Department 58

Hearing Date: October 31, 2022

Case Name: Nohemi Esmeralda Maravilla v. Express Pizza, Inc.

Case No.: 22STCV07052

Matter: Default Judgment Application

Moving Party: Plaintiff Nohemi Esmeralda Maravilla

Responding Party: Unopposed

Tentative Ruling: The Court denies the request for default judgment without prejudice.

Background

In this employment action, Nohemi Esmeralda Maravilla (Plaintiff) sues Express Pizza and Feroz Ziaulhaq (Ziaulhaq) alleging (1) race discrimination, (2) gender discrimination, (3) hostile work environment, (4) failure to prevent harassment, discrimination, and retaliation, (5) whistleblower retaliation, (6) wrongful termination, (7) intentional infliction of emotional distress, and (8) unfair competition. In addition, she alleges multiple Labor Code violations including failure to pay overtime, failure to provide meal/rest periods, failure to pay earned wages, waiting time penalties, failure to produce payroll documents, and Private Attorney General Act (PAGA) penalties. Plaintiff alleges that she was employed by Defendant between October 7, 2020 and January 1, 2021 as a pizza maker.

The clerk entered default against both defendants and the “Doe” defendants were dismissed.

Discussion

Plaintiff requests damages in the total amount of $113,683.00. This represents $46,577.14 in back pay, $13,520.00 in front pay, $20,000.00 for emotional stress, and $33,586.00 in wage and hour damages. The $33,586.00 appear to be for PAGA penalties. (Guzman Decl., Ex. L.)

“Plaintiffs in a default judgment proceeding must prove they are entitled to the damages claimed.” (Barragan v. Banco BCH (1986) 188 Cal.App.3d 283, 302, citing Code Civ. Proc., § 585 & Taliaferro v. Hoogs (1963) 219 Cal.App.2d 559, 560.) If evidence is presented by declaration, the facts must be shown to be “within the personal knowledge of the affiant and shall be set forth with particularity, and each affidavit shall show affirmatively that the affiant, if sworn as a witness, can testify competently thereto.” (Code Civ. Proc., § 585, subd. (d).)

Plaintiff has not provided sufficient information. She provides her timesheet for the period between October 14 and November 8, 2020. (Maravilla Decl., ¶ 81, Ex. A.) The handwritten timesheet shows that she worked 5 hours most days, and 6 hours on November 8. This is a total of 46 hours. Assuming that Plaintiff’s hourly rate was $13.00 per hour, this results in a figure of $598.00. It is unclear how Counsel calculated the other amounts. For example, Counsel provides a chart indicating that Plaintiff is owed $46,577.14 and $13,520.00 for back and front pay, respectively. However, nowhere in the declarations does it indicate how these numbers were produced, i.e., the number of hours/days worked. Counsel’s averment that their office calculated these figures is not enough. (Guzman Decl., ¶ 25.) Plaintiff must provide the calculations and the corresponding documentary evidence to support her claims. Among other things, she should provide documentation of the amounts she was paid, so that the Court can determine whether she is owed anything and if so, in what amount. On its face, a request for over $100,000 for working three months making pizzas is excessive.

Moreover, most, if not all, of Plaintiff’s causes of action also plead both economic and general damages for emotional distress. (Complaint, ¶¶ 31, 32, 58, 67, 76, 82, 87, 93, 96.) If the damages for emotional distress “lie at the heart” of the action, the action will be considered a personal injury action for purposes of Code of Civil Procedure section 425.11. (Schwab v. Rondel Homes, Inc. (1991) 53 Cal.3d 428, 432.) Even if the complaint includes non-personal injury claims, a Statement of Damages is required if those claims “are closely tied” to the injury claims. (Jones v. Interstate Recovery Service (1984) 160 Cal.App.3d 925, 930.) Notably, Plaintiff alleges an intentional infliction of emotional distress claim and requests $20,000.00. This claim alone requires a Statement of Damages (Form CIV-050) under Code of Civil Procedure section 580, subdivision (a). Plaintiff did not submit any evidence showing that a Statement of Damages (Form CIV-050) was ever served on Defendants, nor does she provide evidence to support such damages.

Finally, the Court is inclined to dismiss the PAGA penalties. A “ ‘[PAGA] action to recover civil penalties “is fundamentally a law enforcement action designed to protect the public and not to benefit private parties.” ’ ” (Iskanian v. CLS Transportation Los Angeles (2014) 59 Cal.4th 348, 381.) Labor Code section 2699, subdivision (i) requires that 75 percent of the civil penalties be distributed to the Labor and Workforce Development Agency and 25 percent to the aggrieved employees.

The PAGA plaintiff does not receive the full 25 percent share of the civil penalties; rather, it must be shared by all aggrieved employees. (Moorer v. Noble L.A. Events, Inc. (2019) 32 Cal.App.5th 736, 738 [affirming trial court’s denial of default judgment because PAGA plaintiff refused to comply with order to distribute 25 percent of the civil penalties to 23 other aggrieved employees on a pro rata basis].)

Here, Plaintiff does not appear to be requesting civil penalties on behalf of other employees because she never specifies the number of employees affected by the Labor Code violations. To the extent Plaintiff is seeking individual penalties, this is not allowed. “[T]he PAGA statute provides that plaintiffs can recover penalties through a civil action brought ‘on behalf of himself or herself and other current or former employees.’” (Lab. Code, § 2699, subd. (a), italics added.) “[A] PAGA claim may not be brought solely on the employee’s behalf, but must be brought in a representative capacity.” (Williams v. Superior Court (2015) 237 Cal.App.4th 642, 649; see also (Kansupda v. Baptista Delivery Services., LLC (N.D.Cal. Mar. 31, 2022, No. 4:18-cv-02133-KAW) 2022 U.S.Dist.Lexis 111673, *23-24.)

Accordingly, the request for default judgment is denied.