Judge: Joseph Lipner, Case: 24STCV18099, Date: 2025-06-04 Tentative Ruling

Case Number: 24STCV18099    Hearing Date: June 4, 2025    Dept: 72

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES

DEPARTMENT 72

TENTATIVE RULING

Plaintiff Daehyun Ham (“Plaintiff”) seeks default judgment against Defendants King’s Galbi dba Galbi King (“King”); James Song (“Song”); and Yoo Pine Tree Corporation (“Yoo”) (collectively, “Defendants”).

Plaintiff requests:

(1) money judgment in the total amount of $440,130.88, consisting of:

(a) damages in the amount of $257,966.27;

(b) prejudgment interest in the amount of $13,653.72;

(c) costs in the amount of $1,260.89;

(d) attorney’s fees in the amount of $17,250.00; and

(e) punitive damages in the amount of $150,000.00.

The Court CONTINUES Plaintiff’s request for default judgment.

Plaintiff must provide evidence of Song’s nonmilitary status or comply with the Servicemembers Civil Relief Act.

Plaintiff’s CIV-100 and proposed judgment are unclear in the amounts requested, as they do not add up properly. The Court requests that Plaintiff remedy this defect.

Plaintiff must correct the problems with the damages prove-up discussed below.

Plaintiff must correct interest and attorney fee calculations as necessary in light of any changes to the damages amounts.

The Court

Background

This is an employment case.

King is an all-you-can-eat Korean barbecue restaurant. Song was the owner of King during Plaintiff’s employment. Yoo subsequently took over ownership of King and did not re-hire Plaintiff while Plaintiff was on a leave of absence that Song had characterized to other employees as a termination.

Plaintiff was employed by King from November 25, 2011 to May 1, 2024.

            During Plaintiff’s employment, King and Song frequently required Plaintiff to come in 20 minutes before his shifts started and put Plaintiff to work immediately when Plaintiff arrived early, without additional compensation. Plaintiff was also given tasks to complete after clocking out.

            King and Song also denied Plaintiff overtime pay. Song told Plaintiff that King’s overtime policy only kicked in if Plaintiff worked over 8 hours a day and over 40 hours a week.

            Plaintiff had a daily 2-hour break from 3:00 p.m. to 5:00 p.m., but was regularly required to work through the break to perform additional tasks.

            Plaintiff’s meal breaks only lasted 5 to 15 minutes due to the volume of work at the restaurant. Plaintiff was not provided a second meal break for shifts over 10 hours. Similarly, due to the volume of work, Plaintiff could not take a 10-minute rest period for every 4 hours worked.

            Plaintiff’s paychecks were often provided late and typically lacked paystubs showing hours or pay for overtime or missed breaks.

            Plaintiff and other employees were required to reimburse King for shortfalls in the cash register resulting from miscalculations and dine-and-dash incidents. King also kept portions of Plaintiff’s tips to offset register discrepancies.

            Plaintiff was required to drive Plaintiff’s own car for work without compensation for mileage. Plaintiff was required to buy a gas lighter for the restaurant stove. Plaintiff was required to use Plaintiff’s own cell phone for work purposes because use of the restaurant phone was prohibited in order to keep the line open for customers.

            On September 6, 2023, Plaintiff slipped and fell in the kitchen at work, injuring his lower back and requiring hospital treatment. Plaintiff was diagnosed me with acute

lower back strain and cervical spine issues and was restricted to lift no more than 10 pounds by doctors.

            When Plaintiff returned to work, King and Song refused to file a workers’ compensation claim for Plaintiff. Plaintiff asked to be relieved from heavy-duty work. Song denied the request. On January 24, 2024, Harry Joo (“Joo”), the manager, told Plaintiff “[i]f you’re in a lot of pain, just quit”. (Ham Decl. ¶ 23.) The refusal to accommodate Plaintiff’s injury exacerbated Plaintiff’s pain.

In February 2024, Plaintiff requested a leave of absence due to ongoing pain from the injury. Song said Plaintiff could not take leave unless Plaintiff found a replacement. Plaintiff found a coworker to take Plaintiff’s place during the leave.

While Plaintiff was on leave, Joo told other employees that Plaintiff had been terminated.

Yoo subsequently took over the business. Yoo rehired the other employees, but not Plaintiff.

Plaintiff filed this action on July 23, 2024, raising claims for (1) failure to pay minimum wages; (2) failure to pay overtime wages; (3) failure to provide split shift premium pay; (4) failure to reimburse business expenses; (5) failure to provide meal periods; (7) failure to furnish timely and accurate itemized wage statements; (8) conversion; (9) unfair competition; (10) disability discrimination; (11) failure to accommodate; and (12) failure to engage in the interactive process.

Default was entered against Defendants on October 18, 2024.

Legal Standard

Code of Civil Procedure, section 585 permits entry of a judgment after a Defendant has failed to timely answer after being properly served. A party seeking judgment on the default by the Court must file a Form CIV-100 Request for Court Judgment, and:

(1) Proof of service of the complaint and summons;

(2) A dismissal of all parties against whom judgment is not sought (including Doe defendants) or an application for separate judgment under CCP § 579, supported by a showing of grounds for each judgment (CRC 3.1800(a)(7));

(3) A declaration of non-military status as to the defendant (typically included in Form CIV-100) (CRC 3.1800(a)(5));

(4) A brief summary of the case (CRC 3.1800(a)(1));

(5) Admissible evidence supporting a prima facie case for the damages or other relief requested (Johnson v. Stanhiser (1999) 72 Cal.App.4th 357, 361-362);

(6) Interest computations as necessary (CRC 3.1800(a)(3));

(7) A memorandum of costs and disbursements (typically included in Form CIV-100 (CRC 3.1800(a)(4));

(8) A request for attorney’s fees if allowed by statute or by the agreement of the parties (CRC 3.1800(a)(9)), accompanied by a declaration stating that the fees were calculated in accordance with the fee schedule as per Local Rule 3.214.  Where a request for attorney fees is based on a contractual provision the specific provision must be cited; (Local Rule 3.207); and

(9) A proposed form of judgment (CRC 3.1800(a)(6));

(10) Where an application for default judgment is based upon a written obligation to pay money, the original written agreement should be submitted for cancellation (CRC 3.1806). A trial court may exercise its discretion to accept a copy where the original document was lost or destroyed by ordering the clerk to cancel the copy instead (Kahn v. Lasorda's Dugout, Inc. (2003) 109 Cal.App.4th 1118, 1124);

(11) Where the plaintiff seeks damages for personal injury or wrongful death, they must serve a statement of damages on the defendant in the same manner as a summons (Code Civ. Proc. § 425.11, subd. (c), (d)).

(California Rules of Court, rule 3.1800.)

Pursuant to Code Civ. Proc., § 1033.5(a)(1), items are allowable as costs under Section 1032 if they are “filing, motion, and jury fees.”

A party who defaults only admits facts that are well-pleaded in the complaint or cross-complaint. (Molen v. Friedman (1998) 64 Cal.App.4th 1149, 1153-1154.) Thus, the complaint must state a claim for the requested relief.

Discussion

Service of the Complaint and Summons

            According to the proof of service filed on August 5, 2024, King was served on August 3, 2024 at 11267 National Boulevard, Los Angeles, California 90064-3921 via substituted service on Chang Tack Park, an employee.

            According to the proof of service filed on August 13, 2024, Song was served on August 10, 2024 at 11267 National Boulevard, Los Angeles, California 90064-3921 via substituted service on Chang Tack Park, an employee.

            According to the proof of service filed on August 16, 2024, Yoo’s agent for service, Jun Chang, was served on August 15, 2024 at 11267 National Boulevard, Los Angeles, California 90064-3921 via substituted service on Chang Tack Park, an employee.

Dismissal of Other Parties

The Doe defendants were dismissed from the action on April 25, 2025, pursuant to Plaintiff’s request.

Form CIV-100

Plaintiff has filed a form CIV-100 seeking default judgment.

Plaintiff’s CIV-100 and proposed judgment are unclear in the amounts requested, as they do not add up properly. The Court requests that Plaintiff remedy this defect.

Non-Military Status

Sea H. Oh avers to the nonmilitary status of King and Yoo on the basis that they are business entities.

Oh declares that “[b]y virtue of his default, it is impossible to ascertain individual defendant, James Song’s military / non-military status.” (4/24/2024 Form CIV-100 at p. 3.) This is insufficient to establish nonmilitary status. As noted in the Form CIV-100, military status can be checked in the military database online. If Plaintiff cannot establish that Song is not in military service, Plaintiff must comply with the requirements of the Servicemembers Civil Relief Act. However, the amounts withheld are recoverable under Plaintiff’s other wage and hour claims.

Summary of the Case

Plaintiff provides a brief summary of the case in the Declaration of Daehyun Ham.

Plaintiff’s conversion claim is not adequate as pleaded. Plaintiff alleges that Defendants wrongfully made deductions in an amount to be proven at trial. “Money cannot be the subject of a cause of action for conversion unless there is a specific, identifiable sum involved, such as where an agent accepts a sum of money to be paid to another and fails to make the payment.” (PCO, Inc. v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP (2007) 150 Cal.App.4th 384, 395.) “A ‘generalized claim for money [is] not actionable as conversion.’ ” (Ibid.)

Evidence of Damages

“Code of Civil Procedure section 580 prohibits the entry of a default judgment in an amount in excess of that demanded in the complaint.”  (Kim v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267, 286.) Moreover, “a statement of damages cannot be relied upon to establish a plaintiff's monetary damages, except in cases of personal injury or wrongful death.” (Ibid.) “In all other cases, when recovering damages in a default judgment, the plaintiff is limited to the damages specified in the complaint.” (Ibid.) Moreover, a plaintiff must submit admissible evidence supporting a prima facie case for the damages or other relief requested (Johnson v. Stanhiser (1999) 72 Cal.App.4th 357, 361-362.)

Compensatory Damages

Plaintiff requests a total of $257,966.27 in compensatory damages.

            Plaintiff has not adequately shown the amount of damages.

            First, and most broadly, all of the amounts of damage are averred to by Plaintiff’s attorney – who lacks foundation – and not Plaintiff. There thus is not direct evidence of the amount of damages in this case.

            Second, Plaintiff seeks $300.00 per month in cell phone bills. It is not clear that these marginal expenses are attributable to Defendant’s requirement that Plaintiff use Plaintiff’s own cell phone for business purposes. If Plaintiff was already paying for Plaintiff’s cell phone bills and would have paid the same bill either way, then these amounts do not represent actual damages.

            Third, Plaintiff’s attorney estimates that King and Song required Plaintiff to pay an average of $45.00 per week for register shortages without explaining the basis for this estimate or why it is appropriate.

            Fourth, Plaintiff does not state the amount of emotional distress damages sought or provide an evidentiary basis for them. Confusingly, Plaintiff’s attorney declares that Defendants’ default contributes to Plaintiff’s emotional distress damages. (Oh Decl. ¶ 15.) But this is litigation conduct that cannot generally give rise to damages.

            Plaintiff must remedy these problems in compensatory damages.

Punitive Damages

Punitive damages are appropriate when a defendant acted with malice, oppression, or fraud. (Civ. Code, § 3294, subd. (a).) “Malice” is defined as conduct intended to cause injury to a person or despicable conduct carried on with a willful and conscious disregard for the rights or safety of others. (Turman v. Turning Point of Cent. Cal., Inc. (2010) 191 Cal.App.4th 53, 63.) “Oppression” means despicable conduct subjecting a person to cruel and unjust hardship, in conscious disregard of the person’s rights. (Ibid.) “Fraud” is an intentional misrepresentation, deceit, or concealment of a material fact known by defendant, with intent to deprive a person of property, rights or otherwise cause injury. (Ibid.)

“An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.” (Civ. Code, § 3294, subd. (b).)

Plaintiff requests $150,000.00 in punitive damages.

Here, Plaintiff has shown some degree of oppression with regard to Song and King’s conduct after Plaintiff was injured – namely, requiring Plaintiff to continue lifting heavy loads and telling Plaintiff to quit if Plaintiff was in pain.

However, there are not facts showing that the wage and hour violations were conducted with malice, oppression, or fraud.

The Court is prepared to award $50,000.00 in punitive damages based on the existing evidence. If Plaintiff wishes to seek additional punitive damages, the Court requires further evidence.

Prejudgment Interest

“(a) A person who is entitled to recover damages certain, or capable of being made certain by calculation, and the right to recover which is vested in the person upon a particular day, is entitled also to recover interest thereon from that day, except when the debtor is prevented by law, or by the act of the creditor from paying the debt. This section is applicable to recovery of damages and interest from any debtor, including the state or any county, city, city and county, municipal corporation, public district, public agency, or any political subdivision of the state.

(b) Every person who is entitled under any judgment to receive damages based upon a cause of action in contract where the claim was unliquidated, may also recover interest thereon from a date prior to the entry of judgment as the court may, in its discretion, fix, but in no event earlier than the date the action was filed.”

(Civ. Code, § 3287.)

The interest rate for tort claims is 7 percent per annum. (Cal. Const., Art. 15, § 1.)

Plaintiff seeks interest for the $257,966.27 in compensatory and emotional distress damages. Plaintiff provides interest calculations supporting an amount of $13,653.72 based on these underlying figures. (Oh Decl. ¶ 25.)

Plaintiff’s interest may need to be recalculated if damages require revision.

Memorandum of Costs and Disbursements

Plaintiff includes a memorandum of costs in the submitted Form CIV-100. Sea H. Oh avers that Plaintiff expended $1,250.89 in costs.

Attorney’s Fees

            Plaintiff requests $17,250.00 in attorney’s fees based on a lodestar calculation. In the alternative, Plaintiff requests $6,291.31 under the schedule for attorney’s fees on default judgment provided in Local Rule 3.214. (Oh Decl. ¶ 28.) Plaintiff requests that the Court grant the greater amount on the basis that Local Rule 3.214 does not adequately compensate for the number of hours spent on this case.

            The Court does not find that there is an adequate reason in this case to deviate from the schedule provided in Local Rule 3.214. However, this request may require revision unless Plaintiff can support all of the requested compensatory or punitive damages.

Proposed Form of Judgment

            Plaintiff has submitted a proposed form of judgment.

Statement of Damages

Plaintiff has filed a statement of damages seeking punitive damages.