Judge Thomas Falls, Case 20PSCV00652 2022-08-25 Tentative Ruling

Judge: Thomas Falls, Case: 20PSCV00652, Date: 2022-08-25 Tentative Ruling

The Court may change tentative rulings at any time. Therefore, attorneys are advised to check this website to determine if any changes or updates have been made to the tentative ruling. Counsel may submit on the tentative rulings by calling the clerk in Dept. R at 909-802-1117 before 8:30 the morning of the hearing.

Case Number: 20PSCV00652 Hearing Date: August 25, 2022 Dept: R

Ferreyra v. SM. Kan Inc., et al. (20PSCV00652)

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Plaintiffs’ APPLICATION FOR DEFAULT JUDGMENT

Tentative Ruling

Plaintiff Dora Ferreyra’s Application for Default Judgment is DENIED without prejudice.

Background

Plaintiff Dora Ferreyra (“Plaintiff”) alleges as follows: Plaintiff is Hispanic, of Mexican nationality and over the age of 40. Plaintiff was employed by Sm. Kan Inc. dba 101 Sushi Roll & Grill (“101 Sushi”) for over a year as a prep cook. Plaintiff sustained injuries to her right hand, due to the repetitive nature of her job. Minah Rhee (“Rhee”) was one of Plaintiff’s supervisors. Plaintiff notified another supervisor, Francisco Pacheco, of her injuries and asked to be sent to a doctor, but her request was denied. During her employment, Plaintiff was harassed and belittled based upon her age, disabilities, race and nationality. When Plaintiff was ultimately terminated, she was forced to sign a resignation note in order to obtain her last paycheck.

On October 6, 2020, Plaintiff filed a complaint, asserting causes of action against Defendants 101 Sushi, Rhee, and Does 1-100 for:

1. Employment Discrimination and Termination in Violation of Public Policy

2. Employment Discrimination Based Upon Age (Gov. Code § 12940)

3. Employment Discrimination Based Upon Race and/or Nationality (Gov. Code § 12940)

4. Employment Discrimination Based Upon Disability (Gov. Code § 12940)

5. Failure to Accommodate Disability (Gov. Code § 12940)

6. Hostile Work Environment and Harassment in the Workplace

7. Negligent Supervision and Retention

8. Failure to Pay Wages in a Timely Manner (Labor Code § 204)

9. Failure to Pay Earned Wages (Labor Code §§ 204, 206 and 210)

10. Waiting Time Penalties (Labor Code § 203)

11. Failure to Pay Minimum Overtime Compensation (Labor Code §§ 510 and 1194)

12. Failure to Provide Meal Periods (Labor Code §§ 226.7 and 512)

13. Failure to Provide Rest Periods (Labor Code §§ 226.7, 512 and 558)

14. Failure to Engage in Interactive Process

On February 3, 2021, 101 Sushi’s default was entered. On March 2, 2021, Rhee’s default was entered.

On July 8, 2021, September 10, 2021, and December 22, 2021 the court denied Plaintiff’s applications for default judgment.

On May 18, 2022, Plaintiff filed a supplemental declaration.

On June 3, 2022, Plaintiff submitted proposed orders.

Discussion

Previously, the court issued the following ruling:

1. Plaintiff attests, inter alia, that Rhee would humiliate her and her Hispanic and Mexican

coworkers “for not being able to speak English fluently” (Plaintiff’s Decl., ¶ 5(a)) and that on or about November 5, 2018, Rhee informed Plaintiff that in order to receive her paycheck, Plaintiff had to sign a Voluntary Resignation letter, which “was in English” and Rhee “knew that [Plaintiff] did not speak English” (Id., ¶ 11.) Although Plaintiff does not expressly state that she does not read and/or write English, the above statements suggest that this may be the case. If Plaintiff is able to read and/or write English, Plaintiff must provide a supplemental declaration attesting to such. If Plaintiff does not read and/or write English, then a translation must be provided from a certified translator. (CRC Rule 3.1110, subd. (g); Evid. Code § 751; Gov. Code § 68561.)

2. Plaintiff’s declaration is supported only by a copy of her last paycheck. Plaintiff, however, has advised in ¶ 9 of her complaint that “[p]arts of the employment agreement was [sic] memorialized in writing by such things as Defendants’ W2 Forms including, but not limited to, pay checks evidencing wage payment and time slips.” The court requests that Plaintiff provide these documents.

Now, none of the defects have been cured.

First, Plaintiff does not submit the declaration of a certified translator.

Second, Plaintiff states that “[she] is not in possession of any time slips or paycheck copies, with the exception of my final paystub from the period of 10/16/16 to 10/31/18. (Exhibit 2.) Even if the case, Plaintiff is to still comply with evidentiary rules. For example, Plaintiff is to provide evidence (i.e., bank statements) substantiating checks received throughout periods of her employment.

Third, it appears Plaintiff is seeking $50,000 in general damages. However, Plaintiff has not offered any evidence of the general damages, even though she sought medical attention for the stress and anxiety.

Therefore, the application is again denied without prejudice.