Judge Jill Feeney, Case Number: 23STCV08508, Date: 2024-03-01 Tentative Ruling

This is an action for violations of the Labor Code and the FEHA, wrongful termination, and unfair competition. Plaintiff alleges that while working as a server, Defendant failed to pay him his hourly wage and failed to permit statutory breaks. When Plaintiff complained, Defendant’s employees retaliated by assigning him less favorable shifts.

Although Plaintiff filed a CIV-100 when he requested entry of default, Plaintiff failed to file a second CIV-100 seeking default judgment from the Court with sections 2 through 8 completed. The Court cannot enter default judgment until Plaintiff submits the completed form.

Plaintiff seeks damages and statutory penalties for unpaid minimum wage, missed meal and rest periods, waiting time penalties, unpaid wages, penalties allowed under the Labor Code, and general damages for emotional distress.

Unpaid minimum wage: Plaintiff testifies that he was not paid minimum wage under between September 1, 2021 and September 15, 2021. (Walker Decl., ¶10.) Labor Code, section 1194.2 provides that an employee is entitled to recover liquidated damages in an amount equal to the wages unlawfully unpaid and interest. Plaintiff was paid $2.13 for 29.48 hours. Plaintiff alleges he should have been paid $15 per hour. However, the minimum wage in 2021 was $14 for any employer who employed 26 or more employees and $13 for any employer who employed 25 or fewer employees. There is no evidence of the number of employees Defendant employed, but it appears that the $14 per hour rate likely applies.

Missed meal periods: Plaintiff testifies that he worked in excess of 100 days without being permitted to take 30-minute meal periods. (Walker Decl., ¶11.) Labor Code, section 226.7 provides that if an employer fails to provide an employee a meal or rest or recovery period in accordance with a state law, the employer shall pay the employee one additional hour of pay at the employee’s regular rate of compensation for each workday that the meal or rest or recovery period is not provided. Here, Plaintiff’s hourly rate was $15 at the time he was not given his statutory breaks. (Walker Decl., ¶11.) Thus, the damages for missed meal periods is $1,500.

Missed rest breaks: Plaintiff testifies that he was not permitted to take rest breaks for 75 days during his employment. (Walker Decl., ¶12.) Under Labor Code, section 226.7, Plaintiff’s damages for these missed breaks total $1,125.

Waiting time penalties: Plaintiff testifies that Defendant failed to pay all wages and other compensation within 72 hours of his resignation. (Walker Decl., ¶13.) Labor Code, section 203 provides that if an employer willfully fails to pay wages within 72 hours after an employee quits, the employee shall continue at the same rate of pay until he is paid or an action commences, but not for more than 30 days. Here, Plaintiff testifies that his regular daily wage was $120 per day. The total penalty for 30 days of unpaid wages after Plaintiff’s termination is $3,600.

Failure to pay wages due: Plaintiff testifies that Defendant failed to pay him for 13 pay periods. (Walked Decl., ¶¶14-15.) Labor Code, section 558(a) provides that any employer or other person acting on behalf of an employer who violates, or causes to be violated, a section of this chapter or any provision regulating hours and days of work in any order of the Industrial Welfare Commission shall be subject to a civil penalty of $50 for each initial violation and $100 for each subsequent violation in addition to the underpaid wages. Here, Plaintiff alleges he was underpaid for 13 pay periods. The penalties total $1,250.

Failure to permit inspection of personnel and payroll records: Plaintiff testifies that Defendant failed to comply with Plaintiff’s written request for personnel and payroll records. (Walke Decl., ¶16.) Labor Code, section 1198.5 provides that an employer must produce an employee’s personnel and payroll records within 30 days of a written request. An employer who fails to timely produce the records must pay a penalty of $750. Here, Plaintiff is entitled to $750 for Defendant’s failure to produce the records.

Penalties for retaliation: Plaintiff testifies that he was terminated in retaliation for complaining about Defendant’s wage and hour violation. (Walker Decl., ¶20.) Labor Code, sections 98.6 and 1102.5 permit civil penalties of up to $10,000 for an employer who discharges an employee in retaliation for protected behavior or who prevents an employee from disclosing a violation of the law. However, Plaintiff seeks two civil penalties for the same wrong, his termination. The Court finds two penalties for the same wrong are not reasonable. Plaintiff will be awarded one $10,000 civil penalty.

After Plaintiff was terminated on April 17, 2022, Plaintiff was unable to find a job until the end of June 2022. (Walker Decl., ¶22.) Plaintiff seeks damages for the two months, May and June 2022, during which he was unemployed. Plaintiff testifies that he worked 40 hours a week at a rate of $15 per hour. (Id.) Over two months, Plaintiff’s lost wages totaled $4,800.

Plaintiff mitigated his damages between June 2022 and January 2023 by working at another restaurant for 10 hours a week for about $600 a month. (Walker Decl., ¶22.) Plaintiff’s wages throughout these seven months totaled $4,200. Had he continued being employed by Defendant, Plaintiff would have made $16,800. Thus, Plaintiff’s lost wages for this period total $12,600.

Between January and May 2023, Plaintiff worked a second job for a property management company and earned $2,684.80. (Walker Decl., ¶22.) Plaintiff’s wages for the restaurant at this time totaled $2,400. Plaintiff would have made $9,600 if he had continued working for Defendant. Thus, Plaintiff’s lost wages for this period was $4,515.20.

Between May and July 2023, Plaintiff no longer worked for the restaurant and earned $1,340.40. (Walker Decl., ¶22.) Plaintiff’ would have made $9,600 had he continued employment with Defendant during this period. Thus, Plaintiff’s lost wages for this period total $3,459.10.

Between December 2023 and the date of the application, Plaintiff worked for a tech company earning more than he had earned while employed by Defendant. (Walker Decl., ¶22.)

Emotional Distress: Plaintiff also seeks damages for emotional distress. Plaintiff testifies that he has suffered from anxiety and insomnia as a result of his termination. (Walker Decl., ¶21.) Because he could not find other employment, Plaintiff’s care was repossessed, and he was evicted from his apartment. (Id.) Plaintiff requests $75,000 in damages for emotional distress. Given that the request is just over double the amount of Plaintiff’s damages, penalties not included, the Court finds that the request is reasonable.

Plaintiff requests $7,257.92 in interest. However, Plaintiff failed to provide the interest rate and calculation of interest as required by Cal. Rules of Court, Rule 3.1800(a)(3). Additionally, prejudgment interest generally is not available for non-economic damages as they are not capable of being made certain. (Moreno v. Bassi (2021) 65 Cal.App.5th 244, 250 [awarding prejudgment interest for Labor Code violations in employment case].) Plaintiff must provide a calculation of interest based on the new damages amount and excluding general damages.

A plaintiff may not specify the amount of punitive damages claimed in the complaint but must instead preserve the right to seek punitive damages by serving the defendant with a statement that plaintiff is reserving the right and specifying the amount sought. (Code Civ. Proc., section 425.115(b).) The statement must be served on the defendant before entry of default. (Code Civ. Proc., section 425.115(f).)

To be entitled to punitive damages, the plaintiff must prove by clear and convincing evidence that the defendant is guilty of fraud, oppression, or malice. (Civ. Code, section 3294(a).) A court must consider the nature of the defendant’s misconduct, the amount of compensatory damages, and the defendant’s financial condition. (Adams v Murakami (1991) 54 C3d 105, 111–114.) The award must have a deterrent effect without being excessive. (Id.) Evidence of the net profit the defendant earned from its tortious conduct may be an appropriate basis for an award of punitive damages. (Cummings Medical Corp. v. Occupational Medical Corp. (1992) 10 Cal.App.4th 1291, 1300.)

Plaintiff’s counsel argues that Plaintiff served the requisite statement as required by Code Civ. Proc., section 425.115. However, Plaintiff did not file this statement with the Court. The statement must be filed with the Court along with proof of service.

Plaintiff argues that he has not had an opportunity to discover evidence of Defendant’s financial condition. Plaintiff argues that punitive damages are reasonable because Defendant’s savings as a result of its misconduct exceed $50,000. Given that Defendant failed to pay Plaintiff and that Plaintiff’s compensatory damages exceeded $50,000, the $5,000 requested in punitive damages appears to be reasonable.

Plaintiff seeks $7,500 in attorney’s fees. Attorney’s fees may be awarded, in the court’s discretion, to a prevailing plaintiff in actions for FEHA violations. (Gov. Code, section 12965.)

When a promissory note, contract, or statute provides for the recovery of reasonable attorneys’ fees, the following schedule will apply to the amount of the new judgement unless otherwise determined by the court. Default case:

An application for a fee greater than listed in the schedule because of extraordinary services must include an itemized statement of the services rendered or to be rendered. (Local Rule of Court, rule 3.214(d).)

Here, Plaintiff seeks $7,500 in attorney’s fees. The amount allowed under rule 3.214(a) is $3,171.99. Plaintiff’s counsel testifies that he spent 15 hours on this case conducting conferences with his client, drafting this application, attending court hearings, and preparing the Complaint. The amount requested appears reasonable under the circumstances.