Case Number: BC703124 Hearing Date: September 10, 2019 Dept: 37

HEARING DATE: September 10, 2019

CASE NUMBER: BC703124

CASE NAME: Edward Bradford v. Dual Diagnosis Treatment Center, Inc.

DEFAULT ENTERED: May 3, 2019

PLAINTIFF’S APPLICATION FOR DEFAULT JUDGMENT

TENTATIVE: The Application for Default Judgment is DENIED without prejudice.

BACKGROUND

Summary of Complaint:

On April 20, 2018 Edward Bradford (“Plaintiff”) commenced this action against his former employer Dual Diagnosis Treatment Center, Inc. (“Defendant”). The complaint alleges that while Plaintiff was employed by Defendant from in or around January 15 through in or around July 2015, Defendant violated numerous provisions of the California Labor Code. The complaint alleges six causes of action: (1) failure to provide meal and rest periods; (2) failure to pay overtime wages; (3) failure to pay minimum wages; (4) failure to pay wages due upon termination; (5) failure to issue accurate itemized wage statements; and (6) unlawful business practices in violation of Business & Professions Code §§ 17200, et seq.

On May 3, 2019, default was entered against Defendant Dual Diagnosis Treatment Center, Inc.

Service of Summons:

Proof of Service of Summons filed on May 18, 2018 indicates that Defendant Dual Diagnosis Treatment Center, Inc. was served with the summons and complaint on May 1, 2018 by personal service on Mai Yang, Defendant’s agent for service of process, at 2710 Gateway Oaks Drive, Suite 150N, Sacramento, CA 95833.

In addition, Proof of Service filed on January 29, 2019, indicates that Defendant Dual Diagnosis was served with First Amended Complaint on January 28, 2019 by personal service on Shellie Smith, Defendant’s agent for service of process, at 2710 Gate Way Oaks Drive, Suite 150, Sacramento, California 95833.

Entry of Default:

Default was entered against Defendant Dual Diagnosis Treatment Center, Inc. on May 3, 2019. The Declaration of Mailing included in the Request for Entry of Default indicates that a copy of the of the Request was mailed to the same address as service of the summons and complaint. This is sufficient to meet the statutory requirements of Code of Civil Procedure § 587.

SUBMITTED DOCUMENTS: (Cal. Rules of Court, rule 3.1800):

1. Dismissal or judgment of non-parties to the judgment YES

2. Use of JC Form CIV-100 YES

3. Memorandum of costs YES

4. Declaration of nonmilitary status for each defendant YES

5. Declarations of propriety of separate default judgment on cross-complaint N/A

6. Summary of the case YES

7. 585(d) declarations/admissible evidence in support NO

8. Interest computation (as necessary) NO

9. Request for attorney fees (Local Rule 3.214) NO

10. Proposed judgment YES

11. Exhibits (as necessary) NO

DEFAULT JUDGMENT REQUESTED:

• Damages: $ 13,985.00

• Interest: $ 1,398.50

• Attorney fees: $ 15,225.00

• Costs: $ 608.00

Total: $ 31,217.00

DISCUSSION

Pursuant to Code of Civil Procedure section 585, Plaintiff requests a court judgement against his former employer Defendant Dual Diagnosis Treatment Center, Inc. in the total amount of $31,217.00. On august 27, 2019, Plaintiff filed a default judgment package. The court has reviewed the default judgment package and has identified several issues that preclude the court from entering judgment at this time. The issues identified in the default package are explained below.

A. Principal Damages

Plaintiff’s default judgment package includes an Application for Court Judgment and a Points and Authorities that both indicate Plaintiff seeks principal damages in the amount of $13,985.00 against Defendant Dual Diagnosis Treatment Center, Inc. for unpaid wages and civil penalty fees. According to the Points and Authorities, the $13,985.00 accounts for the following:

(1) $3,240.00 for the first cause of action for failure to provide meal and rest breaks;

(2) $1,215.00 for the second action for unpaid overtime wages;

(3) $2,880.00 for Civil Penalties pursuant to Section 203 of the California Labor Code

(4) $2,650.00 for Civil Penalties pursuant to Section 558 of the California Labor Code; and

(5) $4,000.00 for Civil Penalties pursuant to Section 226 of the California Labor Code.

Insufficient evidence has been provided in support of the requested principal damages award. The Bradford Declaration establishes that Plaintiff was employed by Defendant as a House Manager from in or around January 1, 2015 through in or around July 11, 2015 (Bradford Decl. ¶ 1), that he worked approximately 48 hours a week, (Id. ¶ 3), and that he was never provided with meal or rest breaks in accordance with California state law. (Id. ¶ 4.) However, neither the Bradford Declaration nor the Complaint state what Plaintiff’s regular rate of compensation was as House Manager or how many times Plaintiff was furnished with an itemized wage statement that failed to comply with California Labor Code § 226.

Without evidence of Plaintiff’s regular rate of compensation, the court cannot accurately calculate a principal damages award for Plaintiff’s first cause of action for failure to provide meal and rest periods and Plaintiff second cause of action for unpaid overtime wages. (see Labor Code §§ 227.6, 510.) Similarly, without evidence of Plaintiff’s regular rate of compensation the court cannot accurately calculate an award for civil penalties pursuant to Section 203 of the California Labor Code, which provides “if an employer willfully fails to pay . . . any wages of an employee who is discharged or who quits, the wages of the employee shall continue as a penalty from the due date thereof at the same rate until paid.”

In addition, without evidence of how many times or how often Plaintiff was not furnished with an accurate itemized wage statement, the court cannot calculate the amount of civil penalties Plaintiff is entitled to recover for Defendant’s violation of Labor Code section 226, which provides that an employee is entitled to recover $50 for an initial violation and $100 for each subsequent violation. Moreover, even if the court was to assume that Plaintiff was paid on a weekly basis from January 1, 2015 through July 11, 2016 and that Defendant never furnished an accurate itemized wage statement, Plaintiff would be entitled to recover civil penalties for no more than 27 pay periods. This would amount to $50 for the initial pay period and $2,600 for the subsequent pay periods, or $2,650 in total. Thus, Plaintiff fails to establish that he is entitled to recover the requested $4,000 in civil penalties.

B. Attorney Fees

Plaintiff also requests attorney fees in the amount of $15,225.00. In support of this request, Plaintiff submits the Declaration of Attorney Christina Begakis, which states that she has expended 43.5 hours litigating this case and that her billing rate is $350.00 per hour. (Begakis Decl. ¶ 10.) While the Begakis Declaration states that the 43.5 hours accounts for the time spent on “client meetings, updating meetings, drafting a demand for employment file, and preservation letter, attempting to contact defendants via telephone, letter, and mail, drafting the complaint, drafting the complaint, drafting discovery on all Defendants, as well as the Request for Entry of Default and Default Judgment”, the court is concerned about the reasonableness of the requested attorney fee award.

On December 11, 2018, Plaintiff filed an Application for Entry of Default that requests attorney fees in the amount of $12,040. About six months later, on May 3, 2019, Plaintiff filed another Application for Entry of Default that requests attorney fees in the amount of $18,040. Despite requesting approximately $6,000 more in the second Application, the court record reflects that minimal work was done in this case between December 2018 and May 2019. In addition, the most recent Application for Entry of Default filed on August 27, 2019 requests $15,225.00, which is less than the amount that Plaintiff previously requested in May 2019. These discrepancies raise concerns as to whether the requested award reasonably reflects actual amount of attorney work that has been completed in connection with this case.

In these circumstances, the court would be inclined to calculate an attorney fees award based on the fee schedule set forth in the Local Rules. However, as the amount of principal damages for this case has not been ascertained, an attorney fees award based on the Local Rules cannot be calculated at this time.

Accordingly, due to the issues identified above, the court DENIES, without prejudice, the request for a court judgment pursuant to Code of Civil Procedure section 585 to allow Plaintiff the opportunity to address the issues identified.