Judge: Stuart M. Rice, Case: 22STCV38456, Date: 2024-03-13 Tentative Ruling

Case Number: 22STCV38456    Hearing Date: March 13, 2024    Dept: 1

Before the Court is plaintiff Paul Black’s (Plaintiff) application for entry of default judgment.  On November 22, 2023, the Court struck the answer of defendant Everlasting International Management (Defendant) for failure to appear and participate in court proceedings, and directed Plaintiff to proceed by default.  The Court dismissed Plaintiff’s class claims pursuant to his request on January 16, 2024.  Default was entered on January 25, 2024. 

The request for default judgment contains several problems which prevent the Court from entering the requested judgment at this time.

·         First and most dispositively, Plaintiff’s operative complaint contains no amount of damages or attorney fees prayed for.  There are no particulars in the complaint from which a defaulting party could ascertain the damages sought.  The Court cannot enter a judgment in an amount exceeding that demanded in the complaint.  (Code Civ. Proc. § 580(a).)  Plaintiff must file and serve an amended complaint with a prayer for monetary relief and attorney fees in an amount encompassing the amounts to be sought.

·         The Doe defendants do not appear to have been dismissed.  Because there are no class claims remaining and Plaintiff must file an amended complaint anyway, Plaintiff should simply omit Does from the amended complaint. 

·         There are also a number of problems with Plaintiff’s arithmetic. 

o   Plaintiff testifies that he was required to spend one minute undergoing a COVID-19 screening before clocking in (ostensibly 10 minutes per pay period) and 10 minutes changing batteries in guest doors three times per week (60 minutes per pay period), yet he requests 2.8 hours in overtime pay per week (168 minutes per pay period).  Not only do these numbers not correspond, there is no information in Plaintiff’s declaration on how many hours he worked per week.  Although Plaintiff is undoubtedly entitled to his regular pay for all time he worked and was not paid, that time may or may not be overtime depending on Plaintiff’s work schedule.  Plaintiff should address this with appropriate evidence or testimony.

o   Plaintiff requests pre-judgment interest at the rate of 7% for the entirety of the monetary recovery he seeks, including penalties.  While Labor Code §§ 1194(a) and 1194.2(a) permit pre-judgment interest on unpaid minimum wages, Plaintiff and his counsel provides no explanation for why pre-judgment interest would be permitted on all of the items listed.  Moreover, pre-judgment interest is not calculated simply by multiplying the amount claimed by the interest rate, but applying the rate to the amount of time the particular amounts have accrued and been outstanding.  Where amounts have been outstanding for different times, each amount must be calculated separately. 

§  By way of example: suppose a worker is entitled to be paid weekly, and has been underpaid by $20 every week for an entire year, January 1 to December 31.  As of the end of the year, the amount due for the first week of the year has been outstanding and accruing interest for 51 weeks, and the worker is entitled to $20 plus $1.37 in interest (7% divided by 52 weeks, multiplied by the 51 weeks the sum has been outstanding, multiplied by the outstanding sum of $20).  However, as of the end of the year, the amount due for the last week has not yet borne any interest, as it has just come due.

§  If Plaintiff is not inclined to do separate calculations for each of his 21 pay periods between when they came due and when judgment is to be entered, he may reach a low estimate by multiplying the sum of the interest-bearing amounts (i.e. those amounts that accrue interest under the law) by 7%, divided by 52, times the weeks the last amount has been due.  As of this writing, Plaintiff’s last day of work (December 15, 2021, see Black Decl., ¶ 3) was approximately 117 weeks before the March 13, 2024 OSC re: Entry of Default. 

·         Plaintiff’s request for attorney fees, though in excess of the default schedule, is acceptable.  This is not a true default case; rather, Defendant’s answer was stricken for failure to participate in litigation after initially appearing and taking part.  Plaintiff’s costs memorandum also appears in order.

For the foregoing reasons, the Court cannot enter judgment at this time.  The March 13, 2024 OSC date remains on calendar, but will serve as a status conference.