STANLEY A. BOONE, Magistrate Judge.
On March 14, 2014, Plaintiff Ronald Moore ("Plaintiff") filed a motion for default judgment. (ECF No. 15.) The motion was referred to the undersigned magistrate judge for findings and recommendations pursuant to 28 U.S.C. §636(b).
The hearing on Plaintiff's motion took place on April 23, 2014. Attorney Tanya Moore appeared on behalf of Plaintiff. Gurmail Hans and Lakhbir Hans, the owners of Defendant E-Z-N Quick ("Defendant"), were present at the hearing. For the reasons set forth below, the Court recommends that Plaintiff's motion for default judgment be granted.
Plaintiff filed the complaint in this action on September 19, 2013. (ECF No. 2.) Plaintiff asserts a claim under the Americans with Disabilities Act ("ADA"). Plaintiff alleges that he is disabled and requires the use of a wheelchair for mobility. Plaintiff further contends that Defendant operates a business which is open to the public. Plaintiff alleges that he encountered barriers that interfered with Plaintiff's use of Defendant's business facility. Specifically, Plaintiff contends that the curb ramp was too steep and that the entrance door was too heavy.
On December 17, 2013, Plaintiff requested entry of default against Defendant. (ECF No. 8.) Defendant had not filed a responsive pleading or otherwise appeared in this action. The Clerk of the Court entered default against Defendant the same day. (ECF No. 9.) Plaintiff now seeks default judgment against Defendant.
Entry of default judgment is governed by Federal Rule of Civil Procedure 55(b), which states, in pertinent part:
Upon entry of default, the complaint's factual allegations regarding liability are taken as true.
Entry of default judgment is committed to the Court's discretion.
Gurmail Hans and Lakhbir Hans, the owners of Defendant E-Z-N Quick, were present at the hearing on the motion for default judgment and sought to argue against the merits of Plaintiff's claim.
However, it does not appear that either Gurmail Hans or Lakhbir Hans are licensed attorneys. An artificial business entity, such as E-Z-N Quick, a California general partnership, must be represented by a licensed attorney.
Moreover, at this stage in litigation, default has been entered against Defendant and Defendant has not yet formally requested that the entry of default be vacated. Default was entered against Defendant because Defendant did not file an answer to Plaintiff's complaint or file an appropriate response to Plaintiff's complaint. In order to set aside the entry of default, Defendant must demonstrate good cause.
As discussed below, consideration of the
If default judgment is not entered, Plaintiff is effectively denied a remedy for the violations alleged in this action until such time as the defendants in this action decide to appear in the litigation, which may never occur.
The court is to evaluate the merits of the substantive claims alleged in the complaint as well as the sufficiency of the complaint itself. In doing so, the court looks to the complaint to determine if the allegations contained within are sufficient to state a claim for the relief sought.
"An ADA plaintiff suffers a legally cognizable injury under the ADA if he is `discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, [or] facilities ... of any place of public accommodation.'"
"To prevail on a Title III discrimination claim, the plaintiff must show that (1) [he] is disabled within the meaning of the ADA; (2) the defendant is a private entity that owns, leases, or operates a place of public accommodation; and (3) the plaintiff was denied public accommodations by the defendant because of [his] disability."
A private party is only entitled to injunctive relief under Title III of the ADA, however, the ADA gives the court discretion to award attorney fees to the prevailing party.
Plaintiff alleges that he requires the use of a wheelchair in public and therefore he is "physically disabled" as defined by applicable California and federal law; the facility is a public accommodation facility which is open to the public, intended for non-residential use, and its operations affect commerce. (Compl. at ¶¶ 8-9.) Further, Plaintiff alleges that Defendants own, operate, or lease the facility and have sufficient control to make the modifications to remove impediments to wheelchair access. (Compl. at ¶¶ 7, 14.) This is sufficient to allege liability for failure to comply with the ADA.
Plaintiff visited Defendant's business on February 27, 2012. (Compl. at ¶ 10.) Plaintiff contends that he had difficulty maneuvering on the curb ramp because the slope was too steep. (Compl. at ¶ 10.) Plaintiff also had difficulty opening the entrance door because it was too heavy. (Compl. at ¶ 10.) Plaintiff alleges that these barriers deter Plaintiff from visiting Defendant's business and that Defendant refuses to remove these barriers. (Compl. at ¶ 12-14.)
These allegations are taken as true due to Defendants default, and Plaintiff has met his burden of stating a prima facie claim for discrimination under Title III. Plaintiff is thereby entitled to injunctive relief for the violations of the ADA.
Plaintiff also brings a state law claim for violation of the Unruh Act. The Unruh Act provides that "[a]ll persons within the jurisdiction of this state are free and equal, and . . . are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever." Cal. Civ. Code § 51(b). The Unruh Act also provides that no business shall discrimate against any person due to disability. Cal. Civ. Code § 51.5(a). A violation of the ADA also violates the Unruh Act. Cal. Civ. Code § 51(f). The Unruh Act provides for statutory damages of no less than $4,000 for each and every offense, as well as attorneys' fees. Cal. Civ. Code § 52(a). A litigant need not prove any actual damages to recover statutory damages of $4,000. Molski, 481 F.3d at 731.
As Plaintiff's claims state a cause of action entitling him to relief under the ADA, Plaintiff's allegations also state a claim entitling him to relief under the Unruh Act.
Plaintiff brings state law claims for violation of the Health and Safety Code. The California Health and Safety Code requires that all public accommodations constructed in California adhere to the requirements of Government Code § 4450. Cal. Health & Safety Code § 19955(a). Government Code § 4450(a) provides that "all buildings, structures, sidewalks, curbs, and related facilities . . . shall be accessible to and usable by persons with disabilities." The California Health and Safety Code also provides that "[e]very existing public accommodation constructed prior to July 1, 1970, which is not exempted by Section 19956, shall be subject to the requirements of this chapter when any alterations, structural repairs or additions are made to such public accommodation." Cal. Health & Safety Code § 19959.
In his complaint, Plaintiff incorporates the factual allegations and states that "the [f]acility is a public accommodation constructed, altered, or repaired in a manner that violates Part 5.5 of the Health and Safety Code or Government Code § 4450 (or both), and that the [f]acility was not exempt under Health and Safety Code § 19956." (ECF No. 2 at ¶ 44.) Although Plaintiff's pleading is largely boilerplate, the Court finds this claim is sufficiently pled for the purpose of default judgment as it is sufficient to support the relief requested.
Plaintiff's complaint has sufficiently stated a cause of action for violations of the ADA, Unruh Act, and California Health and Safety Code and the allegations appear to have merit. Accordingly, these factors weigh in favor of granting default judgment.
The sum of money at stake in this action also weighs in favor of default judgment. Default judgment is disfavored where large amounts of money are involved or the award would be unreasonable in light of the defendant's actions.
Due to the factual allegations in the complaint being taken as true upon Defendants' default, there are genuine of issues of material fact in dispute in this action. Accordingly, this factor weighs in favor of granting default judgment.
Defendants have failed to file a responsive pleading or oppose the motion for default judgment. There is no evidence before the Court that this failure was due to excusable neglect.
The policy favoring decisions on the merits always weighs against entering default judgment. However, in this instance the factors favoring default judgment outweigh the policy favoring a decision on the merits.
Plaintiff seeks declaratory and injunctive relief under the ADA for the violations alleged in the complaint. Plaintiff seeks a declaration that Defendant violated the ADA. Based upon the allegations in Plaintiff's complaint, the Court finds and declares that Defendant violated the ADA.
Plaintiff also seeks an injunction requiring the removal of all architectural barriers to Plaintiff's access to the facility. 42 U.S.C. § 12188 provides that "injunctive relief shall include an order to alter facilities to make such facilities readily accessible to and usable by individuals with disabilities to the extent required" the ADA. 42 U.S.C. § 12188(a)(2). Pursuant to federal and state law, Plaintiff is entitled to the removal of those architectural barriers which he encountered on his visit to the facility that violated the ADA. Therefore an injunction should issue requiring Defendants to ensure that their curb ramp and entrance door are compliant with applicable law as set forth in the ADA and Unruh Act.
Plaintiff seeks statutory damages in the amount of $4,000.00 as authorized by the California statutes. The Unruh Act provides for minimum statutory damages of $4,000 for each violation. Cal. Civ. Code § 52(a);
Plaintiff requests $6,227.50 in attorney's fees. Pursuant to 42 U.S.C. § 12205, the party that prevails on a claim brought under the ADA may recover reasonable attorney fees and cost at the discretion of the Court. "[U]nder federal fee shifting statutes the lodestar approach is the guiding light in determining a reasonable fee." Antoninetti v. Chipotle Mexican Grill, Inc., 643 F.3d 1165, 1176 (9th Cir. 2010) (internal punctuation and citations omitted). The Ninth Circuit has explained the lodestar approach as follows:
Plaintiff seeks attorney's fees computed using a $300.00 per hour rate for work by attorney Tanya E. Moore, $115 per hour for work by paralegal Marejka Sacks, $115 per hour for work by paralegal Whitney Law and $95 per hour for work by paralegal David Guthrie. The Court finds the requested rates to be reasonable.
The Court finds that the number of hours billed in this case is unreasonable given the nature of this case and Ms. Moore's experience in these types of actions. Ms. Moore states that she spent 1.4 hours on September 18, 2013 preparing the complaint and reviewing the file. Based upon the Court's familiarity with the actions filed by Ms. Moore's firm in this court, the Court is aware that this is basically a form complaint. The complaint filed in this action is nearly identical to complaints filed by Ms. Moore in dozens of other actions in this Court, with only the names of the parties and the allegations in paragraph ten changed to reflect the facts specific to this case. Whitney Law also billed .2 hours drafting the complaint and Mr. Guthrie billed .4 hours drafting the complaint. The Court finds that .5 hours of Ms. Moore's time is sufficient to draft the complaint and will therefore deduct .9 hours from Ms. Moore's time, .2 hours from Whitney Law's time and .4 hours from Mr. Guthrie's time.
Ms. Moore reported spending 1.7 hours preparing the motion for default judgment. Whitney Law reported spending 3.2 hours on the motion for default judgment. The motion for default judgment filed in this case is nearly identical to motions for default judgment filed by Ms. Moore in other actions before this Court. Accordingly, the Court finds that one hour of Ms. Moore's time and one hour of Whitney Law's time is sufficient to prepare the motion. Accordingly, the Court will deduct .7 hours from Ms. Moore's time and 2.2 hours from Whitney Law's time.
The Court also finds that the following billing entries for Ms. Moore are excessive and will reduce the time billed as follows:
The entries identified above are either excessive or are clerical tasks that should not be billed at an attorney rate.
The Court also finds that the following billing entries for Whitney Law are excessive and will reduce the time billed as follows:
Based upon the above, the Court will reduce Whitney Law's hours billed by 0.3 hours.
In sum, based upon the foregoing, the Court will reduce Ms. Moore's billed hours by 2.4 hours, Whitney Law's billed hours by 2.7 hours, and Mr. Guthrie's hours by 0.4 hours. The Court will award attorneys' fees as follows:
Plaintiff seeks $1,315.00 in costs, which includes the filing fee, service fees and an expert site inspection. The Court finds these costs reasonable. Accordingly, the Court will Accordingly, the Court will recommend that Plaintiff be awarded a total of $5,159.00 in attorney's fees and costs.
Based upon the foregoing, it is HEREBY RECOMMENDED that:
Furthermore, Plaintiff is HEREBY ORDERED to mail a copy of these Findings and Recommendations to Defendant at Defendant's last known address.
These findings and recommendations are submitted to the district judge assigned to this action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court's Local Rule 304. Within thirty (30) days of service of this recommendation, any party may file written objections to these findings and recommendations with the Court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." The district judge will review the magistrate judge's findings and recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are advised that failure to file objections within the specified time may waive the right to appeal the district judge's order.
