Johnson v. Atwal et al

Filing 22

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 1/29/2020 RECOMMENDING that 18 Motion for Default Judgment be Granted; that Judgment be entered against defendants Avtar Atwal, Sukhwinder Kaur, Khader Habibeh, and Nancy Ha bibeh; that defendants be ordered to pay $4,000 in statutory damages; that defendants be ordered to correct the violation at the property identified in plaintiff's complaint, to the extent that defendants have the legal right to do so, so that the facility is readily accessible to and usable by individuals with disabilities; that defendants be ordered to pay plaintiff $3,980 in attorneys' fees and costs; and that this case be Closed. Referred to Judge Morrison C. England, Jr. Objections due within 14 days of the filing of these findings and recommendations. (Coll, A)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

SCOTT JOHNSON,

12

Plaintiff,

13
14

No. 2:17-cv-1546 MCE DB

v.
AVTAR ATWAL, et al.,

15

FINDINGS AND RECOMMENDATIONS

Defendants.

16
17

Pending before the court is plaintiff Scott Johnson’s motion for default judgement against

18

defendants Avtar Atwal, Sukhwinder Kaur, Khader Habibeh, and Nancy Habibey. (ECF No. 18.)

19

This motion came on for hearing before the undersigned on July 26, 2019. (ECF No. 20.)

20

Attorney Bradley Smith appeared on behalf of plaintiff. No appearance was made by, or on

21

behalf of a defendant.
Having considered all written materials submitted with respect to the motion, and after

22
23

hearing oral argument, the undersigned recommends that plaintiff’s motion be granted.
BACKGROUND

24

Plaintiff Scott Johnson initiated this action through counsel on July 26, 2017, by filing a

25
26

complaint and paying the required filing fee. (ECF No. 1.) The complaint alleges that plaintiff is

27

a “level C-5 quadriplegic” who “uses a wheelchair for mobility and has a specially equipped

28

////
1

1

Van.” (Compl. (ECF No. 1) at 1.1) Defendants Avtar Atwal, Sukhwinder Kaur, Khader Habibeh,

2

and Nancy Habibeh owned real property located at 7454 Stockton Blvd, Sacramento, California

3

during the relevant period. (Id. at 2.)

4

On seven occasions between September 2015 and March 2016, plaintiff went to the

5

property to eat at a restaurant open to the public.2 (Id. at 3.) The restaurant did not have “a single

6

accessible parking space marked and reserved for persons with disabilities.” (Id.) Plaintiff lives

7

in, regularly shops, and regularly eats in the area. (Id. at 4.) Plaintiff has been deterred from

8

returning to the property but will return “once the barriers are removed.” (Id.)

9

Pursuant to these allegations, the complaint alleges the defendants violated the Americans

10

with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq., (“ADA”), and the Unruh Civil Rights

11

Act, California Civil Code § 51, (“Unruh Act”). (Id. at 5-8.) Plaintiff filed proof of service on

12

defendants Avtar Atwal and Khader Habibeh on September 4, 2017. (ECF Nos. 4 & 5.) On

13

September 26, 2017, plaintiff filed a request for entry of default as to those defendants. (ECF

14

Nos. 6 & 7.) The Clerk entered default for each defendant thereafter. (ECF Nos. 8 & 9.)

15

On October 4, 2017, and October 5, 2017, plaintiff filed proof of service on defendants

16

Sukhwinder Kaur and Nancy Habibeh. (ECF Nos. 10 & 11.) Plaintiff requested entry of default

17

for each of these defendants and the Clerk, thereafter, entered default for each of these

18

defendants. (ECF Nos. 13-16.) On June 21, 2019, plaintiff filed the pending motion for default

19

judgment. (ECF No. 18.) Plaintiff’s motion seeks injunctive relief, statutory damages of $4,000,

20

and attorneys’ fees and costs in the amount of $4,910. (Id. at 2.)

21

The motion came for hearing before the undersigned on July 26, 2019. (ECF No. 20.)

22

Despite being served with notice of the motion and hearing, no defendant appeared at the hearing

23

or filed an opposition to plaintiff’s motion for default judgement. (ECF No. 18-8.)

24

////

25
26
27

Page number citations such as this are to the page number reflected on the court’s CM/ECF
system and not to the page numbers assigned by the parties.
1

According to plaintiff’s motion for default judgment the restaurant was named Taqueria Mi
Estrella. (Pl.’s MDJ (ECF No. 18-1) at 6.)
2
2

28

1

LEGAL STANDARD

2

Federal Rule of Civil Procedure 55(b)(2) governs applications to the court for default

3

judgment. Upon entry of default, the complaint’s factual allegations regarding liability are taken

4

as true, while allegations regarding the amount of damages must be proven. Dundee Cement Co.

5

v. Howard Pipe & Concrete Prods., 722 F.2d 1319, 1323 (7th Cir. 1983) (citing Pope v. United

6

States, 323 U.S. 1 (1944); Geddes v. United Fin. Group, 559 F.2d 557 (9th Cir. 1977)); see also

7

DirectTV v. Huynh, 503 F.3d 847, 851 (9th Cir. 2007); TeleVideo Sys., Inc. v. Heidenthal, 826

8

F.2d 915, 917-18 (9th Cir. 1987).

9

Where damages are liquidated, i.e., capable of ascertainment from definite figures

10

contained in documentary evidence or in detailed affidavits, judgment by default may be entered

11

without a damages hearing. Dundee, 722 F.2d at 1323. Unliquidated and punitive damages,

12

however, require “proving up” at an evidentiary hearing or through other means. Dundee, 722

13

F.2d at 1323-24; see also James v. Frame, 6 F.3d 307, 310-11 (5th Cir. 1993).
Granting or denying default judgment is within the court’s sound discretion. Draper v.

14
15

Coombs, 792 F.2d 915, 924-25 (9th Cir. 1986); Aldabe v. Aldabe, 616 F.2d. 1089, 1092 (9th Cir.

16

1980). The court is free to consider a variety of factors in exercising its discretion. Eitel v.

17

McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). Among the factors that may be considered by

18

the court are

19

(1) the possibility of prejudice to the plaintiff, (2) the merits of
plaintiff’s 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 underlying the Federal
Rules of Civil Procedure favoring decisions on the merits.

20
21
22

Eitel, 782 F.2d at 1471-72 (citing 6 Moore’s Federal Practice ¶ 55-05[2], at 55-24 to 55-

23
24

26).

25
26
27
28

ANALYSIS
A.

Appropriateness of the Entry of Default Judgment under the Eitel Factors
Plaintiff’s motion for default judgement seeks judgement on the two claims presented in

the complaint: a cause of action under Title III of the Americans with Disabilities Act, and a
3

1

cause of action under the California Unruh Civil Rights Act. (Pl.’s MDJ (ECF No. 18-1) at 7-12.)

2

The factual allegations of plaintiff’s complaint are taken as true pursuant to the entry of default

3

against the defendant.

4

1.

Factor One: Possibility of Prejudice to Plaintiff

5

The first Eitel factor considers whether plaintiff would suffer prejudice if default

6

judgment is not entered. When a defendant has failed to appear and defend the claims, a plaintiff

7

will be without recourse and suffer prejudice unless default judgment is entered. Vogel v. Rite

8

Aid Corp., 992 F.Supp.2d 998, 1007 (C.D. Cal. 2014) (granting a default judgement for a

9

disabled plaintiff suing under the ADA and Unruh Act, relying upon this rationale). Here, the

10

defendants have failed to appear and defend against plaintiff’s claims of discrimination under the

11

ADA and the Unruh Act. Absent entry of default judgement, plaintiff would likely be without

12

recourse against the defendants. Because plaintiff will suffer prejudice if left without recourse,

13

this factor favors an entry of default judgment.

14
15

2.

Factors Two and Three: The Merits of Plaintiff’s Substantive Claims and the

Sufficiency of the Complaint

16

The second and third factors are (1) the merits of plaintiff’s substantive claim, and (2) the

17

sufficiency of the complaint. Eitel, 782 F.2d at 1471-72. Thus, the second and third Eitel factors

18

require plaintiff to state a claim on which plaintiff can recover. PepsiCo, Inc. v. California

19

Security Cans, 238 F.Supp.2d, 1172, 1175 (2002); see Danning v. Lavine, 572 F.2d 1386, 1388

20

(9th Cir. 1978). Given the close relationship between the two inquiries, factors two and three are

21

considered together. As noted above, plaintiff seeks default judgment on the complaint’s claims

22

of discrimination in violation of Title III of the Americans with Disabilities Act and

23

discrimination in violation of the Unruh Civil Rights Act.

24
25

(1)

Title III of the ADA
(a)

Applicable Legal Standards under the ADA

26

Title III of the ADA prohibits discrimination against an individual “on the basis of

27

disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages,

28

or accommodations of any place of public accommodation . . . .” Roberts v. Royal Atlantic
4

1

Corp., 542 F.3d 363, 368 (2nd Cir. 2008); U.S.C. § 12182(a). Generally, the concept of

2

“discrimination” under the ADA not only includes obviously exclusionary conduct — such as a

3

sign stating that persons with disabilities are unwelcome, but also extends to more subtle forms of

4

discrimination — such as difficult-to-navigate restrooms and hard-to-open doors—that interfere

5

with disabled individuals’ “full and equal enjoyment” of places of public accommodation.

6

Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 945 (9th Cir. 2011); PGA Tour, Inc. v.

7

Martin, 532 U.S. 661, 674-75 (2001). With respect to existing facilities, discrimination includes

8

“a failure to remove architectural barriers … where such removal is readily achievable.” 42

9

U.S.C. § 12182(b)(2)(A).
To determine if a barrier exists, the ADAAG3 establishes the technical standards. If a

10
11

barrier violates these standards relating to a plaintiff’s disability, it will impair the plaintiff’s full

12

and equal access, which constitutes “discrimination” under the ADA. Chapman, 631 F.3d at 947;

13

Doran v. 7–Eleven, Inc., 524 F.3d 1034, 1034 (9th Cir. 2008). Removal is readily achievable

14

where it is “easily accomplishable and able to be carried out without much difficulty or expense.”

15

42 U.S.C. § 1218(9).

16

To prevail on a Title III ADA claim, plaintiff must establish that (1) plaintiff is disabled

17

within the meaning of the ADA; (2) that defendant owns, leases, or operates a place of public

18

accommodation; and (3) that defendant discriminated against the plaintiff within the meaning of

19

the ADA. Chapman, 631 F.3d at 950. For an ADA plaintiff to establish Article III standing to

20

pursue injunctive relief, plaintiff must demonstrate the threat of a future repeated injury is real

21

and immediate. Id. at 946.

22

To demonstrate sufficient likelihood of future harm, a plaintiff can establish that plaintiff

23

intends to return to a noncompliant place of public accommodation where plaintiff is “likely to

24

reencounter a discriminatory architectural barrier.” Id. at 950. Alternatively, a plaintiff

25

////

26

3

27
28

The ADA Accessibility Guidelines (ADAAG) are promulgated by the Attorney General to
“carry out the provisions” of the ADA, 42 U.S.C. § 12186(b). These guidelines “lay out the
technical structural requirements of places of public accommodation.” Fortyune v. Am. Multi–
Cinema, Inc., 364 F.3d 1075, 1080-81 (9th Cir. 2004).
5

1

can show that the “discriminatory architectural barriers deter him from returning to a

2

noncompliant accommodation,” but that plaintiff would return if the barriers were removed. Id.

3

(b)

4

Analysis

In the instant case, plaintiff established standing under the intent-to-return theory. In this

5

regard, the complaint alleges that plaintiff lives in the area, “regularly shops and eats in the area,”

6

and “would like to return and patronize the Restaurant but will be deterred from visiting until the

7

defendants cure the violation.” (Compl. (ECF No. 1) at 4.) Thus, plaintiff has standing because

8

plaintiff has suffered an injury-in-fact, and has demonstrated a likelihood of future injury

9

sufficient to support injunctive relief. Chapman, 631 F.3d at 947.

10

As to the merits of the ADA claim, there is little dispute that the first two requirements

11

have been met. Plaintiff alleges in the complaint that plaintiff “is a level C-5 quadriplegic. He

12

cannot walk and also has significant manual dexterity impairments. He uses a wheelchair for

13

mobility and has a specially equipped van.” (Compl. (ECF No. 1) at 1.) There can be little doubt

14

that plaintiff is “disabled” within the meaning of the ADA. See 42 U.S.C. § 12102 (defining

15

“disability” as “a physical or mental impairment that substantially limits one or more major life

16

activities of such individual.”).
In addition, plaintiff alleges that the restaurant found on the property “is a facility open to

17
18

the public, a place of public accommodation, and a business establishment” and that the

19

defendants owned the restaurant during the period when plaintiff visited. (Compl. (ECF No. 1)

20

at 2-3.) A restaurant is expressly identified as a place of public accommodation and subject to

21

Title III of the ADA. See 42 U.S.C. § 12181 (7)(B).

22

With respect to the third element, whether defendant discriminated against plaintiff, the

23

factual allegations of the complaint establish that defendants’ property had “no accessible parking

24

spaces marked and reserved for persons with disabilities in the parking lot serving the Restaurant

25

during any of plaintiff’s visits.” (Compl. (ECF No. 1) at 3.) The ADAAG requires parking

26

spaces marked for individuals with disabilities to have access aisles. 2010 Standards § 502.1.

27

////

28

////
6

1

ADAAG also requires access aisles to be at the same level as the parking space they serve. 2010

2

Standards § 502.4. Here the failure to provide an accessible parking space is a barrier, thus

3

constituting discrimination.4 See Estrada v. South Street Property, LLC, No. 2:17–CV–00259

4

CAS JCx, 2017 WL 3461290, at *4 (C.D. Cal. Aug. 11, 2017) (“[L]ack of accessible parking

5

spaces constitutes an architectural barrier under the ADA.”).
Finally, the complaint alleges defendants “exercised control and dominion over the

6
7

conditions at this location,” defendants “had the means and ability to make the change,” and the

8

identified violations “are easily removed without much difficulty or expense.” (Compl. (ECF No.

9

1) at 4 & 5.) Therefore, removal of these barriers is “readily achievable” by defendants, and

10

defendants’ failure to do so constitutes “discrimination” under the ADA. 42 U.S.C. §

11

12182(b)(2)(A).

12

Accordingly, the elements of the ADA claim are satisfied, and plaintiff has met the burden

13

to state a prima facie Title III discrimination claim. The second and third Eitel factors thus favor

14

the entry of default judgment. See Lozano v. C.A. Martinez Family Ltd. Partnership, 129

15

F.Supp.3d 967, 972-73 (S.D. Cal. 2015); Vogel v. Rite Aid Corp., 992 F.Supp.2d 998, 1009-10

16

(C.D. Cal. 2014).

17

(2)

California’s Unruh Civil Rights Act

The Unruh Civil Rights Act provides: “All persons within the jurisdiction of this state are

18
19

free and equal, and no matter what their sex, race, color, religion, ancestry, national origin,

20

disability, medical condition, genetic information, marital status, or sexual orientation are entitled

21

to the full and equal accommodations, advantages, facilities, privileges, or services in all business

22

establishments of every kind whatsoever.” Cal. Civ. Code § 51(b). As expressly provided by

23

statute, a violation of the ADA also constitutes a violation of the Unruh Civil Rights Act. Cal.

24

Civ. Code § 51 (f); see also Munson v. Del Taco, Inc., 46 Cal. 4th 661, 664-65 (Cal. 2009). Here,

25

because plaintiff’s complaint alleges a prima facie claim under the ADA, plaintiff has also alleged

26

facts supporting a claim under the Unruh Civil Rights Act.

27
4

28

Barriers are determined by reference to the ADA Accessibility Guidelines (ADAAG).
Chapman, 631 F.3d 939, 945. The ADAAG are listed in 36 CFR Appendix D to Part 1191.
7

1

3.

Factor Four: The Sum of Money at Stake in the Action

2

Under the fourth factor cited in Eitel, “the court must consider the amount of money at

3

stake in relation to the seriousness of Defendant’s conduct.” Eitel, 782 F.2d at 1471-72; see also

4

Philip Morris USA, Inc v. Castworld Prods., Inc., 219 F.R.D. 494, 500. (C.D. Cal. 2003). In this

5

case, plaintiff seeks injunctive relief; statutory damages of $4,000 under the Unruh Civil Rights

6

Act; and attorney’s fees and costs in the amount of $4,910, for a total award of $8,910. (Pl.’s

7

Compl. (ECF No. 1) at 8; Pl.’s MDJ (ECF No. 8-1) at 2.) Although the undersigned more closely

8

scrutinizes the requested statutory damages, attorney’s fees and costs below, the undersigned does

9

not find the overall sum of money at stake to be so large or excessive as to militate against the

10

entry of default judgment.

11

4.

Factor Five: The Possibility of a Dispute Concerning Material Facts

12

This Eitel factor considers the possibility that material facts are disputed. “Upon entry of

13

default, all well-pleaded facts in the complaint are taken as true, except those relating to

14

damages.” PepsiCo, Inc., 238 F.Supp.2d at 1177. Here, there appears to be no material facts in

15

dispute. This factor weighs in favor of a default judgment.

16

5.

Factor Six: Whether the Default Was Due to Excusable Neglect

17

This Eitel factor considers the possibility that the defendant’s default was the result of

18

excusable neglect. Despite having been properly served with plaintiff’s complaint, the requests

19

for entry of default, and the instant motion for default judgment, defendants have been non-

20

responsive in this action. (ECF Nos. 4, 5, 8, 9, 13-2, 15-2, and 18-8.) Thus, the record suggests

21

that the defendants have chosen not to defend this action, and that the default did not result from

22

excusable neglect. Accordingly, this Eitel factor favors the entry of default judgment.

23

6.

Factor Seven: The Strong Policy Underlying the Federal Rules of Civil

24

Procedure Favoring Decisions on the Merits

25

The final Eitel factor examines whether the strong policy favoring deciding cases on the

26

merits prevents a court from entering default judgment. Eitel, 782 F.2d at 1472. Generally,

27

default judgments are disfavored, and a case should be decided on the merits whenever possible.

28

See Pena v. Seguros La Comercial, S.A., 770 F.2d 811, 814 (9th Cir. 1985). However, where a
8

1

defendant’s failure to appear “makes a decision on the merits impracticable, if not impossible,”

2

entry of default judgment is warranted. PepsiCo, Inc., 238 F.Supp.2d at 1177; see also Craigslist,

3

Inc. v. Naturemarket, Inc., 694 F.Supp.2d 1039, 1061 (N.D. Cal. 2010). Because the defendants

4

have failed to respond in this matter, a decision on the merits is impossible. Therefore, the

5

seventh Eitel factor does not preclude the entry of default judgment.

6

7.

Summary of Eitel Factors

7

In sum, upon consideration of all the Eitel factors, the undersigned finds that plaintiff is

8

entitled to a default judgment against defendants and recommends that such a default judgment be

9

entered. The undersigned therefore turns to plaintiff’s requested damages and injunctive relief.

10

B.

Terms of the Judgment to Be Entered

11

1.

Injunctive Relief

12

After determining that a party is entitled to entry of default judgment, the court must

13

determine the terms of the judgment to be entered. See Landstar Ranger, Inc. v. Path Enterprises,

14

Inc., 725 F.Supp.2d 916, 920 (C.D. Cal. 2010.). Plaintiff’s motion for default judgment seeks

15

injunctive relief. (Pl.’s MDJ (ECF No. 18-7) at 2.) Injunctive relief may be granted “when

16

architectural barriers at defendant’s establishment violate the ADA . . . .” Vogel, 992 F.Supp.2d

17

at 1015.

18

Having found that plaintiff has established that defendant violated the ADA, the

19

undersigned recommends that plaintiff’s request for injunctive relief be granted, and defendants

20

be ordered to remove the barriers at the property identified in plaintiff’s complaint, to the extent

21

the defendants have the legal right to do so, so that the facility is readily accessible to and usable

22

by individuals with disabilities. See Vogel, 992 F.Supp.2d at 1015.

23

2.

Statutory Damages

24

The Unruh Act provides that a plaintiff subjected to discrimination is entitled to recover

25

$4,000 for each occasion on which the plaintiff was denied equal access. Cal. Civ. Code § 52(a).

26

To recover statutory damages, a plaintiff need only show that plaintiff was denied full and equal

27

access, not that plaintiff was wholly excluded from enjoying defendant’s services. Vogel, 992

28

F.Supp.2d at 1015; Hubbard v. Twin Oaks Health and Rehabilitation Center, 408 F.Supp.2d 923,
9

1

932 (E.D. Cal. 2004). “A plaintiff is denied full and equal access only if the plaintiff personally

2

encountered the violation on a particular occasion, or the plaintiff was deterred from accessing a

3

place of public accommodation on a particular occasion.” Cal. Civ. Code § 55.56(b).

4

In support of the request for $4,000 in statutory damages, plaintiff has submitted a

5

declaration stating that plaintiff went to the restaurant “[o]n a number of occasions” from

6

September 2015 through March of 2016[.]” (Pl.’s Decl. (ECF No. 18-4) at 3.) This statement is

7

sufficient to support the award damages for the single violation sought by plaintiff. Accordingly,

8

the undersigned recommends that plaintiff be awarded $4,000 in statutory damages.

9

3.

Attorney’s Fees and Costs

Plaintiff’s motion for default judgment seeks an award of $4,910 in attorney’s fees and

10
11

costs. (Pl.’s MDJ (ECF No. 18-1) at 12.) Pursuant to 42 U.S.C. § 12205, a party that prevails on

12

claims brought under the ADA may recover reasonable attorney’s fees and costs in the court’s

13

discretion. Here, plaintiff requests $720 in filing fees, service, and investigator costs, which are

14

reasonable and should be awarded. (Price Decl. (ECF No. 18-3) at 8.)

15

Plaintiff also requests $4,190 in attorney fees for 12.4 hours of work. (Id. at 11.) To

16

determine reasonable attorney’s fees, the starting point is “the number of hours reasonably

17

expended on the litigation multiplied by a reasonable hourly rate.” Hensley v. Eckerhart, 461

18

U.S. 424, 433 (1933). This is called the “loadstar” method. The fee applicant must submit

19

evidence of the hours worked and the rates claimed. Id.

20

(1)

Reasonable Hourly Rates

In assessing application for attorney’s fees, the reasonable hourly rates are to be calculated

21
22

according to the prevailing market rates in the relevant legal community. Blum v. Stenson, 465

23

U.S. 886, 895 (1984); see also Ingram v. Oroudjian, 647 F.3d 925, 928 (9th Cir. 2011). It is also

24

the general rule that the “relevant legal community” is the forum in which the district court sits.

25

See Gonzalez v. City of Maywood, 729 F.3d 1196, 1205 (9th Cir. 2013); Prison Legal News v.

26

Schwarzenegger, 608 F.3d 446, 454 (9th Cir. 2010); Gates v. Rowland, 39 F.3d 1439, 1449 (9th

27

Cir. 1994); Gates v. Deukmejian, 987 F.2d 1392, 1405 (9th Cir. 1992).

28

////
10

1

Here, plaintiff requests attorney fees at hourly rates of $350 and $275. (Price Decl. (ECF

2

No. 18-3) at 6.) Plaintiff’s request is supported by a declaration from plaintiff’s attorney Dennis

3

Price. The declaration asserts that attorney Mark Potter is the founding member of his law firm

4

and that he has 25 years of experience handling disability related issues. (Id. at 4.) Plaintiff

5

asserts that attorney Potter’s “billing rate at $350 in this case is well below the market for an

6

attorney of his expertise and experience,” and that this rate for attorney Potter “has been granted

7

in scores of recent federal court rulings, granting default judgment applications.” (Id. at 5.)

8

Plaintiff, however, failed to cite to any such federal court ruling from this district in support of

9

this assertion.

10

Plaintiff also asserts that attorney Russell Handy is an experienced attorney and is

11

qualified to bill at the rate of $350 per hour. (Id.) Again, plaintiff asserts that “Mr. Handy’s

12

requested billing rate of $350 per hour has been granted in scores of recent federal court rulings,

13

granting default judgment applications.” (Id.) And, again, plaintiff failed to cite to any case in

14

support of this assertion. The same is true of plaintiff’s assertion that attorney Phyl Grace’s

15

requested rate of $350 per hour has been granted in “scores of recent federal court rulings[.]”

16

(Id.) Likewise, plaintiff provided no support for the assertion that “Mr. Price’s requested billing

17

rate of $275 per hour has been granted in scores of recent federal court rulings, granting default

18

judgment applications.” (Id.)

19

In the absence of any evidence from plaintiff establishing the prevailing market rate, the

20

undersigned’s finds, based on research and experience, that “[t]he vast majority of recent cases

21

from this district have concluded that hourly rates of $300 for Mr. Potter and Mr. Handy, $250 for

22

Ms. Grace, and $150 for Mr. Price are reasonable.” Johnson v. Ajay Oil Inc., No. 2:16-cv-2892

23

TLN EFB, 2019 WL 3729813, at *4 (E.D. Cal. Aug. 8, 2019); see, e.g., Johnson v. Hey Now

24

Properties, LLC, No. 2:16-cv-2931 WBS KJN, 2019 WL 586753, at *3 (E.D. Cal. Feb. 13, 2019)

25

(finding hourly rate of $300 for Potter and Handy, $250 for senior attorneys, and $150 for junior

26

attorneys were reasonable); Johnson v. Vuong, No. 2:14-cv-0709 KJM DB, 2018 WL 3388456, at

27

*6 (E.D. Cal. July 11, 2018) (“the overwhelming . . . weight of authority establishes that the

28

current prevailing rate for attorney’s fees for similar services by lawyers of reasonably
11

1

comparable skill, experience, and quality is $250 - $300 per hour in the Sacramento division of

2

the Eastern District of California.”).

3

A district court errs by “discarding the declarations [offered in support of a fee award]

4

entirely and considering only previous fee awards[.]” Roberts v. City of Honolulu, 938 F.3d

5

1020, 1024 (9th Cir. 2019). However, “[i]t is the responsibility of the attorney seeking fees to

6

submit evidence to support the requested hourly rate.” Id. at 1024. Here, plaintiff’s declaration

7

alone does not establish the prevailing market rate. Accordingly, the undersigned has also relied

8

on the undersigned’s experience and research. See O’Campo v. Ghoman, 789 Fed. Appx. 623

9

(9th Cir. 2020) (where plaintiff “failed to submit ‘satisfactory’ evidence of current market rates”

10

the court “permissibly relied on recent fee awards in the district to determine the prevailing rate in

11

similar cases for attorneys with similar experience”). Nonetheless, the undersigned has not

12

discarded the declaration offered by plaintiff’s attorney.

13

In light of the declaration offered by plaintiff’s counsel, the undersigned’s experience, and

14

recent fee awards, “the undersigned will recommend a reasonable hourly rate of $300 per hour for

15

attorneys Potter and Handy, $250 for attorney Grace, and $150 for the less experienced associate,

16

attorney Price.” Johnson v. Pizano, No. 2:17-cv-1655 TLN DB, 2019 WL 2499188, at *7 (E.D.

17

Cal. June 17, 2019).

18
19

(2)

Hours Reasonably Expended

A prevailing party is entitled to compensation for attorney time “reasonably expended on

20

the litigation.” Webb v. Board of Educ. of Dyer County, 471 U.S. 234, 242 (1985). The

21

attorney’s fee applicant bears the burden of establishing the appropriate number of hours

22

expended. Hensley, 461 U.S. at 437; see also Jadwin v. County of Kern, 767 F.Supp.2d 1069,

23

1100 (E.D. Cal. 2011) (“The fee applicant bears the burden of documenting the appropriate hours

24

expended in the litigation and must submit evidence in support of those hours worked.”).

25

Time is reasonably expended on the litigation when it is “useful and of a type ordinarily

26

necessary to secure the final result obtained from the litigation.” Pennsylvania v. Delaware

27

Valley Citizens’ Council for Clean Air, 478 U.S. 546, 561 (1986) (citation and internal quotations

28

omitted). “Hours expended on unrelated, unsuccessful claims should not be included in an award
12

1

of fees.” Webb v. Sloan, 330 F.3d 1158, 1168 (9th Cir. 2003) (quoting Sorenson v. Mink, 239

2

F.3d 1140, 1147 (9th Cir. 2001)).
Here, plaintiff’s motion for default judgment seeks compensation for 12.4 hours expended

3
4

on this action. (Price Decl. (ECF No. 18-3, at 11.) Specifically, it seeks compensation for 2.4

5

hours for attorney Potter, 4.8 hours for attorney Handy, 3.2 hours for attorney Grace, and 2 hours

6

for attorney Price. (Id. at 10-11.)

7

The undersigned finds this amount of time is reasonable when compared to similar ADA

8

cases coming before the court on motions for default judgment. See, e.g., Johnson v. Patel, No.

9

2:15-cv-2298 MCE EFB, 2017 WL 999462, at *3 (E.D. Sept. 21, 2015) (finding “the 8.8 hours

10

expended in filing of motion for the ADA default judgment is admittedly modest”); Loskot v. D

11

& K Spirits, LLC, No. 2:10-cv-0684 WBS DAD, 2011 WL 567364, at *4 (E.D. Cal. Feb. 15,

12

2011) (awarding 17.3 hours expended through filing of motion for default judgment); Johnson v.

13

Hey Now Properties, LLC., No. 2:16-cv-02931-WBS-KJN, 2019 WL 586753 at *3 (E.D. May

14

16, 2018) (awarding 57.3 hours expended in the ADA action).

15

(1)

Summary

16

As noted above, plaintiff should be awarded 2.4 hours at a rate of $300 per hour for

17

attorney Potter ($720), 4.8 hours at $300 per hour for attorney Handy ($1,440), 3.2 hours at $250

18

per hour for attorney Grace ($800), and 2 hours at $150 per hour for attorney Price ($300) for the

19

time expended in this matter. Given the 12.4 hours of total time expended, that yields a total fee

20

award of $3,260. When added to the $720 in filing fees, service costs, and investigator costs the

21

total amount of attorney’s fees and costs to which plaintiff is entitled is $3,980.

22

CONCLUSION

23

For the reasons set forth above, IT IS HEREBY RECOMMENDED that:

24

1. Plaintiff’s June 21, 2019 motion for default judgment (ECF No. 18) be granted;

25

2. Judgment be entered against defendants Avtar Atwal, Sukhwinder Kaur, Khader

26

Habibeh, and Nancy Habibeh;

27
28

3. Defendants be ordered to pay $4,000 in statutory damages;
////
13

1

4. Defendants be ordered to correct the violation at the property identified in plaintiff’s

2

complaint, to the extent that defendants have the legal right to do so, so that the facility is readily

3

accessible to and usable by individuals with disabilities;

4

5. Defendants be ordered to pay plaintiff $3,980 in attorneys’ fees and costs; and

5

6. This case be closed.

6

These findings and recommendations will be submitted to the United States District Judge

7

assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14)

8

days after these findings and recommendations are filed, any party may file written objections

9

with the court. A document containing objections should be titled “Objections to Magistrate

10

Judge’s Findings and Recommendations.” Any reply to the objections shall be served and filed

11

within fourteen (14) days after service of the objections. The parties are advised that failure to

12

file objections within the specified time may, under certain circumstances, waive the right to

13

appeal the District Court’s order. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

14

Dated: January 29, 2020

15
16
17
18
19
20
21
22
23
24
25

DLB:6
DB\orders\orders.civil\johnson1546.mdj.f&rs

26
27
28
14