Judge: Michael E. Whitaker, Case: 23SMCV05599, Date: 2025-05-19 Tentative Ruling

Case Number: 23SMCV05599    Hearing Date: May 19, 2025    Dept: 207

TENTATIVE RULING

Plaintiff Jessica Moran (“Plaintiff”) requests for default judgment against Defendants MDR Market 1 dba The Marigold Mercantile (“MDR”) and Anthony Miller (“Miller”) (together, “Defendants”) in the amount of $495,507.07, which is composed of general damages in the amount of $350,000; special damages/penalties in the amount of $101,352.80; prejudgment interest in the amount of $37,637.61; costs in the amount of $1,219.20; and attorneys’ fees in the amount of $5,297.06.

A.    Damages

            Plaintiff’s Complaint alleges fifteen causes of action for (1) failure to pay wages; (2) waiting time penalties; (3) failure to provide accurate itemized wage statements; (4) failure to produce employee file; (5) disability/perceived disability discrimination; (6) FMLA/CFRA discrimination; (7) work environment harassment; (8) retaliation (Gov. Code, § 12940, subd. (h)); (9) retaliation (Gov. Code, § 12945.2, subd. (k)); (10) failure to prevent harassment discrimination and retaliation; (11) retaliation (Labor Code, §§ 98.6, 1102.5, 6310); (12) failure to provide reasonable accommodation (Gov. Code, § 12940, subd. (m)); (13) failure to engage in good faith interactive process (Gov. Code, § 12940, subd. (n)); (14) unfair and unlawful business practices; and (15) wrongful termination (in violation of public policy). 

            MDR was personally served with a copy of the summons and complaint on December 4, 2023.  Miller was served by substitute service on July 25, 2024.  Default was entered against MDR on August 8, 2024 and against Miller on December 30, 2024.  The Doe defendants were dismissed on April 23, 2025.

            Plaintiff’s Complaint seeks $3,000,000 in damages.  Therefore, Plaintiff does not seek damages that are in excess of what is pled in the Complaint. (See Code Civ. Proc., § 580, subd. (a) [“The relief granted to the plaintiff, if there is no answer, cannot exceed that demanded in the complaint”]; Levine v. Smith (2006) 145 Cal.App.4th 1131, 1136-1137 [“when recovering damages in a default judgment, the plaintiff is limited to the damages specified in the complaint”].) 

            In support of the request, Plaintiff has provided the Declaration of Jessica Moran, which provides:

1. On or around September 11, 2020 MDR Market 1 dba The Marigold Mercantile (hereafter "Defendant" or "MDR") hired me as a Cafe Server. My daily duties consisted of receiving orders, helping with food preparation and serving customers, among other things. I Moran worked for MDR at its location at 4756 Admiralty Way A, Marina Del Rey, CA 90292. My most recent rate of compensation while employed by MDR was $16.50 hourly plus tips.

2. In November 2020, I requested a month off to go to Mexico. Anthony Miller ("Tony"), the CEO of MDR, started cutting me off when I was trying to speak and, ultimately, told me that I had to get someone to cover my shift. Otherwise, they would have to fire me. I was able to find someone else to cover my shift during my absence. After that incident, I noticed that Tony became short with me and that if I went to him to discuss anything, he would start cutting me off. Tony would, also, yell and scream at me. On such occasions, he would use the excuse that he was a former Marine stating, "I am sorry. My Marine came out."

3. On or around January 12, 2021, I returned to work. On January 18, 2021, while at work, I started to feel unwell. I told Joy that I was going to have to leave early because of my condition. I, further, stated that I was going to get tested for COVID-19.

4. On January 19, 2021, I texted Joy, who was a co-owner, and notified her that I was not going to come in because I was feeling sick. Joy stated that I would need to get a COVID-19 test in order to come back to work. I went to a clinic and, unfortunately, I tested positive. I sent Joy a screenshot of the test results.

5. Pursuant to the California Code of Regulations, Title 8, section 3205(c)(10)(A), I had to quarantine for at least 10 days. I stayed home from January 19 to January 29, 2021. Pursuant to Families First Coronavirus Response Act ("FFCRA"), employees are eligible for two weeks (up to 80 hours) of paid sick leave at the employee's regular rate of pay where the employee is unable to work because the employee is quarantined (pursuant to Federal, State, or local government order or advice of a health care provider), and/or experiencing COVID-19 symptoms and seeking a medical diagnosis. Yet, I did not get paid COVID-19 sick pay during those days.

6. On January 30, 2021, I returned to work. As soon as I walked in, Tony stated that they were going to let me go. Tony gave me three reasons for my termination: 1) Tony and I did not get along. He said to me that our interactions were "awkward" to him. 2) Tony told me that I let my coworkers down by not showing up to work while sick with COVID-19. Tony implied that I should have come to work in any case and the fact that I had contracted Covid was not an excuse for not coming in. 3) Tony said to me that I had asked him on two occasions whether I would get paid, implying that he got offended. When I asked him what he actually meant by that, Tony did not know what to say. The reasons for my termination were pretextual and/or false. I was terminated because of my disability/perceived disability and my need for accommodations.

7. As a result of said harassment, discrimination, retaliation and wrongful termination, I have been harmed. I seek economic and non-economic damages, in addition to interest, attorney's fees and costs.

8. As a consequence of Defendants’ conduct, I have suffered and will suffer psychological and emotional distress, humiliation, mental pain and physical pain and anguish.

9. MDR Market 1 is owned and controlled by Anthony Miller. Attached hereto please find as Exhibit 1 a true and correct copy of MDR Market 1's statement of information filed with the California Secretary of State.

(Moran Decl. ¶¶ 1-9.)

            Plaintiff’s Case Summary calculates the requested damages as follows:

Wage and Hour

            (i) Failure to Pay Sick Time Wages

            Plaintiff did not receive 48 hours of COVID-19 sick pay during the period she was m quarantine:

$16.00 x 48 hours = $768.00

            (ii) Waiting Time Penalties

            Plaintiff’s final paycheck did not include all wages owed to her. Plaintiff is entitled to the maximum amount of waiting time penalties:

$16.00 x 6 hours x 30 day= $2,880.00

            (iii) Failure to Provide Accurate Itemized Wage Statements

$4,000.00 penalty

Wage and Hour Total: $7,648.00

Wrongful Termination

            (i) Back Wages

            While working with Defendant Plaintiff’s hourly rate was $16.00 and worked 6 hours per day, 5 days per week. Plaintiff’s monthly income was as follows:

$16.00 x 6 hours x 5 days per week = $480.00 weekly rate

4 weeks x $480.00 = $1,920.00 wage monthly rate

Plaintiff also earned approximately $400.00 in tips per month

$1,920.00 +$400.00 = $2,320.00 Total Monthly Rate

            After her wrongful termination from Defendant, Plaintiff remained unemployed for approximately 15 months. Plaintiff would have earned the following income if she had not been wrongfully terminated:

15 months x $2,320.00 = $34,800.00

            From early May 2022 to September 30, 2023 Plaintiff had a new job where she earned the following income on a monthly basis:

$16.00 per hour x 12 hours per week = $192.00 weekly rate;

4 weeks x $192.00 = $768.00 monthly rate.

            In early January 2023 Plaintiff found an additional job where she worked for three weeks. Plaintiff earned the following income while having her second job:

$12.00 per hour x 6 hours per week = $72.00 weekly rate,

3 weeks x $72.00 = $216.00.

            Because Plaintiff’s monthly rate at her new job was less than she earned while working with Defendant, she will be entitled to the following difference in lost income:

$2,320.00 - $768.00 = $1,552.00

17 months x $1,552.00 = $26,384.00

$26,384.00 - $216.00 = $26,168.00

            On October 30, 2023 Plaintiff found another job. From October 30, 2023 to the end of June of 2024 Plaintiff’s hourly rate was $16.28. Plaintiff has been working there for 15 hours per week.

15 hours x $16.28 = $244.20 weekly rate,

4 weeks x $244.20 = $976.80

            Because Plaintiff’s monthly rate at her new job was less than she earned while working with Defendant, she will be entitled to the following difference in lost income:

$2,320.00 - $976.80 = $1,343.20,

8 months x $1,343.20 = $10,745.60

            From the beginning of July 2024 to date Plaintiff’s monthly income has been as follows:

15 hours x $17.28 hourly rate = $259.20 weekly rate,

4 weeks x $259.20 = $1,036.80 monthly rate

$2,320.00 - $1,036.80 = $1,283.20,

9 months x $1,283.20 = $11,548.80

[($480.00 + $100.00) - $259.20] x 2 weeks = $320.80

$11,548.80 + $320.80 = $11,869.60

            From May 8 to September 8, 2024, Plaintiff had another job where she earned $21.00 per hour and worked 24 hours per week. Plaintiff’s overall income from that job was as follows:

24 hours x $21.00 = $504.00 weekly rate,

4 weeks x $504.00 = $2,016.00 monthly rate;

3 months x $2,016.00 = $6,048.00

$11,869.60 - $6,048.00 = $5,821.60

Back Wages Subtotal: $79,855.20

            (ii) Future Lost Wages

            Plaintiff expects to remain at the same job for the next three months at the very least. Plaintiff’s anticipated lost income will be as follows:

3 months x $1,283.20 = $3,849.60

Wrongful Termination Total: $83,704.80

Whistleblower Retaliation

            The consequences for violating Labor Code section 1102.5 can be significant. Specifically, employers that violate this section may be ordered to reinstate whistleblowers with backpay and benefits (Labor Code section 98.6, subdivision (b)), pay the employee’s actual damages (Labor Code section 1105), and/or pay a civil penalty of $10,000.00 for each violation (Labor Code sections 1102.5, subdivision (f), 98.6, subdivision (b)(3)) in addition to attorneys’ fees and costs.

Penalty: $10,000.00, plus attorneys’ fees.

Non-Economic Damages

            Plaintiff suffered from depression, anxiety, humiliation, embarrassment, mental and emotional distress and extreme stress after being wrongfully terminated.  Plaintiff requests $350,000.00 in emotional distress damages.

            Plaintiff has not, however, adequately supported all the facts indicated in the case summary.  Specifically, there is no declaratory evidence regarding Plaintiff’s subsequent employment or supporting Plaintiff’s request for emotional distress.

B.    Prejudgment Interest

            The legal rate of interest on an action on a contract is at least 10 percent per annum.  (Civil Code, § 3289.)  Here, Plaintiff’s declaration demonstrates the parties had an employment agreement.  The interest computation for the $37,637.61 requested is stated as follows:  

·       $87,503.20 economic damages (excluding the $3,849.60 requested for future lost wages) x 10% ÷ 365 days/year = $23.973 daily interest

·       $23.973 x 1,570 days from 1/30/21 to 5/18/25 = $37,637.61

            Therefore, assuming Plaintiff can substantiate the requested damages, Plaintiff is also entitled to the requested interest. 

C.    Attorneys’ Fees and Costs

Code of Civil Procedure section 1033.5, which outlines recoverable costs to a prevailing party under Code of Civil Procedure section 1032, permits the recovery of attorneys’ fees when authorized by contract, statute, or law.  (Code Civ. Proc., § 1033.5, subd. (a)(10).)  Code of Civil Procedure section 1021 provides “[e]xcept as attorney’s fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties [….]”  Similarly, Civil Code section 1717 provides “[i]n any action on a contract, where the contract specifically provides that attorney’s fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney’s fees in addition to other costs.”  (Civ. Code, § 1717, subd. (a).)

The Code of Civil Procedure defines the “prevailing party” as follows:

[T]he party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant. If any party recovers other than monetary relief and in situations other than as specified, the “prevailing party” shall be as determined by the court, and under those circumstances, the court, in its discretion, may allow costs or not and, if allowed, may apportion costs between the parties on the same or adverse sides pursuant to rules adopted under Section 1034.

(Code Civ. Proc., § 1032, subd. (a)(4).)

Labor Code section 218.5 provides a statutory basis for the recovery of attorneys’ fees to a prevailing employee in an action brought for the nonpayment of wages. 

            Plaintiff seeks attorneys’ fees on the requested $101,352.80, pursuant to the schedule in Local Rule 3.214.  That Rule provides that the de facto reasonable attorneys’ fees on a default case is $2,890 plus 1% of the excess over $100,000 (here, $13.53.)  Therefore, reasonable attorneys’ fees, pursuant to Local Rule 3.214 would be $2,903.53, not the requested $5,297.06.  Plaintiff appears to have done the calculations based on a contested case, not a default case.

            Plaintiff also seeks $1,219.20 in costs, composed of $169.15 in jury fees, $55.45 for service of process, $819.60 in electronic filing/service fees, and $175 in “other.”  However, Plaintiff has not specified what the “other” costs consist of.  As such, the Court cannot determine whether the “other” costs are allowable under the Code.

CONCLUSION

            Plaintiff’s request for default judgment is denied without prejudice.  Plaintiff shall file an amended default judgment packaged in conformance with the Court’s ruling on or before June 25, 2025.

            As such, the Court continues the Order to Show Cause Re Entry of Default and/or Default Judgment to July 23, 2025 at 8:30 A.M. in Department 207.  Further, on the Court’s own motion, the Court vacates the Case Management Conference as moot. 

            Unless Plaintiff waives notice, the Clerk of the Court shall provide notice of the Court’s ruling.     

DATED:  May 19, 2025                              ________________________________

                                                                        Michael E. Whitaker

                                                                        Judge of the Superior Court