Case Number: KC065964    Hearing Date: August 08, 2014    Dept: O

Yupin v. Winkir, Inc. (KC065964)

Plaintiff’s APPLICATION FOR DEFAULT JUDGMENT

Respondent: NO OPPOSITION

TENTATIVE RULING

Plaintiff’s application for default judgment is DENIED on the following grounds:

1. As noted at the last hearing when this application was previously denied, Plaintiff’s complaint does not give defendants notice of damages sought. Due process considerations limit the amount of damages awardable on default. The demand sets a ceiling on recovery. (Greenup v. Rodman (1986) 42 Cal.3d 822, 824.) If no specific damages are alleged in the complaint, a prayer “for such other and further relief as the court deems just” will not support a default judgment for any specific sum. (See Becker v. S.P.V. Const. Co., Inc. (1980) 27 Cal.3d 489, 494-495.) “In all default judgments, the demand sets a ceiling on recovery.” [Greenup v. Rodman supra, 824,—including default judgments entered as discovery sanction; Reedy v. Bussell (2007) 148 CA4th 1272, 1294,—no damages could be awarded on default judgment entered as terminating sanction in probate contest where petitions did not specify amount of damages claimed; David S. Karton, a Law Corp. v. Dougherty (2009) 171 CA4th 133, 150 — judgment in excess of damages specified in complaint is void and may be set aside at any time] Rutter, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 5-E. Due process requires formal notice of the amount demanded and is not satisfied by “constructive notice” from other sources. [Stein v. York (2010) 181 CA4th 320, 326, 105 —where complaint did not specify amount of damages sought, defaulted defendant’s participation in discovery and other pretrial procedures did not waive his right to object to amount of damages awarded] Rutter, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 5-E

A prayer, as here, for damages “according to proof” cannot support a Judgment in any sum against a defaulting defendant. The action for Intentional infliction of Emotional Distress can only be cured by serving the Defendants with a statement of damages. CCP 425.11. This is also true for the prayer for punitive damages. CCP 425.115. However, the other causes of action cannot be cured by serving a statement of damages as they are actions for other than personal injury. [Sole Energy Co. v. Hodges (2005) 128 CA4th 199, 206, 26 CR3d 823, 828, fn. 4; Electronic Funds Solutions v. Murphy (2005) 134 CA4th 1161, 1176–1177; Levine v. Smith (2006) 145 CA4th 1131, 1137(legal malpractice action)]

2. The court is required to render default judgment only “for such sum … as appears by the evidence to be just.” [CCP § 585(b)] Therefore, it is up to plaintiff to “prove-up” the right to relief, by introducing sufficient evidence to support his or her claim. Without such evidence, the court may refuse to grant a default judgment for any amount, notwithstanding defendant’s default. [Taliaferro v. Hoogs (1963) 219 CA2d 559, 560] It is the court’s responsibility to act as a “gatekeeper,” ensuring that only the appropriate claims get through and that the judgment is not inconsistent with or in excess of the complaint. [Heidary v. Yadollahi (2002) 99 CA4th 857, 868; Fasuyi v. Permatex, Inc. (2008) 167 CA4th 681, 691] Rutter, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 5-D

Plaintiff fails to establish breach of any of the terms of contract. Plaintiff complains that inexperienced hairstylists were making the same amount of money per hour as Plaintiff, who had more experience. (Yupin Decl., Par. 13.) All of the evidence submitted to support such claim is inadmissible hearsay from information and gossip obtained by plaintiff from unidentified declarants. More importantly, even if such is taken as true, such does not establish that Plaintiff’s pay rate or pay scale was altered in any way, or that Plaintiff was not compensated for her work, or that either of the defaulting defendants in anyway breached their contract with the plaintiff or impermissibly changed the terms of her employment contract. The contract refers to pay “..according to the pay scale found in the Handbook, which is based upon production per hour.” (Contract, Par. 3). Plaintiff does not show what this pay scale was or how she determines she was not paid for the correct production per hour rate, other than her opinion she was as busy as in previous years but her pay checks dropped after taxable year 2009. (Yupin Decl., Par. 8, 9, 11). Such unsubstantiated opinion cannot be given any weight in proving her claim.

There are no facts supporting the Intentional Infliction of Emotional Distress. The essential elements of intentional infliction of emotional distress are: (1) outrageous conduct; (2) intention of causing, or reckless disregard of the probability of causing emotional distress; (3) severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. There is no evidence that either of the defendants in anyway acted in a manner intended to inflict emotional distress or acted in reckless disregard of the probability of causing emotional distress, nor any evidence from which such an intent could be inferred. Nor is there evidence that plaintiff suffered “severe or extreme emotional distress.” Plaintiff states she was depressed for some time after leaving her work. Such is not sufficient. Severe emotional distress means … emotional distress of such substantial quantity or enduring quality that no reasonable man in a civilized society should be expected to endure it. Fletcher v. W. Nat’l Life Ins. Co., 10 Cal. App. 3d 376, 397. Transient depression is insufficient.

Plaintiff admits that she voluntarily left her employment with Winkir in November 2012. (Yupin Decl., Par. 14.) There are no facts to support constructive discharge, only that she was dissatisfied with her pay.

Finally, punitive damages (even if a proper statement of damages is served upon the defendant) are not supported by facts or evidence. Plaintiff has not shown fraud, oppression or malice by either of the defendants.

The court will hear if plaintiff has any ability to cur the above defects. If not the action will be dismissed.