TENTATIVE 

Plaintiff Paul Nevarez (“Plaintiff”) filed this employment action against defendants Herbal Solutions LLC, Jokes Up Ice Kream, LLC, UTR Management, LLC, Stephen Brown, Selma Delik, Austin Doe, and Does 1 through 20. Plaintiff has since dismissed defendants Selma Delik, Austin Doe, and Does 1 through 20. The complaint sets forth thirteen causes of action for 1. discrimination in violation of Gov't Code §§12940 et seq.; 2. harassment in violation of Gov't Code §§12940 et seq.; 3. retaliation in violation of Gov't Code §§12940 et seq.; 4. failure to prevent discrimination, harassment and retaliation in violation of gov't code §12940(k); 5. for declaratory judgment 6. wrongful termination in violation of public policy; 7. failure to pay wages (Cal. Labor Code §§201, 1194); 8. failure to provide meal and rest periods (Cal. Labor Code §§226. 7, 512); 9. failure to provide itemized wage and hour statements (Cal. Labor Code §§226, et seq.); 10. waiting time penalties (Cal. Labor Code §§201-203); 11. failure to permit inspection of personnel and payroll records (cal. labor code §1198.5); and 12. private attorney general act (Cal. Labor Code §2699, et seq.); 13. unfair competition (Bus. & Pof. Code §17200 et seq.). 

In terms of the allegations as to the remaining defendants to the action, the complaint alleges that Herbal Solutions LLC, Jokes Up Ice Kream, LLC, and UTR Management, LLC (collectively, “Employers”) were Plaintiff’s employers. Employers hired Plaintiff on July 1, 2019 as a bud tender. Plaintiff alleges discrimination based on his sexual orientation, gender, and sex because Employers’ owner, Stephen Brown, told Plaintiff in May 2022 that he did not fit the image of the company because of his sexual orientation. On August 28, 2022, Plaintiff was placed on a two-week suspension, and on September 7, 2022, Employers demoted Plaintiff to an inventory position with a pay reduction. After Plaintiff refused to accept the demotion, Employers terminated Plaintiff’s employment. Plaintiff also alleges he was not permitted to take statutory rest breaks, and did not receive uninterrupted statutory meal periods. 

The complaint includes a prayer for (1) general damages for mental and emotional distress and loss of earning capacity, (2) statutory penalties or damages pursuant to Labor Code §558 in the amount of no less than $2,550.00, (3) payment of meal and rest period compensation pursuant to Labor Code §226.7, 512 in the amount of no less than $10,788.36, (4) damages pursuant to Labor Code §226 in the amount of no less than $4,000.00, (5) waiting time penalties pursuant to Labor Code §§201-203 in the amount of no less than $7,200.00, (6) statutory penalties pursuant to Labor Code §2699(f) on Plaintiff’s own behalf, (7) statutory penalties pursuant to Labor Code §1198.5 in the amount of no less than $750.00, and (8) prejudgment interest. 

Plaintiff seeks default judgment against remaining defendants Herbal Solutions LLC, Jokes Up Ice Kream, LLC, UTR Management, LLC, and Stephen Brown (collectively, “Defendants”). Plaintiff obtained entry of default against Stephen Brown on March 14, 2024, against Herbal Solutions LLC and UTR Management, LLC on May 7, 2024, and against Jokes Up Ice Kream, LLC on May 9, 2024. 

On default judgment, Plaintiff seeks $40,000 for emotional distress, which is solely supported by the general statement that he has been unable to afford medical treatment for his emotional distress, and that he has become emotionally depressed and sad for the unfair treatment. (Nevarez Decl. ¶ 20.) Plaintiff provides little specificity regarding how he arrived at the dollar amount requested. Accordingly, the declaration fails to satisfy the particularity requirement of Code of Civil Procedure section 585(d): “[t]he facts stated in the affidavit or affidavits shall be within the personal knowledge of the affiant and shall be set forth with particularity” such that the Court is unable to grant the full amount requested. 

The request for $40,000 for emotional distress will be reduced to $20,000. 

As for the remainder, Plaintiff seeks $2,550.00 for Labor Code §558 penalties, $10,788.36 for failure to provide meal and rest periods, $4,000 for Labor Code §226 damages, $7,200.00 for Waiting Time Penalties under Labor Code §§201- 203, $750.00 under Labor Code §§226(f) and 1198.5 penalties, and $6,375.00 for Labor Code §2699(f) penalties (based on $25,500.00, with 75% recoverable by the Labor and Workforce Development Agency). Plaintiff has provided sufficient information and supporting evidence of his earnings for the Court to grant these amounts in the sum of $31,663.36 as requested. 

Plaintiff seeks prejudgment interest in the amount of $3,789.32, calculated by the combined damages of $71,663.36 at a 10 percent per annum rate. However, interest is only recoverable on damages that are certain. Plaintiff includes in his calculation the $40,000 sought for emotional distress, which is not a certain damage, and which was further unsupported as provided above. Thus, the request for interest in the amount of $3,789.32 is excessive.  

As a general matter, the California Constitution has established that the default interest rate is 7% for non-contract cases. (See Cal. Const. art XV, 1; CC §3287(c).) The interest rate for unpaid wages is 10% per annum (Labor Code §218.6; Civil Code §3289), whereas the prejudgment interest rate for failure to provide meal and rest breaks is 7% per annum (See Naranjo v. Spectrum Sec. Servs., Inc. (2002) 13 Cal. 5th 93, 102). 

Plaintiff seeks prejudgment interest from the date of the filing of this action on October 30, 2023 to the date of Plaintiff’s counsel’s declaration on May 13, 2024 for a total of 193 days. The Court will use the same timeframe, and adjust the calculation as follows. 

Based on the foregoing, Plaintiff is entitled to $1,622.97 in prejudgment interest. 

Plaintiff seeks attorney fees in the amount of $2,000.00 for work performed on this matter. Although Plaintiff’s counsel does not explicitly state why he is entitled to attorney fees, the Court presumes that the attorney’s fees sought is under PAGA Lab. Code § 2699 et seq., which allows any employee who prevails in any action to be entitled to an award of reasonable attorney’s fees. 

The Court finds the hourly rate of $400.00 reasonable for 5 hours of work to be reasonable. The request for attorney fees in the amount of $2,000.00 is therefore granted. 

Plaintiff seeks $809.93 in costs for clerk’s filing fees, process server’s fees, and the LWDA PAGA filing. The costs are allowable pursuant to CCP § 1033.5(a), and therefore granted. 

Accordingly, Plaintiff’s request for entry of default judgment is GRANTED in the reduced amount of $56,096.26 against Herbal Solutions LLC, Jokes Up Ice Kream, LLC, UTR Management, LLC, and Stephen Brown jointly and severally.