1 JS-6 'O' 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 CV 20-05849-RSWL-KSx 12 CARMEN JOHN PERRI, ORDER re: Plaintiff’s 13 Plaintiff, Application for Default 14 Judgment [16] v. 15 16

CA 199 ARCADIA OWNER LLC;

17 and DOES 1 to 10, 18 Defendants. 19 20 21 22 Plaintiff Carmen John Perri (“Plaintiff”) claims 23 that Defendant CA 199 Arcadia Owner LLC (“Defendant”) 24 violated the Americans with Disabilities Act (“ADA”) and 25 California’s Unruh Civil Rights Act (“Unruh Act”). 26 Currently before the Court is Plaintiff’s Application 27 for Default Judgment (the “Application”) [16]. Having 28 reviewed all papers submitted pertaining to this 1 Application, the Court NOW FINDS AND RULES AS FOLLOWS: 2 the Court GRANTS in part and DENIES in part the 3 Application. 4 I. BACKGROUND 5 A. Factual Background 6 Plaintiff suffers from impaired musculoskeletal, 7 neurological, circulatory, and cardiovascular systems. 8 Compl. ¶ 1, ECF No. 1. He has also been diagnosed with 9 atrial fibrillation. Id. Because of these conditions, 10 Plaintiff is substantially limited in walking, standing, 11 and/or sitting, and often relies on mobility devices. 12 Id. 13 Defendant owned and owns the property located at 14 199 North Second Ave., Arcadia, California 91006 (the 15 “Property”). Id. ¶¶ 2-3. On June 22, 2020, Plaintiff 16 visited the Hilton Garden Inn Arcadia (the “Business”)1 17 located on the Property. Id. ¶¶ 4, 8. Upon arrival, 18 Plaintiff found that the Property did not have 19 designated parking spaces for persons with disabilities. 20 Id. ¶ 11. Plaintiff also found that there were 21 “architectural barriers to access at the parking area 22 where a built-up ramp projects from the sidewalk and 23 into the access aisle . . . and the curb ramp is in 24 excess of the maximum grade allowed . . . .” Decl. of 25 Pl. Carmen John Perri in Supp. of Pl’s Request for 26 1 Plaintiff does not know whether Defendant is connected to 27 or owns the Business, which is located on the Property. Compl. ¶ 28 4. 1 Default J. (“Pl.’s Decl.”) ¶ 6, ECF No. 16-4. Plaintiff 2 personally encountered these barriers. Id. ¶¶ 4-6; 3 Compl. ¶ 16. Plaintiff intends to return to the 4 Business to test its compliance with disability access 5 laws, but he is currently deterred from doing so. 6 Compl. ¶ 20; Pl.’s Decl. ¶ 8. 7 B. Procedural Background 8 Plaintiff filed his Complaint [1] on June 30, 2020, 9 alleging violations of the ADA and Unruh Act. Plaintiff 10 served Defendant [13] on August 26, 2020. Defendant has 11 not pleaded, answered, or otherwise appeared in this 12 Action. The Clerk of Court entered default [15] on 13 September 24, 2020. On October 12, 2020, Plaintiff 14 filed the present Application [16]. Plaintiff seeks an 15 order enjoining Defendant to provide ADA-compliant 16 premises. Compl. 8:18-23. Plaintiff also requests 17 awards of $4,000 in statutory damages and $3,932 in 18 attorneys’ fees and costs. Id. ¶¶ 2-4; Decl. of Joseph 19 Manning in Supp. of Appl. (“Manning Decl.”), Billing 20 Summary, ECF No. 16-7. 21 II. DISCUSSION 22 A. Legal Standard 23 Federal Rule of Civil Procedure (“Rule”) 55(b) 24 authorizes a district court to grant default judgment. 25 Pursuant to Local Rule 55-1, the party moving for 26 default judgment must submit a declaration 27 establishing: (1) when and against which party default 28 was entered; (2) on which pleading default was entered; 1 (3) whether the defaulting party is a minor, 2 incompetent person, or active service member; and 3 (4) proper service. Upon default, all factual 4 allegations in the complaint, except those relating to 5 damages, are assumed to be true. TeleVideo Sys., Inc. 6 v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987) 7 (quoting Geddes v. United Fin. Grp., 559 F.2d 557, 560 8 (9th Cir. 1977)). 9 In exercising its discretion to grant default 10 judgment, the court must consider the following 11 factors: (1) possibility of prejudice to the plaintiff, 12 (2) merits of the substantive claim, (3) sufficiency of 13 the complaint, (4) sum of money at stake in the action, 14 (5) possibility of disputes regarding material facts, 15 (6) whether excusable neglect caused the default, and 16 (7) the strong policy underlying the Federal Rules of 17 Civil Procedure favoring decisions on the merits. 18 NewGen, LLC v. Safe Cig, LLC, 840 F.3d 606, 616 (9th 19 Cir. 2016) (quoting Eitel v. McCool, 782 F.2d 1470, 20 1471-72 (9th Cir. 1986)). Additionally, if the 21 defaulting party failed to plead or otherwise defend, 22 the Court must determine that it has subject matter and 23 personal jurisdiction. In re Tuli, 172 F.3d 707, 712 24 (9th Cir. 1999). When default judgment is granted, the 25 relief awarded “must not differ in kind from, or exceed 26 in amount, what is demanded in the pleadings.” Fed. R. 27 Civ. P. 54(c). 28 1 B. Discussion 2 1. Jurisdiction 3 a. ADA Claim 4 The Court has subject matter jurisdiction under 28 5 U.S.C. §§ 1331 and 1343 for violations of the ADA. See 6 Civil Rights Educ. & Enf’t Ctr. v. Hosp. Props. Tr., 867 7 F.3d 1093, 1098 (9th Cir. 2017). Moreover, the Court 8 has personal jurisdiction over Defendant because it has 9 “certain minimum contacts” with California such that 10 “the suit does not offend ‘traditional notions of fair 11 play and substantial justice.’” Calder v. Jones, 465 12 U.S. 783, 788 (1984) (quotation omitted). Specifically, 13 Defendant owned and owns the Property located at 199 14 North Second Ave., Arcadia, CA 91006. Compl. ¶¶ 2-3. 15 b. Supplemental Jurisdiction & Plaintiff’s 16 Unruh Act Claim 17 The Court has supplemental jurisdiction over 18 “claims that are so related to claims in the action 19 within such original jurisdiction that they form part of 20 the same case or controversy under Article III of the 21 United States Constitution.” 28 U.S.C. § 1367(a). Even 22 if supplemental jurisdiction exists, district courts 23 have discretion to decline supplemental jurisdiction “in 24 exceptional circumstances” or where “there are other 25 compelling reasons for declining jurisdiction.” 28 26 U.S.C. § 1367(c)(4). The Supreme Court has described 28 27 U.S.C. § 1367(c) as a “codification” of the principles 28 of “‘economy, convenience, fairness, and comity’” that 1 underlie the Supreme Court's earlier jurisprudence 2 concerning pendent jurisdiction. City of Chicago v. 3 Int'l Coll. of Surgeons, 522 U.S. 156, 172–73 (1997) 4 (quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 5 357 (1988)). 6 California’s Unruh Civil Rights Act provides: 7 “[a]ll persons within the jurisdiction of [California] 8 are free and equal, and no matter what their . . . 9 disability . . . are entitled to the full and equal 10 accommodations, advantages, facilities, privileges, or 11 services in all business establishments of every kind 12 whatsoever.” Cal. Civ. Code § 51. Unlike the ADA, 13 however, the Unruh Act provides for recovery of monetary 14 damages. Id. § 52(a). 15 “In 2012, in an attempt to deter baseless claims 16 and vexatious litigation, California adopted heightened 17 pleading requirements for disability discrimination 18 lawsuits under the Unruh Act.” Velez v. Il Fornanio 19 (Am.) Corp., No. 3:18-CV-1840-CAB-MDD, 2018 WL 6446169, 20 at *6 (S.D. Cal. Dec. 10, 2018). These heightened 21 pleading requirements apply to actions alleging a 22 “construction-related accessibility claim,” which 23 California law defines as “any civil claim in a civil 24 action with respect to a place of public accommodation, 25 including but not limited to, a claim brought under 26 Section 51, 54, 54.1, or 55, based wholly or in part on 27 an alleged violation of any construction-related 28 accessibility standard.” Cal. Civ. Code § 55.52(a)(1). 1 When California continued to experience large numbers of 2 these actions, California imposed additional limitations 3 on “high-frequency litigants.”2 In support of its 4 imposition of additional requirements on high-frequency 5 litigants, the California Legislature found and 6 declared: 7 [M]ore than one-half, or 54 percent, of all construction-related accessibility complaints 8 filed between 2012 and 2014 were filed by two law firms. Forty-six percent of all complaints 9 were filed by a total of 14 parties. Therefore, a very small number of plaintiffs 10 have filed a disproportionately large number of the construction-related accessibility claims 11 in the state, from 70 to 300 lawsuits each year. Moreover, these lawsuits are frequently 12 filed against small businesses on the basis of boilerplate complaints, apparently seeking 13 quick cash settlements rather than correction of the accessibility violation. This practice 14 unfairly taints the reputation of other innocent disabled consumers who are merely 15 trying to go about their daily lives accessing public accommodations . . . . 16 Cal. Civ. Proc. Code § 425.55(a)(2). In response to the 17 “special and unique circumstances” surrounding 18 disability access litigation, id. § 425.55(3), 19 California imposed a “high-frequency litigant fee,” 20 requiring high-frequency litigants3 to pay a $1,000 21 22 2 A high-frequency litigant is defined as a plaintiff who has filed ten or more complaints alleging a construction-related 23 accessibility violation within the twelve-month period 24 immediately preceding the filing of the current complaint alleging a construction-related accessibility violation. Cal. 25 Civ. Proc. Code § 425.55(b)(1). 26 3 Here, Plaintiff concedes that he qualifies as a high- frequency litigant under California law. See Pl.’s Decl. in 27 Supp. of Resp. ¶ 2, ECF No. 10-1 (“I have filed more than 10 complaints alleging construction-related accessibility violations 28 within the 12-month period immediately preceding the filing of 1 filing fee in addition to the normal fee at the time of 2 filing a complaint. Cal. Gov’t Code § 70616.5. 3 Because California’s heightened pleading standards 4 and increased filing fees do not apply in federal court, 5 plaintiffs can circumvent the restrictions California 6 has imposed on construction-related accessibility claims 7 by relying on a grant of supplemental jurisdiction over 8 any Unruh Act claim, when combined with an ADA claim for 9 injunctive relief. The number of construction-related 10 accessibility claims filed in the Central District has 11 significantly increased since California sought to 12 curtail such actions in its state courts: 13 According to statistics compiled by the Clerk’s 14 Office, in 2013, the first year in which California’s initial limitations on such cases 15 were in effect, there were 419 ADA cases filed 16 in the Central District, which constituted 3% of the civil actions filed. Filings of such 17 cases increased from 928 (7% of civil cases) in 18 2014, the year before the imposition of the additional $1,000 filing fee and additional 19 pleading requirements for high-frequency 20 litigants, to 1,386 (10% of civil cases) in 2016, the first full year of those 21 requirements. The number and percentage of such 22 cases filed in the Central District has increased in each year since California acted 23 to limit the filings by high-frequency 24 litigants, reaching 1,670 (12% of civil cases) in 2017, 1,670 (18% of civil cases) in 2018, 25 and 1,868 cases (24% of civil cases) in the 26 first six months of 2019. 27 28 the complaint in this action.”). 1 Garibay v. Rodriguez, No. CV 18-9187 PA (AFMx), 2019 WL 2 5204294, at *4 (C.D. Cal. Aug. 27, 2019). 3 In enacting restrictions and additional fees for 4 the filing of construction-related accessibility claims, 5 California sought to limit the burden these types of 6 cases put on its businesses. But, in filing these 7 Actions in federal courts, plaintiffs have managed to 8 avail themselves of the state law provided statutory 9 damages all while circumventing California’s limitations 10 as to reaching such awards. This situation, as well as 11 the increased burden on federal courts due to the 12 increasing number of these cases, presents the type of 13 “exceptional circumstances” and “compelling reasons” 14 that justify a court’s discretion to decline to exercise 15 supplemental jurisdiction over any Unruh Act or other 16 state law claims under 28 U.S.C. § 1367(c)(4). 17 Declining to exercise supplemental jurisdiction 18 over Plaintiff’s Unruh Act claim under these 19 circumstances furthers the values of judicial economy, 20 fairness, convenience, and comity. See, e.g., Schutza 21 v. Cuddeback, 262 F. Supp. 3d 1025, 1031 (S.D. Cal. 22 2017); United Mine Workers v. Gibbs, 383 U.S. 715, 726 23 (1966). Allowing federal courts to act as a haven for 24 these claims is an affront to the comity between federal 25 and state courts. California’s elected representatives, 26 not this Court, have enacted laws restricting 27 construction-related accessibility claims, and in doing 28 1 so, have directed that these claims by high-frequency 2 litigants be treated differently than other matters. 3 Accordingly, the Court concludes that “exceptional 4 circumstances” and “compelling reasons” exist to support 5 the Court’s decision to decline to exercise supplemental 6 jurisdiction over Plaintiff’s Unruh Act claim. A 7 significant number of judges both within the Central 8 District of California and elsewhere have similarly 9 declined to exercise supplemental jurisdiction over 10 construction-related accessibility claims asserted under 11 state law. See, e.g., Whitaker v. 7707 Sunset, Inc., 12 No. CV 20-1149-DMG(AGRx), 2020 WL 5823566 (C.D. Cal. May 13 26, 2020) (Gee, J.); Garcia v. Thomas, No. 2:20-cv- 14 00684-VAP-PLAx, 2020 WL 5239175, (C.D. Cal. May 7, 2020) 15 (Phillips, J.); Fernandez v. McAuley, No. CV 20-1279 MWF 16 (GJSx), 2020 WL 3655492 (C.D. Cal. Mar. 30, 2020) 17 (Fitzgerald, J.); Garcia v. Ross Stores, Inc., No. CV 18 20-00950 PA (GJSx), 2020 WL 5239863 (C.D. Cal. Feb. 12, 19 2020) (Anderson, J.); Langer v. Easton, No. CV 19-8562 20 PSG (ADSx), 2019 WL 7900274 (C.D. Cal. Nov. 7, 2019) 21 (Gutierrez, J.); Zarian v. Triple M Props., No. 8:19-cv- 22 01951-JLS-DFM, 2019 WL 5538927 (C.D. Cal. Oct. 25, 2019) 23 (Staton, J.); Whitaker v. ALO, LLC, No. CV 19-03312-RGK- 24 GJS, 2019 WL 787737 (C.D. Cal. Oct. 4, 2019) (Klausner, 25 J.); see also Langer v. Petras, No. 19-cv-1408-CAB-BGS, 26 2019 WL 3459107 (S.D. Cal. July 31, 2019) (Bencivengo, 27 J.); Velez v. Cloghan Concepts, LLC, 387 F. Supp. 3d 28 1072, 1077-78 (S.D. Cal. June 10, 2019) (Moskowitz, J.); 1 Reyes v. Flourshings Plus, Inc., No. 19cv261 JM (WVG), 2 2019 WL 1958284 (S.D. Cal. May 2, 2019) (Miller, J.); 3 Schutza v. Alessio Leasing, Inc., No. 18cv2154-LAB(AGS), 4 2019 WL 1546950 (S.D. Cal. Apr. 8, 2019) (Burns, J.); 5 Rutherford v. Ara Lebanese Grill, No. 18-CV-01497-AJB- 6 WVG, 2019 WL 1057919 (S.D. Cal. Mar. 6, 2019) 7 (Battaglia, J.); Schutza v. Lamden, No. 2:17-cv-2562-L- 8 JLB, 2018 WL 4385377 (S.D. Cal. Sept. 14, 2018) (Lorenz, 9 J.); Reyes v. Snoozetown, LLC, No. 3:18-cv-00498-H-JLB, 10 2018 WL 3438753 (S.D. Cal. July 16, 2018) (Huff, J.). 11 The Court has not deprived Plaintiff of any 12 remedies, as the ADA claim remains pending before this 13 Court, and Plaintiff may, if he so chooses, pursue his 14 Unruh Act claim in state court.4 Additionally, any 15 inefficiencies created by this Court’s decision to 16 decline to exercise supplemental jurisdiction over the 17 Unruh Act claim are problems resulting from Plaintiff’s 18 decision to file this Action in federal, rather than 19 state court. See Schutza v. Alessio Leasing, Inc., No. 20 18cv2154-LAB(AGS), 2019 WL 1546950, at *4 (S.D. Cal. 21 Apr. 8, 2019) (noting that, “[h]ad [plaintiff] brought 22 this suit in state court, there would have been only one 23 suit pending and he would have been eligible to receive 24 4 Plaintiff encountered the barrier in June 2020. Compl. ¶ 25 11. Accordingly, the statute of limitations for Plaintiff’s Unruh Act claim has not lapsed, and Plaintiff is able to bring 26 this claim in state court. See Harris v. County of San Diego, No. CV 18-924-BTM-AHG, 2019 WL 6683367, at *4 (S.D. Cal. Dec. 5, 27 2019) (finding that Unruh Act claims “are subject to a two-year 28 statute of limitations”) (citing Cal. Civ. Proc. Code § 335.1). 1 every form of relief he seeks”). 2 2. Service of Process 3 Additionally, Defendant was properly served under 4 Rule 4. See Direct Mail Specialists, Inc. v. Eclat 5 Computerized Techs., Inc., 840 F.2d 685, 688 (9th Cir. 6 1988) (“A federal court does not have jurisdiction over 7 a defendant unless the defendant has been served 8 properly under Fed. R. Civ. P. 4.”) (citation omitted). 9 Service on an individual may be made in accordance with 10 the rules of the state where service will be made. Fed. 11 R. Civ. P. 4(e)(1). In California, the summons 12 and complaint may be served by personal delivery or 13 substituted service. Cal. Civ. Proc. Code §§ 415.10, 14 415.20(b). Plaintiff served Defendant by personal 15 service on August 26, 2020. See Proof of Service, ECF 16 No. 13. As such, Plaintiff properly served Defendant 17 and provided the necessary proof of service. 18 3. Local Rule 55-1 19 Plaintiff has satisfied the procedural requirements 20 for default judgment under Local Rule 55-1. The Clerk 21 entered default against Defendant on September 24, 22 2020. Defendant is not an infant, incompetent person, 23 or exempted under the Servicemembers Civil Relief Act. 24 Decl. of Manning ¶ 4. Moreover, Plaintiff served 25 Defendants with notice of his Application on October 26 12, 2020. Id. ¶ 5. 27 4. Eitel Factors 28 Here, the Eitel factors favor granting default 1 judgment as to Plaintiff’s ADA claim. 2 a. Prejudice to Plaintiff 3 A court must first consider whether a plaintiff 4 will suffer prejudice if default judgment is not 5 entered. See Eitel, 782 F.2d at 1471 (citation 6 omitted). Here, Defendants failed to respond to the 7 Complaint or otherwise appear. Without default 8 judgment, Plaintiff likely will have no recourse for 9 recovery. See Landstar Ranger, Inc. v. Parth Enters., 10 725 F. Supp. 2d 916, 920 (C.D. Cal. 2010); PepsiCo, 11 Inc. v. Cal. Sec. Cans, 238 F. Supp. 2d 1172, 1177 12 (C.D. Cal. 2002). Thus, this factor favors default 13 judgment. 14 b. Sufficiency of the Complaint & Merits of 15 the Claim 16 The second and third Eitel factors call for an 17 analysis of the causes of action. See Eitel, 782 F.2d 18 at 1471 (citation omitted). Here, Plaintiff’s ADA 19 claim is sufficiently stated and meritorious, so these 20 factors favor default judgment as to this claim. 21 To prevail under the ADA, a plaintiff must 22 establish that “(1) she is disabled within the meaning 23 of the ADA; (2) the defendant . . . owns, leases, or 24 operates a place of public accommodation; and (3) the 25 plaintiff was denied public accommodations by the 26 defendant because of her disability.” Molski v. M.J. 27 Cable, Inc., 481 F.3d 724, 730 (9th Cir. 2007) (citing 28 42 U.S.C. § 2182(a)-(b)). According to the ADA, a 1 disability is “a physical or mental impairment that 2 substantially limits one or more major life activities,” 3 including walking. 42 U.S.C. § 12102. Plaintiff’s 4 impairments of his musculoskeletal, neurological, 5 circulatory, and cardiovascular systems substantially 6 impair his ability to walk, among other things. Compl. 7 ¶¶ 1, 17; Pl.’s Decl. ¶¶ 2-3. Therefore, Plaintiff is 8 disabled. Further, Plaintiff has established that the 9 Business is a place of public accommodation. 10 Under the ADA, discrimination includes the “failure 11 to remove architectural barriers . . . where such 12 removal is readily achievable . . . .” 42 U.S.C. 13 § 12182(b)(2)(A)(iv). The Americans with Disabilities 14 Act Accessibility Guidelines (“ADAAG”) establish the 15 technical standards for determining whether a barrier 16 exists. Fortyune v. Am. Multi-Cinema, Inc., 364 F.3d 17 1075, 1080-81 (9th Cir. 2004) (explaining that the ADAAG 18 “lay[s] out the technical structural requirements of 19 places of public accommodation . . . .”). 20 The ADA requires that curb ramps and flared sides 21 of curb ramps must be located so that they do not 22 project into the parking access aisle and must not be 23 steeper than 1:10. 36 C.F.R. § Pt. 1191, App. D § 24 406. Here, Plaintiff alleges that the parking spaces 25 at the Property were not in compliance with the ADAAG. 26 See Compl. ¶¶ 11-12. Specifically, Plaintiff claims 27 that the curb ramps project from the sidewalk into the 28 access aisle, that the curb ramp exceeds the maximum 1 grade allowed under the ADAAG, and that the truncated 2 domes in the accessible parking area create an 3 excessive slope. Id. ¶¶ 12, 18. 4 The next issue is whether removal of these barriers 5 is readily achievable. The Ninth Circuit has not 6 decided which party has the burden of proving that 7 removal of an architectural barrier is readily 8 achievable. Moore v. Robinson Oil Corp., 588 F. App’x. 9 528, 529-30 (9th Cir. 2014). The majority of district 10 courts apply the Tenth Circuit’s burden-shifting 11 scheme, which requires the plaintiff to bear the 12 initial burden of producing evidence that supports a 13 finding that removal is readily achievable, and which 14 only then shifts the ultimate burden of persuasion to 15 the defendant. See Vogel v. Rite Aid Corp., 992 F. 16 Supp. 2d 998, 1010 (C.D. Cal. 2014) (citing Colo. Cross 17 Disability Coal. v. Hermanson Family, Ltd., 264 F.3d 18 999 (10th Cir. 2001)). 19 Here, Plaintiff alleges that the barriers at issue 20 “are easily removed without much difficulty or 21 expense.” Compl. ¶ 23. Moreover, Plaintiff claims 22 that “there are numerous alternative accommodations 23 that could be made to provide a greater level of access 24 if complete removal were not achievable.” Id. These 25 allegations are sufficient to satisfy Plaintiff’s 26 burden.5 Plaintiff has sufficiently stated a 27 5 Plaintiff does not allege specific facts regarding the 28 ease of removing the barriers; however, Plaintiff’s general 1 meritorious claim under the ADA because Plaintiff has 2 adequately pled that: (1) he is disabled within the 3 meaning of the ADA; (2) Defendant owns and operate a 4 place of public accommodation; (3) Plaintiff was denied 5 full and equal access to the public accommodation 6 because of his disability; and (4) removal of the 7 barriers is readily achievable. 8 c. Sum of Money at Stake 9 The fourth Eitel factor addresses the sum of money 10 at stake in the action. Eitel, 782 F.2d at 1471 11 (citation omitted). “Default judgment is disfavored 12 where the sum of money at stake is too large or 13 unreasonable in relation to defendant’s conduct.” 14 Vogel, 992 F. Supp. 2d at 1012. Here, Plaintiff seeks a 15 statutory penalty of $4,000, as well as $3,932 in 16 attorneys’ fees and costs. Prayer for Relief ¶ 2; Decl. 17 of Manning, Billing Summary. Because the Court declines 18 to exercise supplemental jurisdiction over Plaintiff’s 19 Unruh Act claim, the Court finds that the $4,000 20 statutory penalty sought is unreasonable. However, the 21 ADA provides for reasonable attorneys’ fees and costs. 22 42 U.S.C. § 12205. Accordingly, because Plaintiff may 23 not seek statutory damages but may seek reasonable 24 attorneys’ fees and costs, this factor does not weigh 25 heavily in either direction. 26 allegations, combined with the corroborating photographs, show 27 that the barriers could be easily corrected. This satisfies 28 Plaintiff’s burden at this stage. 1 d. Dispute of Material Fact 2 The fifth Eitel factor is the likelihood of a 3 dispute as to material facts. Eitel, 782 F.2d at 1471- 4 72 (citation omitted). Defendant has not answered or 5 otherwise appeared in this Action. Since Plaintiff’s 6 factual allegations are presumed true in this situation, 7 and Defendants failed to move to set aside the default, 8 no factual dispute exists that would preclude the entry 9 of default judgment. See Vogel, 992 F. Supp. 2d at 1013 10 (“Since [plaintiff’s] factual allegations are presumed 11 true and [defendant] has failed to oppose the motion, no 12 factual dispute exists that would preclude the entry of 13 default judgment.”). Thus, this factor weighs in favor 14 of default judgment. 15 e. Excusable Neglect 16 Next, courts consider whether the default was due 17 to some excusable neglect. Eitel, 782 F.2d at 1472 18 (citation omitted). Defendant was properly served on 19 August 26, 2020. Plaintiff served notice of this 20 Application on October 12, 2020. Nevertheless, 21 Defendant has neither appeared in this Action nor 22 offered any explanation for default. Accordingly, this 23 factor weighs in favor of granting default judgment. 24 Vogel, 992 F. Supp. 2d at 1013 (finding “it reasonable 25 to infer [the] default was not the product of excusable 26 neglect” where defendant was properly served). 27 f. Public Policy 28 The seventh Eitel factor considers the strong 1 policy favoring rulings on the merits. Eitel, 782 F.2d 2 at 1472 (citation omitted). Notwithstanding such 3 policy, default judgment is appropriate “[w]here the 4 [d]efendant’s failure to appear makes decision on the 5 merits impossible.” Warner Bros. Home Entm’t, Inc. v. 6 Slaughter, No. CV 13-0892-DOC (RNBx), 2013 WL 5890682, 7 at *4 (C.D. Cal. Oct. 30, 2013) (citing Craigslist, Inc. 8 v. Naturemarket, Inc., 694 F. Supp. 2d 1039, 1061 (N.D. 9 Cal. 2010)). As a result, and because a weighing of the 10 Eitel factors tips in favor default judgment, the Court 11 GRANTS Plaintiff’s Application as to Plaintiff’s ADA 12 claim. 13 g. Relief 14 In seeking default judgment, “Plaintiff is required 15 to prove all damages sought in the [C]omplaint.” Philip 16 Morris USA Inc. v. Castworld Prods., 219 F.R.D. 17 494, 498 (C.D. Cal. 2003). Here, Plaintiff seeks an 18 injunction, damages, and attorneys’ fees and costs. 19 i. Injunctive Relief 20 Under the ADA, a plaintiff is entitled to 21 injunctive relief, including an order to make 22 “facilities readily accessible to and usable by 23 individuals with disabilities.” 42 U.S.C. § 12188(a)(2) 24 (2019). Here, Plaintiff requests an order directing 25 Defendants to provide accessible routes and parking 26 facilities for persons with disabilities in compliance 27 with ADAAG requirements. As such, the Court ORDERS 28 Defendants to provide ADA-compliant accessible routes 1 and parking facilities. 2 ii. Damages 3 Here, Plaintiff seeks $4,000.00 in statutory 4 penalties for Defendant’s alleged violation of the 5 Unruh Act. Because the Court declines to exercise 6 supplemental jurisdiction over Plaintiff’s Unruh Act 7 Claim, the Court DENIES Plaintiff’s request for 8 damages. 9 iii. Attorneys’ Fees & Litigation Costs 10 The ADA authorizes attorneys’ fees in this matter. 11 42 U.S.C. § 12205; Cal. Civ. Code § 52(a); see also 12 Jankey v. Poop Deck, 537 F.3d 1122, 1130 (9th Cir. 2008) 13 (“A prevailing plaintiff under the ADA should ordinarily 14 recover an attorney’s fee unless special circumstances 15 would render such an award unjust.”) (internal quotation 16 marks omitted). For ADA cases, reasonable attorneys’ 17 fees are determined by reference to the lodestar method. 18 Vogel v. Harbor Plaza Center, LLC, 893 F.3d 1152 (9th 19 Cir. 2018) (finding that it was an abuse of discretion 20 for the district court to treat the Local Rule 55-3 fee 21 schedule, which is ordinarily used in instances of 22 default judgment, as presumptively reasonable, rather 23 than using a lodestar approach to calculate attorneys’ 24 fees for ADA and Unruh civil rights cases). A court 25 “must first determine the presumptive lodestar figure by 26 multiplying the number of hours reasonably expended on 27 the litigation by the reasonable hourly rate.” Secalt 28 S.A. v. Wuxi Shenxi Constr. Mach. Co., 668 F.3d 677, 689 1 (9th Cir. 2012) (quotation omitted). The fee applicant must “produce satisfactory evidence—in addition to the 3 | attorney’s own affidavits—that [his] requested [hourly] rates [were] in line with those prevailing in the 5 | community for similar services by lawyers of reasonably 6 | comparable skill, experience and reputation.” Grove v. 7 | Wells Fargo Fin. Cal., Inc., 606 F.3d 577, 583 (9th Cir. 8 | 2010) (quoting Blum v. Stenson, 465 U.S. 886, 896 n.11 9 | (1984)). The fee applicant bears “the burden of 10 | documenting the appropriate hours expended in the 11] litigation” and of “submit[ting] evidence in support of 12 | those hours worked.” USW v. Ret. Income Plan for 13 | Hourly-Rated Emps. of ASARCO, Inc., 512 F.3d 555, 565 14] (9th Cir. 2008) (quotation omitted). 15 Here, Plaintiff requests that the Court award 16 | $3,932 in attorney’s fees based on the work of Joseph R. 17 | Manning (“Manning”) and “Associate Attorney.” Decl. of 18 | Manning, Billing Summary. Plaintiff seeks hourly rates 19 | for each attorney as follows: 20 e Manning: $450 21 e Associate Attorney: $375 22 In support of this request, Manning submits a 23 | declaration which provides little to no explanation for 24 | why he contends for why he contends these rates are 25 | reasonable. See Decl. of Manning 4 7. The explanation 26 | for the proffered rates is limited to a single 27 | paragraph: 28 20

1 Ir ahtaev ef obre eAnD Ai nr eplraatcetdi cweo rski nicse $2405002..0 0M,y wbhiilclhi nigs a 2 fair rate for attorneys with similar experience and expertise in this nuanced area of law. My 3 associate attorney’s hourly rate of $375 is 4 based on average attorneys’ fees charged in the general geographic area with similar experience. 5 6 Id. Manning fails to present any evidence of his 7 qualifications, experience with ADA-related work, or any 8 information on the rates approved by other courts in 9 this district for similar work. His declaration makes 10 only the above conclusory statement that “he has been in 11 practice since 2002” and his rate is “fair” for 12 “attorneys with similar experience and expertise.” Id. 13 This comment, absent more, is insufficient to support 14 the $450 hourly rate requested. See Rutherford v. JJ’s 15 Market and Liquor, No. 5:18-cv-2656-ODW (SHKx), 2020 WL 16 883220, at *5-6 (C.D. Cal. Feb. 24, 2020) (lowering the 17 fee amount where same counsel as here failed to “justify 18 their billing rates, providing neither cases in which 19 court have previously approved their rates nor cases in 20 which courts have approved similar rates for attorneys 21 practicing in similar practice areas in this legal 22 market”). Further, in support of his requested rate, 23 Manning highlights that this rate is reasonable given 24 his “expertise in this nuanced area of law.” Manning 25 Decl. ¶ 7. “But, ‘such cases are ubiquitous [,] rarely 26 have even mildly complicated issues to address,’ and 27 typically involve boilerplate filings.” Rutherford v. 28 Lucatero, No. 8:19-cv-1609-JLS-JDE, 2020 WL 2132995, at 1 *8 (C.D. Cal. Feb. 24, 2020) (internal citation 2 omitted). Given that this Action and the associated 3 filings appear to be nearly identical to the hundreds of 4 other cases filed by Manning on behalf of Plaintiff, 5 among others, in this district, “the Court is skeptical 6 that an ordinary ADA case on default judgment justifies 7 work at an hourly rate of $450.” Id. (emphasis in 8 original). As such, the Court finds that given the lack 9 of support, an hourly rate of $400 is reasonable. See 10 id. (lowering fee for Manning from $450 to $400 per 11 hour). 12 Additionally, Manning failed to provide the Court 13 with even the name of his generically titled “Associate 14 Attorney,” let alone any qualifications or discussion of 15 prior experience. Based on the lack of information 16 supporting the requested hourly rate, the Court is 17 unable to conclude that this “Associate Attorney” rate 18 is reasonable. Given Plaintiff’s failure to submit any 19 evidence to support this requested rate, the Court 20 calculates the fees associated with the Associate 21 Attorney’s work at $175 per hour, which has been 22 approved by courts within this district as a reasonable 23 rate for a paralegal. See Perri v. D & R Restaurant, 24 Inc., No. CV 19-8032 PA (MAAx), 2020 WL 2036656, at *4 25 (C.D. Cal. Jan 28, 2020) (lowering “associate attorneys” 26 rate submitted by same counsel as to $175 per hour when 27 plaintiff failed to submit sufficient evidence 28 supporting the fees). Given the absence of any support 1] for Plaintiff's requested hourly rates, the Court 2 | concludes that the following hourly fees are reasonable: 3 e Manning: $400 4 e Associate Attorney: $175 5 The next issue is whether the hours spent in this 6 | Action are reasonable. Plaintiff submits an itemized 7 | billing statement which reflects that Plaintiff's 8 | attorneys spent 8.4 hours litigating this case. See Decl. of Manning, Billing Summary. After reviewing the 10 | billing statement, the Court concludes that several of 11] the hours spent in this Action are unreasonable. 12 | Specifically, Manning spent 1.0 hours to “edit/draft 13 | complaint for filing.” Id. Additionally, the Associate 14 | Attorney spent 1 hour “draft[ing] and filling] a 15 | response to the [Clourt’s OSC”; 0.6 hours “draft[ing] 16 | delcaration [sic] on behalf of client in support of 17 | Plaintiff’s Application”; 0.5 hours reviewing and 18 | executing “the Request for Entry of Default”; and 1 hour 19 | drafting the Application and supporting declarations and 20 exhibits. Id. Given that Plaintiff’s counsel files 21] nearly identical complaints and default judgment 22 | applications in all of its cases, save for a few 23 | distinguishing details of fact, the Court finds that 24 | these hours are unreasonable. Accordingly, the Court 25 | reduces these billing items to 0.4 hours, 0.4 hours, 0.4 26 | hours, 0.4 hours, and 0.5 hours, respectively. 27 Further, Plaintiff’s Associate Attorney billed 1.0 28 | hours to “[clonduct[] research of public records to 23

1 determine identities of business owner and owner of the 2 real property.” See Manning Decl., Billing Summary. 3 But, “[a] basic public records search to identify the 4 owner of the Property is not the type of legal work that 5 should be billed by an attorney at $425 per hour.” Love 6 v. Garcia, No. 5:15-CV-02004-CAS-SPX, 2017 WL 2927429, 7 at *4 (C.D. Cal. July 7, 2017) (concluding that 8 plaintiff could not recover for fees associated with the 9 aforementioned unreasonable tasks). Accordingly, these 10 hours were not reasonably expended and Plaintiff is not 11 entitled to recover these fees. 12 Because the billing for these tasks was 13 unreasonably expended, the Court excludes them from the 14 attorney’s fee award. See Hensley v. Eckerhart, 461 15 U.S. 424, 434 (1983) (stating that “[t]he district court 16 . . . should exclude from [its] initial fee calculation 17 hours that were not reasonably expended) (quotation 18 marks and citation omitted). Ultimately, with the 19 adjusted billing rates and the exclusion of the 20 unreasonable itemized tasks, the Court GRANTS $1,515.00 21 in attorneys’ fees. 22 In addition, the ADA authorizes the Court to award 23 costs in this matter. 42 U.S.C. § 12205. Plaintiff 24 seeks to recover $538 in filing fees and service costs, 25 which the Court GRANTS. 26 III. CONCLUSION 27 Based on the foregoing, the Court GRANTS in part 28 and DENIES in part Plaintiff’s Application. The Court 1 ORDERS Defendant to provide ADA-compliant parking 2 spaces. The Court awards Plaintiff $1,515.00 in 3 attorneys’ fees and $538.00 in costs, totaling 4 $2,053.00. The Court DECLINES to exercise supplemental 5 jurisdiction over and thereby DISMISSES Plaintiff’s 6 Unruh Act claim. 7 8 IT IS SO ORDERED. 9 10 DATED: November 24, 2020 _____/s_/ _R_on_a_ld_ S_.W_._ L_e_w_____________

HONORABLE RONALD S.W. LEW

11 Senior U.S. District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28