Antonio Fernandez v. Narinder Singh Golen

O [7] 8 United States District Court 9 Central District of California [10] 11 ANTONIO FERNANDEZ, Case No. 5:19-cv-01086-ODW (SHKx) 12 Plaintiff, ORDER GRANTING PLAINTIFF’S 13 v. MOTION FOR ENTRY OF 14 NARINDER SINGH GOLEN; DEFAULT JUDGMENT [23] SAMARINDER SINGH, et al. [15] Defendants. [16] 17 I. INTRODUCTION 18 Plaintiff Antonio Fernandez moves for entry of default judgment (“Motion”) 19 against Defendants Narinder Singh Golen (“Singh Golen”) and Samarinder Singh 20 (“Singh”) for violations of the Americans with Disabilities Act (“ADA”). (See 21 generally Appl. for Default J. (“Mot.”), ECF No. 23.) For the reasons discussed below, 22 the Court GRANTS Fernandez’s Motion for Default Judgment.1 23 II. FACTUAL BACKGROUND 24 Fernandez alleges the following facts. Fernandez is paralyzed from the waist 25 down and uses a wheelchair for mobility. (Compl. ¶ 1, ECF No. 1.) Defendants Singh 26 Golen and Singh own the real property located at 17294 Valley Blvd. in Fontana, [27] 28 1 After carefully considering the papers filed in connection with the Motion, the Court deemed the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. 1 California. (Compl. ¶¶ 2–3; Mot. 1.) On May 23, 2019, Fernandez went to the property 2 to shop at San Miguel Meat Market (the “Store”). (Compl. ¶ 8; Mot. 1.) Once there, 3 he needed to use the public restroom. (Mot. 1.) However, Fernandez found that his 4 “wheelchair could not get to the door and certainly could not turn to enter the restroom.” 5 (Mot. 1.) Specifically, he alleges that the path to the public restroom was impeded and 6 blocked by arcade games. (Mot. 1; Compl. ¶ 11.) 7 On June 5, 2019, an investigator with the Center for Disability Access (“CDA”) 8 visited the Store and found that “the hallway leading to the public restroom had arcade 9 games for customers to play located in that hallway.” (Mot. 2.) The investigator noted 10 that the available path of travel measured between 24 and 25 inches in width at the final 11 arcade game. (Mot. 2.) At bottom, Fernandez alleges that “[D]efendants do not provide 12 accessible paths of travel in conformance with the ADA Standards” and that the arcade 13 games are easily removable. (Compl. ¶¶ 12, 17.) Although he is currently deterred 14 from returning to the Store, Fernandez claims he is in the geographical area on a 15 constant and on-going basis and will return to the Store once it is ADA compliant. 16 (Compl. ¶ 18; Mot. 2.) 17 On June 13, 2019, Fernandez initiated this action against Singh Golen and Singh 18 asserting two causes of action, for violation of the ADA and the California Unruh Civil 19 Rights Act (“Unruh”). (Compl. ¶¶ 20–30.) On September 30, 2019, the Court declined 20 to exercise supplemental jurisdiction over Fernandez’s Unruh claim and dismissed that 21 claim without prejudice. (Min. Order 9, ECF No. 17.) On Fernandez’s request, the 22 Clerk entered default against Singh on August 1, 2019, and against Singh Golen on 23 December 9, 2019. (Default by Clerk, ECF Nos. 13, 21; Mot. 1.) Fernandez now moves 24 for entry of default judgment and an award of attorneys’ fees and costs.2 (See Mot.) [27] 2 Fernandez seeks default judgment as to both his ADA and Unruh claims; however, default judgment 28 is unavailable as to the Unruh claim because the Court dismissed that claim. Accordingly, the Court considers whether default judgment is appropriate only as to the ADA claim. 1 III. LEGAL STANDARD 2 Federal Rule of Civil Procedure (“FRCP”) 55(b) authorizes a district court to 3 grant a default judgment after the Clerk enters default under Rule 55(a). Fed. R. Civ. 4 P. 55 (b). Before a court can enter a default judgment against a defendant, the plaintiff 5 must satisfy the procedural requirements set forth in FRCP 54(c) and 55, as well as 6 Local Rules 55-1 and 55-2. Fed. R. Civ. P. 54(c), 55; C.D. Cal. L.R. 55-1, 55-2. Local 7 Rule 55-1 requires that the movant submit a declaration establishing: (1) when and 8 against which party default was entered; (2) identification of the pleading to which 9 default was entered; (3) whether the defaulting party is a minor or incompetent person; 10 (4) that the Servicemembers Civil Relief Act, 50 U.S.C. § 3931 , does not apply; and 11 that (5) the defaulting party was properly served with notice, if required under Rule 12 55(b)(2). C.D. Cal. L.R. 55-1. 13 If these procedural requirements are satisfied, a district court has discretion to 14 enter default judgment. Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). “A 15 defendant’s default does not automatically entitle the plaintiff to a court-ordered 16 judgment.” PepsiCo, Inc., v. Cal. Sec. Cans, 238 F. Supp. 2d 1172, 1174 (C.D. Cal 17 2002). In exercising discretion, a court must consider several factors (the “Eitel 18 factors”): 19 (1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff’s 20 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 [21] material facts; (6) whether the default was due to excusable neglect, and 22 (7) the strong policy underlying the [FRCP] favoring decisions on the merits. [23] 24 Eitel v. McCool, 782 F.2d 1470 , 1471–72 (9th Cir. 1986). Generally, after the Clerk 25 enters default, the defendant’s liability is conclusively established and the factual 26 allegations in the complaint are accepted as true, except those pertaining to the amount 27 of damages. TeleVideo Sys. v. Heidenthal, 826 F.2d 915 , 917–18 (9th Cir. 1987) (per 28 curiam) (quoting Geddes v. United Fin. Grp., 559 F.2d 557 , 560 (9th Cir. 1977)). 1 IV. DISCUSSION 2 Fernandez satisfies the procedural requirements and the Eitel factors weigh in 3 favor of granting default judgment. However, the Court finds that the requested award 4 of attorney’s fees is excessive and reduces the award accordingly. 5 A. Procedural Requirements 6 Fernandez’s counsel asserts: (1) the Clerk entered default against Singh Golen 7 and Singh (2) on the Complaint that Fernandez filed on June 13, 2019; (3) that Singh 8 Golen and Singh are not infants or incompetent persons; and (4) Singh Golen and Singh 9 are not covered by the Servicemembers Civil Relief Act. (Decl. of Russell Handy 10 (“Handy Decl.”) ¶¶ 2, 5–6, ECF No. 23-3.) Additionally, although notice of the Motion 11 under Rule 55(b)(2) was not necessary because neither Singh Golen nor Singh have 12 appeared, Fernandez nonetheless served notice of the Motion via United States mail. 13 (Handy Decl. ¶ 6.) Therefore, Fernandez satisfies the procedural requirements of 14 FRCP 54(c) and 55, as well as Local Rule 55-1. 15 B. Factors 16 Once a plaintiff satisfies the procedural requirements, a district court must 17 consider the Eitel factors in exercising its discretion to enter default judgment. The 18 Court finds that the factors favor granting entry of default judgment against Singh Golen 19 and Singh as to Fernandez’s ADA claim. 20 1. Possibility of Prejudice to Plaintiff 21 The first Eitel factor asks whether the plaintiff will suffer prejudice if a default 22 judgment is not entered. Eitel, 782 F.2d at 1471 . Denial of default leads to prejudice 23 when it leaves a plaintiff without a remedy or recourse for recovery. Landstar Ranger, 24 Inc. v. Parth Enters., Inc., 725 F. Supp. 2d 916, 920 (C.D. Cal. 2010) (citing PepsiCo, [25] 238 F. Supp. 2d at 1177 ). Singh Golen and Singh failed to appear or participate in this 26 action. Absent entry of default judgment, Fernandez is without recourse to recover. 27 Accordingly, this factor weighs in favor of default judgment. [28] 1 2. Substantive Merits & 3. Sufficiency of the Complaint 2 The second and third Eitel factors “require that a plaintiff state a claim on which 3 the [plaintiff] may recover.” Philip Morris USA, Inc. v. Castworld Prods., Inc., 219 4 F.R.D. 494, 499 (C.D. Cal. 2003) (alteration in original) (quoting PepsiCo, 238 F. Supp. 5 2d at 1175). To weigh these two factors, the Court must evaluate the merits of 6 Fernandez’s ADA claim. 7 Title III of the ADA provides that “[n]o individual shall be discriminated against 8 on the basis of disability in the full and equal enjoyment of the goods, services, facilities, 9 privileges, advantages, or accommodations of any place of public accommodation.” 42 10 U.S.C. § 12182 (a); see also Oliver v. Ralphs Grocery Co., 654 F.3d 903, 904 (9th Cir. 11 2011). As relevant here, discrimination includes “a failure to remove architectural 12 barriers . . . in existing facilities . . . where such removal is readily achievable.” 42 13 U.S.C. § 12182 (b)(2)(A)(iv). Therefore, to succeed on his ADA claim, Fernandez must 14 demonstrate that he is (1) “disabled within the meaning of the ADA”; (2) that Singh 15 Golen and Singh “own[], lease[], or operate[] a place of public accommodation” (3) that 16 denied Fernandez public accommodation because of his disability; (4) that the Store 17 “presents an architectural barrier prohibited under the ADA”; and (5) “removal of the 18 barrier is readily achievable.” Vogel v. Rite Aid Corp., 992 F. Supp. 2d 998 , 1007–08 19 (C.D. Cal. 2014) (quoting Molski v. M.J. Cable, Inc., 481 F.3d 724, 730 (9th Cir. 2007)). 20 First, “disability” under the ADA is defined as “a physical or mental impairment 21 that substantially limits one or more major life activities of such individual.” 42 U.S.C. 22 § 12102(1)(A). The ADA includes walking as a major life activity. Id. § 12102(2)(A). 23 Here, Fernandez alleges that he is paralyzed from the waist down and uses a wheelchair 24 for mobility. (Compl. ¶ 1.) Therefore, Fernandez establishes that he is disabled within 25 the meaning of the ADA. 26 Second, the ADA specifically lists restaurants as public accommodations. 42 27 U.S.C. § 12181 (7)(B). Consequently, owners of such public accommodations must 28 comply with the ADA. Id. § 12182(a). Fernandez alleges that the Store is “a facility 1 open to the public, a place of public accommodation, and a business establishment.” 2 (Compl. ¶ 9.) Fernandez also alleges that Singh Golen and Singh own the real property 3 where the Store is located. (Compl. ¶ 3.) Accepting these allegations as true, Fernandez 4 has sufficiently alleged that Singh Golen and Singh own a place of public 5 accommodation subject to Title III of the ADA. 6 As to the third and fourth factors, “a public accommodation shall maintain . . . 7 facilities . . . that are required to be readily accessible to and usable by persons with 8 disabilities.” 28 C.F.R. § 36.211 (a). Fernandez argues that Singh Golen and Singh “do 9 not provide accessible paths of travel” to the public restroom in conformance with the 10 ADA Standards.” (Compl. ¶¶ 11–12.) Specifically, Fernandez argues “[t]he path of 11 travel leading to the public restroom was impeded and blocked by arcade games,” 12 leaving only 24–25 inches of maneuvering clearance at the door. (Mot. 1, 6.) 13 “Whether a facility is ‘readily accessible’ is defined, in part, by the ADA 14 Accessibility Guidelines (‘ADAAG’).” Chapman v. Pier 1 Imports (U.S.), Inc., 631 15 F.3d 939, 945 (9th Cir. 2011). The relevant ADAAG standard states that, within a site, 16 “[a]t least one accessible route shall connect accessible buildings, accessible facilities, 17 accessible elements, and accessible spaces that are on the same site.” 2010 ADAAG 18 § 206.2.2. The minimum width of an accessible route must be at least 36 inches and 19 sufficient maneuvering clearance must be provided at doors. Id. §§ 403.5.1, 404.2.4. 20 For a door such as at issue here that pushes and is a side-approach from the hinge side, 21 there must be 42 inches of space perpendicular to the doorway. See id. § 404.2.4.1. 22 Fernandez submits photographs depicting his inability to access the public 23 restroom in his wheelchair. (Decl. of Antonio Fernandez ¶ 5, Ex. 4, ECF Nos. 23-4, 24 23-6.) He further submits a declaration from his investigator who found the path of 25 travel to measure “between 24 and 25 inches at the final arcade game.” (Mot. 2; Decl. 26 of Zion Sapien ¶ 3, ECF No. 23-5.) Fernandez has sufficiently established that the path 27 of travel and doorway to the Store’s public restroom does not satisfy the requirement 28 for an accessible route. Rather, the arcade games present an architectural barrier that 1 denied Fernandez a public accommodation because of his disability. Therefore, the 2 third and fourth elements are satisfied. 3 Lastly, Fernandez alleges that removal of the barriers is readily achievable 4 without much difficulty or expense. (Compl. ¶ 17.) In particular, Fernandez claims 5 “the solution here is as simple as moving the arcade games out of the hallway.” 6 (Mot. 7.) Rearranging tables, chairs, vending machines, and other furniture is 7 considered readily achievable. 28 C.F.R. § 36.304 (b)(4); see also Vogel, 992 F. Supp. 8 2d at 1011. Therefore, the Court finds that the removal of the barrier—the arcade 9 games—is readily achievable. 10 Accepting as true the well-pleaded factual allegations in the complaint and 11 considering the evidence presented with the Motion, Fernandez has established a 12 violation of the ADA in that the path to the Store’s public restroom is not 13 ADA-compliant. As such, the second and third Eitel factors favor default judgment. 14 4. Amount at Stake 15 The fourth Eitel factor balances the amount of money at stake with the 16 “seriousness of Defendant’s conduct.” PepsiCo, 238 F. Supp. 2d at 1176 ; Eitel, 782 17 F.2d at 1471. The amount at stake must be proportionate to the harm alleged. Landstar, [18] 725 F. Supp. 2d at 921 . Here, “[t]he enforcement provisions of Title III provide only 19 for injunctive relief. Damages are not available to individuals.” Pickern v. Holiday 20 Quality Foods, 293 F.3d 1133, 1136 (9th Cir. 2002); 42 U.S.C. § 12188 (a). Since his 21 Unruh claim was dismissed, Fernandez may seek only injunctive relief, i.e., to make the 22 Store ADA-compliant. (See Mot. 3–7.) Consequently, the relief sought is proportionate 23 to Defendants’ conduct and is appropriate on default judgment. Therefore, this factor 24 favors entry of default judgment. 25 5. Possibility of Dispute 26 The fifth Eitel factor considers the possibility that material facts are in dispute. 27 PepsiCo, 238 F. Supp. 2d at 1177 . As the allegations in Fernandez’s Complaint are 28 presumed true, Defendants’ failure to appear in this action results in a finding that “no 1 factual disputes exist that would preclude entry of default judgment.” Vogel, 992 F. 2 Supp. 2d at 1013. Accordingly, this factor favors entry of default judgment. 3 6. Possibility of Excusable Neglect 4 The sixth Eitel factor considers the possibility that a defendant’s default resulted 5 from excusable neglect. PepsiCo, 238 F. Supp. 2d at 1177 . Here, Fernandez served 6 Singh Golen and Singh with the Complaint and Motion for Default Judgment. (Handy 7 Decl. ¶¶ 5–6.) Accordingly, Singh Golen and Singh were on notice and failed to 8 respond. No facts indicate that excusable neglect is present. Accordingly, this factor 9 favors entry of default judgment. 10 7. Policy Favoring Decisions on the Merits 11 “[D]efault judgments are ordinarily disfavored. Cases should be decided upon 12 their merits whenever reasonably possible.” Eitel, 782 F.2d at 1472 (citing Pena v. 13 Seguros La Comercial, S.A., 770 F.2d 811, 814 (9th Cir. 1985)). However, where the 14 defendant fails to answer the plaintiff’s complaint, “a decision on the merits [is] 15 impractical, if not impossible.” PepsiCo, 238 F. Supp. 2d at 1177 . Since Singh Golen 16 and Singh failed to appear or otherwise respond, a determination on the merits is 17 impossible. Accordingly, this factor does not preclude entry of default judgment. 18 On balance, the Eitel factors support entry of default judgment on Fernandez’s 19 ADA claim based on the architectural barrier in the Store’s path of travel to the public 20 restroom. As such, the Court GRANTS Fernandez’s Motion for Default Judgment as 21 to his ADA claim. 22 C. Attorney’s Fees and Costs 23 As Fernandez’s ADA claim is meritorious, he is the prevailing party and may 24 recover attorneys’ fees under 42 U.S.C. § 12205 . Fernandez may also recover costs as 25 provided in 29 U.S.C. § 1920 , FRCP 54(d)(1) and Local Rule 54-2. In an application 26 for default judgment, where attorneys’ fees are sought pursuant to a statute, fees are 27 generally calculated according to the schedule provided by the court. C.D. Cal. 28 L.R. 55-3. Attorneys may request fees in excess of the schedule, as Fernandez’s 1 attorneys have done. C.D. Cal. L.R. 55-3. When a party makes such a request, “the 2 court is obliged to calculate a ‘reasonable’ fee in the usual manner [using the lodestar 3 method], without using the fee schedule as a starting point.” Vogel v. Harbor Plaza 4 Ctr., LLC, 893 F.3d 1152, 1159 (9th Cir. 2018). The lodestar method multiplies the 5 hours reasonably expended by a reasonable hourly rate. Hensley v. Eckerhart, 461 U.S. 6 424, 433 (1983). Courts should exclude hours that are excessive, redundant, or not 7 reasonably expended. Id. at 434. It is in the court’s discretion to determine the 8 reasonableness of the fees requested. Id. at 433. A court may consider a number of 9 pertinent factors in determining the reasonableness of an attorneys’ fees award. Langer 10 v. Butler, No. SA CV 19-0829-DOC (JDEx), 2019 WL 6332167 , at *8 (C.D. Cal. Aug. 11 27, 2019) (citing Quesada v. Thomason, 850 F.2d 537 , 539 n.1 (9th Cir. 1988) (listing 12 twelve factors)).3 13 Fernandez’s counsel consisted of Mark Potter, Russell Handy, and Phyl Grace. 14 (Mot. 12.) Together, they request $3,873 in fees and $530 in costs. (Handy Decl. Ex 1 15 (“Billing Statement”).) Fernandez seeks hourly rates of $595 for both Potter and Handy, 16 and $550 for Grace. (Mot. 12–13; Handy Decl. ¶¶ 8–10; see Billing Statement.) The 17 Court recognizes the ability and credentials of each attorney in their field. (See Handy 18 Decl. ¶¶ 8–11.) However, other courts in this district recently found $425 to be a 19 reasonable hourly rate in a similar case for the same attorneys present here. See Arroyo 20 v. Thrifty Payless, Inc., No. CV 19-7244-RSWL (SSx), 2020 WL 1068246 , at *8 (C.D. 21 Cal. Jan. 31, 2020) (granting default judgment motion on ADA claim but reducing 22 attorney’s hourly fees to $425); see also Langer v. Anaya, No. CV 19-01075-PA [24] 25 3 The factors include: (1) the time and labor required; (2) the novelty and difficulty of the questions involved; (3) the skill requisite to perform the legal service properly; (4) the preclusion of other 26 employment by the attorney as a result of accepting the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the [27] amount involved and the result obtained; (9) the experience, reputation, and ability of the attorney(s); 28 (10) the “undesirability” of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. Quesada, 850 F.2d at 539 n.1 1 (SHKx), 2020 WL 687611 , at *4 (C.D. Cal. Jan. 6, 2020) (same). Accordingly, the 2 Court finds the requested rates of $595 and $550 excessive. 3 Moreover, Fernandez’s attorneys have filed a number of actions using 4 “carbon-copy complaints” and “entirely boilerplate” litigation. Tate v. Deoca, No. CV 5 14-08738-SJO (MRWx), 2018 WL 5914220 , at *8 (C.D. Cal. July 31, 2018) (collecting 6 cases and cautioning against awarding counsel a windfall for such copy-and-paste 7 work). This case appears no different; for example, Fernandez’s counsel billed nearly 8 two hours for “amend[ing] the default judgment template with all components parts.” 9 (Billing Statement 3.) The Court recognizes the time necessary to prepare and file 10 materials in this matter and to investigate and identify the proper defendants, but this 11 litigation is not particularly complex or laborious, nor has it been at all litigious as Singh 12 Golen and Singh failed to answer. Indeed, this matter has proceeded in a fairly 13 straightforward manner over merely a few months. Finally, nothing indicates that 14 Fernandez’s attorneys have been precluded from accepting other employment due to 15 the acceptance of this case. 16 In light of the redundancy of work, familiarity with Fernandez, expertise in the 17 area of law, and the straightforward nature of the case involved for the 18 extensively-trained attorneys, the Court finds the rates and hours set forth in the billing 19 summary excessive. The Court accordingly reduces attorneys’ fees by 50%, to 20 $1936.50. See Langer v. Butler, 2019 WL 6332167 , at *8 (reducing requested fees by 21 50% for reasons similar to the above); see also Tate, 2018 WL 5914220 , at *8 (same). 22 Regarding costs, the Court accepts Attorney Handy’s declaration that Fernandez 23 incurred litigation expenses of $530. (Handy Decl. ¶ 7; Billing Statement 1.) Thus, the 24 Court awards costs of $530. 25 V. CONCLUSION 26 For the reasons discussed above, the Court GRANTS Fernandez’s Motion for 27 Entry of Default Judgment as to his ADA claim. (ECF No. 23.) Singh Golen and Singh, [28] 1 | as owners of the property, shall make the path of travel to the public restroom 2 || ADA-compliant. The Court awards $1936.50 in fees and $530 in costs. [3] 4 IT ISSO ORDERED. [5] 6 May 4, 2020 ss Ye Af 8 NU biel 9 OTIS D. WRIGHT, II 10 UNITED STATES, DISTRICT JUDGE