Volle v. Sherwin Petroleum, Inc.

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4 UNITED STATES DISTRICT COURT

5 NORTHERN DISTRICT OF CALIFORNIA

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7 DEBRA VOLLE,

Case No. 19-cv-00545-PJH

8 Plaintiff,

9 v. ORDER ADOPTING IN PART REPORT

AND RECOMMENDATION

10 SHERWIN PETROLEUM, INC., REGARDING MOTION FOR DEFAULT

JUDGMENT

11 Defendant.

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14 The court has reviewed Magistrate Judge Cousins’ Report and Recommendation

15 Re: Motion for Default Judgment. No objections to the report have been filed. The court

16 finds the report correct, well-reasoned and thorough insofar as it found defendant

17 Sherwin Petroleum, Inc.’s liability in some respects established by the well-pleaded

18 allegations of the operative complaint, and insofar as it assessed the appropriate scope

19 of injunctive relief. Accordingly, the court adopts the report in those respects. The court

20 however, addresses defendant’s liability in other respects, as well as plaintiff’s requests

21 for fees, costs, and expenses, as follows.

22 BACKGROUND

23 The pending motion for default judgment concerns an action brought pursuant to

24 the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. (“ADA”), and the Unruh

25 Act, Cal. Civ. Code §§ 51 et seq., by individual plaintiff Debra Volle against defendant

26 Sherwin Petroleum, Inc. (“Sherwin Petroleum” or “defendant”). Azim Modarressi was

27 named as a codefendant in the original complaint, but plaintiff voluntarily dismissed him

1 The court recounts the allegations of the First Amended Complaint (“FAC”) for

2 purposes of this motion. See FAC, Dkt. 16. Volle has been physically disabled for over a

3 decade after having undergone multiple back surgeries that resulted in the severing of a

4 nerve. Plaintiff depends on a scooter or a walker for mobility, and she is a resident of

5 San Jose, California.

6 On November 27, 2018, Volle visited a gas station operated by defendant with a

7 friend to purchase a lottery ticket. Plaintiff was unable to enter the gas station’s food mart

8 because the ramp to the front entry door was steep and had steep, flared sides that were

9 unable to accommodate her scooter or walker. The path at the top of the ramp was also

10 blocked by outside seating. Additionally, the width of the path by the front door was less

11 than 48 inches, and the front door clear space at push side was less than 48 inches and

12 did not have 24 inches clear space at pull side. Rather than attempting to enter in the

13 face of those conditions, plaintiff waited outside the mart as her friend made a purchase.

14 Plaintiff left feeling like a second-class citizen and has been deterred on “multiple

15 occasions” from returning to the gas station. See FAC ¶ 8.

16 Volle filed this action on January 30, 2019. Dkt. 1. Volle served the defendant’s

17 authorized agent, Mohammad Hossein Beirami, with the summons and complaint on

18 February 7, 2019. Irakli Decl., Exs. AA & DD.1 A General Order 56 joint site inspection

19 took place on March 19, 2019. FAC ¶ 10 & Ex. A.

20 On July 10, 2019, Volle filed an amended complaint incorporating findings from the

21 site inspection. See FAC. On July 17, 2019, plaintiff served the amended complaint on

22 Sherwin Petroleum’s agent, Mohammad Beirami. See Irakli Decl., Ex. BB. The

23 complaint seeks injunctive relief, damages, and recovery of attorneys’ fees and costs.

24 The Clerk of Court entered default against Sherwin Petroleum on August 27, 2019.

25 Dkt. 22.

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1 Docket Number 27-5 is the “Irakli Decl.” Docket Number 27-13 is the “Irene Decl.” The

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third exhibit to the Irakli Decl. is referred to in this order as Ex. CC, although plaintiff

1 On September 30, 2019, plaintiff filed a motion for default judgment. Mot., Dkt. 27-

2 1. The magistrate judge’s deputy received an email from Mohammad Beirami on

3 October 6, 2019, indicating his intention to represent Sherwin Petroleum in the case.

4 See Dkt. 30. The magistrate judge referred Mr. Beirami to a program offering free

5 assistance for pro se litigants and advised him that, if he was not an attorney, he could

6 not represent Sherwin Petroleum because Sherwin Petroleum is a corporation. Id.

7 Sherwin Petroleum has not made an appearance in this action.

8 Magistrate Judge Cousins issued a report and recommendation recommending

9 granting the motion and awarding plaintiff $12,000 in statutory damages, $10,664.50 in

10 attorneys’ fees and costs, and injunctive relief requiring modification of the property by

11 November 30, 2020. Dkt. 33. No party has objected to that report and recommendation,

12 and the deadline to do so has passed

13 DISCUSSION

14 A. Legal Standards

15 1. Review of Report and Recommendation

16 Review of a magistrate judge’s report and recommendation regarding a dispositive

17 motion is governed by Federal Rule of Civil Procedure 72(b). “Within 14 days after being

18 served with a copy of the recommended disposition, a party may serve and file specific

19 written objections to the proposed findings and recommendations.” Fed. R. Civ.

20 P. 72(b)(2). “The district judge must determine de novo any part of the magistrate judge's

21 disposition that has been properly objected to.” Fed. R. Civ. P. 72(b)(3).

22 “[W]hile the statute does not require the judge to review an issue de novo if no

23 objections are filed, it does not preclude further review by the district judge, sua sponte or

24 at the request of a party, under a de novo or any other standard.” Thomas v. Arn, 474

25 U.S. 140, 154 (1985) (discussing case where “the District Judge made a de novo

26 determination of the petition despite petitioner's failure even to suggest that the

27 Magistrate erred”); see also Piolin Prods., Inc. v. Velez, Case No. 07-cv-05245-RMW,

1 made an appearance also cannot file an objection to the magistrate judge's report and

2 recommendation. To be cautious then, the court has reviewed de novo the entirety of

3 [Magistrate] Judge Spero's report regarding the facts[.]”). “The district judge may accept,

4 reject, or modify the recommended disposition; receive further evidence; or return the

5 matter to the magistrate judge with instructions.” Fed. R. Civ. P. 72(b)(3).

6 2. Default Judgment

7 Federal Rule of Civil Procedure 55(b)(2) permits a court, following default by a

8 defendant, to enter default judgment in a case. “The district court's decision whether to

9 enter default judgment is a discretionary one.” Aldabe v. Aldabe, 616 F.2d 1089, 1092

10 (9th Cir. 1980). To assist courts in determining whether default judgment in appropriate,

11 the Ninth Circuit has enumerated the following factors for the court to consider: (1) the

12 possibility of prejudice to the plaintiff; (2) the merits of plaintiff's substantive claim; (3) the

13 sufficiency of the complaint; (4) the sum of money at stake in the action; (5) the possibility

14 of dispute concerning material facts; (6) whether default was due to excusable neglect

15 and; (7) the strong policy underlying the Federal Rules of Civil Procedure favoring

16 decisions on the merits. Eitel v. McCool, 782 F.2d 1470, 1471–72 (9th Cir. 1986).

17 Upon entry of default, all factual allegations within the complaint are accepted as

18 true, except those allegations relating to the amount of damages. TeleVideo Sys., Inc. v.

19 Heidenthal, 826 F.2d 915, 917–18 (9th Cir.1987). Where a default judgment is granted,

20 the scope of relief is limited by Federal Rule of Civil Procedure 54(c) to “what is

21 demanded in the pleadings.” Fed. R. Civ. P. 54(c).

22 3. Attorneys’ Fees, Litigation Expenses, and Costs

23 A district court may, in its discretion, allow the prevailing party in an ADA action a

24 reasonable attorney's fee, including litigation expenses and costs. 42 U.S.C. § 12205.

25 “The Supreme Court has explained that, in civil rights cases, the district court's discretion

26 is limited. A prevailing plaintiff under the ADA should ordinarily recover an attorney's fee

27 unless special circumstances would render such an award unjust.” Jankey v. Poop Deck,

1 “A ‘reasonable’ fee is a fee that is sufficient to induce a capable attorney to

2 undertake the representation of a meritorious civil rights case. The district court must

3 strike a balance between granting sufficient fees to attract qualified counsel to civil rights

4 cases and avoiding a windfall to counsel. The way to do so is to compensate counsel at

5 the prevailing rate in the community for similar work; no more, no less.” Vogel v. Harbor

6 Plaza Ctr., LLC, 893 F.3d 1152, 1158 (9th Cir. 2018) (internal quotation marks and

7 citations omitted).

8 “The most useful starting point for determining the amount of a reasonable fee is

9 the number of hours reasonably expended on the litigation multiplied by a reasonable

10 hourly rate.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). “There is a strong

11 presumption that the lodestar figure represents a reasonable fee.” Morales v. City of San

12 Rafael, 96 F.3d 359, 363 n.8 (9th Cir. 1996); Perdue v. Kenny A. ex rel. Winn, 559 U.S.

13 542, 552 (2010) (“the presumption is a ‘strong’ one”). “[T]he fee applicant bears the

14 burden of establishing entitlement to an award and documenting the appropriate hours

15 expended and hourly rates.” Hensley, 461 U.S. at 437. The fee applicant must “submit

16 evidence supporting the hours worked and rates claimed. Where the documentation of

17 hours is inadequate, the district court may reduce the award accordingly.” Id. at 433.

18 B. Damages

19 Plaintiff seeks $12,000 in statutory damages. The Unruh Act sets out a minimum

20 amount of statutory damages at $4,000 per instance of discrimination. Cal. Civ. Code

21 § 52(a).

22 “The general rule of law is that upon default the factual allegations of the

23 complaint, except those relating to the amount of damages, will be taken as true.”

24 TeleVideo Sys., 826 F.2d at 917–18 (9th Cir. 1987) (quoting Geddes v. United Financial

25 Group, 559 F.2d 557, 560 (9th Cir. 1977)). The court’s duty to take facts relating to

26 liability as true is limited to the facts in the pleading. “[F]acts which are not established by

27 the pleadings of the prevailing party, or claims which are not well-pleaded, are not

1 Cir. 1978); accord DIRECTV, Inc. v. Hoa Huynh, 503 F.3d 847, 854 (9th Cir. 2007)

2 (“defendant is not held to admit facts that are not well-pleaded or to admit conclusions of

3 law”); Cripps v. Life Ins. Co., 980 F.2d 1261, 1267 (9th Cir. 1992) (“necessary facts not

4 contained in the pleadings, and claims which are legally insufficient, are not established

5 by default”); see also Rasmussen v. Dublin Rarities, Case No. 14-cv-1534-PJH, 2015 WL

6 1133189, at *15 n.5 (N.D. Cal. Feb. 27, 2015) (allegations that appear in “declarations

7 filed in support of Plaintiff's motion for default judgment” but “do not appear in the

8 complaint” are considered “solely with respect to damages,” not liability) (adopting report

9 and recommendation); Johnson v. RK Inv. Properties, Inc., Case No. 18-cv-01132-KAW,

10 2019 WL 1575206, at *4 (N.D. Cal. Mar. 18, 2019), adopted by Case No. 18-cv-01132-

11 YGR, 2019 WL 1571071 (N.D. Cal. Apr. 11, 2019) (same).

12 Here, plaintiff amended her complaint on July 10, 2019. See FAC. Paragraph 8 of

13 that complaint indicates that plaintiff attempted to but could not enter the store on

14 November 27, 2018. FAC ¶ 8. The final sentence of that paragraph states “Plaintiff left

15 feeling like a second class citizen, suffered difficulties, discomfort, and embarrassment

16 and has been deterred on multiple occasions from returning to the Gas Station.” Id.

17 Plaintiff does not allege that she was deterred from entering on any particular subsequent

18 occasion. Rather, plaintiff relies on her vague description of being deterred on “multiple

19 occasions.” That allegation is not sufficiently-specific to support a finding of defendant’s

20 liability for any instance of discrimination, other than on November 27, 2018.

21 Plaintiff filed a declaration with her motion for default judgment in which, for the

22 first time, she stated that on January 8, 2019 and February 10, 2019, she wanted to stop

23 at the gas station but was deterred from doing so.2 Volle Decl., Dkt. 27-2 ¶ 6. Plaintiff’s

24 declaration that she was deterred provides factual support relevant to defendant’s

25 potential liability for two instances of discrimination not alleged in the complaint. But, as

26 described above, this court’s finding of liability is limited to the complaint’s well-pled

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1 allegations.

2 The complaint supports a finding of liability for only a single instance of

3 discrimination under the Unruh Act. As such, statutory damages for violation of that act

4 must be based on that single, well-pled violation. Here, the court finds that damages in

5 the amount of $4,000 for that violation are appropriate. See Cal. Civ. Code § 52(a).

6 C. Fees

7 Plaintiff seeks $6,525 in attorneys’ fees. She seeks $2,925 for 9 hours billed by

8 Irene Karbelashvili at a rate of $325 per hour. She also seeks $3,600 for 14.4 hours

9 billed by Irakli Karbelashvili at a rate of $250 per hour.3

10 1. Irakli Karbelashvili

11 Plaintiff seeks fees for 14.4 hours Irakli worked on the case. See Irakli Decl.,

12 Ex. CC.4 The hourly rate is adequately supported.

13 Regarding Irakli’s billed time, the court finds it inappropriate to award fees for the

14 hours attributed to two billing entries.

15 First, Irakli seeks fees for 0.2 hours billed on February 11, 2019 for time spent on a

16 phone call with Azim Modarressi. Modarressi was a former co-defendant against whom

17 the action was voluntarily dismissed, purportedly because he did not have an ownership

18 interest in the gas station. Plaintiff has not prevailed against him, so time spent litigating

19 against him alone is not recoverable. Because this time is identifiably distinct from any

20 work relating to the defaulting defendant, it is inappropriate to assess fees against the

21 defaulting defendant for that work. See Hensley, 461 U.S. at 435 (where “counsel's work

22 on one claim will be unrelated to his work on another claim . . . . [t]he congressional intent

23 to limit awards to prevailing parties requires that these unrelated claims be treated as if

24 they had been raised in separate lawsuits, and therefore no fee may be awarded for

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3 Because the two attorneys share a last name, the court refers to each by first name.

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4 Plaintiff’s papers cite to “Ex. CC” for Irakli’s reported hours, and as discussed above the

1 services on the unsuccessful claim”).

2 Second, Irakli seeks fees for 0.1 hours billed on August 25, 2019 for time spent

3 drafting a notice of his law firm’s change of address. This is a purely clerical task, and

4 the court declines to award fees based on an attorney’s time spent completing it.

5 Nadarajah v. Holder, 569 F.3d 906, 921 (9th Cir. 2009) (“When clerical tasks are billed at

6 hourly rates, the court should reduce the hours requested to account for the billing

7 errors.”); see also Santiago v. Equable Ascent Fin., Case No. 11-cv-3158-CRB, 2013 WL

8 3498079, at *3 (N.D. Cal. July 12, 2013) (“tasks such as mailing, obtaining transcripts,

9 researching filing procedures, the time spent recording hours worked, and collecting

10 documents [are] examples of clerical work that are not billable”).

11 2. Irene Karbelashvili

12 Plaintiff seeks fees for 9 hours Irene worked on the case. See Irene Decl., Ex. A.

13 The hourly rate is adequately supported.

14 Regarding Irene’s billed time, the court finds it inappropriate to award fees for the

15 hours attributed to three billing entries.

16 First, Irene seeks fees for 0.1 and 0.2 hours billed on February 11, 2019—across

17 two different billing entries—for time spent working on a notice of dismissal regarding

18 Modarressi. This time is not recoverable both because the work is clerical in nature, and

19 because plaintiff has not prevailed on her claim against Modarressi. This time is clearly

20 segregable as time spent litigating against him alone.

21 Second, Irene seeks fees for 0.1 hours billed on May 29, 2019 for time spent

22 drafting a notice of her personal unavailability. This is a purely clerical task not related to

23 advancing the litigation, and the court declines to award fees based on an attorney’s time

24 spent completing it. See Nadarajah, 569 F.3d at 921; Santiago, 2013 WL 3498079, at *3.

25 D. Costs

26 Plaintiff seeks recovery of litigation expenses in the amount of $625. That appears

27 to come from a $400 filing fee and $225 in costs of serving documents. See Irene Decl.

1 These costs are adequately supported, except for the fact that $75 is attributed

2 solely to serving Azim Modarressi, an individual who was dismissed without prejudice.

3 See Irene Decl., Ex. B at ECF p. 3. Plaintiff has not prevailed against Modarressi, and

4 the court declines to compel defendant to pay for costs plaintiff incurred solely to advance

5 abandoned claims against the dismissed co-defendant.

6 E. Litigation Expenses

7 Plaintiff seeks to recover litigation expenses paid to a single expert, Bassam

8 Altwal. Altwal billed plaintiff for 16 hours of work at a rate of $275/hour for substantive

9 work, and at $90/hour for administrative work. His total bill to plaintiff amounted to

10 $4,339.50. However, plaintiff seeks to recover only $3,514.50. That figure is achieved

11 by halving Altwal’s $275/hour billing rate for 6 hours of his travel time.

12 Altwal’s hourly rate for substantive work is adequately supported.

13 Regarding Altwal’s billed time, the court finds it inappropriate to award the full

14 amount sought based on hours attributed to four billing entries. See Altwal Decl.,

15 Dkt. 27-10, Ex. 2.

16 First, Altwal submitted bills for 4 hours on each January 8, 2019 and March 19,

17 2019. For each entry, Altwal billed $825 for three hours spent traveling, and $275 for one

18 hour spent conducting a site visit. For the six total hours of travel time, plaintiff’s motion

19 instead seeks an hourly rate of $137.50 (totaling $825 for all six hours), based on halving

20 Altwal’s substantive $275/hour billing rate. See Mot. at 18. Notably, Altwal has himself

21 determined his billing rate for non-substantive work. He has established his rate “for

22 administrative tasks and data entry” at $90/hour. Id. at 18 n.6. Given that Altwal has

23 himself established a specific, distinct rate for this type of non-substantive work that does

24 not employ his skill as an expert, the court finds it appropriate to use that rate to calculate

25 the plaintiff’s reasonable litigation expenses for Altwal’s travel time. Accordingly, the six

26 hours of travel time justify $540 in reasonable litigation expenses, rather than the $825

27 sought.

1 attorney. However, a comparison with Irakli’s billing statement describing the same call

2 shows that only half an hour of time spent on that call was billable activity. Compare

3 Altwal Decl., Ex. 2 at 2 with Irakli Decl., Ex. CC at 1.

4 Third, Altwal submitted expenses for 0.5 hours on September 23, 2019 for time

5 spent on “administrative work (billing).” Altwal Decl., Ex. 2 at 2. The court declines to

6 award litigation expenses based on Altwal’s time performing clerical work that is better

7 considered part of his overhead.

8 CONCLUSION

9 For the foregoing reasons, the court GRANTS plaintiff’s motion for default

10 judgment in part, in accordance with this order. The court awards plaintiff the injunctive

11 relief specified in the magistrate judge’s report and recommendation. The court further

12 awards plaintiff damages totaling $4,000, costs totaling $550, attorneys’ fees totaling

13 $6,270, and litigation expenses totaling $3,047—for a total of $13,867.

14 IT IS SO ORDERED.

15 Dated: January 16, 2020

16 /s/ Phyllis J. Hamilton

PHYLLIS J. HAMILTON

17 United States District Judge

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