Whitaker v. Sheikh

Opinion

BRIAN WHITAKER, No. 2:21–cv–0493–KJM–KJN PS Plaintiff, ORDER & FINDINGS AND RECOMMENDATIONS v. (ECF No. 19) Defendant. Presently pending before the court is plaintiff Brian Whitaker’s motion for default judgment against defendant Zafar Sheikh, who is the only named defendant in this action.1 (ECF No. 19.) Defendant failed to file an opposition to the motion, despite an extension of time, and the motion was submitted without oral arguments pursuant to Local Rule 230(g). (ECF No. 21.) For the following reasons, the court recommends that plaintiff’s motion for default judgment be GRANTED on the terms outlined below. Plaintiff initiated this action on March 18, 2021, alleging violations of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101 et seq. (“ADA”) and California’s Unruh Civil Rights Act, Cal. Civ. Code §§ 51 et seq. (ECF No. 1.) On April 19, 2021, plaintiff filed a First 1 This motion is referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B), Federal Rule of Civil Procedure 72, and Local Rule 302(c)(19). Amended Complaint to amend the named defendant from Sheikh Jewelers to the current defendant, Zafar Sheikh d/b/a Sheikh Jewelers. (ECF No. 6 [“FAC”].) As alleged in the FAC, defendant owns a business establishment and place of public accommodation known as Sheikh Jewelers, which is located at 1151 Galleria Blvd., Roseville, California. (FAC ¶¶ 1-3, 9.) Plaintiff, who is quadriplegic and uses a wheelchair, patronized Sheikh Jewelers in March 2021 and found no wheelchair-accessible sales counters.2 (Id. ¶¶ 8-14.) Plaintiff “wanted to return and patronize the business subsequent to his original visit but was specifically deterred due to his actual personal knowledge of the barriers” and uncertainty about the existence of other barriers. (Id. ¶ 8, 20.) Plaintiff seeks injunctive relief and nominal damages under the ADA; statutory damages under the Unruh Civil Rights Act; and attorneys’ fees, litigation expenses, and costs. (Id. at 7.) On March 29, 2021, plaintiff personally served copies of the original complaint and summons on then-defendant Sheikh Jewelers, through its agent. (ECF No. 4.) On May 18, 2021, plaintiff served defendant Zafar Sheikh via substituted service by delivering a copy of the summons and FAC to a sales representative at Sheikh Jewelers and then mailing copies to the same address. (ECF No. 8.) Defendant failed to answer or otherwise respond, and on July 30, 2021, at plaintiff’s request, the Clerk of the Court entered the default. (See ECF Nos. 13, 14.) On September 27, 2021, plaintiff filed the instant motion for default judgment. (ECF No. 19.) Defendant did not respond to the motion. The court vacated the October 28, 2021 hearing and provided defendant an additional opportunity to oppose. (ECF No. 21.) As ordered by the court, plaintiff served a copy of the order on defendant by mail on October 25, 2021. (ECF No. 22.) Defendant still has not opposed plaintiff’s motion or otherwise appeared in this action. Plaintiff’s motion requests judgment awarding him all relief sought in the FAC, specifically (A) an order for defendant to provide ADA-compliant wheelchair-accessible counters, (B) $4,000 in statutory damages, and

2 The complaint does not state the specific date of plaintiff’s visit. In support of the motion for default judgment, plaintiff avers that he visited Sheikh Jewelers on March 4, 2021. (ECF No. 19.4, Whitaker Decl. ¶ 3.) $3,077 in attorneys’ fees and costs. (ECF No. 19.1 at 6; ECF No. 19.3 at 10; ECF No. 19.8 (Proposed Judgment).). Pursuant to Federal Rule of Civil Procedure 55, default may be entered against a party against whom a judgment for affirmative relief is sought who fails to plead or otherwise defend against the action. See Fed. R. Civ. P. 55(a). However, “[a] defendant’s default does not automatically entitle the plaintiff to a court-ordered judgment.” PepsiCo, Inc. v. Cal. Sec. Cans, 238 F. Supp. 2d 1172, 1174 (C.D. Cal. 2002) (citing Draper v. Coombs, 792 F.2d 915, 924-25 (9th Cir. 1986)). Instead, the decision to grant or deny an application for default judgment lies within the district court’s sound discretion. Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). In making this determination, the court considers the following factors: (1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff’s substantive claim, (3) the sufficiency of the complaint, (4) 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 excusable neglect, and (7) the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits. Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). Default judgments are ordinarily disfavored. Id. at 1472. As a general rule, once default is entered, well-pleaded factual allegations in the operative complaint are taken as true, except for those allegations relating to damages. TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987) (per curiam) (citing Geddes v. United Fin. Group, 559 F.2d 557, 560 (9th Cir. 1977) (per curiam)); accord Fair Housing of Marin v. Combs, 285 F.3d 899, 906 (9th Cir. 2002). In addition, although well-pleaded allegations in the complaint are admitted by a defendant’s failure to respond, “necessary facts not contained in the pleadings, and claims which are legally insufficient, are not established by default.” Cripps v. Life Ins. Co. of N. Am., 980 F.2d 1261, 1267 (9th Cir. 1992) (citing Danning v. Lavine, 572 F.2d 1386, 1388 (9th Cir. 1978)); accord DIRECTV, Inc. v. Hoa Huynh, 503 F.3d 847, 854 (9th Cir. 2007) (stating that a defendant does not admit facts that are not well-pled or conclusions of law); Abney v. Alameida, 334 F. Supp. 2d 1221, 1235 (S.D. Cal. 2004) (“[A] default judgment may not be entered on a legally insufficient claim”). A party’s default does not establish the amount of damages. Geddes, 559 F.2d at 560. A. Appropriateness of the Entry of Default Judgment Under the Eitel Factors The undersigned finds that the weight of the Eitel factors entitles plaintiff to default judgment on both claims asserted. 1. Plaintiff is prejudiced by defendant’s non-responsiveness. The first Eitel factor considers whether plaintiff would suffer prejudice if default judgment is not entered, and such potential prejudice to plaintiff militates in favor of granting a default judgment. See PepsiCo, Inc., 238 F. Supp. 2d at 1177. Absent entry of default judgment, plaintiff would be without another recourse to recover from defendant for the alleged violations. Accordingly, the first Eitel factor favors the entry of a default judgment. 2. Plaintiff’s substantive claims are meritorious and sufficiently pleaded in the FAC. The court considers the second and third factors—the merits of plaintiff’s substantive claims and the sufficiency of the complaint—together due to the relatedness of the two inquiries. The court must consider whether the allegations in the complaint are sufficient to state a claim for relief. See Danning, 572 F.2d at 1388; PepsiCo, Inc., 238 F. Supp. 2d at 1175. Here, plaintiff seeks recovery for violations of the ADA and California’s Unruh Civil Rights Act. (See ECF No. 6 (“FAC”) at 4-6.) a. ADA Title III of the ADA provides “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” 42 U.S.C. § 12182(a). “To prevail on a Title III discrimination claim, [the plaintiff] must establish that: (1) he is disabled within the meaning of the ADA; (2) [the defendant] is a private entity that owns, leases, or operates a place of public accommodation; and (3) [the defendant] discriminated against him by denying him public accommodations because of his disability.” Lopez v. Catalina Channel Express, Inc., 974 F.3d 1030, 1033 (9th Cir. 2020); see 42 U.S.C. §§ 12182(a)-(b)). In the context of existing facilities, the third element, discrimination, can be satisfied by showing “a failure to remove architectural barriers . . . where such removal is readily achievable.” Id. § 12182(b)(2)(A)(iv); see Lopez, 974 F.3d at 1034; Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 945 (9th Cir. 2011) (en banc). The ADA defines “readily achievable” as “easily accomplishable and able to be carried out without much difficulty or expense.” 42 U.S.C. § 12181(9). The first and second elements of plaintiff’s Title III claim are easily met here. Plaintiff’s quadriplegia is a disability under the ADA because it is a physical impairment that substantially limits major life activities, such as walking. (FAC ¶ 1.) See 42 U.S.C. § 12102(2)(A). Sheikh Jewelers is a sales establishment that qualifies as a place of public accommodation under the ADA. (Id. ¶¶ 2-3, 9.) See 42 U.S.C. § 12181(7)(E) (listing “a bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment” as a place of public accommodation). Whether plaintiff adequately pleads the third element, discrimination, is a closer question because of split authority regarding what (if anything) an ADA plaintiff must plead on the issue of an architectural barrier’s “readily achievable” removal. It is clear that to ultimately “succeed on a ADA claim of discrimination on account of one’s disability due to an architectural barrier,” to show discrimination, “the plaintiff must also prove that: (1) the existing facility at the defendant’s place of business presents an architectural barrier prohibited under the ADA, and (2) the removal of the barrier is readily achievable.” Parr v. L & L Drive-Inn Rest., 96 F. Supp. 2d 1065, 1085 (D. Haw. 2000) (emphasis added); accord Hubbard v. 7-Eleven, Inc., 433 F. Supp. 2d 1134, 1138 (S.D. Cal. 2006). The Ninth Circuit confirmed this requirement in its recent Lopez decision addressing for the first time in this circuit the burdens of proof on the issue of a barrier’s “readily achievable” removal. See Lopez, 974 F.3d at 1034 (“[T]o prevail on his discrimination claim [under § 12182(b)(2)(A)(iv)], Lopez must establish . . . that [the defendant] failed to alter the restroom door when doing so was readily achievable . . . .” (emphasis added)). However, the Lopez decision also repeatedly and conclusively states that a barrier not being readily removable is an “affirmative defense.” See id. at 1036 (stating that §§ 12182(b)(2)(A)(iv) and (v) “place the ultimate burden on the defendant to prove the affirmative defense that removal of an architectural barrier is not readily achievable” (emphases in Lopez)), and at 1035 (noting that “it is clear that the defendant bears the ultimate burden of proving the affirmative defense”). Lopez’s seemingly conflicting statements—that plaintiff must “establish” that an alteration was readily achievable, but that non-readily-achievable removal is an affirmative defense—leaves it somewhat unclear whether or not a barrier’s ready removability is an element of plaintiff’s prima facie case which must be plead in the complaint. Because Lopez was an appeal from summary judgment for the defendant, the Ninth Circuit had no occasion to address the pleading requirements for plaintiff to state a claim of barrier-related discrimination. Rather, Lopez focused entirely on answering the question of which party has the burden of proving whether the barrier’s removal is “readily achievable.” See id. at 1034 (“Our court has not decided which party bears the burden to establish that removal of an architectural barrier is or is not readily achievable.” (emphasis added)). The Ninth Circuit answered that question by adopting a burden-shifting framework similar to the Tenth Circuit’s longstanding Colorado Cross framework, but with a more lenient evidentiary standard used by the Second Circuit. See id. at 1035 (joining approach from Roberts v. Royal Atl. Corp., 542 F.3d 363, 373 (2d Cir. 2008), which slightly tweaked the test established in Colorado Cross Disability Coalition v. Hermanson Family Limited Partnership, 264 F.3d 999 (10th Cir. 2001)). Under the general Colorado Cross framework adopted by the Ninth Circuit in Lopez, the plaintiff “must initially present evidence tending to show that the suggested method of barrier removal is readily achievable under the particular circumstances.” [Colo. Cross, 264 F.3d] at 1002. If the plaintiff meets that initial burden, the defendant “then bears the ultimate burden of persuasion that barrier removal is not readily achievable.” Id. at 1002–03. In other words, the defendant “bears the ultimate burden of persuasion regarding its affirmative defense that a suggested method of barrier removal is not readily achievable.” Id. at 1006. Lopez, 974 F.3d at 1035 (emphases omitted). The Ninth Circuit declined to adopt the Tenth Circuit’s heavy standard for what evidence a plaintiff must present to meet the initial burden of proof and shift the burden to the defendant. See id. at 1038 (reasoning that the Tenth Circuit’s requirement for plaintiffs to provide “precise cost estimates” and “a specific design” regarding their proposed accommodation, Colo. Cross, 264 F.3d at 1009, would be “asking too much of plaintiffs,” considering defendants’ superior knowledge of their own facilities). Instead, the Ninth Circuit adopted the Second Circuit’s standard that “to satisfy their initial burden, ADA plaintiffs must plausibly show how the cost of removing the architectural barrier at issue does not exceed the benefits under the circumstances.” Id. (emphasis added); see id. at 1040. “If the plaintiff makes a plausible showing that the requested accommodation is readily achievable, the burden shifts to the defendant to counter the plaintiff’s initial showing . . . .” Id. at 1038-39. Importantly, this burden-shifting framework applies to the parties’ evidentiary burdens at the proof stage, i.e., at summary judgment or at trial. See id. at 1040 (“[W]e adopt a burden- shifting framework whereby plaintiffs have the initial burden at summary judgment of plausibly showing that the cost of removing an architectural barrier does not exceed the benefits under the particular circumstances” and “[t]he defendant then bears the ultimate burden of persuasion that barrier removal is not readily achievable.”) (emphasis added), and at 1035 (“plaintiff ‘must initially present evidence tending to show . . .’”) (emphasis added) (quoting Colo. Cross, 264 F.3d at 1002). Lopez does not squarely answer whether a plaintiff proceeding on an architectural barrier theory must plead in the complaint that a barrier’s removal is readily achievable in order to state a claim. Lopez’s description of a barrier’s difficult removability as “an affirmative defense” that the defendant ultimately must prove seems to suggest that the plaintiff need not plead anything at all about whether removal is readily achievable. See U.S. Commodity Futures Trading Comm’n v. Monex Credit Co., 931 F.3d 966, 972 (9th Cir. 2019) (noting importance of distinction between a claim element and an affirmative defense “because Rule 8 does not require plaintiffs to plead around affirmative defenses”). At the same time, Lopez established that plaintiffs do bear an initial burden of production on this affirmative defense at summary judgment. 974 F.3d at 1035. This is because “only if the plaintiff first makes a plausible showing that the barrier removal is readily achievable, does the defendant then have to negate that showing and prove that the removal is not readily achievable.” Id. at 1036. Here, plaintiff argues that he need not plead the sales counter barrier’s ready removability because the difficulty of barrier removability is entirely an affirmative defense, which defendant waived by not appearing in this action and therefore not raising it. (ECF No. 19.1 at 9, citing Wilson v. Haria & Gogri Corp., 479 F. Supp. 2d 1127, 1133 & n.7 (E.D. Cal. 2007).) See Corbin v. Time Warner Ent.-Advance/Newhouse P’ship, 821 F.3d 1069, 1079 (9th Cir. 2016) (“If a party seeks to assert an affirmative defense, the party ‘must affirmatively state’ that defense in a responsive pleading.” (quoting Fed. R. Civ. P. 8(c)(1))). Judge Karlton deciding a motion for summary judgment in Wilson held that “while [the] defendant would ordinarily be entitled to prove that the removal of the alleged architectural barriers is not ‘readily achievable,’” “this is an affirmative defense, which defendant has waived” by failing to plead that affirmative defense in its answer. 479 F. Supp. 2d at 1133 & n.7. Thus, in Wilson, the plaintiff’s failure to present any evidence regarding barrier removability did not preclude summary judgment in his favor. Id. at 1133 n.7 (“While plaintiff has not come forward with any evidence regarding barrier removal, he need not do so where such evidence would be unnecessary, given defendant’s waiver.”). Some courts evaluating motions for default judgment similar to the instant one criticize plaintiff’s counsel (which represents many ADA plaintiffs across the state) for continuing to rely on Wilson’s waiver rule in the wake of Lopez, which plaintiff’s counsel’s filings routinely fail to cite at all.3 See, e.g., Whitaker v. Prime Oil Mgmt., L.L.C., 2021 WL 4353246, at *4-5 (C.D. Cal. Apr. 8, 2021) (referring to Wilson as “bad law” and denying default judgment for failure to allege “that the cost of removing the barriers at issue does not exceed the benefits under the circumstances”); Johnson v. Tram Chim’s Corp, 2021 WL 6129054, at *1 (N.D. Cal. Nov. 8, 2021) (“counsel should be concerned about misrepresenting the state of the law”). These courts, like many others post-Lopez, assume without discussion that Lopez’s “initial burden” applies equally at the pleadings stage—which informs the liability analysis for obtaining default judgment—as at summary judgment. The undersigned finds this troubling, given that Lopez (and the other circuit precedent on which it relied) adopted the burden-shifting framework purely 3 This despite the fact that plaintiff’s counsel here, the Center for Disability Access, also represented the plaintiff in Lopez both in the district court and on appeal. within the summary judgment context. See Lopez, 974 F.3d at 1040 (“[W]e adopt a burden- shifting framework whereby plaintiffs have the initial burden at summary judgment of plausibly showing that the cost of removing an architectural barrier does not exceed the benefits under the particular circumstances.” (emphasis added)). The concept of burden shifting is foreign to the evaluation of the sufficiency of a complaint, which is the court’s task when reviewing a motion for default judgment. See Danning v. Lavine, 572 F.2d 1386, 1388 (9th Cir. 1978) (the question on default liability is “whether the allegations in the complaint are sufficient to state a claim on which the [plaintiff] may recover”); Philip Morris USA, Inc. v. Castworld Prod., Inc., 219 F.R.D. 494, 499 (C.D. Cal. 2003) (“The second two Eitel factors require that a plaintiff state a claim on which the [plaintiff] may recover.” (internal quotation omitted)); see also Surtain v. Hamlin Terrace Found., 789 F.3d 1239, 1245 (11th Cir. 2015) (characterizing a motion for default judgment as a “reverse motion to dismiss for failure to state a claim”). Moreover, it seems a tall order to require a plaintiff to determine before filing the complaint—without the benefit of discovery—what the cost of barrier removal might be. See Lopez, 974 F.3d at 1038 (adopting Second Circuit’s lesser evidentiary standard because “defendants have more knowledge and information regarding their own facilities” than do plaintiffs). Thus, the undersigned does not view Wilson, on its own, as “bad law” after Lopez. Given that non-readily achievable removal is an affirmative defense, it should be equally true after Lopez as before that a defendant’s failure to appear and plead that affirmative defense in its answer waives that defense at summary judgment. Nevertheless, the undersigned agrees that Wilson’s waiver rule does not translate to the pleadings / default judgment context to absolve the plaintiff of needing to plead anything at all about a barrier’s removability. Rather, the phrasing of the applicable statute, 42 U.S.C. § 12182(b)(2)(A)(iv)-(v), combined with the Ninth Circuit’s treatment of barrier removability as a special type of affirmative defense for which the plaintiff bears an initial burden of production at summary judgment, leads the undersigned to conclude that an ADA plaintiff must plausibly plead in the complaint that the barrier’s removal is readily achievable. As parsed in Lopez, [s]ubsection (iv) starts by requiring defendants to remove architectural barriers if that removal is readily achievable. 42 U.S.C. § 12182(b)(2)(A)(iv). Subsection (v), in turn, offers the defendant an opportunity to avoid liability by “demonstrat[ing] that the removal of a barrier under clause (iv) is not readily achievable[.]” Id. § 12182(b)(2)(A)(v). 974 F.3d at 1036 (emphasis and alterations in Lopez). The language of subsection (b)(2)(A)(iv) places the onus on plaintiffs in the first instance to assert that removal is readily achievable. See id. (“[O]nly if the plaintiff first makes a plausible showing that the barrier removal is readily achievable, does the defendant then have to negate that showing and prove that the removal is not readily achievable.”). Subsection (b)(2)(A)(iv)’s requirement of removal “if that removal is readily achievable” is what led the Ninth Circuit (and every other circuit to address the issue) to place an initial burden on plaintiff on this issue at summary judgment, and it also motivates the conclusion that plaintiff must plead in the complaint something to plausibly suggest that barrier removal is readily achievable. Otherwise, there would be nothing to prompt the defendant to plead as an affirmative defense that removal is not readily achievable. Still, the plaintiff’s pleading burden is low, and the undersigned sees no reason it should equate to the plaintiff’s evidentiary burden of production at summary judgment. See Marradi v. K&W Realty Inv. LLC, 212 F. Supp. 3d 239, 245 (D. Mass. 2016) (“Whether plaintiff can ultimately carry his burden of production” as to readily achievable removal is “not material to the question whether the complaint has adequately alleged a prima facie claim under the statute.” (quoting Melo v. S. Broadway L. Realty Tr., 2016 WL 393258, at *2 (D. Mass. Feb. 1, 2016) (alterations omitted)); Flaum v. Colonial Williamsburg Foundation, 2012 WL 5879128, *6 (E.D. Va. Nov. 21, 2012) (“Whatever the standard regarding the burden of production, the ‘readily achievable’ inquiry is premature at the pleading stage. The law does not require that Plaintiff request some specific form of modification as a prerequisite to a valid ADA claim.”). Plaintiffs are not required to come to court armed with a full proposal for the cost efficiency of barrier removal. Plaintiff here alleges: “The barriers identified above [(sales counters inaccessible to wheelchair users)] are easily removed without much difficulty or expense. They are the types of barriers identified by the Department of Justice as presumably readily achievable to remove and, in fact, these barriers are readily achievable to remove.” (FAC ¶ 19.) Although plaintiff does not cite the regulation to which he refers in either the complaint or the motion for default judgment, the court understands this as a reference to 28 C.F.R. § 36.304(b), which lists among its non- exclusive “[e]xamples of steps to remove barriers”: “(3) Repositioning shelves” and “(4) Rearranging tables, . . . , and other furniture.” The Ninth Circuit recognizes this regulation as listing examples of barrier removals that are “likely to be readily achievable.” Molski v. M.J. Cable, Inc., 481 F.3d 724, 730 (9th Cir. 2007) (“Federal regulations clarify which barrier removals are likely to be readily achievable and provide examples in 28 C.F.R. § 36.304.”). Courts regularly treat overly high sales counters as falling within § 36.304(b)(3)’s example of repositioning shelves. See Johnson v. Wayside Property, Inc., 41 F. Supp. 3d 973, 977 (E.D. Cal. 2014) (describing DOJ regulation as covering removal of “an excessively high transaction counter” and citing § 36.304(b)(3)); Johnson v. Dhillon, 2015 WL 5834799, at *3 (E.D. Cal. Oct. 1, 2015). While § 36.304 does not necessarily establish a presumption that such forms of barrier removal are readily achievable, it does make their removal plausibly readily achievable. See Vogel v. Rite Aid Corp., 992 F. Supp. 2d 998, 1011 (C.D. Cal. 2014) (pre-Lopez but applying Colorado Cross burden-shifting framework to hold pleadings sufficient to award default judgment based on allegations that the defendant “can easily remove the architectural barriers at [the store] without much difficulty or expense” and given that the subject barriers were the type listed as examples of readily achievable steps in 28 C.F.R. § 36.304(b)); Acosta v. Perez, 2021 WL 3910543, at *8 (E.D. Cal. Sept. 1, 2021) (finding sufficient for purposes of default judgment allegation that removal of barrier described in federal regulations was readily achievable), report and recommendation adopted, 2021 WL 4461536 (E.D. Cal. Sept. 29, 2021); Johnson v. Garlic Farm Truck Ctr. LLC, 2021 WL 2457154, at *6 (N.D. Cal. June 16, 2021) (finding allegations identical to those in the FAC “sufficient to meet the readily achievable element at the default judgment stage” and collecting cases holding same); Johnson v. In Suk Jun, 2020 WL 6507995, at *5 (N.D. Cal. Nov. 5, 2020). Therefore, despite the conclusory nature of plaintiff’s allegations, the undersigned finds them sufficient to plausibly plead that it would be readily achievable to lower a portion of the sales counter or add an adjacent lower counter. That is all a plaintiff must do at the pleadings stage. The undersigned departs from the predominating practice among district courts—including those just cited—of finding on default judgment motions that a complaint does or does not satisfy the plaintiff’s “initial burden” under Lopez (or Colorado Cross, pre-Lopez). As discussed at length above, the burden-shifting framework does not apply until the court is evaluating evidence. All the plaintiff must do at the pleadings stage to proceed under § 12182(b)(2)(A)(iv) is plausibly allege that the barrier’s removal is readily achievable. Doing so does not “shift the burden” to the defendant, except insofar as it apprises the defendant of the need to plead the applicable affirmative defense to the contrary. If the defendant fails to so plead, the plaintiff is effectively entitled to judgment on the pleadings as to that claim—assuming he pleads the preceding elements of a qualifying disability, a covered public accommodation, and an architectural barrier encountered. Such is the posture of this case. As found at the outset, plaintiff adequately pleads that he is disabled within the meaning of the ADA, and that Sheikh Jewelers is a covered sales establishment. Further, he identifies an architectural barrier he personally encountered that does not comply with ADA guidelines. The ADA Standards for Accessible Design require that a portion of “sales counters” must be no higher than 36 inches. ADA Standards for Accessible Design §§ 904.4, 904.4.1 (2010). Plaintiff alleges there was no sales counter at Sheikh Jewelers that was 36 inches or less in height.4 (FAC ¶ 12.) Finally, as just discussed, plaintiff adequately pleads that removal of this sales counter barrier was readily achievable. Therefore, without addressing whether plaintiff satisfied his “initial burden” of production, the undersigned simply finds that plaintiff sufficiently pleaded his ADA Title III discrimination claim—which is all that is required to satisfy Eitel factors 2 and 3 in support of default liability. /// /// 4 Plaintiff attaches photographs and a declaration from an investigator showing that the counters were uniformly 43.7 inches tall. (ECF Nos. 19.5 ¶¶ 3-4, 19.6 at 4.) b. California’s Unruh Civil Rights Act California’s Unruh Civil Rights Act provides: “All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” Cal. Civ. Code § 51(b). As expressly provided by statute, a violation of the ADA also constitutes a violation of the Unruh Civil Rights Act. Cal. Civ. Code § 51(f); see also Munson v. Del Taco, Inc., 46 Cal. 4th 661, 664-65 (2009). Here, because plaintiff’s FAC properly alleges a prima facie claim under the ADA, plaintiff also properly alleges facts supporting a claim under the Unruh Civil Rights Act. Accordingly, the second and third Eitel factors favor the entry of a default judgment on both the ADA and Unruh Act claims. 3. The amount of damages is proportional to plaintiff’s harm. Next, the court considers “the amount of money at stake in relation to the seriousness of Defendant’s conduct.” PepsiCo, Inc., 238 F. Supp. 2d at 1176-77; see, e.g., Philip Morris, 219 F.R.D. at 500. In this case, plaintiff seeks injunctive relief; statutory damages under the Unruh Civil Rights Act corresponding to one (1) obstructed visit to Sheikh Jewelers ($4,000 minimum statutory damages per visit); and attorneys’ fees and costs in the amount of $3,077. Although the court more closely scrutinizes the requested attorneys’ fees and costs below, the court does not find the overall sum of money at stake so large or excessive as to militate against the entry of default judgment, particularly when reduced for the reasons to be discussed. This factor favors the entry of a default judgment. 4. The material facts are not in dispute. Because the court may assume the truth of well-pleaded facts in the complaint (except as to damages) following the clerk’s entry of default, there is no likelihood that any genuine issue of material fact exists. See, e.g., Elektra Entm’t Group Inc. v. Crawford, 226 F.R.D. 388, 393 (C.D. Cal. 2005) (“Because all allegations in a well-pleaded complaint are taken as true after the court clerk enters default judgment, there is no likelihood that any genuine issue of material fact exists.”); accord Philip Morris, 219 F.R.D. at 500; PepsiCo, Inc., 238 F. Supp. 2d at 1177. As such, the court concludes that the fifth Eitel factor favors a default judgment. 5. The court sees no excusable neglect. Here, there is no indication in the record that defendant’s default was due to excusable neglect. See Pepsi Co, Inc., 238 F. Supp. 2d at 1177. Defendant received ample notice of this lawsuit. First, when Sheikh Jewelers itself was named as the defendant in the original complaint, plaintiff effected personal service on the corporation’s registered agent, Fajar Sheikh. (See ECF Nos. 4, 19.7 at 3.) Then, after amending the complaint to name defendant Zafar Sheikh (doing business as Sheikh Jewelers), plaintiff properly effected substituted service on Mr. Sheikh by leaving copies of the FAC and summons with a “competent person apparently in charge” at Mr. Sheikh’s usual place of business and then mailing a copy to the same address thereafter. (ECF No. 8.) See Cal. Civ. Proc. § 415.2(b) (explaining the requirements for substituted service); Fed. R. Civ. P. 4(e)(1) (allowing for service of an individual by “following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made.”). Plaintiff also served defendant, by mail, with this motion for default judgment and the court’s order providing an additional opportunity to respond to the default. (See ECF Nos. 20, 21, 22.) Defendant’s failure to respond therefore is not likely due to excusable neglect. Accordingly, this Eitel factor favors the entry of a default judgment. 6. Other factors outweigh the policy favoring disposition on the merits. “Cases should be decided upon their merits whenever reasonably possible.” Eitel, 782 F.2d at 1472. However, district courts conclude with regularity that this policy, standing alone, is not dispositive, especially where a defendant fails to appear or defend itself in an action. PepsiCo, Inc., 238 F. Supp. 2d at 1177; see, e.g., Craigslist, Inc. v. Naturemarket, Inc., 694 F. Supp. 2d 1039, 1061 (N.D. Cal. 2010). Here, although the undersigned acknowledges the policy in favor of decisions on the merits—and consistent with existing policy would prefer this case be resolved on the merits—that policy does not, by itself, preclude the entry of default judgment. /// In sum, after considering and weighing all the Eitel factors, the court concludes that plaintiff is entitled to a default judgment against defendant, and recommends a default judgment be entered. B. Terms of the Judgment to be Entered After determining that a party is entitled to entry of default judgment, the court must determine the terms of the judgment to be entered. Plaintiff seeks injunctive relief, statutory damages, attorneys’ fees, and costs. 1. Injunctive Relief Because plaintiff satisfactorily alleged his ADA claim, the court recommends plaintiff be granted injunctive relief, to remedy the architectural barriers. See 42 U.S.C. § 12188(a)(2). 2. Statutory Damages Plaintiff also requests statutory damages for the Unruh Civil Rights Act violation, in the amount of $4,000, which corresponds to one (1) obstructed visit to Sheikh Jewelers. See Cal. Civ. Code § 52(a). The Unruh Civil Rights Act permits $4,000 in statutory damages for each occasion the plaintiff is denied equal access. Id. “Proof of actual damages is not a prerequisite to the recovery of statutory minimum damages.” Botosan v. Paul McNally Realty, 216 F.3d 827, 835 (9th Cir. 2000). To recover statutory minimum damages, a plaintiff need only show he was denied full and equal access, not that he was wholly excluded from enjoying defendant’s services. Id. “A plaintiff is denied full and equal access only if the plaintiff personally encountered the violation on a particular occasion, or the plaintiff was deterred from accessing a place of public accommodation on a particular occasion.” Cal. Civ. Code § 55.56(b). Because plaintiff personally encountered the inaccessible sales counters at Sheikh Jewelers on one occasion, the court recommends plaintiff be awarded minimum statutory damages of $4,000. 3. Attorneys’ Fees and Costs Lastly, plaintiff requests attorneys’ fees and costs. The statutes at issue specifically contemplate the award of attorneys’ fees and costs. See 42 U.S.C. § 12205; Cal. Civ. Code § 52(a). Thus, the only question is whether the requested amount of attorneys’ fees and costs ($3,077.00) is reasonable. Plaintiff requests $857.00 in filing fees, investigator fees, and service costs, which are reasonable and should be awarded. (ECF No. 19.3, at 11-12.) See 42 U.S.C. § 12205 (allowing the court, in its discretion, to award prevailing party in ADA action “a reasonable attorney’s fee, including litigation expenses, and costs”); Kraus v. Ding Chaun Chen, 2021 WL 856425, at *5 (E.D. Cal. Mar. 8, 2021), F&R adopted Apr. 13, 2021 (finding court filing fees, costs of service, and an expert witness investigator fee to be compensable expenses under § 12205). Plaintiff also seeks $2,220.00 in attorneys’ fees for work performed by his legal counsel, Center for Disability Access (a division of Potter Handy, LLP). (ECF Nos. 19.1 at 14-20, 19.3 at 10-11.) The ADA and California’s Unruh Act both entitle plaintiff to attorneys’ fees, at the court’s discretion. See 42 U.S.C. § 12205 (providing district courts with authority to award reasonable attorneys’ fees to the prevailing party in an ADA action); Cal. Civ. Code § 52 (noting attorneys’ fees for Unruh Act violations may be determined by the court). Attorneys’ fee awards must account for work of non-attorneys, including paralegals and law clerks “whose labor contributes to the work product for which an attorney bills her client.” Missouri v. Jenkins, 491 U.S. 274, 285 (1989). These awards do not include fees for “purely clerical or secretarial tasks,” however. Id. at 288 n.10. Courts calculate an attorneys’ fee award using the lodestar method, where the “lodestar” amount is the sum of the number of hours reasonably expended on the matter multiplied by a reasonable hourly rate. Ferland v. Conrad Credit Corp., 244 F.3d 1145, 1146–48 (9th Cir. 2001). The party seeking attorneys’ fees bears the burden of producing sufficient evidence that “the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.” Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984). The attorneys’ fees requested in this case comprise: 0.8 hours of work for attorney Mark Potter at an hourly rate of $650[5]; 0.1 hours of work for attorney Amanda Seabock at an hourly rate of $500; 3.0 hours of work for attorney Tehniat Zaman at an hourly rate of $400; 1.6 hours of

5 The billing invoice lists Mr. Potter’s hourly rate as $650. (ECF No. 19.3 at 10.) However, the supporting declaration refers to an hourly rate of $595 for Mr. Potter. (Id. ¶ 10.) This discrepancy is immaterial, as the court finds both rates excessive. work for an individual named Marcus Handy, whose position is not specified, at an hourly rate of $200; and a total of 1.3 hours of work spread across six individuals whose positions are not specified (Andrew Sheaffer, Deepa Shetty, Geraldine Manalo, Herman Fernandes, Leonardo Pahuriray, and Tanpreet Pannu) at an hourly rate of $100 each. (ECF No. 19.3 at 10-11.) In total, plaintiff is requesting $2,220.00 in attorneys’ fees. (Id. at 11.) Plaintiff submits the declaration of attorney Russel Handy (who billed no hours for this case) in support of the hourly rates requested for plaintiff’s attorneys Mr. Potter ($650), Ms. Seabock ($500), and Ms. Zaman ($400). (ECF No. 19.3 ¶¶ 10-14.) Although the number of hours these three attorneys spent on the case are reasonable, the court finds each attorney’s hourly rates to be excessive in light of prevailing market rates in the Sacramento Division of the Eastern District of California. See Camacho v. Bridgeport Financial, Inc., 523 F.3d 973, 979 (9th Cir. 2008) (courts look to prevailing rates for the “relevant community” which is the forum in which the district sits). Plaintiff’s counsel critiques courts in this district for historically “holding the line” by awarding Center for Disability Access attorneys reduced hourly rates solely based on the Eastern District’s previous awards to the firm. (ECF No. 19.1 at 16, citing Roberts v. City of Honolulu, 938 F.3d 1020, 1024 (9th Cir. 2019).) However, “[i]t is the responsibility of the attorney seeking fees to submit evidence to support the requested hourly rate.” Roberts, 938 F.3d at 1024. Mr. Handy’s billing declaration in this case (as noted in prior cases) does not provide any evidence of the prevailing market rate for this district, or any other. See, e.g., Johnson v. Shree Rang, LLC, 2020 WL 5202068, at *4 n.4 (E.D. Cal. Sept. 1, 2020) (finding recent fee awards for CDA attorneys persuasive where Mr. Handy’s declaration was “devoid of any evidence with respect to the prevailing local rate for this district”), F&R adopted Oct. 5, 2020; Kraus v. Rattu, 2020 WL 526105, at *7 (E.D. Cal. Feb. 3, 2020) (relying on recent fee awards in district where CDA “declaration alone does not establish the prevailing market rate”), F&R adopted Mar. 17, 2020. Accordingly, in determining a reasonable rate, the undersigned considers both Mr. Handy’s declaration and the following recent fee awards to CDA attorneys in this district. See O’Campo v. Ghoman, 789 Fed. Appx. 623, 624 (9th Cir. 2020) (where plaintiff “failed to submit ‘satisfactory’ evidence of current market rates” the court “permissibly relied on recent fee awards in the district to determine the prevailing rate in similar cases for attorneys with similar experience”). “[T]he vast majority of recent cases from this district have concluded that in light of prevailing rates within this district for comparable litigation, hourly rates of $300 for Mr. Potter . . . , $250 for mid-level attorneys, and $150 for associates are reasonable.” Kraus, 2021 WL 856425, at *4 (collecting cases); see Johnson v. Shree Rang, LLC, 2020 WL 5202068, at *4 (E.D. Cal. Sept. 1, 2020), F&R adopted Oct. 5, 2020; Johnson v. Sweet Spark, Inc., 2020 WL 1324507, at *5 (E.D. Cal. March 20, 2020) (finding reasonable hourly rates of $300 for partners, $250 for senior attorneys, and $150 for junior attorneys) (citing Johnson v. Hey Now Properties, LLC, 2019 WL 586753, at *3 (E.D. Cal. Feb. 13, 2019)); Johnson v. Wen Zhi Deng, 2019 WL 1098994, at *2 (E.D. Cal. Mar. 8, 2019) (Mueller, J.) (“[T]he rates outlined in Hey Now Properties are the appropriate, prevailing rates in this district . . . .”). The court finds these cases to be persuasive because they are recent, comparable cases from this district and involved a careful consideration of prevailing market rates for routine disability access cases in the Sacramento Division of the Eastern District of California. By contrast, plaintiff’s reliance on fee awards in the Central, Northern, and Southern Districts of California, as well as certain California state courts, is misplaced, because those fee awards are not instructive with respect to prevailing market rates in this federal district.6 Instead, the court concludes that an hourly rate of $300 is appropriate for founding partner Mr. Potter, along with an hourly rate of $250 for Ms. Seabock (who has practiced law for more than 10 years) and $150 for Ms. Zaman (who has practiced law for “more than five years”). (See ECF No. 19.3 ¶¶ 10, 13, 14.) Plaintiff’s declaration does not identify or describe the experience of any of the seven other individuals listed on the billing invoice, beyond these three attorneys. Based on the tasks 6 The court rejects plaintiff’s invitation to apply out-of-market rates because of the alleged dearth of experienced, “serial” ADA litigators in the Eastern District. (See ECF No. 19.1 at 17-18.) This is routine disability access litigation in an unopposed action and does not meet the standards for applying out-of-market rates. each biller performed and the $200 and $100 hourly rates requested for them,7 it is likely these individuals are paralegals. (See ECF No. 19.3 at 10-11.) The court would be within its discretion to deny plaintiff fees for these unidentified individuals altogether. See Kraus, 2021 WL 856425, at *4 (“The court will not award fees for hours completed by attorneys/paralegals for whom counsel did not provide information, because the court has no way to justify the lodestar amount.”). However, the undersigned takes notice of prior cases identifying many of these individuals as paralegals, and finds the limited billing descriptions sufficient to justify a paralegal lodestar rate. See, e.g., Johnson v. Huong-Que Rest., 2022 WL 658973, at *5 (N.D. Cal. Mar. 4, 2022) (applying Northern District rates for paralegals including Marcus Handy and other staff). With no evidence from plaintiff’s counsel regarding either the prevailing paralegal market rate or the experience of the various support staff, the court awards a prevailing market rate of $75 per hour for these unidentified billers based on recent comparable cases. See Moreno v. City of Sacramento, 534 F.3d 1106, 111 (9th Cir. 2008) (explaining court’s obligation to determine whether proposed hourly rate is reasonable in the community for similar work); see, e.g., Englert v. City of Merced, 2020 WL 2215749, at *13 (E.D. Cal. May 7, 2020) (rejecting paralegal requested rate of $125 to $150 per hour and awarding rate of $75 when plaintiffs “provided no information on the experience of the paralegals”). Accordingly, the court recommends awarding the following rates and hours to grant plaintiff reduced attorneys’ fees of $932.50. /// /// /// /// ///

7 Representative tasks performed by these unidentified billers include: “Completed step three on prefiling checklist: (Review Investigator report, findings and photos to confirm claims and greenlight complaint drafting or give investigator further instructions)”; “phone call”; “complaint drafting”; and “Preparing answer or default letter.” (ECF No. 19.3 at 10-11.) Requested Awarded Awarded Biller Rate Rate Hours Total Andrew Sheaffer $100 $75 0.3 $ 22.50 Mark Potter $650 $300 0.8 $ 240.00 Deepta Shetty $100 $75 0.3 $ 22.50 Geraldine Manalo $100 $75 0.1 $ 7.50 Marcus Handy $200 $75 1.6 $ 120.00 Leonardo Pahuriray $100 $75 0.1 $ 7.50 Tehniat Zaman $400 $150 3.0 $ 450.00 Tanpreet Pannu $100 $75 0.3 $ 22.50 Amanda Seabock $500 $250 0.1 $ 25.00 Herman Fernandes $100 $75 0.2 $ 15.00 Total $ 932.50 Total Fees & Expense Award In total, the court recommends awarding plaintiff attorneys’ fees, litigation expenses, and costs in the amount of $1,789.50 ($932.50 + $857). RECOMMENDATIONS For the foregoing reasons, IT IS HEREBY RECOMMENDED that: 1. Plaintiff’s motion for default judgment (ECF No. 19) be GRANTED; 2. Judgment be entered in plaintiff’s favor and against defendant; 3. Plaintiff be awarded statutory damages in the amount of $4,000.00; 4. Plaintiff be awarded attorneys’ fees, litigation expenses, and costs in the amount of $1,789.50; 5. Plaintiff be granted an injunction requiring defendant to provide an accessible transaction counter at the business establishment named Sheikh Jewelers, located at 1151 Galleria Blvd., Roseville, California, in compliance with the ADA and the ADA Accessibility Guidelines; and 6. The Clerk of Court be directed to close this case. These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) days after being served with these findings and recommendations, any party may file written objections with /// the court and serve a copy on all parties. Such a document should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections shall be served onall parties and filed with the court within fourteen (14) days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153, 1156-57 (9th Cir. 1991). IT IS ALSO HEREBY ORDERED that plaintiff shall forthwith serve a copy of this order and findings and recommendations on defendant by U.S. mail at his last-known address(es). Dated: April 27, 2022 Aectl Aharon UNITED STATES MAGISTRATE JUDGE whit.493 21