Judge: Michael Shultz, Case: 21CMCV00244, Date: 2022-07-26 Tentative Ruling

Case Number: 21CMCV00244    Hearing Date: July 26, 2022    Dept: A

21CMCV00244 Wendy Carolina Flores v. Mariscos Los Koritas, Inc.

Tuesday, July 26, 2022, 8:30 a.m.





The complaint alleges that Defendant hired Plaintiff as a cook beginning in March of 2017 for $12.00 per hour. On September 26, 2020, Plaintiff suffered injury while in the course and scope of employment and became physically disabled. Defendant allegedly failed to provide information pertaining to workers’ compensation claims, failed to engage in the interactive process, and failed to offer an accommodation. Instead, Plaintiff alleges that Defendant terminated her without reason and gave Plaintiff her final wages. Plaintiff alleges nine causes of action for wage and hour violations of the Labor Code, and employment discrimination related claims. Plaintiff asserts damages of no less than $300,000 and punitive damages.

Plaintiff’s request for court judgment filed on June 8, 2022, requests a judgment of $300,000 plus interests and costs. 



A defendant in default is said to ‘confess” the material facts alleged by the plaintiff.” Kim v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267, 281. The defendant’s failure to answer has the same effect as an express admission of the matters well pleaded in the complaint, but not contentions, deductions or conclusions of fact or law. Id.  The causes of action allege violations of the. Therefore, a plaintiff has the burden of particularity in pleading and "the rule that statutory causes of action must be specifically pleaded applies, and every element of the statutory basis for liability must be alleged." Zipperer v. County of Santa Clara (2005) 133 Cal.App.4th 1013, 1020.

The first through fifth causes of action allege violations of the Fair Employment and Housing Act (“FEHA”) for disability discrimination, failure to prevent discrimination, failure to accommodate, failure to engage in the interactive process, retaliation, and hostile work environment. The sixth cause of action alleges a tort claim for wrongful termination.

The FEHA claims and tort claim for wrongful termination is based on the allegation that Defendant discriminated against Plaintiff because of a disability. Plaintiff became disabled after slipping in a puddle of water severely injuring her lower back and leg. Complaint, ¶ 14. Plaintiff also alleges that she has diabetes. ¶ 23.  

An employee is barred from discriminating or retaliating against an employee because of a physical disability. Gov Code § 12940. To state a prima facie case for discrimination that raises the presumption of discrimination, Plaintiff must show that she 1) suffered from a disability or was regarded as suffering from a disability, (2) could perform the essential duties of a job with or without reasonable accommodations, and (3) was subjected to an adverse employment action because of the disability or perceived disability.” Zamora v. Security Industry Specialists, Inc. (2021) 71 Cal.App.5th 1, 31–38.

The allegation that Defendant’s discriminatory animus motivated the alleged unlawful conduct against Plaintiff are all based on information and belief. Complaint, ¶¶ 33, 48, 63, 71, 77, 89. A pleading made on information and belief is insufficient if it “merely assert[s] the facts so alleged without alleging such information that ‘lead[s] [the plaintiff] to believe that the allegations are true.’” Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149, 1158–1159. Plaintiff did not allege the information that led Plaintiff to believe that Defendant was motivated by discriminatory animus. Plaintiff concedes that she does not have such information because Plaintiff declares on information and belief that she suffered from discriminatory conduct. Declaration of Flores, ¶ 13.

In the context of a request for court judgment by default, damages may only be awarded for a well-pled cause of action, and to that end, the complaint must be examined. Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 899-900. As the employment-related claims based on disability discrimination are not well pled, the court declines to award damages for the first through sixth causes of action, which include front and back pay, and compensatory damages.

The seventh cause of action for violation of Labor Code § 1198.5 alleges that Defendant failed to provide Plaintiff with her personnel records upon request by her counsel. Complaint, ¶ 97. The penalty for violation of that section is $750.00. Labor Code § 1198.5(k).

The eighth cause of action for violation of Labor Code § 226.7 alleges that Defendant failed to provide Plaintiff with meal and rest breaks “consistently.’ If the employer fails to comply with this requirement, "the employer shall pay the employee one additional hour of pay at the employee's regular rate of compensation for each workday that the meal or rest or recovery period is not provided." Lab. Code, § 226.7. Plaintiff declares that she was deprived of meal breaks at least four times per week.

Plaintiff’s evidence consists solely of her declaration as she declares she was not given a W-2 or pay stubs. Flores declaration ¶ 11. While tax related documents are not required, any document that substantiates Plaintiff’s hourly pay and the length of time she worked is recommended. Additionally, Plaintiff’s calculation of damages for this claim is not adequately explained. While that statute provides for an additional hour of pay for each missed meal and rest break, Plaintiff does not explain how she calculated 416 missed meal and rest breaks.

While Plaintiff also declares that she was denied overtime pay, Plaintiff did not allege such a claim. The court declines to award damages for overtime pay and penalties. 

The ninth cause of action for violation of Business and Professions Code § 17200 seeks recovery of lost wages and benefits. Plaintiff is not entitled to damages under that section.  The only remedies are restitution and injunction. Bus. & Prof. Code § 17200; Bank of the West v. Superior Court (1992) 2 Cal.4th 1254, 1266. Plaintiff does not provide any information regarding her entitlement to restitution.

Plaintiff is not entitled to an award of punitive damages. Plaintiff is required to serve Defendant with a Statement of Punitive Damages before default judgment can be taken. Code Civ. Proc., § 425.115(f). The proof of service of process reflects that only the summons and complaint were served. See Proof of Service filed 10/27/21. Therefore, the court declines to include an award for punitive damages.



            Accordingly, the court is inclined to award the remedies to which Plaintiff is entitled for Defendant’s violation of the Labor Code (seventh and eight causes of action). The court continues the hearing on the order to show cause for Plaintiff to provide a supplemental declaration clarifying Plaintiff’s calculation of penalties for the eighth cause of action including any documentary evidence to substantiate Plaintiff’s claim for damages.

            There hearing is continued to __________________________________ at 8:30 a.m. in Department A of the Compton courthouse. Plaintiff is ordered to file the supplemental declaration no less than 10 court days before the continued hearing date.