Johnson v. Shao

[2] 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION [6] 7 SCOTT JOHNSON, Case No. 20-cv-07264-BLF 8 Plaintiff, ORDER GRANTING IN PART 9 v. MOTION FOR DEFAULT JUDGMENT 10 SHIFEN SHAO, [Re: ECF No. 20] 11 Defendant. [13] 14 In this action, Plaintiff Scott Johnson asserts claims under Title III of the Americans with 15 Disabilities Act of 1990, 42 U.S.C. § 12101 , et seq. (“ADA”), and the California Unruh Civil Rights 16 Act, Cal. Civ. Code §§ 51–52 (“Unruh Act”). See ECF No. 1. Johnson seeks injunctive relief, 17 statutory damages, attorneys’ fees, and costs of suit. Id. Defendant Shifen Shao has failed to appear 18 in this matter. At Johnson’s request, the Clerk of Court has entered default against the Defendant. 19 See ECF No. 15. 20 Now before the Court is Johnson’s motion for default judgment. ECF No. 20-1 (“Mot.”). 21 Johnson has provided a proof of service showing that he served the motion on the Defendant, see 22 ECF No. 20-13, although there is no notice requirement for either the entry of default or Johnson’s 23 motion. See Fed. R. Civ. P. 55(a), (b)(2). The Court previously found this motion suitable for 24 determination without oral argument under Local Rule 7-1(b). See ECF No. 21. 25 For the reasons discussed below, the Court GRANTS IN PART the motion for default 26 judgment. 27 I. BACKGROUND 1 significant manual dexterity impairments. ECF No. 1 (“Compl.”) ¶ 1. He uses a wheelchair for 2 mobility and has a specially equipped van. Id. Defendant is the alleged owner of the real property 3 at 5043 Graves Ave in San Jose, California (the “Property”) where the business Jack Tian 4 Acupuncture operates, and she owned the Property in January and March 2020. Id. ¶¶ 2–3. Johnson 5 allegedly went to the Property in January and March 2020 and found that Defendant failed to provide 6 wheelchair accessible parking in conformance with ADA standards. Id. ¶¶ 8, 10. Johnson says that 7 he intends to return to the Property but is currently deterred from doing so because he knows of the 8 lack of wheelchair accessible parking. Id. ¶ 20. Johnson brings claims under the ADA and Unruh 9 Act and seeks injunctive relief, statutory damages, attorneys’ fees, and costs. Id. ¶¶ 22–33; id. at 7. 10 II. LEGAL STANDARD 11 Default may be entered against a party who fails to plead or otherwise defend an action, who 12 is neither a minor nor an incompetent person, and against whom a judgment for affirmative relief is 13 sought. Fed. R. Civ. P. 55(a). After an entry of default, a court may, in its discretion, enter default 14 judgment. Id. R. 55(b)(2); Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). In deciding 15 whether to enter default judgment, a court may consider the following factors: (1) the possibility of 16 prejudice to the plaintiff; (2) the merits of the plaintiff’s substantive claims; (3) the sufficiency of 17 the complaint; (4) the sum of money at stake in the action; (5) the possibility of a dispute concerning 18 material facts; (6) whether the default was due to excusable neglect; and (7) the strong policy 19 underlying the Federal Rules of Civil Procedure favoring decisions on the merits. Eitel v. McCool, [20] 782 F.2d 1470 , 1471–72 (9th Cir. 1986). In considering these factors, all factual allegations in the 21 plaintiff’s complaint are taken as true, except those related to damages. TeleVideo Sys., Inc. v. 22 Heidenthal, 826 F.2d 915 , 917–18 (9th Cir. 1987). When the damages claimed are not readily 23 ascertainable from the pleadings and the record, the court may either conduct an evidentiary hearing 24 or proceed on documentary evidence submitted by the plaintiff. See Johnson v. Garlic Farm Truck 25 Ctr. LLC, No. 20–cv–03871–BLF, 2021 WL 2457154 , at *2 (N.D. Cal. Jun. 16, 2021). 26 III. DISCUSSION 27 “When entry of judgment is sought against a party who has failed to plead or otherwise 1 matter and parties.” In re Tuli, 172 F.3d 707, 712 (9th Cir. 1999). The Court discusses in turn 2 jurisdiction, service of process, the Eitel factors, and Johnson’s requested relief. 3 A. Jurisdiction 4 The Court has subject matter jurisdiction over this lawsuit. Federal question jurisdiction 5 exists based on Johnson’s federal ADA claim, 28 U.S.C. § 1331 , and the Court can exercise 6 supplemental jurisdiction over his California Unruh Act, id. § 1367. The Court also has personal 7 jurisdiction over Defendant. Johnson has submitted public records indicating that Defendant is a 8 California resident. See Mot., Ex. 5. It thus appears that Defendant is subject to this Court’s general 9 jurisdiction. See Daimler AG v. Baumann, 571 U.S. 117, 134 (2014). 10 B. Service of Process 11 When a plaintiff requests default judgment, the court must assess whether the defendant was 12 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 summons may be served by personal delivery of a copy of the summons 16 and of the complaint to the person to be served. See Cal. Civ. P. Code § 415.10 . A sworn proof of 17 service constitutes “prima facie evidence of valid service which can be overcome only by strong 18 and convincing evidence.” G&G Closed Cir. Events, LLC v. Macias, No. 20–cv–02916–BLF, [19] 2021 WL 2037955 , at *2 (N.D. Cal. May 21, 2021) (quoting Securities & Exchg. Comm’n v. 20 Internet Solns. for Business, Inc., 509 F.3d 1161, 1166 (9th Cir. 2007)). 21 Johnson has filed a proof of service indicating that the summons and complaint were 22 personally served on Defendant pursuant to § 415.10. See ECF No. 12. The Court therefore finds 23 that Defendant was properly served with process. 24 C. Eitel Factors 25 The Court finds that the seven Eitel factors support entering a default judgment. 26 a. Factors 1 and 4–7 27 On the first Eitel factor, the Court finds that Johnson would be prejudiced without a default 1 of recourse against Defendant. See Ridola v. Chao, No. 16–cv–02246–BLF, 2018 WL 2287668 , at 2 *5 (N.D. Cal. May 18, 2018) (plaintiff prejudiced without default judgment because she “would 3 have no other means of recourse against Defendants for the damages caused by their conduct”). 4 The fourth Eitel factor requires the Court to consider the sum of money at stake in relation 5 to the seriousness of Defendant’s conduct. Love v. Griffin, No. 18–cv–00976–JSC, [6] 2018 WL 4471073 , at *5 (N.D. Cal. Aug. 20, 2018). Johnson seeks only statutory damages under 7 the Unruh Act. While the sum requested is not insignificant, the Court finds it proportional to the 8 conduct alleged. 9 Under the fifth and sixth Eitel factors, the Court considers whether there is a possibility of a 10 dispute over any material fact and whether Defendant’s failure to respond was the result of excusable 11 neglect. See Love, 2018 WL 4471073 , at *5; Ridola, 2018 WL 2287668 , at *13. Because Johnson 12 pleads plausible claims for violations of the ADA and the Unruh Act, and as all liability-related 13 allegations are deemed true, there is nothing before the Court that indicates a possibility of a dispute 14 as to material facts. Moreover, there is no indication that Defendant’s default was due to excusable 15 neglect. Defendant has not appeared or responded in this action, suggesting that she has chosen not 16 to present a defense in this matter. Accordingly, these factors weigh in favor of default judgment. 17 On the seventh and final Eitel factor, while the Court prefers to decide matters on the merits, 18 Defendant’s failure to participate in this litigation makes that impossible. See Ridola, [19] 2018 WL 2287668 , at *13 (“Although federal policy favors decision on the merits, Rule 55(b)(2) 20 permits entry of default judgment in situations, such as this, where a defendant refuses to litigate.”). 21 Default judgment, therefore, is Johnson’s only recourse. See United States v. Roof Guard Roofing 22 Co. Inc., No. 17–cv–02592–NC, 2017 WL 6994215 , at *3 (N.D. Cal. Dec. 14, 2017) (“When a 23 properly adversarial search for the truth is rendered futile, default judgment is the appropriate 24 outcome.”). 25 b. Factors 2 and 3 26 Under Eitel factors 2 and 3, the Court finds that the Complaint alleges meritorious 27 substantive claims for relief under the ADA and the Unruh Act. 1 suffered an injury in fact, traceable to Defendant’s conduct, and redressable by a favorable court 2 decision. Ridola, 2018 WL 2287668 , at *5 (citing Hubbard v. Rite Aid Corp., 433 F.Supp.2d 1150 , 3 1162 (S.D. Cal. 2006)). Johnson claims that he suffers from a disability, that he personally 4 encountered access barriers at the Property because it lacked wheelchair-accessible parking, and 5 that he will return to the Property once it is made accessible. Compl. ¶¶ 10–12, 15, 20; see Vogel v. 6 Rite Aid Corp., 992 F.Supp.2d 998, 1008 (C.D. Cal. 2014) (“Demonstrating an intent to return to a 7 non-compliant accommodation is but one way for an injured plaintiff to establish Article III standing 8 to pursue injunctive relief.”). Johnson thus adequately alleged that he has standing under the ADA. 9 On the merits, Title III of the ADA provides that “[n]o individual shall be discriminated 10 against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, 11 privileges, advantages, or accommodations of any place of public accommodation by any person 12 who owns, leases (or leases to), or operates a place of public accommodation.” [13] 42 U.S.C. § 12182 (a). For purposes of Title III, discrimination includes “a failure to remove 14 architectural barriers ... in existing facilities ... where such removal is readily achievable[.]” [15] 42 U.S.C. § 12182 (b)(2)(A)(iv). To prevail on his Title III discrimination claim, Johnson must show 16 that (1) he is disabled within the meaning of the ADA; (2) Defendant is a person that owns, leases, 17 or operates a place of public accommodation; and (3) Johnson was denied public accommodations 18 by Defendant because of his disability. See Molski v. M.J. Cable, Inc., 481 F.3d 724, 730 (9th Cir. 19 2007); 42 U.S.C. § 12182 . To succeed on an ADA claim based on architectural barriers, Johnson 20 “must also prove that: (1) the existing facility presents an architectural barrier prohibited under the 21 ADA; and (2) the removal of the barrier is readily achievable.” Ridola, 2018 WL 2287668 , at *5. 22 Johnson has plausibly pled an ADA claim. First, Johnson has adequately alleged that he has 23 a disability within the meaning of the ADA by alleging that he is a C-5 quadriplegic who cannot 24 walk and uses a wheelchair for mobility. Compl. ¶ 1. Second, he has alleged that Defendant is a 25 person who owns, leases, or operates a place of public accommodation—the Property where the 26 business Jack Tian Acupuncture operates. Id. ¶¶ 2–3, 9; see also 42 U.S.C. § 12181 (7)(F) (listing 27 “professional office of a health care provider, hospital, or other service establishment” as a place of 1 encountered an access barrier: the lack of wheelchair-accessible parking. Compl. ¶¶ 10–15. 2 Johnson has also alleged that removal of these barriers is “readily achievable” because they are 3 “easily removed without much difficulty or expense” and they are an example of “the types of 4 barriers identified by the Department of Justice as presumably readily achievable to remove.” Id. 5 ¶ 19; see also Garlic Farm Truck Ctr. LLC, 2021 WL 2457154 , at *6 (finding these allegations 6 sufficient at default judgment stage). If true, these facts would result in violation of the 2010 ADA 7 Accessibility Guidelines (ADAAG), which require that at least one parking space shall comply with 8 certain width and access aisle requirements. See ADAAG §§ 208, 502; see also id. §§ 216.5. 9 Accordingly, Johnson adequately alleges that Defendant violated accessibility standards, and that 10 he was denied full and equal access because of his disability. 11 In sum, the Court finds that Johnson’s ADA claim is adequately pled and substantively 12 meritorious in light of Defendant’s failure to respond in this action. Because “[a]ny violation of the 13 ADA necessarily constitutes a violation of the Unruh Act,” M.J. Cable, 481 F.3d at 731 , Johnson 14 has also sufficiently alleged an Unruh Act claim. Thus, the second and third Eitel factors also favor 15 default judgment. 16 D. Requested Relief 17 The Court has found default judgment appropriate, so now it considers Johnson’s request 18 for injunctive relief, statutory damages, and attorneys’ fees and costs. 19 i. Injunctive Relief 20 Johnson requests an order directing Defendant to “provide wheelchair accessible parking 21 space.” Mot. at 1. Aggrieved individuals “may obtain injunctive relief against public 22 accommodations with architectural barriers, including ‘an order to alter facilities to make such 23 facilities readily accessible to and usable by individuals with disabilities.’” M.J. Cable, 481 F.3d 24 at 730 (quoting 42 U.S.C. § 12188 (a)(2)). Injunctive relief is also available under the Unruh Act. 25 See Cal. Civ. Code § 52.1 (h). Injunctive relief is thus proper where Johnson establishes that 26 “architectural barriers at the defendant’s establishment violate the ADA and the removal of the 27 barriers is readily achievable.” Ridola, 2018 WL 2287668 , at *13 (citing Moreno v. La Curacao, 1 here. Accordingly, the Court grants Johnson’s request for injunctive relief to bring its parking lot 2 in line with the 2010 ADAAG Standards. 3 ii. Statutory Damages 4 Johnson seeks statutory damages of $4,000 each for the two instances of discrimination he 5 encountered at the Property, for a total of $8,000. Compl. at 7; Mot. at 14. The Court has previously 6 declined to award statutory damages for multiple visits to the same facility on a motion for default 7 judgment. See Garlic Farm Truck Ctr. LLC, 2021 WL 2457154 , at *8 (granting only $4,000 in 8 statutory damages because “it is unclear why [Johnson] repeatedly visited [the facility] when he 9 knew the business was in violation of the ADA” and “[b]ehavior by [Johnson] indicates that his 10 repeated visits are motivated by a desire to increase statutory damages”). For those same reasons, 11 the Court will award only $4,000 in statutory damages here. [12] iii. Attorney’s Fees and Costs [13] Johnson requests $2,315 in attorneys’ fees under both the ADA and the Unruh Act for work [14] performed by five attorneys and two legal assistants. Mot. at 14. In support of the fees requested, [15] Johnson presents detailed billing entries attached to Russell Handy’s Declaration, expert analysis of [16] fees for ADA-plaintiff attorneys by fee experts Richard Pearl and John O’Connor, and a survey [17] report pulled from the Real Rate Report. Mot. 14–18; see id., Ex. 1 (“Handy Decl.”); id., Exs. 6–8. [18] Further, Johnson cites case law from this district and others that have granted attorneys’ fees at the [19] hourly rates Johnson is requesting. Mot. at 16, 18–20. The Court finds that this evidence only [20] partially substantiates Johnson’s requests. [21] a. Legal Standard [22] The ADA and the Unruh Act give courts the discretion to award attorneys’ fees to prevailing [23] parties. See M.J. Cable, 481 F.3d at 730 (citing 42 U.S.C. § 12205 ); Cal. Civ. Code § 52.1 (i). [24] Whether calculating attorneys’ fees under California or federal law, courts follow “the ‘lodestar’ [25] method, and the amount of that fee must be determined on the facts of each case.” Camacho v. [26] Bridgeport Fin., Inc., 523 F.3d 973, 978 (9th Cir. 2008) (quoting Ferland v. Conrad Credit Corp., [27] 244 F.3d 1145 , 1149 n.4 (9th Cir. 2001)). Under the lodestar method, the most useful starting point 1 “is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly 2 rate.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). The party seeking an award of fees should 3 submit evidence supporting the hours worked and rates claimed. Id. 4 “In determining a reasonable hourly rate, the district court should be guided by the rate 5 prevailing in the community for similar work performed by attorneys of comparable skill, 6 experience, and reputation.” Chalmers v. City of Los Angeles, 796 F.2d 1205 , 1210–11 (9th Cir. 7 1986). “Generally, the relevant community is the forum in which the district court sits.” Barjon v. 8 Dalton, 132 F.3d 496, 500 (9th. Cir. 1997). The fee applicant bears the burden of producing 9 evidence, other than declarations of interested counsel, that the requested rates are in line with those 10 prevailing in the community for similar services by lawyers of reasonably comparable skill, 11 experience, and reputation. See Blum v. Stenson, 465 U.S. 886 , 895 n.11 (1984). Further, the district 12 court should exclude hours that were not reasonably expended. See Hensley, 461 U.S. at 434 . [13] b. Rates [14] The Court finds that the rates Johnson seeks exceed those that have been granted in this [15] community for similar work performed by attorneys of comparable skill, experience, and reputation. [16] The relevant community for this action is the Northern District of California. Indeed, for attorneys [17] with approximately 20 or more years of experience, courts in this district have generally approved [18] hourly rates ranging from $350 to $495 in disability cases. See, e.g., Castillo-Antonio v. Lam, [19] No. 18–cv–04593–EDL, 2019 WL 2642469 , at *7 (N.D. Cal. Apr. 10, 2019) (approving, on motion [20] for default judgment, $350 hourly rate for attorney with over 20 years of experience); Johnson v. [21] Castagnola, No. 18–cv–00583–SVK, 2019 WL 827640 , at *2 (N.D. Cal. Feb. 21, 2019) (approving [22] $350 hourly rate for attorney with 20 years of litigation experience, noting that requested rate was [23] unopposed by defendant and in line with rates approved in Northern District). Many of these cases [24] have considered the same evidence that Johnson submits here and found that it does not support the [25] rates he seeks. See, e.g., Johnson v. Huong-Que Restaurant, No. 21–cv–04133–BLF, [26] 2022 WL 658973 , at *5 (N.D. Cal. Mar. 4, 2022) (analyzing declarations of Mr. Handy, fee experts [27] Mr. Pearl and Mr. O’Connor, and the Real Rate Report and finding only lower rates justified). 1 This Court finds the analysis of those cases persuasive and will award hourly rates in line 2 with those cases. Mr. Potter will be awarded an hourly rate of $475. See Huong-Que, [3] 2022 WL 658973 , at *5; Johnson v. An Khang Mi Gia, No. 5:21–cv–01702–BLF, [4] 2021 WL 5908389 , at *8 (N.D. Cal. Dec. 14, 2021). Ms. Zaman and Ms. Gutierrez, who both 5 graduated in 2015, will be awarded $250 per hour. See An Khang, 2021 WL 5908389 , at *8; 6 Johnson v. AutoZone, Inc., No. 17–cv–02941–PJH, 2019 WL 2288111 , at *7 (N.D. Cal. May 29, 7 2019); Johnson v. 480 Geary St., No. 19–cv–02460–JSW, 2021 WL 5407874 , at *6 (N.D. Cal. 8 Jan. 27, 2021) (awarding Ms. Gutierrez $250 per hour). 9 Johnson has also requested reimbursement of fees for legal assistants at an hourly rate of 10 $100 and for Marcus Handy at an hourly rate of $200 for “his experience as a skilled legal assistant 11 and paralegal.” See Handy Decl. ¶¶ 6–7. The Court agrees with other courts in this district that an 12 hourly rate of $100 is reasonable for paralegal and legal assistant fees. See Lopez v. San Francisco 13 Unified Sch. Dist., 385 F. Supp. 2d 981, 992 (N.D. Cal. 2005); Whitaker v. Joe’s Jeans Inc., 14 No. 21–cv–00597–CRB, 2021 WL 2590155 , at *5 (N.D. Cal. June 24, 2021). The Court has 15 previously rejected a higher billing rate for Marcus Handy based on similar submissions. See An 16 Khang Mi Gia, 2021 WL 5908389 , at *9. For the same reasons, the Court awards a $100 hourly 17 rate for Mr. Handy. 18 c. Hours 19 Johnson requests fees based on 9.1 hours of work. See Handy Decl. at 9–10. This Court 20 and other courts in this district have found as much as 11 hours of work to be reasonable for similar 21 cases. See, e.g., Ridola, 2018 WL 2287668 at *17 (granted motion for default judgment in ADA 22 case, found 11.1 hours to be reasonable). Johnson’s billing summary shows 9.1 hours were 23 expended in this litigation: Mr. Potter expended 0.7 hours, Ms. Zaman expended 1.6 hours, Ms. 24 Guiterrez expended 1 hour, and paralegals and staff expended 5.8 hours. See Handy Decl. at 9–10. 25 Further, the Court has reviewed the itemized statement of Johnson’s counsel’s legal work and finds 26 no issue with the amount of time or activities that Johnson’s counsel has conducted. See id. The 27 number of hours requested is thus reasonable. d. Costs [1] In addition, Johnson seeks service costs ($67.50), filing fees ($400), and investigation [2] costs ($400). See Mot. at 21; Handy Decl. at 10–11. The ADA provides that the prevailing party [3] may recover “litigation expenses[] and costs.” 42 U.S.C. § 12205 ; see Johnson v. VN Alliance LLC, [4] No. 18–cv–01372–BLF, 2019 WL 2515749 , at *8 (N.D. Cal. June 18, 2019) (awarding costs, filings [5] fees, and investigation costs). Accordingly, the Court grants Johnson’s request for $867.50 in costs. [6] 7 e. Summary 8 The Court’s award of fees and costs is summarized below. 9 Name Rate Awarded Hours Awarded Fees/Costs Awarded 10 Mark Potter $475 0.7 $332.50 11 Tehniat Zaman $250 1.6 $400 12 Faythe Gutierrez $250 1 $250 13 Marcus Handy $100 2.4 $240 14 Other Staff $100 3.4 $340 15 Total Fees $1,562.50 16 Costs $867.50 17 TOTAL Fees & Costs $2,430.00 [18] 19 / / / 20 / / / 21 / / / 22 / / / 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 1 IV. ORDER 2 For the foregoing reasons, IT IS HEREBY ORDERED that: 3 e Johnson’s motion for default judgment is GRANTED IN PART; 4 e Johnson is AWARDED statutory damages in the amount of $4,000; 5 e Johnson is AWARDED $2,430 in attorneys’ fees and costs; 6 e Johnson is GRANTED an injunction requiring Defendant to provide wheelchair 7 accessible parking space at 5043 Graves Ave in San Jose, California in compliance 8 with the 2010 ADAAG Standards; 9 e Johnson SHALL promptly serve Defendant with this Order and file a proof of service 10 with the Court; and 11 e Plaintiff SHALL submit a proposed judgment and injunction that is consistent with 12 this order within 7 days. é 13 || Dated: March 14, 2022 kom Lh han tn) BETH LABSON FREEMAN 15 United States District Judge