Johnson v. Restaurant

[2] 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION [6] 7 SCOTT JOHNSON, Case No. 21-cv-04133-BLF 8 Plaintiff, ORDER GRANTING IN PART 9 v. MOTION FOR DEFAULT JUDGMENT 10 HUONG-QUE RESTAURANT, [Re: ECF No. 15] 11 Defendant. [12] 13 In this action, Plaintiff Scott Johnson asserts claims under Title III of the Americans with 14 Disabilities Act of 1990, 42 U.S.C. § 12101 , et seq. (“ADA”), and the California Unruh Civil 15 Rights Act, Cal. Civ. Code §§ 51–52 (“Unruh Act”). See ECF No. 1. Johnson seeks injunctive 16 relief, statutory damages, attorneys’ fees, and costs of suit. Id. Defendant Huong-Que Restaurant 17 has failed to appear in this matter. At Johnson’s request, the Clerk of Court has entered default 18 against the Defendant. See ECF No. 13. 19 Now before the Court is Johnson’s motion for default judgment. ECF No. 15 (“Mot.”). 20 Johnson has provided a proof of service showing that he served the motion on the Defendant, see 21 ECF No. 15-13, although there is no notice requirement for either the entry of default or Johnson’s 22 motion. See Fed. R. Civ. P. 55(a), (b)(2). The Court finds this motion suitable for determination 23 without oral argument and VACATES the April 7, 2022 hearing. See Civ. L.R. 7-1(b). For the 24 reasons discussed below, the Court GRANTS IN PART the motion for default judgment. 25 I. BACKGROUND 26 According to the Complaint, Johnson is a level C-5 quadriplegic who cannot walk and has 27 significant manual dexterity impairments. ECF No. 1 (“Compl.”) ¶ 1. He uses a wheelchair for 1 owner and operator of the Huong-Que Restaurant located at 3005 Silver Creek Road in San Jose, 2 California. Id. ¶ 2. Johnson allegedly went to the restaurant in April 2021, but he found that 3 Defendant failed to provide wheelchair accessible inside and outside dining surfaces in 4 conformance with ADA standards. Id. ¶ 10. The tables, according to Johnson, have a lack of 5 sufficient knee or toe clearance for wheelchair users. Id. Johnson says that he intends to return to 6 the restaurant but is currently deterred from doing so because he knows of the lack of accessible 7 dining surfaces. Id. ¶ 20. Johnson brings claims under the ADA and Unruh Act and seeks 8 injunctive relief, statutory damages, attorneys’ fees, and costs. 9 II. LEGAL STANDARD 10 Default may be entered against a party who fails to plead or otherwise defend an action, 11 who is neither a minor nor an incompetent person, and against whom a judgment for affirmative 12 relief is sought. Fed. R. Civ. P. 55(a). After an entry of default, a court may, in its discretion, 13 enter default judgment. Id. R. 55(b)(2); Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). 14 In deciding whether to enter default judgment, a court may consider the following factors: (1) the 15 possibility of prejudice to the plaintiff; (2) the merits of the plaintiff’s substantive claims; (3) the 16 sufficiency of the complaint; (4) the sum of money at stake in the action; (5) the possibility of a 17 dispute concerning material facts; (6) whether the default was due to excusable neglect; and (7) 18 the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits. 19 Eitel v. McCool, 782 F.2d 1470 , 1471–72 (9th Cir. 1986). In considering these factors, all factual 20 allegations in the plaintiff’s complaint are taken as true, except those related to damages. 21 TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915 , 917–18 (9th Cir. 1987). When the damages 22 claimed are not readily ascertainable from the pleadings and the record, the court may either 23 conduct an evidentiary hearing or proceed on documentary evidence submitted by the plaintiff. 24 See Johnson v. Garlic Farm Truck Ctr. LLC, 2021 WL 2457154 , at *2 (N.D. Cal. Jun. 16, 2021). 25 III. DISCUSSION 26 “When entry of judgment is sought against a party who has failed to plead or otherwise 27 defend, a district court has an affirmative duty to look into its jurisdiction over both the subject 1 jurisdiction, service of process, the Eitel factors, and Johnson’s requested relief. 2 A. Jurisdiction 3 The Court has subject matter jurisdiction over this lawsuit. Federal question jurisdiction 4 exists based on Johnson’s federal ADA claim, 28 U.S.C. § 1331 , and the Court can exercise 5 supplemental jurisdiction over his California Unruh Act, id. § 1367. The Court also has personal 6 jurisdiction over Huong-Que Restaurant. Johnson has submitted public records indicating that the 7 restaurant is a California corporation. See Mot., Ex. 5. It thus appears that Huong-Que Restaurant 8 is subject to this Court’s general jurisdiction. See Daimler AG v. Baumann, 571 U.S. 117 , 134 9 (2014). 10 B. Service of Process 11 When a plaintiff requests default judgment, the court must assess whether the defendant 12 was properly served with notice of the action. See, e.g., Solis v. Cardiografix, No. 12-cv-01485, [13] 2012 WL 3638548 , at *2 (N.D. Cal. Aug. 22, 2012). Federal Rule of Civil Procedure 4 provides 14 that service may be effected in accordance with state law. See Fed. R. Civ. P. 4(e)(1), (h)(1)(A). 15 Under California law, a corporation or limited liability company can be served by delivering the 16 summons and complaint to one of an enumerated list of individuals, including the designated 17 agent for service of process or the general manager of the entity. See Cal. Civ. P. Code 416.10; 18 Vasic v. Pat. Health, L.L.C., No. 13CV849 AJB (MDD), 2013 WL 12076475 , at *2 (S.D. Cal. 19 Nov. 26, 2013). In lieu of personal service on such individual, substitute service may be effected 20 “by leaving a copy of the summons and complaint during usual office hours in his or her office . . . 21 with the person who is apparently in charge thereof, and by thereafter mailing a copy of the 22 summons and complaint by first-class mail, postage prepaid to the person to be served at the place 23 where a copy of the summons and complaint were left.” Cal. Civ. P. Code § 415.20 (a). A sworn 24 proof of service constitutes “prima facie evidence of valid service which can be overcome only by 25 strong and convincing evidence.” G&G Closed Cir. Events, LLC v. Macias, 2021 WL 2037955 , at 26 *2 (N.D. Cal. May 21, 2021) (quoting Securities & Exchg. Comm’n v. Internet Solns. for Business, 27 Inc., 509 F.3d 1161, 1166 (9th Cir. 2007)). 1 served on Huong-Que Restaurant’s agent for service of process, Jenny Hien Nguyen, by substitute 2 service pursuant to § 415.20. See ECF No. 10. The summons and complaint were left at 3 Nguyen’s business address (also the address of Huong-Que Restaurant), on June 26, 2021, during 4 normal business hours with someone who was apparently in charge. See id. The summons and 5 complaint were thereafter mailed to Nguyen at the same address. See id. The Court therefore 6 finds that Huong-Que Restaurant was properly served with process. 7 C. Eitel Factors 8 The Court finds that the seven Eitel factors support entering a default judgment. 9 a. Factors 1 and 4–7 10 On the first Eitel factor, the Court finds that Johnson would be prejudiced without a default 11 judgment against Defendant. Unless default judgment is entered, Johnson will have no other 12 means of recourse against the restaurant. See Ridola v. Chao, 2018 WL 2287668 , at *5 (N.D. Cal. 13 May 18, 2018) (plaintiff prejudiced without default judgment because she “would have no other 14 means of recourse against Defendants for the damages caused by their conduct”). 15 The fourth Eitel factor requires the Court to consider the sum of money at stake in relation 16 to the seriousness of Defendant's conduct. Love v. Griffin, 2018 WL 4471073 , at *5 (N.D. Cal. 17 Aug. 20, 2018). Johnson seeks only statutory damages under the Unruh Act. While the sum 18 requested is not insignificant, the Court finds it proportional to the conduct alleged. 19 Under the fifth and sixth Eitel factors, the Court considers whether there is a possibility of 20 a dispute over any material fact and whether Huong-Que Restaurant’s failure to respond was the 21 result of excusable neglect. See Love, 2018 WL 4471073 , at *5; Ridola, 2018 WL 2287668 , at 22 *13. Because Johnson pleads plausible claims for violations of the ADA and the Unruh Act, and 23 as all liability-related allegations are deemed true, there is nothing before the Court that indicates a 24 possibility of a dispute as to material facts. Moreover, there is no indication that Defendant’s 25 default was due to excusable neglect. Huong-Que Restaurant has not appeared or responded in 26 this action, suggesting that it has chosen not to present a defense in this matter. Accordingly, 27 these factors weigh in favor of default judgment. 1 merits, Huong-Que Restaurant’s failure to participate in this litigation makes that impossible. See 2 Ridola, 2018 WL 2287668 , at *13 (“Although federal policy favors decision on the merits, Rule 3 55(b)(2) permits entry of default judgment in situations, such as this, where a defendant refuses to 4 litigate.”). Default judgment, therefore, is Johnson's only recourse. See United States v. Roof 5 Guard Roofing Co. Inc., 2017 WL 6994215 , at *3 (N.D. Cal. Dec. 14, 2017) (“When a properly 6 adversarial search for the truth is rendered futile, default judgment is the appropriate outcome.”). 7 b. Factors 2 and 3 8 Under Eitel factors 2 and 3, the Court finds that the Complaint alleges meritorious 9 substantive claims for relief under the ADA and the Unruh Act. 10 Johnson must establish first Article III standing, which requires that he demonstrate he 11 suffered an injury in fact, traceable to Defendant’s conduct, and redressable by a favorable court 12 decision. Ridola, 2018 WL 2287668 , at *5 (citing Hubbard v. Rite Aid Corp., 433 F.Supp.2d 13 1150, 1162 (S.D. Cal. 2006)). Johnson claims that he suffers from a disability, that he personally 14 encountered access barriers at the restaurant because the restaurant lacked wheelchair-accessible 15 dining tables, and that he will return to the restaurant once it is made accessible. Compl. ¶¶ 10– 16 12, 15, 20; see Vogel v. Rite Aid Corp., 992 F. Supp. 2d 998, 1008 (C.D. Cal. 2014) 17 (“Demonstrating an intent to return to a non-compliant accommodation is but one way for an 18 injured plaintiff to establish Article III standing to pursue injunctive relief.”). Johnson thus 19 alleged that he has standing under the ADA. 20 On the merits, Title III of the ADA provides that “[n]o individual shall be discriminated 21 against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, 22 privileges, advantages, or accommodations of any place of public accommodation by any person 23 who owns, leases (or leases to), or operates a place of public accommodation.” 42 U.S.C. 24 § 12182(a). For purposes of Title III, discrimination includes “a failure to remove architectural 25 barriers ... in existing facilities ... where such removal is readily achievable[.]” 42 U.S.C. 26 § 12182(b)(2)(A)(iv). To prevail on his Title III discrimination claim, Johnson must show that (1) 27 he is disabled within the meaning of the ADA; (2) Defendant is a private entity that owns, leases, 1 by Defendant because of his disability. See Molski v. M.J. Cable, Inc., 481 F.3d 724, 730 (9th Cir. 2 2007). To succeed on an ADA claim based on architectural barriers, Johnson “must also prove 3 that: (1) the existing facility presents an architectural barrier prohibited under the ADA; and (2) 4 the removal of the barrier is readily achievable.” Ridola, 2018 WL 2287668 , at *5. 5 Johnson has plausibly pled an ADA claim. First, Johnson has adequately alleged that he 6 has a disability within the meaning of the ADA by alleging that he is a C-5 quadriplegic who 7 cannot walk and uses a wheelchair for mobility. Compl. ¶ 1. Second, he has alleged that 8 Defendant is a private entity that owns, leases, or operates a place of public accommodation—the 9 Huong-Que Restaurant. Id. ¶¶ 2–3, 9; see also 42 U.S.C. § 12181 (7)(B) (listing “a restaurant, bar, 10 or other establishment serving food or drink” as a place of public accommodation). Third, 11 Johnson alleges that during his visit to the restaurant, he personally encountered an access barrier: 12 the lack of wheelchair-accessible dining surfaces. Compl. ¶¶ 10–12, 15. Johnson alleges that the 13 outdoor dining surfaces at the restaurant did not have sufficient knee or toe clearance. Id. ¶ 12 . 14 Johnson has also alleged that removal of these barriers is “readily achievable” because they are 15 “easily removed without much difficulty or expense” and they are an example of “the types of 16 barriers identified by the Department of Justice as presumably readily achievable to remove.” 17 Compl. ¶ 19; see also Garlic Farm Truck Ctr. LLC, 2021 WL 2457154 , at *6 (finding these 18 allegations sufficient at default judgment stage). If true, these facts would result in violation of the 19 2010 ADA Accessibility Guidelines (ADAAG), which require that at least 5 percent of the seating 20 spaces and standing spaces at the dining surfaces shall comply with certain knee and toe clearance 21 requirements. See ADAAG §§ 226.1, 902.2; see also id. §§ 306.2.1, 306.2.3, 306.3.1, 306.3.3. 22 Accordingly, Johnson adequately alleges that the restaurant violated accessibility standards, and 23 that he was denied access to the dining surfaces because of his disability. 24 In sum, the Court finds that Johnson’s ADA claim is adequately pled and substantively 25 meritorious in light of Defendant’s failure to respond in this action. Because “[a]ny violation of 26 the ADA necessarily constitutes a violation of the Unruh Act,” M.J. Cable, 481 F.3d at 731 , 27 Johnson has also sufficiently alleged an Unruh Act claim. Thus, the second and third Eitel factors 1 D. Requested Relief 2 The Court has found default judgment appropriate, so now it considers Johnson’s request 3 for injunctive relief, statutory damages, and attorneys’ fees and costs. 4 i. Injunctive Relief 5 Johnson requests an order directing Huong-Que Restaurant to “provide wheelchair 6 accessible inside and outside dining surfaces.” Mot. at 1. Aggrieved individuals “may obtain 7 injunctive relief against public accommodations with architectural barriers, including ‘an order to 8 alter facilities to make such facilities readily accessible to and usable by individuals with 9 disabilities.’” M.J. Cable, 481 F.3d at 730 (quoting 42 U.S.C. § 12188 (a)(2)). Injunctive relief is 10 also available under the Unruh Act. See Cal. Civ. Code § 52.1 (h). Injunctive relief is thus proper 11 where Johnson establishes that “architectural barriers at the defendant’s establishment violate the 12 ADA and the removal of the barriers is readily achievable.” Ridola, 2018 WL 2287668 at *13 13 (citing Moreno v. La Curacao, 463 Fed. Apps. 669, 670 (9th Cir. 2011)). For the reasons 14 discussed above, Johnson has done so here. Accordingly, the Court grants Johnson’s request for 15 injunctive relief to bring the dining surfaces in line with the 2010 ADAAG Standards. 16 ii. Statutory Damages 17 Johnson seeks statutory damages of $4,000 for the single instance of discrimination he 18 encountered at Huong-Que Restaurant. Compl. at 7. As pleaded, the Court finds that Johnson is 19 entitled to the statutory damages for his single visit to the restaurant. 20 iii. Attorney’s Fees and Costs 21 Johnson requests $2,000 in attorneys’ fees under both the ADA and the Unruh Act for 22 work performed by four attorneys and two legal assistants. Mot. at 15. In support of the fees 23 requested, Johnson presents detailed billing entries attached to Russell Handy’s Declaration, 24 expert analysis of fees for ADA-plaintiff attorneys by fee experts Richard Pearl and John 25 O’Connor, and a survey report pulled from the Real Rate Report. Mot. 15–21; see id., Ex. 1 26 (“Handy Decl.”); id., Exs. 6–8. Further, Johnson cites case law from this district and others that 27 have granted attorneys’ fees at the hourly rates Johnson is requesting. Mot. at 17, 20. The Court 1 a. Legal Standard 2 The ADA and the Unruh Act give courts the discretion to award attorneys’ fees to 3 prevailing parties. See M.J. Cable, 481 F.3d at 730 (citing 42 U.S.C. § 12205 ); Cal. Civ. Code § 4 52.1(i). Whether calculating attorneys’ fees under California or federal law, courts follow “the 5 ‘lodestar’ method, and the amount of that fee must be determined on the facts of each case.” 6 Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 978 (9th Cir. 2008) (quoting Ferland v. Conrad 7 Credit Corp., 244 F.3d 1145 , 1149 n.4 (9th Cir. 2001)). Under the lodestar method, the most 8 useful starting point “is the number of hours reasonably expended on the litigation multiplied by a 9 reasonable hourly rate.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). The party seeking an 10 award of fees should submit evidence supporting the hours worked and rates claimed. Id. 11 “In determining a reasonable hourly rate, the district court should be guided by the rate 12 prevailing in the community for similar work performed by attorneys of comparable skill, 13 experience, and reputation.” Chalmers v. City of Los Angeles, 796 F.2d 1205 , 1210–11 (9th Cir. 14 1986). “Generally, the relevant community is the forum in which the district court sits.” Barjon v. 15 Dalton, 132 F.3d 496, 500 (9th. Cir. 1997). The fee applicant bears the burden of producing 16 evidence, other than declarations of interested counsel, that the requested rates are in line with 17 those prevailing in the community for similar services by lawyers of reasonably comparable skill, 18 experience, and reputation. See Blum, 465 U.S. at 896 n.11. Further, the district court should 19 exclude hours that were not reasonably expended. See Hensley, 461 U.S. at 434 . 20 b. Rates 21 The Court finds that the rates Johnson seeks exceed those that have been granted in this 22 community for similar work performed by attorneys of comparable skill, experience, and 23 reputation. The relevant community for this action is the Northern District of California. Indeed, 24 for attorneys with approximately 20 or more years of experience, courts in this district have 25 generally approved hourly rates ranging from $350 to $495 in disability cases. See, e.g., Castillo26 Antonio v. Lam, No. 18-cv-04593-EDL, 2019 WL 2642469 , at *7 (N.D. Cal. Apr. 10, 2019) 27 (approving, on motion for default judgment, $350 hourly rate for attorney with over 20 years of 1 Feb. 21, 2019) (approving $350 hourly rate for attorney with 20 years of litigation experience, 2 noting that requested rate was unopposed by defendant and in line with rates approved in Northern 3 District). Many of these cases have considered the same evidence that Johnson submits here and 4 found that it does not support the rates he seeks. See, e.g., Johnson v. An Khang Mi Gia, 2021 WL 5 3908389, at *7–9 (N.D. Cal. Dec. 14, 2021) (analyzing declarations of Mr. Handy, fee experts Mr. 6 Pearl and Mr. O’Connor, and the Real Rate Report and finding only lower rates justified). 7 This Court finds the analysis of those cases persuasive and will award hourly rates in line 8 with those cases. Mr. Potter will be awarded an hourly rate of $475. See An Khang Mi Gia, 2021 9 WL 3908389 , at *8. Ms. Seabock will be awarded an hourly rate of $350. See Garlic Farm Truck 10 Center LLC, 2021 WL 2457154 , at *10. Mr. Montgomery, whose 11 years of experience is 11 equivalent to that of Ms. Seabock, will be awarded the same hourly rate. Accord id. Ms. Zaman, 12 an attorney who graduated about six years ago, will be awarded $250 per hour. See Johnson v. 13 AutoZone, Inc., 2019 WL 2288111 , at *7 (N.D. Cal. May 29, 2019). 14 Johnson has also requested reimbursement of fees for legal assistants at an hourly rate of 15 $100 and for Marcus Handy at an hourly rate of $200 for “his experience as a skilled legal 16 assistant and paralegal.” See Handy Decl. at 4–5. The Court agrees with other courts in this 17 district that an hourly rate of $100 is reasonable for paralegal and legal assistant fees. See Lopez v. 18 San Francisco Unified Sch. Dist., 385 F. Supp. 2d 981, 992 (N.D. Cal. 2005); Whitaker v. Joe’s 19 Jeans Inc., 2021 WL 2590155 , at *5 (N.D. Cal. June 24, 2021). Court has previously rejected a 20 higher billing rate for Marcus Handy based on similar submissions. See An Khang Mi Gia, 2021 21 WL 5908389 , at *9. For the same reasons, the Court awards a $100 hourly rate for Mr. Handy. 22 c. Hours 23 Johnson requests fees based on 7.8 hours of work. See Handy Decl. at 8–11. This Court 24 and other courts in this district have found as much as 11 hours of work to be reasonable for 25 similar cases. See, e.g., Ridola, 2018 WL 2287668 at *17 (granted motion for default judgment in 26 ADA case, found 11.1 hours to be reasonable). Johnson's billing summary shows 7.8 hours were 27 expended in this litigation: Mr. Potter expended 0.7 hours, Ms. Seabock expended 0.1 hours, Ms. 1 expended 4.8 hours. See Handy Decl. at 8–11. Further, the Court has reviewed the itemized 2 statement of Johnson’s counsel’s legal work and finds no issue with the amount of time or 3 activities that Johnson's counsel has conducted. See id. The number of hours requested is thus 4 reasonable. 5 d. Costs 6 In addition, Johnson seeks service costs ($35), filing fees ($400), and investigation costs 7 ($400). See Mot. at 20; Handy Decl. at 8–9. The ADA provides that the prevailing party may 8 recover “litigation expenses[] and costs.” 42 U.S.C. § 12205 ; see Johnson v. VN Alliance LLC, [9] 2019 WL 2515749 , at *8 (N.D. Cal. June 18, 2019) (awarding costs, filings fees, and investigation 10 costs). Accordingly, the Court grants Johnson’s request for $835 in costs. 11 e. Summary 12 The Court’s award of fees and costs is summarized below. 13 Name Rate Awarded Hours Awarded Fees/Costs Awarded 14 Mark Potter $475 0.7 $332.50 15 Amanda Seabock $350 0.1 $35 16 Elliott Montgomery $350 0.1 $35 17 Tehniat Zaman $250 2.1 $525 18 Marcus Handy $100 1.3 $130 19 Other Staff $100 3.5 $350 20 Total Fees $1,407.50 21 Costs $837 22 TOTAL Fees & Costs $2,244.50 [23] 24 IV. ORDER 25 For the foregoing reasons, IT IS HEREBY ORDERED that: 26 • Johnson’s motion for default judgment is GRANTED IN PART; 27 • Johnson is AWARDED statutory damages in the amount of $4,000; 1 e Johnson is GRANTED an injunction requiring Huong-Que Restaurant to bring its 2 dining surfaces in compliance with the 2010 ADAAG Standards; and 3 e Johnson SHALL promptly serve Huong-Que Restaurant with this Order and file a 4 proof of service with the Court. [5] 6 Dated: March 4, 2022 tn) [7] BETH LABSON FREEMAN 8 United States District Judge [11] a 12 © [16] it Z 18