Judge: Michael Shultz, Case: 21CMCV00244, Date: 2022-07-26 Tentative Ruling
Case Number: 21CMCV00244 Hearing Date: July 26, 2022 Dept: A
21CMCV00244
Tuesday,
July 26, 2022, 8:30 a.m.
[TENTATIVE] ORDER
I.
BACKGROUND
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.
II.
DISCUSSION
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.
IV. CONCLUSION
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.