1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 SCOTT JOHNSON, Case No. 19-cv-06474-BLF
8 Plaintiff, ORDER GRANTING PLAINTIFF'S 9 v. MOTION FOR DEFAULT JUDGMENT
10 IN SUK JUN, et al., [Re: ECF 41] 11 Defendants.
12 13 Plaintiff Scott Johnson brings this action against In Suk Jun, Kyu Jin Jun, Jung Youn Lee, 14 and Jeong Ae Lee, alleging violations of the Americans with Disabilities Act of 1990 (“ADA”), 42 15 U.S.C. § 12101, et seq., and the California Unruh Civil Rights Act (the “Unruh Act”), Cal. Civ. 16 Code §§ 51–53. See Compl. ¶¶ 21–32, ECF 1. Mr. Johnson seeks injunctive relief along with 17 statutory damages, attorneys’ fees, and costs. 18 Defendants Jung Youn Lee and Jeong Ae Lee filed Applications for Stay of Proceedings 19 on November 7, 2019. See ECF 12, ECF 13. This Court denied these applications on November 20 21, 2019 because the state court forms were not applicable to proceedings in federal court. See 21 Order Den. Defs.’ Mot. to Stay, ECF 15. Defendants Jung Youn Lee and Jeong Ae Lee then 22 moved to dismiss the complaint on December 3, 2019, but this Court denied the motion as a 23 premature motion for summary judgment on February 12, 2020. See Def.’s Mot. to Dismiss, ECF 24 16; Order Den. Defs. Mot. to Dismiss, ECF 29. On April 30, 2020, Mr. Johnson and Defendants 25 Jung Youn Lee and Jeong Ae Lee reached a settlement in this matter, and Mr. Johnson voluntarily 26 dismissed Defendants Jung Youn Lee and Jeong Ae Lee on June 9, 2020. See Notice of 27 Settlement, ECF 30; Pl.’s Notice of Voluntary Dismissal, ECF 35. This voluntary dismissal notice 1 Meanwhile, Defendants In Suk Jun and Kyu Jin Jun (together, “Defendants”) never 2 answered the Complaint or otherwise appeared in this matter. At Mr. Johnson’s request, this Court 3 entered default against Defendants on January 9, 2020. See Req. for Entry of Default (As to In Suk 4 Jun Only), ECF 21; Req. for Entry of Default (As to Kyu Jin Jun Only), ECF 22; Entry of Default 5 (As to Kyu Jin Jun), ECF 23; Entry of Default (As to In Suk Jun), ECF 24. Now before the Court 6 is Mr. Johnson’s Memorandum of Points and Authorities in Support of Application for Default 7 Judgment (“Motion”). Mot., ECF 41-1. Defendants were notified of Mr. Johnson’s Motion on 8 June 23, 2020. See Notice of Filing, ECF 42; see also Fed. R. Civ. P. 55(b)(2). Defendants did not 9 oppose or otherwise respond to the Motion. Briefing on the matter is now closed. See Civ. L.R. 7- 10 3(a). The Court found this matter suitable for submission without oral argument and has vacated 11 the hearing set on the Motion. See Order Vacating Hearing, ECF 44. For the reasons discussed 12 below, the Court GRANTS Plaintiff’s Motion for Default Judgment with the terms stated below. 13 I. BACKGROUND 14 According to his Complaint, Mr. Johnson is a level C-5 quadriplegic who cannot walk and 15 has significant manual dexterity impairments. Compl. ¶ 1. Mr. Johnson says that he uses a 16 wheelchair for mobility and has a specially equipped van. Id. Defendants are the alleged owners of 17 the real property (the “Store”) open to the public located at or about 1855 Tully Road, San Jose, 18 California. Id. ¶¶ 2–5, 11. 19 Mr. Johnson alleges that barriers at the Store prevented him from enjoying full and equal 20 access to the facility. Id. ¶¶ 10–20. Specifically, Mr. Johnson alleges that he visited the Store on 21 several occasions, including twice in April 2019 and once in May 2019. Id. ¶ 10; Mot. 1–2. During 22 each of those visits, Mr. Johnson claims that Defendants failed to provide accessible parking. 23 Compl. ¶¶ 12–13. In particular, Mr. Johnson alleges that the “parking stall and access aisle were 24 not level with each other because there was a built-up curb ramp running into the access aisle.” 25 Mot. 2. In addition, “there were running and cross slopes in the stall and access aisle that exceeded 26 2.1%.” Id. Mr. Johnson claims that he personally encountered these parking barriers and that 27 Defendants’ failure to provide accessible parking created “difficulty and discomfort” for him. 1 that the Store and its facilities are accessible. Id. ¶ 19; Mot. 3. 2 II. LEGAL STANDARD 3 Default may be entered against a party who fails to plead or otherwise defend an action, 4 and against whom a judgment for affirmative relief is sought. Fed. R. Civ. P. 55(a). 5 After entry of default, a court may, in its discretion, enter default judgment. Fed. R. Civ. P. 6 55(b)(2); Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). In deciding whether to enter 7 default judgment, a court may consider the following factors, known as the Eitel factors: (1) the 8 possibility of prejudice to the plaintiff; (2) the merits of the plaintiff’s substantive claim; (3) the 9 sufficiency of the complaint; (4) the sum of money at stake in the action; (5) the possibility of a 10 dispute concerning material facts; (6) whether the default was due to excusable neglect; and (7) 11 the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits. 12 Eitel v. McCool, 782 F.2d 1470, 1471–72 (9th Cir. 1986). In considering these factors, all factual 13 allegations in the plaintiff’s complaint are taken as true, except those relating to damages. 14 TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917–18 (9th Cir. 1987). When the damages 15 claimed are not readily ascertainable from the pleadings and the record, a court may hold a hearing 16 to conduct an accounting, determine the amount of damages, establish the truth of any allegation 17 by evidence, or investigate any other matter. Fed. R. Civ. P. 55(b)(2). 18 III. JURISDICTION AND SERVICE OF PROCESS 19 “When entry of judgment is sought against a party who has failed to plead or otherwise 20 defend, a district court has an affirmative duty to look into its jurisdiction over both the subject 21 matter and the parties.” In re Tuli, 172 F.3d 707, 712 (9th Cir. 1999). 22 A. Subject matter jurisdiction 23 District courts have subject matter jurisdiction of all civil actions arising under the laws of 24 the United States. 28 U.S.C. § 1331. Further, in any civil action where the district courts have 25 subject matter jurisdiction, the district courts will also have supplemental jurisdiction over all 26 other claims that are so related to claims in the action, such that they form part of the same case or 27 controversy. 28 U.S.C. § 1367. Mr. Johnson’s claim for relief pursuant to the ADA presents a civil 1 jurisdiction over Mr. Johnson’s ADA claim. Moreover, Mr. Johnson’s claim for relief pursuant to 2 the Unruh Act is related to the ADA claim because it arises out of the same “case or controversy,” 3 namely Mr. Johnson’s visits to the Store where he encountered alleged violations of both laws. See 4 28 U.S.C. § 1367(a). Therefore, the Court has supplemental jurisdiction over Mr. Johnson’s Unruh 5 Act claim. 6 B. Personal jurisdiction and service of process 7 Serving a summons establishes personal jurisdiction over a defendant, who is subject to the 8 jurisdiction of a court of general jurisdiction in the state where the district court is located. Fed. R. 9 Civ. P. 4(k)(1). Pursuant to Rule 4(e) of the Federal Rules of Civil Procedure, an individual 10 defendant may be served by: (1) delivering a copy of the summons and complaint to the individual 11 personally; (2) leaving a copy of the summons and complaint at the individual's dwelling or usual 12 place of abode with someone of suitable age and discretion who resides there; or (3) delivering a 13 copy of the summons and complaint to an agent authorized by appointment or law to receive 14 service of process. Fed. R. Civ. P. 4(e)(2). Alternatively, an individual defendant may be served 15 with process pursuant to the law of the state where the district court is located. Fed. R. Civ. P. 16 4(e)(1). Under California law, individual defendants may be served by several means, including 17 personal delivery of the summons and complaint to the individual or the individual's authorized 18 agent. Cal. Code Civ. Proc. §§ 415.10, 416.90. An individual defendant may also be served under 19 California law through substituted service by “leaving a copy of the summons and complaint 20 during usual office hours in [the defendant’s] office . . . with the person who is apparently in 21 charge thereof . . . and by thereafter mailing a copy of the summons and complaint . . . where a 22 copy of the summons and complaint were left.” Cal. Code Civ. Proc. § 415.20(a). 23 The record indicates that Mr. Johnson successfully served Defendants In Suk Jun and Kyu 24 Jin Jun in December 2019 via substituted service by leaving copies of the summons and complaint 25 at their place of business with the person apparently in charge (John Doe) and thereafter mailing a 26 copy of summons and complaint at the place where the copies were left. See Proof of Service of 27 Summons (As to In Suk Jun), ECF 17; Proof of Service of Summons (As to Kyu Jin Jun), ECF 18. 1 both the Federal Rules of Civil Procedure and the California Code of Civil Procedure. Therefore, 2 the Court has personal jurisdiction over the Defendants. 3 IV. EITEL FACTORS 4 For the reasons to be discussed, the Eitel factors weigh in favor of entering default 5 judgment. 6 A. The possibility of prejudice to Plaintiff 7 The first Eitel factor requires the Court to consider whether Mr. Johnson would be 8 prejudiced if default judgment is not entered. Unless default judgment is entered, Mr. Johnson will 9 have no other means of recourse against Defendants. As such, Mr. Johnson will be prejudiced if 10 default judgment is not entered. See, e.g., Ridola v. Chao, No. 16-cv-02246-BLF, 2018 WL 11 2287668, at *5 (N.D. Cal. May 18, 2018) (finding that plaintiff would be prejudiced if default 12 judgment was not entered because she “would have no other means of recourse against Defendants 13 for the damages caused by their conduct”). 14 B. The merits of Plaintiff’s claims and the sufficiency of the complaint 15 Pursuant to the second and third Eitel factors, this Court concludes that the Complaint 16 alleges meritorious substantive claims for relief under the ADA and the Unruh Act. 17 i. Title III of the ADA, 42 U.S.C. § 12101, et seq. 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). For purposes of Title III, 23 discrimination includes “a failure to remove architectural barriers . . . in existing facilities . . . 24 where such removal is readily achievable.” 42 U.S.C. § 12182(b)(2)(A)(iv). “Readily achievable” 25 is defined as “easily accomplishable and able to be carried out without much difficulty or 26 expense.” 42 U.S.C. § 12181(9). 27 a. Plaintiff’s Article III Standing 1 standing. To establish Article III standing, Mr. Johnson must demonstrate he suffered an injury in 2 fact, traceable to Defendants’ conduct, and redressable by a favorable court decision. Ridola, 2018 3 WL 2287668, at *5 (citing Hubbard v. Rite Aid Corp., 433 F. Supp. 2d 1150, 1162 (S.D. Cal. 4 2006)). Mr. Johnson claims that he suffers from a disability within the meaning of the ADA. Mot. 5 7. Mr. Johnson also alleges that he personally encountered access barriers at the Store with respect 6 to the parking lot. Compl. ¶¶ 10–20. Further, Mr. Johnson claims that he will return to the Store 7 once its facilities are made accessible. Compl. ¶ 19; Mot. 3; see Vogel v. Rite Aid Corp., 992 F. 8 Supp. 2d 998, 1008 (C.D. Cal. 2014) (“Indeed, ‘[d]emonstrating an intent to return to a non- 9 compliant accommodation is but one way for an injured plaintiff to establish Article III standing to 10 pursue injunctive relief.’” (quoting Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 949 (9th 11 Cir. 2011))). 12 Because Mr. Johnson’s factual allegations are accepted as true, and an award of statutory 13 damages and injunctive relief would redress Mr. Johnson’s alleged injuries caused by Defendants’ 14 conduct, the Court finds that Mr. Johnson has Article III standing to sue under the ADA. 15 b. ADA Claim Elements 16 To prevail on his Title III discrimination claim, Mr. Johnson must show that (1) he is 17 disabled within the meaning of the ADA; (2) Defendants own, lease, or operate a place of public 18 accommodation; and (3) he was denied public accommodations by Defendants because of his 19 disability. See Molski v. M.J. Cable, Inc., 481 F.3d 724, 730 (9th Cir. 2007). To succeed on an 20 ADA claim based on architectural barriers, Mr. Johnson “must also prove that: (1) the existing 21 facility presents an architectural barrier prohibited under the ADA; and (2) the removal of the 22 barrier is readily achievable.” Ridola, 2018 WL 2287668, at *5. 23 Mr. Johnson has adequately alleged an ADA claim. First, Mr. Johnson has established that 24 he has a disability within the meaning of the ADA. Under the ADA, a physical impairment that 25 substantially affects a major life activity, such as walking, qualifies as a disability. 42 U.S.C. 26 §§ 12102(1)(A), (2)(A). Mr. Johnson is a C-5 quadriplegic who uses a wheelchair for mobility. 27 Compl. ¶ 1; Mot. 1, 9. Second, Mr. Johnson alleges that Defendants own the Store, a place of 1 grocery store, clothing store, hardware store, shopping center, or other sales or rental 2 establishment” as a place of public accommodation). Third, Mr. Johnson alleges that during 3 several visits to the Store, he personally encountered access barriers with respect to the parking 4 lot. Compl. ¶¶ 10–20; Mot. 9–10. 5 Next, with respect to the architectural barriers, Mr. Johnson contends that Defendants’ 6 parking lot is an architectural barrier that violates the 2010 Standards of the ADA Accessibility 7 Guidelines (the “ADAAG”). Mot. 10. The ADAAG provide “objective contours of the standard 8 that architectural features must not impede disabled individuals’ full and equal enjoyment of 9 accommodations.” Chapman, 631 F.3d at 945. As such, “a violation of the ADAAG constitutes a 10 barrier under the ADA.” Ridola, 2018 WL 2287668, at *7. However, Mr. Johnson incorrectly 11 applies the 2010 Standards to his claims. The 1991 Standards apply to construction completed 12 before March 15, 2012, while the 2010 Standards apply to construction or alterations after that 13 date. See id. (“Alterations to facilities undertaken after March 15, 2012 must comply with the 2010 14 Standards.” (citing 28 C.F.R. § 35.151(c)(5)(i))). Here, Mr. Johnson submits public records 15 showing that the Store was constructed in 1976, prior to March 2012, but does not submit 16 evidence that construction or alteration has been made to the Store since 1976. See Mot. Ex. 5, 17 Public Rs. 21–22, ECF 41-7. Accordingly, the Court applies the 1991 ADAAG Standards. 18 However, the 2010 Standards govern any injunction that the Court issues, as all remedial work 19 will be undertaken after March 15, 2012. 20 Mr. Johnson claims that the Store’s failure to provide accessible parking violates the 21 ADAAG Standards. Mot. 9–10. In particular, Mr. Johnson argues that the Store fails to provide 22 “[a]ccess aisles [] at the same level as the parking spaces they serve” because a built-up curb ramp 23 runs into the access aisle. Mot. 2, 10. Mr. Johnson further alleges that the Store’s parking “slopes 24 in the stall and access aisle [] exceed[] 2.1%.” Mot. 2. Under the 1991 Standards, parking spaces 25 and access aisles must be level with surface slopes not exceeding a one to fifty ratio (2%) in all 26 directions. 28 C.F.R., Pt. 36, App. D § 4.6.3. “An essential consideration for any design is having 27 the access aisle level with the parking space.” Id. “Since a person with a disability, using a lift or 1 Mr. Johnson alleges that the access aisle between the accessible parking spaces has a slope 2 exceeding a one to fifty ratio. Mot. 9–10; see Mot. Ex. 4, Pictures, ECF 41-6. Accepting Mr. 3 Johnson’s allegations as true, the Court finds that he has successfully demonstrated that the Store’s 4 parking aisle is not in compliance with the ADA (or, as discussed below, the Unruh Act) and that 5 the condition of the parking aisle denied him full and equal access to the Store and parking lot 6 because of his disability. 7 With respect to the “readily achievable” element of his ADA claim, citing Wilson v. Haria 8 & Gogri Corp., Mr. Johnson argues that the question of whether removal of the barriers is “readily 9 achievable” is an affirmative defense that must be pled by the answering party. See Mot. 10; see 10 also 479 F. Supp. 2d 1127, 1133 (E.D. Cal. 2007). Accordingly, Mr. Johnson believes that this 11 affirmative defense has been waived because Defendants have not appeared in this matter. See 12 Mot. 10; see also Req. for Entry of Default (As to In Suk Jun Only); Req. for Entry of Default (As 13 to Kyu Jin Jun Only). 14 The Ninth Circuit recently decided to follow a burden-shifting framework to determine 15 who bears the burden of proving that removal of an architectural barrier is readily achievable. See 16 Lopez v. Catalina Channel Express, Inc., No. 19-55136, 2020 WL 5405677, at *3–*5 (9th Cir. 17 Sept. 9, 2020). Under this burden-shifting analysis, the plaintiff bears the initial burden of 18 plausibly showing that a proposal for removing a barrier is readily achievable, and then the 19 defendant bears the ultimate burden of persuasion on an affirmative defense that removal of a 20 barrier is not readily achievable. See id. 21 In this action, Mr. Johnson has met his initial burden to plausibly show that removal of the 22 identified barriers in the parking lot are readily achievable. Mr. Johnson alleges that the identified 23 barriers are “easily removed without much difficulty or expense” and that they are “the types of 24 barriers identified by the Department of Justice as presumably readily achievable to [be] 25 remove[d].” Compl. ¶ 18. Additionally, the Complaint alleges that “there are numerous alternative 26 accommodations” to provide people with disabilities a greater level of access even if Defendants 27 could not achieve a complete removal of barriers. Id. 1 “[c]reating designated accessible parking spaces,” 28 C.F.R. § 36.304(b)(18). Courts have also 2 observed that the listed items are “examples of readily achievable steps to remove barriers.” 3 Johnson v. Altimira Corp., No. 16-cv-05335 NC, 2017 WL 1383469, at *3 (N.D. Cal. 2017). 4 Moreover, at the default judgment stage, courts have found allegations similar to Mr. Johnson’s 5 allegations sufficient to show that the removal of the barriers at issue is readily achievable. See, 6 e.g., Ridola, 2018 WL 2287668, at *10–*11 (concluding that plaintiff met his burden with respect 7 to defendant’s parking spaces and guestrooms). 8 Because Mr. Johnson has met his burden, Defendants now have the burden of persuasion 9 on an affirmative defense that removal of the identified barriers is not readily achievable. Here, 10 Defendants have not defended this action. Thus, Defendants have failed to meet their burden to 11 show that removal of the identified barriers is not readily achievable. 12 In sum, the Court finds that Mr. Johnson has alleged the requisite elements for an ADA 13 claim. 14 ii. Unruh Civil Rights Act, Cal. Civ. Code §§ 51-53 15 “Any violation of the ADA necessarily constitutes a violation of the Unruh Act.” M.J. 16 Cable, Inc., 481 F.3d at 731 (citing Unruh Act, Cal. Civ. Code § 51(f)). Thus, because Mr. 17 Johnson has alleged an ADA claim based on the Store’s parking spaces and slope, he has also 18 alleged an Unruh Act claim based on those barriers. 19 C. The amount of money at stake 20 The fourth Eitel factor requires the Court to consider the sum of money at stake in relation 21 to the seriousness of a defendant’s conduct. Love v. Griffin, No. 18-cv-00976-JSC, 2018 WL 22 4471073, at *5 (N.D. Cal. Aug. 20, 2018). Mr. Johnson seeks statutory damages of $4,000 under 23 the Unruh Act and an award of $4,750 for attorneys’ fees and costs. Mot. 11–12. The Court has 24 reduced this amount, as discussed below. While the sum awarded is not insignificant, the Court 25 finds that it is proportional to the conduct alleged and that this factor weighs in favor of default 26 judgment. 27 D. The possibility of a dispute concerning material facts and whether Defendants 1 default was due to excusable neglect 2 Under the fifth and sixth Eitel factors, the Court considers whether there is a possibility of 3 a dispute over any material fact and whether Defendants’ failure to respond was the result of 4 excusable neglect. Griffin, 2018 WL 4471073, at *5; Ridola, 2018 WL 2287668, at *13. Because 5 Mr. Johnson pleads plausible claims for violations of the ADA and the Unruh Act, and as all 6 liability-related allegations are deemed true, there is nothing before the Court that would indicate a 7 possibility of a dispute as to material facts. Moreover, there is no indication that Defendants’ 8 default was due to excusable neglect. Defendants have never appeared in this case, suggesting that 9 they have chosen not to present a defense in this matter. Accordingly, these factors weigh in favor 10 of default judgment. 11 E. The strong policy favoring decisions on the merits 12 While the Court prefers to decide matters on the merits, Defendants’ failure to participate 13 in this litigation makes that impossible. See Ridola, 2018 WL 2287668, at *13 (“Although federal 14 policy favors decision on the merits, Rule 55(b)(2) permits entry of default judgment in situations, 15 such as this, where a defendant refuses to litigate.”). Default judgment, therefore, is Mr. Johnson’s 16 only recourse. See United States v. Roof Guard Roofing Co., No. 17-cv-02592-NC, 2017 WL 17 6994215, at *3 (N.D. Cal. Dec. 14, 2017) (“When a properly adversarial search for the truth is 18 rendered futile, default judgment is the appropriate outcome.”). As such, the seventh Eitel factor 19 weighs in favor of default judgment. 20 F. Conclusion 21 After considering all seven Eitel factors and the circumstances of this case, the Court finds 22 that default judgment is warranted and GRANTS Plaintiff’s motion for default judgment against 23 Defendants. 24 25 V. REQUESTED RELIEF 26 Because this Court concludes that default judgment is warranted, it now considers Mr. 27 Johnson’s request for injunctive relief, statutory damages under the Unruh Act, and attorneys’ fees A. Injunctive relief 1 Mr. Johnson requests an order directing Defendants to bring the Store’s parking spaces 2 into compliance with the 2010 ADAAG Standards. See Mot. 1, 13. “A plaintiff need not satisfy 3 ‘[t]he standard requirements for equitable relief . . . when an injunction is sought to prevent the 4 violation of a federal statute [that] specifically provides for injunctive relief.’” Griffin, 2018 WL 5 4471073, at *6 (quoting Moeller v. Taco Bell, 816 F. Supp. 2d 831, 859 (N.D. Cal. 2011)). Under 6 the ADA, aggrieved individuals “may obtain injunctive relief against public accommodations with 7 architectural barriers, including ‘an order to alter facilities to make such facilities readily 8 accessible to and usable by individuals with disabilities.’” M.J. Cable, Inc., 481 F.3d at 730 9 (quoting 42 U.S.C. § 12188(a)(2)). Injunctive relief is also available under the Unruh Act. See Cal. 10 Civ. Code § 52.1(h). Injunctive relief is proper where the plaintiff establishes that “architectural 11 barriers at the defendant’s establishment violate the ADA and the removal of the barriers is readily 12 achievable.” Ridola, 2018 WL 2287668, at *13 (internal citation omitted). As discussed above, 13 Mr. Johnson has demonstrated that the Store’s parking lot violates the ADA and that the removal 14 of the associated barriers is readily achievable. 15 Accordingly, the Court grants Plaintiff’s request for injunctive relief to bring the Store’s 16 parking lot slope in line with the 2010 ADAAG Standards. 17 B. Statutory damages 18 Mr. Johnson seeks $4,000 in statutory damages for the Store’s violation of the Unruh Act. 19 Mot. 13–14. The Unruh Act provides a minimum statutory damages award of $4,000 for each 20 violation. Cal. Civ. Code § 52(a). Mr. Johnson “need not prove [he] suffered actual damages to 21 recover the independent statutory damages of $4,000.” M.J. Cable, Inc., 481 F.3d at 731. “Any 22 violation of the ADA necessarily constitutes a violation of the Unruh Act.” Id. at 731 (citing 23 Unruh Act, Cal. Civ. Code § 51(f)). Mr. Johnson has sufficiently pled that the parking lot at the 24 Store violated the ADA on the three separate occasions he visited the Store. As such, these barriers 25 at the Store constitute a violation of the Unruh Act. The Court, therefore, grants Mr. Johnson 26 $4,000 in statutory damages. 27 C. Attorneys’ fees 1 Mr. Johnson requests $3,880 in attorneys’ fees under both the ADA and the Unruh Act. 2 Mot. 14. In support of the fees requested, Mr. Johnson presents detailed billing entries attached to 3 a Russell Handy’s Declaration, expert analysis of fees for ADA-plaintiff attorneys by fee experts 4 Richard Pearl and John O’Connor, and a survey report pulled from the Real Rate Report for 2018. 5 Mot. 14–18; see Mot. Ex. 1, Decl. of Russell Handy (“Handy Decl.”), ECF 41-31; Mot. Ex. 6, 6 Decl. of Richard M. Pearl (“Pearl Decl.”), ECF 41-8; Mot. Ex. 7, Real Estate Report, ECF 41-9; 7 Mot. Ex. 8, Decl. of John D. O’Connor (“O’Connor Decl.”), ECF 41-10. 8 Further, Mr. Johnson cites four cases from the Northern District of California that have 9 granted attorneys’ fees at the hourly rates Mr. Johnson is requesting. Mot. 16, 19. The Court, 10 however, is not persuaded that this evidence justifies the attorneys’ fees requested by Mr. Johnson. 11 i. Legal Standard 12 The ADA gives courts the discretion to award attorneys’ fees to prevailing parties. M.J. 13 Cable, Inc., 481 F.3d at 730 (citing 42 U.S.C. § 12205). Additionally, the Unruh Act provides that 14 “[i]n addition to any damages, injunction, or other equitable relief awarded in an action brought 15 pursuant to [Cal. Civ. Code § 52.1(b)], the court may award the petitioner or plaintiff reasonable 16 attorney’s fees.” Cal. Civ. Code § 52.1(i). 17 Whether calculating attorneys’ fees under California or federal law, courts follow “the 18 ‘lodestar’ method, and the amount of that fee must be determined on the facts of each case.” 19 Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 978 (9th Cir. 2008) (quoting Ferland v. Conrad 20 Credit Corp., 244 F.3d 1145, 1149 n.4 (9th Cir. 2001)). Under the lodestar method, the most 21 useful starting point “is the number of hours reasonably expended on the litigation multiplied by a 22 reasonable hourly rate.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983), abrogated on other 23 grounds by Tex. State Teachers Ass’n. v. Garland Indep. Sch. Dist., 489 U.S. 782 (1989). The 24 party seeking an award of fees should submit evidence supporting the hours worked and rates 25 claimed. Id. 26
27 1 The Court notes that Mr. Handy states he is the attorney of record for the moving party, 1 “In determining a reasonable hourly rate, the district court should be guided by the rate 2 prevailing in the community for similar work performed by attorneys of comparable skill, 3 experience, and reputation.” Chalmers v. City of Los Angeles, 796 F.2d 1205, 1210–11 (9th Cir. 4 1986), reh’g denied, amended on other grounds, 808 F.2d 1373 (9th Cir. 1987) (citing Blum v. 5 Stenson, 465 U.S. 886, 895 n.11 (1984)). “Generally, the relevant community is the forum in 6 which the district court sits.” Barjon v. Dalton, 132 F.3d 496, 500 (9th. Cir. 1997). The fee 7 applicant bears the burden of producing evidence, other than declarations of interested counsel, 8 that the requested rates are in line with those prevailing in the community for similar services by 9 lawyers of reasonably comparable skill, experience, and reputation. Blum, 465 U.S. at 896 n.11. 10 Further, the district court should exclude hours that were not reasonably expended. See 11 Hensley, 461 U.S. at 434. “[T]he fee applicant bears the burden of establishing entitlement to an 12 award and documenting the appropriate hours expended.” Hensley, 461 U.S. at 437. 13 ii. Discussion 14 a. Rates 15 As an initial matter, the Court finds discrepancies between the hourly rates provided in the 16 Motion, the billing summary, and Mr. Handy’s declaration. See Billing Summ., ECF 41-3; Handy 17 Decl. ¶ 3–6; Mot. 20–22. In the Motion, Mr. Johnson notes that attorney Amanda Seabock charges 18 $450 per hour. See Mot. 20–21. According to Mr. Handy’s declaration and the billing summary, 19 however, Ms. Seabock charged $500 per hour. See Billing Summ. 2–3; Handy Decl. ¶ 5. The 20 Court need not scrutinize these discrepancies because it is not persuaded that Mr. Johnson’s 21 arguments justify even the lower rates of $450 per hour. 22 The Court finds that the rates Mr. Johnson seeks exceed the rates granted in this 23 community for similar work performed by attorneys of comparable skill, experience, and 24 reputation. The relevant community for this action is the Northern District of California. Indeed, 25 for attorneys with approximately 20 or more years of experience, courts in this district have 26 generally approved hourly rates ranging from $350 to $495 in disability cases. See, e.g., Castillo- 27 Antonio v. Lam, No. 18-cv-04593-EDL, 2019 WL 2642469, at *7 (N.D. Cal. Apr. 10, 2019) 1 experience); Johnson v. Castagnola, No. 18-cv-00583-SVK, 2019 WL 827640, at *2 (N.D. Cal. 2 Feb. 21, 2019) (approving $350 hourly rate for attorney with 20 years of litigation experience, 3 noting that requested rate was unopposed by defendant and in line with rates approved in Northern 4 District); Wilson v. Red Robin Int’l, Inc., No. 17-cv-00685-BLF, 2018 WL 5982868, at *3 (N.D. 5 Cal. Nov. 14, 2018) (approving $495 hourly rate for attorney with 24 years of experience in civil 6 rights litigation, including 12 years devoted to disability law and $475 hourly rate for attorney 7 with over 17 years of litigation experience and more than 8 years of experience in disability law). 8 Here, Mr. Handy has 20 years of experience, Mr. Potter has 25 years of experience, Ms. 9 Seabock has about nine years of experience, and Ms. Gutierrez has about five years of experience 10 focusing on disability cases. See Handy Decl. ¶¶ 3–6. This Court is mindful of the Ninth Circuit’s 11 observation that “[t]he district court’s function is to award fees that reflect economic conditions in 12 the district; it is not to ‘hold the line’ at a particular rate, or to resist a rate because it would be a 13 ‘big step.’” Moreno v. City of Sacramento, 534 F.3d 1106, 1115 (9th Cir. 2008). Mr. Handy and 14 Mr. Potter have recently been granted hourly rate increases, from $425 to $475, in actions 15 representing Mr. Johnson, and Ms. Seabock has recently been granted an hourly rate of $350. See 16 Johnson v. Oakwood Ctr. LLC, No. 19-cv-01582-VKD, 2019 WL 7209040, at *12 (N.D.Cal. Dec. 17 27, 2019) (denying Mr. Potter and Mr. Handy an hourly rate of $650, instead granting an hourly 18 rate of $475; granting Ms. Seabock an hourly rate of $350); see also Johnson v. VN Alliance LLC, 19 No. 18-CV-01372-BLF, 2019 WL 2515749 (N.D. Cal. June 18, 2019) (granting Mr. Potter and 20 Mr. Handy an hourly rate of $425). In view of the range of rates approved for attorneys practicing 21 in this field, and further recognizing that “decisions pertaining to the same attorneys in question 22 are particularly salient,” the Court awards fees for Mr. Handy and Mr. Potter at $475 per hour and 23 for Ms. Seabock at $350 per hour. See Oakwood Ctr. LLC, 2019 WL 7209040, at *12. As an 24 attorney who graduated about five years ago and has less than five years of experience litigating 25 disability cases, this court awards Ms. Gutierrez $250 per hour. See Johnson v. AutoZone, Inc., 26 No. 17-CV-02941-PJH, 2019 WL 2288111, at *7 (N.D. Cal. May 29, 2019) (awarding a $250 27 hourly fee rate for attorneys who graduated law school between five and eight years ago in a 1 The Court is not persuaded by Mr. Johnson’s cited cases or support. To support the 2 reasonableness of the hourly rates in the Motion ($650 and $450), Mr. Johnson relies on In re 3 Linkedin and In re Magsafe as examples of attorneys’ rates in the Northern District of California. 4 See Mot. 16 (citing In re Linkedin User Privacy Litig., 309 F.R.D. 573, 591 (N.D. Cal. 2015), and 5 In re Magsafe Apple Power Adapter Litig., No. 5:091-cv-01911-EJD, 2015 WL 428105, at *11-12 6 (N.D. Cal. Jan. 30, 2015)). In re Linkedin and In re Magsafe, however, are both class action suits 7 that do not contain any ADA claims. See In re Linkedin, 309 F.R.D. at 580–81; In re Magsafe, 8 2015 WL 428105, at *1. Moreover, the relevant community is only one of the considerations 9 when determining an appropriate hourly rate. Mr. Johnson does not provide any information about 10 the skill, experience, or reputation of the attorneys in either of those cases. Therefore, the Court is 11 not persuaded that the rates awarded in either case are appropriate here. 12 Next, Mr. Johnson relies on declarations by fee experts Richard Pearl and John O’Connor 13 along with a survey report from the Real Rate Report for 2018. See O’Connor Decl.; Pearl Decl.; 14 Real Estate Report. In his declaration, Mr. Pearl’s survey of ADA cases shows that attorneys with 15 20 to 25 years of experience had court-approved rates of between $500 and $675 per hour, while 16 attorneys with more than six years of experience had court-approved rates ranging between $350 17 and $425 per hour. Pearl Decl. ¶¶ 9(a)–9(b). Attorneys with less than five years of experience had 18 court-approved rates ranging between $250 and $435 per hour. Pearl Decl. ¶ 9(a). Similarly, the 19 Real Rate Report shows that median rates for partners doing litigation work in San Jose is $675 20 per hour and median rates for associates is $495 per hour. Real Estate Report 016. However, Mr. 21 Pearl’s declaration and the Real Rate Report fail to consider the nature of work done and the skill 22 or reputation of the attorneys in each case. As such, the Court is not persuaded that Mr. Pearl’s 23 declaration or the Real Rate Report provide a more salient assessment of rates than those 24 previously granted to Mr. Johnson’s attorneys. 25 In addition, Mr. O’Connor states in his declaration that reasonable partner fee rates in 26 ADA cases range from $450 to $750 per hour, while an appropriate range for associates is 27 between $350 and $550 per hour. O’Connor Decl. ¶ 33. This is similar to what the Court has 1 high ends of the stated rates. “[W]hen a matter ‘is a relatively simple one, involving straight- 2 forward application of the law, and which does not present novel or difficult issues requiring a 3 high level of skill or specialization,’ courts have generally found that higher rates are 4 unwarranted.” See Johnson v. Baglietto, No. 19-CV-06206-TSH, 2020 WL 3065939, at *11 (N.D. 5 Cal. May 21, 2020) (citing Oakwood Ctr. LLC, 2019 WL 7209040, at *13), report and 6 recommendation adopted, No. 19-CV-06206-HSG, 2020 WL 3060902 (N.D. Cal. June 9, 2020). 7 And “[t]he sheer number of ADA cases that [Mr. Johnson’s] counsel is litigating [] underscores 8 the straightforward nature of their cases.” Id. (noting that Mr. Johnson’s counsel “stated that as of 9 November 7, 2019, [counsel’s firm], consisting of 20 lawyers, was simultaneously litigating ‘over 10 a thousand’ ADA cases in the Northern District of California and approximately 1,500 ADA cases 11 in the Central District of California. The law firm had previously litigated approximately 2,500 12 ADA cases in the Eastern District of California.” (internal citations omitted)). 13 Lastly, Mr. Johnson cites to two decisions by another court in this district: Love v. 14 Rivendell II, Ltd., in which the court approved a $650 hourly rate for Mr. Potter and Mr. Handy, 15 and Johnson v. Khalsa, in which the court approved a $650 hourly rate for Mr. Potter and Mr. 16 Handy and a $450 hourly rate for Ms. Seabock. See Mot. 19; see also R. & R., Love v. Rivendell 17 II, Ltd., No. 18-cv-03907-JST (EDL) (N.D. Cal. Mar. 11, 2019) (“R. & R., Love v. Rivendell II, 18 Ltd.”), ECF 25; Order Adopting R. & R., Love v. Rivendell II, Ltd., No. 18-cv-03907-JST (EDL) 19 (N.D. Cal. Apr. 18, 2019), ECF 30; R. & R., Johnson v. Khalsa, No. 4:19-cv-02725-SBA (N.D. 20 Cal. March 24, 2020) (“R. & R., Johnson v. Khalsa”), ECF 25; Order Adopting R. & R., Johnson 21 v. Khalsa, No. 4:19-cv-02725-SBA (N.D. Cal. April 8, 2020), ECF 26. In both Rivendell and 22 Khalsa, Mr. Johnson asked for fees as part of a motion for default judgment, and, as with his claim 23 here, Mr. Johnson alleged that the defendants failed to provide accessible parking spaces for 24 disabled persons. See R. & R., Johnson v. Khalsa; R. & R., Love v. Rivendell II, Ltd. As other 25 courts in this district recently observed, the Rivendell decision relied on cases, such as Civil Rights 26 Education and Rodriguez, that concerned work that was substantially different than the work 27 performed in the present action. See, e.g., Oakwood Ctr. LLC, 2019 WL 7209040, at *11 (granted 1 AutoZone, Inc., 2019 WL 2288111, at *6 n.4 (same). Indeed, Civil Rights Education was a 2 complex class action matter involving 54 hotels spread among multiple states and Rodriguez 3 involved an ADA claim that included trial and post-trial attorneys’ fees. See Civil Rights Educ. 4 and Enforcement Ctr. v. Ashford Hospitality Trust, Inc., No. 15-cv-00216-DMR, 2016 WL 5 1177950, at *1 (N.D. Cal. Mar. 22, 2016); Rodriguez v. Barrita, 53 F. Supp. 3d 1268, 1279–80 6 (N.D. Cal. 2014). And the Khalsa decision in awarding attorneys’ fees was reached without 7 explicitly relying on any case law. See R. & R., Johnson v. Khalsa, at 6. Therefore, the Court is 8 not persuaded that the rates awarded in Rivendell or Khalsa are appropriate here. Aside from 9 Rivendell and Khalsa, Mr. Johnson does not identify any other rulings in which courts have 10 awarded Mr. Johnson fees at this rate for any of his attorneys. See Mot. 19. As such, the Court is 11 not persuaded that Mr. Johnson’s evidence justifies the rates he is requesting. Additionally, the 12 higher rates are not justified because of the cookie-cutter nature of counsel’s filings. In fact, at 13 least two documents submitted here retain the name of a different plaintiff, “Samuel Love,” 14 presumably from an unrelated case. 15 b. Hours 16 Mr. Johnson requests fees based on 7.5 hours of work. See Billing Summ. 1, 3. This Court 17 and other courts in this district have found approximately 11 hours of work to be reasonable for 18 similar cases. See, e.g., Ridola, 2018 WL 2287668 at *17 (granted motion for default judgment in 19 ADA case, found 11.1 hours to be reasonable); VN Alliance LLC, 2019 WL 2515749, at *8 20 (granted motion for default judgment in ADA case, found 11.3 hours to be reasonable). Mr. 21 Johnson’s billing summary shows 7.5 hours were expended in this litigation: Mr. Handy and Mr. 22 Potter together expended 3.0 hours, Ms. Seabock expended 1.3 hours, and Ms. Gutierrez expended 23 3.2 hours. See Billing Summ. 2–3. Further, the Court has reviewed the itemized statement of Mr. 24 Johnson’s counsel’s legal work and finds no issue with the amount of time or activities that Mr. 25 Johnson’s counsel has conducted. Billing Summ. 2–3. 26 iii. Conclusion 27 In sum, the Court finds the adjusted hourly rates of $475, $350, and $250 and the 7.5 hours 1 Multiplying the reasonable hourly rates, $475, $350 and $250, and the hours reasonably expended, 2 3.0, 1.3, and 3.2 respectively, yields a lodestar amount of $2,680 in attorneys’ fees. 3 D. Costs 4 In addition, Mr. Johnson seeks $870 in costs. Billing Summ. 1; Mot. 22—23. This includes 5 the filing fee ($400), service costs ($70), and investigation costs ($400). Billing Summ. 1; Mot. 6 || 22. The ADA provides that the prevailing party may recover “litigation expenses[] and costs.” 42 7 U.S.C. § 12205; see VN Alliance LLC, 2019 WL 2515749, at *8 (including investigation costs into 8 litigation expenses). As such, Mr. Johnson has provided a billing summary to substantiate his 9 || request for $870 in filing fees, service costs, and investigation costs. Billing Summ. 1. 10 || VI. ORDER 11 For the foregoing reasons, IT IS ORDERED THAT: 12 1. Plaintiff's motion for default judgment is GRANTED. 13 2. Plaintiff is awarded statutory damages in the amount of $4,000. 14 3. Plaintiff is awarded $3,550 in attorneys’ fees and costs. 3 15 4. Plaintiff is granted an injunction requiring Defendants to bring their parking lot into a 16 compliance with the 2010 ADAAG Standards no later than six months after service of this injunction. 18 Plaintiff shall submit a revised proposed judgment that accurately reflects Plaintiff Scott 19 Johnson’s name and is consistent with this order. 20 IT IS SO ORDERED. 22 23 Dated: November 5, 2020 han tn) hom Lr haem 25 BETH LABSON FREEMAN 26 United States District Judge 27 28