Judge: Bruce G. Iwasaki, Case: 22STCV07052, Date: 2023-04-10 Tentative Ruling

Case Number: 22STCV07052    Hearing Date: April 10, 2023    Dept: 58

Judge Bruce G. Iwasaki

Department 58

Hearing Date:             April 10, 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 January 2023, this Court previously denied the request for default judgment for insufficient evidence in support of the amount of damages requested.  Specifically, Plaintiff did not provide any evidence showing that she attempted to mitigate her damages by seeking other employment. Since then, Plaintiff has removed the front pay portion of damages and added her work history search to her default judgment package.

Plaintiff Nohemi Esmeralda Maravilla filed a complaint against Defendants California Express Pizza, Inc., Feroz Ziaulhaq, and DOES 1-100 on February 25, 2022. DOES 1-100 were dismissed from the action on December 12, 2022. Plaintiff worked as a pizza maker at Express Pizza from October 7, 2020 through her termination on January 1, 2021. Plaintiff brings causes of action, for:

•   First COA: Race and Discrimination and Harassment

•   Second COA: Gender Discrimination and Harassment

•   Third COA: Hostile Work Environment

•   Fourth COA: Failure to Take All Reasonable Steps to Prevent Harassment, Discrimination, and Retaliation

•   Fifth COA: Retaliation in Violation of California Labor Code Section 1102.5

•   Sixth COA: Wrongful Termination in Violation of Public Policy

•   Seventh COA: Intentional Infliction of Emotional Distress

•   Eighth COA: Failure to Pay Overtime

•   Ninth COA: Failure to Provide Rest Periods

•   Tenth COA: Failure to Provide Meal Periods

•   Eleventh COA: Failure to Pay Earned Wages

•   Twelfth COA: Failure to Furnish Compliant Wage Statements

•   Thirteenth COA: Waiting Time Penalties

•   Fourteenth COA: Failure to Produce Employment Documents and Records

•   Fifteenth COA: Failure to Produce Payroll Documents and Records

•   Sixteenth COA: Unfair Competition

•   Seventeenth COA: Civil Penalties for PAGA Violations

Since the filing of the initial complaint, Plaintiff has dismissed the seventh and seventeenth causes of action.

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                                               NO

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)                                                                           N/A

8.     Cost memorandum                                                                                                            YES

9.     Request for attorney fees (Local Rule 3.214)                                                            YES

10.  Proposed judgment                                                                                                     YES

Discussion

Plaintiff requests $67,308.00 in damages, comprised of $44,000.00 in backpay and $23,308.00 in various statutory penalties and other damages. The statutory penalties and other damages are comprised of $42.00 for overtime pay, $840.00 for meal period premium wages damages, $840.00 for rest period premium wages damages, $750.00 for access to payroll records damages, $750 for access to personnel records damages, $2,520.00 for waiting time penalties, $1,150.00 for non-compliant wage statements damages, $10,000.00 for whistleblower retaliation damages, $975.00 for unpaid wages damages, $719.00 in costs, and $4,722.00 in lost benefit damages. Plaintiff also requests $26,775.00 in attorney fees.

            “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 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. She has submitted new evidence to support her claim that she mitigated her damages. This consists of four screenshots of a cellphone depicting a Google search of the following four employers: Allure Labs, Americana Pizza & Taqueria Hayward, The Pizza House, and Round Table Pizza. (Maravilla Decl., Ex. Q.) Plaintiff states that she contacted those employers in January and February 2021 but could not secure new employment. (Maravilla Decl., ¶ 61.) Plaintiff does not provide any documentary evidence that she applied to those employers.  Her evidence of job search efforts is weak, but because it is the only evidence, it suffices for a default judgment. (Vitagraph, Inc. v. Liberty Theatres Co. of California (1925) 197 Cal. 694, 700 [defendant has the burden of proving plaintiff failed to mitigate damages; where no evidence is produced, “the finding must be against the party upon whom rests the burden of proof”].) 

            Accordingly, the request for default judgment in the amount of $94,083.00, representing $67,308.00 in damages and $26,775 in fees, is granted.