Judge Holly J. Fujie, Case Number: 21STCV31356, Date: 2024-12-10 Tentative Ruling

MOVING PARTY: Defendants ABDUL OIL CORPORATION and ABDUL WAHAB HIDAYATULLA (“Hidayatulla”) (collectively, “Defendants”)

The Court has considered the moving and opposition papers. No reply has been filed. Any reply was required to have been filed and served at least five court days prior to the hearing. (Code Civ. Proc., § 1005, subd. (b).)

On December 22, 2023, Plaintiff filed his complaint against Defendants. Plaintiff’s complaint arises from Plaintiff's employment with Defendants and alleges causes of action for: (1) discrimination; (2) retaliation – Gov't Code §§12940 et seq.; (3) failure to prevent discrimination and retaliation; (4) failure to provide reasonable accommodations; (5) failure to engage in good faith interactive process; (6) declaratory judgment; (7) retaliation – Lab. Code §98.6; (8) retaliation – Lab. Code §§1102.5, 1102.6); (9) wrongful termination in violation of public policy; (10) failure to pay wages; (11) failure to pay minimum wages; (12) failure to pay overtime compensation; (13) failure to provide meal and rest periods; (14) failure to provide itemized wage and hour statements; (15) waiting time penalties; (16) failure to permit inspection; and (17) unfair competition.

On June 4, 2024, the Court denied Plaintiff’s default judgment application without prejudice for a) failure to submit a signed memorandum of costs and disbursements; b) failure to submit a signed declaration of nonmilitary status for each defendant against whom judgment is sought; c) failure to obtain dismissal of Does 1 through 20; d) failure to present exhibits to substantiate damages and penalties.

On August 20, 2024, Plaintiff filed a second request for entry of default judgment.

On August 20, 2024, Plaintiff filed a request for dismissal as to Does 1 through 20. Dismissal was entered on August 21, 2024.

On August 30, 2024, Defendants filed the instant motion to set aside default and default judgment. Plaintiff filed his opposition on November 14, 2024.

The court is empowered to relieve a party or their legal representative from a judgment, dismissal, order, or other proceeding taken against them through their mistake, inadvertence, surprise or excusable neglect. (CCP § 473, subd. (b).) Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. (Id.) The law favors a trial on the merits and courts therefore liberally construe section 473. (Bonzer v. City of Huntington Park (1993) 20 Cal.App.4th 1474, 1477.) Doubts in applying section 473 are resolved in favor of the party seeking relief from default. (Id. at 1478.)

Defendants contend that their failure to timely respond before default was entered was reasonable and not their fault. (Motion, p. 10.) Hidayatulla argues that he was not properly served with the Complaint, Summons or other related papers as Plaintiff’s purported substitute service of the Summons and Complaint is highly suspect. (Id.) In support of this argument, Hidayatulla declares that he was out of the country when the complaint was served onto an employee of his business who was not authorized to accept service. (Hidayatulla Decl., ¶ 8.) Hidayatulla states that he left the United States for India on Monday January 1, 2024, and left his employees to run their schedules while he continued to monitor the business from abroad with the occasional visit by family members that stayed behind. (Id., ¶ 3.) Hidayatulla declares that he did not know about this lawsuit until his son notified him that there was a lawsuit filed against him by a former employee. (Id.) Once Hidayatulla was notified, he declares that he immediately reached out to his attorney in June of 2024. (Id., ¶ 4.) Defendants claim that they attempted to stipulate for relief from the default but Plaintiff refused. (Motion, p. 2.)

In Opposition, Plaintiff argues that Hidayatulla was the registered agent for service of process and had to be available during business hours to accept service but failed to do so as he was out of the country. (Opposition, p. 4.) Plaintiff contends that Defendants were properly served by substituted service when Plaintiff left summons with a person apparently in charge at Defendant’s office, such that any failure to respond is the result of Defendants’ inexcusable neglect. (Id., p. 5.) Plaintiff also argues that Hidayatulla was on notice of the lawsuit as early as January 18, 2024, based on one of his employees contacting Plaintiff’s counsel regarding the lawsuit. Plaintiff’s counsel declares that someone named Alicia Galavan called their office on January 18, 2024, identifying themselves as one of Defendants’ employees and Plaintiff’s former coworkers. (Karapetyan Decl., ¶ 8.) Galvan allegedly urged Plaintiff’s counsel to dismiss the lawsuit and threatened to report Plaintiff to law enforcement unless the lawsuit was withdrawn. (Id.) Plaintiff also contends that after Hidayatulla’s attorney reached out to Plaintiff’s counsel, the parties agreed to engage in informal negotiations to settle this matter but months went by without any substantive settlement communications from Defendants, necessitating the filing of the request for default judgment. (Karapetyan Decl., ¶ 14.)

The Court finds that Defendants have adequately shown that the entry of default based on their failure to answer the Complaint was the result of Hidayatulla’s mistake, inadvertence or excusable neglect in being out of the country and failing to have an employee notify them of service. The application for relief is made no more than six months after April 4, 2024, when default was entered. Although, the Motion is not accompanied by a copy of the answer proposed to be filed, or a declaration from Defendants’ counsel. Accordingly, the Court DENIES WITHOUT PREJUDICE the instant motion to vacate default for failure to include a copy of the answer proposed to be filed.

Plaintiff argues in opposition that Defendants should be required to pay compensatory legal fees in the amount of $4,000, representing ten (10) hours of attorney time at $400 an hour for preparing the opposition, reviewing Defendant’s expected reply, and attending the hearing. (Karapetyan Decl., ¶¶ 17-19). CCP § 473(b) states that “[t]court shall, whenever relief is granted based on an attorney’s affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties…” Here, there is no attorney affidavit of fault. The failure to answer was based on Hidayatulla’s own fault rather than his attorney’s. Thus, Plaintiff’s request for compensatory legal fees is DENIED.

Plaintiff seeks judgment to be entered in the amount of $183,393.60, consisting of $158,451.20 as the demand of complaint, $10,461.81 in interest, $672.59 in costs, and $13,808.00 in attorney fees.

Plaintiff seeks $50,000 for emotional suffering and distress. (Alvarez Decl., ¶ 32.) Plaintiff declares that, as a result of Defendants’ retaliation and wrongful termination, Plaintiff suffered from emotional distress, anxiety, stress, depression, headaches, tension, and insomnia. (Id.) Plaintiff declares that whenever he thinks about what he was subjected to while employed by Defendants, he becomes emotionally sad, discouraged, and low-spirited. (Id.) Plaintiff did not seek any medical treatment or attention for emotional distress. (Alvarez Supp. Decl., ¶ 7.)

Plaintiff seeks $23,560.00 in lost wages. (Alvarez Decl., ¶ 33.) Plaintiff declares that as a result of Defendants wrongfully terminating Plaintiff, he was unable to find new employment until on or around November 9, 2023. (Id.) His weekly earnings with Defendants were approximately $620.00 ($15.50 per hour x 40 hours = $620 per week) and he was out of work approximately 38 weeks. (Id.)

Plaintiff seeks civil penalties totaling $20,000, $10,000 each for Defendants’ violations of Labor Code §§98.6 and 1102.5 in retaliating against Plaintiff for complaining about unpaid wages. (Alvarez Decl., ¶ 34.)

Plaintiff seeks unpaid minimum wages totaling $13,992 for various periods where Plaintiff was paid below the requisite minimum wage rate. (Alvarez Decl., ¶¶ 35-36.)

Plaintiff seeks liquidated damages pursuant to Labor Code §1194.2 in an amount equal to the minimum wages unlawfully unpaid as previously alleged, an additional $13,992.00, plus interest thereon. (Alvarez Decl., ¶ 37.)

Plaintiff seeks unpaid overtime wages totaling $5,972.20. (Alvarez Decl., ¶ 39.)

Plaintiff seeks $22,465.00 [$11,232.50 + $11,232.50= $22,465] for payment of meal and rest period compensation, pursuant to Labor Code §§ 226.7 and 512. (Alvarez Decl., ¶ 42.)

Plaintiff seeks $4,000 for failure to provide itemized wage and hour statements under Labor Code §226. (Alvarez Decl., ¶ 43.)

Plaintiff seeks $12,250 for failure to provide itemized wage and hour statements under Labor Code §226.3. (Alvarez Decl., ¶ 44.)

Plaintiff seeks $3,720 for waiting time penalties under Labor Code §§ 201-203. (Alvarez Decl., ¶ 45.)

Plaintiff seeks $750 in civil penalties under Labor Code §1198.5 for failure to provide personnel and payroll records or permit Plaintiff to view those records after making a written request on February 20, 2023. (Alvarez Decl., ¶ 46.)

The Court finds that Plaintiff’s application meets a majority of the requirements of California Rules of Court, Rule 3.1800 as it contains interest computations, a memorandum of costs and disbursements, a declaration of nonmilitary status for each defendant against whom judgment is sought, a proposed form of judgment, and a request for attorney fees. Plaintiff also filed a dismissal of all parties against whom judgment is not sought.

Although, the application does not contain exhibits in support of the judgment requested. In Plaintiff’s declarations, Plaintiff requests various forms of relief that would require exhibits, such as Plaintiff’s paystubs, to establish Plaintiff’s hourly rate of pay, hours worked, and lack of meal and rest periods at various times. Plaintiff submits his declaration of conclusory statements alone to substantiate his claims, which is insufficient at this stage. The only exhibit proffered that supports any of Plaintiff’s claims is Plaintiff’s Counsel’s February 20, 2023, letter to Defendants demanding inspection of Plaintiff’s personnel and payroll records, which Plaintiff declares was ignored. (Karapetyan Decl., Ex. 1; Alvarez Decl., ¶ 46.) This exhibit coupled with Plaintiff’s declarations are sufficient to entitle Plaintiff to $750 in civil penalties against Defendants for failure to permit inspection of personnel and payroll records under Labor Code §§ 226(c), 1198.5. Therefore, Plaintiff fails to present exhibits to substantiate damages and penalties for the majority of his claims.

The Court, therefore, DENIES WITHOUT PREJUDICE Defendants’ motion to vacate default for failure to include a copy of the answer proposed to be filed.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Hon. Holly J. Fujie

Judge of the Superior Court