Judge: Peter A. Hernandez, Case: 21PSCV00410, Date: 2022-10-10 Tentative Ruling

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Case Number: 21PSCV00410    Hearing Date: October 10, 2022    Dept: O

Plaintiff Katie Salazar’s Application for Default Judgment is DENIED without prejudice.

Background   

Plaintiff Katie Salazar (“Plaintiff”) alleges as follows:

Plaintiff was employed by Sm.Kan, Inc, dba 101 Sushi Roll & Grill (“101 Sushi”) as a food runner from in or around March 2019 to on or about July 5, 2020. Throughout Plaintiff’s employment at 101 Sushi, Plaintiff was subjected to discriminatory and harassing behavior (and ultimately wrongfully terminated) by reason of her pregnancy and/or gender. 101 Sushi failed to provide Plaintiff with meal and rest breaks and with accurate and itemized wage statements. 101 Sushi also failed to pay Plaintiff her final wages.

On April 15, 2022, Plaintiff filed a First Amended Complaint, asserting causes of action against Defendants 101 Sushi, Roy Doe and Does 1-25 for:

1.                  Pregnancy Discrimination

2.                  Pregnancy Harassment

3.                  Failure to Accommodate Pregnancy

4.                  Failure to Engage in the Interactive Process of Accommodation of a Pregnancy

5.                  Gender-Based Discrimination

6.                  Failure to Prevent Discrimination and Harassment

7.                  Failure to Correct and Remedy Discrimination and Harassment

8.                  Retaliation for Engaging in a Protected Activity

9.                  Retaliation for Complaints of Discrimination and Harassment

10.              Failure to Pay Wages Due

11.              Failure to Provide Meal and Rest Breaks

12.              Failure to Provide Itemized and Accurate Wage Statements

13.              Waiting Time Penalties

14.              Violation of Labor Code § 1198.5

15.              Violation of Business & Professions Code § 17200 et seq.

16.              Wrongful Termination

17.              Intentional Infliction of Emotional Distress

18.              Negligent Infliction of Emotional Distress

On May 27, 2022, 101 Sushi’s default was entered.

An Order to Show Cause Re: Default Judgment is set for October 10, 2022.

Discussion

Plaintiff’s Application for Default Judgment is denied without prejudice. The following defects are noted:

1.                  Plaintiff claims that “[o]ther employees that requested off even for the same day were regularly allowed to take them off” and that “other workers asked to be placed on furlough due to COVID-19 and could keep their positions and not work.” (Plaintiff’s Decl., ¶ 8.) Plaintiff has not provided evidence supporting the above statements. There is nothing in Plaintiff’s communications with her manager, moreover, that suggest that Plaintiff was being discriminated against on the basis of her pregnancy.

2.                  Plaintiff seeks $23,895.00 in special damages (i.e., $17,000.00 in lost income and

$4,500.00 in future loss of income). Plaintiff’s declaration is devoid of information relative to her special damages. Attorney Cory Gould attests that Plaintiff was earning $17.00/hour and working 25 hours per week (i.e., 5 days/week, 5 hours/day), that Plaintiff was working approximately 50 weeks on a biweekly basis and earning approximately $850.00/paycheck and that she was earning approximately $1,700.00/month at the time of her termination. (Gould Decl., ¶ 21); however, it does not appear Gould would have personal knowledge of these statements, nor has any supporting documentation been provided. Gould also represents that Plaintiff planned on taking three months of maternity leave during the time since her termination, which again is something that belongs in Plaintiff’s declaration. Gould also makes representations relative to Plaintiff’s future loss of income, including Plaintiff’s procurement of new employment starting August 31, 2021 at $15.00/hour (Id., ¶ 22); again, this information, belongs in Plaintiff’s declaration and should be supported with documentary evidence.

3.                  Plaintiff’s declaration fails to authenticate Exhibits 3-10. It appears that Exhibits 4-10 should have been attached to counsel’s respective declarations instead, inasmuch as they pertain to the issue of attorney’s fees.

4.                  Plaintiff requests $950,000.00 in general damages, but provides scant support for same.

5.                  Paragraph 6 of the proposed default judgment is blank.

6.                  Plaintiff’s interest calculation is insufficient. Plaintiff fails to provide the court with the date of commencement.