Judge: Yolanda Orozco, Case: 22STCV19836, Date: 2023-01-26 Tentative Ruling
Case Number: 22STCV19836 Hearing Date: January 26, 2023 Dept: 31
REQUEST FOR ENTRY
OF DEFAULT JUDGMENT
TENTATIVE RULING
Plaintiff’s request for Default Judgment in
the amount of $13,793.33
is GRANTED
On June 17, 2022, Plaintiff Luis Calderon
filed a Complaint against Defendant 1895 W Adams, LLC and Does 1 to 10.
The Complaint alleges violations of the
Unruh act and seeks injunctive relief, declaratory relief, and damages no less
than $4,000 for each of the two instances he encountered violations of the
Unruh Act under Civil Code section 52(a).
On October 03, 2022, default was entered
against Defendant 1895 W. Adams, LLC.
On December 14, 2022. Does 1 to 10 were
dismissed from the action.
On December 14, 2022, Plaintiff moved for
default judgment.
LEGAL STANDARD
CCP
§ 585 permits entry of a judgment after a Defendant has failed to timely answer
after being properly served. A party
seeking judgment on the default by the Court must file a Request for Court
Judgment, and: (1) a brief summary of the case; (2) declarations or other
admissible evidence in support of the judgment requested; (3) interest
computations as necessary; (4) a memorandum of costs and disbursements; (5) a
proposed form of judgment; (6) a dismissal of all parties against whom judgment
is not sought; (7) a dismissal of all parties against whom judgment is not
sought or an application for separate judgment under CCP § 579, supported by a
showing of grounds for each judgment; (8) exhibits as necessary; and (9) a
request for attorneys’ fees if allowed by statute or by the agreement of the
parties. (CRC Rule 3.1800.)
DISCUSSION
Plaintiff seeks default judgment against
Defendant 1895 W. Adams, LLC
in the amount of $13,793.33, consisting of $8,000.00 in damages,
$1,300.83 in interest, $2,917.50 in attorney’s fees, and $1,575.00 in costs.
Statement of Case
On or about April
08, 2021, and May 19, 2021, Plaintiff visited as shopping center owned by Defendant.
(Calderon Decl. ¶ 4.) Plaintiff is “functionally blind” due to light perception
in his left and right eye and as determined by The Center for the Partially
Sighted on February 23, 2016. (See Letter by Center attached as Exhibit 1 to
the Declaration of Luis Calderon.) Accordingly, Plaintiff asserts he is
visually impaired under Civil Code section 54.6. (See Calderon Ex. 2.)
By defaulting, a defendant is deemed to admit all
material allegations of the complaint that are well pleaded. (Molen v.
Friedman (1998) 64 Cal.App.4th 1149, 1156.) Plaintiff’s Complaint also
sufficiently alleges he is blind and visually impaired such that he has a
physical disability that substantially impairs one or more major life
activities under Government Code section 1296. (Compl. ¶ 26.)
Plaintiff asserts that each of the two times
he visited the Defendant’s shopping center to avail himself of its services,
the route to the shopping center was inaccessible and in violation of the
Americans with Disabilities Act (ADA) (28 C.F.R. part 6, subpart D, sections
36.403, 206.2.1, 402.2 and 403.3) and lacked detectable warnings in the form of
truncated domes at the accessible route leading to the shopping center as
required under the California Building Code (Cal. Code of Regs. Title 24 §
11B-247.1 et seq.). (Calderon Decl. ¶ 5.) Plaintiff further asserts that the lack
of an accessible route is a violation of the ADA and a per se violation of the
Unruh Civil Rights Act. (See also Civil Code, § 51 subd. (f) [“A violation of
the right of any individual under the federal Americans with Disabilities Act
of 1990 (Public Law 101-336) shall also constitute a violation of this
section.”].)
Plaintiff’s counsel attached a true and
correct copy of Google Maps street view photographs showing that the shopping
center lacks truncated domes as required by the Unruh Act and the ADA. (Sidoruk Decl. ¶ 9, Ex. 4.) The lack of accessibility
for the visually impaired and the lack of truncated domes, made patronizing the
shopping center difficult since Plaintiff did not know where the pedestrian
path ended, and the vehicular area began. (Calderon Decl. ¶ 7.) Defendant
violated the ADA and Unruh act because it discriminated against Plaintiff in
that Defendant failed to make the shopping center and its services fully
accessible to and independently usable by individuals who are blind or visually
impaired. (Calderon Decl. ¶ 8.)
Accordingly, Plaintiff asserts he is entitled
to damages of $4,000.00 per violation of the Unruh Act/ADA under Civil Code section
52 subdivision (a) which states:
“Whoever
denies, aids or incites a denial, or makes any discrimination or distinction
contrary to Section 51, 51.5, or 51.6, is liable for each and every offense for
the actual damages, and any amount that may be determined by a jury, or a court
sitting without a jury, up to a maximum of three times the amount of actual
damage but in no case less than four thousand dollars ($4,000), and any
attorney's fees that may be determined by the court in addition thereto,
suffered by any person denied the rights provided in Section 51, 51.5, or 51.6.”
(Civ. Code, § 52(a).)
The Court finds that Plaintiff has presented
sufficient evidence to show he is entitled to $8,000.00 in damages due to Defendant’s
violations of the ADA and the Unruh Act.
Plaintiff asserts he is entitled to prejudgment interest under
California Civil Code section 3287 subdivision (a), which states in the
relevant part:
“A person who is
entitled to recover damages certain, or capable of being made certain by
calculation, and the right to recover which is vested in the person upon a
particular day, is entitled also to recover interest thereon from that day,
except when the debtor is prevented by law, or by the act of the creditor from
paying the debt.”
Plaintiff asserts that his right to recover interest vested on April 18, 2021, when he first visited the shopping center. (Statement of the Case.) Since, 614 days have passed since April 8, 2021, and December 13, 2022, Plaintiff may be awarded $672.88 for the first violation at 10% per annum. Similarly, as 573 days have passed between Plaintiff’s second visit on May 19, 2021, and December 13, 2022, Plaintiff may be awarded $627.95 as prejudgment interest for the second violation.
In total, Plaintiff is entitled to $1,300.83 in prejudgment interest.
California Civil Code section 52 subdivision (a) expressly entitles Plaintiff to recover attorney’s fees. Attorney’s fees are also allowed under Civil Code sections 54.3 and/or 55.
Plaintiff’s counsel attached a chart cataloging the hours billed, totaling $2,917.50. (Sidoruk Decl. ¶ 3.) Plaintiff’s counsel also asserts that the billing rates are reasonable. Mr. Calhoun who drafted the Complaint, reviewed photos of the violations, and conferenced with client, has a billing rate of $650.00 per hour. (Sidoruk Decl. ¶ 8.) Mr. Calhoun has practiced civil litigation for over 30 years and Plaintiff’s counsel asserts the billing rate is reasonable given Mr. Calhoun’s experience and expertise litigating in Los Angeles, CA. (Id.) Ms. Sidoruk’s billing rate is $300.00 per hour while Ms. Siduruk’s legal assistant, Debra Threlkeld, billing rate is $75.00 per hour. (Id.)
The Court finds that the billing rates and the hours billed are reasonable and Plaintiff is entitled to attorney’s fees in the amount of $2,917.50.
Plaintiff also submitted a breakdown of litigation costs totaling $1,575.00. (Sidoruk Decl. ¶ 6, Ex. 2.)
Therefore, the Court finds that Plaintiff is entitled to $1,575.00 in litigation costs as the prevailing party.
The Motion for Default Judgment is GRANTED.
Conclusion
Plaintiff’s request for Default Judgment in the amount of $13,793.33 is GRANTED.