1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 SCOTT JOHNSON, Case No. 21-cv-08471-BLF

8 Plaintiff,

ORDER GRANTING IN PART

9 v. MOTION FOR DEFAULT JUDGMENT

10 IGUANAS BURRITOZILLA, CORP., [Re: ECF No. 16] 11 Defendant.

12 13 In this action, Plaintiff Scott Johnson asserts claims under Title III of the Americans with 14 Disabilities Act of 1990, 42 U.S.C. § 12101, et seq. (“ADA”), and the California Unruh Civil 15 Rights Act, Cal. Civ. Code §§ 51–52 (“Unruh Act”). See ECF No. 1. Johnson seeks injunctive 16 relief, statutory damages, attorneys’ fees, and costs of suit. Id. Defendant Iguanas Burritozilla, 17 Corp. (“Iguanas Burritozilla”) has failed to appear in this matter. At Johnson’s request, the Clerk 18 of Court has entered default against Defendant. See ECF No. 14. 19 Now before the Court is Johnson’s motion for default judgment. ECF No. 16-1 (“Mot.”). 20 Johnson has provided a proof of service showing that he served the motion on Defendant, see ECF 21 No. 16-13, although there is no notice requirement for either the entry of default or Johnson’s 22 motion. See Fed. R. Civ. P. 55(a), (b)(2). The Court finds this motion suitable for determination 23 without oral argument and has vacated the June 2, 2022 hearing. See Civ. L.R. 7-1(b). For the 24 reasons discussed below, the Court GRANTS IN PART the motion for default judgment. 25 I. BACKGROUND 26 According to the Complaint, Johnson is a level C-5 quadriplegic who cannot walk and has 27 significant manual dexterity impairments. ECF No. 1 (“Compl.”) ¶ 1. He uses a wheelchair for 1 owner of the restaurant Iguanas Burritozilla (the “Restaurant”) at or about 4848 San Felipe Rd, 2 San Jose, California, and it owned the Restaurant in August and September 2021. Id. ¶¶ 2–3. 3 Johnson allegedly went to the Restaurant in August 2021 and September 2021 (twice), but he 4 found that Defendant failed to provide wheelchair accessible dining surfaces in conformance with 5 the ADA Standards. Id. ¶¶ 8, 10. Johnson says that he intends to return to the Restaurant but is 6 currently deterred from doing so because he knows of the lack of a wheelchair accessible dining 7 surface. Id. ¶ 20. Johnson brings claims under the ADA and Unruh Act and seeks injunctive 8 relief, statutory damages, attorneys’ fees, and costs. Id. ¶¶ 22–33. 9 II. LEGAL STANDARD 10 Default may be entered against a party who fails to plead or otherwise defend an action, 11 who is neither a minor nor an incompetent person, and against whom a judgment for affirmative 12 relief is sought. Fed. R. Civ. P. 55(a). After an entry of default, a court may, in its discretion, 13 enter default judgment. Id. R. 55(b)(2); Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). 14 In deciding whether to enter default judgment, a court may consider the following factors: (1) the 15 possibility of prejudice to the plaintiff; (2) the merits of the plaintiff’s substantive claims; (3) the 16 sufficiency of the complaint; (4) the sum of money at stake in the action; (5) the possibility of a 17 dispute concerning material facts; (6) whether the default was due to excusable neglect; and (7) 18 the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits. 19 Eitel v. McCool, 782 F.2d 1470, 1471–72 (9th Cir. 1986). In considering these factors, all factual 20 allegations in the plaintiff’s complaint are taken as true, except those related to damages. 21 TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917–18 (9th Cir. 1987). When the damages 22 claimed are not readily ascertainable from the pleadings and the record, the court may either 23 conduct an evidentiary hearing or proceed on documentary evidence submitted by the plaintiff. 24 See Johnson v. Garlic Farm Truck Ctr. LLC, 2021 WL 2457154, at *2 (N.D. Cal. Jun. 16, 2021). 25 III. DISCUSSION 26 “When entry of judgment is sought against a party who has failed to plead or otherwise 27 defend, a district court has an affirmative duty to look into its jurisdiction over both the subject 1 jurisdiction, service of process, the Eitel factors, and Johnson’s requested relief. 2 A. Jurisdiction 3 The Court has subject matter jurisdiction over this lawsuit. Federal question jurisdiction 4 exists based on Johnson’s federal ADA claim, 28 U.S.C. § 1331, and the Court can exercise 5 supplemental jurisdiction over his California Unruh Act, id. § 1367. The Court also has personal 6 jurisdiction over Defendant. Johnson has submitted public records indicating that Defendant is a 7 California corporation. See Mot., Ex. 5. It thus appears that Defendant is subject to this Court’s 8 general jurisdiction. See Daimler AG v. Baumann, 571 U.S. 117, 134 (2014). 9 B. Service of Process 10 When a plaintiff requests default judgment, the court must assess whether the defendant 11 was properly served with notice of the action. See, e.g., Solis v. Cardiografix, No. 12-cv-01485, 12 2012 WL 3638548, at *2 (N.D. Cal. Aug. 22, 2012). Federal Rule of Civil Procedure 4 provides 13 that service may be effected in accordance with state law. See Fed. R. Civ. P. 4(e)(1), (h)(1)(A). 14 Under California law, a corporation or limited liability company can be served by delivering the 15 summons and complaint to one of an enumerated list of individuals, including the designated 16 agent for service of process or the general manager of the entity. See Cal. Civ. P. Code 416.10; 17 Vasic v. Pat. Health, L.L.C., No. 13CV849 AJB (MDD), 2013 WL 12076475, at *2 (S.D. Cal. 18 Nov. 26, 2013). In lieu of personal service on such individual, substitute service may be effected 19 “by leaving a copy of the summons and complaint during usual office hours in his or her office . . . 20 with the person who is apparently in charge thereof, and by thereafter mailing a copy of the 21 summons and complaint by first-class mail, postage prepaid to the person to be served at the place 22 where a copy of the summons and complaint were left.” Cal. Civ. P. Code § 415.20(a). A sworn 23 proof of service constitutes “prima facie evidence of valid service which can be overcome only by 24 strong and convincing evidence.” G&G Closed Cir. Events, LLC v. Macias, 2021 WL 2037955, at 25 *2 (N.D. Cal. May 21, 2021) (quoting Securities & Exchg. Comm’n v. Internet Solns. for Business, 26 Inc., 509 F.3d 1161, 1166 (9th Cir. 2007)). 27 Johnson has filed a proof of service indicating that the summons and complaint were 1 to § 415.20. See ECF No. 11. The summons and complaint were left at Skarbek’s business on 2 November 29, 2021 at 10:44 a.m. with the person apparently in charge. See id. The summons and 3 complaint were thereafter mailed to Skarbek at the same address. See id. The Court therefore 4 finds that Defendant was properly served with process. 5 C. Eitel Factors 6 The Court finds that the seven Eitel factors support entering a default judgment. 7 i. Factors 1 and 4–7 8 On the first Eitel factor, the Court finds that Johnson would be prejudiced without a default 9 judgment against Defendant. Unless default judgment is entered, Johnson will have no other 10 means of recourse against Defendant. See Ridola v. Chao, 2018 WL 2287668, at *5 (N.D. Cal. 11 May 18, 2018) (plaintiff prejudiced without default judgment because she “would have no other 12 means of recourse against Defendants for the damages caused by their conduct”). 13 The fourth Eitel factor requires the Court to consider the sum of money at stake in relation 14 to the seriousness of Defendant’s conduct. Love v. Griffin, 2018 WL 4471073, at *5 (N.D. Cal. 15 Aug. 20, 2018). Johnson seeks only statutory damages under the Unruh Act. While the sum 16 requested is not insignificant, the Court finds it proportional to the conduct alleged. 17 Under the fifth and sixth Eitel factors, the Court considers whether there is a possibility of 18 a dispute over any material fact and whether Defendant’s failure to respond was the result of 19 excusable neglect. See Love, 2018 WL 4471073, at *5; Ridola, 2018 WL 2287668, at *13. 20 Because Johnson pleads plausible claims for violations of the ADA and the Unruh Act, and as all 21 liability-related allegations are deemed true, there is nothing before the Court that indicates a 22 possibility of a dispute as to material facts. Moreover, there is no indication that Defendant’s 23 default was due to excusable neglect. Defendant has not appeared or responded in this action, 24 suggesting that it has chosen not to present a defense in this matter. Accordingly, these factors 25 weigh in favor of default judgment. 26 On the seventh and final Eitel factor, while the Court prefers to decide matters on the 27 merits, Defendant’s failure to participate in this litigation makes that impossible. See Ridola, 2018 1 permits entry of default judgment in situations, such as this, where a defendant refuses to 2 litigate.”). Default judgment, therefore, is Johnson’s only recourse. See United States v. Roof 3 Guard Roofing Co. Inc., 2017 WL 6994215, at *3 (N.D. Cal. Dec. 14, 2017) (“When a properly 4 adversarial search for the truth is rendered futile, default judgment is the appropriate outcome.”). 5 ii. Factors 2 and 3 6 Under Eitel factors 2 and 3, the Court finds that the Complaint alleges meritorious 7 substantive claims for relief under the ADA and the Unruh Act. 8 Johnson must establish Article III standing, which requires that he demonstrate he suffered 9 an injury in fact, traceable to Defendant’s conduct, and redressable by a favorable court decision. 10 Ridola, 2018 WL 2287668, at *5 (citing Hubbard v. Rite Aid Corp., 433 F.Supp.2d 1150, 1162 11 (S.D. Cal. 2006)). Johnson claims that he suffers from a disability, that he personally encountered 12 access barriers at the Restaurant because it lacked wheelchair accessible dining surfaces, and that 13 he will return to the Restaurant once it is made accessible. Compl. ¶¶ 1, 10–12, 15, 20; see Vogel 14 v. Rite Aid Corp., 992 F. Supp. 2d 998, 1008 (C.D. Cal. 2014) (“Demonstrating an intent to return 15 to a non-compliant accommodation is but one way for an injured plaintiff to establish Article III 16 standing to pursue injunctive relief.”). Johnson thus alleged that he has standing under the ADA. 17 On the merits, Title III of the ADA provides that “[n]o individual shall be discriminated 18 against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, 19 privileges, advantages, or accommodations of any place of public accommodation by any person 20 who owns, leases (or leases to), or operates a place of public accommodation.” 42 U.S.C. 21 § 12182(a). For purposes of Title III, discrimination includes “a failure to remove architectural 22 barriers ... in existing facilities ... where such removal is readily achievable[.]” 42 U.S.C. 23 § 12182(b)(2)(A)(iv). To prevail on his Title III discrimination claim, Johnson must show that (1) 24 he is disabled within the meaning of the ADA; (2) Defendant is a private entity that owns, leases, 25 or operates a place of public accommodation; and (3) Johnson was denied public accommodations 26 by Defendant because of his disability. See Molski v. M.J. Cable, Inc., 481 F.3d 724, 730 (9th Cir. 27 2007). To succeed on an ADA claim based on architectural barriers, Johnson “must also prove 1 the removal of the barrier is readily achievable.” Ridola, 2018 WL 2287668, at *5. 2 Johnson has plausibly pled an ADA claim. First, Johnson has adequately alleged that he 3 has a disability within the meaning of the ADA by alleging that he is a C-5 quadriplegic who 4 cannot walk and uses a wheelchair for mobility. Compl. ¶ 1. Second, Johnson has alleged that 5 Defendant is a private entity that owns, leases, or operates a place of public accommodation—the 6 Restaurant. Id. ¶¶ 2–3, 9; see also 42 U.S.C. § 12181(7)(B) (listing “a restaurant, bar, or other 7 establishment serving food or drink” as a place of public accommodation). Third, Johnson alleges 8 that during his visit to the Restaurant, he personally encountered an access barrier: the lack of 9 wheelchair accessible dining surfaces. Compl. ¶¶ 8–14. Johnson alleges that the dining surfaces 10 at the Restaurant did not have clearance for his wheelchair. Id. ¶ 12. Johnson has also alleged that 11 removal of these barriers is “readily achievable” because they are “easily removed without much 12 difficulty or expense” and they are an example of “the types of barriers identified by the 13 Department of Justice as presumably readily achievable to remove.” Id. ¶ 19; see also Garlic 14 Farm Truck Ctr. LLC, 2021 WL 2457154, at *6 (finding these allegations sufficient at default 15 judgment stage). If true, these facts would result in violation of the 2010 ADA Accessibility 16 Guidelines (ADAAG), which require that at least 5 percent of the seating spaces and standing 17 spaces at the dining surfaces shall comply with certain knee and toe clearance requirements. See 18 ADAAG §§ 226.1, 902.2; see also id. §§ 306.2.1, 306.2.3, 306.3.1, 306.3.3. Accordingly, 19 Johnson adequately alleges that the Restaurant violated accessibility standards, and that he was 20 denied access to the dining surfaces because of his disability. 21 In sum, the Court finds that Johnson’s ADA claim is adequately pled and substantively 22 meritorious in light of Defendant’s failure to respond in this action. Because “[a]ny violation of 23 the ADA necessarily constitutes a violation of the Unruh Act,” M.J. Cable, 481 F.3d at 731, 24 Johnson has also sufficiently alleged an Unruh Act claim. Thus, the second and third Eitel factors 25 also favor default judgment. 26 D. Requested Relief 27 The Court has found default judgment appropriate, so now it considers Johnson’s request i. Injunctive Relief 1 Johnson requests an order directing Defendant to “provide wheelchair accessible dining 2 surfaces.” Mot. at 1. Aggrieved individuals “may obtain injunctive relief against public 3 accommodations with architectural barriers, including ‘an order to alter facilities to make such 4 facilities readily accessible to and usable by individuals with disabilities.’” M.J. Cable, 481 F.3d 5 at 730 (quoting 42 U.S.C. § 12188(a)(2)). Injunctive relief is also available under the Unruh Act. 6 See Cal. Civ. Code § 52.1(h). Injunctive relief is thus proper where Johnson establishes that 7 “architectural barriers at the defendant’s establishment violate the ADA and the removal of the 8 barriers is readily achievable.” Ridola, 2018 WL 2287668 at *13 (citing Moreno v. La Curacao, 9 463 Fed. Apps. 669, 670 (9th Cir. 2011)). For the reasons discussed above, Johnson has done so 10 here. Accordingly, the Court grants Johnson’s request for injunctive relief to bring the dining 11 surfaces in line with the 2010 ADAAG Standards. 12 ii. Statutory Damages 13 Johnson seeks statutory damages of $4,0001 each for the three instances of discrimination 14 he encountered at the Restaurant, for a total of $12,000. Compl. at 7; Mot. at 14. The Court has 15 previously declined to award statutory damages for multiple visits to the same facility on a motion 16 for default judgment. See Garlic Farm Truck Center LLC, 2021 WL 2457154, at *8 (granting 17 only $4,000 in statutory damages because “it is unclear why [Johnson] repeatedly visited [the 18 facility] when he knew the business was in violation of the ADA” and “[b]ehavior by [Johnson] 19 indicates that his repeated visits are motivated by a desire to increase statutory damages”). For 20 those same reasons, the Court will award only $4,000 in statutory damages here. 21 iii. Attorneys’ Fees and Costs 22 Johnson requests $1,965 in attorneys’ fees under both the ADA and the Unruh Act for 23 work performed by 4 attorneys and multiple legal assistants. See Motion, Ex. 1 (“Handy Decl.”) 24 at 9–11. In support of the fees requested, Johnson presents detailed billing entries attached to 25 Russell Handy’s Declaration, expert analysis of fees for ADA-plaintiff attorneys by fee experts 26 27 1 Richard Pearl and John O’Connor, and a survey report pulled from the Real Rate Report. Mot. at 2 16–24; see Handy Decl.; id., Exs. 6–8. Further, Johnson cites case law from this district and 3 others that have granted attorneys’ fees at the hourly rates Johnson is requesting. Mot. at 18–20, 4 22–24. The Court finds that this evidence only partially substantiates Johnson’s requests. 5 a. Legal Standard 6 The ADA and the Unruh Act give courts the discretion to award attorneys’ fees to 7 prevailing parties. See M.J. Cable, 481 F.3d at 730 (citing 42 U.S.C. § 12205); Cal. Civ. Code § 8 52.1(i). Whether calculating attorneys’ fees under California or federal law, courts follow “the 9 ‘lodestar’ method, and the amount of that fee must be determined on the facts of each case.” 10 Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 978 (9th Cir. 2008) (quoting Ferland v. Conrad 11 Credit Corp., 244 F.3d 1145, 1149 n.4 (9th Cir. 2001)). Under the lodestar method, the most 12 useful starting point “is the number of hours reasonably expended on the litigation multiplied by a 13 reasonable hourly rate.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). The party seeking an 14 award of fees should submit evidence supporting the hours worked and rates claimed. Id. 15 “In determining a reasonable hourly rate, the district court should be guided by the rate 16 prevailing in the community for similar work performed by attorneys of comparable skill, 17 experience, and reputation.” Chalmers v. City of Los Angeles, 796 F.2d 1205, 1210–11 (9th Cir. 18 1986). “Generally, the relevant community is the forum in which the district court sits.” Barjon v. 19 Dalton, 132 F.3d 496, 500 (9th. Cir. 1997). The fee applicant bears the burden of producing 20 evidence, other than declarations of interested counsel, that the requested rates are in line with 21 those prevailing in the community for similar services by lawyers of reasonably comparable skill, 22 experience, and reputation. See Blum, 465 U.S. at 896 n.11. Further, the district court should 23 exclude hours that were not reasonably expended. See Hensley, 461 U.S. at 434. 24 b. Rates 25 The Court finds that the rates Johnson seeks exceed those that have been granted in this 26 community for similar work performed by attorneys of comparable skill, experience, and 27 reputation. The relevant community for this action is the Northern District of California. Indeed, 1 generally approved hourly rates ranging from $350 to $495 in disability cases. See, e.g., Castillo- 2 Antonio v. Lam, No. 18-cv-04593-EDL, 2019 WL 2642469, at *7 (N.D. Cal. Apr. 10, 2019) 3 (approving, on motion for default judgment, $350 hourly rate for attorney with over 20 years of 4 experience); Johnson v. Castagnola, No. 18-cv-00583-SVK, 2019 WL 827640, at *2 (N.D. Cal. 5 Feb. 21, 2019) (approving $350 hourly rate for attorney with 20 years of litigation experience, 6 noting that requested rate was unopposed by defendant and in line with rates approved in Northern 7 District). Many of these cases have considered the same evidence that Johnson submits here and 8 found that it does not support the rates he seeks. See, e.g., Johnson v. Huong-Que Restaurant, 9 2022 WL 658973, at *5 (N.D. Cal. Mar. 4, 2022) (analyzing declarations of Mr. Handy, fee 10 experts Mr. Pearl and Mr. O’Connor, and the Real Rate Report and finding only lower rates 11 justified). 12 This Court finds the analysis of those cases persuasive and will award hourly rates in line 13 with those cases. Mr. Potter will be awarded an hourly rate of $475. See Huong-Que, 2022 WL 14 658973, at *5; An Khang Mi Gia, 2021 WL 3908389, at *8. Ms. Seabock will be awarded an 15 hourly rate of $350. See Huong-Que, 2022 WL 658973, at *5; Garlic Farm Truck Center LLC, 16 2021 WL 2457154, at *10. Mr. Seabock, whose 11 years of experience is equivalent to that of 17 Ms. Seabock, will also be awarded an hourly rate of $350. See Huong-Que, 2022 WL 658973, at 18 *5 (approving $350 hourly rate for attorney with 11 years of experience); Love v. Mustafa, 2021 19 WL 2905427, at *2 (N.D. Cal. June 11, 2021) (awarding Mr. Seabock $350 per hour). Ms. Zaman, 20 who graduated in 2015, will be awarded $250 per hour. See An Khang, 2021 WL 5908389, at *8; 21 Johnson v. AutoZone, Inc., 2019 WL 2288111, at *7 (N.D. Cal. May 29, 2019). 22 Johnson has also requested reimbursement of fees for legal assistants at an hourly rate of 23 $100 and for Marcus Handy at an hourly rate of $200 for “his experience as a skilled legal 24 assistant and paralegal.” See Handy Decl. ¶¶ 7–8. The Court agrees with other courts in this 25 district that an hourly rate of $100 is reasonable for paralegal and legal assistant fees. See Lopez v. 26 San Francisco Unified Sch. Dist., 385 F. Supp. 2d 981, 992 (N.D. Cal. 2005); Whitaker v. Joe’s 27 Jeans Inc., 2021 WL 2590155, at *5 (N.D. Cal. June 24, 2021). The Court has previously rejected 1 WL 5908389, at *9. For the same reasons, the Court awards a $100 hourly rate for Mr. Handy. 2 c. Hours 3 Johnson requests fees based on 9.0 hours of work by attorneys and staff. See Handy Decl. 4 at 9–11. Johnson’s billing summary shows 9 hours were expended in this litigation: Mr. Potter 5 expended 0.6 hours, Ms. Seabock expended 0.1 hours, Mr. Seabock expended 0.1 hours, Ms. 6 Zaman expended 1.6 hours, and paralegals and staff expended 6.6 hours. See Handy Decl. at 9– 7 11. 8 The Court has not previously considered the reasonableness of a request for fees where the 9 attorney billed only 0.1 hours, or six minutes, in the case. In the Court’s view, six minutes of 10 work could not reasonably add value sufficient to warrant an award of fees. Thus, although the 11 Court has granted fees for attorney billing of 0.1 hours in prior cases without discussion, see 12 Huong-Que, 2022 WL 658973, at *5, the Court now determines that such billing is unreasonable. 13 The Court denies the request for attorneys’ fees for the work performed by Ms. Seabock and Mr. 14 Seabock. 15 The Court also finds that the use of fourteen legal assistants to do 6.6 hours of work is 16 unreasonable, given the inherent duplication of effort and inefficiency arising from the 17 circumstances of so many individuals performing the same limited tasks. The Court therefore 18 limits the recovery of fees for paralegals and staff to 4.0 hours. 19 d. Costs 20 In addition, Johnson seeks service costs ($35), filing fees ($402), and investigation costs 21 ($400). See Mot. at 24; Handy Decl. at 10. The ADA provides that the prevailing party may 22 recover “litigation expenses[] and costs.” 42 U.S.C. § 12205; see Johnson v. VN Alliance LLC, 23 2019 WL 2515749, at *8 (N.D. Cal. June 18, 2019) (awarding costs, filings fees, and investigation 24 costs). Accordingly, the Court grants Johnson’s request for $837 in costs. 25 e. Summary 26 The Court’s award of fees and costs is summarized below. 27 marioner | srs | gts

8 || Iv. ORDER 9 For the foregoing reasons, IT IS HEREBY ORDERED that: 10 e Johnson’s motion for default judgment is GRANTED IN PART; 11 e Johnson is AWARDED statutory damages in the amount of $4,000; 12 e Johnson is AWARDED $1,922 in attorneys’ fees and costs; 13 e Johnson is GRANTED an injunction requiring Defendant to provide wheelchair 14 accessible dining surfaces at the Iguanas Burritozilla restaurant located at 4848 San 2 15 Felipe Rd, San Jose, California in compliance with the 2010 ADAAG Standards; 16 and 17 e Johnson SHALL promptly serve Defendant with this Order and file a proof of 18 service with the Court. 19 20 || Dated: May 31, 2022 21 kom Lh | onan 09 BETH LABSON FREEMAN United States District Judge 23 24 25 26 27 28