Case Number: BC693419 Hearing Date: November 27, 2018 Dept: 24

The Court DENIES Plaintiff’s request for default judgment.

Background:

This action arises out of allegations by Plaintiff Maria Guzman that her joint employers, Defendants Gateway Frontline Services, Inc. (“GFS”) and Gateway Security, Inc. dba Gateway Group One (“GSI”), and her manager, Annie An (“An”), discriminated against her and retaliated against her for taking leave under the California Family Rights Act (“CFRA”) and Family and Medical Leave Act (“FMLA”). Plaintiff commenced this action on February 8, 2018. In the complaint, Plaintiff alleges six causes of action for: (1) Fair Employment and Housing Act (“FEHA”) Failure to Provide Reasonable Accommodation against GFS; (2) FEHA Failure to Engage in the interactive process against GFS; (3) CFRA Retaliation against GFS; (4) FMLA Retaliation and Interference against GFS and An; (5) FEHA Disability Discrimination against GFS; and (6) Wrongful Termination in Violation of Public Policy against GSI.

On June 8, 2018, Plaintiff served on Defendants GSI and GFS a notice of her intention to seek punitive damages against Defendants in the amount of $500,000. She subsequently served it on Defendant An on July 5, 2018. Defaults were entered for Defendants GFS and GSI on July 30, 2018. Defendant An’s default was entered on August 20, 2018. On November 7, 2018, Defendant An filed a motion to set aside/vacate default, which is set to be heard on December 21, 2018. On November 21, 2018, the Court received a stipulation and order to set aside default entry. Presently before the Court is Plaintiff’s request for entry of default judgment against all three defendants.

Discussion:

The Court considered the moving papers and finds that Plaintiff’s default judgment packet contains the following errors:

Plaintiff’s default judgment package contains the following errors:

Plaintiff has not provided proof of actual service of summons and complaint on Defendants GSI and GFS. On July 30, 2018, Plaintiff filed proofs of service on Defendants GSI and GFS indicating service on February 16, 2018, by first-class mail return receipt requested through Kurus Elvia, Chief Executive Officer of GSI and GFS, at 604-608 Market St., Newark, NJ 07105. The proofs of service did not include signed return receipts attached.

A nonresident defendant may be served by certified or registered mail with return-receipt-requested. (CCP, § 415.40.) The proof of service for this method must show evidence of actual delivery – either the signed return receipt or “other evidence” of receipt satisfactory to the court. (CCP § 417.20(a).) Strick compliance with CCP § 417.20(a) is required for mail on a nonresident. (Bolkiah v. Sup.Ct. (Bijan Fragrances, Inc.) (1999) 74 Cal.App.4th 984, 1001[holding record showed sufficient other evidence than the signed return receipt to establish actual delivery].) Plaintiff has not provided other evidence showing actual delivery of the summons and complaint to GSI and GFS.

Judgment cannot be entered at this time as to Defendant An because she filed a Motion to Set Aside/Vacate Default on November 7, 2018, which is set to be heard on December 21, 2018.

Plaintiff’s proposed order fails to indicate what portion of the damages represents prejudgment interest, punitive damages, liquidated damages, special damages and general damages.

Plaintiff has not provided sufficient notice of the damages she seeks. Code of Civil Procedure, Section 580, subdivision (a), limits a trial court’s jurisdiction to grant relief on a default judgment to the amount stated in the complaint. (CCP § 580(a).) California Courts have recognized that a defendant must be given formal notice of the extent of liability stemming from a decision not to appear in response to a complaint, in the form of an amended complaint, and that the notice requirements cannot be satisfied through a statement of damages in cases that do not involve personal injury or wrongful death. (See Greenup v. Rodman (1986) 42 Cal.3d 822, 826-827; Dhawan v. Biring (2015) 241 Cal.App.4th 963, 968-969.) Here, Plaintiff did not request a specific amount for damages in the complaint other than general allegations such as damages are in excess of this Court’s minimal jurisdiction. (See, e.g., Compl., ¶ 34.) Therefore, damages are not recoverable beyond the Court’s jurisdictional minimum of $25,000.00. Plaintiff must serve an amended complaint prior to seeking default judgment to recover damages in the amount claimed.

Plaintiff has not shown an entitlement to punitive damages. Namely, Plaintiff has not provided any evidence to allow evaluation of the effect of the punitive damages award on Defendants such that the punitive damages award is not excessive in light of Defendant’s ability to pay. (See Cummings Medical Corp v. Occupational Medical Corp. (1992) 10 Cal.App.4th 1291 (some measure of the effect of a punitive damages award in terms of deterrence is required before punitive damages may be awarded in a default judgment; a showing of profit from the unlawful transaction may be sufficient); but see Johnson v. Ford Motor Co. (2005) 35 Cal.4th 1191, 1208 (calculating punitive damages in an individual tort case based on profits gained may produce an excessive award when there are multiple similar torts).)

Plaintiff has not dismissed the Doe defendants.