Block v. Gennaro's Limited Liability Company

[3] 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION [7] 8 HENDRIK BLOCK, Case No. 21-cv-00192-VKD 9 Plaintiff, ORDER GRANTING PLAINTIFF’S 10 v. MOTION FOR DEFAULT JUDGMENT AGAINST DEFENDANT GENNARO’S 11 GENNARO'S LIMITED LIABILITY LIMITED LIABILITY COMPANY COMPANY, et al., 12 Re: Dkt. No. 83 Defendants. [13] 14 In this disability rights action, plaintiff Hendrik Block sues for alleged accessibility 15 violations he says he encountered during a September 2020 visit to a store then known as Kwik & 16 Convenient (“Facility”) in San Jose, California.1 He asserts claims under Title III of the 17 Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12181 , et seq., the California 18 Unruh Civil Rights Act (“Unruh Act”), Cal. Civ. Code §§ 51-53 , and the California Health & 19 Safety Code §§ 19953, et seq. Mr. Block seeks injunctive relief, as well as statutory damages, 20 attorneys’ fees and costs. 21 Earlier this year, Mr. Block reached a settlement with defendant Ganeshkrupa 86 22 Corporation (“Ganeshkrupa 86”), which operates the Facility. Mr. Block has since dismissed 23 Ganeshkrupa 86 from this case. Dkt. No. 80. 24 Mr. Block now moves for default judgment on his ADA and Unruh Act claims2 against the [25] 1 According to Mr. Block, the store is now known as BWS Beer Wine Spirits. See Dkt. No. 83 at [26] 1. [27] 2 Mr. Block’s motion does not seek judgment based on his claim under the California Health & 1 sole remaining defendant, Gennaro’s Limited Liability Company (“Gennaro’s”), which is 2 identified as the owner of the real property where the Facility is located. Dkt. No. 83 at 1. 3 Although Gennaro’s initially appeared through counsel in this action, the Court subsequently 4 granted counsel leave to withdraw from this matter, on the condition that they must continue to 5 accept service of papers for the purpose of forwarding them to Gennaro’s. Dkt. No. 70. The 6 Court also warned Gennaro’s that it must retain new counsel and that the failure to do so may lead 7 to an order striking its pleadings or entry of Gennaro’s default. Id. 8 Gennaro’s has not appeared through other counsel, and Mr. Block says that Gennaro’s has 9 stopped participating in the litigation. At his request, the Clerk of the Court entered Gennaro’s 10 default on March 23, 2022. Dkt. No. 78. 11 In his motion for default judgment, Mr. Block requests an order striking Gennaro’s answer 12 to the First Amended Complaint (“FAC”), the operative pleading, and requiring Gennaro’s to 13 provide injunctive relief, and to pay $4,000 in statutory damages, $63,116.50 in attorney’s fees 14 and $10,494.38 costs, less an offset of $12,250 for the settlement with Ganeshkrupa 86. See Dkt. 15 No. 83 at 24. Pursuant to the Court’s interim order (Dkt. No. 84), Mr. Block submitted a 16 certificate of service indicating that he served his motion papers on Gennaro’s. See Dkt. No. 85. 17 The Court has received no request from Gennaro’s to set aside its default and Gennaro’s has not 18 responded to the pending motion for default judgment. The matter is deemed suitable for 19 determination without oral argument. The June 28, 2022 hearing is vacated. Civil L.R. 7-1(b). 20 For the reasons discussed below, Mr. Block’s motion for default judgment is granted; however, 21 the Court awards a modified sum in attorney’s fees and costs.3 22 I. BACKGROUND 23 According to the FAC, Mr. Block is substantially limited in his ability to walk and requires 24 a cane, walker, wheelchair, or electric scooter for mobility. Dkt. No. 33 ¶ 8. Mr. Block says that 25 he regularly travels to the area where the Facility is located. Id. ¶ 10. On September 30, 2020, he 26 visited the Facility to buy some refreshments. Id. During that visit, Mr. Block says that he could [27] 1 not locate any designated accessible parking stalls in the Facility’s parking lot. As a result, Mr. 2 Block says that he had to park in a standard parking stall that lacked an access aisle that he needs 3 in order to unload his mobility scooter. Id. ¶ 10(a). Mr. Block was forced to rely on his cane, 4 which he says “was difficult and painful.” Id. Additionally, Mr. Block says that he could not find 5 a ramp providing access to the walkway leading to the Facility’s entrance. Thus, he was required 6 to step up onto the curb, “exacerbating the pain and difficulty he experienced.” Id. ¶ 10(b). 7 After filing the present lawsuit, Mr. Block hired a Certified Access Specialist to inspect the 8 Facility as part of the procedures required under General Order No. 56. Dkt. No. 83-1 ¶ 4. 9 According to Mr. Block, the inspection was held on April 19, 2021 and was attended by Mr. 10 Block, Tanya Moore (Mr. Block’s counsel), Mr. Block’s access specialist, and defendant 11 Ganeshkrupa 86, which was not represented by counsel at that time. Dkt. No. 83-1 ¶ 7. 12 Gennaro’s, which was represented by Stephan Barber and other attorneys at the firm of JRG 13 Attorneys at Law, apparently did not attend the inspection. See id. 14 During the inspection, it was noted that there was a newly designated accessible parking 15 stall, access aisle, and curb ramp near the entrance to the Facility. However, Mr. Block’s access 16 specialist determined that those alterations had not been done correctly. For example, Mr. Block 17 says that the new curb ramp is located within the access aisle, causing excessive slopes in the 18 access aisle. Id. ¶ 5. 19 Ms. Moore avers that around May 13, 2021, Mr. Barber advised that Ganeshkrupa 86 had 20 also retained him to represent it in this matter. Id. ¶ 8. Ms. Moore says that the parties scheduled 21 the required General Order No. 56 settlement meeting for May 24, 2021, but had to reschedule the 22 meeting for the following day when defendants failed to appear for the originally scheduled 23 meeting time. Id. ¶ 9. 24 The parties did not reach a settlement during their settlement meeting or the subsequent 25 August 4, 2021 mediation. See id. ¶ 10; see also Dkt. Nos. 20, 23. On August 31, 2021, the Court 26 held a case management conference and issued a scheduling order setting deadlines, including a 27 January 31, 2022 fact discovery cutoff, an August 24, 2022 final pretrial conference, and a three1 On September 9, 2021, Mr. Block filed his FAC, identifying various accessibility barriers 2 both inside and outside the Facility. Dkt. No. 33. For present purposes, Mr. Block seeks an order 3 requiring Gennaro’s to remove all of the exterior accessibility barriers alleged in the FAC, which 4 are discussed in more detail below. See id. ¶ 11(a)-(k). 5 Mr. Block says that he proceeded with discovery regarding the Facility’s construction and 6 alteration history, including written discovery requests to the defendants, subpoena(s) for 7 documents to the Facility’s former tenants, a request to the local building authority, and 8 depositions of Ganeshkrupa 86 and the Facility’s former tenant. Dkt. No. 83-1 ¶ 11. 9 Mr. Block states that in late December 2021, Mr. Barber advised that defendants had been 10 sued in another accessibility lawsuit brought by a different plaintiff, Scott Johnson. Id. ¶ 12; see 11 also No. 5:21-cv-08102-SVK, Johnson v. Gennaro’s Limited Liability Company, et al. (“Johnson 12 Action”). Mr. Barber further stated that defendants would not permit any discovery or depositions 13 to proceed until they brought a motion asking this Court to consolidate both lawsuits. Mr. Block 14 agreed to stipulate to an extension of discovery deadlines while defendants’ anticipated motion for 15 consolidation was pending, but he otherwise opposed consolidation of the two lawsuits. Id. 16 On January 6, 2022, the parties filed their stipulated request to extend discovery. Dkt. No. 17 35. The Court denied that request the following day, finding that neither “the existence of 18 unresolved discovery disputes” nor the “pendency of another action, which may or may not be 19 consolidated with the present matter” constituted good cause to delay discovery. Dkt. No. 36. 20 However, Ms. Moore states that defense counsel nonetheless refused to schedule depositions 21 while defendants’ motion for consolidation was pending. See Dkt. No. 83-1 ¶ 13; see also Dkt. 22 Nos. 37, 46, 50, 51. In resolving that deposition dispute, the Court briefly extended discovery for 23 two weeks. Dkt. No. 51. Additionally, at the parties’ request the Court referred this matter to 24 Magistrate Judge Tse for a settlement conference. See Dkt. Nos. 36, 56. 25 Meanwhile, on January 7, 2022 defendants moved to consolidate the present lawsuit with 26 the Johnson Action. Dkt. No. 41. Shortly after, on January 14, 2022, defense counsel moved to 27 withdraw as counsel of record for both defendants, citing a conflict of interest. Dkt. No. 52. 1 was not warranted. Dkt. No. 69. Defense counsel’s motion to withdraw was granted as to 2 Ganeshkrupa 86, which had already obtained other counsel. Dkt. Nos. 62, 63. The motion to 3 withdraw was denied as to Gennaro’s, without prejudice to defense counsel providing additional 4 information on a renewed motion. Dkt. No. 62. 5 On February 23, 2022, the Court conditionally granted defense counsel’s renewed motion 6 for leave to withdraw as counsel of record for Gennaro’s. Dkt. No. 70. The Court granted the 7 motion subject to the condition that “Messrs. Barber and Cox and JRG Attorneys at Law shall 8 continue to accept service of papers for the purpose of forwarding them to Gennaro’s until 9 Gennaro’s obtains substitute counsel or until the Court orders otherwise.” Id. at 4 (citing Civil 10 L.R. 11-5(b)). Additionally, the order advised Gennaro’s that it may not proceed without an 11 attorney in this lawsuit; that it retains all the obligations of a litigant; and that its failure to obtain 12 other counsel may lead to an order striking its pleadings or entry of its default. Id. at 4-5. Further, 13 Gennaro’s was given until March 18, 2022 to obtain new counsel or show cause why it needed 14 additional time to secure new counsel. Id. at 5. 15 There is no indication that Gennaro’s has obtained other counsel. Additionally, Ms. Moore 16 states that Gennaro’s did not appear for its noticed deposition. Dkt. No. 83-1 ¶ 14. 17 Mr. Block and Ganeshkrupa 86 participated in a settlement conference on March 21, 2022 18 with Judge Tse. Dkt. No. 76. Gennaro’s did not participate in those proceedings. Id. As noted 19 above, Mr. Block and Ganeshkrupa 86 agreed to a settlement, the terms of which otherwise are 20 confidential, but which Mr. Block says include a $12,250 monetary payment as a negotiated sum 21 for Ganeshkrupa 86’s portion of Mr. Block’s fees and costs. Id.; Dkt. No. 83-1 ¶ 15. Mr. Block 22 also notes that Ganeshkrupa 86 entered into a consent decree in the Johnson Action. Dkt. No. 8323 1 ¶ 16, Ex. B. However, Mr. Block contends that the consent decree in the Johnson Action is not 24 as comprehensive as the injunctive relief he now seeks from Gennaro’s. 25 II. LEGAL STANDARD 26 Default may be entered against a party who fails to plead or otherwise defend an action. 27 Fed. R. Civ. P. 55(a). After entry of default, a court may, in its discretion, enter default judgment. 1 Fed. R. Civ. P. 55(b)(2);4 Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). In deciding 2 whether to enter default judgment, a court may consider the following factors: (1) the possibility 3 of prejudice to the plaintiff; (2) the merits of the plaintiff’s substantive claim; (3) the sufficiency of 4 the complaint; (4) the sum of money at stake in the action; (5) the possibility of a dispute 5 concerning material facts; (6) whether the default was due to excusable neglect; and (7) the strong 6 policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits. Eitel v. 7 McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). In considering these factors, all factual 8 allegations in the plaintiff’s complaint are taken as true, except those relating to damages. 9 TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987). The court may hold a 10 hearing to conduct an accounting, determine the amount of damages, establish the truth of any 11 allegation by evidence, or investigate any other matter. Fed. R. Civ. P. 55(b)(2). 12 III. DISCUSSION 13 A. Jurisdiction 14 “When entry of judgment is sought against a party who has failed to plead or otherwise 15 defend, a district court has an affirmative duty to look into its jurisdiction over both the subject 16 matter and the parties.” In re Tuli, 172 F.3d 707, 712 (9th Cir. 1999). 17 Federal question jurisdiction is based on Mr. Block’s ADA claim for relief. 28 U.S.C. 18 § 1331. The Court has supplemental jurisdiction over his Unruh Act claim pursuant to 28 U.S.C. 19 § 1367. 20 This Court is also satisfied that personal jurisdiction exists over Gennaro’s. Mr. Block’s 21 FAC and public records submitted with the present motion indicate that Gennaro’s is a California 22 limited liability company that owns the real property in San Jose, California on which the Facility 23 is located. Dkt. No. 33 ¶ 7; Dkt. No. 83-1 ¶ 2; Dkt. No. 83-2, Ex. A. See Daimler AG v. Bauman, [24] 571 U.S. 117, 137 (2014) (“With respect to a corporation, the place of incorporation and principal 25 place of business are paradig[m] . . . bases for general jurisdiction.”) (internal quotations and [27] 4 “A default judgment may be entered against a minor or incompetent person only if represented 1 citation omitted) (alteration in original); Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 2 U.S. 915 , 919 (2011) (“Specific jurisdiction . . . depends on an affiliation between the forum and 3 the underlying controversy, principally, activity or an occurrence that takes place in the forum 4 State and is therefore subject to the State’s regulation.”). 5 B. Service of Process 6 Pursuant to Rule 4(h)(1)(B) of the Federal Rules of Civil Procedure, a domestic 7 corporation may be served: 8 by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized by appointment or 9 by law to receive service of process and—if the agent is one authorized by statute and the statute so requires—by also mailing a copy of each to the 10 defendant. 11 Fed. R. Civ. P. 4(h)(1)(B). Alternatively, Rule 4 provides that service on a corporation may be 12 made by “following state law for serving a summons in an action brought in courts of general 13 jurisdiction in the state where the district court is located or where service is made.” Fed. R. Civ. 14 P. 4 (e)(1), (h)(1)(A). 15 California Code of Civil Procedure section 416.10 provides that a corporation may be 16 served by “delivering a copy of the summons and the complaint . . . [t]o the person designated as 17 agent for service of process” or “[t]o the president, chief executive officer, or other head of a 18 corporation, a vice president, a secretary or assistant secretary, a treasurer or assistant treasurer, a 19 controller or chief financial officer, a general manager or person authorized by the corporation to 20 receive service of process.” Cal. Code Civ. Proc. § 416.10(a), (b). In lieu of personal delivery, 21 California law permits substituted service on a person to be served under section 416.10 by 22 (1) “leaving a copy of the summons and the complaint during usual office hours in his or her 23 office . . . with the person who is apparently in charge thereof” and (2) “thereafter mailing a copy 24 of the summons and complaint by first-class mail, postage prepaid to the person to be served at the 25 place where a copy of the summons and complaint were left.” Cal. Code Civ. Proc. § 415.20(a). 26 Mr. Block filed a proof of service indicating that Gennaro’s was served on February 9, 27 2021. Dkt. No. 9. Gennaro’s subsequently appeared through counsel and answered both the 1 served with process. See generally Dick v. Corman, No. 21-cv-07169-JSC, 2022 WL 1211400 , at 2 *2 (N.D. Cal. Apr. 25, 2022) (“‘A general appearance by a party is equivalent to personal service 3 of summons on such party.’”) (quoting Cal. Civ. Proc. Code § 410.50 (a)). 4 C. Eitel Factors 5 The Eitel factors weigh in favor of entering default judgment. 6 1. The possibility of prejudice to Mr. Block 7 The first Eitel factor requires the Court to consider whether Mr. Block would be prejudiced 8 if default judgment is not entered. The record demonstrates that although Gennaro’s initially 9 appeared in this matter, Gennaro’s has become unresponsive and failed to defend this action. As 10 discussed below, the relief sought by Mr. Block overlaps, in some respects, with the relief 11 Ganeshkrupa 86 apparently has agreed to provide pursuant to the consent decree entered in the 12 Johnson Action. However, insofar as that consent decree is conditioned on obtaining Gennaro’s 13 consent for alterations to the exterior of the Facility (Dkt. No. 83-2, Ex. B ¶ 7)—i.e., the only 14 alterations at issue here—the Court agrees that unless default judgment is entered, Mr. Block will 15 have no other means of recourse. This factor weighs in favor of default judgment. See, e.g., 16 Ridola v. Chao, No. 16-cv-02246-BLF, 2018 WL 2287668 , at *5 (N.D. Cal., May 18, 2018) 17 (finding that the plaintiff would be prejudiced if default judgment were not entered because she 18 “would have no other means of recourse against Defendants for the damages caused by their 19 conduct.”). 20 2. The merits of Mr. Block’s claims and the sufficiency of the complaint 21 Pursuant to the second and third Eitel factors, this Court concludes that the FAC alleges 22 meritorious substantive claims for relief. 23 a. ADA Title III, 42 U.S.C. § 12181 , et seq. 24 Title III of the ADA prohibits discrimination by places of public accommodation: “No 25 individual shall be discriminated against on the basis of disability in the full and equal enjoyment 26 of the goods, services, facilities, privileges, advantages, or accommodations of any place of public 27 accommodation by any person who owns, leases (or leases to), or operates a place of public 1 Block must show that (1) he is disabled within the meaning of the ADA; (2) Gennaro’s is a private 2 entity that owns, leases (or leases to), or operates a place of public accommodation; and (3) he was 3 denied public accommodations by Gennaro’s because of his disability. 42 U.S.C. § 12182 (a)-(b); 4 Molski v. M.J. Cable, Inc., 481 F.3d 724, 730 (9th Cir. 2007). 5 i. Mr. Block’s Article III Standing 6 Turning first to Mr. Block’s Article III standing to pursue his ADA claim: To establish 7 Article III standing to bring an ADA claim, Mr. Block must demonstrate that he suffered an injury 8 in fact, that the injury is fairly traceable to defendants’ challenged conduct, and that the injury can 9 be redressed by a favorable decision. Ridola, 2018 WL 2287668 at *5 (citing Hubbard v. Rite Aid 10 Corp., 433 F. Supp. 2d 1150, 1162 (S.D. Cal. 2006)). “[A]n ADA plaintiff can establish standing 11 to sue for injunctive relief either by demonstrating deterrence, or by demonstrating injury-in-fact 12 coupled with an intent to return to a noncompliant facility.” Chapman v. Pier 1 Imports (U.S.), 13 Inc., 631 F.3d 939, 944 (9th Cir. 2011). 14 Mr. Block’s FAC alleges that he is disabled within the meaning of the ADA; that he was 15 denied equal access at the Facility; and that he personally encountered barriers to full and equal 16 access there. Dkt. No. 11 ¶¶ 8, 10-11. Specifically, Mr. Block alleges that during his September 17 30, 2020 visit to the Facility, there was no designated accessible parking space and no ramp 18 providing access to the walkway leading to the Facility’s entrance, forcing him to rely on his cane, 19 which caused him pain and difficulty. Dkt. No. 33 ¶ 10. Accepting Mr. Block’s allegations as 20 true, he has demonstrated an injury-in-fact. See Chapman, 631 F.3d at 947 (“Because the 21 ADAAG [ADA Accessibility Guidelines] establishes the technical standards required for ‘full and 22 equal enjoyment,’ if a barrier violating these standards relates to a plaintiff’s disability, it will 23 impair the plaintiff’s full and equal access, which constitutes ‘discrimination’ under the ADA. 24 That discrimination satisfies the ‘injury-in-fact’ element of Lujan.”); see id. at 947 n.4 (“Where 25 the barrier is related to the particular plaintiff’s disability, . . . an encounter with the barrier 26 necessarily injures the plaintiff by depriving him of full and equal enjoyment of the facility.”). 27 The FAC further alleges that Mr. Block is “deterred from visiting the Facility because [he] 1 were and are unavailable to [him] due to [his] physical disabilities.” Dkt. No. 33 ¶ 12. See 2 Chapman, 631 F.3d at 949 (“Demonstrating an intent to return to a noncompliant accommodation 3 is but one way for an injured plaintiff to establish Article III standing to pursue injunctive relief. 4 A disabled individual also suffers a cognizable injury if he is deterred from visiting a 5 noncompliant public accommodation because he has encountered barriers related to his disability 6 there.”). 7 Mr. Block’s factual allegations are accepted as true by virtue of Gennaro’s default, and an 8 award of statutory damages and injunctive relief would redress Mr. Block’s alleged injuries. 9 Accordingly, this Court finds that Mr. Block has Article III standing to sue under the ADA with 10 regard to the barriers he encountered as well as those that are related to his disability that were 11 identified during the parties’ joint site inspection. See id. at 944 (“[W]e hold that an ADA plaintiff 12 who establishes standing as to encountered barriers may also sue for injunctive relief as to 13 unencountered barriers related to his disability.”). 14 ii. Disability 15 Because the complaint’s well-pled factual allegations are deemed true, Mr. Block has 16 established that he is disabled within the meaning of the ADA. Under the ADA, a physical 17 impairment that substantially affects a major life activity, such as walking or performing manual 18 tasks, qualifies as a disability. 42 U.S.C. §§ 12102 (1)(A), 12102(2)(A). As discussed above, Mr. 19 Block says that he is substantially limited in his ability to walk, and must use a cane, walker, 20 wheelchair, or electric scooter for mobility. Dkt. No. 33 ¶ 8. 21 iii. Owns, operates, leases (or leases to) a public accommodation [22] 23 Although the FAC’s allegations are somewhat sparse, the record presented is sufficient to 24 infer that the Facility is a store. Id. ¶¶ 9, 10 ; Dkt. No. 83 at 1. Sales establishments are considered 25 public accommodations under the ADA. See 42 U.S.C. § 12181 (7)(E) (listing “a bakery, grocery 26 store, clothing store, hardware store, shopping center, or other sales or rental establishment” as a 27 “public accommodation”). Mr. Block has also demonstrated that Gennaro’s owns the real 1 iv. Discrimination 2 Unlawful discrimination under the ADA occurs when features of a public accommodation 3 deny disabled persons the opportunity “to participate in or benefit from the goods, services, 4 facilities, privileges, advantages, or accommodations” of the public accommodation. 42 U.S.C. 5 § 12182(b)(1)(A)(i). Such discrimination includes the failure to remove architectural barriers in 6 existing facilities where removal is readily achievable, and the failure to make facilities available 7 to disabled persons through alternative means without much difficulty or expense. Id. 8 § 12182(b)(2)(A)(iv)-(v). The ADAAG “provides the objective contours of the standard that 9 architectural features must not impede disabled individuals’ full and equal enjoyment of 10 accommodations.” Chapman, 631 F.3d at 945 . “Accordingly, a violation of the ADAAG 11 constitutes a barrier under the ADA.” Ridola, 2018 WL 2287668 at *7. Mr. Block contends that 12 the identified accessibility barriers at the Facility violate various provisions of the ADAAG, 1991 13 Standards for Accessible Design (“1991 Standards”) and the 2010 Standards for Accessible 14 Design (“2010 Standards”). 15 “There are three categories of accessibility requirements under Title III of the ADA—the 16 ‘new construction’ provisions . . .; the ‘alteration’ provisions . . .; and the ‘readily achievable’ 17 provisions.’” Castillo-Antonio v. Dabwan, No. 21-cv-02342-DMR, 2022 WL 210395 , at *5 (N.D. 18 Cal. Jan. 7, 2022) (quoting Moeller v. Taco Bell Corp., 816 F. Supp. 2d 831, 847 (N.D. Cal. 2011). 19 “To satisfy these standards, buildings with new construction or post-January 1992 alterations must 20 comply with either the 1991 or 2010 ADA Standards for Accessible Design (ADAAG), depending 21 on the date the construction or alterations began.” Id. at *6 (citing 28 C.F.R. § 36.406 ). For 22 newly constructed facilities,5 “compliance with the ADA’s antidiscrimination mandate requires 23 that facilities be ‘readily accessible to and usable by individuals with disabilities.’” Chapman, 631 24 F.2d at 945 (quoting 42 U.S.C. § 12183 (a)(1)). “In existing but unaltered facilities, barriers must 25 be removed where it is ‘readily achievable’ to do so.” Moeller, 816 F. Supp. 2d at 847 . “The [26] 5 A newly constructed facility is defined one built for first occupancy after January 26, 1993. See [27] 42 U.S.C. § 12183 (a)(1); see also 28 C.F.R. § 36.401 (a)(1) (“discrimination for purposes of this 1 removal of barriers is ‘readily achievable’ when it is ‘easily accomplishable and able to be carried 2 out without much difficulty or expense.’” Id. (quoting 42 U.S.C. §§ 12181 (9), 12182(b) 3 (2)(A)(iv)). “Existing facilities that were altered after January 26, 1992 are also required, ‘to the 4 maximum extent feasible, to be ‘readily accessible to and useable by’ individuals with 5 disabilities.’” Castillo-Antonio, 2022 WL 210395 at *5 (quoting Moeller, 816 F. Supp. 2d at 847 ). 6 “The Justice Department’s ADA Architectural Guidance defines alteration as ‘a change to a place 7 of public accommodation or a commercial facility that affects or could affect the usability of the 8 building or facility or any part thereof.’” Id. at *5 n.3 (quoting Rodriguez v. Barrita, Inc., 10 F. 9 Supp. 3d 1062, 1079 (N.D. Cal. 2014)). 10 Mr. Block alleges, on information and belief, that the Facility was designed and 11 constructed after January 26, 1993. Dkt. No. 33 ¶ 23. He further states that defendants made 12 significant alterations to exterior of the Facility after the present lawsuit was filed. See Dkt. No. 13 83 at 2; see also Dkt. No. 83-1 ¶ 5. In view of those recent alterations, Mr. Block contends that 14 the “readily achievable” defense does not apply to most of the barriers at issue. Dkt. No. 83 at 7 15 n.3. Additionally, the altered portions of the Facility’s exterior must comply with the 2010 16 Standards, which went into effect on March 15, 2012. See Dkt. No. 83 at 6; 28 C.F.R. 17 § 36.304(d)(2)(ii)(B); Kohler v. Flava Enterprises, Inc., 779 F.3d 1016, 1019 (9th Cir. 2015); see 18 also Ridola, 2018 WL 2287668 at *7 (“Alterations to facilities undertaken after March 15, 2012 19 must comply with the 2010 Standards.”). Mr. Block nonetheless cites the 1991 Standards which 20 he says would have applied at the time of his September 30, 2020 visit to the Facility, and he 21 provides his proposed “readily achievable” solutions. 22 Mr. Block has sufficiently alleged the existence of architectural barriers prohibited under 23 the ADA6: [27] 6 Mr. Block states that the specific barriers discussed above excludes those that have already been 1 Route of travel from public sidewalk to Facility entrance (Dkt. No. 33 ¶ 11(a)) 2 Mr. Block’s FAC alleges that “[t]he route of travel from the public sidewalk to the Facility 3 entrance contains excessive slopes in the direction of travel, cross slopes, and vertical height 4 change, and is not properly identified by directional signage.” Dkt. No. 33 ¶ 11(a).7 5 The 1991 Standards provide that “[a]t least one accessible route complying with [section] 6 4.3 shall be provided within the boundary of the site from public transportation stops, accessible 7 parking spaces, passenger loading zones if provided, and public streets or sidewalks, to an 8 accessible building entrance.” 1991 Standards § 4.1.2(1). Section 4.3 of the 1991 Standards, in 9 turn, contains a number of provisions regarding accessible routes. Although Mr. Block does not 10 identify the particular subsections at issue, there are provisions prohibiting excessive slopes or 11 changes in levels. See, e.g., id. §§ 4.3.7, 4.3.8. Mr. Block does not identify the particular 12 provision(s) regarding signage that are at issue. 13 Route of travel from designated accessible parking to Facility entrance 14 Mr. Block’s FAC alleges that “[t]he route of travel from the designated accessible parking 15 to the Facility entrance lacks proper clear width, and contains excessive cross slopes, uneven 16 surfaces, changes in level, and gaps in the walking surface.” Dkt. No. 33 ¶ 11(b). Additionally, 17 Mr. Block alleges that “[t]he route of travel from the southernmost designated accessible parking 18 stall to the Facility entrance contains excessive cross slopes and openings in the walking surface, 19 lacks proper clear width due to the propped-open door, and the top landing of the ramp along this 20 route is excessively sloped.” Id. ¶ 11(h). He contends that these features violate the 1991 21 Standards §§ 4.1.2(1) and “4.3, et seq.” Although Mr. Block does not identify the particular 22 subsections at issue, there are provisions governing slopes, level changes and minimum clear 23 width for accessible routes. See, e.g., 1991 Standards, §§ 4.1.2(1), 4.3, 4.3.3, 4.3.7, 4.3.8. 24 The Johnson Action consent decree requires the provision of “a clear, unobstructed Fully 25 Compliant path of travel, demonstrating surface slopes not in excess of 2%, from the head of the 26 access aisle to the accessible entrance(s) at the Facility.” Dkt. No. 83-2, Ex. B. However, Mr. [27] 1 Block contends that the consent decree is not as comprehensive as the relief he seeks in the present 2 action, including with respect to the need for a curb ramp, remediation of height changes and gaps 3 in the walking surface of accessible routes, and the need for accessible routes from more than one 4 of the designated accessible parking spaces he says is required. Dkt. No. 83 at 8. As noted above, 5 the Court agrees that the Johnson Action consent decree does not preclude Mr. Block’s requested 6 relief, insofar as the consent decree is conditioned on obtaining Gennaro’s consent for alterations 7 to the exterior of the Facility (Dkt. No. 83-2, Ex. B ¶ 7). 8 Ice freezer location 9 Mr. Block alleges that the ice freezer located at the exterior of the Facility “is not located 10 adjacent to an accessible route of travel or proper level clear ground space.” Dkt. No. 33 ¶ 11(c).8 11 Mr. Block contends that this violates the 1991 Standards §§ 4.2.4 and 4.27.2, which require clear 12 floor or ground space for wheelchairs and generally provide that “[c]lear floor space complying 13 with [section] 4.2.4 that allows a forward or a parallel approach by a person using a wheelchair 14 shall be provided at controls, dispensers, receptacles, and other operable equipment.” See 1991 15 Standards § 4.27.2. 16 Insufficient number of designated accessible parking stalls 17 Mr. Block alleges that the Facility has an insufficient number of designated accessible 18 parking stalls and does not have any van-accessible parking stalls. Dkt. No. 33 ¶ 11(e). 19 Additionally, he says that the designated accessible parking stalls that are provided “lack proper 20 dimensions, pavement markings, and signage” (with one stall “lack[ing] an access aisle entirely”) 21 and also “contain excessive slopes, uneven surfaces, changes in level, and openings in the walking 22 surface.” Id. ¶¶ 11(f), (g). Mr. Block states that there are over 50 parking stalls in the Facility’s 23 front and rear parking lots (Dkt. No. 83-1 ¶ 17), and the 1991 Standard § 4.1.2(5) thus requires at 24 least three designated accessible parking stalls, one of which must be van-accessible. See 1991 25 Standards § 4.1.2(5). He does not cite any other provisions of the ADAAG that are at issue. [27] 1 Curb ramp at newly installed designated accessible parking stall 2 With respect to the recently installed designated accessible parking stall, Mr. Block says 3 that “[t]he change in direction transition at the top landing of the newly constructed curb ramp 4 serving the newly constructed designated accessible parking stall is excessively sloped” and that 5 the curb ramp “projects into the access aisle serving the newly constructed designated accessible 6 parking stall, creating excessive slopes and height changes, and the ramp lacks proper clear width 7 and edge protection.” Dkt. No. 33 ¶¶ 11(i), (j); see also Dkt. No. 83-1 ¶ 5. Mr. Block claims that 8 this feature violates the “2010 Standards §§ 406, et seq.” (Dkt. No. 83 at 10), which among other 9 things, provide that “[c]urb ramps and the flared sides of curb ramps shall be located so that they 10 do not project into vehicular traffic lanes, parking spaces, or parking access aisles.” 2010 11 Standards § 406.5. 12 Lack of proper maneuvering clearances at Facility entrance 13 Mr. Block alleges that “[t]he required maneuvering clearances at the exterior side of the 14 Facility entrance contain excessive slopes and openings in the walking surface” (Dkt. No. 33 15 ¶ 11(k)). He claims that this violates 1991 Standards § 4.13.6, which concerns the minimum 16 maneuvering clearances at doors that are not automatic or power-assisted and states that “[t]he 17 floor or ground area within the required clearances shall be level and clear.” 18 v. “Readily achievable” 19 Inasmuch as Mr. Block’s FAC alleges that the Facility was designed and constructed after 20 January 26, 1993, it is not clear why Mr. Block suggests that the “readily achievable” defense may 21 apply to at least some of the barriers at issue. See Dkt. No. 33 ¶ 23; Dkt. No. 83 at 7 n.3. As 22 discussed above, buildings with new construction or post-January 1992 alterations must comply 23 with either the 1991 or 2010 Standards, depending on the date the construction or alterations 24 began.” Castillo-Antonio, 2022 WL 210395 , at *6 (citing 28 C.F.R. § 36.406 ). Nevertheless, 25 even assuming the “readily achievable” defense applies, it does not preclude the relief Mr. Block 26 seeks. 27 In the Ninth Circuit, while an ADA defendant “bears the ultimate burden of persuasion that 1 how the cost of removing the architectural barrier at issue does not exceed the benefits under the 2 circumstances.” Lopez v. Catalina Channel Express, Inc., 974 F.3d 1030, 1038, 1040 (9th Cir. 3 2020). To satisfy their initial burden, plaintiffs are not required to address in detail each of the 4 four factors under 42 U.S.C. § 12181 (9)(A)-(D),9 although “it is in plaintiffs’ best interest to 5 submit as much evidence as possible pertaining to each of the § 12181(9) factors in their initial 6 barrier-removal proposal[.]” Id. at 1039. If the plaintiff meets his initial burden, “the burden 7 shifts to the defendant to counter the plaintiff’s initial showing, and at that point the district court 8 is required under the statute to weigh each of the § 12181(9) factors to determine whether removal 9 of the architectural barrier is readily achievable or not.” Id. 10 Mr. Block contends that removal of many of the barriers in question is readily achievable 11 and can be accomplished without much difficulty or expense. For example, he proposes that the 12 path of travel from the public sidewalk to the Facility entrance can be resurfaced or replaced; the 13 exterior ice freezer can be repositioned so that it is adjacent to the path of travel from the public 14 sidewalk; and the parking lot can be resurfaced as necessary and repainted.. Dkt. No. 83 at 7, 8, 9. 15 Federal regulations provide a non-exclusive list of steps to remove barriers, including 16 “[r]earranging tables, chairs, vending machines, display racks, and other furniture,” and 17 “[c]reating designated accessible parking spaces,” 28 C.F.R. § 36.304 (b)(4), (18), and courts have 18 observed that the listed items are “examples of readily achievable steps to remove barriers . . ..” [20] 9 Under the ADA, the factors to be considered in determining whether an action is “readily achievable” include: [21] (A) the nature and cost of the action needed under this chapter; [22] (B) the overall financial resources of the facility or facilities involved in the action; the number of persons employed at such facility; the effect on [23] expenses and resources, or the impact otherwise of such action upon the operation of the facility; [24] (C) the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; [25] the number, type, and location of its facilities; and (D) the type of operation or operations of the covered entity, including the [26] composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative or fiscal relationship of the facility [27] or facilities in question to the covered entity. 1 Johnson v. Altimira Corp., No. No. 16-cv-05335 NC, 2017 WL 1383469 , at *3 (N.D. Cal. Mar. 2 27, 2017). Moreover, at the default judgment stage, courts have found allegations similar to Mr. 3 Block’s allegations sufficient to show that the removal of the barriers at issue is readily 4 achievable. See, e.g., Castillo-Antonio, 2022 WL 210395 at *7 (concluding that plaintiff met his 5 initial burden where he alleged that the identified barriers “can be simply modified” and removal 6 of the barriers is “readily achievable”); Johnson v. Garlic Farm Truck Ctr., LLC. No. 0-cv-038717 BLF, 2021 WL 2457154 , at *6 (N.D. Cal. June 16, 2021) (concluding that plaintiff met his initial 8 burden where he alleged that the identified barriers are “easily removed without much difficulty or 9 expense” and are “the types of barriers identified by the Department of Justice as presumably 10 readily achievable to [be] remove[d],” and that “there are numerous alternative accommodations” 11 to provide people with disabilities a greater level of access even if defendants could not achieve 12 complete removal of the barriers); Altimira Corp., 2017 WL 1383469 at *3 (concluding that the 13 plaintiff’s allegations, including those concerning accessible parking spaces fell within the scope 14 of readily achievable steps set forth in 28 C.F.R. § 36.304 ). 15 Accordingly, the Court finds that Mr. Block has met his initial burden to plausibly show 16 that the cost of removing the architectural barriers at issue does not exceed the benefits under the 17 circumstances. The burden thus shifts to Gennaro’s to show that removal of the identified barriers 18 is not readily achievable. Gennaro’s, however, has failed to defend this action and has not met its 19 burden. 20 b. Unruh Act Claim 21 “Any violation of the ADA necessarily constitutes a violation of the Unruh Act.” M.J. 22 Cable, Inc., 481 F.3d at 731 (citing Unruh Act, Cal. Civ. Code § 51 (f)). Thus, to the extent Mr. 23 Block has an ADA claim based on the identified barriers at the Facility, he also has an Unruh Act 24 claim based on those barriers. 25 3. The amount of money at stake 26 This Eitel factor requires the Court to consider the sum of money at stake in relation to the 27 seriousness of a defendant’s conduct. Love v. Griffin, No. 18-cv-00976-JSC, 2018 WL 4471073 , 1 award of attorney’s fees and costs. For the reasons discussed below, the amount of damages 2 requested is not substantial and is proportional to the conduct alleged. The amount of attorney’s 3 fees claimed, while substantial, is subject to reduction by the Court, as explained below. 4 4. The possibility of a dispute concerning material facts and whether Gennaro’s default was due to excusable neglect [5] 6 Under the fourth and fifth Eitel factors, the Court considers whether there is a possibility of 7 a dispute over any material fact and whether defendants’ failure to respond was the result of 8 excusable neglect. Griffin, 2018 WL 4471073 at *5; Ridola, 2018 WL 2287668 at *13. Because 9 Mr. Block asserts plausible claims for violations of the ADA and the Unruh Act, and as all 10 liability-related allegations are deemed true, there is nothing before the Court that indicates a 11 possibility of a dispute as to material facts. Moreover, there is no indication that Gennaro’s 12 default was due to excusable neglect. Following withdrawal of its prior counsel, Gennaro’s has 13 not appeared through other counsel, despite warnings that it was required to do so. See Dkt. No. 14 70. Mr. Block has filed a certificate regarding service of the present motion on Gennaro’s. Dkt. 15 No. 85. As noted above, the Court has received no response from Gennaro’s. The record thus 16 suggests that Gennaro’s has chosen not to present a defense in this matter. These factors weigh in 17 favor of default judgment. 18 5. The strong policy favoring decisions on the merits 19 While the Court prefers to decide matters on the merits, Gennaro’s failure to participate in 20 this litigation makes that impossible. See Ridola, 2018 2287668 at *13 (“Although federal policy 21 favors decision on the merits, Rule 55(b)(2) permits entry of default judgment in situations, such 22 as this, where a defendant refuses to litigate.”). Default judgment therefore is Mr. Block’s only 23 recourse. See United States v. Roof Guard Roofing Co, Inc., No. 17-cv-02592-NC, 2017 WL 24 6994215, at *3 (N.D. Cal., Dec. 14, 2017) (“When a properly adversarial search for the truth is 25 rendered futile, default judgment is the appropriate outcome.”). 26 D. Requested Relief 27 Because this Court concludes that default judgment is warranted, it now considers Mr. 1 attorneys’ fees and costs. 2 1. Injunctive Relief 3 Aggrieved individuals “may obtain injunctive relief against public accommodations with 4 architectural barriers, including ‘an order to alter facilities to make such facilities readily 5 accessible to and usable by individuals with disabilities.’” M.J. Cable, Inc., 481 F.3d at 730 6 (quoting 42 U.S.C. § 12188 (a)(2)). Injunctive relief is also available under the Unruh Act. See [7] Cal. Civ. Code § 52.1 (c). “A plaintiff need not satisfy ‘[t]he standard requirements for equitable 8 relief . . . when an injunction is sought to prevent the violation of a federal statute [that] 9 specifically provides for injunctive relief.’” Griffin, 2018 WL 4471073 at *6 (quoting Moeller, [10] 816 F. Supp. 2d at 859 ). 11 For the reasons discussed above, Mr. Block has shown that he is entitled to injunctive 12 relief, having demonstrated that features at the Facility violate one or more provisions of the 1991 13 and 2010 Standards in some fashion. See Vogel v. Rite Aid Corp., 992 F. Supp. 2d 998 , 1015-16 14 (C.D. Cal. 2014), abrogated on other grounds by Lopez v. Catalina Channel Express, Inc., 974 15 F.3d 1030 (9th Cir. 2020) (granting motion for default judgment against the defendant landlord 16 and compelling that defendant to provide injunctive relief to the extent the defendant had the legal 17 right and ability to make the physical changes necessary to remove the specific barriers about 18 which the plaintiff complained). However, the Court finds that Mr. Block’s proposed judgment 19 lacks sufficient specificity with respect to all the repairs he claims are required and the 20 corresponding requirements and particular provisions of the 1991 and 2010 Standards that are at 21 issue. As discussed above, his motion also does not identify provisions of the 1991 and 2010 22 Standards that correspond to all of the alleged violations at issue. Accordingly, the Court requires 23 Mr. Block to submit a proposed form of injunction that complies with Rule 65(d) of the Federal 24 Rules of Civil Procedure, which requires among other things that an injunction “state its terms 25 specifically” and “describe in reasonable detail . . . the act or acts restrained or required.” Fed. R. 26 Civ. P. 65(d)(1)(B), (C). [27] 1 2. Statutory Damages 2 “Monetary damages are not available in private suits under Title III of the ADA. M.J. 3 Cable, Inc., 481 F.3d at 730 (citing Wander v. Kaus, 304 F.3d 856, 858 (9th Cir.2002)). However, 4 the Unruh Act provides a minimum statutory damages award of $4,000 “for each occasion an 5 individual is denied equal access to an establishment covered by the Unruh Act . . ..” Ridola, 2018 6 WL 2287668 at *15 (citing Cal. Civ. Code § 52 (a)). Mr. Block “need not prove [he] suffered 7 actual damages to recover the independent statutory damages of $4,000.” M.J. Cable, Inc., 481 8 F.3d at 731. He requests a statutory award of $4,000 with respect to his one visit to the Facility. 9 This Court finds that Mr. Block has established his entitlement to an award of $4,000 in statutory 10 damages. 11 3. Attorney’s Fees and Costs 12 Mr. Block requests $63,116.50 in attorneys’ fees and $10,494.38 in costs, less an offset of 13 $12,250 for his settlement with Ganeshkrupa 86, for a total award of $65,360.88. Dkt. No. 83 at 14 24. See Leung v. Verdugo Hills Hospital, 302 (repudiating the common law release rule, noting 15 that “[f]or a variety of reasons—such as the settling defendant’s limited resources or relatively 16 minor role in causing the plaintiff's injury—a plaintiff may be willing to release one tortfeasor for 17 an amount far less than the total necessary to fully compensate the plaintiff for all injuries 18 incurred.”). The ADA gives courts the discretion to award attorney’s fees, including litigation 19 expenses and costs, to prevailing parties. M.J. Cable, Inc., 481 F.3d at 730 (citing 42 U.S.C. 20 § 12205). Similarly, the Unruh Act provides for an award of fees “as may be determined by the 21 court.” Cal. Civ. Code § 52 (b)(3). 22 a. Attorney’s Fees 23 Whether calculating attorney’s fees under California or federal law, courts follow the 24 lodestar approach. “The most useful starting point for determining the amount of a reasonable fee 25 is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly 26 rate.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983), abrogated on other grounds by Tex. State 27 Teachers Ass’n. v. Garland Indep. Sch. Dist., 489 U.S. 782 (1989). The party seeking an award of 1 i. Reasonable Hourly Rate 2 “In determining a reasonable hourly rate, the district court should be guided by the rate 3 prevailing in the community for similar work performed by attorneys of comparable skill, 4 experience, and reputation.” Chalmers v. City of Los Angeles, 796 F.2d 1205, 1210-11 (9th Cir. 5 1986), reh’g denied, amended on other grounds, 808 F.2d 1373 (9th Cir. 1987) (citing Blum v. 6 Stenson, 465 U.S. 886 , 895 n.11 (1984)). “Generally, the relevant community is the forum in 7 which the district court sits.” Barjon v. Dalton, 132 F.3d 496, 500 (9th Cir. 1997). The fee 8 applicant has the burden of producing evidence, other than declarations of interested counsel, that 9 the requested rates are in line with those prevailing in the community for similar services by 10 lawyers of reasonably comparable skill, experience and reputation. Blum, 465 U.S. at 896 n.11. 11 “Affidavits of the plaintiffs’ attorney and other attorneys regarding prevailing fees in the 12 community, and rate determinations in other cases, particularly those setting a rate for the 13 plaintiffs’ attorney, are satisfactory evidence of the prevailing market rate.” United Steelworkers 14 of America v. Phelps Dodge Co., 896 F.2d 403, 407 (9th Cir. 1990). 15 Mr. Block seeks fees based on the hourly rates of attorney Tanya Moore and two 16 paralegals, Whitney Law and Isaac Medrano. Although Ms. Moore says that her current rate is 17 $650/hour (Dkt. No. 83-1 ¶ 24), Mr. Block seeks fees for her work at $475/hour. He seeks fees 18 for work performed by Ms. Law at $195/hour and by Mr. Medrano at $175/hour. 19 Ms. Moore says that she has been practicing law for over 20 years and has specialized in 20 disability access litigation for about 12 years. Dkt. No. 83-1 ¶ 21. Ms. Law says she has 13 years 21 of paralegal experience in civil litigation, including nine years specializing in disability access 22 litigation. Dkt. No. 83-3 ¶ 2. Mr. Medrano says that he has over 10 years of paralegal experience, 23 including five years specializing in disability access litigation. Dkt. No. 83-4 ¶ 2. 24 Courts in this district, including this one, have awarded fees at these same or similar rates 25 for Ms. Moore and her paralegal staff, finding that those rates are in line with fees awarded to 26 other attorneys and paralegals with comparable or greater experience. See, e.g., Hernandez v. 27 BMV Hotels, LP, No. 18-cv-07511-NC, 2021 WL 5053491 , at *2-3 (N.D. Cal. Apr. 14, 2021); 1 Mar. 11, 2020 ); Rivera v. Crema Coffee Company LLC, No. 5:18-cv-01531-VKD, 2020 WL 2 4701131, at *3 (N.D. Cal. Aug. 13, 2020). 3 Accordingly, the Court finds Mr. Block’s requested rates to be reasonable. 4 ii. Reasonable Hours 5 Mr. Block “bears the burden of establishing entitlement to an award and documenting the 6 appropriate hours expended[.]” Hensley, 461 U.S. at 437 . “Where the documentation of hours is 7 inadequate, the district court may reduce the award accordingly.” Id. at 433 . A district court 8 should also exclude from the lodestar fee calculation any hours that were not “reasonably 9 expended,” such as hours that are excessive, redundant, or otherwise unnecessary. See id. at 43310 34; see also Chalmers, 796 F.2d at 1210 (“Those hours may be reduced by the court where 11 documentation of the hours is inadequate; if the case was overstaffed and hours are duplicated; if 12 the hours expended are deemed excessive or otherwise unnecessary.”). 13 Although some of the fees Mr. Block seeks were incurred on matters that pertain to both 14 Gennaro’s and Ganeshkrupa 86, Mr. Block states that he “incurred no fees attributable solely to 15 Ganeshkrupa [86]; all efforts to achieve relief were as against all defendants.” Dkt. No. 83 at 12. 16 The Court has reviewed the submitted attorney and paralegal timesheets (Dkt. No. 83-2, 17 Ex. C) and finds that certain deductions are warranted as discussed below. 18 The Court declines to order Gennaro’s to pay Mr. Block’s fees for settlement discussions 19 that did not involve Gennaro’s. Specifically, Mr. Block seeks fees for a total of 12.1 hours (7.6 20 hours by Ms. Moore; 2.8 hours by Ms. Law; 1.7 hours by Mr. Medrano) for time spent in 21 settlement discussions with Ganeshkrupa 86, as well as 12.9 hours (9.3 hours by Ms. Moore, 3.1 22 hours by Ms. Law, and 0.5 hours by Mr. Medrano) for time spent preparing for and participating 23 in the settlement conference with Judge Tse. See Dkt. No. 83 at 17; Dkt. No. 83-2, Ex. C at pp. 124 2, 9. Mr. Block correctly notes that landlords and tenants are jointly and severally liable for ADA 25 noncompliance. See Botosan v. Paul McNally Realty, 216 F.3d 827, 833, 834 (9th Cir. 2000) 26 (concluding that “a landlord has an independent obligation to comply with the ADA that may not 27 be eliminated by contract” and “both landlord and tenant remain fully liable for compliance with 1 one court in this district, has distinguished between a landlord’s joint and several liability for ADA 2 noncompliance and an ADA plaintiff’s entitlement to fees relating to settlement with that 3 landlord’s tenant. See Dytch v. Maxaco LLC, No. 17-cv-00438-SI, 2019 WL 1934879 , at *2 (N.D. 4 Cal. May 1, 2019). Mr. Block fails to persuasively explain why Gennaro’s properly should be 5 ordered to pay for time spent negotiating and documenting a settlement with Ganeshkrupa 86. 6 Accordingly, the Court will deduct 25 hours as follows: 16.9 hours from Ms. Moore’s time, 5.9 7 hours from Ms. Law’s time, and 2.2 hours from Mr. Medrano’s time. 8 iii. Lodestar amount 9 Multiplying the reasonable hourly rates and the hours reasonably expended, yields a 10 lodestar amount of $53,553.50 as reflected in the following table: 11 Attorney/Paralegal Rate Hours Total 12 Tanya Moore $475 86.5 $41,087.50 13 Whitney Law $195 52.8 $10,296.00 14 Isaac Medrano $175 12.4 $2,170.00 15 Total $53,553.50 16 From the $53,553.50, the Court deducts the $12,250 settlement with Ganeshkrupa for a 17 total lodestar of $41,303.50. [18] b. Costs 19 For the most part, the record substantiates Mr. Block’s request for costs. However, the 20 Court will award $345 (not $395) for service of subpoenas, as that is the sum supported by Mr. 21 Block’s submitted documentation. See Dkt. No. 83-2, Ex. F. The record otherwise supports Mr. 22 Block’s requested costs for the $402 filing fee; $242.75 process server fees; $3,145 access 23 specialist fees; $69.13 copying costs for deposition exhibits; $2,800 fee for expert report; and 24 $3,440.50 for the transcription of the depositions of Ganeshkrupa 86 and former tenants of the 25 Facility. Dkt. No. 1; Dkt. No. 83-1 ¶¶ 28-33 and Exs. D-E, G-I. See Robins v. Scholastic Book 26 Fairs, 928 F. Supp. 1027, 1036 (D. Or. 1996) (stating that “recoverable out-of-pocket expenses 27 include those costs ‘that would normally be charged to a fee paying client. Thus reasonable 1 || F.3d 16, 19-20 (9th Cir.1994)). 2 Accordingly, the Court awards Mr. Block $10,444.38 in costs. 3 || IV. CONCLUSION 4 Based on the foregoing, the Court grants Mr. Block’s motion for default judgment against 5 Gennaro’s, with a modified award for fees and costs as follows: 6 1. Mr. Block is awarded statutory damages in the amount of $4,000. 7 2. Mr. Block is awarded $41,303.50 in attorney’s fees. 8 3. Mr. Block is awarded $10,444.38 in costs. 9 4. By July 8, 2022, Mr. Block shall submit a proposed form of injunction that 10 || complies with Rule 65(d), identifying the repairs he claims are required and the corresponding 11 requirements and particular provisions of the 1991 and 2010 Standards that are at issue. 12 5, By July 8, 2022, Mr. Block shall advise whether he intends to dismiss his claim 13 || under the California Health & Safety Code. IT IS SO ORDERED. 3 15 Dated: June 27, 2022 2 16 78 □ UnigininE, Ae Marche VIRGINIA K. DEMARCHI Z 18 United States Magistrate Judge