Judge: Mark H. Epstein, Case: SC1299939, Date: 2023-04-25 Tentative Ruling

Case Number: SC1299939    Hearing Date: April 25, 2023    Dept: R

The court will want to make sure service was fully proper.  If so, it will conduct a prove-up hearing.

Turning first to the economic damages, those damages will be equal to back pay and front pay as well as any other out-of-pocket expenses.  Plaintiff earned $10.50/hour plus tips while employed. 

Plaintiff, who was employed by defendant for something over two months (one of which he was on medical leave), will need to prove: (1) the amount of tips he received as a food runner and (2) the reasonable period of time that plaintiff was out of work and unable to find alternative employment after his termination.  The declaration is insufficient.  He claims that he could not find work for a five year period, but the court will need to hear evidence on that issue.  Plaintiff was only employed by this defendant for something over two months, one of which he was not working due to a work-related injury.  Plaintiff will also need to show that, in the current work economy, he still has reason to believe it will be a year before he can find work.  The court is also concerned because plaintiff claims that while he was working he worked 40 hours a week.  The pay stubs, however, show he actually worked less than 8 hours a week on average.  The court is very concerned that plaintiff’s declaration simply appears to be outright false in this regard.  The court is not suggesting deliberate perjury—after all, plaintiff attached the pay stubs to the declaration, so there was plainly no intent by plaintiff to deceive the court.  Rather, what it shows is a sloppiness that calls all of the calculations and statements into serious doubt.

Plaintiff also claims emotional injuries as a result of defendant’s discriminatory conduct.  For purposes of economic damages related to this, plaintiff would need to submit medical bills or the like for any therapy he underwent to treat the emotional distress.  The court is aware of no such bills, so the court believes plaintiff is not seeking economic damages in that regard.

Plaintiff also claims statutory damages because he was not given appropriate meal and rest breaks.  Because the case is in default, the court will presume that plaintiff was indeed not provided with those breaks.  Plaintiff will need to calculate the actual statutory damages.  His calculation is flawed.  He asserts he worked for 12 weeks, but there are not 12 weeks between August 2016 and October 2016 given that he was out for part of the time; he cannot recover statutory damages for the time he was on leave.  He is not entitled to a meal or rest break on days he was not working.

Plaintiff is also entitled to non-economic damages.  He asserts $167,952 in non-economic damages.  The court will need to hear testimony on this.  The facts as alleged are that he was treated badly when he was injured (which is not recoverable) but also that he was subjected to crude and offensive remarks on a regular basis due to his sexual orientation and ultimately terminated on that basis (which is recoverable).  That said, and while the court does believe that emotional distress damages are recoverable, the court is not convinced that they are recoverable in the sum set forth given the relatively small amount of time plaintiff worked, both on a calendar basis and also on a number of hours basis.

Plaintiff is entitled to prejudgment interest.  However, that is recoverable only for the economic damages; not for the non-economic damages.  And the court will need to determine economic damages before calculating prejudgment interest.

The court also notes a concern in that when the case was here before, this plaintiff sought seven figures for damages.  To be honest, neither plaintiff nor plaintiff’s counsel seems to have made any attempt to come up with a reasonable award, and that casts plaintiff’s and plaintiff’s counsel’s overall credibility into serious doubt.  The court is inclined to continue the matter to allow plaintiff to submit a more careful and reasonable default packet rather than actually hold a prove-up hearing today given what appear to be flaws that cannot be explained away by testimony (such as the number of hours worked).  The court would strongly recommend that this time plaintiff think carefully about the reasonableness of the request.