Judge: Armen Tamzarian, Case: 23STCV26544, Date: 2024-12-03 Tentative Ruling
Case Number: 23STCV26544 Hearing Date: December 3, 2024 Dept: 52
Order to Show Cause Re: Entry Default Judgment
Plaintiff Andrii Kozmyn requests court judgment by default
against defendants Dmytro Kriupeniukov and Kateryna Gorbenko. Plaintiff’s request for default judgment is
defective.
Evidence of Amount of Damages
Plaintiff’s evidence does not prove
the full damages he requests. “Even when
the allegations of a complaint do support the judgment a plaintiff seeks, he is
not automatically entitled to entry of that judgment by the court, simply
because the defendant defaulted. Instead, it is incumbent upon the plaintiff to
prove up his damages, with actual evidence.”
(Kim v. Westmoore Partners, Inc.
(2011) 201 Cal.App.4th 267, 272.)
Among other damages, plaintiff
seeks $1,550 in damages under Labor Code section 226, subdivision (e). That subdivision provides, “An employee
suffering injury as a result of a knowing and intentional failure by an
employer to comply with subdivision (a) is entitled to recover the greater of
all actual damages or fifty dollars ($50) for the initial pay period in which a
violation occurs and one hundred dollars ($100) per employee for each violation
in a subsequent pay period.” Section
226, subdivision (a) provides, “An employer, semimonthly or at the time of each
payment of wages” must provide accurate itemized wage statements.
Plaintiff provides no evidence he
suffered $1,550 in actual damages. He is
therefore limited to $50 for the first violation plus $100 for each violation
in subsequent pay periods. Damages of
$1,550 thus requires 16 pay periods ($50 x 1 + $100 x 15). Plaintiff does not provide evidence he
suffered violations in 16 pay periods.
He states defendants paid him “at the end of each project” instead of at
regular intervals. (Kozmyn Decl., ¶ 7.) He further states, “I worked a total of just
over 16 weeks.” (Id., ¶ 19.) Plaintiff thus seeks damages for each of 16
weeks of work, not 16 pay periods.
Damages under section 226, subdivision (e) are measured in pay periods,
not weeks.
Labor Code Penalties
Plaintiff requests three categories
of civil penalties he can only recover via an action under the Private
Attorneys General Act (PAGA). First, plaintiff’s
application for default judgment seeks $5,725 of penalties under Labor Code
section 210, subdivision (a). (Bitton
Decl., ¶ 15.) An individual employee can
only directly recover such penalties via a proceeding before the Labor
Commissioner “pursuant to Section 98.”
(Lab. Code, § 210, subd. (b); see Andrade v. Arby’s Restaurant Group,
Inc. (N.D. Cal. 2016) 225 F.Supp.3d 1115, 1134 [“There exists no private
right of action for violations of § 210”].)
Otherwise, the employee can only recover these penalties via a PAGA
action on behalf of all aggrieved employees.
(Lab. Code, § 2699, subd. (a).)
Second, plaintiff’s application for
default judgment seeks $5,725 in penalties under Labor Code section 225.5. (Bitton Decl., ¶ 15.) An employee can only recover these penalties
via a PAGA action. Section 225.5,
subdivision (b) provides, “The penalty shall be recovered by the Labor Commissioner
as part of a hearing held to recover unpaid wages and penalties or in an
independent civil action. The action
shall be brought in the name of the people of the State of California and the
Labor Commissioner and attorneys thereof may proceed and act for and on behalf
of the people in bringing the action. Twelve
and one-half percent of the penalty recovered shall be paid into a fund within
the Labor and Workforce Development Agency dedicated to educating employers
about state labor laws, and the remainder shall be paid into the State Treasury
to the credit of the General Fund.” (Accord
Amaral v. Cintas Corp. No. 2 (2008) 163 Cal.App.4th 1157, 1195 [“only
the Labor Commissioner” can “pursue such remedies” outside of a PAGA action].)
Third, plaintiff
seeks $15,250 in civil penalties under Labor Code section 226.3. (Bitton Decl., ¶ 15.) Like the other penalties discussed above, that
statute only permits the Labor Commissioner to recover civil penalties. An individual employee cannot recover them
except via a PAGA action on behalf of all aggrieved employees. (Lab. Code, § 2699, subd. (a); see Raines
v. Coastal Pacific Food Distributors, Inc. (2018) 23 Cal.App.5th 667, 674; Heritage
Residential Care, Inc. v. Division of Labor Standards Enforcement (2011)
192 Cal.App.4th 75, 83.)
PAGA
Allocation
The court cannot enter the requested
default judgment because plaintiff’s proposed judgment does not properly
allocate the penalties under the Private Attorneys General Act (PAGA). Plaintiff’s 15th cause of action seeks to
recover PAGA penalties for plaintiff and other aggrieved employees. (FAC, ¶¶ 108-111.) But plaintiff requests default judgment of
damages only for himself. Any judgment
in a PAGA action, including a default judgment, must allocate 75% of PAGA
penalties to the Labor and Workforce Development Agency (LWDA), and the
remaining 25% must be distributed among all aggrieved employees. (Moorer v. Noble L.A. Events, Inc.
(2019) 32 Cal.App.5th 736, 741-743 (Moorer).) This default judgment would bind “the LWDA
and aggrieved employees” without giving them their proper share of
penalties. (Id. at p. 744, fn.
6.)
Plaintiff thus must either (a) dismiss
his claims for PAGA penalties, including those under Labor Code sections 210,
225.5, and 226.3, or (b) submit a proposed judgment allocating 75% of the
penalties to the LWDA and 25% to all aggrieved employees, not just plaintiff. (See Moorer, supra, 32 Cal.App.5th at
p. 743 [judgment creditor must conduct postjudgment discovery to identify other
aggrieved employees].)
Disposition
Plaintiff Andrii Kozmyn’s request
for default judgment is denied without prejudice.