Judge: Peter A. Hernandez, Case: 22PSCV00175, Date: 2023-08-22 Tentative Ruling

Case Number: 22PSCV00175    Hearing Date: August 22, 2023    Dept: K

Plaintiff Alina Kwon’s Application for Default Judgment is DENIED without prejudice.

Background   

Plaintiff Alina Kwon (“Plaintiff”) alleges as follows:

Plaintiff was an employee of Yes Dental Implant Center (“Defendant”). Plaintiff complained about unpaid wages; Defendant eventually paid Plaintiff, but simultaneously terminated her.

On February 22, 2022, Plaintiff filed a complaint, asserting causes of action against Defendant and Does 1-20 for:

1.                  Failure to Provide Employment Records Upon Request

2.                  Retaliation

3.                  Wrongful Termination

4.                  Violation of Bus. & Prof. Code § 17200, et seq.

On April 21, 2022, Defendant’s default was entered. On July 6, 2021, Plaintiff dismissed Does 1-20, without prejudice.

An Order to Show Cause Re: Default Judgment is set for May 19, 2023.

Discussion

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

1.                  Plaintiff’s second cause of action, for Retaliation, is based on Government Code § 12940, et seq. (i.e., Fair Employment and Housing Act [“FEHA”]). The FEHA applies to employers with five or more employees. (Gov’t. Code § 12926, subd. (d)). Plaintiff has not alleged that Defendant is an “employer” under FEHA. “If the complaint does not state a cause of action or the allegations do not support a claim for relief, a default judgment is erroneous and ‘cannot stand.’” (Grappo v. McMills (2017) 11 Cal.App.5th 996, 1015.) Plaintiff appears to seek $10,000.00 as a penalty for Defendant’s retaliation against her, and references Labor Code §§ 98.6(b)(3) and 1102.5(f); however, the second cause of action is not based on these statutes. Section 1102.5 The aforesaid statutes, moreover, do not appear to be cited anywhere in Plaintiff’s complaint.

2.                  Plaintiff cites to Labor Code §§ 98.6(b)(3) and 1102.5(f) in support of her request for damages for loss of earnings and emotional distress damages (See Statement of Damages, p. 2); again, however, these statutes do not appear to be cited anywhere in Plaintiff’s compliant.