1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 NORTHERN DISTRICT OF CALIFORNIA 8 SAN JOSE DIVISION 9 10 SCOTT JOHNSON, Case No. 5:21-cv-05929-EJD

11 Plaintiff, ORDER GRANTING IN PART

APPLICATION FOR DEFAULT

12 v. JUDGMENT

13 LAYERS, LLC, et al., Re: Dkt. No. 29 Defendants. 14

15 Plaintiff Scott Johnson brings this action against Layers, LLC, and AARAV Restaurant 16 Management, Inc. (together, “Defendants”), alleging violations of the Americans with Disabilities 17 Act of 1990 (“ADA”), 42 U.S.C. § 12101, et seq., and the California Unruh Civil Rights Act (the 18 “Unruh Act”), Cal. Civ. Code §§ 51-53. See First Amended Complaint (“Compl.”) ¶¶ 29-42, Dkt. 19 No. 17. Before the Court is Plaintiff’s Application for Default Judgment. He seeks injunctive 20 relief, along with statutory damages and attorneys’ fees and costs. Application for Default 21 Judgment (“Mot.”), Dkt. No. 29. Defendants have not appeared in this matter and did not oppose 22 or otherwise respond to the Application, despite having been served. This matter is suitable for 23 disposition without oral argument pursuant to Civil Local Rule 7-1(b). For the reasons stated 24 below, Plaintiff’s Application for Default Judgment is granted in part. 25 26 27 1 I. BACKGROUND1 2 Plaintiff is a level C-5 quadriplegic who cannot walk and has significant manual dexterity 3 impairments. Compl. ¶ 1. Plaintiff uses a wheelchair for mobility and has a specially equipped 4 van. Id. Defendant Layers LLC (“Layers”) owned Patxi’s Pizza located at 441 Emerson Street, 5 Palo Alto, California, between April 2021 and June 2021. Id. ¶ 2; see also Ex. 5, Dkt. No. 29-7. 6 Plaintiff also alleges that Defendant AARAV Restaurant Management Inc. (“AARAV”) was the 7 owner of Patxi’s Pizza at the time Plaintiff filed the First Amended Complaint. Compl. ¶¶ 3-4; see 8 also Ex. 5, Dkt. No. 29-7. 9 Plaintiff alleges that he visited Patxi’s Pizza in April and June 2021 with the intent to avail 10 himself of its goods or services and to determine if Defendants complied with disability access 11 laws. Compl. ¶ 9. When Plaintiff visited Patxi’s Pizza, he found that it did not provide 12 wheelchair accessible outside dining surfaces. Id. ¶¶ 11–12. The outside dining surfaces did not 13 have sufficient knee or toe clearance for wheelchair users. Declaration of Scott Johnson in 14 Support of Plaintiff’s Request for Default Judgment (“Johnson Decl.”), ¶ 3, Dkt. No. 29-4. 15 Plaintiff alleges that he will return to Patxi’s Pizza to avail himself of its goods or services 16 and to determine compliance with the disability access laws once it is represented to him that the 17 restaurant and its facilities are accessible. Compl. ¶ 21. Plaintiff alleges he is currently deterred 18 from returning to the restaurant because of his knowledge of the existing barriers and his 19 uncertainty about the existence of yet other barriers on the site. Id. 20 Plaintiff initiated this action for injunctive relief and damages under the ADA and Unruh 21 Act on August 1, 2021. Dkt. No. 1. Plaintiff filed the First Amended Complaint on December 10, 22 2021. Plaintiff sought entry of default as to each Defendant on February 22, 2022, which the 23 Clerk entered on February 24, 2022. Dkt. Nos. 23-26. On March 15, 2022, Plaintiff filed the 24 present Application for Default Judgment. Dkt. No. 29. As noted previously, neither Defendant 25 has made any appearance in the action. Plaintiff seeks $8,000.00 in damages and $4,488.50 in 26

27 1 The Background is a summary of the allegations in the First Amended Complaint. 1 attorneys’ fees and costs. Plaintiff also seeks an order directing Defendants to provide wheelchair 2 accessible outside dining surfaces at the property located at 441 Emerson Street, Palo Alto, 3 California. 4 II. STANDARDS 5 Default judgment may be granted when a party fails to plead or otherwise defend against 6 an action for affirmative relief. Fed. R. Civ. P. 55(a). Discretion to enter default judgment rests 7 with the district court. Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). When deciding 8 whether to enter default judgment, the court considers:

9 (1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff's substantive claim, (3) the sufficiency of the complaint, (4) 10 the sum of money at stake in the action, (5) the possibility of a dispute concerning material facts, (6) whether the underlying default was due 11 to excusable neglect, and (7) the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits. 12 13 Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986) (citing 10 Moore’s Federal Practice § 14 55). In evaluating these factors, all factual allegations in the complaint are taken as true, except 15 those relating to damages. TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 16 1987). 17 III. DISCUSSION 18 Before entering default judgment, a court must determine whether it has subject matter 19 jurisdiction over the action and personal jurisdiction over the defendant. See In re Tuli, 172 F.3d 20 707, 712 (9th Cir. 1999) (“A judgment entered without personal jurisdiction over the parties is 21 void.”). 22 A. Subject Matter Jurisdiction 23 District courts have subject matter jurisdiction over all civil actions arising under the laws 24 of the United States. 28 U.S.C. § 1331. Further, in any civil action where the district courts have 25 subject matter jurisdiction, the district courts will also have supplemental jurisdiction over all 26 other claims that are so related to claims in the action, such that they form part of the same case or 27 controversy. 28 U.S.C. § 1367. Plaintiff’s ADA claim presents a civil action arising under a law 1 of the United States. Therefore, this Court has subject matter jurisdiction over Plaintiff’s ADA 2 claim and supplemental jurisdiction over the Unruh Act claim because it arises out of the same 3 “case or controversy.” 4 B. Personal Jurisdiction 5 Serving a summons establishes personal jurisdiction over a defendant who is subject to the 6 jurisdiction of a court of general jurisdiction in the state where the district court is located. Fed. R. 7 Civ. P. 4(k)(1). Pursuant to Rule 4(e) of the Federal Rules of Civil Procedure, an individual 8 defendant may be served by: (1) delivering a copy of the summons and complaint to the individual 9 personally; (2) leaving a copy of the summons and complaint at the individual’s dwelling or usual 10 place of abode with someone of suitable age and discretion who resides there; or (3) delivering a 11 copy of the summons and complaint to an agent authorized by appointment or law to receive 12 service of process. Fed. R. Civ. P. 4(e)(2). Alternatively, an individual defendant may be served 13 with process pursuant to the law of the state where the district court is located. Fed. R. Civ. P. 14 4(e)(1). 15 Under California law, individual defendants may be served by several means, including 16 personal delivery of the summons and complaint to the individual or the individual’s authorized 17 agent. Cal. Code Civ. Proc. §§ 415.10, 416.90. An individual defendant may also be served under 18 California law through substituted service by “leaving a copy of the summons and complaint 19 during usual office hours in [the defendant’s] office . . . with the person who is apparently in 20 charge thereof . . . and by thereafter mailing a copy of the summons and complaint . . . where a 21 copy of the summons and complaint were left.” Cal. Code Civ. Proc. § 415.20(a). 22 The record indicates that Plaintiff successfully effectuated personal service on Defendant 23 Layers on January 25, 2022, and on Defendant AARAV on January 17, 2022. Dkt. Nos. 23-24. 24 The Court is satisfied that Plaintiff gave Defendants proper service of process under both the 25 Federal Rules of Civil Procedure and the California Code of Civil Procedure. Therefore, the Court 26 has personal jurisdiction over Defendants. 27 1 C. Eitel Factors 2 The Court finds that the Eitel factors weigh in favor of granting Plaintiff’s motion. 3 1. Possibility of Prejudice to the Plaintiff 4 The first Eitel factor requires the Court to consider whether Plaintiff would be prejudiced if 5 default judgment is not entered. If default judgment is not entered, Plaintiff will have no means of 6 recourse against Defendants. As such, Plaintiff will be prejudiced if default judgment is not 7 entered. See, e.g., Johnson v. In Suk Jun, No. 19-CV-06474-BLF, 2020 WL 6507995, at *3 (N.D. 8 Cal. Nov. 5, 2020); Ridola v. Chao, No. 16-CV-02246-BLF, 2018 WL 2287668, at *5 (N.D. Cal. 9 May 18, 2018) (finding that plaintiff would be prejudiced if default judgment was not entered 10 because she “would have no other means of recourse against Defendants for the damages caused 11 by their conduct”). 12 2. Substantive Merits and Sufficiency of the Claims 13 Under the second and third Eitel factors, the Court must examine the merits of a plaintiff’s 14 substantive claims and the sufficiency of the complaint. Eitel, 782 F.2d at 1471–72; see also Bd. 15 of Trustees, I.B.E.W. Local 332 Pension Plan Part A v. Delucchi Elec., Inc., No. 5:19-CV-06456- 16 EJD, 2020 WL 2838801, at *2 (N.D. Cal. June 1, 2020) (“Courts often consider the second and 17 third Eitel factors together.”) (citing PepsiCo, Inc. v. Cal. Security Cans, 283 F. Supp. 2d 1172, 18 1177 (C.D. Cal. 2002)). At this stage, the Court takes “the well-pleaded factual allegations” in the 19 complaint as true. However, the “defendant is not held to admit facts that are not well pleaded or 20 to admit conclusions of law.” DIRECTV, Inc. v. Hoa Huynh, 503 F.3d 847, 854 (9th Cir. 2007). 21 “[N]ecessary facts not contained in the pleadings, and claims which are legally insufficient, are not 22 established by default.” Cripps v. Life Ins. Co. of N. Am., 980 F.2d 1261, 1267 (9th Cir. 1992). 23 The motion seeks default judgment on two claims: (a) a violation of the ADA; and (b) a 24 violation of the Unruh Act. The Court examines each claim in turn. 25 a. Title III of the ADA 26 Title III of the ADA prohibits discrimination based on disability within places of public 27 accommodation. Pursuant to 42 U.S.C. § 12182(a) “[n]o individual shall be discriminated against 1 on the basis of disability in the full and equal enjoyment of the goods, services, facilities, 2 privileges, advantages, or accommodations of any place of public accommodation by any person 3 who owns, leases (or leases to), or operates a place of public accommodation.” For the purposes 4 of Title III, discrimination includes “a failure to remove architectural barriers . . . in existing 5 facilities . . . where such removal is readily achievable.” 42 U.S.C. § 12182(b)(2)(A)(iv). 6 “Readily achievable” is defined as “easily accomplishable and able to be carried out without much 7 difficulty or expense.” 42 U.S.C. § 12181(9). 8 First, Plaintiff must establish Article III standing to bring a claim under the ADA. To 9 establish Article III standing, Plaintiff must demonstrate he suffered an injury in fact, traceable to 10 Defendants’ conduct, and redressable by a favorable court decision. Ridola, 2018 WL 2287668, at 11 *5 (citing Hubbard v. Rite Aid Corp., 433 F. Supp. 2d 1150, 1162 (S.D. Cal. 2006)). Plaintiff 12 claims that he suffers from a disability within the meaning of the ADA. Compl. ¶ 1. Plaintiff also 13 alleges that he personally encountered the lack of wheelchair accessible outside dining surfaces at 14 Patxi’s Pizza, which is an access barrier under the ADA. Id. ¶ 10–22. Further, Plaintiff claims 15 that he will return to Patxi’s Pizza once its facilities are made accessible. Id. ¶ 27. Because 16 Plaintiff’s factual allegations are accepted as true, and an award of statutory damages and 17 injunctive relief would redress Plaintiff’s alleged injuries, the Court finds that Plaintiff has Article 18 III standing to sue under the ADA. See Vogel v. Rite Aid Corp., 992 F. Supp. 2d 998, 1008 (C.D. 19 Cal. 2014) (“Indeed, ‘[d]emonstrating an intent to return to a non-compliant accommodation is but 20 one way for an injured plaintiff to establish Article III standing to pursue injunctive relief.’ ”) 21 (quoting Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 949 (9th Cir. 2011)). 22 Next, Plaintiff must establish all the elements of a Title III discrimination claim. He must 23 show that (1) he is disabled within the meaning of the ADA; (2) Defendants own, lease, or operate 24 a place of public accommodation; and (3) he was denied public accommodations by Defendants 25 because of his disability. See Molski v. M.J. Cable, Inc., 481 F.3d 724, 730 (9th Cir. 2007). To 26 succeed on an ADA claim based on architectural barriers, Plaintiff “must also prove that: (1) the 27 existing facility presents an architectural barrier prohibited under the ADA; and (2) the removal of 1 the barrier is readily achievable.” Ridola, 2018 WL 2287668, at *5. 2 Under the ADA, a physical impairment that substantially affects a major life activity, such 3 as walking, qualifies as a disability. 42 U.S.C. §§ 12102(1)(A), (2)(A). As noted, Plaintiff is a C- 4 5 quadriplegic who uses a wheelchair for mobility. Compl. ¶ 1. Thus, Plaintiff has established 5 that he has a disability within the meaning of the ADA. 6 With respect to Defendants’ ownership or operation of the place of public accommodation, 7 Plaintiff alleges that Layers and AARAV owned Patxi’s Pizza at the time of Plaintiff’s visits. 8 Compl. ¶¶ 2-5. Plaintiff submitted evidence to substantiate this allegation. Exhibit 5, Dkt. No. 9 29-7; Exhibit 9, Dkt. No. 29-11. Plaintiff alleges that during his visit to Patxi’s Pizza, he 10 personally encountered access barriers with respect to the lack of wheelchair accessible outside 11 dining surfaces and was therefore denied public accommodations by Defendants because of his 12 disability. Compl. ¶¶ 11–12. Specifically, he contends that the lack of sufficient knee and toe 13 clearance beneath the outside dining surfaces violates § 306 of the 2010 ADA Standards. Mot. at 14 8–9. Plaintiff has submitted several photographs that document the violation. See Exhibit 4, Dkt. 15 No. 29-6. Accepting Plaintiff’s allegations as true, the Court finds that Plaintiff has sufficiently 16 established that Patxi’s Pizza has an architectural barrier prohibited under the ADA. 17 Finally, with respect to the requirement that removal of the barriers be “readily 18 achievable,” Plaintiff argues that this question is an affirmative defense that must be pled by the 19 answering party. See Mot. at 12 (citing Wilson v. Haria & Gogri Corp., 479 F. Supp. 2d 1127, 20 1133 (E.D. Cal. 2007)). Accordingly, Plaintiff believes that this affirmative defense has been 21 waived because Defendants have not appeared in this matter. Id. 22 The Ninth Circuit follows a burden-shifting framework to determine who bears the burden 23 of proving that removal of an architectural barrier is readily achievable. See Lopez v. Catalina 24 Channel Express, Inc., 974 F.3d 1030 (9th Cir. 2020). Under this burden-shifting analysis, “the 25 plaintiff bears the initial burden of plausibly showing that a proposal for removing a barrier is 26 readily achievable, and then the defendant bears the ultimate burden of persuasion on an 27 affirmative defense that removal of a barrier is not readily achievable.” In Suk Jun, 2020 WL 1 6507995, at *5 (citing Lopez, 974 F.3d at 1034–39). 2 The Court finds that Plaintiff has met his initial burden of plausibly showing that removal 3 of the identified barrier is readily achievable. Plaintiff alleges that the identified barrier is “easily 4 removed without much difficulty or expense” and that it is the type of barrier “identified by the 5 Department of Justice as presumably readily achievable to remove.” Compl. ¶ 26. Additionally, 6 the Complaint alleges that “there are numerous alternative accommodations” to provide people 7 with disabilities a greater level of access even if Defendants could not achieve a complete removal 8 of barriers. Id. At the default judgment stage, courts have found allegations similar to Plaintiff’s 9 are sufficient. See, e.g., Ridola, 2018 WL 2287668, at *10-*11 (concluding that plaintiff met his 10 burden with respect to defendant’s parking spaces and guestrooms). 11 Because Defendants have not appeared in this action, they necessarily have failed to meet 12 their burden of showing that removal of the identified barrier is not readily achievable. Thus, the 13 Court finds that Plaintiff has established the requisite elements of an ADA claim. 14 b. Unruh Civil Rights Act 15 “Any violation of the ADA necessarily constitutes a violation of the Unruh Act.” Molski, 16 481 F.3d at 731. Because Plaintiff has established an ADA claim based on architectural barriers at 17 Patxi’s Pizza, he has also established an Unruh Act claim as to those barriers. 18 3. Sum of Money in Dispute 19 “When the money at stake in the litigation is substantial or unreasonable, default judgment 20 is discouraged.” Bd. of Trustees v. Core Concrete Const., Inc., No. 11-CV-002532 LB, 2012 WL 21 380304, at *4 (N.D. Cal. Jan. 17, 2012), report and recommendation adopted, No. 11-CV-02532 22 JSW, 2012 WL 381198 (N.D. Cal. Feb. 6, 2012). However, “where the sum of money at stake is 23 tailored to the specific misconduct of the defendant, default judgment may be appropriate.” Id. 24 (citing Bd. of Trustees of the Sheet Metal Workers Health Care Plan of N. Cal. v. Superhall Mech., 25 Inc., No. 10-CV-2212 EMC, 2011 WL 2600898, at *2 (N.D. Cal. June 30, 2011)). 26 Plaintiff seeks statutory damages of $8,000 under the Unruh Act, $3,585 in attorneys’ fees, 27 and $935.50 in costs. The Court reduces the requested fees as discussed below. While the sum 1 awarded is not insignificant, the Court finds that it is proportional to the conduct alleged and that 2 this factor weighs in favor of default judgment. 3 4. Possibility of Dispute Concerning Material Facts 4 Under the fifth and sixth Eitel factors, the Court considers whether there is a possibility of 5 a dispute over material facts and whether Defendants’ failure to respond was the result of 6 excusable neglect. Eitel, 782 F.2d at 1471-72; Love v. Griffin, No. 18-CV-00976 JSC, 2018 WL 7 4471073, at *5 (N.D. Cal. Aug. 20, 2018), report and recommendation adopted, No. 18-CV- 8 00976-JD, 2018 WL 4471149 (N.D. Cal. Sept. 17, 2018); Ridola, 2018 WL 2287668, at *13. 9 The First Amended Complaint asserts plausible claims for violations of the ADA and the 10 Unruh Act, and all liability-related allegations are deemed true. See TeleVideo Systems, Inc., 826 11 F.2d at 917–18 (quoting Geddes v. United Fin. Grp., 559 F.2d 557, 560 (9th Cir. 1977)) (“The 12 general rule of law is that upon default the factual allegations of the complaint . . . will be taken as 13 true.”). Thus, there are no disputes as to Plaintiff’s allegations. 14 Defendants were served with the First Amended Complaint, the Motions for Entry of 15 Default, and the Application for Default Judgment. Dkt. Nos. 20, 21, 23, 24, 29. Despite being 16 properly served, Defendants have not appeared. Thus, there is no indication that Defendants’ 17 default was due to excusable neglect. See In Suk Jun, 2020 WL 6507995, at *6 (finding that 18 defendants’ failure to appear suggests that they chose not to present a defense). 19 Accordingly, the fifth and sixth Eitel factors weigh in favor of default judgment. 20 5. Strong Policy Favoring Decisions on the Merits 21 The last Eitel factor examines whether the policy of deciding a case based on the merits 22 precludes entry of default judgment. Eitel, 782 F.2d at 1472. In Eitel, the Ninth Circuit 23 admonished that “[c]ases should be decided on their merits whenever reasonably possible.” Id. 24 “The existence of Federal Rule of Civil Procedure 55(b), however, shows that this policy is not 25 dispositive.” McMillan Data Commc’ns, Inc. v. AmeriCom Automation Servs., Inc., No. 14-CV- 26 03127 JD, 2015 WL 4380965, at *11 (N.D. Cal. July 16, 2015) (citing Kloepping v. Fireman’s 27 Fund, No. C 94-2684 TEH, 1996 WL 75314, at *3 (N.D. Cal. Feb. 13, 1996)). Moreover, a 1 defendant’s failure to appear renders a decision on the merits impracticable, if not impossible. 2 Craigslist, Inc. v. Naturemarket, Inc., 694 F. Supp. 2d 1039, 1061 (N.D. Cal. 2010) (citation and 3 quotation marks omitted). 4 Defendants’ failure to participate in the proceedings makes a decision on the merits 5 impracticable. “In situations such as this, Rule 55(b) allows the court to grant default judgment.” 6 Bd. of Trustees v. Diversified Concrete Cutting, Inc., No. 17-CV-06938 MEJ, 2018 WL 3241040, 7 at *5 (N.D. Cal. July 3, 2018), report and recommendation adopted sub nom. Bd. of Trustees as 8 Trustees of Laborers Health & Welfare Tr. Fund for N. Cal. v. Diversified Concrete Cutting, Inc., 9 No. 17-CV-06938-RS, 2018 WL 4775429 (N.D. Cal. July 27, 2018). As such, the seventh Eitel 10 factor weighs in favor of default judgment. 11 After considering all seven Eitel factors and the circumstances of this case, the Court finds 12 that default judgement is warranted and GRANTS Plaintiff’s Application for Default Judgment 13 against Defendants. 14 D. Relief Requested 15 Because this Court concludes that default judgment is warranted, it now considers 16 Plaintiff’s request for injunctive relief, statutory damages under the Unruh Act, and attorneys’ fees 17 and costs. 18 1. Injunctive Relief 19 Plaintiff seeks an order requiring Defendants to provide wheelchair accessible outside 20 dining surfaces at Patxi’s Pizza. Mot. at 15; see also Proposed Order, Dkt. No. 29-12. Aggrieved 21 individuals “may obtain injunctive relief against public accommodations with architectural 22 barriers, including ‘an order to alter facilities to make such facilities readily accessible to and 23 usable by individuals with disabilities.’ ” Molski, 481 F.3d at 730 (quoting 42 U.S.C. § 24 12188(a)(2)). Injunctive relief is also available under the Unruh Act. See Cal. Civ. Code § 52.1. 25 “The standard requirements for equitable relief need not be satisfied when an injunction is sought 26 to prevent the violation of a federal statute that specifically provides for injunctive relief.” 27 Antoninetti v. Chipotle Mexican Grill, Inc., 643 F.3d 1165, 1175-76 (9th Cir. 2010) (citations 1 omitted). Thus, injunctive relief is proper under the ADA where the plaintiff establishes that 2 “architectural barriers at the defendant’s establishment violate the ADA and the removal of the 3 barriers is readily achievable.” Ridola, 2018 WL 2287668, at *13 (citing Moreno v. La Curacao, 4 463 F. App’x 669, 670 (9th Cir. 2011)). 5 As discussed above, Plaintiff has shown that he is entitled to injunctive relief with respect 6 to the wheelchair accessible outside dining surfaces at Patxi’s Pizza. Therefore, the Court 7 GRANTS his request for injunctive relief. 8 2. Statutory Damages 9 Plaintiff seeks $8,000 in statutory damages for Defendants’ violation of the Unruh Act. 10 The Unruh Act provides a minimum statutory damages award of $4,000 for each violation. Cal. 11 Civ. Code § 52(a). Plaintiff “need not prove [he] suffered actual damages to recover the 12 independent statutory damages of $4,000” per violation. Molski, 481 F.3d at 731. “Any violation 13 of the ADA necessarily constitutes a violation of the Unruh Act.” Id. at 731 (citing Unruh Act, 14 Cal. Civ. Code § 51(f)). 15 Plaintiff has sufficiently pled that the outside dining surfaces at Patxi’s Pizza did not meet 16 ADA standards. This barrier constitutes a violation of the Unruh Act. Therefore Plaintiff is 17 entitled to statutory damages. However, the requested $8,000 ($4,000 for each Defendant) is not 18 warranted. See e.g., Love v. Thompson, No. 19-CV-01285 KAW, 2021 WL 6882379, at *6 (N.D. 19 Cal. Feb. 19, 2021), report and recommendation adopted, 2021 WL 6882388, at *1 (N.D. Cal. 20 Apr. 2, 2021) (awarding $4,000 in statutory damages against defendants jointly and severally); 21 Johnson v. Singh, No. 17-CV-00368 TLN, 2020 WL 4059551, at *1 (E.D. Cal. July 20, 2020) 22 (same). 23 Plaintiff is awarded $4,000 in statutory damages against Defendants Layers and AARAV 24 jointly and severally. 25 3. Attorneys’ Fees 26 Plaintiff requests $3,585 in attorneys’ fees. Both the ADA and the Unruh Act permit 27 recovery of fees by a prevailing plaintiff. 42 U.S.C. § 12205; Cal. Civ. Code § 55. Such fee- 1 shifting statutes “enable private parties to obtain legal help in seeking redress for injuries resulting 2 from actual or threatened violation of specific . . . laws.” Pennsylvania v. Del. Valley Citizens’ 3 Council for Clean Air, 478 U.S. 546, 565 (1986), supplemented, 483 U.S. 711 (1987). Recovery 4 statutes, however, are not intended “to punish or reward attorneys.” Van Gerwen v. Guarantee 5 Mut. Life Co., 214 F.3d 1041, 1047 (9th Cir. 2000). To calculate recoverable fees, both federal 6 and state courts look to the lodestar method. See Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); 7 Ketchum v. Moses, 24 Cal. 4th 1122, 1132 (2001). The court arrives at this figure by multiplying 8 the number of hours reasonably expended by a reasonable hourly rate. Hensley, 461 U.S. at 433; 9 Ketchum, 24 Cal. 4th at 1132. 10 a. Hourly Rate 11 Plaintiff is represented by attorneys with Potter Handy LLP (also known as the Center for 12 Disability Access). Counsel’s billing rates are: $650/hour for Mark Potter and Russell Handy; 13 $500/hour for Amanda Seabock and Isabel Masanque; and $400/hour for Tehniat Zaman. 14 Declaration of Russell Handy in Support of Plaintiff’s Application for Default Judgment (“Handy 15 Decl.”), Dkt. No. 29-3. Plaintiff’s counsel asserts that these rates fall within the median market 16 for attorneys in the Northern District of California with similar qualifications, offering the 2010 17 Pearl Declaration, the 2020 Real Rate Report, and the 2019 O’Connor Declaration in support. 18 Dkt. Nos. 29-8, 29-9, 29-10. 19 The evidence Potter Handy has submitted to support its requested rates is not persuasive. 20 The 2010 Pearl Declaration is outdated, the 2020 Real Rate Report is not focused on the market 21 for ADA legal work, and the O’Connor Declaration identifies a range of rates without establishing 22 that Potter Handy LLP’s rates should fall on the higher end of that range. Moreover, numerous 23 judges in this district have held that Potter Handy’s requested rates are unreasonably high, given 24 the routine and formulaic nature of the ADA cases litigated by the firm. Rather, courts in this 25 district have routinely awarded $475 an hour to partners in ADA cases, $350 an hour to 26 experienced associates, and $250 an hour to new associates. See, e.g., Whitaker v. D.S.A. Sports, 27 Inc., No. 21-CV-8770 BLF, 2022 WL 4280639, at *6 (N.D. Cal. Sept. 15, 2022); Johnson v. 1 Ramirez, No. 20-CV-04359 TSH, 2022 WL 1019554, at *12 (N.D. Cal. Mar. 15, 2022), report and 2 recommendation adopted, No. 20-CV-04359 SI, 2022 WL 1016573 (N.D. Cal. Apr. 5, 2022); 3 Garcia v. Woldemichael, No. 21-CV-05079 DMR, 2022 WL 3590328, at *10 (N.D. Cal. Aug. 22, 4 2022); Whitaker v. Ngin, No. 21-CV-03087 AGT, 2022 WL 4540989, at *2 (N.D. Cal. Aug. 26, 5 2022), report and recommendation adopted, No. 21-CV-3087 VC, 2022 WL 4544197 (N.D. Cal. 6 Sept. 28, 2022); Johnson v. Izaan, LLC, No. 21-CV-02664 JD, 2022 WL 4624788, at *3 (N.D. 7 Cal. Sept. 30, 2022); Johnson v. Lo, No. 20-CV-06096 PJH, 2021 WL 5236552, at *4 (N.D. Cal. 8 Oct. 21, 2021); Johnson v. Nuoc Mia Vien Dong 2, LLC, No. 21-CV-01618 CRB, 2021 WL 9 3271232, at *5 (N.D. Cal. July 30, 2021); Johnson v. Patel, No. 18-CV-00211 MMC, 2020 WL 10 1865304, at *5-6 (N.D. Cal. Apr. 14, 2020). The Court finds the analyses in the cases above 11 persuasive and accordingly will award $475/hour (not $650/hour) for Mark Potter, $350/hour (not 12 $500/hour) for Amanda Seabock and Isabel Masanque, and $250/hour (not $400/hour) for Tehniat 13 Zaman. There is no information regarding biller Adrian Slipski’s legal education; therefore, the 14 Court assumes this biller is a legal assistant or paralegal. 15 As for the rate billed by counsel’s legal assistants and paralegals including Marcus Handy, 16 the requested $100/hour is reasonable. See Johnson v. Lo, No. 20-CV-06096 PJH (AGT), 2021 17 WL 5236552, at *4 (N.D. Cal. Oct. 21, 2021) (holding in another ADA case that $100/hour was a 18 reasonable rate for all of Potter Handy’s paralegals) (citing Johnson v. Shahkarami, No. 20-CV- 19 07263 BLF, 2021 WL 1530940, at *10 (N.D. Cal. Apr. 19, 2021)). 20 b. Hours Billed 21 The Court has reviewed the collective 13.5 hours billed by the attorneys and staff in this 22 matter and finds that the requested hours for legal assistants and other staff are excessive. It was 23 inefficient for more than ten legal assistants and other staff to have worked on this relatively 24 straightforward case. Therefore, the Court will only award 4.6 of the 9.2 hours requested for legal 25 assistants and staff. Using the reasonable rates outlined above and the hours invoiced, the Court 26 awards attorneys’ fees of $1,897.50 as detailed below. 27 Attorney/Staff Total Time Hourly Rate Amount 1 M. Potter 0.5 $475 $237.50 2 A. Seabock 0.1 $350 $35.00 3 I. Masanque 1.5 $350 $525.00 4 T. Zaman 2.2 $250 $550.00 5 Staff 4.6 $100 $460.00 6 Total 8.9 $1,807.50 7 4. Costs 8 Section 505 of the ADA authorizes reasonable “litigation expenses and costs” in any action 9 brought under the Act. 42 U.S.C. § 12205. This includes all costs normally associated with 10 litigation including investigative costs. Lovell v. Chandler, 303 F.3d 1039, 1058 (9th Cir. 2002). 11 Plaintiff seeks $933.50 in costs2 consisting of $402 in filing fees, $400 in investigation costs, and 12 $131.50 in service costs. 13 The filing fee and service costs are documented. See Dkt. Nos. 1 ($402 filing fee), 20 ($35 14 service fee), No. 21 ($96.50 service fee). The investigation costs, however, are not adequately 15 documented. Investigator Randall Marquis attests to visiting Patxi’s Pizza, measuring the knee 16 clearance for wheelchair users and taking photographs, but does not indicate how long this 17 assessment took or provide an hourly rate. See Dkt. No. 29-5. In the absence of any other 18 information, the Court will reduce the investigation costs to $100 to account for one hour to visit 19 Patxi’s Pizza to take measurements and photograph at the rate of $100/hour. 20 The Court therefore awards $633.50 in costs. 21 IV. CONCLUSION 22 For the reasons stated above, the Application for default judgment as to Defendants Layers 23 and AARAV is GRANTED in part. 24 Plaintiff is awarded statutory damages in the amount of $4,000, attorneys’ fees in the 25 amount of $1,807.50, and costs in the amount of $633.50, for a total judgment of $6,441 for which 26

27 2 The $935.50 stated on page 22 of the Application appears to be a typographical error. 1 Defendants are liable jointly and severally. 2 Plaintiff's request for injunctive relief is GRANTED. To the extent that they have the legal 3 || right and ability to do so, Defendants are hereby ordered to provide wheelchair accessible outside 4 dining surfaces at Patxi’s Pizza located at 441 Emerson Street, Palo Alto, California, in 5 || compliance with the Americans with Disabilities Act Accessibility Guidelines no later than six 6 || months after service of this injunction. 7 IT IS SO ORDERED. 8 Dated: October 25, 2022 9

EDWARD J. DAVILA

10 United States District Judge 11 a 12

15 16

= 17

Z 18

19 20 21 22 23 24 25 26 27 28 || Case No.: 5:21-cv-05929-EJD

ORDER GRANTING IN PART MOTION FOR DEFAULT JUDGMENT