Johnson v. Nuoc Mia Vien Dong 2, LLC

• Court: District Court, N.D. California
• Decided: July 30, 2021
• Docket: 3:21-cv-01618
• Status: Unknown

Opinion

1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 SCOTT JOHNSON, Case No. 21-cv-01618-CRB

9 Plaintiff, ORDER GRANTING MOTION FOR 10 v. DEFAULT JUDGMENT

11 NUOC MIA VIEN DONG 2, LLC, 12 Defendant.

13 Plaintiff Scott Johnson, a quadriplegic who uses a wheelchair, Compl. (dkt. 1) ¶ 1, sued 14 Defendant Nuoc Mia Vien Dong 2, LLC (Nuoc) for failure to provide accessible dining services at 15 its restaurant in violation of the federal Americans with Disabilities Act (ADA) and the California 16 Unruh Civil Rights Act (Unruh Act), id. ¶¶ 22–33. Johnson now moves for default judgment. 17 Mot. for Default Judgment (dkt. 17). The Court grants his motion and awards $4,000 in damages, 18 along with $1,295 in attorneys’ fees and $835 in costs, and enters an injunction requiring Nuoc to 19 provide accessible dining surfaces. 20 I. BACKGROUND 21 In November 2020, Johnson visited the restaurant in San Jose, California to avail himself 22 of its services and to determine if it complies with disability access laws. Compl. ¶¶ 2, 8. Johnson 23 alleges that the restaurant lacked wheelchair-accessible dining surfaces; specifically, that there was 24 insufficient “knee or toe clearance” under the dining surfaces. Id. ¶ 12. Johnson alleges that he 25 was deterred from visiting the restaurant in the future. Id. ¶ 20. 26 Johnson filed his complaint on March 8, 2021, asserting claims under the ADA and the 27 Unruh Act. See id. When Nuoc failed to answer the complaint, Johnson sought and received an 1 of Default (dkt. 16). Johnson now seeks a default judgment against Nuoc, an order requiring Nuoc 2 to provide wheelchair accessible dining surfaces, $4,000 in statutory damages, and $2,761 as 3 attorneys’ fees and costs. Mot. for Default Judgment at 2. 4 II. LEGAL STANDARD 5 “[E]ntry of a default judgment is within the discretion of the court.” Lau Ah Yew v. 6 Dulles, 236 F.2d 415, 416 (9th Cir. 1956). Upon an entry of default, “the factual allegations of the 7 complaint, except those relating to the amount of damages, will be taken as true.” See Derek 8 Andrew, Inc. v. Poof Apparel Corp., 528 F.3d 696, 702 (9th Cir. 2008). 9 A court deciding a motion for default judgment has “an affirmative duty to look into its 10 jurisdiction over both the subject matter and the parties,” In re Tuli, 172 F.3d 707, 712 (9th Cir. 11 1999), including whether notice was adequately given, see Omni Capital Int’l, Ltd. v. Rudolf 12 Wolff & Co., 484 U.S. 97, 104 (1987), superseded by statute on other grounds; Fed. R. Civ. P. 13 55(a); accord Dytch v. Bermudez, No. 17-cv-02714-EMC, 2018 WL 2230945, at *2 (N.D. Cal. 14 May 16, 2018), reconsideration denied, 2018 WL 3643702 (N.D. Cal. Aug. 1, 2018). In 15 determining whether to enter default judgment, this Court examines the “Eitel factors”: 16 (1) the possibility of prejudice to the plaintiff, (2) the merits of the plaintiff’s substantive claim, (3) the sufficiency of the complaint, (4) the sum of money at 17 stake in the action, (5) the possibility of a dispute concerning material facts, (6) whether the default was due to excusable neglect, and (7) the strong policy 18 underlying the Federal Rules of Civil Procedure favoring decisions on the merits. 19 Eitel v. McCool, 782 F.2d 1470, 1471–72 (9th Cir. 1986). 20 III. DISCUSSION 21 In analyzing this motion for default judgment, the Court must determine whether (A) it has 22 jurisdiction, (B) Johnson gave Nuoc adequate notice, (C) the Eitel factors support the entry of 23 default judgment, and (D) the remedy that Johnson seeks is appropriate. 24 A. Jurisdiction 25 The Court has subject-matter jurisdiction over this action under 28 U.S.C. § 1331 because 26 the complaint alleges a violation of the ADA, a federal statute. See Compl. ¶ 5; 28 U.S.C. § 1331. 27 Under 28 U.S.C. § 1367, the Court has supplemental jurisdiction over the related state law claim. 1 The Court also has general personal jurisdiction over Nuoc. A federal court can exercise 2 general jurisdiction over a defendant that is “essentially at home” in the forum state. Goodyear 3 Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011). Companies are found to be 4 “essentially at home” where they are incorporated, headquartered, or (in “exceptional case[s]”) 5 otherwise “at home.” Ford Motor Co. v. Mont. Eighth Judicial Dist. Ct., 141 S. Ct. 1017, 1024 6 (2021). Nuoc is headquartered in California, and thus is subject to personal jurisdiction in the 7 state. See id. at 1024; Public Records (dkt. 17-5) at 3. Venue is also proper under 28 U.S.C. § 8 1391 because the event giving rise to the claim occurred in the Northern District of California. 9 See Compl. ¶ 7, 28 U.S.C. § 1391. 10 B. Notice 11 Service of process was sufficient in this case. Under Rule 4 of the Federal Rules of Civil 12 Procedure, a person can serve a corporation in a judicial district of the United States by “following 13 state law for serving a summons in an action brought in courts of general jurisdiction in the state 14 where the district court is located or where service is made,” or by “delivering a copy of the 15 summons and of the complaint to an officer, a managing or general agent, or any other agent 16 authorized by appointment or by law to receive service of process and—if the agent is one 17 authorized by statute and the statute so requires—by also mailing a copy of each to the defendant.” 18 Fed. R. Civ. P. 4(e)(1), 4(h)(1)(B). California law allows for personal service, service by mail, 19 and various methods of substituted service. See Cal. Code Civ. P. 415.10, 415.20, 415.30, 416.10. 20 Here, Nuoc was served through substituted service—a registered California process server served 21 a person at the business address who was apparently in charge of the business—and was mailed 22 copies of the documents. Proof of Service of Summons (dkt. 13). Therefore, service of process 23 was sufficient under both Rule 4(e)(1) and Rule 4(h)(1)(B). 24 C. Eitel Factors 25 This Court examines the “Eitel factors” to determine whether to grant default judgment. 26 Eitel, 782 F.2d 1471–72. Here, the Eitel factors weigh in favor of granting default judgment. 27 1. Possibility of Prejudice to Plaintiff 1 Unruh Act violations. Therefore, this factor supports a grant of default judgment. See, e.g., 2 Willamette Green Innovation Ctr., LLC v. Quartis Capital Partners, No. 14-cv-00848, 2014 WL 3 5281039, at *6 (N.D. Cal. Jan. 21, 2014) (“Denying a plaintiff means of recourse is by itself 4 sufficient to meet the burden posed by this factor.”) (citations omitted). 5 2. Merits of Claim and Sufficiency of Complaint 6 The second and third Eitel factors require Johnson to state a claim that sufficiently 7 supports the relief sought. See Danning v. Lavine, 572 F.2d 1386, 1388 (9th Cir. 1978). 8 a. Article III Standing 9 To have Article III standing to bring an ADA claim, a plaintiff must establish (1) that they 10 have suffered an injury in fact, (2) that their injury is fairly traceable to a defendant’s conduct, and 11 (3) that their injury would likely be redressed by a favorable decision. See Lujan v. Defs. of 12 Wildlife, 504 U.S. 555, 560–61 (1992). To show an “injury in fact,” a plaintiff must establish “an 13 invasion of a legally protected interest which is (a) concrete and particularized; and (b) actual or 14 imminent, not conjectural or hypothetical.” Lujan, 504 U.S. at 560 (citations and internal 15 quotation marks omitted). Where, as here, a party seeks injunctive relief, “past wrongs do not in 16 themselves amount to [the] real and immediate threat of injury” necessary for standing. City of 17 Los Angeles v. Lyons, 461 U.S. 95, 103 (1983). Rather, a party must show “continuing, present 18 adverse effects” of the defendants’ actions. Id. at 102. 19 “A plaintiff experiences continuing adverse effects where a defendant’s failure to comply 20 with the ADA deters her from making use of the defendant’s facility. . . . So long as the 21 discriminatory conditions continue, and so long as a plaintiff is aware of them and remains 22 deterred, the injury under the ADA continues.” Civ. Rights Educ. & Enf’t Ctr. v. Hosp. Props. 23 Trust, 867 F.3d 1093, 1098–99 (9th Cir. 2017) (internal quotations omitted). Accordingly, the 24 Ninth Circuit has held that a plaintiff’s vague allegations that they intended to visit a facility, are 25 deterred by the facility’s non-compliance, and would visit when non-compliance is cured are 26 sufficient to establish standing. See, e.g., Civ. Rights Educ. & Enf’t Ctr., 867 F.3d at 1099; Skaff 27 v. Meridien N. Am. Beverly Hills, LLC, 506 F.3d 832, 840–41 (9th Cir. 2007); Velez v. Il Fornaio 1 App’x 961, 963–64 (9th Cir. 2021). 2 As discussed below, Johnson is disabled within the meaning of the ADA and alleges that 3 he personally encountered a barrier at the restaurant. Compl. ¶ 12. Johnson’s allegations that this 4 barrier has deterred him from visiting the restaurant, id. ¶ 20, are almost identical to those 5 allegations that the Ninth Circuit has found sufficient to satisfy the standing requirement. 6 Therefore, Johnson has adequately established standing. 7 b. ADA Claim 8 To state a claim under the ADA, a “plaintiff must show that (1) she is disabled within the 9 meaning of the ADA; (2) the defendant is a private entity that owns, leases, or operates a place of 10 public accommodation; and (3) the plaintiff was denied public accommodations by the defendant 11 because of her disability.” Molski v. M.J. Cable, Inc., 481 F.3d 724, 730 (9th Cir. 2007). “The 12 third element is satisfied when there is a violation of applicable accessibility standards.” 13 Rodriguez v. Barrita, Inc., 10 F. Supp. 3d 1062, 1073 (N.D. Cal. 2014). 14 Here, the first and second requirements are clearly met. Johnson’s quadriplegia is a 15 disability within the meaning of the ADA, as it is a physical impairment that substantially limits 16 major life activities. See 42 U.S.C. § 12102. And restaurants are places of public accommodation 17 under the ADA. See 42 U.S.C. § 12181(7)(B). 18 With respect to the third element, the 2010 ADA Accessibility Guidelines (ADAAG) 19 specify that at least 5 percent of the seating spaces and standing spaces at the dining surfaces shall 20 comply with the Section 902 requirements mandating knee and toe clearance underneath these 21 surfaces. ADAAG §§ 226.1, 902.2. When required, toe clearance—the space under an element 22 from a height of 0 to 9 inches, id. § 306.2.1—must extend a minimum of 17 inches under the 23 element, id. § 306.2.3. Required knee clearance—the space under an element from a height of 9 to 24 27 inches, id. § 306.3.1—must be 11 inches deep minimum at 9 inches above the ground, and 8 25 inches deep minimum at 27 inches above the ground, id. § 306.3.3. 26 Johnson alleges that the dining surfaces at the restaurant did not have sufficient knee or toe 27 clearance. Compl. ¶ 12. While only 5 percent of dining surfaces are required to meet the 1 surfaces in conformance with the ADA standards.” Id. ¶ 10. Accordingly, Johnson’s allegations 2 establish that the restaurant violates accessibility standards, and Johnson was denied access to the 3 dining surfaces because of his disability. Thus, he has sufficiently alleged an ADA violation. 4 c. Unruh Act Claim 5 A violation of the ADA is a per se violation of the Unruh Act, see Cal. Civ. Code § 51(f), 6 regardless of whether the discrimination was intentional, see Munson v. Del Taco, Inc., 208 P.3d 7 623, 625 (Cal. 2009); Lentini v. Cal. Ctr. for the Arts, 370 F.3d 837, 847 (9th Cir. 2004). 8 Therefore, since Johnson has adequately pleaded an ADA violation, he has also adequately 9 pleaded an Unruh Act violation. 10 3. Money at Stake 11 A court must also consider the amount of money at stake when deciding whether to grant 12 default judgment. See Eitel, 728 F.2d at 1472. “Default judgment is disfavored where the sum of 13 money at stake is too large or unreasonable in light of defendant’s actions.” Truong Giang Corp. 14 v. Twinstar Tea Corp., No. C 06-03594 JSW, 2007 WL 1545173, at *12 (N.D. Cal. May 29, 15 2007). Here, Johnson only seeks $6,761 in damages, of which $4,000 is the minimum statutory 16 damages under the Unruh Act. See Cal. Civ. Code § 52(a). Accordingly, this factor weighs in 17 favor of granting default judgment. 18 4. Dispute Over Material Facts 19 There is no dispute over material facts, because on an entry of default by the Clerk, the 20 plaintiff’s factual allegations are taken as true. See Derek Andrew, Inc., 528 F.3d at 702. 21 5. Excusable Neglect 22 Nuoc has not shown excusable neglect. Johnson served Nuoc with the Complaint, Motion 23 for Entry of Default Judgment, and Motion for Default Judgment, and Nuoc has remained 24 unresponsive. Memo. of P. & A. at 12. 25 6. Policy Favoring Decision on the Merits 26 A “[d]efendant’s failure to answer a [p]laintiff’s Complaint makes a decision on the merits 27 impractical, if not impossible.” PepsiCo, Inc. v. Cal. Sec. Cans, 238 F. Supp. 2d 1172, 1177 (C.D. 1 unlikely. 2 In sum, Johnson has met the requirements for a default judgment. See Eitel, 782 F.2d at 3 1471–72. 4 D. Remedy 5 Johnson seeks injunctive relief, statutory damages, attorneys’ fees, and costs. The Court 6 grants injunctive relief, $4,000 in damages, $1,295 in attorneys’ fees, and $835 in costs. 7 1. Injunctive Relief 8 Under the ADA, injunctive relief shall be granted in cases of violations of accessibility 9 standards. See 42 U.S.C. § 12188(a)(2). Thus, because Johnson has sufficiently established an 10 ADA violation, he is entitled to an injunction requiring Nuoc to remedy the alleged violation at its 11 restaurant. 12 2. Damages 13 Under the Unruh Act, a plaintiff denied equal access to a covered establishment is entitled 14 to a minimum of $4,000 in statutory damages. Cal. Civ. Code § 51(f). Therefore, Johnson is 15 entitled to the $4,000 that he seeks for Nuoc’s singular violation of the Unruh Act. 16 3. Attorneys’ Fees 17 The ADA and the Unruh Act both entitle plaintiffs to recover attorneys’ fees, subject to the 18 court’s discretion. 42 U.S.C. § 12205 (enabling district courts to award reasonable attorneys’ fees 19 to the prevailing party in an ADA action); Cal. Civ. Code § 52 (noting that a court may determine 20 attorneys’ fees for Unruh Act violations). Here, Johnson seeks $1,926 in attorneys’ fees for work 21 done by his legal counsel, Potter Handy, LLP. Potter Handy, LLP Invoice (dkt. 17-3). When 22 calculating attorneys’ fees, “the district court applies the lodestar method, multiplying the number 23 of hours reasonably expended by a reasonable hourly rate.” Ryan v. Editions Ltd. W7., Inc., 786 24 F.3d 754, 763 (9th Cir. 2015) (citing Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). “A 25 reasonable hourly rate is ordinarily the prevailing market rate in the relevant community.” Kelly 26 v. Wengler, 822 F.3d 1085, 1099 (9th Cir. 2016) (internal quotation marks and citation omitted). 27 The party requesting attorneys’ fees has the burden of providing billing records demonstrating that 1 2013). 2 a. Hourly Rates 3 Johnson seeks hourly rates of $595 for attorney Mark Potter, $400 for attorney Faythe 4 Gutierrez, $200 for legal assistant Marcus Handy, and $100 for legal assistants Andrew Sheaffer, 5 Deepa Shetty, Geraldine Manalo, and Tanpreet Pannu. Memo. of P. & A. at 19. 6 Johnson submitted the declarations of attorney Russell Handy and fee experts Richard 7 Pearl and John O’Connor, and a 2018 rate report to support the hourly rates requested for his 8 attorneys. Handy Decl. (dkt. 17-3); Pearl Decl. (dkt. 17-8); Rate Report (dkt. 17-9); O’Connor 9 Decl. (dkt. 17-10). Within this district, multiple recent decisions have considered identical 10 declarations in similar suits by the same attorney and fee experts and found them to have limited 11 value in determining reasonable hourly rates. See Love v. Undefeated Apparel Inc., No. C 20- 12 00330 WHA, 2021 WL 1375911, at *5–6 (N.D. Cal. Apr. 12, 2021); Johnson v. Cortese, No. 13 5:19-cv-02671-EJD, 2020 WL 7495164, at *9 (N.D. Cal. Dec. 21, 2020) (noting that Pearl and 14 O’Connor lack experience in ADA litigation and their declarations were prepared in connection 15 with other, dissimilar cases). These same decisions found rates of $475 per hour for Mark Potter 16 and $250 per hour for Faythe Gutierrez to be reasonable. See Undefeated Apparel Inc., 2021 WL 17 1375911, at *6; Cortese, 2020 WL 7495164, at *10. 18 Johnson cites the Rate Report to argue for higher rates. Memo. of P. & A. at 16. 19 Additionally, Johnson references numerous Central District of California decisions granting Potter 20 Handy’s requested hourly rates.1 Johnson also relies on two less recent and factually dissimilar 21 cases in this district—Love v. Rivendell II, Ltd., No. 3:18-cv-03907-JST (EDL) (N.D. Cal. April 22 18, 2019) and Johnson v. Khalsa Insurance Agency, Inc., No. 5:19-cv-02725-SBA (N.D. Cal. 23 April 8, 2020)—which awarded attorneys’ fees at a rate of $650 per hour to attorney Mark Potter. 24

25 1 See, e.g., Lindsay v. Grupo Glemka, No. CV 18-5136 MRW, 2019 WL 12381192 (C.D. Cal. July 19, 2019); Whitaker v. Hieu Invs., LLC, No. 218CV10584SVWMRW, 2019 WL 7877339 26 (C.D. Cal. Nov. 21, 2019); Lopez v. Getz, No. 218CV02152SJOMRW, 2020 WL 1025678 (C.D. Cal. Jan. 10, 2020); Lammey v. Plaza Segundo, LLC, No. LACV1904484JAKPLAX, 2019 WL 27 8638804 (C.D. Cal. Dec. 20, 2019) (using the plaintiff’s requested rates, but reserving 1 Memo. of P. & A. at 19; see also Johnson v. In Suk Jun, No. 19-cv-06474-BLF, 2020 WL 2 6507995, at *9 (N.D. Cal. Nov. 5, 2020) (noting that Love v. Rivendell II, Ltd. was a complex 3 class action matter and that the court awarded attorneys’ fees in Johnson v. Khalsa Insurance 4 Agency, Inc. without explicit reliance on any case law). Furthermore, Johnson provides no 5 support for the requested $400 per hour rate for Faythe Gutierrez. See Memo. of P. & A. at 19; 6 Handy Decl. ¶ 4. 7 As for the paralegals and legal assistants, aside from a brief discussion of Marcus Handy’s 8 background, Johnson provides no supporting evidence to warrant a $200 per hour rate for a legal 9 assistant with twelve years of experience on disability litigation cases. See Handy Decl. ¶ 6. 10 Johnson also fails to provide information regarding the experience and qualifications of the 11 various individuals listed on the invoice as billing at a rate of $100 per hour, but the declaration of 12 Russell Handy notes that Potter Handy bills for work done by paralegals and legal assistants at a 13 rate of $100 per hour. Id. ¶ 5. Although Johnson cites only two cases from the Central District of 14 California to support the $100 per hour billing rate for paralegals and legal assistants, courts in the 15 Northern District of California have recently found an hourly rate of $100 reasonable for 16 paralegals and legal assistants at Potter Handy. Id.; see Johnson v. Shahkaramai, No. 5:20-cv- 17 07263-BLF, 2021 WL 1530940, at *10 (N.D. Cal. Apr. 19, 2021). 18 The Court grants attorneys’ fees at rates of $475 per hour for Mark Potter, $250 per hour 19 for Faythe Gutierrez, and $100 per hour for Marcus Handy and all other paralegals and legal 20 assistants—Andrew Sheaffer, Deepa Shetty, Geraldine Manalo, and Tanpreet Pannu. The Court’s 21 ruling is not based merely on prior decisions, but also on the lack of compelling evidence 22 submitted by Johnson to support the rates that he seeks. If Johnson or his counsel believe that a 23 higher rate is warranted, they should prepare a more thorough analysis of the market rate for 24 similar cases. 25 b. Reasonable Hours 26 Johnson submits an invoice for this suit that totals 6.5 hours of work billed. Potter Handy, 27 LLP Invoice. The Court has reviewed the invoice and finds that the time billed is reasonable. Id. 1 $1,295 as shown below. 2 || Attorney/Paralegal Total Time (hours) Hourly Rate Amount 3 M. Potter 8 $475 $380 4 F. Gutierrez 2.3 $250 $575 5 M. Handy 1.9 $100 $190 6 || T. Pannu 2 $100 $20 7 || G. Manalo 3 $100 $30 8 || D. Shetty 4 $100 $40 9 || A. Sheaffer 6 $100 $60 10 || Total 6.5 $1,295 11 4. Litigation Costs 12 Johnson requests $835 in litigation expenses, which includes the cost of service, filing 13 || fees, and investigation fees. Id. A court may, in its discretion, award litigation costs, including S 14 || investigation fees, to the prevailing party in a discrimination action. 42 U.S.C. § 12205; see 8 15 Johnson v. VN Alliance LLC, No. 18-cv-01372-BLF, 2019 WL 2515749, at *9 (N.D. Cal. June a 16 18, 2019) (allowing investigator fees to be recovered as litigation expenses). Thus, the Court 2 17 || awards the requested $835 in litigation expenses to Johnson. Z 18 IV. CONCLUSION 19 For the foregoing reasons, the Motion for Default Judgment is granted, and Johnson is 20 || awarded injunctive relief, $4,000 in statutory damages, $1,295 in attorneys’ fees, and $835 in 21 litigation expenses and costs. 22 23 IT IS SO ORDERED. 24 Dated: July 30, 2021 2 CHARLES R. BREYER 25 United States District Judge 26 27 28