Judge: Peter A. Hernandez, Case: 21PSCV00410, Date: 2023-01-06 Tentative Ruling

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Case Number: 21PSCV00410    Hearing Date: January 6, 2023    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 January 6, 2023.

Discussion

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

1.                  Plaintiff seeks $13,936.50 in attorney’s fees; however, Paragraph 7 of the prayer in Plaintiff’s FAC seeks “attorneys’ fees under the California Labor Code and all related statutes, including Cal. Code of Civil Procedure § 1021 in the amounts of $11,276.50.” Code of Civil Procedure § 580, subdivision (a) provides that “[t]he relief granted to the plaintiff, if there is no answer, cannot exceed that demanded in the complaint. . .” (See also Greenup v. Rodman (1986) 42 Cal.3d 822, 824 [“in all default judgments the demand sets a ceiling on recovery”].)

2.                  Plaintiff seeks $28,395.00 in special damages (i.e., $17,000.00 in lost income plus

$9,000.00 in future loss of income plus $425.00 for rest breaks plus $950.00 in civil penalties plus $1,020.00 in waiting time penalties) and $950,000.00 in general damages. (See Plaintiff’s Decl., ¶¶ 17-24). These amounts total $978,395.00. Paragraph 1 of the prayer in Plaintiff’s FAC seeks “general, special and compensatory, actual and liquidated damages in the amounts of $973,895.00.” These amounts must be reconciled.

3.                  Plaintiff has failed to provide the court with any pay stubs supporting her assertion that, in the month prior to her termination, she was working approximately 50 hours on a biweekly basis at an hourly rate of $17.00 and earning approximately $1,700.00 per month.

4.                  Again, 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 does not appear to be anything in Plaintiff’s text communications with her manager, moreover, that suggest that Plaintiff was being discriminated against on the basis of her pregnancy. The court requests that a better-quality copy of the text message string be provided.

5.                  Plaintiff requests $950,000.00 in general damages, but provides scant support for same. Further, Plaintiff’s request for nearly $1 million in general damages “for pain and suffering and the emotional distress [she] endured and continue[s] to endure” (Plaintiff’s Decl., ¶ 17) appears contradicted by Plaintiff’s purported “concession” of her sixteenth and seventeenth causes of action “due to lack of evidence” (Gould Decl., ¶¶ 57 and 58.)

6.                  Plaintiff must provide authority for her $97,389.50 prejudgment interest request.

7.                  Plaintiff is requested to provide a itemization of the $1,733.87 sought for “clerk’s filing Fees,” as well as the $328.22 sought for unspecified “administrative costs.”