1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 SCOTT JOHNSON, Case No. 3:20-cv-06098-JD

8 Plaintiff,

ORDER RE DEFAULT JUDGMENT

v. 9

10 SANTA CLARA PLAZA 478, LLC, Defendant. 11

12 Plaintiff Scott Johnson is a quadriplegic and requires a wheelchair for mobility. Dkt. No. 1 13 ¶ 1. He has alleged violations of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. 14 (ADA), and the California Unruh Civil Rights Act, Cal. Civ. Code §§ 51-53 (Unruh Act), against 15 defendant Santa Clara Plaza 478, LLC (SCP), which owns and operates Santa Clara Plaza, a 16 business establishment in San Jose, California. Id. ¶¶ 2-3, 9. Johnson asserts that Santa Clara 17 Plaza “provides parking to its customers but fails to provide wheelchair accessible parking.” Id. 18 ¶ 11. 19 SCP has not appeared in the case, and at Johnson’s request, the Clerk of Court has entered 20 default as to SCP. Dkt. No. 13. Johnson has moved for default judgment. Dkt. No. 15. The 21 motion is granted in part. 22 DISCUSSION 23 I. JURISDICTION & SERVICE 24 “In default judgment proceedings, the Court has an affirmative duty to consider whether it 25 has jurisdiction over the subject matter and parties to the case.” FormFactor, Inc. v. Mr. Prober 26 Tech. Inc., No. 13-cv-03688-JD, 2015 WL 1870236, at *1 (N.D. Cal. Apr. 23, 2015) (citing In re 27 Tuli, 172 F.3d 707, 712 (9th Cir. 1999)). Johnson’s claims for violations of the ADA present a 1 §§ 1331, 1367(a). The Court has personal jurisdiction over SCP, which is a limited liability 2 company incorporated in California. Dkt. No. 15-7 at 12. See Daimler AG v. Bauman, 571 U.S. 3 117, 137 (2014). Johnson filed a proof of service indicating that the summons and complaint were 4 personally delivered to SCP’s agent for service of process. Dkt. No. 11. 5 The Court also considers whether Johnson has Article III standing to pursue his claims. 6 “A plaintiff must demonstrate standing to sue by alleging the ‘irreducible constitutional minimum’ 7 of (1) an ‘injury in fact’ (2) that is ‘fairly traceable to the challenged conduct of the defendants’ 8 and (3) ‘likely to be redressed by a favorable decision.’” Strojnik v. 574 Escuela, LLC, No. 18-cv- 9 06777-JD, 2020 WL 1557434, at *1 (N.D. Cal. Mar. 31, 2020) (quoting Spokeo v. Robins, 578 10 U.S. 330, 338 (2016)). Johnson’s complaint alleges that he went to Santa Clara Plaza on three 11 occasions and that there was no wheelchair-accessible parking. Dkt. No. 1 ¶¶ 8-15. He claims 12 that he “personally encountered” physical barriers -- “slopes in the parking spaces reserved for 13 persons with disabilities that exceeded 2.1%” -- and that this “created difficulty and discomfort” 14 for him. Id. ¶¶ 12, 14, 16. He also claims that he intends to return to Santa Clara Plaza, but is 15 deterred from doing so because of the existing barriers. Id. ¶ 20. These allegations are adequate 16 to confer standing. See Strojnik, 2020 WL 1557434, at *2 (“An ADA plaintiff meets these 17 standards if ‘he intends to return to a noncompliant place of public accommodation where he will 18 likely suffer repeated injury.’”) (quoting Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 948 19 (9th Cir. 2011) (en banc)). 20 II. DEFAULT JUDGMENT 21 “Under Federal Rule of Civil Procedure 55(b)(2), a party may apply to the Court for entry 22 of judgment by default against a defendant that has failed to defend against the action.” See 23 FormFactor, 2015 WL 1870236, at *2. “‘The district court’s decision whether to enter a default 24 judgment is a discretionary one.’” Id. (quoting Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 25 1980)). The decision is based on the following factors:

26 (1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff’s 27 substantive claim, (3) the sufficiency of the complaint, (4) the sum of money at stake in the action, (5) the possibility of a dispute concerning material facts, (6) whether the default was due to excusable neglect, and (7) the strong policy 1 underlying the Federal Rules of Civil Procedure favoring decisions on the merits. 2 3 NewGen, LLC v. Safe Cig, LLC, 840 F.3d 606, 616 (9th Cir. 2016) (quoting Eitel v. McCool, 782 4 F.2d 1470, 1471-72 (9th Cir. 1986)). 5 The main inquiries under the Eitel factors are the merits of the claim and the sufficiency of 6 the complaint, which are typically considered together, “because after the entry of default, well- 7 pleaded allegations in the complaint are deemed true, except as to the amount of damages.” 8 FormFactor, 2015 WL 1870236, at *2 (citing Fair Hous. of Marin v. Combs, 285 F.3d 899, 906 9 (9th Cir. 2002)). 10 To state a Title III discrimination claim, a “‘plaintiff must show that (1) she is disabled 11 within the meaning of the ADA; (2) the defendant is a private entity that owns, leases, or operates 12 a place of public accommodation; and (3) the plaintiff was denied public accommodations by the 13 defendant because of her disability.’” Doe v. CVS Pharmacy, Inc., 982 F.3d 1204, 1212 (9th Cir. 14 2020) (quoting Molski v. M.J. Cable, Inc., 481 F.3d 724, 730 (9th Cir. 2007)). Johnson has clearly 15 made the first two showings. The complaint alleges that he is a “level C-5 quadriplegic,” he 16 requires a wheelchair for mobility, and he has a “specially equipped van.” Dkt. No. 1 ¶ 1. It also 17 asserts that Santa Clara Plaza is a business establishment open to the public. Id. ¶ 9. 18 The complaint also adequately alleges that Johnson was denied public accommodations 19 because of his disability. “Discrimination under Title III of the ADA specifically includes ‘a 20 failure to remove architectural barriers . . . in existing facilities . . . where such removal is readily 21 achievable.’” Lopez v. Catalina Channel Express, Inc., 974 F.3d 1030, 1034 (9th Cir. 2020) 22 (quoting 42 U.S.C. § 12182(b)(2)(A)(iv); emphasis in original). Architectural barriers include 23 “slopes and cross-slopes in a parking lot that are too steep (more than two percent incline).” Id. 24 The complaint alleges that “there were slopes in the parking spaces reserved for persons with 25 disabilities that exceeded 2.1%” and “the path of travel from the parking lot to the businesses at 26 Santa Clara Plaza requires a person to navigate cross slopes that exceed 2.1%.” Dkt. No. 1 ¶¶ 12, 27 17; see also Dkt. No. 15-5 ¶¶ 2-3 (Marquis declaration). The complaint also asserts that the 1 barriers identified by the Department of Justice as presumably readily achievable to remove.” 2 Dkt. No. 1 ¶ 19. These allegations are sufficient at the default-judgment stage to plead Johnson’s 3 ADA claim. Because “[a]ny violation of the ADA necessarily constitutes a violation of the Unruh 4 Act,” M.J. Cable, 481 F.3d at 731, Johnson has also sufficiently alleged an Unruh Act claim. 5 The other Eitel factors also favor entry of default judgment. Johnson will be prejudiced if 6 default judgment is not granted because he will remain subject to the physical barriers at Santa 7 Clara Plaza. The amount of money at stake here (Johnson seeks $12,000, or $4,000 for each of his 8 visits to Santa Clara Plaza) is high given the alleged misconduct, but the Court is not required to 9 award statutory damages for each of Johnson’s visits, see infra Section III. And because SCP has 10 not appeared despite proper service, there is “no indication that [the] default is due to excusable 11 neglect, that the material facts are subject to dispute, or that a decision on the merits will be 12 possible.’” Broad. Music, Inc. v. JMN Rest. Mgmt. Corp., No. 14-cv-01190-JD, 2014 WL 13 5106421, at *2 (N.D. Cal. Oct. 10, 2014). 14 III. THE RELIEF 15 Johnson asks for statutory damages, attorneys’ fees, and costs. Dkt. No. 15-1 at 15-25. He 16 also seeks an order requiring SCP to provide wheelchair-accessible parking space and a 17 wheelchair-accessible path of travel from the parking lot to the entrance at Santa Clara Plaza. Id. 18 at 15. 19 A. Statutory Damages 20 Under the Unruh Act, “[a] violation of the right of any individual under the [ADA] shall 21 also constitute a violation of this section.” Cal. Civ. Code § 51(f). This provision is “intended to 22 allow persons injured by a violation of the ADA to seek the full range of remedies provided under 23 the Unruh Act, including injunctive relief, actual damages (in some cases treble damages), and a 24 minimum statutory award of $4,000 per violation.” Skaff v. Rio Nido Roadhouse, 55 Cal. App. 5th 25 522, 535 (2020). 26 Johnson seeks the minimum statutory award of $4,000 for each of the three times that he 27 visited Santa Clara Plaza, for a total of $12,000. Dkt. No. 15-1 at 16. As in other cases involving 1 barriers he initially encountered -- it would be reasonable to conclude that his second and third 2 visits were part of an effort to simply increase his statutory damages. See, e.g., Johnson v. MKB 3 Rescom LLC, No. 20-cv-01460-BLF, 2022 WL 1062059, at *4 (N.D. Cal. Apr. 8, 2022). Under 4 these circumstances, the Court “decline[s] to award statutory damages for multiple visits to the 5 same facility on a motion for default judgment.” Id. Johnson is granted a single statutory award 6 of $4,000 against SCP. 7 B. Injunctive Relief 8 The ADA authorizes plaintiffs who have “suffered discrimination in the form of a refusal 9 to remove architectural barriers” to pursue “injunctive relief including ‘an order to alter facilities 10 to make such facilities readily accessible . . . and usable.’” Doran v. 7-Eleven, Inc., 524 F.3d 11 1034, 1043 (9th Cir. 2008) (quoting 42 U.S.C. § 12188(a)(2)). Injunctive relief is appropriate to 12 ensure that Johnson and similarly situated persons can access Santa Clara Plaza. Accordingly, an 13 injunction will issue, as described below. 14 C. Attorneys’ Fees, Costs, and Interest 15 Under the ADA, the Court “may allow the prevailing party . . . a reasonable attorney’s fee, 16 including litigation expenses, and costs.” 42 U.S.C. § 12205. Johnson seeks $2,365 in attorneys’ 17 fees. Dkt. No. 15-1 at 16. “The most useful starting point for determining the amount of a 18 reasonable fee is the number of hours reasonably expended on the litigation multiplied by a 19 reasonable hourly rate.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). Johnson’s attorneys 20 provided time records, which present in a lodestar format the time spent on specific tasks by each 21 lawyer and paralegal, and the amount billed for these tasks. Dkt. No. 15-3 at ECF p. 8. The 22 Court’s review of the attorney time entries shows that they were largely consistent with acceptable 23 practices in terms of detail and specificity. The timesheets submitted by Johnson show that 8.7 24 hours were billed for the case, which falls within a reasonable range for this type of litigation. See 25 Johnson v. Huong-Que Rest., No. 21-cv-04133-BLF, 2022 WL 658973, at *5 (N.D. Cal. Mar. 4, 26 2022). 27 That said, the hourly rates sought by Johnson are unreasonable. He seeks $650 per hour 1 Faythe Gutierrez and Tehniat Zaman, who both graduated from law school in 2015. Dkt. No. 15-3 2 992, 4-5. These rates exceed the norm: “for attorneys with approximately 20 or more years of 3 experience, courts in this district have generally approved hourly rates ranging from $350 to $495 4 in disability cases.” Huong-Que Rest., 2022 WL 658973, at *5. This is not an exceptional case 5 || that would warrant higher rates. The Court finds as reasonable the rates set out in Huong-Que 6 || Restaurant, and thus awards $475 per hour for Potter and $250 per hour for Gutierrez and Zaman. 7 The Court also finds as reasonable the rate of $100 per hour for Mark Handy and the other legal 8 assistants who billed time to this case. The resulting attorney fee award is $1,597.50. 9 Johnson also requests $835 in costs. Dkt. No. 15-1 at 24. Included in this request is $400 10 || for investigative costs. Jd. However, neither Johnson nor the investigator have provided any 11 documentation supporting that request. Absent documentation, the Court finds that $100 is a 12 || reasonable hourly rate for this investigative work, and that the work could be performed within an 5 13 hour. Dkt. No. 15-6 (photos provided by investigator, with timestamps spanning 30 minutes). 14 || Consequently, the Court awards $100 as investigative costs, for a total of $535 in costs. 3 15 CONCLUSION a 16 Johnson’s motion for default judgment is granted in part. He is awarded $4,000.00 in 3 17 statutory damages and $2,132.50 in attorneys’ fees and costs. For injunctive relief, defendant 18 Santa Clara Plaza 478, LLC is ordered to provide parking and paths of travel at Santa Clara Plaza, 19 478 E. Santa Clara St., San Jose, California, that are free of excessive slopes, in accordance with 20 || the applicable ADA standards. Johnson will promptly serve SCP with this order and file a proof 21 of service on the docket. 22 IT IS SO ORDERED. 23 Dated: September 30, 2022 24 25

JAMEYPONATO

26 Unitedgftates District Judge 27 28