1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BRIAN WHITAKER, No. 2:21–cv–0493–KJM–KJN PS 12 Plaintiff, ORDER & FINDINGS AND RECOMMENDATIONS 13 v. (ECF No. 19) 14 ZAFAR SHEIKH, 15 Defendant. 16 17 Presently pending before the court is plaintiff Brian Whitaker’s motion for default 18 judgment against defendant Zafar Sheikh, who is the only named defendant in this action.1 (ECF 19 No. 19.) Defendant failed to file an opposition to the motion, despite an extension of time, and 20 the motion was submitted without oral arguments pursuant to Local Rule 230(g). (ECF No. 21.) 21 For the following reasons, the court recommends that plaintiff’s motion for default 22 judgment be GRANTED on the terms outlined below. 23 I. BACKGROUND 24 Plaintiff initiated this action on March 18, 2021, alleging violations of the Americans with 25 Disabilities Act of 1990, 42 U.S.C. §§ 12101 et seq. (“ADA”) and California’s Unruh Civil 26 Rights Act, Cal. Civ. Code §§ 51 et seq. (ECF No. 1.) On April 19, 2021, plaintiff filed a First 27 1 This motion is referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B), Federal Rule 28 of Civil Procedure 72, and Local Rule 302(c)(19). 1 Amended Complaint to amend the named defendant from Sheikh Jewelers to the current 2 defendant, Zafar Sheikh d/b/a Sheikh Jewelers. (ECF No. 6 [“FAC”].) As alleged in the FAC, 3 defendant owns a business establishment and place of public accommodation known as Sheikh 4 Jewelers, which is located at 1151 Galleria Blvd., Roseville, California. (FAC ¶¶ 1-3, 9.) 5 Plaintiff, who is quadriplegic and uses a wheelchair, patronized Sheikh Jewelers in March 2021 6 and found no wheelchair-accessible sales counters.2 (Id. ¶¶ 8-14.) Plaintiff “wanted to return and 7 patronize the business subsequent to his original visit but was specifically deterred due to his 8 actual personal knowledge of the barriers” and uncertainty about the existence of other barriers. 9 (Id. ¶ 8, 20.) Plaintiff seeks injunctive relief and nominal damages under the ADA; statutory 10 damages under the Unruh Civil Rights Act; and attorneys’ fees, litigation expenses, and costs. 11 (Id. at 7.) 12 On March 29, 2021, plaintiff personally served copies of the original complaint and 13 summons on then-defendant Sheikh Jewelers, through its agent. (ECF No. 4.) On May 18, 2021, 14 plaintiff served defendant Zafar Sheikh via substituted service by delivering a copy of the 15 summons and FAC to a sales representative at Sheikh Jewelers and then mailing copies to the 16 same address. (ECF No. 8.) 17 Defendant failed to answer or otherwise respond, and on July 30, 2021, at plaintiff’s 18 request, the Clerk of the Court entered the default. (See ECF Nos. 13, 14.) On September 27, 19 2021, plaintiff filed the instant motion for default judgment. (ECF No. 19.) Defendant did not 20 respond to the motion. The court vacated the October 28, 2021 hearing and provided defendant 21 an additional opportunity to oppose. (ECF No. 21.) As ordered by the court, plaintiff served a 22 copy of the order on defendant by mail on October 25, 2021. (ECF No. 22.) Defendant still has 23 not opposed plaintiff’s motion or otherwise appeared in this action. Plaintiff’s motion requests 24 judgment awarding him all relief sought in the FAC, specifically (A) an order for defendant to 25 provide ADA-compliant wheelchair-accessible counters, (B) $4,000 in statutory damages, and 26
27 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 28 No. 19.4, Whitaker Decl. ¶ 3.) 1 $3,077 in attorneys’ fees and costs. (ECF No. 19.1 at 6; ECF No. 19.3 at 10; ECF No. 19.8 2 (Proposed Judgment).). 3 II. LEGAL STANDARD 4 Pursuant to Federal Rule of Civil Procedure 55, default may be entered against a party 5 against whom a judgment for affirmative relief is sought who fails to plead or otherwise defend 6 against the action. See Fed. R. Civ. P. 55(a). However, “[a] defendant’s default does not 7 automatically entitle the plaintiff to a court-ordered judgment.” PepsiCo, Inc. v. Cal. Sec. Cans, 8 238 F. Supp. 2d 1172, 1174 (C.D. Cal. 2002) (citing Draper v. Coombs, 792 F.2d 915, 924-25 9 (9th Cir. 1986)). Instead, the decision to grant or deny an application for default judgment lies 10 within the district court’s sound discretion. Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 11 1980). In making this determination, the court considers the following factors: 12 (1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff’s substantive claim, (3) the sufficiency of the complaint, 13 (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 14 to excusable neglect, and (7) the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits. 15 16 Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). Default judgments are ordinarily 17 disfavored. Id. at 1472. 18 As a general rule, once default is entered, well-pleaded factual allegations in the operative 19 complaint are taken as true, except for those allegations relating to damages. TeleVideo Sys., Inc. 20 v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987) (per curiam) (citing Geddes v. United Fin. 21 Group, 559 F.2d 557, 560 (9th Cir. 1977) (per curiam)); accord Fair Housing of Marin v. Combs, 22 285 F.3d 899, 906 (9th Cir. 2002). In addition, although well-pleaded allegations in the 23 complaint are admitted by a defendant’s failure to respond, “necessary facts not contained in the 24 pleadings, and claims which are legally insufficient, are not established by default.” Cripps v. 25 Life Ins. Co. of N. Am., 980 F.2d 1261, 1267 (9th Cir. 1992) (citing Danning v. Lavine, 572 F.2d 26 1386, 1388 (9th Cir. 1978)); accord DIRECTV, Inc. v. Hoa Huynh, 503 F.3d 847, 854 (9th Cir. 27 2007) (stating that a defendant does not admit facts that are not well-pled or conclusions of law); 28 Abney v. Alameida, 334 F. Supp. 2d 1221, 1235 (S.D. Cal. 2004) (“[A] default judgment may not 1 be entered on a legally insufficient claim”). A party’s default does not establish the amount of 2 damages. Geddes, 559 F.2d at 560. 3 III. DISCUSSION 4 A. Appropriateness of the Entry of Default Judgment Under the Eitel Factors 5 The undersigned finds that the weight of the Eitel factors entitles plaintiff to default 6 judgment on both claims asserted. 7 1. Plaintiff is prejudiced by defendant’s non-responsiveness. 8 The first Eitel factor considers whether plaintiff would suffer prejudice if default 9 judgment is not entered, and such potential prejudice to plaintiff militates in favor of granting a 10 default judgment. See PepsiCo, Inc., 238 F. Supp. 2d at 1177. Absent entry of default judgment, 11 plaintiff would be without another recourse to recover from defendant for the alleged violations. 12 Accordingly, the first Eitel factor favors the entry of a default judgment. 13 2. Plaintiff’s substantive claims are meritorious and sufficiently pleaded in the FAC. 14 The court considers the second and third factors—the merits of plaintiff’s substantive 15 claims and the sufficiency of the complaint—together due to the relatedness of the two inquiries. 16 The court must consider whether the allegations in the complaint are sufficient to state a claim for 17 relief. See Danning, 572 F.2d at 1388; PepsiCo, Inc., 238 F. Supp. 2d at 1175. Here, plaintiff 18 seeks recovery for violations of the ADA and California’s Unruh Civil Rights Act. (See ECF 19 No. 6 (“FAC”) at 4-6.) 20 a. ADA 21 Title III of the ADA provides “[n]o individual shall be discriminated against on the basis 22 of disability in the full and equal enjoyment of the goods, services, facilities, privileges, 23 advantages, or accommodations of any place of public accommodation by any person who owns, 24 leases (or leases to), or operates a place of public accommodation.” 42 U.S.C. § 12182(a). “To 25 prevail on a Title III discrimination claim, [the plaintiff] must establish that: (1) he is disabled 26 within the meaning of the ADA; (2) [the defendant] is a private entity that owns, leases, or 27 operates a place of public accommodation; and (3) [the defendant] discriminated against him by 28 denying him public accommodations because of his disability.” Lopez v. Catalina Channel 1 Express, Inc., 974 F.3d 1030, 1033 (9th Cir. 2020); see 42 U.S.C. §§ 12182(a)-(b)). In the 2 context of existing facilities, the third element, discrimination, can be satisfied by showing “a 3 failure to remove architectural barriers . . . where such removal is readily achievable.” Id. 4 § 12182(b)(2)(A)(iv); see Lopez, 974 F.3d at 1034; Chapman v. Pier 1 Imports (U.S.) Inc., 631 5 F.3d 939, 945 (9th Cir. 2011) (en banc). The ADA defines “readily achievable” as “easily 6 accomplishable and able to be carried out without much difficulty or expense.” 42 U.S.C. 7 § 12181(9). 8 The first and second elements of plaintiff’s Title III claim are easily met here. Plaintiff’s 9 quadriplegia is a disability under the ADA because it is a physical impairment that substantially 10 limits major life activities, such as walking. (FAC ¶ 1.) See 42 U.S.C. § 12102(2)(A). Sheikh 11 Jewelers is a sales establishment that qualifies as a place of public accommodation under the 12 ADA. (Id. ¶¶ 2-3, 9.) See 42 U.S.C. § 12181(7)(E) (listing “a bakery, grocery store, clothing 13 store, hardware store, shopping center, or other sales or rental establishment” as a place of public 14 accommodation). 15 Whether plaintiff adequately pleads the third element, discrimination, is a closer question 16 because of split authority regarding what (if anything) an ADA plaintiff must plead on the issue 17 of an architectural barrier’s “readily achievable” removal. It is clear that to ultimately “succeed 18 on a ADA claim of discrimination on account of one’s disability due to an architectural barrier,” 19 to show discrimination, “the plaintiff must also prove that: (1) the existing facility at the 20 defendant’s place of business presents an architectural barrier prohibited under the ADA, and 21 (2) the removal of the barrier is readily achievable.” Parr v. L & L Drive-Inn Rest., 96 F. Supp. 22 2d 1065, 1085 (D. Haw. 2000) (emphasis added); accord Hubbard v. 7-Eleven, Inc., 433 F. Supp. 23 2d 1134, 1138 (S.D. Cal. 2006). The Ninth Circuit confirmed this requirement in its recent Lopez 24 decision addressing for the first time in this circuit the burdens of proof on the issue of a barrier’s 25 “readily achievable” removal. See Lopez, 974 F.3d at 1034 (“[T]o prevail on his discrimination 26 claim [under § 12182(b)(2)(A)(iv)], Lopez must establish . . . that [the defendant] failed to alter 27 the restroom door when doing so was readily achievable . . . .” (emphasis added)). However, the 28 Lopez decision also repeatedly and conclusively states that a barrier not being readily removable 1 is an “affirmative defense.” See id. at 1036 (stating that §§ 12182(b)(2)(A)(iv) and (v) “place the 2 ultimate burden on the defendant to prove the affirmative defense that removal of an architectural 3 barrier is not readily achievable” (emphases in Lopez)), and at 1035 (noting that “it is clear that 4 the defendant bears the ultimate burden of proving the affirmative defense”). Lopez’s seemingly 5 conflicting statements—that plaintiff must “establish” that an alteration was readily achievable, 6 but that non-readily-achievable removal is an affirmative defense—leaves it somewhat unclear 7 whether or not a barrier’s ready removability is an element of plaintiff’s prima facie case which 8 must be plead in the complaint. 9 Because Lopez was an appeal from summary judgment for the defendant, the Ninth 10 Circuit had no occasion to address the pleading requirements for plaintiff to state a claim of 11 barrier-related discrimination. Rather, Lopez focused entirely on answering the question of 12 which party has the burden of proving whether the barrier’s removal is “readily achievable.” See 13 id. at 1034 (“Our court has not decided which party bears the burden to establish that removal of 14 an architectural barrier is or is not readily achievable.” (emphasis added)). The Ninth Circuit 15 answered that question by adopting a burden-shifting framework similar to the Tenth Circuit’s 16 longstanding Colorado Cross framework, but with a more lenient evidentiary standard used by the 17 Second Circuit. See id. at 1035 (joining approach from Roberts v. Royal Atl. Corp., 542 F.3d 18 363, 373 (2d Cir. 2008), which slightly tweaked the test established in Colorado Cross Disability 19 Coalition v. Hermanson Family Limited Partnership, 264 F.3d 999 (10th Cir. 2001)). 20 Under the general Colorado Cross framework adopted by the Ninth Circuit in Lopez, 21 the plaintiff “must initially present evidence tending to show that the suggested method of barrier removal is readily achievable under the 22 particular circumstances.” [Colo. Cross, 264 F.3d] at 1002. If the plaintiff meets that initial burden, the defendant “then bears the 23 ultimate burden of persuasion that barrier removal is not readily achievable.” Id. at 1002–03. In other words, the defendant “bears 24 the ultimate burden of persuasion regarding its affirmative defense that a suggested method of barrier removal is not readily achievable.” 25 Id. at 1006. 26 Lopez, 974 F.3d at 1035 (emphases omitted). The Ninth Circuit declined to adopt the Tenth 27 Circuit’s heavy standard for what evidence a plaintiff must present to meet the initial burden of 28 proof and shift the burden to the defendant. See id. at 1038 (reasoning that the Tenth Circuit’s 1 requirement for plaintiffs to provide “precise cost estimates” and “a specific design” regarding 2 their proposed accommodation, Colo. Cross, 264 F.3d at 1009, would be “asking too much of 3 plaintiffs,” considering defendants’ superior knowledge of their own facilities). Instead, the 4 Ninth Circuit adopted the Second Circuit’s standard that “to satisfy their initial burden, ADA 5 plaintiffs must plausibly show how the cost of removing the architectural barrier at issue does not 6 exceed the benefits under the circumstances.” Id. (emphasis added); see id. at 1040. “If the 7 plaintiff makes a plausible showing that the requested accommodation is readily achievable, the 8 burden shifts to the defendant to counter the plaintiff’s initial showing . . . .” Id. at 1038-39. 9 Importantly, this burden-shifting framework applies to the parties’ evidentiary burdens at 10 the proof stage, i.e., at summary judgment or at trial. See id. at 1040 (“[W]e adopt a burden- 11 shifting framework whereby plaintiffs have the initial burden at summary judgment of plausibly 12 showing that the cost of removing an architectural barrier does not exceed the benefits under the 13 particular circumstances” and “[t]he defendant then bears the ultimate burden of persuasion that 14 barrier removal is not readily achievable.”) (emphasis added), and at 1035 (“plaintiff ‘must 15 initially present evidence tending to show . . .’”) (emphasis added) (quoting Colo. Cross, 264 F.3d 16 at 1002). 17 Lopez does not squarely answer whether a plaintiff proceeding on an architectural barrier 18 theory must plead in the complaint that a barrier’s removal is readily achievable in order to state a 19 claim. Lopez’s description of a barrier’s difficult removability as “an affirmative defense” that 20 the defendant ultimately must prove seems to suggest that the plaintiff need not plead anything at 21 all about whether removal is readily achievable. See U.S. Commodity Futures Trading Comm’n 22 v. Monex Credit Co., 931 F.3d 966, 972 (9th Cir. 2019) (noting importance of distinction 23 between a claim element and an affirmative defense “because Rule 8 does not require plaintiffs to 24 plead around affirmative defenses”). At the same time, Lopez established that plaintiffs do bear 25 an initial burden of production on this affirmative defense at summary judgment. 974 F.3d 26 at 1035. This is because “only if the plaintiff first makes a plausible showing that the barrier 27 removal is readily achievable, does the defendant then have to negate that showing and prove that 28 the removal is not readily achievable.” Id. at 1036. 1 Here, plaintiff argues that he need not plead the sales counter barrier’s ready removability 2 because the difficulty of barrier removability is entirely an affirmative defense, which defendant 3 waived by not appearing in this action and therefore not raising it. (ECF No. 19.1 at 9, citing 4 Wilson v. Haria & Gogri Corp., 479 F. Supp. 2d 1127, 1133 & n.7 (E.D. Cal. 2007).) See Corbin 5 v. Time Warner Ent.-Advance/Newhouse P’ship, 821 F.3d 1069, 1079 (9th Cir. 2016) (“If a party 6 seeks to assert an affirmative defense, the party ‘must affirmatively state’ that defense in a 7 responsive pleading.” (quoting Fed. R. Civ. P. 8(c)(1))). Judge Karlton deciding a motion for 8 summary judgment in Wilson held that “while [the] defendant would ordinarily be entitled to 9 prove that the removal of the alleged architectural barriers is not ‘readily achievable,’” “this is an 10 affirmative defense, which defendant has waived” by failing to plead that affirmative defense in 11 its answer. 479 F. Supp. 2d at 1133 & n.7. Thus, in Wilson, the plaintiff’s failure to present any 12 evidence regarding barrier removability did not preclude summary judgment in his favor. Id. at 13 1133 n.7 (“While plaintiff has not come forward with any evidence regarding barrier removal, he 14 need not do so where such evidence would be unnecessary, given defendant’s waiver.”). 15 Some courts evaluating motions for default judgment similar to the instant one criticize 16 plaintiff’s counsel (which represents many ADA plaintiffs across the state) for continuing to rely 17 on Wilson’s waiver rule in the wake of Lopez, which plaintiff’s counsel’s filings routinely fail to 18 cite at all.3 See, e.g., Whitaker v. Prime Oil Mgmt., L.L.C., 2021 WL 4353246, at *4-5 (C.D. 19 Cal. Apr. 8, 2021) (referring to Wilson as “bad law” and denying default judgment for failure to 20 allege “that the cost of removing the barriers at issue does not exceed the benefits under the 21 circumstances”); Johnson v. Tram Chim’s Corp, 2021 WL 6129054, at *1 (N.D. Cal. Nov. 8, 22 2021) (“counsel should be concerned about misrepresenting the state of the law”). These courts, 23 like many others post-Lopez, assume without discussion that Lopez’s “initial burden” applies 24 equally at the pleadings stage—which informs the liability analysis for obtaining default 25 judgment—as at summary judgment. The undersigned finds this troubling, given that Lopez (and 26 the other circuit precedent on which it relied) adopted the burden-shifting framework purely 27 3 This despite the fact that plaintiff’s counsel here, the Center for Disability Access, also 28 represented the plaintiff in Lopez both in the district court and on appeal. 1 within the summary judgment context. See Lopez, 974 F.3d at 1040 (“[W]e adopt a burden- 2 shifting framework whereby plaintiffs have the initial burden at summary judgment of plausibly 3 showing that the cost of removing an architectural barrier does not exceed the benefits under the 4 particular circumstances.” (emphasis added)). 5 The concept of burden shifting is foreign to the evaluation of the sufficiency of a 6 complaint, which is the court’s task when reviewing a motion for default judgment. See Danning 7 v. Lavine, 572 F.2d 1386, 1388 (9th Cir. 1978) (the question on default liability is “whether the 8 allegations in the complaint are sufficient to state a claim on which the [plaintiff] may recover”); 9 Philip Morris USA, Inc. v. Castworld Prod., Inc., 219 F.R.D. 494, 499 (C.D. Cal. 2003) (“The 10 second two Eitel factors require that a plaintiff state a claim on which the [plaintiff] may 11 recover.” (internal quotation omitted)); see also Surtain v. Hamlin Terrace Found., 789 F.3d 1239, 12 1245 (11th Cir. 2015) (characterizing a motion for default judgment as a “reverse motion to 13 dismiss for failure to state a claim”). Moreover, it seems a tall order to require a plaintiff to 14 determine before filing the complaint—without the benefit of discovery—what the cost of barrier 15 removal might be. See Lopez, 974 F.3d at 1038 (adopting Second Circuit’s lesser evidentiary 16 standard because “defendants have more knowledge and information regarding their own 17 facilities” than do plaintiffs). 18 Thus, the undersigned does not view Wilson, on its own, as “bad law” after Lopez. Given 19 that non-readily achievable removal is an affirmative defense, it should be equally true after 20 Lopez as before that a defendant’s failure to appear and plead that affirmative defense in its 21 answer waives that defense at summary judgment. Nevertheless, the undersigned agrees that 22 Wilson’s waiver rule does not translate to the pleadings / default judgment context to absolve the 23 plaintiff of needing to plead anything at all about a barrier’s removability. 24 Rather, the phrasing of the applicable statute, 42 U.S.C. § 12182(b)(2)(A)(iv)-(v), 25 combined with the Ninth Circuit’s treatment of barrier removability as a special type of 26 affirmative defense for which the plaintiff bears an initial burden of production at summary 27 judgment, leads the undersigned to conclude that an ADA plaintiff must plausibly plead in the 28 complaint that the barrier’s removal is readily achievable. As parsed in Lopez, 1 [s]ubsection (iv) starts by requiring defendants to remove architectural barriers if that removal is readily achievable. 42 U.S.C. 2 § 12182(b)(2)(A)(iv). Subsection (v), in turn, offers the defendant an opportunity to avoid liability by “demonstrat[ing] that the removal of 3 a barrier under clause (iv) is not readily achievable[.]” Id. § 12182(b)(2)(A)(v). 4 5 974 F.3d at 1036 (emphasis and alterations in Lopez). The language of subsection (b)(2)(A)(iv) 6 places the onus on plaintiffs in the first instance to assert that removal is readily achievable. See 7 id. (“[O]nly if the plaintiff first makes a plausible showing that the barrier removal is readily 8 achievable, does the defendant then have to negate that showing and prove that the removal is not 9 readily achievable.”). Subsection (b)(2)(A)(iv)’s requirement of removal “if that removal is 10 readily achievable” is what led the Ninth Circuit (and every other circuit to address the issue) to 11 place an initial burden on plaintiff on this issue at summary judgment, and it also motivates the 12 conclusion that plaintiff must plead in the complaint something to plausibly suggest that barrier 13 removal is readily achievable. Otherwise, there would be nothing to prompt the defendant to 14 plead as an affirmative defense that removal is not readily achievable. 15 Still, the plaintiff’s pleading burden is low, and the undersigned sees no reason it should 16 equate to the plaintiff’s evidentiary burden of production at summary judgment. See Marradi v. 17 K&W Realty Inv. LLC, 212 F. Supp. 3d 239, 245 (D. Mass. 2016) (“Whether plaintiff can 18 ultimately carry his burden of production” as to readily achievable removal is “not material to the 19 question whether the complaint has adequately alleged a prima facie claim under the statute.” 20 (quoting Melo v. S. Broadway L. Realty Tr., 2016 WL 393258, at *2 (D. Mass. Feb. 1, 2016) 21 (alterations omitted)); Flaum v. Colonial Williamsburg Foundation, 2012 WL 5879128, *6 (E.D. 22 Va. Nov. 21, 2012) (“Whatever the standard regarding the burden of production, the ‘readily 23 achievable’ inquiry is premature at the pleading stage. The law does not require that Plaintiff 24 request some specific form of modification as a prerequisite to a valid ADA claim.”). Plaintiffs 25 are not required to come to court armed with a full proposal for the cost efficiency of barrier 26 removal. 27 Plaintiff here alleges: “The barriers identified above [(sales counters inaccessible to 28 wheelchair users)] are easily removed without much difficulty or expense. They are the types of 1 barriers identified by the Department of Justice as presumably readily achievable to remove and, 2 in fact, these barriers are readily achievable to remove.” (FAC ¶ 19.) Although plaintiff does not 3 cite the regulation to which he refers in either the complaint or the motion for default judgment, 4 the court understands this as a reference to 28 C.F.R. § 36.304(b), which lists among its non- 5 exclusive “[e]xamples of steps to remove barriers”: “(3) Repositioning shelves” and 6 “(4) Rearranging tables, . . . , and other furniture.” The Ninth Circuit recognizes this regulation as 7 listing examples of barrier removals that are “likely to be readily achievable.” Molski v. M.J. 8 Cable, Inc., 481 F.3d 724, 730 (9th Cir. 2007) (“Federal regulations clarify which barrier 9 removals are likely to be readily achievable and provide examples in 28 C.F.R. § 36.304.”). 10 Courts regularly treat overly high sales counters as falling within § 36.304(b)(3)’s example of 11 repositioning shelves. See Johnson v. Wayside Property, Inc., 41 F. Supp. 3d 973, 977 (E.D. Cal. 12 2014) (describing DOJ regulation as covering removal of “an excessively high transaction 13 counter” and citing § 36.304(b)(3)); Johnson v. Dhillon, 2015 WL 5834799, at *3 (E.D. Cal. 14 Oct. 1, 2015). 15 While § 36.304 does not necessarily establish a presumption that such forms of barrier 16 removal are readily achievable, it does make their removal plausibly readily achievable. See 17 Vogel v. Rite Aid Corp., 992 F. Supp. 2d 998, 1011 (C.D. Cal. 2014) (pre-Lopez but applying 18 Colorado Cross burden-shifting framework to hold pleadings sufficient to award default judgment 19 based on allegations that the defendant “can easily remove the architectural barriers at [the store] 20 without much difficulty or expense” and given that the subject barriers were the type listed as 21 examples of readily achievable steps in 28 C.F.R. § 36.304(b)); Acosta v. Perez, 2021 WL 22 3910543, at *8 (E.D. Cal. Sept. 1, 2021) (finding sufficient for purposes of default judgment 23 allegation that removal of barrier described in federal regulations was readily achievable), report 24 and recommendation adopted, 2021 WL 4461536 (E.D. Cal. Sept. 29, 2021); Johnson v. Garlic 25 Farm Truck Ctr. LLC, 2021 WL 2457154, at *6 (N.D. Cal. June 16, 2021) (finding allegations 26 identical to those in the FAC “sufficient to meet the readily achievable element at the default 27 judgment stage” and collecting cases holding same); Johnson v. In Suk Jun, 2020 WL 6507995, 28 at *5 (N.D. Cal. Nov. 5, 2020). Therefore, despite the conclusory nature of plaintiff’s allegations, 1 the undersigned finds them sufficient to plausibly plead that it would be readily achievable to 2 lower a portion of the sales counter or add an adjacent lower counter. 3 That is all a plaintiff must do at the pleadings stage. The undersigned departs from the 4 predominating practice among district courts—including those just cited—of finding on default 5 judgment motions that a complaint does or does not satisfy the plaintiff’s “initial burden” under 6 Lopez (or Colorado Cross, pre-Lopez). As discussed at length above, the burden-shifting 7 framework does not apply until the court is evaluating evidence. All the plaintiff must do at the 8 pleadings stage to proceed under § 12182(b)(2)(A)(iv) is plausibly allege that the barrier’s 9 removal is readily achievable. Doing so does not “shift the burden” to the defendant, except 10 insofar as it apprises the defendant of the need to plead the applicable affirmative defense to the 11 contrary. If the defendant fails to so plead, the plaintiff is effectively entitled to judgment on the 12 pleadings as to that claim—assuming he pleads the preceding elements of a qualifying disability, 13 a covered public accommodation, and an architectural barrier encountered. 14 Such is the posture of this case. As found at the outset, plaintiff adequately pleads that he 15 is disabled within the meaning of the ADA, and that Sheikh Jewelers is a covered sales 16 establishment. Further, he identifies an architectural barrier he personally encountered that does 17 not comply with ADA guidelines. The ADA Standards for Accessible Design require that a 18 portion of “sales counters” must be no higher than 36 inches. ADA Standards for Accessible 19 Design §§ 904.4, 904.4.1 (2010). Plaintiff alleges there was no sales counter at Sheikh Jewelers 20 that was 36 inches or less in height.4 (FAC ¶ 12.) Finally, as just discussed, plaintiff adequately 21 pleads that removal of this sales counter barrier was readily achievable. Therefore, without 22 addressing whether plaintiff satisfied his “initial burden” of production, the undersigned simply 23 finds that plaintiff sufficiently pleaded his ADA Title III discrimination claim—which is all that 24 is required to satisfy Eitel factors 2 and 3 in support of default liability. 25 /// 26 /// 27 4 Plaintiff attaches photographs and a declaration from an investigator showing that the counters 28 were uniformly 43.7 inches tall. (ECF Nos. 19.5 ¶¶ 3-4, 19.6 at 4.) 1 b. California’s Unruh Civil Rights Act 2 California’s Unruh Civil Rights Act provides: “All persons within the jurisdiction of this 3 state are free and equal, and no matter what their sex, race, color, religion, ancestry, national 4 origin, disability, medical condition, genetic information, marital status, sexual orientation, 5 citizenship, primary language, or immigration status are entitled to the full and equal 6 accommodations, advantages, facilities, privileges, or services in all business establishments of 7 every kind whatsoever.” Cal. Civ. Code § 51(b). As expressly provided by statute, a violation of 8 the ADA also constitutes a violation of the Unruh Civil Rights Act. Cal. Civ. Code § 51(f); see 9 also Munson v. Del Taco, Inc., 46 Cal. 4th 661, 664-65 (2009). Here, because plaintiff’s FAC 10 properly alleges a prima facie claim under the ADA, plaintiff also properly alleges facts 11 supporting a claim under the Unruh Civil Rights Act. 12 Accordingly, the second and third Eitel factors favor the entry of a default judgment on 13 both the ADA and Unruh Act claims. 14 3. The amount of damages is proportional to plaintiff’s harm. 15 Next, the court considers “the amount of money at stake in relation to the seriousness of 16 Defendant’s conduct.” PepsiCo, Inc., 238 F. Supp. 2d at 1176-77; see, e.g., Philip Morris, 219 17 F.R.D. at 500. In this case, plaintiff seeks injunctive relief; statutory damages under the Unruh 18 Civil Rights Act corresponding to one (1) obstructed visit to Sheikh Jewelers ($4,000 minimum 19 statutory damages per visit); and attorneys’ fees and costs in the amount of $3,077. Although the 20 court more closely scrutinizes the requested attorneys’ fees and costs below, the court does not 21 find the overall sum of money at stake so large or excessive as to militate against the entry of 22 default judgment, particularly when reduced for the reasons to be discussed. This factor favors 23 the entry of a default judgment. 24 4. The material facts are not in dispute. 25 Because the court may assume the truth of well-pleaded facts in the complaint (except as 26 to damages) following the clerk’s entry of default, there is no likelihood that any genuine issue of 27 material fact exists. See, e.g., Elektra Entm’t Group Inc. v. Crawford, 226 F.R.D. 388, 393 (C.D. 28 Cal. 2005) (“Because all allegations in a well-pleaded complaint are taken as true after the court 1 clerk enters default judgment, there is no likelihood that any genuine issue of material fact 2 exists.”); accord Philip Morris, 219 F.R.D. at 500; PepsiCo, Inc., 238 F. Supp. 2d at 1177. As 3 such, the court concludes that the fifth Eitel factor favors a default judgment. 4 5. The court sees no excusable neglect. 5 Here, there is no indication in the record that defendant’s default was due to excusable 6 neglect. See Pepsi Co, Inc., 238 F. Supp. 2d at 1177. Defendant received ample notice of this 7 lawsuit. First, when Sheikh Jewelers itself was named as the defendant in the original complaint, 8 plaintiff effected personal service on the corporation’s registered agent, Fajar Sheikh. (See ECF 9 Nos. 4, 19.7 at 3.) Then, after amending the complaint to name defendant Zafar Sheikh (doing 10 business as Sheikh Jewelers), plaintiff properly effected substituted service on Mr. Sheikh by 11 leaving copies of the FAC and summons with a “competent person apparently in charge” at 12 Mr. Sheikh’s usual place of business and then mailing a copy to the same address thereafter. 13 (ECF No. 8.) See Cal. Civ. Proc. § 415.2(b) (explaining the requirements for substituted service); 14 Fed. R. Civ. P. 4(e)(1) (allowing for service of an individual by “following state law for serving a 15 summons in an action brought in courts of general jurisdiction in the state where the district court 16 is located or where service is made.”). Plaintiff also served defendant, by mail, with this motion 17 for default judgment and the court’s order providing an additional opportunity to respond to the 18 default. (See ECF Nos. 20, 21, 22.) Defendant’s failure to respond therefore is not likely due to 19 excusable neglect. Accordingly, this Eitel factor favors the entry of a default judgment. 20 6. Other factors outweigh the policy favoring disposition on the merits. 21 “Cases should be decided upon their merits whenever reasonably possible.” Eitel, 782 22 F.2d at 1472. However, district courts conclude with regularity that this policy, standing alone, is 23 not dispositive, especially where a defendant fails to appear or defend itself in an action. 24 PepsiCo, Inc., 238 F. Supp. 2d at 1177; see, e.g., Craigslist, Inc. v. Naturemarket, Inc., 694 F. 25 Supp. 2d 1039, 1061 (N.D. Cal. 2010). Here, although the undersigned acknowledges the policy 26 in favor of decisions on the merits—and consistent with existing policy would prefer this case be 27 resolved on the merits—that policy does not, by itself, preclude the entry of default judgment. 28 /// 1 In sum, after considering and weighing all the Eitel factors, the court concludes that 2 plaintiff is entitled to a default judgment against defendant, and recommends a default judgment 3 be entered. 4 B. Terms of the Judgment to be Entered 5 After determining that a party is entitled to entry of default judgment, the court must 6 determine the terms of the judgment to be entered. Plaintiff seeks injunctive relief, statutory 7 damages, attorneys’ fees, and costs. 8 1. Injunctive Relief 9 Because plaintiff satisfactorily alleged his ADA claim, the court recommends plaintiff be 10 granted injunctive relief, to remedy the architectural barriers. See 42 U.S.C. § 12188(a)(2). 11 2. Statutory Damages 12 Plaintiff also requests statutory damages for the Unruh Civil Rights Act violation, in the 13 amount of $4,000, which corresponds to one (1) obstructed visit to Sheikh Jewelers. See Cal. 14 Civ. Code § 52(a). The Unruh Civil Rights Act permits $4,000 in statutory damages for each 15 occasion the plaintiff is denied equal access. Id. “Proof of actual damages is not a prerequisite to 16 the recovery of statutory minimum damages.” Botosan v. Paul McNally Realty, 216 F.3d 827, 17 835 (9th Cir. 2000). To recover statutory minimum damages, a plaintiff need only show he was 18 denied full and equal access, not that he was wholly excluded from enjoying defendant’s services. 19 Id. “A plaintiff is denied full and equal access only if the plaintiff personally encountered the 20 violation on a particular occasion, or the plaintiff was deterred from accessing a place of public 21 accommodation on a particular occasion.” Cal. Civ. Code § 55.56(b). Because plaintiff 22 personally encountered the inaccessible sales counters at Sheikh Jewelers on one occasion, the 23 court recommends plaintiff be awarded minimum statutory damages of $4,000. 24 3. Attorneys’ Fees and Costs 25 Lastly, plaintiff requests attorneys’ fees and costs. The statutes at issue specifically 26 contemplate the award of attorneys’ fees and costs. See 42 U.S.C. § 12205; Cal. Civ. Code 27 § 52(a). Thus, the only question is whether the requested amount of attorneys’ fees and costs 28 ($3,077.00) is reasonable. 1 Plaintiff requests $857.00 in filing fees, investigator fees, and service costs, which are 2 reasonable and should be awarded. (ECF No. 19.3, at 11-12.) See 42 U.S.C. § 12205 (allowing 3 the court, in its discretion, to award prevailing party in ADA action “a reasonable attorney’s fee, 4 including litigation expenses, and costs”); Kraus v. Ding Chaun Chen, 2021 WL 856425, at *5 5 (E.D. Cal. Mar. 8, 2021), F&R adopted Apr. 13, 2021 (finding court filing fees, costs of service, 6 and an expert witness investigator fee to be compensable expenses under § 12205). 7 Plaintiff also seeks $2,220.00 in attorneys’ fees for work performed by his legal counsel, 8 Center for Disability Access (a division of Potter Handy, LLP). (ECF Nos. 19.1 at 14-20, 19.3 9 at 10-11.) The ADA and California’s Unruh Act both entitle plaintiff to attorneys’ fees, at the 10 court’s discretion. See 42 U.S.C. § 12205 (providing district courts with authority to award 11 reasonable attorneys’ fees to the prevailing party in an ADA action); Cal. Civ. Code § 52 (noting 12 attorneys’ fees for Unruh Act violations may be determined by the court). Attorneys’ fee awards 13 must account for work of non-attorneys, including paralegals and law clerks “whose labor 14 contributes to the work product for which an attorney bills her client.” Missouri v. Jenkins, 491 15 U.S. 274, 285 (1989). These awards do not include fees for “purely clerical or secretarial tasks,” 16 however. Id. at 288 n.10. Courts calculate an attorneys’ fee award using the lodestar method, 17 where the “lodestar” amount is the sum of the number of hours reasonably expended on the 18 matter multiplied by a reasonable hourly rate. Ferland v. Conrad Credit Corp., 244 F.3d 1145, 19 1146–48 (9th Cir. 2001). The party seeking attorneys’ fees bears the burden of producing 20 sufficient evidence that “the requested rates are in line with those prevailing in the community for 21 similar services by lawyers of reasonably comparable skill, experience, and reputation.” Blum v. 22 Stenson, 465 U.S. 886, 895 n.11 (1984). 23 The attorneys’ fees requested in this case comprise: 0.8 hours of work for attorney Mark 24 Potter at an hourly rate of $650[5]; 0.1 hours of work for attorney Amanda Seabock at an hourly 25 rate of $500; 3.0 hours of work for attorney Tehniat Zaman at an hourly rate of $400; 1.6 hours of 26
27 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 28 discrepancy is immaterial, as the court finds both rates excessive. 1 work for an individual named Marcus Handy, whose position is not specified, at an hourly rate of 2 $200; and a total of 1.3 hours of work spread across six individuals whose positions are not 3 specified (Andrew Sheaffer, Deepa Shetty, Geraldine Manalo, Herman Fernandes, Leonardo 4 Pahuriray, and Tanpreet Pannu) at an hourly rate of $100 each. (ECF No. 19.3 at 10-11.) In total, 5 plaintiff is requesting $2,220.00 in attorneys’ fees. (Id. at 11.) 6 Plaintiff submits the declaration of attorney Russel Handy (who billed no hours for this 7 case) in support of the hourly rates requested for plaintiff’s attorneys Mr. Potter ($650), 8 Ms. Seabock ($500), and Ms. Zaman ($400). (ECF No. 19.3 ¶¶ 10-14.) Although the number of 9 hours these three attorneys spent on the case are reasonable, the court finds each attorney’s hourly 10 rates to be excessive in light of prevailing market rates in the Sacramento Division of the Eastern 11 District of California. See Camacho v. Bridgeport Financial, Inc., 523 F.3d 973, 979 (9th Cir. 12 2008) (courts look to prevailing rates for the “relevant community” which is the forum in which 13 the district sits). 14 Plaintiff’s counsel critiques courts in this district for historically “holding the line” by 15 awarding Center for Disability Access attorneys reduced hourly rates solely based on the Eastern 16 District’s previous awards to the firm. (ECF No. 19.1 at 16, citing Roberts v. City of Honolulu, 17 938 F.3d 1020, 1024 (9th Cir. 2019).) However, “[i]t is the responsibility of the attorney seeking 18 fees to submit evidence to support the requested hourly rate.” Roberts, 938 F.3d at 1024. 19 Mr. Handy’s billing declaration in this case (as noted in prior cases) does not provide any 20 evidence of the prevailing market rate for this district, or any other. See, e.g., Johnson v. Shree 21 Rang, LLC, 2020 WL 5202068, at *4 n.4 (E.D. Cal. Sept. 1, 2020) (finding recent fee awards for 22 CDA attorneys persuasive where Mr. Handy’s declaration was “devoid of any evidence with 23 respect to the prevailing local rate for this district”), F&R adopted Oct. 5, 2020; Kraus v. Rattu, 24 2020 WL 526105, at *7 (E.D. Cal. Feb. 3, 2020) (relying on recent fee awards in district where 25 CDA “declaration alone does not establish the prevailing market rate”), F&R adopted Mar. 17, 26 2020. Accordingly, in determining a reasonable rate, the undersigned considers both 27 Mr. Handy’s declaration and the following recent fee awards to CDA attorneys in this district. 28 See O’Campo v. Ghoman, 789 Fed. Appx. 623, 624 (9th Cir. 2020) (where plaintiff “failed to 1 submit ‘satisfactory’ evidence of current market rates” the court “permissibly relied on recent fee 2 awards in the district to determine the prevailing rate in similar cases for attorneys with similar 3 experience”). 4 “[T]he vast majority of recent cases from this district have concluded that in light of 5 prevailing rates within this district for comparable litigation, hourly rates of $300 for 6 Mr. Potter . . . , $250 for mid-level attorneys, and $150 for associates are reasonable.” Kraus, 7 2021 WL 856425, at *4 (collecting cases); see Johnson v. Shree Rang, LLC, 2020 WL 5202068, 8 at *4 (E.D. Cal. Sept. 1, 2020), F&R adopted Oct. 5, 2020; Johnson v. Sweet Spark, Inc., 2020 9 WL 1324507, at *5 (E.D. Cal. March 20, 2020) (finding reasonable hourly rates of $300 for 10 partners, $250 for senior attorneys, and $150 for junior attorneys) (citing Johnson v. Hey Now 11 Properties, LLC, 2019 WL 586753, at *3 (E.D. Cal. Feb. 13, 2019)); Johnson v. Wen Zhi Deng, 12 2019 WL 1098994, at *2 (E.D. Cal. Mar. 8, 2019) (Mueller, J.) (“[T]he rates outlined in Hey 13 Now Properties are the appropriate, prevailing rates in this district . . . .”). The court finds these 14 cases to be persuasive because they are recent, comparable cases from this district and involved a 15 careful consideration of prevailing market rates for routine disability access cases in the 16 Sacramento Division of the Eastern District of California. By contrast, plaintiff’s reliance on fee 17 awards in the Central, Northern, and Southern Districts of California, as well as certain California 18 state courts, is misplaced, because those fee awards are not instructive with respect to prevailing 19 market rates in this federal district.6 Instead, the court concludes that an hourly rate of $300 is 20 appropriate for founding partner Mr. Potter, along with an hourly rate of $250 for Ms. Seabock 21 (who has practiced law for more than 10 years) and $150 for Ms. Zaman (who has practiced law 22 for “more than five years”). (See ECF No. 19.3 ¶¶ 10, 13, 14.) 23 Plaintiff’s declaration does not identify or describe the experience of any of the seven 24 other individuals listed on the billing invoice, beyond these three attorneys. Based on the tasks 25 26 6 The court rejects plaintiff’s invitation to apply out-of-market rates because of the alleged dearth 27 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 28 for applying out-of-market rates. 1 each biller performed and the $200 and $100 hourly rates requested for them,7 it is likely these 2 individuals are paralegals. (See ECF No. 19.3 at 10-11.) The court would be within its discretion 3 to deny plaintiff fees for these unidentified individuals altogether. See Kraus, 2021 WL 856425, 4 at *4 (“The court will not award fees for hours completed by attorneys/paralegals for whom 5 counsel did not provide information, because the court has no way to justify the lodestar 6 amount.”). However, the undersigned takes notice of prior cases identifying many of these 7 individuals as paralegals, and finds the limited billing descriptions sufficient to justify a paralegal 8 lodestar rate. See, e.g., Johnson v. Huong-Que Rest., 2022 WL 658973, at *5 (N.D. Cal. Mar. 4, 9 2022) (applying Northern District rates for paralegals including Marcus Handy and other staff). 10 With no evidence from plaintiff’s counsel regarding either the prevailing paralegal market 11 rate or the experience of the various support staff, the court awards a prevailing market rate of 12 $75 per hour for these unidentified billers based on recent comparable cases. See Moreno v. City 13 of Sacramento, 534 F.3d 1106, 111 (9th Cir. 2008) (explaining court’s obligation to determine 14 whether proposed hourly rate is reasonable in the community for similar work); see, e.g., Englert 15 v. City of Merced, 2020 WL 2215749, at *13 (E.D. Cal. May 7, 2020) (rejecting paralegal 16 requested rate of $125 to $150 per hour and awarding rate of $75 when plaintiffs “provided no 17 information on the experience of the paralegals”). 18 Accordingly, the court recommends awarding the following rates and hours to grant 19 plaintiff reduced attorneys’ fees of $932.50. 20 /// 21 /// 22 /// 23 /// 24 /// 25
26 7 Representative tasks performed by these unidentified billers include: “Completed step three 27 on prefiling checklist: (Review Investigator report, findings and photos to confirm claims and greenlight complaint drafting or give investigator further instructions)”; “phone call”; “complaint 28 drafting”; and “Preparing answer or default letter.” (ECF No. 19.3 at 10-11.) 1 Requested Awarded Awarded Biller Rate Rate Hours Total 2 Andrew Sheaffer $100 $75 0.3 $ 22.50 3 Mark Potter $650 $300 0.8 $ 240.00 Deepta Shetty $100 $75 0.3 $ 22.50 4 Geraldine Manalo $100 $75 0.1 $ 7.50 5 Marcus Handy $200 $75 1.6 $ 120.00 Leonardo Pahuriray $100 $75 0.1 $ 7.50 6 Tehniat Zaman $400 $150 3.0 $ 450.00 7 Tanpreet Pannu $100 $75 0.3 $ 22.50 Amanda Seabock $500 $250 0.1 $ 25.00 8 Herman Fernandes $100 $75 0.2 $ 15.00 9 Total $ 932.50 Total Fees & Expense Award 10 In total, the court recommends awarding plaintiff attorneys’ fees, litigation expenses, and 11 costs in the amount of $1,789.50 ($932.50 + $857). 12 RECOMMENDATIONS 13 For the foregoing reasons, IT IS HEREBY RECOMMENDED that: 14 1. Plaintiff’s motion for default judgment (ECF No. 19) be GRANTED; 15 2. Judgment be entered in plaintiff’s favor and against defendant; 16 3. Plaintiff be awarded statutory damages in the amount of $4,000.00; 17 4. Plaintiff be awarded attorneys’ fees, litigation expenses, and costs in the amount of 18 $1,789.50; 19 5. Plaintiff be granted an injunction requiring defendant to provide an accessible 20 transaction counter at the business establishment named Sheikh Jewelers, located 21 at 1151 Galleria Blvd., Roseville, California, in compliance with the ADA and the 22 ADA Accessibility Guidelines; and 23 6. The Clerk of Court be directed to close this case. 24 These findings and recommendations are submitted to the United States District Judge assigned to 25 the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) days after 26 being served with these findings and recommendations, any party may file written objections with 27 /// 28 1 | the court and serve a copy on all parties. Such a document should be captioned “Objections to 2 | Magistrate Judge’s Findings and Recommendations.” Any reply to the objections shall be served 3 || onall parties and filed with the court within fourteen (14) days after service of the objections. 4 || The parties are advised that failure to file objections within the specified time may waive the right 5 || to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); 6 || Martinez v. Yist, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 7 ORDER 8 IT IS ALSO HEREBY ORDERED that plaintiff shall forthwith serve a copy of this order 9 || and findings and recommendations on defendant by U.S. mail at his last-known address(es). 10 || Dated: April 27, 2022 Aectl Aharon 12 KENDALL J.NE UNITED STATES MAGISTRATE JUDGE 13 14 whit.493 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21