Judge: Bruce G. Iwasaki, Case: 22STCV07052, Date: 2023-01-09 Tentative Ruling

Case Number: 22STCV07052    Hearing Date: January 9, 2023    Dept: 58

Judge Bruce G. Iwasaki

Department 58

Hearing Date:             January 9, 2023

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

Case No.:                    22STCV07052

Matter:                        Default Judgment Application

Moving Party:             Plaintiff Nohemi Esmeralda Maravilla

Background

This is an employment action.  In October 2022, this Court previously denied the request for default judgment for insufficient evidence.  Since then, Plaintiff has dismissed the causes of action for civil penalties for PAGA violations and intentional infliction of emotional distress.  She now submits a new declaration with additional evidence.

Discussion

Plaintiff requests $78,683.00 in damages, which represents $44,000.00 in backpay, $11,375.00 in front pay, and $23,308.00 in various statutory penalties and other damages.

            “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 still not met her burden to provide sufficient information to justify her damages.  Notably, she does not provide specificity as to her efforts on mitigating her damages.  Plaintiff claims $44,000.00 owed between her termination date of January 1, 2021 up until the default date of December 2022 (approximately 104 weeks) for wrongful termination; however, there are no details as to the efforts undertaken to mitigate that amount.  While Plaintiff indicates she has attempted to locate employment, but was unable to do so, this is too vague and general.  She does not provide any employers to which she applied and other details, such as the dates of application.  (Maravilla Decl., ¶ 58.)  Although she mentions geographic limitations on her job search because of her children, it is unclear what areas she has searched.  (Id. at ¶ 60.)  Without further specificity on her diligence and efforts, the damages are too speculative. 

Accordingly, the request for default judgment is denied without prejudice.