Judge Salvatore Sirna, Case 21PSCV00587 2023-05-23 Tentative Ruling

Judge: Salvatore Sirna, Case: 21PSCV00587, Date: 2023-05-23 Tentative Ruling

Case Number: 21PSCV00587 Hearing Date: May 23, 2023 Dept: G

Plaintiff Jairo Vazquez’s Application for Default Judgment

Respondent: NO OPPOSITION

TENTATIVE RULING

Plaintiff Jairo Vazquez’s Application for Default Judgment is TENTATIVELY GRANTED and the court will enter default judgment for Plaintiff in the amount of $381,550.70 upon Plaintiff’s dismissal of the Doe Defendants in this action pursuant to Rule 3.1800, subdivision (a)(7) of the California Rules of Court.

BACKGROUND

This is an action for wrongful termination. In February 2011, Defendant Pho Ha, Inc. hired Plaintiff Jairo Vazquez as a dishwasher. During Plaintiff’s period of employment, Plaintiff alleges Defendant only paid Plaintiff an hourly wage of $8.33 per hour without regards for increases to the minimum wage. In May 2018, Plaintiff also alleges Defendant failed to engage in a good faith interactive process and make accommodations after Plaintiff complained of severe pain and irritation in Plaintiff’s waist, shoulders, and back. In 2019, Plaintiff alleges Defendant began retaliating against Plaintiff for requesting accommodations by taking away Plaintiff’s tips. On March 15, 2020, Plaintiff was terminated as part of an alleged COVID-19 workforce reduction. However, Plaintiff alleges this termination was pretextual as Defendant subsequently rehired its younger and non-Hispanic employees.

On July 20, 2021, Plaintiff filed a complaint against Defendant and Does 1-50 alleging the following causes of action: (1) discrimination, (2) discrimination on the basis of race or national origin, (3) age discrimination, (4) failure to accommodate disability, (5) failure to engage in the interactive process, (6) failure to prevent discrimination, (7) retaliation, (8) wrongful termination, (9) meal and rest break violations, (10) failure to pay overtime and wages, (11) failure to provide employment records, and (12) violation of Business and Professions Code section 17200 et seq.

On April 12, 2022, Defendant entered default and Plaintiff filed an application for default judgment on July 13. On September 14, the court denied Plaintiff’s application, noting Plaintiff failed to adequately plead damages and discrimination because of race or national origin.

On October 25, 2022, Plaintiff filed a First Amended Complaint (FAC) against the same Defendants alleging the same causes of action. On February 15, 2023, Plaintiff’s process server personally served Defendant in Rancho Cucamonga.

On March 30, 2023, default was entered against Defendant. On May 12, Plaintiff submitted the present application for default judgment.

An OSC Re: Default Judgment is set for May 23, 2023.

LEGAL STANDARD

Code of Civil Procedure section 585 permits entry of a default judgment after a party has filed to timely respond or appear. A party seeking judgment on the default by the court must file a Request for Court Judgment, and: (1) a brief summary of the case; (2) declarations or other admissible evidence in support of the judgment requested; (3) interest computations as necessary; (4) a memorandum of costs and disbursements; (5) a proposed form of judgment; (6) a dismissal of all parties against whom judgment is not sought or an application for separate judgment under CCP § 579, supported by a showing of grounds for each judgment; (7) exhibits as necessary; and (8) a request for attorneys’ fees if allowed by statute or by the agreement of the parties. (Cal. Rules of Court 3.1800.)

ANALYSIS

Plaintiff seeks default judgment against Defendant in the total amount of $382,032.22, including $339,054 in damages and $42,978.22 in interest. Because the court finds Plaintiff has submitted sufficient evidence, the court GRANTS Plaintiff’s application for default judgment in the reduced amount of $381,550.70 for the following reasons.

As part of the damages requested, Plaintiff seeks $36,636 in unpaid overtime wages on the grounds that Defendant underpaid Plaintiff for overtime by $426 weekly. While Plaintiff should have received $576 in weekly overtime, Plaintiff alleges Defendant only paid between $125 to $175 in overtime each week. (Vazquez Decl., ¶ 21.) However, because Plaintiff does not specify the exact amount of overtime that was paid and instead relies in a range of numbers, the court will calculate the paid overtime as $175 and finds Plaintiff only should have been paid an additional $401 weekly. Thus, the total amount of overtime wages owed are $34,486 and the court reduces the amount of damages accordingly to $336,904.

Additionally, because damages have been reduced, the court also calculates the awarded interest at $44,646.70 ($336,904 multiplied by 7% divided 365 multiplied by 691 days from June 20, 2021 to May 12, 2023).

CONCLUSION

Based on the foregoing, Plaintiff’s application for default judgment is TENTATIVELY GRANTED and the court will enter default judgment for Plaintiff in the amount of $381,550.70 upon Plaintiff’s dismissal of the Doe Defendants in this action pursuant to Rule 3.1800, subdivision (a)(7) of the California Rules of Court.

Plaintiff to submit a new judgment in the amount of $381,550.70 by May 26, 2023.