who seeks default judgment “must also prove all damages sought in the 2 complaint.” Dr. JKL Ltd., 749 F. Supp. 2d at 1046 (citing Philip Morris USA, Inc. v. Castworld 3 Prods., Inc., 219 F.R.D. 494, 498 (C.D. Cal. 2003)). Federal Rule of Civil Procedure 55 does not 4 require the Court to conduct a hearing on damages, as long as it ensures that there is an evidentiary 5 basis for the damages awarded in the default judgment order. See Action SA v. Marc Rich & Co., 6 951 F.2d 504, 508 (2d Cir. 1991), abrogated on other grounds as recognized by Day Spring 7 Enters., Inc. v. LMC Int’l, Inc., 2004 WL 2191568 (W.D.N.Y. Sept. 24, 2004). 8 In the instant case, Plaintiff seeks the following relief: (1) statutory damages; (2) injunctive 9 relief; and (3) attorney’s fees and costs. The Court addresses each form of relief in turn. 10 1. Statutory Damages 11 Under the UCRA, a defendant that discriminates against a plaintiff is liable for one of two 12 types of damages. The Court can either award actual damages in a sum of up to three times actual 13 damages, or statutory damages, which can be no less than $4,000 for each time the plaintiff was 14 discriminated against by the defendant. Cal. Civ. Code § 52(a). In order to be awarded damages 15 by the Court, the plaintiff must demonstrate that Plaintiff had knowledge of the barriers at issue, 16 and that Plaintiff experienced difficulty, discomfort, or embarrassment when visiting Defendant’s 17 establishment. Cal. Civ. Code § 55.56. 18 In the instant case, Plaintiff seeks statutory damages of $12,000. Mot. at 11. As explained 19 above, supra Section III(B)(2), Plaintiff has stated a UCRA claim and has adequately alleged that 20 Plaintiff had knowledge of the barriers at issue and experienced difficulty and discomfort as a 21 result of the barriers during Plaintiff’s visits to the Shell Gas Station. Compl. at ¶ 20. 22 Accordingly, the Court grants Plaintiff’s request for $12,000 in statutory damages. See Ridola v. 23 Chao, 2018 WL 2287668, at *15 (N.D. Cal. May 18, 2018) (awarding $8,000 in statutory 24 damages after plaintiff twice visited location that was non-compliant with the ADA). 25 2. Injunctive Relief 26 Plaintiff seeks an injunction under the ADA with respect to the barriers alleged in the 27 1 complaint. Mot. at 12. Specifically, Plaintiff seeks an order requiring Khalilzadeh to provide 2 wheelchair accessible parking spaces; a wheelchair accessible sales counter; and wheelchair 3 accessible paths of travel inside the Shell Gas Station. Id. at 13. The Court considers Plaintiff’s 4 requested injunctive relief below. 5 Where a property does not comply with the requirements of Title III of the ADA, a 6 plaintiff is entitled to an “order to alter facilities to make such facilities readily accessible to and 7 usable by individuals with disabilities.” 42 U.S.C. § 12188. In the instant case, as explained 8 above, Plaintiff has adequately alleged that the Shell Gas Station does not comply with the ADA 9 because the Shell Gas Station has several architectural barriers that Plaintiff experienced on each 10 of his visits. Compl. at ¶¶ 12–15. 11 Specifically, as Plaintiff’s investigator noted in the inspection and as Plaintiff alleges in the 12 complaint and motion for default judgment, the following barriers exist: (1) parking stalls and 13 access aisles in the Shell Gas Station parking lot that are not level with each other in violation of 14 ADA 2010 Standard § 502.4; (2) access isles next to the wheelchair accessible parking spaces that 15 are not marked so as to discourage parking in them in violation of ADA 2010 Standard § 502.3.3; 16 (3) a sales counter that is higher than 36 inches in height and less than 36 inches in width in 17 violation of ADA 2010 Standards § 904.4 and 904.4.1; and (4) paths of travel inside the Shell Gas 18 Station that are less than 36 inches in width in violation of ADA 2010 Standard § 403.5.1. Mot. at 19 9; ECF No.17-5, at ¶¶ 3–5. (“Wegman Decl.”). Because the Court concludes that Plaintiff has 20 adequately alleged that the Shell Gas Station has architectural barriers that violate the ADA, 21 Plaintiff is entitled to an injunction to remedy these architectural barriers. 42 U.S.C. § 12188. 22 In sum, the Court concludes that Plaintiff is entitled to an injunction ordering Khalilzadeh 23 to remedy the following architectural barriers: (1) parking stalls and access aisles in the Shell Gas 24 Station parking lot that are not level with each other in violation of ADA 2010 Standard § 502.4; 25 (2) access isles next to the wheelchair accessible parking spaces that are not marked so as to 26 discourage parking in them in violation of ADA 2010 Standard § 502.3.3; (3) a sales counter that 27 is higher than 36 inches in height and less than 36 inches in width in violation of ADA 2010 1 Standards § 904.4 and 904.4.1; and (4) paths of travel inside the Shell Gas Station that are less 2 than 36 inches in width in violation of ADA 2010 Standard § 403.5.1. 3 3. Attorney’s Fees and Costs 4 The ADA permits a prevailing plaintiff to recover reasonable attorney’s fees, litigation 5 expenses, and costs. See 42 U.S.C. § 12205. To calculate an award of reasonable attorney’s fees, 6 courts multiply the number of hours reasonably expended on the litigation by the reasonable 7 hourly rate. See Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). In calculating the number of 8 hours reasonably expended on the litigation, the Court excludes hours that are “excessive, 9 redundant, or otherwise unnecessary.” Id. at 434. In determining the hourly rate, the Court must 10 “consider[] the experience, skill and reputation of the attorney requesting fees.” Chalmers v. Los 11 Angeles, 796 F.2d 1205, 1210 (9th Cir. 1986), opinion amended on denial of reh’g, 808 F.2d 1373 12 (9th Cir. 1987). 13 In the instant case, Plaintiff requests $4,640.00 in attorneys’ fees and costs, including: (1) 14 $650.00 in attorney’s fees for attorney Mark Potter; (2) $1,170.00 in attorney’s fees for attorney 15 Russell Handy; (3) $900 in attorney’s fees for attorney Amanda Seabock; (4) $1,040 in attorney’s 16 fees for attorney Faythe Gutierrez; and (5) $880.00 in other litigation costs. Mot. at 13; ECF No. 17 17-3, at 8 (“Handy Decl.”). Below, the Court addresses in turn (1) Plaintiff’s counsel’s hourly 18 rate; (2) the number of hours expended by Plaintiff’s counsel; and (3) litigation costs. 19 Plaintiff’s Counsel’s Hourly Rate 20 The first step in the calculation of a lodestar figure is to determine the reasonable hourly 21 rate to be applied. For the purposes of determining the proper hourly rate, the relevant community 22 is the forum in which the Court sits. Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 979 (9th 23 Cir. 2008). “Affidavits of the plaintiffs’ attorney and other attorneys regarding prevailing fees in 24 the community, and rate determinations in other cases, particularly those setting a rate for the 25 plaintiffs’ attorney, are satisfactory evidence of the prevailing market rate.” United Steelworkers 26 of America v. Phelps Dodge Corp., 896 F.2d 403, 407 (9th Cir. 1990). 27 When a party seeking fees submits declarations, courts must consider those declarations 1 and cannot substitute that analysis by only considering previous fee awards. Roberts v. City of 2 Honolulu, 938 F.3d 1020, 1024 (9th Cir. 2019) (“The district court diverged from the applicable 3 standard in discarding the declarations entirely and considering only the previous fee awards in 4 determining the prevailing market rate.”). 5 However, the Ninth Circuit has made clear that “[a] reasonable fee is a fee that is sufficient 6 to induce a capable attorney to undertake the representation of a meritorious civil rights case.” 7 Vogel v. Harbor Plaza Ctr., LLC, 893 F.3d 1152, 1158 (9th Cir. 2018) (quotation marks omitted). 8 Thus. the purpose of granting fees in cases like the instant case is both “to attract qualified counsel 9 to civil rights cases and [to] avoid[] a windfall to counsel. The way to do so is to compensate 10 counsel at the prevailing rate in the community for similar work; no more, no less.” Id. (quotation 11 marks, citations, and internal alterations omitted). 12 Here, Plaintiff seeks a rate of $650 per hour for attorneys Mark Potter and Russell Handy; 13 a rate of $500 per hour for attorney Amanda Seabock; and a rate of $400 per hour for attorney 14 Faythe Gutierrez. Handy Decl. at ¶¶ 3–6. 15 Plaintiff has submitted the declaration of John O’Connor to justify his claimed hourly 16 rates. ECF No. 17-10 (“O’Connor Decl.”). According to O’Connor, attorneys Mark Potter and 17 Russell Handy have between twenty-one and twenty-six years of experience. Id. at ¶ 30. Attorney 18 Amanda Seabock, who is an associate, has six years of experience. Id. The O’Connor Declaration 19 does not discuss the experience of attorney Faythe Gutierrez, who is an associate. 20 Based on the experience of the attorneys at issue in the instant case, O’Connor “opine[d]” 21 that in this district, “the most appropriate rate for partners’ ADA services range from $450 to $750 22 per hour, despite recent awards as low as $400 to $425.” Id. at ¶ 27. O’Connor further explained 23 that “for associates’ services” in this district, the “most appropriate range” is “from $300 to $550 24 per hour, notwithstanding exceptional awards as low as $250.” Id. O’Connor declared that his 25 opinion was based on “recent rates awarded in the Northern District, and disability rates in the Bay 26 Area in general,” which he has “kept abreast of . . . since at least 2000.” Id. at ¶ 29. As a result, 27 Plaintiff’s counsel seeks rates of $650 per hour for attorneys Mark Potter and Russell Handy; $500 1 per hour for attorney Amanda Seabock; and $400 per hour for attorney Faythe Gutierrez. Handy 2 Decl. at ¶¶ 3–6. 3 However, the O’Connor Declaration alone does not justify the rates that Plaintiff seeks in 4 the instant case. The rates that Plaintiff seeks are all on the high end of the O’Connor 5 Declaration’s claimed reasonable rates, and Plaintiff’s counsel does not adequately justify these 6 specific rates. Moreover, in ADA cases, courts typically award analogous rates for attorneys with 7 far more experience than Plaintiff’s counsel. See, e.g., Rodriguez v. Barrita, Inc., 53 F. Supp. 3d 8 1268, 1268 (N.D. Cal. 2014) (awarding fees at $645 per hour for an attorney who was a “member 9 of the California bar for over forty-five years” and because “defendants d[id] not contest that 10 $645/hour [was] a reasonable rate”); Martin v. Diva Hosp. Grp., Inc., 2018 WL 6710705, at *2 11 (N.D. Cal. Dec. 7, 2018) (awarding fees of $700 per hour for attorneys with almost thirty years of 12 experience and awarding fees of $795 per hour for an attorney with almost fifty years of 13 experience). Moreover, courts in this district have noted “that a rate over $700/hour is the 14 exception, and not the norm, for disability cases.” Johnson v. Rocklin of Cal. LLC, 2019 WL 15 3854308, at *10 (N.D. Cal. Aug. 16, 2019) (citing Chapman v. NJ Properties, Inc., 2019 WL 16 3718585, at *4 (N.D. Cal. Aug. 7, 2019)). Rather, “[f]or attorneys with approximately 20 or more 17 years of experience, courts have generally approved rates ranging from $350 to $495 in disability 18 cases.” Id. (collecting cases). 19 The Court acknowledges that Plaintiff’s counsel has obtained a fee award consistent with 20 what Plaintiff requests in the instant case in Love v. Rivendell II, Ltd., et al., Case No. 18-CV- 21 03907-JST (EDL), ECF No. 25 (N.D. Cal. Mar. 11, 2019) (report and recommendation granting 22 hourly rate of $650 for attorneys Potter and Handy); see id., ECF No. 30 (adopting report and 23 recommendation). However, as multiple courts in this district have explained, “that lone order 24 granting an unopposed motion does not accurately reflect the prevailing rate in the community for 25 work similar to this action,” as “that order cited cases that concerned work substantially different 26 from the work performed in this action.” Johnson v. AutoZone, Inc., 2019 WL 2288111, at *6 n.4 27 (N.D. Cal. May 29, 2019); Rocklin of Cal. LLC, 2019 WL 3854308, at *9 (same); John v. Cala 1 Stevens Creek/Monroe, LLC, 2020 WL 2556989, at *5 (N.D. Cal. May 20, 2020) (same). 2 Specifically, the case that Rivendell relied upon involved “a complex class action matter involving 3 54 hotels spread among multiple states” and set “‘new precedent’ that caused the California State 4 Bar to ‘change a policy which impacts potentially hundreds of individuals each year across 5 California.’” Rocklin of Cal. LLC, 2019 WL 3854308, at *9 (distinguishing the fee award in 6 Rivendell). 7 By contrast, the instant case is a straightforward ADA case with a single gas station that 8 presents no significant legal issues of first impression. When a case “is a relatively simple one, 9 involving straight-forward application of the law, and which does not present novel or difficult 10 issues requiring a high level of skill or specialization,” courts have found that higher rates are 11 generally unwarranted. See Johnson v. Oakwood Ctr. LLC, 2019 WL 7209040, at *13 (N.D. Cal. 12 Dec. 27, 2019). 13 Moreover, as Plaintiff’s own expert explained, the floor for reasonable ADA rates in this 14 district is $450 per hour for partners and $300 per hour for associates. O’Connor Decl. at ¶¶ 27, 15 33. Recent decisions from this district confirm that rates similar to these are reasonable. See, e.g., 16 Johnson v. Chao, 2021 WL 1430799, at *9 (N.D. Cal. Feb. 2, 2021) (granting rates of $475 to 17 attorneys Potter and Handy; $350 to attorney Seabock; and $300 to attorney Gutierrez); Johnson v. 18 Baglietto, 2020 WL 3065939, at *12 (N.D. Cal. May 21, 2020) (granting rates of $475 for 19 attorneys Potter and Handy, and $350 for attorney Seabock); Cala Stevens Creek/Monroe, LLC, 20 2020 WL 2556989, at *7 (granting rates of $475 for attorneys Potter and Handy, and $350 for 21 attorney Seabock); Rocklin of Cal. LLC, 2019 WL 3854308, at *12 (granting rates of $475 per 22 hour for attorneys Potter and Handy and $350 per hour for attorney Seabock); and Oakwood Ctr. 23 LLC, 2019 WL 7209040, at *13 (granting rates of $475 for attorneys Potter and Handy, and $350 24 for attorney Seabock). 25 Finally, these rates are reasonable because, as the Ninth Circuit has explained, “[a] 26 reasonable fee is a fee that is sufficient to induce a capable attorney to undertake the representation 27 of a meritorious civil rights case.” Vogel, 893 F.3d at 1158 (quotation marks omitted). As this 1 Court previously noted, Plaintiff’s counsel as of November 2019 had filed over one thousand 2 ADA cases in this district and approximately four thousand ADA cases in the Central District and 3 Eastern District of California, and there is no evidence that rates of approximately $475 per hour 4 for partners and approximately $300 to $350 per hour for associates are insufficient to induce 5 capable attorneys to undertake ADA litigation in this district. See Cala Stevens/Monroe, LLC, 6 2020 WL 2556989, at *6 (explaining Plaintiff’s counsel’s volume of ADA cases in this circuit); 7 Johnson v. Maple Tree Investors et al., No. 17-cv-06762-LHK, ECF No. 62 at 17, 34-36 (N.D. 8 Cal. Dec. 4, 2019) (transcript of November 7, 2019 hearing at which attorney from Plaintiff’s 9 counsel’s firm represented that his law firm has simultaneously “over a thousand” ADA cases in 10 this district and approximately 1,500 ADA cases in the Central District of California and had 11 litigated approximately 2,500 ADA cases in the Eastern District of California). Moreover, the 12 Ninth Circuit has noted that “district court[s] must strike a balance between granting sufficient 13 fees to attract qualified counsel to civil rights cases and avoiding a windfall to counsel.” Vogel, 14 893 F.3d at 1158 (quotation marks, citations, and internal alterations omitted). The Court 15 therefore finds that awarding the fees requested by Plaintiff’s counsel in this case would result in a 16 prohibited windfall to Plaintiff’s counsel. See id. 17 Accordingly, in light of Plaintiff’s declaration and evidence, case law from this district 18 concerning reasonable attorney’s fees, and binding Ninth Circuit precedent, the Court determines 19 that the following hourly rates are reasonable for the instant case: $475 per hour for attorneys 20 Mark Potter and Russell Handy; $350 per hour for attorney Amanda Seabock; and $300 per hour 21 for attorney Faythe Gutierrez. 22 Plaintiff’s Number of Hours 23 Plaintiff requests a total of 7.2 hours for work on the instant case. Handy Decl. at 9. These 24 hours include 1.00 hour for attorney Mark Potter (case assessment, instructions to investigator, 25 analysis of claims, review of images); 1.8 hours for attorney Russell Handy (review of investigator 26 report, public records search, instructions for complaint drafting); 1.8 hours for attorney Amanda 27 Seabock (drafting of complaint and drafting request for entry of default); and 2.8 hours for 1 attorney Faythe Gutierrez (drafting motion for default judgment and finalizing declarations for 2 investigator and plaintiff). Id. at 8–9. Having reviewed Plaintiff’s counsel’s declaration and 3 supporting documentation, the Court concludes that these hours were expended reasonably. 4 Accordingly, the Court calculates Plaintiff’s counsel’s lodestar as follows. 1.00 hour for 5 Mark Potter at $475 per hours for a total of $475.00. 1.8 hours for Russell Handy at $475 per hour 6 for a total of $855.00. 1.8 hours for Amanda Seabock at $350 per hour for a total of $630.00. 7 Finally, 2.8 hours for Faythe Gutierrez at $300 per hour for a total of $840.00. In sum, the Court 8 concludes that Plaintiff is entitled to $2,800.00 in attorneys’ fees in the instant case. 9 Litigation Costs 10 Finally, Plaintiff requests $880.00 in other litigation costs. Plaintiff has submitted 11 documentation showing that he expended a total of $880.00 in litigation costs in the instant case, 12 including a $400.00 filing fee, $80 on service of documents, and $400.00 on investigative costs. 13 ECF No. 17-3, at 7. The Court concludes that these litigation costs are reasonable with the 14 exception of the $80 request for service of documents. See Rodriguez v. Barrita, Inc., 53 F. Supp. 15 3d 1268, 1295 (N.D. Cal. 2014) (awarding costs for an investigator to perform site surveillance in 16 an ADA case); Cruz v. Starbucks Corp., 2013 WL 2447862, at *10 (N.D. Cal. 2013) (awarding 17 costs for filing and service of process fees). The Court awards only $40 for service of documents 18 because this service charge includes both Khalilzadeh and 12 N Park Victoria LLC, and the Court 19 has denied Plaintiff’s motion for default judgment with respect to 12 N Park Victoria LLC. 20 Accordingly, the Court awards only $40 for service of documents. As such, the Court grants 21 Plaintiff $840.00 in litigation costs. 22 Thus, the Court grants in part and denies in part Plaintiff’s request for attorneys’ fees and 23 costs. In total, the Court grants Plaintiff $2,800 in attorneys’ fees and $840.00 in other litigation 24 costs for a total award of $3,640.00 in attorneys’ fees and costs. 25 IV. CONCLUSION 26 For the foregoing reasons, the Court GRANTS Plaintiff’s motion for default judgment 27 against Khalilzadeh on Plaintiff’s claims for violation of the ADA and UCRA. The Court awards 1 Plaintiff $12,000 in statutory damages and $3,640.00 in attorneys’ fees and costs. The Court 2 enters an injunction ordering Khalilzadeh to remedy the following violations of the ADA at the 3 Shell Gas Station in Milpitas, California: (1) parking stalls and access aisles in the Shell Gas 4 Station parking lot that are not level with each other in violation of ADA 2010 Standard § 502.4; 5 (2) access isles next to wheelchair accessible parking spaces that are not marked so as to 6 discourage parking in them in violation of ADA 2010 Standard § 502.3.3; (3) a sales counter in 7 the Shell Gas Station that is higher than 36 inches in height and less than 36 inches in width in 8 violation of ADA 2010 Standards § 904.4 and 904.4.1; and (4) paths of travel inside the Shell Gas 9 Station that are less than 36 inches in width in violation of ADA 2010 Standard § 403.5.1. 10 Finally, the Court DENIES Plaintiff’s motion for default judgment as to 12 N Park 11 Victoria LLC with leave to amend. Within 7 days of this Order, Plaintiff shall file proof that the 12 purported May 25, 2020 service complied with the requirements of California Code of Civil 13 Procedure Sections 415.20(a), 417.10(a), and 412.30. If service of process on 12 N Park Victoria 14 LLC was proper, Plaintiff shall file a renewed motion for default judgment by September 1, 2021. 15 If, however, service of process on 12 N Park Victoria LLC was not proper, then the Court will 16 order the Clerk of the Court to vacate the entry of default against 12 N Park Victoria LLC. 17 Plaintiff must then properly serve 12 N Park Victoria LLC. 18 IT IS SO ORDERED. 19 Dated: August 2, 2021 20 ______________________________________ LUCY H. KOH 21 United States District Judge 22 23 24 25 26 27