Plaintiffs request for Entry of Default Judgment is GRANTED in the amount of $120,064.37.

BACKGROUND:

Plaintiff commenced this action on 8/30/13 against defendant for: (1) failure to pay overtime; (2) failure to pay accurate wage statements; (3) failure to keep accurate payroll records; (4) unlawful withholding of wages; (5) failure to pay all wages due upon discharge; (6) theft by deception; and (7) unfair competition.

Default was entered on Dec. 3, 2013.

Plaintiff requests Entry of Default Judgment in the following amounts:
· Compensatory: $174,568.95
· Attorney Fees: $55,440.00
· Interest: $341.50
· Costs: $1,120.33

The complaint does not state the specific amount of damages sought. Plaintiff seeks to recover unpaid overtime earnings and penalties for herself and other employees, but does not clearly assert what her wages were, how many other employees were not paid overtime wages, the rates of pay for the other employees, or the number of pay periods for which overtime wages were not paid. (See Compl., ¶¶ 6, 24-30.) The only specific amount alleged in the complaint is that plaintiff is owed a civil penalty of $3,990.00 for failure to pay wages due upon discharge. (See id., ¶¶ 16, 62.)

On 10/22/13, plaintiff filed a statement of damages which states that plaintiff is seeking $10,852.54 in overtime, interest, waiting time, and pay statement penalties; $35,700.00 in PAGA penalties; and $30,000.00 in punitive damages. This results in a total of $75,852.54.

Therefore, at most, the complaint and statement of damages notified defendant that plaintiff was seeking $75,852.54 in damages. There is no showing that defendant was ever notified that plaintiff would seek the $174,568.95 requested in the instant default judgment request.

The Court is concerned that plaintiff has not sufficiently supported her requested amount of PAGA penalties. In the summary of the action, plaintiff admits that this amount is merely an estimation. (See Pito’s Case Summary, 6th page [The Court notes that the pages are not numbered, which makes citing to a specific page more difficult.]) Plaintiff claims that this is permissible, citing to People ex rel. Lockyer v. Brar (2005) 134 Cal.App.4th 659, 668, where, according to plaintiff, “the Court of Appeal affirmed a default judgment of Superior Court providing for a statutory penalty multiplied by an estimated number of victims.” (Pito Case Summary, 6th page, fn. 2.) However Brar does not quite stand for this proposition. The complaint in Brar did specify a minimum number of actual victims.

“In the matter before us, the Attorney General’s complaint alleged that Brar had filed some 14 shakedown lawsuits.3 The complaint then says that as to three of those lawsuits, 1500 nail salons were involved. Here is the exact language: ‘Defendants have filed approximately 14 lawsuits. In at least three of these actions defendants have named as a defendant one nail salon and 500 nail salons identified only as Doe defendants (i.e., a total of three named defendant nail salons and 1500 DOES). Defendants have also sued small markets and retail stores.’” (People ex rel. Lockyer v. Brar (2005) 134 Cal.App.4th 659, 668.)

The court recognizes the problem faced by plaintiff. In an action of this sort, where plaintiff is suing under PAGA and the defendant defaults, how does plaintiff show the extent of defendant’s statutory violations?

Nonetheless, even if this court were to allow an estimate, plaintiff’s estimate appears to be based on hearsay. (See Pito Declaration, ¶ 9 [“Some of the other employees told me that [defendant] was also making them work overtime. . .”]) Should plaintiff supplement these items with declarations at the time of the hearing, the court will allow the PAGA damages.

The court is also concerned that the amount of attorney’s fees requested is excessive. Plaintiff’s counsel seeks fees for 123.2 hours at a rate of $450.00. (See Clark Decl., ¶¶ 9, 10.) This includes, e.g., over 24 hours drafting the complaint, over 16 hours preparing the default (twice; the first request for default was rejected); and over 28 hours preparing the Entry of Default Judgment documents. In addition, an entry for .3 hours to “check status of filing,” raises questions for the court. It shouldn’t take 18 minutes to go on-line on the court’s website to determine the status of a filing.

The court will grant attorneys fees in the amount of $42,750 (95 hours @ $450/hr.)

Assuming that plaintiff can supplement her declaration with the declaration of other employees, the Court will GRANT plaintiff’s request for Entry of Default Judgment as follows:

Principal $75,852.54
Costs $1,120.33
Interest $341.50
Attorney’s Fees $42,750.00

TOTAL JUDGMENT $120,064.37

To the extent that plaintiff wishes to recover the amount of damages asserted in the instant request, the Court would grant plaintiff leave to file an amended complaint which notifies defendant of the damages sought either in the prayer or the alleged facts.