1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JERRY KRAUS, 12 Plaintiff, No. 2:18-cv-0627 MCE DB 13 v. 14 SURJEET S. RATTU; KULDIP S. FINDINGS AND RECOMMENDATIONS RATTU, 15 16 Defendants. 17 18 Pending before the court is plaintiff’s motion for default judgement against defendants 19 Surjeet Rattu and Kuldip Rattu. (ECF No. 11.) This motion came on for hearing before the 20 undersigned on July 26, 2019. (ECF No. 13.) Attorney Bradley Smith appeared on behalf of 21 plaintiff. No appearance was made by, or on behalf of a defendant. 22 Having considered all written materials submitted with respect to the motion, and after 23 hearing oral argument, the undersigned recommends that plaintiff’s motion be granted. 24 BACKGROUND 25 Plaintiff Jerry Kraus initiated this action through counsel on March 23, 2018, by filing a 26 complaint and paying the required filing fee. (ECF No. 1.) The complaint alleges that plaintiff 27 //// 28 //// 1 has a back injury and “uses a wheelchair for mobility.” (Compl. (ECF No. 1) at 1.1) Defendants 2 Surjeet Rattu and Kuldip Rattu owned real property located at 2909 Sonoma Blvd., in Vallejo, 3 California during the relevant period. (Id.) 4 Plaintiff visited the property in February of 2018, to eat at J & M Mississippi BBQ 5 restaurant. (Id. at 2.) The restaurant had “no parking spaced marked and reserved for disabled 6 persons . . . during plaintiff’s visit.” (Id.) Plaintiff “plans to return and patronize” the restaurant 7 but will be deterred until the barriers are removed. (Id. at 3.) 8 Pursuant to these allegations, the complaint alleges the defendants violated the Americans 9 with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq., (“ADA”), and the Unruh Civil Rights 10 Act, California Civil Code § 51, (“Unruh Act”). (Id. at 5-8.) Plaintiff filed proof of service on 11 defendant Kuldip Rattu on April 3, 2018, and on defendant Surjeet Rattu on May 1, 2018. (ECF 12 Nos. 4 & 5.) On May 11, 2018, plaintiff filed requests for entry of defendants’ default. (ECF 13 Nos. 6 & 7.) The Clerk entered defendants’ default on May 14, 2018. (ECF Nos. 8 & 9.) 14 On June 21, 2019, plaintiff filed the pending motion for default judgment. (ECF No. 11.) 15 Plaintiff’s motion seeks injunctive relief, statutory damages of $4,000, and attorneys’ fees and 16 costs in the amount of $5,457.50. (ECF No. 11-8 at 2.) 17 The motion came for hearing before the undersigned on July 26, 2019. (ECF No. 20.) 18 Despite being served with notice of the motion and hearing, no defendant appeared at the hearing 19 or filed an opposition to plaintiff’s motion for default judgement. (ECF No. 18-8.) 20 LEGAL STANDARD 21 Federal Rule of Civil Procedure 55(b)(2) governs applications to the court for default 22 judgment. Upon entry of default, the complaint’s factual allegations regarding liability are taken 23 as true, while allegations regarding the amount of damages must be proven. Dundee Cement Co. 24 v. Howard Pipe & Concrete Prods., 722 F.2d 1319, 1323 (7th Cir. 1983) (citing Pope v. United 25 States, 323 U.S. 1 (1944); Geddes v. United Fin. Group, 559 F.2d 557 (9th Cir. 1977)); see also 26 //// 27 1 Page number citations such as this are to the page number reflected on the court’s CM/ECF 28 system and not to the page numbers assigned by the parties. 1 DirectTV v. Huynh, 503 F.3d 847, 851 (9th Cir. 2007); TeleVideo Sys., Inc. v. Heidenthal, 826 2 F.2d 915, 917-18 (9th Cir. 1987). 3 Where damages are liquidated, i.e., capable of ascertainment from definite figures 4 contained in documentary evidence or in detailed affidavits, judgment by default may be entered 5 without a damages hearing. Dundee, 722 F.2d at 1323. Unliquidated and punitive damages, 6 however, require “proving up” at an evidentiary hearing or through other means. Dundee, 722 7 F.2d at 1323-24; see also James v. Frame, 6 F.3d 307, 310-11 (5th Cir. 1993). 8 Granting or denying default judgment is within the court’s sound discretion. Draper v. 9 Coombs, 792 F.2d 915, 924-25 (9th Cir. 1986); Aldabe v. Aldabe, 616 F.2d. 1089, 1092 (9th Cir. 10 1980). The court is free to consider a variety of factors in exercising its discretion. Eitel v. 11 McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). Among the factors that may be considered by 12 the court are 13 (1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff’s substantive claim, (3) the sufficiency of the complaint, (4) 14 the sum of money at stake in the action; (5) the possibility of a dispute concerning material facts; (6) whether the default was due to 15 excusable neglect, and (7) the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits. 16 17 Eitel, 782 F.2d at 1471-72 (citing 6 Moore’s Federal Practice ¶ 55-05[2], at 55-24 to 55-26). 18 ANALYSIS 19 A. Appropriateness of the Entry of Default Judgment under the Eitel Factors 20 Plaintiff’s motion for default judgement seeks judgement on the two claims presented in 21 the complaint: a cause of action under Title III of the Americans with Disabilities Act, and a 22 cause of action under the California Unruh Civil Rights Act. (Pl.’s MDJ (ECF No. 11-1) at 7-10.) 23 The factual allegations of plaintiff’s complaint are taken as true pursuant to the entry of default 24 against the defendants. 25 1. Factor One: Possibility of Prejudice to Plaintiff 26 The first Eitel factor considers whether plaintiff would suffer prejudice if default 27 judgment is not entered. When a defendant has failed to appear and defend the claims, a plaintiff 28 will be without recourse and suffer prejudice unless default judgment is entered. Vogel v. Rite 1 Aid Corp., 992 F.Supp.2d 998, 1007 (C.D. Cal. 2014) (granting a default judgement for a 2 disabled plaintiff suing under the ADA and Unruh Act, relying upon this rationale). Here, the 3 defendants have failed to appear and defend against plaintiff’s claims of discrimination under the 4 ADA and the Unruh Act. Absent entry of default judgement, plaintiff would likely be without 5 recourse against the defendants. Because plaintiff will suffer prejudice if left without recourse, 6 this factor favors an entry of default judgment. 7 2. Factors Two and Three: The Merits of Plaintiff’s Substantive Claims and the 8 Sufficiency of the Complaint 9 The second and third factors are (1) the merits of plaintiff’s substantive claim, and (2) the 10 sufficiency of the complaint. Eitel, 782 F.2d at 1471-72. Thus, the second and third Eitel factors 11 require plaintiff to state a claim on which plaintiff can recover. PepsiCo, Inc. v. California 12 Security Cans, 238 F.Supp.2d, 1172, 1175 (2002); see Danning v. Lavine, 572 F.2d 1386, 1388 13 (9th Cir. 1978). Given the close relationship between the two inquiries, factors two and three are 14 considered together. As noted above, plaintiff seeks default judgment on the complaint’s claims 15 of discrimination in violation of Title III of the Americans with Disabilities Act and 16 discrimination in violation of the Unruh Civil Rights Act. 17 (1) Title III of the ADA 18 (a) Applicable Legal Standards under the ADA 19 Title III of the ADA prohibits discrimination against an individual “on the basis of 20 disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, 21 or accommodations of any place of public accommodation . . . .” Roberts v. Royal Atlantic 22 Corp., 542 F.3d 363, 368 (2nd Cir. 2008); U.S.C. § 12182(a). Generally, the concept of 23 “discrimination” under the ADA not only includes obviously exclusionary conduct — such as a 24 sign stating that persons with disabilities are unwelcome, but also extends to more subtle forms of 25 discrimination — such as difficult-to-navigate restrooms and hard-to-open doors—that interfere 26 with disabled individuals’ “full and equal enjoyment” of places of public accommodation. 27 Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 945 (9th Cir. 2011); PGA Tour, Inc. v. 28 Martin, 532 U.S. 661, 674-75 (2001). With respect to existing facilities, discrimination includes 1 “a failure to remove architectural barriers … where such removal is readily achievable.” 42 2 U.S.C. § 12182(b)(2)(A). 3 To determine if a barrier exists, the ADAAG2 establishes the technical standards. If a 4 barrier violates these standards relating to a plaintiff’s disability, it will impair the plaintiff’s full 5 and equal access, which constitutes “discrimination” under the ADA. Chapman, 631 F.3d at 947; 6 Doran v. 7–Eleven, Inc., 524 F.3d 1034, 1034 (9th Cir. 2008). Removal is readily achievable 7 where it is “easily accomplishable and able to be carried out without much difficulty or expense.” 8 42 U.S.C. § 1218(9). 9 To prevail on a Title III ADA claim, plaintiff must establish that (1) plaintiff is disabled 10 within the meaning of the ADA; (2) that defendant owns, leases, or operates a place of public 11 accommodation; and (3) that defendant discriminated against the plaintiff within the meaning of 12 the ADA. Chapman, 631 F.3d at 950. For an ADA plaintiff to establish Article III standing to 13 pursue injunctive relief, plaintiff must demonstrate the threat of a future repeated injury is real 14 and immediate. Id. at 946. 15 To demonstrate sufficient likelihood of future harm, a plaintiff can establish that plaintiff 16 intends to return to a noncompliant place of public accommodation where plaintiff is “likely to 17 reencounter a discriminatory architectural barrier.” Id. at 950. Alternatively, a plaintiff 18 can show that the “discriminatory architectural barriers deter him from returning to a 19 noncompliant accommodation,” but that plaintiff would return if the barriers were removed. Id. 20 (b) Analysis 21 In the instant case, plaintiff established standing under the intent-to-return theory. In this 22 regard, the complaint alleges that plaintiff “plans to return and patronize J & M Mississippi BBQ 23 but will be deterred from visiting until the defendants remove the barriers.” (Compl. (ECF No. 1) 24 at 3.) Plaintiff has also provided a declaration in support of the motion for default judgment. 25 Therein, plaintiff explains that plaintiff lives “less than 3 miles” from the restaurant and “will 26 2 The ADA Accessibility Guidelines (ADAAG) are promulgated by the Attorney General to 27 “carry out the provisions” of the ADA, 42 U.S.C. § 12186(b). These guidelines “lay out the technical structural requirements of places of public accommodation.” Fortyune v. Am. Multi– 28 Cinema, Inc., 364 F.3d 1075, 1080-81 (9th Cir. 2004). 1 return . . . as soon as the facilities are brought into compliance.” (Kraus Decl. (ECF No. 11-4) at 2 3.) The undersigned finds that plaintiff has standing because plaintiff has suffered an injury-in- 3 fact and has demonstrated a likelihood of future injury sufficient to support injunctive relief. 4 Chapman, 631 F.3d at 947. 5 As to the merits of the ADA claim, there is little dispute that the first two requirements 6 have been met. Plaintiff alleges in the complaint that plaintiff has “physical disabilities.” 7 (Compl. (ECF No. 1) at 1.) Plaintiff’s declaration explains that plaintiff “cannot walk,” “uses a 8 wheelchair for mobility,” drives “a specially equipped and modified van,” and has “a disabled 9 persons parking placard issued by the State of California.” (Kraus Decl. (ECF No. 11-4) at 2.) 10 There can be little doubt that plaintiff is “disabled” within the meaning of the ADA. See 42 11 U.S.C. § 12102 (defining “disability” as “a physical or mental impairment that substantially limits 12 one or more major life activities of such individual.”). 13 In addition, the complaint alleges that the restaurant found on the property “is a facility 14 open to the public, a place of public accommodation, and a business establishment” and that the 15 defendants owned the restaurant during the period when plaintiff visited. (Compl. (ECF No. 1) at 16 1-2.) A restaurant is expressly identified as a place of public accommodation and subject to Title 17 III of the ADA. See 42 U.S.C. § 12181 (7)(B). 18 With respect to the third element, whether defendant discriminated against plaintiff, the 19 factual allegations of the complaint establish that defendants’ property had “no parking spaces 20 marked and reserved for persons with disabilities . . . during Plaintiff’s visit.” (Compl. (ECF No. 21 1) at 3.) The ADAAG requires parking spaces marked for individuals with disabilities to have 22 access aisles. 2010 Standards § 502.1. The ADAAG also requires access aisles to be at the same 23 level as the parking space they serve. 2010 Standards § 502.4. Here the failure to provide an 24 accessible parking space is a barrier, thus constituting discrimination.3 See Estrada v. South 25 Street Property, LLC, No. 2:17–CV–00259 CAS JCx, 2017 WL 3461290, at *4 (C.D. Cal. Aug. 26 //// 27 3 Barriers are determined by reference to the ADA Accessibility Guidelines (ADAAG). 28 Chapman, 631 F.3d 939, 945. The ADAAG are listed in 36 CFR Appendix D to Part 1191. 1 11, 2017) (“[L]ack of accessible parking spaces constitutes an architectural barrier under the 2 ADA.”). 3 Finally, the complaint alleges defendants “exercised control and dominion over the 4 conditions at this location,” defendants “had the means and ability to make the change,” and the 5 identified violations “are easily removed without much difficulty or expense.” (Compl. (ECF No. 6 1) at 3-4.) Therefore, removal of these barriers is “readily achievable” by defendants, and 7 defendants’ failure to do so constitutes “discrimination” under the ADA. 42 U.S.C. § 8 12182(b)(2)(A). 9 Accordingly, the elements of the ADA claim are satisfied, and plaintiff has met the burden 10 to state a prima facie Title III discrimination claim. The second and third Eitel factors thus favor 11 the entry of default judgment. See Lozano v. C.A. Martinez Family Ltd. Partnership, 129 12 F.Supp.3d 967, 972-73 (S.D. Cal. 2015); Vogel v. Rite Aid Corp., 992 F.Supp.2d 998, 1009-10 13 (C.D. Cal. 2014). 14 (2) California’s Unruh Civil Rights Act 15 The Unruh Civil Rights Act provides: “All persons within the jurisdiction of this state are 16 free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, 17 disability, medical condition, genetic information, marital status, or sexual orientation are entitled 18 to the full and equal accommodations, advantages, facilities, privileges, or services in all business 19 establishments of every kind whatsoever.” Cal. Civ. Code § 51(b). As expressly provided by 20 statute, a violation of the ADA also constitutes a violation of the Unruh Civil Rights Act. Cal. 21 Civ. Code § 51 (f); see also Munson v. Del Taco, Inc., 46 Cal. 4th 661, 664-65 (Cal. 2009). Here, 22 because plaintiff’s complaint alleges a prima facie claim under the ADA, plaintiff has also alleged 23 facts supporting a claim under the Unruh Civil Rights Act. 24 3. Factor Four: The Sum of Money at Stake in the Action 25 Under the fourth factor cited in Eitel, “the court must consider the amount of money at 26 stake in relation to the seriousness of Defendant’s conduct.” Eitel, 782 F.2d at 1471-72; see also 27 Philip Morris USA, Inc v. Castworld Prods., Inc., 219 F.R.D. 494, 500. (C.D. Cal. 2003). In this 28 case, plaintiff seeks injunctive relief; statutory damages of $4,000 under the Unruh Civil Rights 1 Act; and attorney’s fees and costs in the amount of $5,457.5, for a total award of $9,457.50. 2 (Pl.’s MDJ (ECF No. 11-1) at 10.) Although the undersigned more closely scrutinizes the 3 requested statutory damages, attorney’s fees and costs below, the undersigned does not find the 4 overall sum of money at stake to be so large or excessive as to militate against the entry of default 5 judgment. 6 4. Factor Five: The Possibility of a Dispute Concerning Material Facts 7 This Eitel factor considers the possibility that material facts are disputed. “Upon entry of 8 default, all well-pleaded facts in the complaint are taken as true, except those relating to 9 damages.” PepsiCo, Inc., 238 F.Supp.2d at 1177. Here, there appears to be no material facts in 10 dispute. This factor weighs in favor of a default judgment. 11 5. Factor Six: Whether the Default Was Due to Excusable Neglect 12 This Eitel factor considers the possibility that the defendant’s default was the result of 13 excusable neglect. Despite having been properly served with plaintiff’s complaint, the requests 14 for entry of default, and the instant motion for default judgment defendants have been non- 15 responsive in this action. (ECF Nos. 4, 5, 7-2, 11-9.) Thus, the record suggests that the 16 defendants have chosen not to defend this action, and that the default did not result from 17 excusable neglect. Accordingly, this Eitel factor favors the entry of default judgment. 18 6. Factor Seven: The Strong Policy Underlying the Federal Rules of Civil 19 Procedure Favoring Decisions on the Merits 20 The final Eitel factor examines whether the strong policy favoring deciding cases on the 21 merits prevents a court from entering default judgment. Eitel, 782 F.2d at 1472. Generally, 22 default judgments are disfavored, and a case should be decided on the merits whenever possible. 23 See Pena v. Seguros La Comercial, S.A., 770 F.2d 811, 814 (9th Cir. 1985). However, where a 24 defendant’s failure to appear “makes a decision on the merits impracticable, if not impossible,” 25 entry of default judgment is warranted. PepsiCo, Inc., 238 F.Supp.2d at 1177; see also Craigslist, 26 Inc. v. Naturemarket, Inc., 694 F.Supp.2d 1039, 1061 (N.D. Cal. 2010). Because the defendants 27 have failed to respond in this matter, a decision on the merits is impossible. Therefore, the 28 seventh Eitel factor does not preclude the entry of default judgment. 1 7. Summary of Eitel Factors 2 In sum, upon consideration of all the Eitel factors the undersigned finds that plaintiff is 3 entitled to a default judgment against the defendants and recommends that such a default 4 judgment be entered. The undersigned therefore turns to plaintiff’s requested damages and 5 injunctive relief. 6 B. Terms of the Judgment to Be Entered 7 1. Injunctive Relief 8 After determining that a party is entitled to entry of default judgment, the court must 9 determine the terms of the judgment to be entered. See Landstar Ranger, Inc. v. Path Enterprises, 10 Inc., 725 F.Supp.2d 916, 920 (C.D. Cal. 2010.). Plaintiff’s motion for default judgment seeks 11 injunctive relief. (Pl.’s MDJ (ECF No. 11-8) at 2.) Injunctive relief may be granted “when 12 architectural barriers at defendant’s establishment violate the ADA . . . .” Vogel, 992 F.Supp.2d 13 at 1015. 14 Having found that plaintiff has established that the defendants violated the ADA, the 15 undersigned recommends that plaintiff’s request for injunctive relief be granted, and defendants 16 be ordered to remove the barriers at the property identified in plaintiff’s complaint, to the extent 17 the defendants have the legal right to do so, so that the facility is readily accessible to and usable 18 by individuals with disabilities. See Vogel, 992 F.Supp.2d at 1015. 19 2. Statutory Damages 20 The Unruh Act provides that a plaintiff subjected to discrimination is entitled to recover 21 $4,000 for each occasion on which the plaintiff was denied equal access. Cal. Civ. Code § 52(a). 22 To recover statutory damages, a plaintiff need only show that plaintiff was denied full and equal 23 access, not that plaintiff was wholly excluded from enjoying defendant’s services. Vogel, 992 24 F.Supp.2d at 1015; Hubbard v. Twin Oaks Health and Rehabilitation Center, 408 F.Supp.2d 923, 25 932 (E.D. Cal. 2004). “A plaintiff is denied full and equal access only if the plaintiff personally 26 encountered the violation on a particular occasion, or the plaintiff was deterred from accessing a 27 place of public accommodation on a particular occasion.” Cal. Civ. Code § 55.56(b). 28 //// 1 In support of the request for $4,000 in statutory damages, plaintiff has submitted a 2 declaration stating that plaintiff went to the restaurant in February of 2018 and encountered a lack 3 of disabled parking. (Kraus Decl. (ECF No. 11-4) at 3.) This statement is sufficient to support 4 the award damages for the single violation sought by plaintiff. Accordingly, the undersigned 5 recommends that plaintiff be awarded $4,000 in statutory damages. 6 3. Attorney’s Fees and Costs 7 Plaintiff’s motion for default judgment seeks an award of $5,457.50 in attorney’s fees and 8 costs. (Pl.’s MDJ (ECF No. 11-1) at 10.) Pursuant to 42 U.S.C. § 12205, a party that prevails on 9 claims brought under the ADA may recover reasonable attorney’s fees and costs in the court’s 10 discretion. Here, plaintiff requests $660 in filing fees, service, and investigator costs, which are 11 reasonable and should be awarded. (Price Decl. (ECF No. 11-3) at 8.) 12 Plaintiff also requests $4,797.50 in attorney fees for 14.5 hours of work. (Id. at 11.) To 13 determine reasonable attorney’s fees, the starting point is “the number of hours reasonably 14 expended on the litigation multiplied by a reasonable hourly rate.” Hensley v. Eckerhart, 461 15 U.S. 424, 433 (1933). This is called the “loadstar” method. The fee applicant must submit 16 evidence of the hours worked and the rates claimed. Id. 17 (1) Reasonable Hourly Rates 18 In assessing application for attorney’s fees, the reasonable hourly rates are to be calculated 19 according to the prevailing market rates in the relevant legal community. Blum v. Stenson, 465 20 U.S. 886, 895 (1984); see also Ingram v. Oroudjian, 647 F.3d 925, 928 (9th Cir. 2011). It is also 21 the general rule that the “relevant legal community” is the forum in which the district court sits. 22 See Gonzalez v. City of Maywood, 729 F.3d 1196, 1205 (9th Cir. 2013); Prison Legal News v. 23 Schwarzenegger, 608 F.3d 446, 454 (9th Cir. 2010); Gates v. Rowland, 39 F.3d 1439, 1449 (9th 24 Cir. 1994); Gates v. Deukmejian, 987 F.2d 1392, 1405 (9th Cir. 1992). 25 Here, plaintiff requests attorney fees at hourly rates of $350 and $275. (Price Decl. (ECF 26 No. 18-3) at 10-11.) Plaintiff’s request is supported by a declaration from plaintiff’s attorney 27 Dennis Price. The declaration asserts that plaintiff’s attorney Mark Potter is the founding 28 member of his law firm and that he has 25 years of experience handling disability related issues. 1 (Id. at 4.) Plaintiff asserts that attorney Potter’s “billing rate at $425 in this case is well below 2 market rate,” and that “Mr. Potter’s requested billing rate of $350 per hour has been granted in 3 scores of recent federal court rulings, granting default judgment applications.” (Id. at 4.) 4 Plaintiff, however, failed to cite to any such federal court ruling from this district in support of 5 this assertion. 6 Plaintiff also asserts that attorney Russell Handy is an experienced attorney and is 7 qualified to bill at the rate of $350 per hour. (Id.) Again, plaintiff asserts that “Mr. Handy’s 8 requested billing rate of $350 per hour has been granted in scores of recent federal court rulings, 9 granting default judgment applications.” (Id. at 5.) And, again, plaintiff failed to cite to any case 10 in support of this assertion. The same is true of plaintiff’s assertion that attorney Phyl Grace’s 11 requested rate of $350 per hour has been granted in “scores of recent federal court rulings[.]” 12 (Id.) Likewise, plaintiff provided no support for the assertion that the billing rate of $275 per 13 hour sought by attorneys Christina Carson and Dennis Price “has been granted in scores of recent 14 federal court rulings, granting default judgment applications.” (Id. at 5-6.) 15 In the absence of any evidence from plaintiff establishing the prevailing market rate, the 16 undersigned’s finds, based on research and experience, that “[t]he vast majority of recent cases 17 from this district have concluded that hourly rates of $300 for Mr. Potter and Mr. Handy, $250 for 18 Ms. Grace, and $150 for Mr. Price [and attorney Carson] are reasonable.” Johnson v. Ajay Oil 19 Inc., No. 2:16-cv-2892 TLN EFB, 2019 WL 3729813, at *4 (E.D. Cal. Aug. 8, 2019); see, e.g., 20 Johnson v. Hey Now Properties, LLC, No. 2:16-cv-2931 WBS KJN, 2019 WL 586753, at *3 21 (E.D. Cal. Feb. 13, 2019) (finding hourly rate of $300 for Potter and Handy, $250 for senior 22 attorneys, and $150 for junior attorneys were reasonable); Johnson v. Vuong, No. 2:14-cv-0709 23 KJM DB, 2018 WL 3388456, at *6 (E.D. Cal. July 11, 2018) (“the overwhelming . . . weight of 24 authority establishes that the current prevailing rate for attorney’s fees for similar services by 25 lawyers of reasonably comparable skill, experience, and quality is $250 - $300 per hour in the 26 Sacramento division of the Eastern District of California.”). 27 A district court errs by “discarding the declarations [offered in support of a fee award] 28 entirely and considering only previous fee awards[.]” Roberts v. City of Honolulu, 938 F.3d 1 1020, 1024 (9th Cir. 2019). However, “[i]t is the responsibility of the attorney seeking fees to 2 submit evidence to support the requested hourly rate.” Id. at 1024. Here, plaintiff’s declaration 3 alone does not establish the prevailing market rate. Accordingly, the undersigned has also relied 4 on the undersigned’s experience and research. See O’Campo v. Ghoman, 789 Fed. Appx. 623 5 (9th Cir. 2020) (where plaintiff “failed to submit ‘satisfactory’ evidence of current market rates” 6 the court “permissibly relied on recent fee awards in the district to determine the prevailing rate in 7 similar cases for attorneys with similar experience”). Nonetheless, the undersigned has not 8 discarded the declaration offered by plaintiff’s attorney. 9 In light of the declaration offered by plaintiff’s counsel, the undersigned’s experience, and 10 recent fee awards, “the undersigned will recommend a reasonable hourly rate of $300 per hour for 11 attorneys Potter and Handy, $250 for attorney Grace, and $150 for the less experienced associate 12 [attorneys Price and Carson].” Johnson v. Pizano, No. 2:17-cv-1655 TLN DB, 2019 WL 13 2499188, at *7 (E.D. Cal. June 17, 2019). 14 (2) Hours Reasonably Expended 15 A prevailing party is entitled to compensation for attorney time “reasonably expended on 16 the litigation.” Webb v. Board of Educ. of Dyer County, 471 U.S. 234, 242 (1985). The 17 attorney’s fee applicant bears the burden of establishing the appropriate number of hours 18 expended. Hensley, 461 U.S. at 437; see also Jadwin v. County of Kern, 767 F.Supp.2d 1069, 19 1100 (E.D. Cal. 2011) (“The fee applicant bears the burden of documenting the appropriate hours 20 expended in the litigation and must submit evidence in support of those hours worked.”). 21 Time is reasonably expended on the litigation when it is “useful and of a type ordinarily 22 necessary to secure the final result obtained from the litigation.” Pennsylvania v. Delaware 23 Valley Citizens’ Council for Clean Air, 478 U.S. 546, 561 (1986) (citation and internal quotations 24 omitted). “Hours expended on unrelated, unsuccessful claims should not be included in an award 25 of fees.” Webb v. Sloan, 330 F.3d 1158, 1168 (9th Cir. 2003) (quoting Sorenson v. Mink, 239 26 F.3d 1140, 1147 (9th Cir. 2001)). 27 Here, plaintiff’s motion for default judgment seeks compensation for 14.5 hours expended 28 on this action. (Price Decl. (ECF No. 18-3) at 11.) Specifically, it seeks compensation for 4.2 1 hours for attorney Potter, 2.6 hours for attorney Handy, 4 hours for attorney Grace, .9 hours for 2 attorney Carson, and 2.8 hours for attorney Price. (Id. at 10-11.) 3 The undersigned finds this amount of time is reasonable when compared to similar ADA 4 cases coming before the court on motions for default judgment. See, e.g., Johnson v. Patel, No. 5 2:15-cv-2298 MCE EFB, 2017 WL 999462, at *3 (E.D. Sept. 21, 2015) (finding “the 8.8 hours 6 expended in filing of motion for the ADA default judgment is admittedly modest”); Loskot v. D 7 & K Spirits, LLC, No. 2:10-cv-0684 WBS DAD, 2011 WL 567364, at *4 (E.D. Cal. Feb. 15, 8 2011) (awarding 17.3 hours expended through filing of motion for default judgment); Johnson v. 9 Hey Now Properties, LLC., No. 2:16-cv-02931-WBS-KJN, 2019 WL 586753 at *3 (E.D. May 10 16, 2018) (awarding 57.3 hours expended in the ADA action). 11 (1) Summary 12 As noted above, plaintiff should be awarded 4.2 hours at a rate of $300 per hour for the 13 work of attorney Potter ($1,260), 2.6 hours at $300 per hour for attorney Handy ($780), 4 hours at 14 $250 per hour for attorney Grace ($1,000), .9 hours at $150 per hour for attorney Carson ($135), 15 and 2.8 hours at $150 per hour for attorney Price ($420) for the time expended in this matter. 16 Given the 14.5 hours of total time expended, that yields a total fee award of $3,595. When added 17 to the $660 in filing fees, service costs, and investigator costs the total amount of attorney’s fees 18 and costs to which plaintiff is entitled is $4,255. 19 CONCLUSION 20 For the reasons set forth above, IT IS HEREBY RECOMMENDED that: 21 1. Plaintiff’s June 21, 2019 motion for default judgment (ECF No. 11) be granted; 22 2. Judgment be entered against defendants Surjeet S. Rattu and Kuldip S. Rattu; 23 3. Defendants be ordered to pay $4,000 in statutory damages; 24 4. Defendants be ordered to correct the violation at the property identified in plaintiff’s 25 complaint, to the extent that defendants have the legal right to do so, so that the facility is readily 26 accessible to and usable by individuals with disabilities; 27 //// 28 //// 1 5. Defendants be ordered to pay plaintiff $4,255 in attorneys’ fees and costs; and 2 6. This case be closed. 3 These findings and recommendations will be submitted to the United States District Judge 4 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) 5 | days after these findings and recommendations are filed, any party may file written objections 6 | with the court. A document containing objections should be titled “Objections to Magistrate 7 | Judge’s Findings and Recommendations.” Any reply to the objections shall be served and filed 8 | within fourteen (14) days after service of the objections. The parties are advised that failure to 9 | file objections within the specified time may, under certain circumstances, waive the right to 10 | appeal the District Court’s order. See Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 11 | Dated: January 31, 2020 12 13 14 ‘BORAH BARNES UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 | DLB:6 33 DB\orders\orders.civil\kraus0627.mdj.f&rs 24 25 26 27 28 14