Judge: Bruce G. Iwasaki, Case: 19STCV38540, Date: 2023-04-27 Tentative Ruling


Case Number: 19STCV38540    Hearing Date: April 27, 2023    Dept: 58

Judge Bruce G. Iwasaki

Department 58

Hearing Date:             April 27, 2023

Case Name:                Ana Romero v. Martini Associates Development LLC

Case No.:                    19STCV38540

Motion:                       Default Judgment Application

Moving Party:             Plaintiff Ana Romero

Opposing Party:          None

Tentative Ruling:      The request for default judgment is denied.    The Court proposes an alternative judgment.

 

STATEMENT OF CASE

 

Plaintiff Ana Romero (“Plaintiff”) sued Defendant Martini Associates Development LLC (“Defendant”), who is the owner of her employer, LA Adventurers All Suite Hotel. The Complaint alleges numerous Labor Code violations including failure to pay overtime, minimum wage, and provide meal and rest periods. On July 11, 2022, the parties originally informed the Court that a settlement was reached. On October 12, 2022, Plaintiff’s counsel stated that he had not received a signed settlement agreement from Defendant. On that same day, counsel for Defendant Martini Associates Development LLC withdrew from the case. Frank Martini, Defendant’s representative, appeared at subsequent hearings and indicated that he had retained counsel. However, counsel never appeared, and this Court struck Defendant’s answer and entered default against it on December 14, 2022. Plaintiff then moved for default judgment.

 

On February 27, 2023, the Court heard Plaintiff’s motion for default judgment. The Court found that she failed to prove up her damages. The Court stated: “Plaintiff is requesting $150,000 in general damages, $494.22 in costs, and $12,184 in attorney’s fees, for a total of $162,678.22. Plaintiff filed her own declaration, averring that Defendant committed numerous Labor Code violations, such as failure to pay overtime and failure to provide meal/rest periods. (Romero Decl., ¶¶ 15-20.) She avers to being “owed additional compensation pursuant to Labor Code § 226.7 and Wage Order 5, § 11.” (Id. at ¶ 21.) However, no amounts are ever provided. It is unclear how she arrived at the $150,000 figure, especially because this is not mentioned in the Complaint.” (2/27/23 Minute Order.) The Court continued the matter and ordered Plaintiff to submit a correct default packet no later than 3/13/23. On March 13, 2023, Plaintiff filed an amended default packet, and on March 15, 2023, Plaintiff filed a declaration of Plaintiff in support of default judgment.

 

On March 20, 2023, the Court heard Plaintiff’s motion for default judgment again and found that she failed to prove up her damages. The Court stated: “Plaintiff seeks $111,334.60 which represents the general damages in connection with the Complaint. Plaintiff’s new declaration remains deficient as it fails to support her claim. In her declaration, Plaintiff states that her hourly rate at the time of the end of her employment was $14.25. She claims $11,901.60 in damages in Meal Period Violations, $14,877.00 in Rest Period Violations, $6,396.00 in unpaid wages which would have been paid if she received the proper minimum wage, $26,100.00 in civil penalties, $44,460.00 in missed overtime insofar that she worked 10 hours of overtime per week which was not paid at all, $4,000.00 which is the statutory maximum under Labor Code section 226 because her timecards never accurately reflected her overtime and/or meal and/or rest violations on each wage statement for the entirety of her employment, and $3,600.00 which is the statutory amount for failure to timely pay under the Labor Code, based on her hourly rate at the proper minimum wage ($15.00) multiplied by an eight-hour work day multiplied by the statutory maximum of 30 days. (Romero Decl. ¶¶ 24-30.) Plaintiff fails to provide the hours, weeks, or days, or otherwise fails to explain how she came to those numbers. Plaintiff does not provide a breakdown in calculations. The Court finds that this is insufficient to prove the purported damages.” The Court continued the matter and ordered Plaintiff to submit a correct default packet no later than April 12, 2023.

 

On April 10, 2023, Plaintiff filed an amended default packet.

 

SUMMARY OF DEFAULT JUDGMENT REQUEST

 

 

SUBMITTED DOCUMENTS (Cal. Rules of Court, rule 3.1800)

 

  1. Use of JC Form CIV-100                                                                                            YES
  2. Dismissal or judgment of non-parties to the judgment                                              YES
  3. Declaration of non-military status for each defendant                                               YES
  4. Summary of the case                                                                                                  YES
  5. 585(d) declarations/admissible evidence in support                                                  YES
  6. Exhibits (as necessary)                                                                                               N/A
  7. Interest computation (as necessary)                                                                           YES
  8. Cost memorandum                                                                                                     YES
  9. Request for attorney fees (Local Rule 3.214)                                                            YES
  10. Proposed judgment (JUD-100)                                                                                   YES

 

DISCUSSION

 

            Preliminarily, in a non-personal injury case, “formal” notice of damages is required. (Dhawan v. Biring (2015) 21 Cal.App.4th 963, 970.) and a complaint that does not specify damages sought can lead to a void default judgment. (Id. at 973.) Here, Plaintiff does not specify what damages she seeks in her complaint, only stating that they will be “according to proof.”

 

Damages 

 

Plaintiff’s damages calculations remain faulty. In her declaration, she does not state the number of years she worked for Defendant nor which years she worked. (Decl. Romero ¶¶ 25, 26, 27, 29.) In addition, most of her penalty calculations are faulty. She states that she was paid biweekly, and in calculating the minimum wage penalties, she appears to use another pay period figure. (Decl. Romero ¶ 28.) She claims she is entitled to the statutory maximum of calculating failure to timely pay, but she does not explain why she is entitled to the statutory maximum of 30 days. (Decl. Romero ¶ 31.) The only correct calculation is her penalty calculation of $4,000.00 for Defendant’s alleged failure to provide accurate wage statements. (Decl. Romero ¶ 30.)

 

Interest

 

            Plaintiff also seeks 10% interest per year, the statutory percentage allowable under Civil Code section 3289 for breach of contract claims. However, this is not a breach of contract action. Thus, 7% interest per year is the correct figure.  

 

Attorney Fees

 

            Plaintiff’s attorney Arta Wildeboer seeks attorney’s fees in the amount of $3,003.35. She states that she has incurred more than $12,184.00 in fees. (Decl. Wildeboer ¶ 3.) She states that she is entitled to $2,890 and 1% of the excess over $100,000. (Decl. Wildeboer ¶ 3.) By the Superior Court of Los Angeles County, Local Court Rule 3.214, she is entitled to $690.00 and 3% of the excess over $10,000.00.

 

            Thus, the court denies Plaintiff’s request for default judgment.

 

            Rather than require a fourth attempt to document damages, the Court will entertain a request for entry of default judgment in the sum of $85,000 plus attorney’s fees in the sum of $3,000, subject to submission of a proposed judgment.