Case Number: BC630170 Hearing Date: August 28, 2019 Dept: 37

HEARING DATE: August 28, 2019

CASE NUMBER: BC630170

CASE NAME: Bacilisa Barrera, et al. v. M&R Apparel, Inc., et al.

DEFAULT ENTERED: November 15, 2018

REQUEST FOR ENTRY OF DEFAULT JUDGMENT AGAINST DEFENDANTS CUTIE APPAREL, INC.; BRADFORD RICHARD; AND MJC APPAREL INC.

RECOMMENDATION: The court DENIES the requests for entry of default judgment without prejudice as Default has not been entered against Defendant M & R Apparel, Inc. Counsel for Plaintiff to give notice.

I. BACKGROUND

This employment action arises from allegations that Defendant M & R Apparel, Inc. (“M&R”) engaged in violations of the Fair Employment and Housing Act (“FEHA”) and the Labor Code with respect to former employees Plaintiffs Bacilisa Barrera (“Barrera”), Juan Madrigal (“Madrigal”), Elvia Padilla (“Padilla”), Estela Reyes (“Reyes”) and Maria Rodriguez (“Rodriguez”). The Complaint alleges that Defendant Michelle Ching (“Ching”) was a supervisory or managerial employee of M&R.

In the Complaint, Plaintiffs allege 18 causes of action. Plaintiff Padilla asserts: (1) the first cause of action for discrimination in violation of the Fair Employment and Housing Act (“FEHA”); (2) the second cause of action for retaliation in violation of the FEHA; (3) the third cause of action for failure to prevent discrimination and retaliation in violation of the FEHA; (4) the fourth cause of action for failure to provide reasonable accommodations in violation of the FEHA; (5) the fifth cause of action for failure to engage in a good faith interactive process in violation of the FEHA; (6) the sixth cause of action for wrongful termination in violation of public policy; and (7) the seventh cause of action for declaratory judgment.

Plaintiffs Padilla and Rodrigues assert: the ninth cause of action for retaliation in violation of Labor Code, §§ 1102.5 and 1102.5. Plaintiff Reyes asserts the eighth cause of action for retaliation in violation of Labor Code, § 98.6.

All Plaintiffs assert: (1) the tenth cause of action for failure to pay wages due; (2) the eleventh cause of action for failure to pay minimum wages; (3) the twelfth cause of action for failure to pay overtime compensation; (4) the thirteenth cause of action for failure to provide rest breaks; (5) the fourteenth cause of action for failure to furnish wage and hour statements; (6) the sixteenth cause of action for unfair competition in violation of Business and Professions Code, §§ 17200, et seq.; (7) the seventeenth cause of action under the Private Attorney General Act (“PAGA”); and (8) the eighteenth cause of action for failure to permit inspection of personnel and payroll records. Plaintiffs Barrera, Padilla, Reyes, and Rodriguez assert the fifteenth cause of action for waiting time penalties.

M&R filed its Answer on October 12, 2016 and appeared in this action. On May 16, 2018, the court granted Defendant’s counsel Amity Law Group, LLP’s motion to be relieved as counsel. Defendant did not appear for the May 29, 2018 final status conference and the court vacated the trial date and set a default prove-up hearing as to Defendant M&R for June 28, 2018. Plaintiff did not timely submit default papers for the June 28, 2018 hearing, and default does not appear to have been entered against M&R.

On November 13, 2017, Plaintiff named Cutie Apparel, Inc. (“Cutie Apparel”), Richard Bradford (“Bradford”), and MJC Apparel, Inc. (“MJC Apparel”) as Doe Defendants. Plaintiff now seeks entry of default judgment against Defendants Cutie Apparel, Bradford, and MJC Apparel. Plaintiff has not requested entry of default judgment against Defendant M&R.
II. PROOF OF SERVICE/ ENTRY OF DEFAULT

Bradford: Plaintiffs filed proof of service on June 6, 2018, indicating that they had performed service of the Summons and Complaint on Bradford on December 14, 2017. Plaintiffs filed an additional proof of service on June 6, 2018, indicating that Bradford was served a copy of the statement of damages through substituted service on February 20, 2018 performed on Joyce Che, a female Asian, approximately 30 years in age, 5’2” in height, 130 lbs. in weight, with black hair and brown eyes. Both sets of service were performed at 2660 Chico Ave., South El Monte, CA 91733, which is the address listed for Bradford as the agent for service of process of MJC Apparel on the California Secretary of State website. This service was sufficient.

The court entered default against Bradford on August 20, 2018, and the declaration of mailing indicates that a copy was mailed to Bradford at the same address as service. This was sufficient to comply with the requirements of Code of Civil Procedure, section 587.

MJC Apparel: Plaintiffs filed proof of service on June 6, 2018, indicating that they had performed service of the Summons and Complaint on MJC Apparel on December 14, 2017 through its authorized agent Bradford. Plaintiffs filed an additional proof of service on June 6, 2018, indicating that MJC Apparel was served a copy of the statement of damages through substituted service on February 20, 2018 performed on Joyce Che, a female Asian, approximately 30 years in age, 5’2” in height, 130 lbs. in weight, with black hair and brown eyes. Both sets of service were performed at 2660 Chico Ave., South El Monte, CA 91733, which is the address listed for its agent for service of process on the California Secretary of State website. This service was sufficient.

The court entered default against MJC Apparel on September 25, 2018, and the declaration of mailing indicates that a copy was mailed to MJC Apparel at the same address as service. This was sufficient to comply with the requirements of Code of Civil Procedure, section 587.

Cutie Apparel: Plaintiffs filed proof of service on June 6, 2018, indicating that they had performed service of the Summons and Complaint on Cutie Apparel on December 14, 2017 through its authorized agent Bob Tsang. Plaintiffs filed an additional proof of service on June 6, 2018, indicating that MJC Apparel was served a copy of the statement of damages through substituted service on February 20, 2018 performed on a Jane Doe, a female Asian, approximately 30 years in age, 5’2” in height, 130 lbs. in weight, with black hair and brown eyes. Both sets of service were performed at 2453 Chico Ave., South El Monte, CA 91733, which is the address listed for its agent for service of process on the California Secretary of State website.

Although the proof of service indicates that Bob Tsang was Cutie Apparel’s authorized agent, the individual listed as the agent for service of process with the California Secretary of State is Jui Chu Chiang and not Bob Tsang. It is unclear what relationship Bob Tsang has to Cutie Apparel, if any, and it is therefore unclear whether service of process on Cutie Apparel was sufficient.

The court also has reservations concerning the sufficiency of service of the statement of damages on “Jane Doe,” particularly given that the proof of service for Cutie Apparel includes the exact same description for this individual as that offered for Joyce Che in the proofs of service for MJC Apparel and Bradford. Service was performed by the same process server as service on Joyce Chu, and this service occurred 10 minutes after the service of the statement of damages on MJC Apparel and Bradford. At the hearing, Plaintiffs should be prepared to discuss whether service of the statement of damages on Cutie Apparel was sufficient.

The court entered default against Cutie Apparel on September 25, 2018, and the declaration of mailing indicates that a copy was mailed to Cutie Apparel at the same address as service. This was sufficient to comply with the requirements of Code of Civil Procedure, section 587.

M&R Apparel:

On August 23, 2019, Plaintiffs filed “Plaintiff’s Response to Order to Show Cause RE: Default Judgment”, which indicates that (1) Plaintiffs filed a request for entry of default against Defendant M & R on July 16, 2019 and August 12, 2019 but both requests have been denied (2) the request filed on August 12, 2019 was rejected because no order striking Defendant M&R Apparel’s Answer appears on the court docket and (3) Plaintiffs filed a motion to strike the answer of Defendant M&R Apparel on August 23, 2019. The court has not ruled on the motion to strike filed August 23, 2019.

Accordingly, since default has not been entered against Defendant M&R Apparel, Inc., the court denies the application for default judgment without prejudice.
III. SUPPORTING DOCUMENTS SUBMITTED (California Rules of Court, rule 3.1800):

Use of JC Form CIV-100 Yes

Dismissal or judgment of non-parties to the judgment Yes

Declaration of non-military status for each defendant Yes

Summary of the case Yes

585(d) declarations/admissible evidence in support of judgment Yes

Exhibits (as necessary) Insuff.

Interest computation (as necessary) Yes

Memorandum of costs Yes

Request for attorney fees (per Local Rule 3.214) Yes

Proposed judgment Yes

IV. Discussion

Five separate Request for Default Judgment have been filed in this action by five individual Plaintiffs:

Plaintiff Evelia Padilla seeks:

Principal Damages – $110,178.63

Interest – $25,836.10

Costs – $1,480.57

Attorney Fees – $25,836.10

Total – $189,012.80

Plaintiff Bacilisa Barrera seeks:

Principal Damages – $184,198.00

Interest – $ 40,547.95

Costs – $1,480.57

Attorney Fees – $51,517.50

Total – $247,744.02

Plaintiff Estela Reyes seeks

Principle Damages – $192,070.63

Interests- $40,317.00

Costs – $1,480.57

Attorney Fees – $51,517.50

Total – $285,385.70

Plaintiff Maria Rodriguez seeks:

Principle Damages – $222,275.63

Interests – $45,317.00

Costs – $1,480.57

Attorney Fees – $51,517.50

Total – $320,366.10

Plaintiff Juan Madrigal Cruz seeks:

Principle Damages – $140,204.63

Interest – $25,836.00

Costs – $1,480.57

Attorney Fees -$51.517.50

Total – $216,899.22
A. Principal Damages

Each of the five Plaintiffs have submitted a declaration in support of their request for principal damages. All Plaintiffs attests that they worked at Defendants’ company, M&R Apparel, Inc. and that throughout the cost of their employment, they regularly worked six (6) days per week, from approximately 8:00 am to 6:00 p.m. for a total of approximately 60 hours per week. All Plaintiffs also attests that despite working approximately 120 hours per pay period, they were only compensated for approximately only 60 hours every two weeks. Furthermore, all Plaintiffs also attests that they were never fully paid for minimum wages and an overtime premium. Thus,

Plaintiff Bacisilia Barrera has established that she is entitled to unpaid overtime wages in the amount of $12,500.00 and unpaid minimum wages in the amount of $37,500.00 (Barrera Decl. ¶¶ 5-11.)

Plaintiff Evelia Padilla has established that is entitled to unpaid overtime wages in the amount of $6,400.00 and unpaid minimum wages in the amount of $19,200.00 (Padilla Decl. ¶¶ 13-18.)

Plaintiff Juan Madrigal Cruz has established that he is entitled to unpaid overtime wages in the amount of $10,340.00 and unpaid minimum wages in the amount of $31,020.00 (Cruz Decl. ¶¶ 5-11)

Plaintiff Estela Reyes has established that he is entitled to unpaid overtime wages in the amount of $12,320.00 and unpaid minimum wages in the amount of $36,960.00 (Reyes Decl. ¶¶ 6-11.)

Plaintiff Maria Rodriguez has established that he is entitled to unpaid overtime wages in the amount of $14,660.00 and unpaid minimum wages in the amount of $43,980.00 (Rodriguez Decl. ¶¶ 6-11.)

Each of the plaintiff’s also attests they are entitled to recover liquidated damages pursuant to Labor Code § 1194.2 in an amount equal to the minimum wages unlawfully unpaid in the amounts set forth above. Thus,

Plaintiff Bacisilia Barrera establishes that she is entitled to $37,500.00 in liquidated damages pursuant to Labor Code § 1194.2 (Barrera Decl. ¶ 12.)

Plaintiff Evelia Padilla establishes that she is entitled to $19,200.00 in liquidated damages pursuant to Labor Code § 1194.2 (Padilla Decl. ¶ 19.)

Plaintiff Juan Madrigal Cruz establishes that she is entitled to $31,020 in liquidated damages pursuant to Labor Code § 1194.2 (Cruz Decl. ¶ 14.)

Plaintiff Estela Reyes establishes that she is entitled to $36,960.00 in liquidated damages pursuant to Labor Code § 1194.2 (Reyes Decl. ¶ 12.)

Plaintiff Maria Rodriguez establishes that she is entitled to $43,980.00 in liquidated damages pursuant to Labor Code § 1194.2 (Rodriguez Decl. ¶ 12.)

Each of the Plaintiffs also attests that they are entitled to compensation for missed rest periods pursuant to Labor Code § 512 and 226.7(b). Thus,

Plaintiff Bacilisa Barrera establishes that she is entitled to $5,718.00 pursuant to Labor Code § 512 and 226.7(b) (Barrera Decl. ¶¶ 14-15.)

Plaintiff Evelia Padilla establishes that she is entitled to $2,166.00 pursuant to Labor Code § 512 and 226.7(b) (Padilla Decl. ¶¶ 21-22.)

Plaintiff Juan Madrigal Cruz establishes that he is entitled to $1,110.00 pursuant to Labor Code § 512 and 226.7(b) (Cruz Decl. ¶¶ 16-18.)

Plaintiff Estela Reyes establishes that she is entitled to $5,718.00 pursuant to Labor Code § 512 and 226.7(b) (Reyes Decl. 16-18.)

Plaintiff Maria Rodriguez establishes that she is entitled to $5,718.00 pursuant to Labor Code § 512 and 226.7(b) (Rodriguez Decl. ¶¶ 15-17.)

Each of the Plaintiffs also attests that they are entitled to statutory penalties pursuant to Labor Code § 226.3, which penalizes an employer in the amount of $250 per employee per violation in an initial citation and one thousand dollars per employee for each violation in a subsequent citation. Thus,

Plaintiff Bacilisa Barrera establishes that she is entitled to $74,250.00 in civil penalties under Labor Code § 226.3 (Barrera ¶ 22.)

Plaintiff Evelia Padilla establishes that she is entitled to $36,250.00 in civil penalties under Labor Code § 226.3 (Padilla Decl. ¶ 29.)

Plaintiff Juan Madrigal Cruz establishes that he is entitled to $55,250.00 in civil penalties under Labor Code § 226.3 (Cruz Decl. ¶ 22.)

Plaintiff Estela Reyes establishes that she is entitled to $73,250.00 in civil penalties under Labor Code § 226.3 (Reyes Decl. ¶ 24.)

Plaintiff Maria Rodriguez establishes that she is entitled to $86,250.00 in civil penalties under Labor Code § 226.3 (Rodriguez Decl. ¶ 23.)

Each of the Plaintiffs also attests that they are entitled to civil penalties for Defendant’s violation of Labor Code § 558, which penalizes Defendants $50.00 for the first violation and $100.00 for the remaining pay periods. Thus,

Plaintiff Bacilisa Barrera establishes that she is entitled to $7,450.00 in civil penalties under Labor Code § 558 (Barrera ¶ 13.)

Plaintiff Evelia Padilla establishes that she is entitled to $7,450.00 in civil penalties under Labor Code § 558 (Padilla ¶ 20.)

Plaintiff Juan Madrigal Cruz establishes that he is entitled to $5,550.00 in civil penalties under Labor Code § 558

Plaintiff Estela Reyes establishes that she is entitled to $7,350.00 in civil penalties under Labor Code § 558 (Reyes Decl. ¶ 15.)

Plaintiff Maria Rodriguez establishes that she is entitled to $8,650.00 in civil penalties under Labor Code § 558 (Rodriguez Decl. ¶ 14.)

Each of the Plaintiffs also establish that they are entitled to statutory penalties in the amount of:

$4,000 for Defendant’s failure to provide accurate wage statements pursuant to Labor § 226

$750 for Defendant’s failure to provide a copy of the personnel records under Labor Code § 1198.5

$750 for Defendant’s failure to provide itemized wage statements pursuant to Labor Code § 226(c)

$232.63 pursuant to claims brought under Labor Code § 2699(f)

All Plaintiffs except Madrigal Cruz attests that they are entitled to statutory penalties in the amount of $3,780.00 for Defendants failure to pay wages upon termination of employment pursuant to Labor Code § 203.

Lastly, Plaintiff Estela Reyes establishes that she is entitled to statutory penalties in the amount of $10,000.00 pursuant to Labor Code § 98.6(b) (Reyes Decl. ¶ 14) and Plaintiffs Evelia Padilla and Maria Rodriguez attests that they are entitled to statutory penalties in the amount of $10,000 pursuant to Labor Code § 1102.5. (Padilla Decl. ¶ 10; Rodriguez ¶ 13.)
B. Interest

Each Plaintiff seeks pre-judgment interest on each individual principal damages award based on a 10% annual interest rate calculated from the last date of work until the date that the interest was calculated. Based on the Declaration Re: Interest filed for each Plaintiff,

Plaintiff Bacilisa Barrera is entitled to interest in the amount of $ 40,547.95

Plaintiff Evelia Padilla is entitled to interest in the amount of $25,836.10

Plaintiff Juan Madrigal Cruz is entitled to interest in the amount of $25,836.00

Plaintiff Estela Reyes is entitled to interest in the amount of $40,317.00

Plaintiff Maria Rodriguez is entitled to interest in the amount of $45,317.00
C. Attorney Fees

Plaintiff Evelia Padilla, Bacilisa Barrera, and Estela Reyes each seek an attorney fees award in the amount of $41,404,50. Plaintiffs Maria Rodriguez and Juan Madrigal Cruz each seek attorney fees in the amount of $51,517.50. In sum, Plaintiffs seek a total attorney fees award in the amount of $231,906.1.

In support of this requests, Plaintiffs submit the Declaration of Catherine Wagner Calderaro. Attached to the Declaration of Catherine Wagner Calderaro appears to be billing records that Plaintiff’s counsel prepared in support of its request for attorney fees. (see Calderaro Decl.) The billing records, however, has not been authenticated by Calderaro or any other individual. (Ibid.) After reviewing the billing records attached to the Calderaro Declaration, the rates are unsupported by the declaration. The hours need further justifivation
D. Costs

Plaintiffs requests a total of $7,402.87 ($1,480 per Plaintiff) for costs incurred in litigating this case. (See Declaration of Costs.) The costs is accounted for in the Declaration of Costs. The requests costs are recoverable. (Code Civ. Proc. § 1033.5, subd. (a)(1), (4). Plaintiffs are therefore entitled to the requested $7,403.87.
E. Damages Proven

Plaintiff Bacilisa Barrera is entitled to:

Principal $184,198.00

Attorney Fees undecided

Cost $1,480

Interest $ 40,547.95

Total Award undecided

Plaintiff Evelia is entitled to:

Principal Damages $110,178.63

Interest $25,836.10

Costs $1,480.57

Attorney Fees undecided

Total Award undecided

Plaintiff Maria Rodriguez is entitled to:

Principal $222,275.63

Attorney Fees undecided

Cost $1,480.57

Interest $45,317.00

Total Award undecided

Plaintiff Juan Madrigal Cruz

Principal $140,204.63

Attorney Fees undecided

Interests $25,836.00

Costs $1480.57

Total Award undecided

Plaintiff Estela Reyes

Principal $192,070.63

Attorney Fees undecided

Interests $40,317.00

Costs $1480.57

Total Award undecided