PHYLLIS J. HAMILTON, District Judge.
The court has reviewed Magistrate Judge Cousins' Report and Recommendation Re: Motion for Default Judgment. No objections to the report have been filed. The court finds the report correct, well-reasoned and thorough insofar as it found defendant Sherwin Petroleum, Inc.'s liability in some respects established by the well-pleaded allegations of the operative complaint, and insofar as it assessed the appropriate scope of injunctive relief. Accordingly, the court adopts the report in those respects. The court however, addresses defendant's liability in other respects, as well as plaintiff's requests for fees, costs, and expenses, as follows.
The pending motion for default judgment concerns an action brought pursuant to the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. ("ADA"), and the Unruh Act, Cal. Civ. Code §§ 51 et seq., by individual plaintiff Debra Volle against defendant Sherwin Petroleum, Inc. ("Sherwin Petroleum" or "defendant"). Azim Modarressi was named as a codefendant in the original complaint, but plaintiff voluntarily dismissed him from the action without prejudice twelve days after filing that complaint.
The court recounts the allegations of the First Amended Complaint ("FAC") for purposes of this motion.
On November 27, 2018, Volle visited a gas station operated by defendant with a friend to purchase a lottery ticket. Plaintiff was unable to enter the gas station's food mart because the ramp to the front entry door was steep and had steep, flared sides that were unable to accommodate her scooter or walker. The path at the top of the ramp was also blocked by outside seating. Additionally, the width of the path by the front door was less than 48 inches, and the front door clear space at push side was less than 48 inches and did not have 24 inches clear space at pull side. Rather than attempting to enter in the face of those conditions, plaintiff waited outside the mart as her friend made a purchase. Plaintiff left feeling like a second-class citizen and has been deterred on "multiple occasions" from returning to the gas station.
Volle filed this action on January 30, 2019. Dkt. 1. Volle served the defendant's authorized agent, Mohammad Hossein Beirami, with the summons and complaint on February 7, 2019. Irakli Decl., Exs. AA & DD.
On July 10, 2019, Volle filed an amended complaint incorporating findings from the site inspection.
On September 30, 2019, plaintiff filed a motion for default judgment. Mot., Dkt. 27-1. The magistrate judge's deputy received an email from Mohammad Beirami on October 6, 2019, indicating his intention to represent Sherwin Petroleum in the case.
Magistrate Judge Cousins issued a report and recommendation recommending granting the motion and awarding plaintiff $12,000 in statutory damages, $10,664.50 in attorneys' fees and costs, and injunctive relief requiring modification of the property by November 30, 2020. Dkt. 33. No party has objected to that report and recommendation, and the deadline to do so has passed
Review of a magistrate judge's report and recommendation regarding a dispositive motion is governed by Federal Rule of Civil Procedure 72(b). "Within 14 days after being served with a copy of the recommended disposition, a party may serve and file specific written objections to the proposed findings and recommendations." Fed. R. Civ. P. 72(b)(2). "The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to." Fed. R. Civ. P. 72(b)(3).
"[W]hile the statute does not require the judge to review an issue de novo if no objections are filed, it does not preclude further review by the district judge, sua sponte or at the request of a party, under a de novo or any other standard."
Federal Rule of Civil Procedure 55(b)(2) permits a court, following default by a defendant, to enter default judgment in a case. "The district court's decision whether to enter default judgment is a discretionary one."
Upon entry of default, all factual allegations within the complaint are accepted as true, except those allegations relating to the amount of damages.
A district court may, in its discretion, allow the prevailing party in an ADA action a reasonable attorney's fee, including litigation expenses and costs. 42 U.S.C. § 12205. "The Supreme Court has explained that, in civil rights cases, the district court's discretion is limited. A prevailing plaintiff under the ADA should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust."
"A `reasonable' fee is a fee that is sufficient to induce a capable attorney to undertake the representation of a meritorious civil rights case. The district court must strike a balance between granting sufficient fees to attract qualified counsel to civil rights cases and avoiding a windfall to counsel. The way to do so is to compensate counsel at the prevailing rate in the community for similar work; no more, no less."
"The most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate."
Plaintiff seeks $12,000 in statutory damages. The Unruh Act sets out a minimum amount of statutory damages at $4,000 per instance of discrimination. Cal. Civ. Code § 52(a).
"The general rule of law is that upon default the factual allegations of the complaint, except those relating to the amount of damages, will be taken as true."
Here, plaintiff amended her complaint on July 10, 2019.
Plaintiff filed a declaration with her motion for default judgment in which, for the first time, she stated that on January 8, 2019 and February 10, 2019, she wanted to stop at the gas station but was deterred from doing so.
The complaint supports a finding of liability for only a single instance of discrimination under the Unruh Act. As such, statutory damages for violation of that act must be based on that single, well-pled violation. Here, the court finds that damages in the amount of $4,000 for that violation are appropriate.
Plaintiff seeks $6,525 in attorneys' fees. She seeks $2,925 for 9 hours billed by Irene Karbelashvili at a rate of $325 per hour. She also seeks $3,600 for 14.4 hours billed by Irakli Karbelashvili at a rate of $250 per hour.
Plaintiff seeks fees for 14.4 hours Irakli worked on the case.
Regarding Irakli's billed time, the court finds it inappropriate to award fees for the hours attributed to two billing entries.
First, Irakli seeks fees for 0.2 hours billed on February 11, 2019 for time spent on a phone call with Azim Modarressi. Modarressi was a former co-defendant against whom the action was voluntarily dismissed, purportedly because he did not have an ownership interest in the gas station. Plaintiff has not prevailed against him, so time spent litigating against him alone is not recoverable. Because this time is identifiably distinct from any work relating to the defaulting defendant, it is inappropriate to assess fees against the defaulting defendant for that work.
Second, Irakli seeks fees for 0.1 hours billed on August 25, 2019 for time spent drafting a notice of his law firm's change of address. This is a purely clerical task, and the court declines to award fees based on an attorney's time spent completing it.
Plaintiff seeks fees for 9 hours Irene worked on the case.
Regarding Irene's billed time, the court finds it inappropriate to award fees for the hours attributed to three billing entries.
First, Irene seeks fees for 0.1 and 0.2 hours billed on February 11, 2019—across two different billing entries—for time spent working on a notice of dismissal regarding Modarressi. This time is not recoverable both because the work is clerical in nature, and because plaintiff has not prevailed on her claim against Modarressi. This time is clearly segregable as time spent litigating against him alone.
Second, Irene seeks fees for 0.1 hours billed on May 29, 2019 for time spent drafting a notice of her personal unavailability. This is a purely clerical task not related to advancing the litigation, and the court declines to award fees based on an attorney's time spent completing it.
Plaintiff seeks recovery of litigation expenses in the amount of $625. That appears to come from a $400 filing fee and $225 in costs of serving documents.
These costs are adequately supported, except for the fact that $75 is attributed solely to serving Azim Modarressi, an individual who was dismissed without prejudice.
Plaintiff seeks to recover litigation expenses paid to a single expert, Bassam Altwal. Altwal billed plaintiff for 16 hours of work at a rate of $275/hour for substantive work, and at $90/hour for administrative work. His total bill to plaintiff amounted to $4,339.50. However, plaintiff seeks to recover only $3,514.50. That figure is achieved by halving Altwal's $275/hour billing rate for 6 hours of his travel time.
Altwal's hourly rate for substantive work is adequately supported.
Regarding Altwal's billed time, the court finds it inappropriate to award the full amount sought based on hours attributed to four billing entries.
First, Altwal submitted bills for 4 hours on each January 8, 2019 and March 19, 2019. For each entry, Altwal billed $825 for three hours spent traveling, and $275 for one hour spent conducting a site visit. For the six total hours of travel time, plaintiff's motion instead seeks an hourly rate of $137.50 (totaling $825 for all six hours), based on halving Altwal's substantive $275/hour billing rate.
Second, Altwal billed for 1 hour on January 8, 2019 spent on the phone with an attorney. However, a comparison with Irakli's billing statement describing the same call shows that only half an hour of time spent on that call was billable activity.
Third, Altwal submitted expenses for 0.5 hours on September 23, 2019 for time spent on "administrative work (billing)." Altwal Decl., Ex. 2 at 2. The court declines to award litigation expenses based on Altwal's time performing clerical work that is better considered part of his overhead.
For the foregoing reasons, the court GRANTS plaintiff's motion for default judgment in part, in accordance with this order. The court awards plaintiff the injunctive relief specified in the magistrate judge's report and recommendation. The court further awards plaintiff damages totaling $4,000, costs totaling $550, attorneys' fees totaling $6,270, and litigation expenses totaling $3,047—for a total of $13,867.