Motion To Set aside Judgment And For Leave To File Appeal

Motion

Cal. Super. - 4th Dist.August 11, 2017

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LAW OFFICE OF TIMOTHY V. TRAN Timothy V. Tran (SBN: 299554) Joshua R. Engle (SBN: 249871) P.O. Box 10430 Westminster, CA 92685 Tel: 714-464-3246 Fax: 949-271-4973 Timothytran09@yahoo.com, josh@engle-law.com Attorneys for Plaintiff, Location: 700 Civic Center Drive West Santa Ana, CA 92701 Luc Sinh Nguyen, M.D., F.A.C.C., Inc.. SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE—CENTRAL JUSTICE CENTER HUE NGUYEN, ) Case No.: 30-2017-00937286-CL-EN-CJC ) Plaintiff, ) vs. DEFENDANT’S NOTICE OF MOTION ) AND MOTION TO SET ASIDE LUC SINH NGUYEN, M.D., FA.C.C.,INC.a ) JUDGMENT AND FOR LEAVE TO FILE California corporation, ) APPEAL. Reservation No.: 72751910 Defendant, Date: 03/08/2018 ) Time: 1:30 PM ) Dept.: C66 ) ) TO PLAINTIFF, LABOR BOARD COMMISSIONER AND THIS HONORABLE COURT: COMES NOW Defendant Luc Sinh Nguyen, M.D., F.A.C.C., Inc., by and through its attorneys of record, moving this court for an order setting aside the judgment in the above captioned case and granting Defendant leaveto file an appeal therein. This notice ofmotion and motion is timely filed under California Code ofCivil Procedure § 473.5(a). This motion will be heard at 1:30 P.M. on March 8, 2018 by Department C66 of the Superior Court of California, County of Orange, located at 700 Civic Center Drive West, Santa Ana, California 92701. -1- MOTION TO SET ASIDE JUDGMENT AND FOR LEAVE TO FILE APPEAL 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 This motion is based upon the grounds that the defendant did not receive actual notice of the Plaintiff’s labor board complaint nor the labor board order thereto until Defendant received notice of entry ofjudgment by this Honorable Court, and Defendant not receiving notice thereof was unable to appear at the labor board hearing or to timely file an appealto this Honorable Court. This motion is supported by the accompanying declarations, memorandum of points and authorities, exhibits, and oral arguments to be presented at the hearing on this matter. Accompanying this motion is a copy of the proposed Notice of Appeal, attached as Exhibit B. and Civil Case Cover Sheet, attached as Exhibit C. Defendant requests that this Honorable Court grant this motion so that it may file an appeal and present its defenses. Respectfully submitted, LAW OFFICE OF TIMOTHY V. TRAN Dated: February 7, 2018 By: J” = A Joshua R. Engle, attorney for Defendant Luc Sinh Nguyen, M.D., F.A.C.C., Inc. _2- MOTION TO SET ASIDE JUDGMENT AND FOR LEAVE TO FILE APPEAL 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES STATEMENT OF FACTS Defendant corporation, Luc Sinh Nguyen, M.D., F.A.C.C., Inc. (herein “Defendant’) never received notice of Plaintiff Hue Nguyen’s (herein “Plaintiff”) Labor Board complaint. (See declarations ofNguyen and Tran, 9 11-16) Likewise, Defendant never received notice of the Labor Board’s Order, Decision or Award. Therefore, Defendant was prevented from appearing at the Labor Board hearing to assert its defenses or to timely file an appeal thereof. The first actual notice that Defendant received was the Superior Court’s Notice of the Filed Request That Clerk Enter Judgment, with accompanying documents (/d, See Exhibit A). Furthermore, the records of this Honorable Court specify that judgment was entered the same day that the clerks’ office served notice upon Defendant by mail of the Request That Clerk Enter Judgment. Therefore, Defendant had no opportunity prior to the entry ofjudgment to appear and defend itself. Defendant, per the declarations of the corporate president and office manager, had repeated problems receiving mail. (Id. at 99 7-10) It was so bad that Defendant often wouldn’t receive insurance checks for payment ofits patient services, and would even receive mail intended for other medicalclinics. 7d. Defendant requests this Honorable Court set aside the judgment and grant it leave to file an appeal. As of the date of this appeal, there has been no Notice of Entry of Judgment served upon Defendant or filed at this Honorable Court, per the court records. ARGUMENTS This Honorable Court should set aside this judgment and grant Defendant leave to file an appeal in this case. Defendant deserves its day in court to assert its defenses. 1 1 1 “3. MOTION TO SET ASIDE JUDGMENT AND FOR LEAVE TO FILE APPEAL 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 a. THE JUDGMENT SHOULD BE SET ASIDE. Defendant was denied its day in court, and accordingly the judgment should be set aside. Defendant asks only for due process of law after actually receiving notice of it’s need to do so. The Labor Board’s order, combined with the judgment ofthis court, is tantamount to a default judgment where the defendant never appeared in the case, and therefore California Code of Civil Procedure § 473.5 applies. The judgment in this case should be set aside due the failure of actual notice. Under California Code ofCivil Procedure § 473.5(a), a judgment may be set aside when the service of the Labor Board summons fails to provide actual notice to a party in time to defend the action and a default judgment has been entered against him or her in the action.... Here, the Labor Board served notice by regular mail upon Defendant. There was no personal service, or even substitute service. Apparently, there wasn’t even certified mail. The Labor Board used a method of service substantially less likely to result in actual notice to Defendant, and in this instance it failed to do so. The declarations of Defendant’s corporate president and office manager attest to the fact that Defendant received no notice of the Labor Board action until Notice of the Request That Clerk Enter Judgment was served by this Honorable Court. Id. at 99 11 to 16. Defendant should not be forced to suffer a judgment it had no chance to defend against. From the record provided by the Labor Board, Defendant did not appear at the Labor Board hearing to assert its defenses. Neither was there a timely appeal of the Labor Board Order. Only after receiving notice from this Honorable Court does the Defendant have actual notice. The proof of service by mail provided by the Labor Board establishes only a rebuttable presumption of notice upon the Defendant, which can and has been rebutted with facts. Defendant asks only to have its day in court so it may assert its defenses. Likewise, Defendant has shown, by the accompanying declarations thatits lack of actual notice in time to defend itself was not due to avoidance of service or inexcusable neglect. Far from it, the lack of actual notice was due to no action by Defendant or its employees in any way. In fact, the lack of actual notice was due to a failure beyond the Defendant’s control — an actual failure in the mail -4.- MOTION TO SET ASIDE JUDGMENT AND FOR LEAVE TO FILE APPEAL 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 system. The accompanying declarations state specifically that the president and office manager have attempted to have the mail carrier and or local post office fix the problem, but to no avail. Defendant should not be penalized for a failure beyond its control. This Honorable Court should set aside the judgment. b. DEFENDANT DESERVES LEAVE TO FILE AN APPEAL. Defendant requests that this court grant it leave to file an appeal of the Labor Board Order. The facts presented by the Labor Board demonstrate that the Defendant did not appear at the Labor Board hearing to defend itself, and the reason why is clear: a lack of actual notice. Under CCP § 473.5(b), the motion must include an affidavit showing under oath that the party’s lack of notice was not caused by his or her avoidance or inexcusable neglect. In fact, the declarations ofDefendant’s president and office manager specify that had Defendant received actual timely notice, then Defendant would have appeared at the Labor Board to assert its defenses. Under § 473.5(b), the moving party must also include a copy of the proposed answer or pleading. Attached as Exhibit B is a copy of Defendant’s Notice of Appeal, and attached as Exhibit C is a copy of the Civil Case Cover Sheet. Clearly, Defendant has satisfied the requirements under § 473.5 to obtain leave to file the Notice of Appeal and Civil Case Coversheet. This Honorable Court should grant Defendant leave to file the Notice of Appeal. Upon granting Defendant leave to file the appeal, Defendant is prepared to immediately post bond for the full amount of the labor board order. CONCLUSION This Honorable Court should grant Defendant’s motion to set aside the judgment and grant leave for it to file an appeal. The defendant never received actual notice of the Labor Board action filed by the Plaintiff, and therefore never had the opportunity to defend itself. The Defendant is prepared to file the Notice ofAppeal, which is attached to this Motion, to post the required bond, and to appear in court to defend itself. It asks only for the real opportunity to do so. -5- MOTION TO SET ASIDE JUDGMENT AND FOR LEAVE TO FILE APPEAL 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Respectfully submitted, LAW OFFICE OF TIMOTHY V. TRAN Dated: February 7, 2018 By: feLL Jaorateadenattorney for Defendant, Luc Sinh Nguyen, M.D., F.A.C.C., Inc. -6- MOTION TO SET ASIDE JUDGMENT AND FOR LEAVE TO FILE APPEAL Exhibit A SUPERIOR COURT OF CALIFORNIA ORANGE COUNTY 700 CIVIC CENTER DR. WEST SANTA ANA, CA 92701 37.CRT30.266877.81 LUC SINH NGUYEN, M.D., F.A.C.C., INC. 14571 MAGNOLIA STREET 208 WESTMINSTER, CA 92683 37.266877. 1 of 12 SUPERIOR COURT OF CALIFORNIA, COUNTY OF ORANGE Central Justice Center 700 W. Civic Center Drive Santa Ana, CA 92702 SHORTTITLE: Nguyen vs. Luc Sinh Nguyen, M.D., F.A.C.C., Inc. CLERK'S CERTIFICATE OF MAILING/ELECTRONIC CASE NUMBER:SERVICE 30-2017-00937286-CL-EN-CJC I certify that I am not a party to this cause. I certify that a true copy ofthe above Request that Clerk Enter Judgment - Labor Commissioner dated 08/11/17 has been placed for collection and mailing so as to cause it to be mailed in a sealed envelope with postage fully prepaid pursuant to standard court practice and addressed as indicated below. This certification occurred at Santa Ana, California on 8/11/17. Following standard court practice the mailing will occur at Sacramento, California on 8/14/17. HUE NGUYEN LABOR COMMISSIONER, STATE OF CALIFORNIA 4908 W FIFTH STREET B 605 W SANTA ANA BLVD RM 625 BLDG28 SANTA ANA, CA 92703 SANTA ANA CA 92701 LUC SINH NGUYEN, M.D., F.A.C.C., INC. 14571 MAGNOLIA STREET 208 WESTMINSTER, CA 92683 Cierk of the Court, by: a , Deputy CLERK'S CERTIFICATE OF MAILING/ELECTRONIC SERVICE V3 1013a (June 2004) Code ofCiv. Procedure , § CCP1013(a) 37.266877. LABOR COMMISSIONER, STATE OF CALIFORNIA Department of Industrial Relations Division of Labor Standards Enforcement 605 West Santa Ana Blvd., Rm 625, Building 28 Santa Ana CA 92701 Tel: (714) 558-4910 (For Court use only) Fax: (714) 558-4728 SUPERIOR COURT OF THE STATE OF CALIFORNIA ORANGE CENTRALJUSTICE CENTER COUNTY OF JUDICIAL DISTRICT PLAINTIFF: HUE NGUYEN DEFENDANT: LUC SINH NGUYEN, M.D.. F.A.C.C.. INC.. A CALIFORNIA Court numberCORPORATION STATE CASE NUMBER 18 - 96401 KV REQUEST THAT CLERK ENTER JUDGMENT AND JUDGMENT ON FINAL ORDER, DECISION OR AWARD OF THE LABOR COMMISSIONER REQUEST THAT CLERK ENTER JUDGMENT The Order, Decision or Award ofthe Labor Commissioner has become final and the clerk is requested to enter judgment immediatelyin conformity with the accompanying certified copy. - —LABOR COMMISSIONER, STATE OF CALIFORNIA BY Melanie DoDATED: July 14,2017 JUDGMENT DEPUTY A certified copyofa final Order. Decision or Award ofthe Labor Commissioner has been filed with this court. Judgment therefore is entered as follows: Plaintiff recover from Defendant. I certifythis to be a true copy ofthe judgment entered on or microfilm. pursuant to CCP 668.5. (H's 498.00 for wages and expenses pursuant to Labor Code Section(s) 98.1 and/or 2802: 2) S 415.00 forliquidated damages pursuant to Labor Code Section 1194.2: 3) $s 81.04 interest pursuant to Labor Code Section(s) 98.1(c), 1194.2 and/or 2802(b): 4) Ss 2.520.00 for additional wages accrued pursuant to Labor Code Section 203 as a penalty 35) S$ for penalties pursuant to Labor Code Section 203.1. (6) $ other (specify): (7 S$ 3.514.04 Total Amount of Plaintiff's Award (8) S 26.76 for post hearing interest pursuant to Labor Code Section(s) 98.1(c). 1194.2 and/or 2802(b) 9) $ 225.00 forfiling fee, pursuant to Labor Code Section 101, et. seq. (10S 3,765.80 Total Amount of Judgment : in Judgment book at page Clerk, by Deputy Clerk DLSE 545(2001) (Rev. 1/12) REQUEST THAT CLERK ENTER JUDGMENT L.C. 98 37.266877. 3 of 12 LABOR COMMISSIONER, STATE OF. ~ .LIFORNIA For Court Uo 2 Only: Department of Industrial Relations ) Division of Labor Standards Enforcement 605 West Santa Ana Blvd., Rm 625, Building 28 Santa Ana CA 92701 Tel: (714) 558-4910 Fax: (714) 558-4728 Plaintiff: HUE NGUYEN Court Number Defendant: LUC SINH NGUYEN, M.D.. FL A.C.C.. INC.. A CALIFORNIA CORPORATION State Case Number ORDER, DECISION OR AWARD OF THE LABOR COMMISSIONER 18 - 96401 KV I. The above-entitled matter came onfor hearing before the Labor Commissioner ofthe State ofCalifornia as follows: DATE: March 27,2017 [] CONTINUED TO: CITY: 605 West Santa Ana Blvd., Bldg. 28, Rm. 625, Santa Ana, CA 2. ITIS ORDERED THAT: Plaintiff recover from Defendant. 498.00 for wages (with lawful deductions) 415.00 for liquidated damages pursuant to Labor Code Section 1194.2 [7 ] $ Reimbursable business expenses S$ 81.04 for interest pursuant to Labor Code Section(s) 98.1(c), 1194.2 and/or 2802(b), S 2520.00 for additional wages accrued pursuant to Labor Code Section 203 as a penalty = andthat sameshall not be subject to payroll or other deductions. S for penalties pursuant to Labor Code Section 203.1 which shall not be subject to payroll or other deductions. S S$ other (specify): 3,514.04 TOTAL AMOUNT OF AWARD 3. The herein Order, Decision or Award is based upon the Findings ofFact, Legal Analysis and Conclusions attached hereto and incorporated herein byreference. 4. The parties herein are notified and advised that this Order, Decision or Award ofthe Labor Commissioner shall become final and enforceable as a judgmentin a court of law unless either or both parties exercise their right to appeal to the appropriate court* within ten (10) days of service ofthis document. Service ofthis document can be accomplished either by first class mail or by personal delivery and is effective upon mailing or at the time ofpersonal delivery. Ifservice on the parties is made by mail, the ten (10) day appeal period shall be extended byfive (5) days. For parties served outside of California, the period ofextensionis longer (See Code of Civil Procedure Section 1013). In case ofappeal. the necessary filing fee must be paid by the appellant and appellant must, immediately upon filing an appeal with the appropriate court, serve a copyofthe appeal request upon the Labor Commissioner. 1f an appealis filed bya corporation, a non-lawyer agent ofthe corporation mayfile the Notice of Appeal with the appropriate court, but the corporation must be represented in any subsequent trial byan attorney,licensed to practice in the State ofCalifornia. Labor Code Section 98.2(c) provides that ifthe party seeking review byfiling an appeal to the court is unsuccessful in such appeal. the court shall determine the costs and reasonable attorney's fees incurred bythe other partyto the appeal and assess such amount as a cost upon the partyfiling the appeal. An employee is successful ifthe court awards an amount greater than zero. PLEASE TAKE NOTICE: Labor Code Section 98.2(b) requires that as a condition to filing an appeal of an Order, Decision or Award of the Labor Commissioner, the employer shall first post a bond or undertaking with the court in the amount ofthe ODA; and the employer shall provide written notice to the otherparties and the Labor Commissioner ofthe posting ofthe undertaking. Labor Code Section 98.2(b) also requires the undertaking contain other specific conditions for distribution under the bond. While this claim is before the Labor Commissioner, you are required to notify the Labor Commissioner in writing of any changes in your business or personal address within 10 days after any change occurs. LABOR COMMISSIONER. STATE OF CALIFORNIA * Central Justice Center 700 Civic Center Dr. West Co sis, I) Santa Ana, CA 92701 BY: <_—/ 0 Melanie Do HEARING OFFICER DATED: March 29, 2017 DLSE 535 (Rev. 1/12) ORDER, DECISION OR AWARD OF THE LABOR COMMISSIONER 1.C. 98 37.266877. 4 of 12 10 11 12 13 14 15 16 Vr 18 19 20 21 22 23 24 25 26 27 BEFORE THE LABOR COMMISSIONER OF THE STATE OF CALIFORNIA Hue Nguyen, Plaintiff, 22 Luc Sinh Nguyen, M.D., F.A.C.C,, Inc,, a California Corporation Defendant. Case No. 18-96401 KV ORDER, DECISION, OR AWARD OF THE LABOR COMMISSIONER The Plaintiff filed an initial claim with the Labor Commissioner's office on June 17, BACKGROUND 2016. The complaint raises the following allegations: 1. Wages for 41.5 hours at $12.00 per hour earned from March 17, 2016 to May 9, 2016, claiming $498.00; 2. Liquidated damages pursuant to Labor Code Section 1194.2, 41.5 hours at $10.00 per hour, claiming $415.00; and 3. Waiting time penalties pursuant to Labor Code Section 203 for 30 days at a daily rate of $88.00, claiming $2,640.00. Hearing was conducted in Santa Ana, California on March 27, 2017, before the undersigned hearing officer designated by the Labor Commissioner to hear this matter. Plaintiff appeared in pro per. Luc Sinh Nguyen, M.D., F.A.C.C,, Inc, a California Page 1 37.266877. 5of 12 10 11 12 14 15 16 17 18 19 20 21 22 23 24 25 26 27 corporation (hereinafter “Defendant”), was served with Notice of Hearing, Complaint and Answer on February 10, 2017, but failed to appear or submit an Answer to Plaintiff's Complaint. Sy Danh Luu provided Vietnamese interpreter services. Due consideration having been given to the testimony, documentary evidence, and arguments presented, the Labor Commissioner hereby adoptsthe following Order, Decision or Award. FINDINGS OF FACT Plaintiff, Hue Nguyen, was employed by Defendant, during the period of March 17, 2016 through May 9, 2016, to perform personal services as a medical assistant in the County of Orange, California, under the terms of an oral employment agreement at the promised rate of compensation of $12.00 per hour. Plaintiff testified that Plaintiff maintained a personal record of her daily hours worked, and based on her recollection, Plaintiff regularly worked seven (7) hours per day, four (4) days a week. Plaintiff testified that she submitted a written letter on May 9, 2016 to resign on May 23, 2016 (Exhibit #1); however, Defendant discharged her on May 9, 2016. Plaintiff testified that she came back within a week to demand her final payment. Plaintiff performed labor for Defendant during the period of March 17, 2016 through May 9, 2016, for which she testified she has not been compensated for 41.5 hours. Plaintiff testified that she only received one (1) check from Defendant (Exhibit #2) issued on April 30, 2016 for $2,100; that the check was back-dated to April 30, 2016 but given to her on May 9, 2016; the check is only for 175 hours worked ($2,100 divided by $12.00 hourlyrate); according to her personal records (Exhibit #3) she worked a total’ of 216.5 hours; and sheis still owed 41.5 hours that have not been compensated to date. Page 2 37.266877. 6 of 12 10 11 13 14 16 7 18 19 20 21 22 23 24 25 26 27 Plaintiff brings a claim for liquidated damages pursuant to Labor Code Section 1194.2 for her unpaid wages. As Plaintiff claims she is owed additional wages, Plaintiff brings a claim for penalties pursuant to Labor Code Section 203 for 30 days at her average daily wage of $88.00, being $2,640.00. Despite being properly served with the Notice of Hearing in this matter, Defendant failed to attend the scheduled hearing, and did not file an Answer to Plaintiff's Complaint. Therefore, there is no evidence before the Labor Commissioner from Defendant that would disprove or mitigate Plaintiff's Complaint. LEGAL ANALYSIS Insofar as Defendant failed to attend the scheduled hearing or submit an Answer to the Complaint, there is nothing before the Labor Commissioner from or on behalf of Defendant that would deny or mitigate Plaintiff's Complaint. Defendant's business is subject to the requirements of the Industrial Welfare Commission Order 5-2001 (the “Order”) which require that an employer pay an employee for all hours workedat noless than the minimum wage. In the instant matter, the preponderance of the evidence established that, between March 17, 2016 to May 9, 2016, Plaintiff worked 216.5 hours for Defendant for which she was compensated for only 175 hours. Accordingly, Defendant is ordered to pay Plaintiff for 41.5 hours worked at the rate of $12.00 per hour, for a total of $498.00. Labor Code § 1194.2(a) states in relevant part: In any action under Section 98, 1193.6, 1194, or 1197.1 to recover wages because of the payment of a wage less than the minimum wage fixed by an order of the commission or bystatute, an employee shall be entitled to recover liquidated damages in an amount equal to the wages unlawfully unpaid and interest thereon. Nothing in this subdivision Page 3 37.266877. 7 of 12 10 11 12 13 14 15 17 18 19 20 21 22 23 24 25 26 27 shall be construed to authorize the recovery of liquidated damages for failure to pay overtime compensation. Plaintiff credibly testified that she worked a total of 41.5 hours for which she was not compensated. Accordingly, Plaintiff shall recoverliquidated damages pursuant to Labor Code Section 1194.2 in the amount of $10.00 per hour (California minimum wage during the period at issue) for 41.5 hours, totaling $415.00. Labor Code Sections 98.1(c) and 1194.2 provide that all awards granted pursuant to this hearing shall accrue interest on all due and unpaid wages and liquidated damages from the date that said amounts became due until the amounts are paid. Accordingly, Plaintiff is entitled to $81.04 in interest accrued to date on the amount due. Labor Code Section 201 requires that if an employee is discharged, all earned wages are due immediately upon termination. In the instant matter, Defendant discharged Plaintiff on May 9, 2016, upon receiving her letter of resignationto resign on May 23, 2016. Plaintiff's final wages were due upon termination on May 9, 2016. Labor Code Section 203(a) provides in relevant part: If an employer willfully fails to pay, without abatement or reduction,in accordance with Sections 201, 201.3, 201.5, 201.9, 202 and 205.5, any wages of an employee who is discharged or quits, the wages of the employee shall continue as a penalty from the due date thereof at the same rate until paid or until an action therefor is commenced; but the wages shall not continue for more than 30 days. Defendant's failure to pay Plaintiff's wages in accordance with Section 201 was willful within the meaning of Section 203 (Title 8, California Code of Regulations, Section 13520). The term “willful” as used in the statute has been defined bycase lawas an intentional failure to perform an act that is required under the law, and does not require malice, blamable conduct, or moral delinquency on the part of the employer. Davis ©v. Morris (1940) 37 Cal.App.2d 269. Additionally, the term “intentional” as Page 4 37.266877. 8 of 12 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 defined by the statute and case law does not mean with evil intent to defraud, but simply that the employer knows such wages are due and fails to pay them. Plaintiff credibly testified that Defendant terminated Plaintiff on May 9, 2016; however, Plaintiff has not been paid her full and final wages as of the date of the hearing. Accordingly, Defendant owes Plaintiff additional wages of $2,520.00 as the maximum waiting time penalty (30 days multiplied by $84.00 per day). The daily rate is based on Plaintiff's credible testimony that she worked on average seven (7) hours a day, and her hourly rate was $12.00. CONCLUSION FOR ALL OF THE REASONS SET FORTH ABOVE, it is hereby ordered that Defendant pay to Plaintiff the total amount of $3,514.04 as follows: 1. $498.00 for regular wages; 2 $415.00 in liquidated damages pursuant to Labor Code Section 1194.2; 3. $81.04 in interest pursuant to Labor Code Sections 98.1(c) and 1194.2; and 4 $2,520.00 in waiting time penalties pursuant to Labor Code Section 203. g F% Stil{oso ‘Dated: March 29, 2017 CZ 0, So Melanie Do, Hearing Officer Page 5 37.266877. 9 LABOR COMMISSIONER, STATE OF CC! FORNIA Department of Industrial Relations Division of Labor Standards Enforcement 605 West Santa Ana Blvd., Rm 625, Building 28 Santa Ana CA 92701 Tel: (714) 558-4910 Fax: (714) 558-4728 Plaintiff: HUE NGUYEN Defendant: LUC SINH NGUYEN, M.D., F.A.C.C.,INC., A CALIFORNIA CORPORATION State Case Number 18 - 96401 KV NOTICE OF PAYMENT DUE You have been served a copy of the Labor Commissioner's Order, Decision or Award. If the full amount ofthe sums set forth in the Order, Decision or Award is received bythis office within ten (10) daysofthe date the Order, Decision or Award was served upon you, no judgment will be entered in this matter. Payment must be made by certified check, cashier's check or money order (no other tender will be accepted) made payable to the Plaintiff named in the Order, Decision or Award, and addressed to the Office of the Labor Commissionerat the address shown above. nm-Che Cr Kim-Chi Vu Deputy Labor Commissioner 714-558-4606 DATED: March 29,2017 DLSE 550 (Rev. 1/11) NOTICE OF PAYMENTDUE 1..C. 98 € © STATE OF CALIFORNIA a DEPARTMENT OF INDUSTRIAL RELATIONS DIVISION OF LABOR STANDARDS ENFORCEMENT CERTIFICATION OF SERVICE BY MAIL (C.C.P. 1013A) OR CERTIFIED MAIL pa I. VitoonVachira~~. do hereby certify that I am a resident of or employed inthe County of———Qrangeyer 8 years ofage. not a partyto the within action. and that I am employed at and mybusiness address is: LABOR COMMISSIONER, STATE OF CALIFORNIA 605 West Santa Ana Blvd., Rm 625, Building 28 Santa Ana CA 92701 Tel: (714) 558-4910 Fax: (714) 558-4728 I'amreadilyfamiliar with the business practice of myplace ofbusiness for collection and processing ofcorrespondence for mailing with the United States Postal Service. Correspondence so collected and processed is deposited with the United States Postal Service that same dayin the ordinary course of business. On April 3.2017 at myplace ofbusiness. a copyofthe following document(s):rll. Theil al was(were) placed for deposit in the United States Postal Service in a scaled envelope. by first class mail . with postage fullyprepaid, addressed to: NoTncE1o. HUE NGUYEN 4908 W. FIFTH ST. APT. B SANTA ANA CA 92703 and that envelope was placed for collection and mailing on that date following ordinary business practices. 1 certify under penaltyofperjury that theJSoregoing is true and correct. Executed on: April3.2017 at Santa Ana . California STATE CASE NUMBER: 18-96401 KV Chitoan Ceckive Vitoon Vachira DLSE 544/PLT. (3/06) CERTIFICATION OF MAILING L.C. 98 37.266877. 11 of 12 7 STATE OF CALIFORNIA DEPARTMENTOF INDUSTRIAL RELATIONS DIVISION OF LABOR STANDARDS ENFORCEMENT CERTIFICATION OF SERVICE BY MAIL (C.C.P. 1013A) OR CERTIFIED MAIL n Il. — VitoonVachirado herebycertifythat I am a resident of or employed in the County [i of——Qrangeerg years ofage. not a partyto the within action. and that [ am employed at and mybusiness address is: LABOR COMMISSIONER, STATE OF CALIFORNIA 605 West Santa Ana Blvd., Rm 625, Building 28 Santa Ana CA 92701 Tel: (714) 558-4910 Fax: (714) 558-4728 I'am readilyfamiliar with the business practice of myplace ofbusiness for collection and processing of correspondence for mailing with the United States Postal Service. Correspondence so collected and processed is deposited with the United States Postal Service that same dayin the ordinary course ofbusiness. On April 3.2017 at myplace ofbusiness, a copy of the following document(s):—— TT was(were) placed for deposit in the United States Postal Service in a sealed envelope. by . with postage fully prepaid, addressed to: first class mail Notice To: LUC SINH NGUYEN, M.D., F.A.C.C., INC.. A CALIFORNIA CORPORATION LUC SINH NGUYEN, CEO/AGENT 14571 MAGNOLIA ST. SUITE 208 WESTMINSTER, CA 92683 and that envelope was placed for collection and mailing on that date following ordinary business practices. 1 certify under penaltyofperjurythat theforegoing is true and correct. Executed on: —April3 2017 at Santa Ana . California STATE CASE NUMBER: 18-96401 KV itsaw Cockir Vitoon Vachira DLSE 544/DEF. #1 (3/06) CERTIFICATION OF MAILING L.C. 98 37.266877. 12 of 12 Exhibit B FOR COURT USE ONLY SUPERIOR COURT OF THE STATE OF CALIFORNIA [_] MUNICIPAL COURT OF THE STATE OF CALIFORNIA [1] JUSTICE COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE JUDICIAL DISTRICT PLANTIFF Hue Nguyen DEFENDANT Luc Sinh Nguyen, M.D., F.A.C.C., Inc. COURT NUMBER NOTICE OF APPEAL NOTICE OF APPEALof the Order, Decision or award of the Labor Commissioner in State Case Number 18-96401 KV , Dated March 29, 2017 and served upon the undersigned appellant, Luc Sinh Nguyen, M.D., F.A.C.C,, Inc. on April 3, 2017 Jis given and filed pursuant to Labor Code Section 98.2. Appellant attached as Exhibit “A” a copy of the Order, Decision or Award appealed and requests that the Clerk of the Court set the cause for hearing before the above-entitled court, where it shall be heard de novo in accordance with Labor Code Section 98.2, and that the Clerk of the Court give Notice of time, date and place of the new trial to each of the following parties and the Labor Commissioner's office at the places listed below. Appellant certifies that a copy of this Notice of Appeal has been served upon the Labor Commissioner and a copy has been mailed to the Respondent, as shown below. APPELLANT (OR ATTORNEY) (NAME, ADDRESS, TELEPHONE NUMBER) Law Office of Timothy V. Tran P.O. Box 10430, Westminster, CA 92685 Tel: 714-464-3246; Fax: 949-271-4973 OFFICE OF THE LABOR COMMISSIONER (ADDRESS AND TELEPHONE NUMBER) STATE LABOR COMMISSIONER 605 West Santa Ana Blvd., Rm. 625, Building 28 Santa Ana, CA 92701 RESPONDENT (OR ATTORNEY) (NAME, ADDRESS, TELEPHONE NUMBER) Hue Nguyen 4908 W. Fifth Street, Unit B Santa Ana, CA 92703 Dated 02/07/2018 Eff 7 Signature”’of Appellant State of California Department of Industrial Relations Division of Labor Standards Enforcement L.C.98 85 35611 DLSE 537 (REV. 3/83) NOTICE OF APPEAL - English Exhibit C CM-010 ATTORNEY OR PARTY WITHOUTVOREY (Name, State Bar number, and address): FOR COURT USE ONLY —Law Office of Timothy V. Tran Timothy V. Tran (SBN: 299554); Joshua R. Engle (SBN: 249871) P.O. Box 10430 Westminster, CA 92685 TeLeproNE NO: 714-464-3246 Faxno: 949-271-4973 ATTORNEY FOR (Name): Luc Sinh Nguyen, MD. F.A.CC,, Inc. SUPERIOR COURT OF CALIFORNIA, COUNTY OF ORANGE street abDREss: 700 Civic Center Drive West mailing appress: 700 Civic Center Drive West cry ap zip cope: Santa Ana, CA 92701 BRANCH NAME: Central Justice Center CASE NAME: Hue Nguyen vs. Luc Sinh Nguyen, M.D., F.A.C.C., Inc. CIVIL CASE COVER SHEET Complex Case Designation CASE NUMBER: [1 unlimited Limited } 30-2017-00937286-CL-EN-CJC (Amount (Amount [1 Counter [1 Joinder — demanded demanded is Filed with first appearance by defendant ’ exceeds $25,000) $25,000 orless) (Cal. Rules of Court, rule 3.402) DEPT: Items 1-6 below must be completed (see instructions on page 2). 1. Check one box below for the case type that best describes this case: Auto Tort Contract Provisionally Complex Civil Litigation [1] Auto (22) Breach of contract/warranty (06) (Cal. Rules of Court,rules 3.400-3.403) Uninsured motorist (46) Rule 3.740 collections (09) Antitrust/Trade regulation (03) Other PI/PD/WD (Personal Injury/Property Othercollections (09) Construction defect (10) Damage/Wrongful Death) Tort Insurance coverage (18) Mass tort (40) Asbestos (04) Other contract (37) Securitieslitigation (28) Productliability (24) Property Environmental/Toxic tort (30) Medical malpractice (45) Eminent domain/Inverse H O O Insurance coverage claims arising from the = U J LE 0 0 0 0 0 [1 other PvPDWD (23) condemnation (14) above listed provisionally complex case Non-PI/PD/WD (Other) Tort Wrongful eviction (33) types (41) LC] Business tort/unfair business practice (07) Otherreal property (26) Enforcement of Judgment [] Civil rights (08) Unlawful Detainer [1] Enforcement of judgment (20) [1 Defamation (13) [1] commercial (31) Miscellaneous Civil Complaint [1 Fraud (16) [1 Residential (32) [1 rico 27) [1] intellectual property (19) [1oDrugs (38) [1 other complaint (not specified above) (42) [| Professional negligence (25) Judicial Review Miscellaneous Civil Petition [1 Other non-PI/PD/WDtort (35) Assetforfeiture (05) Partnership and corporate governance (21) Petition re: arbitration award (11) [1] Otherpetition (not specified above) (43) Wrongful termination (36) Writ of mandate (02) [1] Other employment (15) Otherjudicial review (39) 2. This case [1] is isnot complex under rule 3.400 of the California Rules of Court. If the case is complex, mark the factors requiring exceptional judicial management: Employment SLUICEL a. CC] Large number of separately represented parties d. CC] Large number of witnesses b. [] Extensive motion practice raising difficult or novel e. [] Coordination with related actions pending in one or more courts issues that will be time-consuming to resolve in other counties, states, or countries, or in a federal court Cc. [C1] Substantial amount of documentary evidence f. [] Substantial postjudgmentjudicial supervision 3. Remedies sought (check all that apply): alv] monetary b.[| nonmonetary; declaratory or injunctive relief c. [punitive 4. Number of causes of action (specify): One 5. This case [] is [v] isnot a class action suit. 6. If there are any known related cases, file and serve a notice of related case. (You may use form CM-015.) Date: 02/07/2018 —— Joshua R. Engle ) hs (TYPE OR PRINT NAME) (SIGNATZRE OF PARTYLX ATTORNEY FOR PARTY) #NOTICE o Plaintiff must file this cover sheet with the first paperfiled in the action or proceeding (except small claims cases or cases filed under the Probate Code, Family Code, or Welfare and Institutions Code). (Cal. Rules of Court, rule 3.220.) Failure to file may result in sanctions. *® File this cover sheet in addition to any cover sheet required by local court rule. e [f this case is complex under rule 3.400 et seq. of the California Rules of Court, you must serve a copy of this cover sheet on all other parties to the action or proceeding. ® Unless this is a collections case under rule 3.740 or a complex case, this cover sheet will be used for statistical purposes only. age 1 of 2 Form Adopted for Mandatory Use CIVIL CASE COVER SHEET Cal. Rules of Court, rules 2.30, 3.220, 3.400-3.403, 3.740; Judicial Council of California Cal. Standards of Judicial Administration, std. 3.10 CM-010 [Rev. July 1, 2007] www.courtinfo.ca.gov 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE (C.C.P. Sections 1013 & 1013a) I am employed in the County of Orange, State of California. I am over the age of 18 and not a party to the within action; my business address is 333 City Blvd. West, Suite 1700, Orange, CA 92868. My email for electronic service is tim@foremostlaw.com. On February 7, 2018, I served the foregoing document described as DEFENDANT’S NOTICE OF MOTION AND MOTION TO SET ASIDE JUDGMENT AND FOR LEAVE TO FILE APPEAL on the interested parties in the action: SEE THOSE CHECKED ON ATTACHED SERVICE LIST [ X 1] BY MAIL: By placing [ ] the original [ X ] a true copy thereof enclosed in a sealed envelope addressed as shown herein below. Iam readily familiar with the business’ practice for collection and processing correspondence for mailing with the United States Postal Service. I know that the correspondence was deposited with the United States Postal Service on the same day this declaration was executed in the ordinary course ofbusiness and that the envelopes were sealed, with postage thereon fully prepaid, placed for collection and mailing on this date, following ordinary business practices at Santa Ana, California. [1] BY OVERNIGHT DELIVERY: By placing [ ] the original [ ] a true copy thereof enclosed in a sealed envelope addressed as shown herein below. I caused such envelopes to be delivered to the above listed parties on the next business day by an overnight delivery service. [ 1 ELECTRONIC TRANSMISSION: By electronically sending a true copy thereof] addressed as shown herein below. I am readily familiar with the business practices ofthis office. At the time ofelectronic transmission, I was at least eighteen years of age and not a party to this action. By use of a facsimile machine or above email address or onelegal.com, I served a copy of] the above-listed document(s) on the above-listed interested parties in the within action. The facsimile machine or use of the above email address or onelegal.com complied with the California Rules of Courts, and no error was reported back to me. Pursuant to California Rules of] Court, Rule 2.304, I caused to be printed a transmission record of the transmission. [] BY PERSONAL DELIVERY: I delivered the document(s) to the party(ies) as shown herein below: I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on February 7, 2018, at Orange, California. UH. JoshuZR. Engle Proof of Service 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Hue Nguyen v. Luc Sinh Nguyen, M.D., F.A.C.C., Inc. Case No.: 30-2017-00937286-CL-EN-CJC Service List 1. Hue Nguyen, Plaintiff a. Address: 4908 W.Fifth Street, Unit B, Santa Ana, CA 92703 2. Department of Industrial Relations, Division of Labor Standards Enforcement a. Address: 605 West Santa Ana Blvd., Rm. 625, Building 28, Santa Ana, CA 92701 b. Tel: 714-558-4910 C. Fax: 714-558-4728 Proof of Service