Judge: Malcolm Mackey, Case: 20STCV42721, Date: 2023-01-27 Tentative Ruling

Case Number: 20STCV42721    Hearing Date: January 27, 2023    Dept: 55

CAMPOS v. ERIKA ROMAN                                20STCV42721

Hearing Date:  1/27/23,  Dept. 55

#4:   MOTION TO VACATE VOID JUDGMENT.

Notice:  Okay

Opposition

MP:  Defendant

RP:  Plaintiff

Summary

On 11/6/20, Plaintiff filed a Complaint alleging that, while she was employed by Defendant, she was not given her proper wages owed, was discriminated against based on her pregnancy and gender, and retaliated against, ultimately leading to her wrongful termination.

Default judgment was filed 12/14/22 for $39,686.36.

MP Positions

Moving party requests an order vacating default judgment, on bases including the following:

·         Plaintiff improperly requested more than the amount set forth in the complaint, making the Judgment void.  Rodriguez v. Cho (2015) 236 CA4th 742, 752-753.

·         Plaintiff cited distinguishable opinions.

·         Plaintiff’s evidence is unsigned and incompetent.

·         Alternatively, the Court should modify the judgment to the demand in the complaint, i.e. $750.

RP Positions

Opposing party advocates denying, or leave to amend the Complaint to allege damages sought, for reasons including the following:

·         Damages were properly specified in Plaintiff’s request to enter a default.

·         Defendant and her counsel continue their in their efforts to evade Plaintiff’s lawsuit, despite being on notice of the claims for over two years.        

·         Defendant does not explain the grounds for which their relief must be obtained.

·         Defendant was provided with the amounts of damages sought, prior to the entry of the default judgment, on several occasions. (See Declaration of Elias K. Fakhoury).

·         Defendant was in possession of the itemization of all amounts owed for months before the judgment was actually entered.

Tentative Ruling

The motion is granted.

Plaintiff may serve and file a First Amended Complaint within 10 days.

The Court vacates and sets aside Default Judgment filed 12/14/22.  See, e.g., Airs Aromatics, LLC v. CBL Data Recovery Technologies, Inc. (2018) 23 Cal. App. 5th 1013, 1024  (“ ‘even where it is possible to modify a default judgment to a lesser amount warranted by the complaint, the court has discretion to instead vacate the underlying default and allow the plaintiff to amend the complaint and serve the amended complaint on the defendant.’ ”); Ibid. at 1019  (“Several cases have held that a statement of damages does not satisfy section 580 if the case does not involve personal injury or wrongful death.”);  Kim v. Westmoore Partners, Inc.  (2011) 201 Cal.App.4th 267, 286  (“Code of Civil Procedure section 580 prohibits the entry of a default judgment in an amount in excess of that demanded in the complaint.”);  Stein v. York (2010) 181 Cal. App. 4th 320, 327 (informal notice of potential default judgment amount does not suffice);  Hearn v. Howard  (2009) 177 Cal.App.4th 1193, 1208-09 (defendants must be notified via the prayer or pleading body of sum of damages);  Reedy v. Bussell  (2007) 148 Cal. App.4th 1272, 1294 ("It is well settled that the court cannot enter a default judgment in an amount greater than demanded in a complaint.");  Julius Schifaugh Iv Consulting Serv. v. Avaris (2008) 164 Cal.App.4th 1393, 1396 (allegation of damages in the court's jurisdictional minimum gives notice of $25,000.00);  Matera v. McLeod  (2006) 145 Cal.App.4^th 44, 60;  Falahati v. Kondo (2005) 127 Cal. App. 4th 823, 831 (“it is not possible to calculate an amount of damages from the complaint's allegations….”);  Ely v. Gray (1990) 224 Cal.App.3d 1257, 1260; Heidary v. Yadollahi (2002) 99 Cal. App. 4th 857, 864-65;  Finney v. Gomez (2003) 111 Cal.App.4^th 527, 535-36;  Nat'l Diversified Servs. v. Bernstein (1985) 168 Cal. App. 3d 410, 418 (allegations of the body of the complaint may sufficiently notify defendants of a specific amount of default judgment).

The instant Complaint does not give notice of the amount of damages, and does not state the usual sentence that the amount sought is within the $25,000 jurisdiction of the court in order to make that amount awardable.

“[A] count for a statutory penalty for failure to pay wages does not state a cause of action unless it alleges facts from which the amount of the claimed penalty can be ascertained.”  Oppenheimer v. Moebius (1957) 151 Cal. App. 2d 818, 819-820.  “[T]he critical computation required by section 203 is the calculation of a daily wage rate, which can then be multiplied by the number of days of nonpayment, up to 30 days.”  Mamika v. Barca (1998) 68 Cal. App. 4th 487, 493.  In a wage-and-hour case, plaintiffs only have the burden to show sufficient evidence of the amount and extent of work performed in support of just and reasonable inferences of an approximate amount, and then the burden then shifts to employers to either evidence the precise amount of work performed, or to negate the reasonableness of the inferences.  Aguiar v. Cintas Corp. No. 2 (2006) 144 Cal.App.4th 121, 135,  disapproved on other grounds by  Noel v. Thrifty Payless, Inc. (2019) 7 Cal. 5th 955, 986 n. 15;  CACI 2703.  “California courts have shifted the burden of proof to employers when inadequate records prevent employees from proving their claims for unpaid overtime hours.”  Amaral v. Cintas Corporation No. 2 (2008) 163 Cal.App.4th 1157, 1189.

Amending the Complaint would have the effect of removing the effect of the default entry, and allow another opportunity to file a timely response to that pleading. See Julius Schifaugh Iv Consulting Serv. v. Avaris (2008) 164 Cal.App.4th 1393, 1398 (court had discretion to permit amended complaint to allege increased damages, which opened up the default).

Judges have discretion to allow complaints filed without obtaining permission, or without filing motions for leave to amend, under some circumstances.  See  Harlan v. Department of Transp. (2005) 132 Cal.App.4th 868, 873  ("While the court had discretion to require a noticed motion before permitting Harlan to file the second amended complaint late, we think it also had discretion under these circumstances to accept the filing without a noticed motion.").