Judge: Jon R. Takasugi, Case: 21STCV46733, Date: 2025-05-28 Tentative Ruling

Case Number: 21STCV46733    Hearing Date: May 28, 2025    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

Plaintiff’s motion for JNOV is DENIED IN PART, GRANTED IN PART. Plaintiff’s motion is DENIED as to the harassment claim, but GRANTED as to the wage calculations. 

            On 12/22/2021, Plaintiff Elsa Tovar (Plaintiff) filed suit against Panderia Y Restaurante El Salvador LLC, Ana Zavaleta de Flores, and Victor Flores (collectively, Defendants), alleging: (1) assault; (2) battery; (3) sexual battery; (4) discrimination; (5) harassment; (6) retaliation; (7) failure to prevent; (8) failure to provide reasonable accommodation; (9) failure to engage in interactive process; (10) declaratory judgment; (11) wrongful termination; (12) failure to pay wages; (13) failure to pay overtime; (14) failure to provide meal and rest breaks; (15) failure to provide itemized wage statement; (16) waiting time penalties; (17) unfair competition; and (18) failure to permit inspection of personnel and payroll records.

            On 4/4/2025, Plaintiff moved for a judgment notwithstanding the verdict (JNOV).

Discussion

            Plaintiff seeks a JNOV on the grounds that: (1) the jury incorrectly calculated damages related to the 14th cause of action based on their factual findings of the number of breaks Defendants did not provide and the undisputed applicable minimum wage; and (2) there is no competent evidence supporting the jury’s finding that no assault, battery, or harassment occurred.

CCP section 659 dictates the timeframe for filing a JNOV motion. This section states that the motion must be filed within the same timeframe as a Notice of Intention to Move for a New Trial. Specifically, this timeframe is:

-         15 days after the clerk mails the notice of entry of judgment; or

-         15 days after service of written notice of entry of judgment from any party; or

-         If no notice of entry is served, 180 days after entry of judgment.

While a judgment is the final determination of the rights of the parties in an action or proceeding (Code Civ. Proc., § 577.), its form can vary, but it must be a document that leaves no issue for future consideration except the fact of compliance or noncompliance with the terms. (Griset v. Fair Political Practices Com’n (2001) 25 Cal.4th 688, 698.) An order is a direction of a court or judge, made or entered in a writing and not included in a judgment. (Code Civ. Proc., § 1003.)

Here, on 2/6/2025, after the jury rendered its verdict, this Court filed its Minute Order in the Court Docket.

Defendant contends that this Minute Order was sufficient to trigger the filing of any post trial motion. However, as noted by Plaintiff, the Minute Order itself states that “Plaintiff[’s counsel] represents he will submit a proposed judgment forthwith. Non-Appearance Case Review re: Submittal of Proposed Judgment is scheduled for 2/27/25…” (Reply, 2: 15-19.) If the Minute Order itself was a judgment, the Court would have no reason to be asking Plaintiff to submit a proposed judgment. The Minute Order merely memorializes the jury’s verdict, which is not a judgment, and sets future dates for discussions of how the judgment will ultimately be entered.

Indeed, Defendants implicitly acknowledge that no judgment has been entered in this case, in that they filed their own proposed judgment on 4/30/2025. If a judgment had already been entered in the form of the Minute Order, Defendant would have had no reason to submit that filing, or to file an Objection to Plaintiff’s Proposed Judgment.

As such, the Court finds that Plaintiff’s motion is not barred, and the Court considers the merits of Plaintiff’s motion.

As to the contention that the finding of no harassment is unsupported by evidence, the Court disagrees. While the trial court can review and weigh the evidence, a trial court should not “substitute its own judgment for that of the jury” when “there is sufficient credible evidence to support the verdict, and that the jury was reasonable in believing the witnesses it apparently believed in.” (Kelly-Zurian v. Wohl Shoe Co. (1994) 22 Cal.App.4th 397, 414.)  Here, as noted even by Plaintiff, Defendant did present testimony from different individuals that they did not witness any harassment of Plaintiff.  The jury was reasonable in believing that testimony, and the Court may not properly substitute its own judgment for that of the jury.

However, as to the second contention regarding meal and rest break calculations, the Court agrees. As explained by Plaintiff:

The jury found 132 meal break violations and 132 rest break violations occurred during Plaintiff’s employment with PRES. [] Further, they were instructed, using CACI jury instructions 2762 and 2767 to multiply the number of violations by Plaintiff’s hourly wage rate. [] Not only did the jury calculate two different figures for each type of violation, despite finding the same number of violations ($874.50 and $437.25, respectively), but the jury also clearly did not follow the instruction to multiply violations by wage rate.

Plaintiff was entitled to the minimum wage at all times. At the time of the violations, the minimum wage was $13.25 per hour. [] However, 132 violations times $13.25 per hour equals $1,749.00. Plaintiff notes that this figure is twice $874.50 and four times $437.25. It is highly unlikely that the jury thought that Plaintiff was paid at $6.62 per hour (which, multiplied by 132, is $874.50), as no party argued this figure, no witness attested to it, and no document reflected it. Instead, it is likely that the jury thought that Plaintiff was only entitled to 30 minutes of penalty wages for a missed thirty-minute break, rather than a full hour as set forth by statute. See Labor Code § 226.7. Similarly, it is likely that the jury awarded $437.25 for rest breaks because they thought Plaintiff was only entitled to fifteen minutes of wages for a missed fifteen-minute break (as $437.25 is $1,749 divided by four)

            (Reply, 4: 4-13.)

            The Court finds Plaintiff’s argument and calculations to be persuasive. Notably, Defendant did not present any substantive argument to this (or any) contention in opposition. The Court takes this as a concession on the merits.

Based on the foregoing, Plaintiff’s JNOV is denied. Plaintiff’s motion is denied as to the harassment claim, but granted as to the wage calculations. 

It is so ordered.

Dated:  May    , 2025

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.  For more information, please contact the court clerk at (213) 633-0517.