Case Number: BC670306 Hearing Date: May 29, 2018 Dept: 51

Plaintiff Marleny Perez sues Dona Amalia, Inc. and Amalia Doe for damages relating to her termination and for alleged violations of the Labor Code.

On July 28, 2017, plaintiff filed a complaint for (1) discrimination; (2) harassment; (3) retaliation; (4) failure to prevent discrimination, harassment, and retaliation; (5) failure to provide reasonable accommodations; (6) failure to engage in a good faith interactive process; (7) wrongful termination in violation of public policy; (8) declaratory judgment; (9) failure to pay wages; (10) failure to pay minimum wages; (11) failure to pay overtime wages; (12) failure to provide meal and rest breaks; (13) failure to provide itemized wage statements; (14) waiting time penalties; and (15) failure to permit inspection of personnel and payroll record.

On December 13, 2017, default was entered against defendants.

Plaintiff now seeks default judgment against defendants in the principal amount of $58,306.75 (according to the proposed judgment) plus interest, costs, and attorneys’ fees for a total judgment of $98,201.31.

Procedural Requirements

On December 13, 2018, default was entered against defendants. No pending motion to vacate default appears in the record. The default judgment packet includes a dismissal of Does 1 through 20 and a proposed form of judgment on the appropriate Judicial Council forms.

Plaintiff did not include a mandatory Request for Entry of Default (CIV-100). The form requires, among other things, that plaintiff’s counsel sign a declaration of nonmilitary status. Without the mandatory form, the default judgment packet is defective, although for guidance the Court will address remaining requirements.

The amounts prayed for in the complaint, stated as damages in the proposed judgment, and listed in plaintiff’s declaration yield three different numbers. See Complaint 29:15-30:12 (sum of amounts listed totals $63,270.21); Proposed Judgment, p. 2 ($58,306.75); Perez Decl. ¶ 26 ($63,306.75). These numbers should all be the same, or, in any event, plaintiff may not recover more than what is specified in the complaint under each cause of action. As part of resubmitting the default judgment packet, plaintiff should submit a statement of what damages and portion of civil penalties she is entitled to, separated by individual causes of action.

Plaintiff’s proof of service of summons for corporate defendant Dona Amalia, Inc., filed August 21, 2017, state that defendant was served by leaving the summons and complaint with Ludwig Munoz, an authorized agent, at 6755 Mason Ave., Winnetka, CA 91306. Plaintiff’s proof of service of summons for individual defendant Amalia Doe states that she was substitute-served at the same address (indicated as a business address) by leaving the summons and complaint with Munoz and that the process server subsequently mailed, first-class with postage prepaid, the same documents to the address. Service appears adequate.

Evidentiary Support

For a plaintiff to prove entitlement to damages after entry of default, the plaintiff must “merely establish a prima facie case,” a showing that is lower than that under the preponderance of the evidence standard. Johnson v. Stanhiser (1999) 72 Cal.App.4th 357, 361.

Contrary to her statement, plaintiff has not prevailed on the entirety of the Labor Code claims by virtue of defendants’ default. MPA, 2:22-23. Plaintiff’s declaration, however, is sufficient to show a prima facie case on her causes of action premised on Labor Code violations. Plaintiff states that she was paid $8 an hour, that she was not paid overtime, that she was not provided meal and rest breaks, that she was never issued paystubs, that she was not paid accrued wages upon termination, and that she requested but was never permitted to inspect defendants’ personnel and payroll records. Perez Decl. ¶¶ 8-24. (To establish plaintiff’s minimum wage claim, the Court, on its on motion, takes judicial notice of the historical minimum wage amounts in California. Evid. Code § 452(h); History of California Minimum Wage .)

This evidence is sufficient. Accordingly, plaintiff has met her burden of establishing a prima facie case on her ninth through fifteenth causes of action.

Interest

“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.” Civ. Code § 3287(a).

“Under subdivision (a) the court has no discretion, but must award prejudgment interest upon request, from the first day there exists both a breach and a liquidated claim.” North Oakland Medical Clinic v. Rogers (1998) 65 Cal.App.4th 824, 828.

Unpaid wages accrue interest at a 10% annual rate. Labor Code § 218.6; Civ. Code § 3289(b).

Plaintiffs request interest of $14,886.56 but does not specify the beginning and end dates used for the calculation or why those dates were chosen. Upon resubmission, an explanation for the dates and calculation should be provided.

Costs

Plaintiff requests $510.00 in costs but does not provide any specifics. Costs will be excluded unless a breakdown is provided on the mandatory Request for Entry of Default (CIV-100).

Attorneys’ Fees

The party claiming attorneys’ fees must establish entitlement to such fees and the reasonableness of the fees claimed. Civic Western Corporation v. Zila Industries, Inc. (1977) 66 Cal.App.3d 1, 16. A party may entitled to recover attorneys’ fees by statute or contract. CCP § 1021.

Here, plaintiff asserts Labor Code sections 218.5, 226, and 1194 as statutory bases for attorneys’ fees. Labor Code section 218.5 provides for attorneys’ fees in actions for nonpayment of wages. Labor Code section 226 provides for attorneys’ fees in actions for failure to provide accurate wage statements. Labor Code section 1194 provides for attorneys’ fees in actions to recover minimum wages and overtime.

Plaintiff requests $19,500 in attorneys’ fees. The Court will address a departure from the fee schedule and, if one is allowed, the reasonableness of these fees at a later date but notes what it perceives as a discrepancy between the amount requested and the hourly rate and number of hours stated by her counsel ($650 per hour and 5 hours, respectively, which would total $5,200, not $19,500.)

Conclusion

The Court intends to deny the judgment but will allow plaintiff a chance to submit supplemental documents at the hearing or thereafter upon request.