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Andrade v. Arby's Rest. Grp., Inc.

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
Dec 12, 2016
225 F. Supp. 3d 1115 (N.D. Cal. 2016)

Summary

applying the lodestar approach to determine reasonable attorney's fees in a case in which the defendant failed to defend itself

Summary of this case from Vogel v. Harbor Plaza Ctr., LLC

Opinion

Case No. 15–cv–03175 NC

12-12-2016

Miriam ANDRADE, Plaintiff, v. ARBY'S RESTAURANT GROUP, INC., Altamira Corporation, and Pedro Mota., Defendants.

Cary S. Kletter, Kletter + Nguyen Law LLP, Trung Thi Nguyen, Kletter Law Firm, San Mateo, CA, for Plaintiff. Shirley Shu, Hope A. Case, Sacks, Ricketts & Case LLP, Palo Alto, CA, for Defendants. Altamira Corporation, pro se.


Cary S. Kletter, Kletter + Nguyen Law LLP, Trung Thi Nguyen, Kletter Law Firm, San Mateo, CA, for Plaintiff.

Shirley Shu, Hope A. Case, Sacks, Ricketts & Case LLP, Palo Alto, CA, for Defendants.

Altamira Corporation, pro se.

ORDER GRANTING IN PART, DENYING IN PART, PLAINTIFF ANDRADE'S MOTION FOR DEFAULT JUDGMENT AGAINST ALTAMIRA CORPORATION

NATHANAEL M. COUSINS, United States Magistrate Judge

Plaintiff Miriam Andrade moves for default judgment against her former employer, Altamira Corporation. Dkt. No. 87. Andrade alleges various federal and state Labor Code violations by Altamira. She also alleges that Altamira should be liable for sexual harassment committed against her by her supervisor Pedro Mota. Based on Altamira's failure to defend itself against the motion, the Court finds default judgment against Altamira is proper.

The Court finds Altamira liable for Andrade's claims of (1) sexual harassment in violation of the California Fair Employment and Housing Act ("FEHA"), (2) sexual battery; (3) assault; (4) failure to pay wages in violation of the California Labor Code and federal Fair Labor Standards Act ("FLSA"), (5) liquidated damages under the FLSA and Labor Code, (6) failure to provide uninterrupted meal breaks in violation of the Labor Code and Industrial Welfare Commission ("IWC") wage orders, (7) waiting time penalties under the Labor Code, (8) failure to provide accurate wage statement under the Labor Code, (9) penalties for the underpayment of wages under the Labor Code, (10) violations of California Business and Professions Code § 17200 et seq. for unlawful business practices, (11) unlawful retaliation, and (12) wrongful terminated in violation of public policy. In light of these findings, the Court awards Andrade $72,962.63 in damages. Her attorneys, Kletter + Nguyen Law LLP are awarded $42,855.00 in attorneys' fees and $2,722.47 in costs.

I. BACKGROUND

Andrade worked for Altamira between February 2, 2014 and April 17, 2015, when she was terminated. Dkt. No. 101 ("Hearing Transcript") at 8; Dkt. No. 87–2 at 2 (showing Andrade's paystub for the pay period of February 1–15, 2014); but see Dkt. No. 16 at 4, 7 (First Amended Complaint, "FAC") (stating Andrade began working at Arby's on February 19, 2014). During this period, Andrade worked for an Arby's Restaurant owned by Altamira, in Sunnyvale, California. FAC at 2; Dkt. No. 18 at 2. The following chart illustrates Andrade's three positions and two promotions.

Dates Worked Position Hourly Rate February 2 — 28, 2014 Sandwich Preparer $8.50 March 1 — June 15, 2014 Sandwich Preparer $9.00 June 16, 2014 — January 15, 2015 Cashier $10.00 January 16 — April 17, 2015 Shift Lead $11.00

Dkt. No. 87–2; Hearing Transcript at 8–11, 25.

Andrade alleges that as a non-exempt employee, she was not paid at the statutorily mandated minimum wage for all hours worked, including overtime, and did not receive an uninterrupted 30–minute lunch break during each major fraction of five hours work. FAC at 4–5. Andrade was not paid for missed meal breaks. Id. at 5. Andrade also alleges that Altamira did not accurately record the hours she worked or breaks not taken. Id. at 6.

Andrade further alleges that Pedro Mota, her supervisor, subjected her to sexual harassment by asking her out on dates, making comments about her body, sending personal text messages, and trying to touch her. Id. at 20–21. According to Andrade, despite telling Mota to stop asking her out and texting her, he persisted. Id. at 21. She testified as to an incident in June 2014, in which Mota grabbed her from behind, hugged her while putting his hand on her stomach, and kissed her neck, pursued her as she attempted to escape, and then cornered her and continued grabbing and kissing her before she was able to flee. Id. at 25, 38–40. Andrade testified she reported this incident and the unwanted texts and stares to Miriam Riefkohl, a shift supervisor. Id. at 23. However, to Andrade's knowledge, no one investigated the incident, and she told no one else. Id. at 24. In July 2014, Altamira promoted Andrade to shift lead. Id. at 25.

On April 3, 2015, Andrade participated in sending a notice to Altamira that the employees intended to unionize and complaining of the "abusive work environment" caused by Manager Amandip Kaur's physical abuse of employees in the work place. FAC at 7. Andrade alleges Kaur "confronted her," asking if she had seen Kaur hit employees. Id. When Andrade answered she had, Kaur "started screaming at" her, telling her she would be terminated soon. Id. Altamira terminated Andrade on April 17, 2015. Id.

Andrade originally filed this case in Santa Clara County Superior Court pleading California state and federal law claims. Dkt No. 1. Then-defendant Arby's Restaurant Group removed this case. Id. The Court granted defendant Arby's motion to dismiss on the grounds that Andrade had not alleged sufficient facts that it was her employer at the time of the events. Dkt. No. 43. Though the Court gave Andrade leave to amend her complaint to plead such facts, Andrade did not.

In response to the Court's Order to Show Cause to prove the exhaustion of administrative remedies before filing claims alleging violations of the Fair Employment and Housing Act, dkt. no. 93, Andrade provided the Court with California Department of Fair Employment and Housing right to sue notices. Dkt. No. 95.

The operative complaint is the First Amended Complaint. FAC. Altamira and Pedro Mota answered the First Amended Complaint. Dkt. No. 18. Altamira, which is not currently represented by counsel before the Court, and Mota were previously represented by attorney Lynnette Ariathurai in this case, but the Court granted attorney Ariathurai's motion to withdraw as Altamira and Mota's attorney on December 1, 2015. Dkt. No. 48. Altamira was explicitly warned that if it did not retain counsel, it risked a default judgment. Id. at 1. The Court dismissed Pedro Mota, Andrade's former supervisor, with prejudice, from this case after he and Andrade reached a settlement on her claims against him. Dkt. No. 85. Altamira never appeared before the Court with new counsel.

Andrade moved for entry of default against Altamira on December 17, 2015. Dkt. No. 54. The Clerk of Court entered default against Altamira on December 29, 2015. Dkt. No. 58. Andrade moved for default judgment on August 1, 2016. Dkt. No. 87. The Court held a hearing on the motion for default judgment on September 15, 2016. Hearing Transcript. Andrade testified as to her employment with Altamira and claims for relief at that hearing. Id. She then filed a post-hearing brief, her Proposed Findings of Law and Findings of Fact in Support of Default Judgment. Dkt. No. 102. Andrade's attorney, Cary Kletter, presented as exhibits: (1) Andrade's paystubs; (2) the Declaration of Pedro Mota supporting some of Andrade's claims; (3) the letter signed by Altamira's employees demanding better treatment from management; (4) Andrade's right-to-sue notices received from the California Department of Fair Employment and Housing; (5) the First Amended Complaint; (6) Sunnyvale Ordinance No. 3078–16 raising the minimum wage to $10.30 on January 1, 2015; (7) the Laffey Matrix detailing attorneys' fees; (8) an Asset Search of Altamira Corporation; (9) a manta.com search of Altamira's assets; (10) a breakdown of hours worked by Andrade's attorneys; and (11) a breakdown of costs incurred by Andrade's attorneys throughout the lawsuit. Dkt. No. 102–1.

Andrade, Arby's, Mota, and Altamira consented to the jurisdiction of a magistrate judge. Dkt. Nos. 5, 6, 13, 24.

II. LEGAL STANDARD

Default may be entered against a party who fails to plead or otherwise defend an action and against whom a judgment for affirmative relief is sought. Fed. R. Civ. P. 55(a). After entry of default, the Court has discretion to grant default judgment on the merits of the case. Fed. R. Civ. P. 55(b) ; Aldabe v. Aldabe , 616 F.2d 1089, 1092 (9th Cir. 1980). In deciding whether to grant default judgment, the Court considers the following factors: (1) the possibility of prejudice to the plaintiff; (2) the merits of the plaintiff's substantive claim; (3) the sufficiency of the complaint; (4) the sum of money at stake in the action; (5) the possibility of a dispute concerning material facts; (6) whether the default was due to excusable neglect; and (7) the strong policy favoring decisions on the merits. Eitel v. McCool , 782 F.2d 1470, 1471–72 (9th Cir. 1986). The factual allegations of the complaint, except those concerning damages, are deemed admitted by the non-responding parties. Shanghai Automation Instrument Co. v. Kuei , 194 F.Supp.2d 995, 1010 (N.D. Cal. 2001) ; see also Geddes v. United Fin. Grp. , 559 F.2d 557, 560 (9th Cir. 1977) ("[t]he general rule of law is that upon default the factual allegations of the complaint, except those relating to the amount of damages, will be taken as true").

III. DISCUSSION

A. Jurisdiction and Service of Process

When presented with a motion for default judgment, the Court has "an affirmative duty to look into its jurisdiction over both the subject matter and the parties." In re Tuli , 172 F.3d 707, 712 (9th Cir. 1999). Also, the Court may only enter default judgment against a minor or incompetent person if represented by a general guardian, conservator, or other like fiduciary who has appeared. Fed. R. Civ. P. 55(b)(2).

Here, Andrade seeks relief under federal and state law, so subject matter jurisdiction is appropriate. 28 U.S.C. § 1331. The Court has supplemental jurisdiction over Andrade's related state law claims under 28 U.S.C. § 1367. Defendant Altamira Corporation is neither a minor nor an incompetent person. Fed. R. Civ. P. 55(b)(2).Altamira participated in this litigation until attorney Ariathurai's motion to withdraw as counsel was granted on December 1, 2015. Dkt. No. 48. Prior to the withdrawal, Altamira consented to the jurisdiction of the Court and answered Andrade's complaint, demonstrating that Altamira had notice of Andrade's complaints against it. Dkt. Nos. 18, 24. Andrade served Altamira with a copy of the motion for default judgment and supporting documents by First Class Mail, and provided proof of service. Dkt. No. 87–8. The Court is satisfied that jurisdiction is appropriate, Altamira was on notice of Andrade's claims, and that the service of process was completed.

B. Default Judgment

1. Given Altamira's Failure to Defend Itself, Andrade Would Be Prejudiced If She Were Denied Any and All Relief.

Andrade argues denial of the motion for default judgment would prejudice her because she would be deprived of the opportunity to see her harms redressed, as Altamira has refused to participate in this litigation. Dkt. No. 87 at 8. The Court agrees with Andrade, and finds—given Altamira's refusal to participate in this litigation or respond to the Court's warnings—to deny Andrade relief would be fundamentally unfair.

2. Merits and Sufficiency of the Complaint

Under the second and third Eitel factors, in deciding whether to grant default judgment, the Court must examine the merits of Andrade's substantive claims and the sufficiency of the complaint. Eitel , 782 F.2d at 1471–72. At this stage, the Court takes "the well-pleaded factual allegations" in the complaint as true; however, the "defendant is not held to admit facts that are not well-pleaded or to admit conclusions of law." DIRECTV, Inc. v Hoa Huynh , 503 F.3d 847, 854 (9th Cir. 2007). "[N]ecessary facts not contained in the pleadings, and claims which are legally insufficient, are not established by default." Cripps v. Life Ins. Co. of No. America , 980 F.2d 1261, 1267 (9th Cir. 1992).

The motion seeks default judgment on fifteen claims: (1) sexual harassment in violation of FEHA; (2) sexual battery; (3) assault; (4) failure to prevent harassment; (5) failure to pay wages under the FLSA; (6) failure to pay wages in violation of the California Labor Code; (7) liquidated damages under Labor Code § 1194.2 and the FLSA; (8) failure to provide meal breaks; (9) waiting time penalties; (10) penalties under Labor Code §§ 201 and 210 ; (11) failure to provide accurate wage statements; (12) civil penalties under Labor Code § 558 ; (13) Unlawful, Unfair and Fraudulent Business Practices in Violation of California Business and Professions Code §§ 17200 and 17203 ; (14) unlawful retaliation; and (15) wrongful termination in violation of public policy.

The Court notes Andrade withdrew claims for violations of Title VII of the Civil Rights Act of 1964, non-sexual battery, failure to provide meal breaks, violation of the California Labor Code's Private Attorneys General Act of 2004, negligent training, and violations of the Ralph Civil Rights Act. Dkt. No. 102 at 5.

a. Claim 1: Andrade Sufficiently Pled Sexual Harassment Under FEHA.

"FEHA recognizes two theories of liability for sexual harassment claims ... quid pro quo harassment, where a term of employment is conditioned upon submission to unwelcome sexual advances ... and hostile work environment, where the harassment is sufficiently pervasive so as to alter the conditions of employment and create an abusive work environment." Hughes v. Pair , 46 Cal.4th 1035, 1043, 95 Cal.Rptr.3d 636, 209 P.3d 963 (2009) (internal citations, quotations marks, and brackets omitted). The first of these theories is inapplicable here, and the second "is actionable only when the harassing behavior is pervasive or severe. " Id. (citing Miller v. Dep't of Corr. , 36 Cal.4th 446, 462, 30 Cal.Rptr.3d 797, 115 P.3d 77 (2005) (employee claiming "a hostile work environment must demonstrate that the conduct complained of was severe enough or sufficiently pervasive to alter the conditions of employment and create a work environment that qualifies as hostile or abusive to employees because of their sex")).

Under FEHA, harassment of an employee on the basis of sex is unlawful where "the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action." Cal. Gov't Code § 12940(j)(1). Where a supervisor is the harasser, the employer is strictly liable. State Dep't of Health Servs. v. Superior Court , 31 Cal.4th 1026, 1042, 6 Cal.Rptr.3d 441, 79 P.3d 556 (2003) ; McKinzy v. Nat'l R.R. Passenger Corp. , 836 F.Supp.2d 1014, 1024 (N.D. Cal. 2011).

Andrade alleged Pedro Mota, her supervisor, directed unwelcome "sexually inappropriate conduct" towards her, which constituted an ongoing pattern of conduct. FAC at 7. Andrade testified that Mota asked her out on dates verbally and via text about three times every time they worked together. Hearing Transcript at 20–21. Andrade testified that she would turn him down and tell him she was married with children, and ask him to stop bothering her. Id. at 21. However, Mota persisted. Id. According to Andrade, this conduct culminated in Mota's grabbing and kissing Andrade against her will. Id. at 22–23. Based on these facts, the Court concludes Mota's conduct was both pervasive and severe so as to alter the conditions of Andrade's employment, making such conduct actionable. Hughes , 46 Cal.4th at 1043, 95 Cal.Rptr.3d 636, 209 P.3d 963 ; Miller , 36 Cal.4th at 462, 30 Cal.Rptr.3d 797, 115 P.3d 77.

Mota declared he supervised Andrade during her employment with Altamira. Dkt. No. 87–5 at 3. These allegations make Altamira, Mota's employer, strictly liable for Andrade's sexual harassment. State Dep't of Health Servs. , 31 Cal.4th at 1042, 6 Cal.Rptr.3d 441, 79 P.3d 556. Andrade testified she complained to a supervisor about Mota's conduct, but nothing was done to investigate or discipline him. Hearing Transcript at 23–24. Based on the allegations, declaration, and testimony, the Court finds Andrade demonstrated the merits and sufficiency of her FEHA sexual harassment claim against Altamira.

b. Claim 2: Andrade Sufficiently Alleged She Suffered a Sexual Battery and that Altamira Ratified the Battery.

California Civil Code § 1708.5(a) provides that a person commits sexual battery when he or she:

(1) Acts with the intent to cause a harmful or offensive contact with an intimate part of another, and a sexually offensive contact with that person directly or indirectly results.

(2) Acts with the intent to cause a harmful or offensive contact with another by use of his or her intimate part, and a sexually offensive contact with that person directly or indirectly results.

(3) Acts to cause an imminent apprehension of the conduct described in paragraph (1) or (2), and a sexually offensive contact with that person directly or indirectly results.

Cal. Civ. Code § 1708.5(a)(1)–(3). "Intimate part" means "the sexual organ, anus, groin, or buttocks of any person, or the breast of a female." § 1708.5(d). Offensive contact is "contact that offends a reasonable sense of personal dignity." § 1708.5(f). To establish a claim for sexual battery, a plaintiff must show she did not consent to the touching; and that she was harmed or offended by the aggressor's conduct. California Civil Jury Instructions 1306.

Here, Andrade provided facts and testimony regarding the incident in which Mota grabbed her from behind, kissed her neck, and pursued her when she tried to escape. FAC at 5; Hearing Transcript at 22–23, 38–39. Liability under § 1708.5(a)(3) is established for purposes of default judgment by the facts alleged. Andrade testified Mota's aggressions during that encounter made her believe "he was going to make [her] do something with him," and that after the incident she "ran outside trembling and afraid. [Andrade] immediately got into her car and drove home crying." FAC at 5; Hearing Transcript at 23. Mota did not touch her in an "intimate part" under § 1708.5, but he did cause her to be in "imminent apprehension" he would. § 1708.5(a)(3). Further, forcibly grabbing Andrade's stomach and kissing her neck constitutes sexually offensive contact that "offends a reasonable sense of personal dignity." § 1708.5(f). Andrade makes clear she did not consent to Mota's advances, and that she was harmed by his conduct. Andrade alleges Mota's conduct caused her sadness, fear that such an episode would recur, and insomnia, among other things. Hearing Transcript at 40–41. The Court next considers if Altamira "ratified" Mota's actions such that Altamira would be liable for sexual battery.

Corporate employer ratification "may be established by any circumstantial or direct evidence demonstrating adoption or approval of the employee's actions by the corporate agent, which may be inferred from a failure by the employer to investigate an employee's acts once the employer has become aware of them." Achal v. Gate Gourmet, Inc. , 114 F.Supp.3d 781, 815 (N.D. Cal. 2015) (citing Fisher v. San Pedro Peninsula Hosp. , 214 Cal.App.3d 590, 622, 262 Cal.Rptr. 842 (1989) (holding that despite sufficiently pled sexual harassment by a physician, plaintiff must also sufficiently plead employer ratified acts to plead prayer for punitive damages against employer)). "If the employer, after knowledge of or opportunity to learn of the agent's misconduct, continues the wrongdoer in service, the employer may become an abettor and may make himself liable in punitive damages." Murillo v. Rite Stuff Foods, Inc. , 65 Cal.App.4th 833, 852, 77 Cal.Rptr.2d 12 (1998) (quoting McChristian v. Popkin , 75 Cal.App.2d 249, 256, 171 P.2d 85 (1946) ). In Murillo , the appellate court reversed a grant of summary judgment where plaintiff, the victim of sexual harassment by her immediate supervisor, complained to her manager twice about the conduct, but the situation was neither investigated nor remediated. Id. at 839, 852, 77 Cal.Rptr.2d 12 ; see also Shoopman v. Pac. Greyhound Lines , 169 Cal.App.2d 848, 856, 338 P.2d 3 (1959) (Greyhound aware of agent's conduct toward plaintiff, but retained agent without any indication of discipline or redress to plaintiff). Ratification is generally a factual question. Ventura v. ABM Indus. Inc. , 212 Cal.App.4th 258, 272, 150 Cal.Rptr.3d 861 (2012).

For purposes of this motion, the Court finds Altamira "ratified" Mota's conduct. Andrade sufficiently alleges she not only suffered a sexual battery, but also complained of Mota's conduct to supervisor and shift leader Riefkohl. Dkt. No. 102 at 8 (citing Hearing Transcript at 23–24). As noted above, ratification is a factual question. Ventura , 212 Cal.App.4th at 272, 150 Cal.Rptr.3d 861. Though Andrade did not complain to another person at Altamira, her complaint and testimony suffice to find that Altamira knew of or had the opportunity to learn of Mota's conduct. Murillo , 65 Cal.App.4th at 852, 77 Cal.Rptr.2d 12. Thus, the Court find Altamira ratified Mota's sexual battery against Andrade.

c. Claim 3: Andrade Sufficiently Alleged She Suffered An Assault, and that Altamira Ratified Mota's Conduct.

To establish a claim for assault, a plaintiff must show that "(1) the defendant threatened to touch the plaintiff in a harmful or offensive manner; (2) it reasonably appeared to the plaintiff that the defendant was about to carry out the threat; (3) the plaintiff did not consent to the defendant's conduct; (4) the plaintiff was harmed; and (5) the defendant's conduct was a substantial factor in causing the plaintiff's harm." Avina v. United States , 681 F.3d 1127, 1130 (9th Cir. 2012) (citations omitted).

Here, Andrade sufficiently alleges Mota committed an assault against her when he perpetrated the alleged sexual battery. Andrade alleged she was afraid of Mota because it appeared to her that Mota would "abuse" her, and based on Andrade's testimony she did not consent to Mota's conduct. Hearing Transcript at 24. Andrade was harmed by Mota's conduct, and Mota was a substantial factor in her harm. Andrade alleges Altamira ratified Mota's acts against her, and Mota's acts were committed "during the course and scope of employment." FAC at 10. The Court found Altamira ratified Mota's sexual battery against Andrade because, after Andrade's communication with Riefkohl, Altamira either knew or has the opportunity to know of Mota's misconduct against its employees. Murillo , 65 Cal.App.4th at 852, 77 Cal.Rptr.2d 12. The same reasoning applies here for finding Altamira ratified Mota's assault on Andrade: Riefkohl's knowledge of the assault and battery create liability for Altamira.

d. Claim 4: Andrade Has Not Sufficiently Pled Failure to Prevent Harassment.

California Government Code § 12940(k) makes unlawful an employer's failure "to take all reasonable steps necessary to prevent discrimination and harassment from occurring." To state a claim for failure to prevent harassment, a plaintiff must show: (1) "plaintiff was subjected to discrimination, harassment or retaliation;" (2) "defendant failed to take all reasonable steps to prevent discrimination, harassment or retaliation;" and (3) "this failure caused plaintiff to suffer injury, damage, loss or harm." Lelaind v. City & Cty. of San Francisco , 576 F.Supp.2d 1079, 1103 (N.D. Cal. 2008). "The causation element of a section 12940(k) claim requires an employee show that the discriminatory conduct was a 'substantial factor' in causing his harm." Achal , 114 F.Supp.3d at 804. Further, this section applies to " 'an employer who knew or should have known of discrimination or harassment' and 'fail[s] to take prompt remedial action.' " Alejandro v. ST Micro Elecs., Inc , 129 F.Supp.3d 898, 913 (N.D. Cal. 2015) (quoting Vierria v. Cal. Highway Patrol , 644 F.Supp.2d 1219, 1245 (E.D. Cal. 2009) ).

By alleging she was sexually harassed by Mota, her supervisor, Andrade pleads the first element of Lelaind, 576 F.Supp.2d at 1103 ; FAC at 11. Andrade also alleges that at no time during her employment did she witness any managers participate in sexual harassment prevention training or learn that such training was offered. Hearing Transcript at 26. This lack of training, Andrade contends, was a proximate cause for the injuries she suffered from Mota's conduct. FAC at 12. However, Andrade provides no facts that persuade the Court that had Mota been required to participate in sexual harassment prevention training, Andrade's harassment would not have occurred. Thus, Andrade has not met the causation element of § 12940(k) claim; namely, that Andrade failed to show that Altamira's failure to train was "substantial factor" in causing the harassment. Achal , 114 F.Supp.3d at 804. Andrade did not sufficiently plead failure to prevent harassment.

e. Claim 5: Andrade Sufficiently Pled Altamira Failed to Pay Wages Under the FLSA, 29 U.S.C. § 207.

29 U.S.C. § 207(a)(1) provides that an employer shall not employ any employee working more than 40 hours per week unless the employee receives one and one-half times their regular rate of pay for the excess hours worked over 40 hours. Andrade alleges she worked overtime while employed by Altamira. FAC at 12; Dkt. No. 87–5 (Mota was aware of at least one occasion in which Andrade worked more than 10 hours in one day). Further, based on paystubs provided, Altamira did violate 29 U.S.C. § 207 by not paying her for all overtime worked. Dkt. No. 87–1.

f. Claim 6: Andrade Sufficiently Pled Altamira Failed to Pay Her Wages in Violation of Cal. Labor Code §§ 510, 1194.

Employees receiving less than the legal minimum wage or overtime compensation are "entitled to recover ... the unpaid balance of the full amount of this minimum wage or overtime compensation, including interest thereon, reasonable attorney's fees, and costs of suit." Cal. Lab. Code § 1194. Similarly, § 510(a) states: "work in excess of eight hours in one workday and any work in excess of 40 hours in any one workweek" must be compensated at a rate of at least one and one-half times the employee's regular rate of pay.

Here, Andrade demonstrated she was not paid minimum wage between January 1–15, 2015. During that pay period, she was paid $10.00 per hour where the minimum wage had been raised to $10.30 on January 1. Dkt. No. 102–1 at 24, 78 (copy of Ordinance No. 3078–16). Thus, Andrade sufficiently pled a violation of § 1194. Though Andrade does not have the same level of proof for her claims for overtime, she pled in the First Amended Complaint that she "typically worked more than 8 hours per day and 40 hours per week during the statutory period without being properly compensated for all hours," and that she "was not paid wages for all hours she worked." In addition, at the hearing on this motion, Andrade testified she worked more than 40 hours per week "almost every two-week period," and that she believed Manager Kaur, who reviewed hours worked, knew she worked overtime. Hearing Transcript at 13. Lastly, Andrade testified that Kaur "always" instructed her to perform labor after she had clocked out. Id. at 16. Accordingly, Andrade pled sufficient facts to conclude for purposes of this motion that she was both paid less than minimum wage for the stated period and that she worked, but was not paid overtime.

g. Claim 7: Andrade Is Owed Limited Liquidated Damages Under Cal. Labor Code § 1194.2 and the FLSA.

California Labor Code § 1194.2 entitles employees bringing an action under § 1194"to recover liquidated damages in an amount equal to the wages unlawfully unpaid and interest thereon." Though § 1194.2 states liquidated damages may not be recovered for failure to pay overtime, in Sillah v. Command Int'l Sec. Servs. , 154 F.Supp.3d 891 (N.D. Cal. 2015), the court found plaintiffs suing for failure to pay overtime could recover liquidated damages under § 1194.2if they also showed they were paid less than minimum wage. Citing Cruz v. Quang , No. 13–cv–00181 VC, 2015 WL 348869, at *6 (N.D. Cal. Jan. 23, 2015). Under federal law, an employer violating 29 U.S.C. § 207 is liable to the affected employee not only for the unpaid minimum wages or overtime, but also "in an additional equal amount" in liquidated damages. 29 U.S.C. § 216(b).

Andrade was not paid for all hours worked under § 1194, and for at least one pay period, she was not paid minimum wage. However, given that Andrade was only paid less than minimum wage for one pay period, the Court finds it would result in a windfall to her to impose liquidated damages under § 1194.2 using Sillah 's rationale. However, 29 U.S.C. § 207(b) does not limit liquidated damages for unpaid overtime, and so liquidated damages may be paid for overtime worked, whether or not Andrade was paid minimum wage.

h. Claim 8: Andrade Sufficiently Pled that Altamira Failed to Provide Meal Breaks in Violation of Cal. Labor Code §§ 226.7, 512 and Industrial Welfare Commission Wage Orders.

Employers may not require employees to work during meal periods pursuant to an IWC wage order. Cal. Lab. Code § 226.7(b). IWC Wage Order 5–2001(11)(A) prohibits employers from having employees work longer than five hours without a meal period of at least 30 minutes, except when the total hours worked does not exceed six hours total for the workday. Employees must be "relieved of all duty" during the meal, otherwise employees will be considered to be "on duty" during the meal. Id . Also, § 226.7(c) provides that where meal periods are not provided, the employer must pay the employee "one additional hour of pay" at the employee's regular rate of pay for each workday the meal was not provided.

Andrade testified she never received an uninterrupted meal break because she supervised newly-hired personnel and "was in charge of the money." Hearing Transcript at 13–14. Indeed, Andrade testified that Manager Kaur told her she could not leave the building during meal breaks. Id. at 14. Also, Andrade provided the Court proof she was not paid an additional hour of pay when uninterrupted meal breaks were owed, but not provided. Thus, Andrade sufficiently alleged and provided evidence that she did not receive the uninterrupted meal breaks she was owed. FAC at 15.

i. Claim 9: Andrade Sufficiently Pled that She is Eligible for Waiting Time Penalties Under Cal. Labor Code §§ 201, 203.

California Labor Code § 201(a) requires employers who discharge employees to pay the employee the wages "due and payable immediately." Where violations of § 201 exist, § 203 provides that the employee's wages continue as a penalty at the normal rate of pay from the due date to the date paid, not to exceed 30 days. § 203(a).

Here, because Andrade sufficiently alleged she was not paid for meal breaks, the minimum wage, and overtime during her employment, and because she was not paid for additional hours at the time she was terminated, she is owed waiting time penalties under § 203(a). FAC at 16; Hearing Transcript at 32 (Andrade denying she was paid all wages owed to her, "including wage or off-the-clock missed meal break wages, and unpaid minimum wages, and unpaid overtime" in her final check immediately after termination). j. Claim 10: Andrade Is Not Entitled to Civil Penalties Under Cal. Labor Code § 210 .

California Labor Code § 204(a) requires employers to pay employees on a bimonthly basis on a designated payday. Labor Code § 210(a) provides the following civil penalties for failure to comply with § 204 : $100 for each initial violation for each failure to pay each employee and $200 for each subsequent violation, including an additional 25% of the amount withheld. These civil penalties are recovered by the California Labor Commissioner on behalf of the people of the State of California "as part of a hearing held to recover unpaid wages and penalties." § 210(b). There exists no private right of action for violations of § 210, see Johnson v. Hewlett–Packard Co. , 809 F.Supp.2d 1114, 1136 (N.D. Cal. 2011), and Andrade has provided no figures as to the amount withheld. Therefore, though Andrade pled underpayment, the Court cannot provide relief under § 210. FAC at 16–17.

k. Claim 11: Andrade Sufficiently Pled Altamira Failed to Provide Her With Accurate Wage Statements, Violating Cal. Labor Code § 226(a) .

California Labor Code § 226(a) requires employers to provide employees with accurate itemized statements in writing showing, among other things, their gross and net wages earned, total hours worked, all deductions, the dates included in the pay period, and the identifying information of the employee and employer, and "all applicable hourly rates in effect during the pay period and the corresponding number of hours worked at each hourly rate by the employee." These statements must be provided on a semimonthly basis or at the time of each wage payment. Id. Section 226(e) allows employees "suffering injury as a result of a knowing and intentional failure by an employer" to abide by § 226(a) to recover the greater of all actual damages, or $50 for an initial violation and $100 per employee for each violation in a subsequent pay period, not to exceed $4,000 total.

Here, Andrade pled her paystubs were inaccurate because she was required by Kaur to work after clocking out of her shift and did not receive uninterrupted meal breaks. Hearing Transcript at 12–16. Andrade also testified Manager Kaur knew she was working more than 40 hours almost every week because "she was in charge of reviewing the hours that every employee worked." Id. at 13. This claim is sufficient to show for purposes of this motion that Altamira knowingly and intentionally provided Andrade with inaccurate wage statements to her detriment. Cal. Lab. Code § 226(e). Thus, the Court finds Altamira failed to provide Andrade with accurate wage statements, violating § 226(a).

l. Claim 12: Andrade is Eligible for Civil Penalties Under Cal. Labor Code § 558 .

California Labor Code § 558 provides civil penalties against employers payable to the affected employee for labor code or IWC wage order violations in the amount of $50 for initial violations to underpaid employees "for each pay period for which the employee was underpaid" in addition to the amount of unpaid wages. Second, for each subsequent violation, a penalty of $100 for each underpaid employee will be levied per underpaid pay period, in addition to unpaid wages. Id.

Here, Andrade has pled violations of IWC Wage Orders and Labor Code §§ 201, 203, 204, 226.7, 510, 512 and 1194. FAC at 18. Accordingly, Andrade is eligible for civil penalties under Cal. Labor Code § 558. m. Claim 13: Though Andrade Sufficiently Pled Altamira was Engaged in Unlawful Business Practices in Violation of Cal. Business and Professions Code §§ 17200, 17203, She Has Not Shown She Would Be Entitled to Relief for Such Violations.

Unfair competition is "any unlawful, unfair or fraudulent business act or practice." Cal. Bus. & Prof. Code § 17200. Here, Andrade is only pursuing damages for "unlawful" business practices. Dkt. No. 101 at 45. An unlawful business practice under § 17200 encompasses "anything that can properly be called a business practice and that at the same time is forbidden." Cel–Tech Commc'ns, Inc. v. Los Angeles Cellular Tel. Co. , 20 Cal.4th 163, 180, 83 Cal.Rptr.2d 548, 973 P.2d 527 (1999) (internal quotation marks omitted). Section 17200"borrows violations of other laws and treats them as unlawful practices," and makes those legal violations "independently actionable." Section 17203 allows for restitution to victims of unfair business practices and injunctions to prevent the complained-of conduct. However, to obtain injunctive relief under § 17203, a showing of threatened future harm or continuing violation is required;" no past events may be enjoined. People v. Toomey , 157 Cal.App.3d 1, 20, 203 Cal.Rptr. 642 (1984).

Here, Andrade argues the § 17200 claim is supported by Altamira's alleged violations of the FLSA and assorted Labor Code sections. FAC at 20–21. She requests restitution and an injunction against Altamira under § 17203, preventing it from continuing to engage in and profit from unlawful conduct. Id. at 22. Regarding restitution, it is less than clear from Andrade's representations what restitution she would be entitled to apart from her recovery under the above–discussed sections of the FLSA and California Labor Code. As to the injunction, Andrade has not alleged sufficient facts to satisfy the Court that there is a "threatened future harm or continuing violation" of the FLSA and Labor Code sections. This is not to say that such events are not transpiring, just that Andrade has failed to provide the Court with any allegations or evidence that Altamira's alleged malfeasance continues.

n. Claim 14: Andrade Sufficiently Pled Unlawful Retaliation.

Under FEHA, it is unlawful for an employer "to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part." Cal. Gov't Code § 12940(h). To state a claim for unlawful retaliation, a plaintiff must establish: "(1) she was engaged in protected activity; (2) defendant took an adverse employment action; and (3) a causal connection existed between plaintiff's protected activity and defendant's adverse employment action." Lelaind v. City & Cty. of San Francisco , 576 F.Supp.2d 1079, 1094 (N.D. Cal. 2008). To establish unlawful retaliation, the plaintiff must "establish that unlawful retaliation was a substantial factor motivating the adverse employment action." Yau v. Saint Francis Mem'l Hosp. , No. 13–cv–02558 DMR, 2015 WL 3639521, at *11 (N.D. Cal. June 11, 2015) (citing Harris v. City of Santa Monica , 56 Cal.4th 203, 225, 152 Cal.Rptr.3d 392, 294 P.3d 49 (2013) ) (internal quotation marks omitted).

Andrade contends Altamira retaliated against her "for having opposed, resisted and complained of the acts alleged herein. This retaliation is part of a pattern and practice of retaliation against employees who complain of unlawful acts by" Altamira. FAC at 22. Andrade argues her abrupt termination was caused by her signing a document demanding better treatment for employees and her telling Kaur she had seen her hit employees. Seeid. Andrade testified that after she confronted Kaur about her conduct and confirmed to Kaur she signed the document, she heard through co-workers that Kaur would fire her because of the confrontation. Hearing Transcript at 32.

These well-pled allegations suffice to establish a claim for unlawful retaliation. In signing a workers' rights letter and confronting her manager about conduct she personally witnessed, Andrade engaged in a protected activity. Lelaind , 576 F.Supp.2d at 1094. Second, Andrade's termination was an adverse employment action. Id. Lastly, there is circumstantial evidence, based on the rumors Andrade heard and the timing of her dismissal, which suggest, for purposes of this motion, that there was a strong causal connection between her protests and termination. Id. ; Yau , 2015 WL 3639521, at *11.

o. Claim 15: Andrade Sufficiently Pled She was Wrongfully Terminated in Violation of Public Policy.

An employee may sue in tort when the employer's termination of the employee "violates fundamental principles of public policy." Tameny v. Atl. Richfield Co. , 27 Cal.3d 167, 170, 164 Cal.Rptr. 839, 610 P.2d 1330 (1980). "The public policy must be (1) delineated in either constitutional or statutory provisions; (2) 'public' in the sense that it 'inures to the benefit of the public' rather than serving merely the interests of the individual; (3) well established at the time of discharge; and (4) substantial and fundamental." Freund v. Nycomed Amersham , 347 F.3d 752, 758 (9th Cir. 2003) (quoting City of Moorpark v. Superior Court , 18 Cal.4th 1143, 1159, 77 Cal.Rptr.2d 445, 959 P.2d 752 (1998) (internal quotation marks omitted)). The finder of fact should also determine whether discrimination "was a substantial motivating factor/reason" for the termination. Harris , 56 Cal.4th at 232, 152 Cal.Rptr.3d 392, 294 P.3d 49 (internal quotation marks omitted) (finding trial court erred in instructing jury in a mixed-motive termination case).

Andrade alleges her termination was in retaliation of her "complaints of an abusive work environment," unionization efforts, managerial physical abuse, sexual harassment and/or the failure to investigate complaints of sexual harassment" motivated her termination. Dkt. No. 102 at 20; but see FAC at 23 (In the FAC, Andrade alleges her termination "was in retaliation for her complaints of unlawful harassment" and as a result of Altamira's "failure to prevent further unlawful harassment"). Per Andrade, Altamira's alleged "conduct violates the Public Policy of the State of California as put forward in [FEHA], the California Constitution, the California Labor Code, and other statutes and provisions. FAC at 23. Andrade does not specify which provisions of FEHA, the California Constitution, or the Labor Code Altamira violated. However, based on Andrade's previous allegations, it is clear that one public policy violated was that against wrongful termination under FEHA, where Andrade has sufficiently pled her termination was retaliatory. Trop v. Sony Pictures Entm't Inc. , 129 Cal.App.4th 1133, 1144, 29 Cal.Rptr.3d 144 (2005) ("FEHA provisions may provide the policy basis for a claim for wrongful termination in violation of public policy"). This policy is for the benefit of the public, and it is well-established, and is both substantial and fundamental. Freund , 347 F.3d at 758. Accordingly, the Court finds Andrade sufficiently alleged she was terminated in violation of public policy.

3. Remaining Eitel Factors

After considering the sufficiency and merits of the complaint, the Court must also consider the sum of money at stake in the action, the possibility of a dispute concerning material facts, whether the default was due to excusable neglect, and the strong policy favoring decisions on the merits. Eitel , 782 F.2d at 1471–72.

Andrade requests $275,804.92 as well as an award of prejudgment interest. Dkt. No. 87 at 10. This is a strong sum of money, but based on the number of claims, Andrade's dropping of claims, that number is a ceiling the Court will not reach.

As for the possibility of there being a dispute regarding material facts, the Court notes Altamira could dispute the facts as Andrade presents them. However, Altamira was given ample opportunity to respond to this motion. Altamira has not appeared to defend itself from this motion. Because of the need for finality in this case, and Altamira's refusal to participate in the judicial process since attorney Ariathurai's withdrawal as counsel, the danger of a future dispute as to material facts is outweighed by the need to enter judgment.

For the same reason, the Court finds that Altamira's failure to appear repeatedly regarding this motion was not excusable neglect.

Lastly, although federal policy generally favors decision on the merits, Federal Rule of Civil Procedure 55(b) allows entry of default judgment in situations where the defendant refuses to participate in the litigation.

C. Damages

While the Court accepts the well-pled allegations in the complaint as true at the default judgment stage, the Court has discretion to award damages as appropriate. Geddes , 559 F.2d at 560. Andrade originally requested $275,804.92 in damages against Altamira. Dkt. No. 87 at 8. The Court finds appropriates damages of $47,962.63. In addition, the Court awards Kletter + Nguyen Law LLP $47,685.00 in attorneys' fees and $2,722.47 in costs.

1. Statutory Damages

Andrade requests statutory damages in the following amounts for FLSA and California Labor Code-related damages:

• $6,609.20 for violations of Labor Code § 226.7(b) for failure to provide meal breaks;

• $24.63 for unpaid minimum wages;

• $364.07 for violations of the FLSA, Labor Code, and IWC wage orders for unpaid minimum wages;

• $388.70 in liquidated damages under the FLSA and Labor Code § 1194.2 ;

• $2,750.00 for violations of Labor Code § 226(e) for failure to provide accurate wage statements;

• $2,600.00 under Labor Code § 203 for waiting time penalties;

• $15,400.00 in lost wages–"back pay (i.e. $11.00 per hour for 40 hours per week since her termination and unlawful retaliation)"; and

• $8,240.00 in lost wages for front pay.

Dkt. Nos. 87 at 9–10, 87–1.

a. Failure to Provide Meal Breaks

Andrade sufficiently pled she was never allowed to take uninterrupted meal breaks while an Altamira employee. In a declaration by attorney Cary Kletter, he declares the amount requested is based upon two additional hours of pay for each missed meal break and each missed rest break between February 19, 2014 to April 17, 2015. The declaration bases this amount on a six-day work week. Dkt. No. 87–1 at 3.

Andrade dropped her part of her ninth claim for failure to provide rest breaks, but kept the claim for a failure to provide meal breaks. Dkt. No. 102 at 5–6. The Court must adjust the amount requested. Between February 19 and February 28, 2014, Andrade was paid $8.50 an hour. For that period, she requested $102.00 for missed meal and break periods. Because Andrade dropped her claim for missed breaks, the Court splits the request for this period in half, which awards Andrade $51.00, for six days of missed meal breaks. The Court does the same with damages for the period of March 1 and June 15, 2014, while Andrade's rate of pay was $9.00 per hour, and awards her $756.00 for missed meal breaks during that time. Between June 16 and December 31, 2014, Andrade was paid $10.00 an hour. On the same basis, the Court finds half of Andrade's request appropriate: $1,560.00. Between January 1 and 15, 2015, Andrade was paid $10.30 an hour. The Court likewise awards her half: $123.60. Lastly, between January 16 and April 17, 2015, Andrade's rate of pay was $11.00 an hour. The Court awards Andrade $ 814.00. In total, the Court awards Andrade half of her request for violations of Cal. Labor Code § 226.7(b) : $3,304.60 ($51.00 + $756.00 + $1,560.00 + $123.60 + $814.00).

b. Unpaid Minimum Wages

Between January 1 to 15, 2015, Andrade was paid under minimum wage. According to her paystub, during that pay period she worked 82.1 hours, and was underpaid by 30 cents per hour, where the minimum wage was $10.30 per hour, but she was paid $10.00. Dkt. No. 102–1 at 24. The Court finds Andrade entitled to $24.63 (82.1 x $0.30) in unpaid minimum wages.

c. Violations of the FLSA, Cal. Labor Code, and IWC Wage Orders

Andrade alleges she is owed $364.07 for violations of the FLSA, Labor Code, and IWC wage orders for unpaid minimum overtime wages. Dkt. No. 87–1 at 3–4. Based on the Court's calculations taking into account the paystub records, the Court finds Andrade entitled to $359.07 in unpaid overtime wages, which takes into account all hours above 80 worked in a pay period and calculates the extra amount of overtime due to Andrade. See Appendix 1 (providing the Court's calculations).

d. Liquidated Damages Under the FLSA and Cal. Labor Code § 1194.2

Andrade alleges her damages under the FLSA and Labor Code § 1194.2 are the sum of the unpaid minimum wages and unpaid overtime wages due. Dkt. No. 87–1 at 5. However, based on the discussion above regarding liquidated damages, under the California Labor Code, she is only entitled to liquidated damages for the period she was paid less than minimum wage. Therefore, she is entitled to $24.63 in liquidated damages under Labor Code § 1194.2. However, under the FLSA, 29 U.S.C. § 216(b), liquidated damages are due for unpaid minimum wages and overtime. Using the Court's calculations, under the FLSA, that amount is $383.70 ($24.63 + 359.07). The Court notes that Labor Code § 1194.2(a) contemplates awarding interest on the liquidated damages, $24.63. However, Andrade has provided no calculations for the Court to determine the interest due. The Court declines to speculate on an amount. Accordingly, under the FLSA and Labor Code, Andrade is owed $408.33 total in liquidated damages

e. Violations of Cal. Labor Code § 226(e) for Failure to Provide Accurate Wage Statements

Andrade alleges $2,750.00 in damages for its failure to provide accurate wage statements. Dkt. No. 87–1 at 5. Considering Andrade pled she was underpaid the entire time she worked with Altamira, due, among other things, to not being paid overtime and for missed meal breaks, the amount Andrade requests is correct. For a first violation of § 226(e)(1), the employer is fined $50, and for each subsequent violation $100, capping at $4,000. Andrade has 29 paystubs from Altamira, meaning she worked for Altamira for 29 pay periods. Dkt. No. 87–2. For the initial violation, Altamira is fined $50, and for each of the 28 subsequent pay periods $100, equaling a $2,850.00 fine.

Though Andrade's last paystub states that the relevant pay period is March 1–15, 2015, the pay date on the paystub is April 17, 2015, the day Andrade was terminated. Because Andrade presented the Court with her paystub for March 1–15, 2015, see dkt. no. 87–2 at 10, which reflects different hours worked, the Court considers that the paystub dated April 17, 2015, was meant to compensate Andrade for the pay period of April 1–15, 2015. See id. at 11 (where the later paystub provides information regarding keeping that paystub for Andrade's future employment, and referring to Altamira as Andrade's former employer).

f. Violations of Cal. Labor Code § 203 for Waiting Time Penalties

Penalties accrue for purposes of Cal. Labor Code § 203"not only on the days that the employee might have worked, but also on nonworkdays." Mamika v. Barca , 68 Cal.App.4th 487, 492, 80 Cal.Rptr.2d 175 (1998), as modified (Dec. 11, 1998). This means that under § 203, damages accrue for 30 calendar days straight. Id., Cal. Lab. Code § 203.

The challenge in calculating this amount here is twofold. First, Andrade showed for purposes of this motion that she always worked more hours than her paystubs reflect, making a true average amount difficult to calculate given the amount of overtime worked; and second, Andrade was given a raise three times in the space of one year. Dkt. No. 87–2. As a result, dividing the amount she made in the year before she was terminated by 52 weeks, to then determine the properly hourly rate, as in Mamika , would not properly compensate Andrade for what she would have lost in the 30 days after she was terminated. Seeid. At the time she was terminated, Andrade made $11 an hour. Dkt. No. 87–2 at 11. Based on her paystubs alone, and using the Mamika framework, Andrade would only be entitled to $9.25 an hour. See Appendix 1. In addition, based on her paystubs, Andrade worked an average of 36.69 hours a week, where she has testified she always worked through meal breaks and off the clock. See id. Accordingly, the Court finds that Andrade's wage should be calculated at $11 and she should be credited as working full-time (40 hours per week), for purposes of the waiting time penalty. The amount Andrade is due is therefore: $2,640.00 ($11 x 8 hours per day x 30 days).

In Mamika, the Court agreed with the plaintiff's calculation, where "[the plaintiff] calculated this amount by dividing his annual salary of $60,000 by 52 weeks ($1,153.85), then dividing by 40 hours to obtain an hourly rate of $28.84, and multiplying by 8, the number of hours plaintiff testified he worked each day. Rounded, this amount is $230.77 per day. Multiplied by 30 days, the penalty amount totals $6,923.10." 68 Cal.App.4th at 490, 80 Cal.Rptr.2d 175.

g. Backpay and Frontpay

Andrade argues she is owed back pay and front pay as a result of her wrongful termination. Dkt. No. 102 at 20.

In a civil case alleging violations of FEHA, a court "may grant ... any relief a court is empowered to grant in a civil action ... in addition to any other relief that, in the judgment of the court, will effectuate the purpose of this part." Cal. Gov't Code § 12965. Among those remedies are backpay. Judicial Council Of California Civil Jury Instruction 2512 ; see Harris , 56 Cal.4th at 232–33, 152 Cal.Rptr.3d 392, 294 P.3d 49 (where employer had discriminatory and non–discriminatory reasons for terminating an employee, backpay is not appropriate if the employer would have made the same decision absent a discriminatory motive). "[T]he measure of recovery by a wrongfully discharged employee is the amount of salary agreed upon for the period of service, less the amount which the employer affirmatively proves the employee has earned or with reasonable effort might have earned from other employment." Mize–Kurzman v. Marin Cmty. Coll. Dist. , 202 Cal.App.4th 832, 871, 136 Cal.Rptr.3d 259 (2012). "[T]he general rule is, that when a wrong has been done, and the law gives a remedy, the compensation shall be equal to the injury.... The injured party is to be placed, as near as may be, in the situation he would have occupied if the wrong had not been committed." Albemarle Paper Co. v. Moody , 422 U.S. 405, 418–19, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975).

"Front pay" is "a measure of damages for loss of future income, as opposed to backpay, which is lost-wages damages through the time of trial." Horsford v. Bd. Of Trustees Of California State Univ. , 132 Cal.App.4th 359, 388, 33 Cal.Rptr.3d 644 (2005) (noting in a case alleging violations of FEHA, that though front pay "usually reflects a temporary situation that will be remedied by other relief ordered in the judgment," "[o]ccasionally, courts have awarded front pay based upon a wage differential that will persist over the employee's working life").

Andrade claims $15,400.00 in lost wages, so called "backpay." Based on an $11 per hour wage, Andrade would make $440.00 a week. Andrade requests backpay for 35 weeks ($15,400/440). The Court finds this time period excessive, given that Andrade testified she was out of work for six months, or approximately 26 weeks, after Altamira terminated her. Dkt. No. 101 at 51. For those six months of unemployment, the Court finds backpay in the amount of $11,440.00 ($440 per week x 26 weeks).

The Court notes, however, that Andrade's next job at Felipe's Market was not full-time, that she worked 32 hours a week, and that she worked at Felipe's for about five months, or about 22 weeks. Id. at 51–52. Andrade failed to specify a number of weeks. Andrade testified that in June 2016, she began working at Safeway, where she is paid more per hour for less hours of work. Id. at 53–54. Due to Andrade's underemployment at Felipe's Market, the Court awards additional backpay. The Court found Andrade worked full-time at Altamira, or 40 hours, and so while an employee at Felipe's Market, she was underemployed by 8 hours a week. Accordingly, the Court finds Andrade owed an additional $1,936 (($11 per hour) x (8 hour per week) x (22 weeks)) in back pay.

The Court finds it improper to continue to compensate Andrade for her time at Safeway, where she is making more money than at Altamira. Plus, Andrade indicated no desire to be reinstated at Altamira. Awarding frontpay, especially where the Court has taken into account the difference in hours while she worked at Felipe's Market, would result in a windfall to Andrade. Such an outcome is not appropriate. C.f., Davis v. Los Angeles Unified Sch. Dist. Pers. Comm'n , 152 Cal.App.4th 1122, 1133, 62 Cal.Rptr.3d 69 (2007) (in discussing backpay, "courts must take care not to grant the employee a windfall"). Thus, the Court awards Andrade $13,376.00 in backpay.

h. Interest

An employee "receiving less than the legal minimum wage or the legal overtime compensation applicable to the employee is entitled to recover in a civil action the unpaid balance of the full amount of this minimum wage or overtime compensation, including interest thereon." Cal. Lab. Code § 1194. As to prejudgment interest, the Labor Code provides that in action for nonpayment of wages, a court must "award interest on all due and unpaid wages" at a rate of 10% per year. § 218.6, Cal. Civ. Code § 3289(b). A meal break claim does not fall under this category, nor do waiting time penalties. In re: Autozone, Inc. , No. 10–md–02159 CRB, 2016 WL 4208200, at *7 (N.D. Cal. Aug. 10, 2016), reconsideration denied sub nom. In re: AutoZone, Inc. , No. 10–md–02159 CRB, 2016 WL 6834138 (N.D. Cal. Nov. 21, 2016) (citing Cal. Lab. Code § 218.6, Kirby v. Immoos Fire Prot., Inc. , 53 Cal.4th 1244, 1255, 140 Cal.Rptr.3d 173, 274 P.3d 1160 (2012) ), and Drumm v. Morningstar, Inc. , 695 F.Supp.2d 1014, 1022 (N.D. Cal. 2010). "The purpose of prejudgment interest is ... to make the plaintiff whole as of the date of the injury," not to punish or disincentivize an employer from wrongdoing. Drumm , 695 F.Supp.2d at 1022. Thus, prejudgment interest is only due on the unpaid minimum wages and overtime, totaling $383.70. However, as was the issue with Andrade's requested liquidated damages, the Court received no documentation suggesting how it might calculate the interest due to Andrade for these unpaid wages. The Court declines to take on Andrade's burden.

2. Damages for Emotional Distress

Andrade requests $50,000.00 in damages for emotional distress. Dkt. No. 87 at 10.

Emotional distress damages may be granted when an employee is subjected to harassment under FEHA. Harris v. City of Santa Monica , 56 Cal.4th 203, 234, 152 Cal.Rptr.3d 392, 294 P.3d 49 (2013) (limiting holding to where a termination is not merely "substantially motivated by discrimination," otherwise, damages may not be awarded); Kelly–Zurian v. Wohl Shoe Co. , 22 Cal.App.4th 397, 410, 27 Cal.Rptr.2d 457 (1994), as modified (Mar. 4, 1994) (upholding emotional distress damage award resulting from sexual harassment). " '[T]here is no fixed or absolute standard by which to compute the monetary value of emotional distress,' and a 'jury is entrusted with vast discretion in determining the amount of damages to be awarded.' " Plotnik v. Meihaus , 208 Cal.App.4th 1590, 1602, 146 Cal.Rptr.3d 585 (2012) (quoting Hope v. California Youth Auth. , 134 Cal.App.4th 577, 595, 36 Cal.Rptr.3d 154 (2005) ). "Compensable emotional distress runs the full gamut of intangible mental suffering, including ... fright, nervousness, grief, anxiety, worry, mortification, shock, humiliation, indignity, embarrassment, apprehension, terror or ordeal." Murillo v. Rite Stuff Foods, Inc. , 65 Cal.App.4th 833, 848, 77 Cal.Rptr.2d 12 (1998) (internal citations and quotation marks omitted) (superseded by statute on other grounds in Salas v. Sierra Chem. Co. , 59 Cal.4th 407, 173 Cal.Rptr.3d 689, 327 P.3d 797 (2014) ).

Here, Andrade contends her termination was in response to her participating in unionization activities and confronting Kaur about her conduct. Based on the testimony at the hearing, however, Andrade primarily seeks damages for emotional distress arising from the sexual harassment she suffered from Mota. As noted above, Altamira is strictly liable for the sexual harassment Andrade suffered under FEHA, and liable under a theory of ratification for the sexual battery and assault she suffered.

Andrade testified Mota's conduct caused her fear and depression for months, bouts of insomnia, stress, temporary facial paralysis, and a loss of intimacy with her husband. Hearing Transcript at 40–41. Andrade testified she went to the hospital once because of the facial paralysis, but that the doctor attributed her symptoms to stress and prescribed ibuprofen. Id. at 42. Andrade never saw a psychologist or psychiatrist, because she did not want to discuss what had happened to her. Id. At the hearing, Andrade did not discuss any symptoms triggering emotional distress arising from her actual termination, 10 months after the incident with Pedro Mota. Yet the Court finds $50,000 in emotional distress damages appropriate given her unlawful termination, and the continuousness and pervasiveness of the harassment when she worked with Mota. See Kelly–Zurian , 22 Cal.App.4th at 409–10, 27 Cal.Rptr.2d 457 (refusing to disturb a $125,000 compensatory damages award for emotional distress where plaintiff resigned and suffered from panic attacks consisting of anxiety, tightness in the chest and heart palpitations, depression, insomnia, post-traumatic stress disorder ). In its discretion, the Court awards Andrade $50,000 in emotional distress damages.

3. Punitive Damages

Andrade requests a further hearing to determine punitive damages. Dkt. No. 87 at 10. Punitive damages may also be obtained for violations of FEHA. Commodore Home Sys., Inc. v. Superior Court , 32 Cal.3d 211, 221, 185 Cal.Rptr. 270, 649 P.2d 912 (1982). Where no contractual violation is involved, punitive damages may be obtained "where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice." Cal. Civ. Code § 3294(a) ; Bei v. Santucci , No. 11–cv–5061 PSG, 2013 WL 458204, at *4 (N.D. Cal. Feb. 5, 2013), amended on reconsideration on other grounds , 2013 WL 3786297 (N.D. Cal. July 18, 2013) (using the "clear and convincing evidence" standard in the default judgment context).

"Malice" is conduct intended by the defendant to injure the plaintiff or "despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others." § 3294(c)(1). "Oppression" is despicable conduct subjecting a person to "cruel and unjust hardship in conscious disregard of" their rights. § 3294(c)(2). Conduct is "despicable" where it is "so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.... Such conduct has been described as having the character of outrage frequently associated with crime." Scott v. Phoenix Sch., Inc. , 175 Cal.App.4th 702, 715, 96 Cal.Rptr.3d 159 (2009) (internal citations, quotations marks, and brackets omitted). "Fraud" is "an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury." § 3294(c)(3).

Yet employers will be liable under subsection (a) for employees' action only when: "(1) when an employee was guilty of oppression, fraud or malice, and the employer with advance knowledge of the unfitness of the employee employed him or her with a conscious disregard of the rights or safety of others; (2) when an employee was guilty of oppression, fraud or malice, and the employer authorized or ratified the wrongful conduct; or (3) when the employer was itself guilty of the oppression, fraud or malice." Weeks v. Baker & McKenzie , 63 Cal.App.4th 1128, 1151, 74 Cal.Rptr.2d 510 (1998) ; § 3294(b). For corporate employers, "the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation." Rhynes v. Stryker Corp. , No. 10–cv–5619 SC, 2011 WL 2149095, at *6 (N.D. Cal. May 31, 2011) (citing § 3294(b) ).

The motion for default judgment and supporting paperwork do not state whether oppression, fraud, or malice are the grounds for granting Andrade punitive damages. Based on Andrade's allegations, Altamira's actions could neither be considered oppressive nor fraudulent. Andrade does not set out a specific argument for punitive damages, but states in the Proposed Findings of Fact and Findings of Law that Altamira acted with malice because she was terminated soon after her confrontation with Kaur, and because of the failure to investigate Mota's sexual harassment. Dkt. No. 102 at 23–24. The Court accepts, as it must, that Andrade was fired in retaliation for attempting to unionize. The Court also found Andrade showed Altamira's strict liability for Mota's sexual harassment. However, Andrade has not satisfactorily testified or pled facts proving by clear and convincing evidence that Altamira ratified or acted with malice regarding either the termination or the sexual harassment. See Scott , 175 Cal.App.4th at 716, 96 Cal.Rptr.3d 159 (finding that termination for an improper reason was the only evidence of wrongful conduct against the plaintiff, but that such evidence was insufficient to support finding despicable conduct, "because such action is not vile, base or contemptible," as required to find malice). Accordingly, here, punitive damages are inappropriate.

4. Attorneys' Fees and Costs

Plaintiffs successfully alleging violations of FEHA, a failure to provide accurate wage statements, or receiving less than the legal minimum wage or overtime are entitled to attorneys' fees under California law. Cal. Gov't Code § 12965 ; Cal. Lab. Code §§ 226(e)(1), 1194 ; 29 U.S.C. § 216(b) (attorneys' fees for failure to pay overtime under federal law).

Andrade requests $66,335.00 in attorneys' fees incurred by Kletter + Nguyen Law LLP, and $2,722.47 in costs under Labor Code § 1194 and Government Code § 12965. Dkt. No. 102 at 26 (updated attorneys' fees and costs as of October 13, 2016). According to the firm's billing summary produced to the Court, attorney Cary Kletter worked 47.2 hours, and requests a rate of $700.00: $15,400.00; attorney Sally Trung Nguyen worked 63.3 hours, and requests a rate of $450.00: $17,910.00; paralegal Sandra Beltran worked 21.4 hours, and requests a rate of $100.00: $2,140.00; paralegal Linda Nguyen worked 14.5 hours, and requests a rate of $100.00: $1,450.00; paralegal Kenia Contreras worked 10.4 hours, and requests a rate of $100.00: $1,040.00; and paralegal Vanessa Gonzalez worked 1.8 hours, and requests a rate of $100.00: $180.00. Dkt. No. 102–1 at 107. Andrade's attorneys itemized the hours worked on her case, and presented that information to the Court.

District courts calculates awards for attorneys' fees using the lodestar method, which is calculated by multiplying the number of hours a prevailing party "reasonably expended on the litigation by a reasonable hourly rate." Camacho v. Bridgeport Fin., Inc. , 523 F.3d 973, 978 (9th Cir. 2008) (quoting Ferland v. Conrad Credit Corp. , 244 F.3d 1145, 1149 (9th Cir. 2001) ). While the amount calculated under this method is "presumptively" reasonable, a court may adjust the fee to account for other factors. Id. Affidavits by plaintiffs' attorney "regarding prevailing fees in the community, and rate determinations in other cases, particularly those setting a rate for the plaintiffs' attorney, are satisfactory evidence of the prevailing market rate." United Steelworkers of Am. v. Phelps Dodge Corp. , 896 F.2d 403, 407 (9th Cir. 1990).First, the Court finds that the number of hours the Kletter firm attorneys and paralegals worked on this case were largely reasonable. There was no duplication in efforts by the firm in the billing records produced to the Court. However, the Court does find that the amount of time attorney Kletter spent preparing for the hearing on the motion for default judgment on September 7 excessive. Dkt. No. 102–1 at 108. The Court considers five hours of preparation for that hearing appropriate instead. Also, because the hearing could not be held on September 7 because Andrade's attorney's failed to produce a court certified interpreter, the Court strikes the 2.7 hours attorney Kletter spent in meeting with Andrade and coming to court that day. Id. As for attorney Nguyen, the Court cuts the 13.8 hours spent on reviewing Arby's motion to dismiss, writing the opposition to that motion, and reviewing both the reply and the Court's final order on that motion. Dkt. No. 102–1 at 109. The Court considers this reduction in hours appropriate because Arby's was represented by its own counsel, and its liability was separate from Altamira's.

As for the hourly rates charged, the Court also finds the amounts requested by attorneys Kletter and Nguyen excessive.

In a declaration to the Court, Kletter stated he had over 20 years of experience in civil litigation, and had spent the last 12 years focusing his practice on a wide variety of employee representation in state and federal court. Dkt. No. 87–1 at 6–7. Responding to the Court's order for further information, Kletter produced an order by California Superior Court, San Mateo County Judge Don R. Franchi, where the judge awarded Kletter attorneys' fees at a rate of $650 per hour. Dkt. No. 104 at 4. However, no discussion follows the one-page order justifying awarding Kletter such an hourly fee. The Court is unconvinced awarding even the $650 Kletter was awarded in the state court case is appropriate under the circumstances.

In similar cases in this district with attorneys with similar experience, the amount awarded has been substantially less than $650 or $700. See e.g. , Gonzalez v. Lupita's Rest. , No. 14–cv–03099 BLF, 2015 WL 4481978, at *5 (N.D. Cal. July 22, 2015) (finding a partner's hourly rate of $375, associate's rate of $200, and paralegal's rate of $50 reasonable based on partners, associates, and paralegal's hourly rates with similar experience in the Northern District of California); Telles v. Li , No. 11–cv–01470 LHK, 2013 WL 5199811, at *15 (N.D. Cal. Sept. 16, 2013) (finding attorney's hourly rate of $300 "reasonable" given the attorney's sixteen years of experience); Hernandez v. Martinez , No. 12–cv–06133 LHK, 2014 WL 3962647, at *14 (N.D. Cal. Aug. 13, 2014) (finding reasonable a first-year associate's hourly rate of $200 and an attorney with sixteen years of experience's hourly rate of $425, and noting that both rates were below that year's Laffey Matrix); see USAO Attorney's Fees Matrix, 2015-2016 (setting hourly rates for attorneys with six to seven years of experience at $332 per hour, and $504 for attorneys with 16–20 years of experience).

Based on these authorities, the Court finds that a more appropriate figure given the complexity of the case, Kletter's experience, the Court's location in the San Francisco Bay Area, would be $550 per hour. For the same reasons, the Court finds that a rate of $450 per hour for attorney Nguyen, admitted to the California Bar in 2009, is also excessive. The Court notes it did not receive a declaration regarding attorney Nguyen's qualifications. The Court finds that a $350 per hour rate adequately compensates Nguyen based on her experience. Lastly, the Court finds that the $100 per hour rates requested for paralegals Linda Nguyen, Sandra Beltran, and Kenia Contreras are reasonable, though it also did not receive any documentation regarding their qualifications. Aguilar v. Zep Inc. , No. 13–cv–00563 WHO, 2014 WL 4063144, at *6 (N.D. Cal. Aug. 15, 2014) (finding a $180 per hour rate reasonable for paralegals in a labor case). As for the 1.8 hours worked by paralegal Vanessa Gonzalez, the Court strikes this request because the entirety of Ms. Gonzalez's work on this case relates to the failed attempt to retain a Spanish interpreter for the September 7, 2016 hearing. Dkt. No. 102–1 at 112.

Based on the above discussion, the Court considers the appropriate award of attorneys' fees to be:

• Attorney Kletter: 38 hours at a rate of $550 per hour = $20,900.00

• Attorney Nguyen: 49.5 hours at a rate of $350 per hour = $17,325.00

• Paralegal Sandra Beltran: 21.4 hours at a rate of $100.00 per hour: $2,140.00;

• Paralegal Linda Nguyen: 14.5 hours at a rate of $100.00: $1,450.00; and

• Paralegal Kenia Contreras: 10.4 hours at a rate of $100.00: $1040.00.

Accordingly, the Court awards Kletter + Nguyen Law LLP $42,855.00 in attorneys' fees and its full costs: $2,722.47.

IV. CONCLUSION

The Court awards Andrade $72,962.63 against Altamira, broken down in the following manner:

1. $3,304.60 for failure to provide meal breaks;

2. $24.63 in unpaid minimum wages;

3. $359.07 in unpaid overtime;

4. $408.33 in liquidated damages under the FLSA and Cal. Labor Code § 1194.2 ;

5. $2,850.00 for failure to provide accurate wage statements;

6. $2,640.00 in waiting time penalties;

7. $13,376.00 in backpay; and

8. $50,000.00 in emotional distress damages.

In addition, the Court awards Kletter + Nguyen Law LLP $42,855.00 in attorneys' fees and $2,722.47 in costs. Appendix 1, attached, details the Court's calculations regarding the overtime reflected on Andrade's paystubs, as well as the total hours worked and wages earned over the last year of Andrade's employment. The Court denies default judgment as to all other counts, and does not award punitive damages against Altamira. The Court will enter judgment in accordance with this order.

IT IS SO ORDERED.

APPENDIX 1, ANDRADE V. ALTAMIRA CORP., 15–cv–03175

Overtime Calculations

Based on paystubs provided
--------

Pay period Regular Rate Overtime Hours of Difference Between Total Amount of Overtime of Pay Rate of Pay Overtime Regular and Overtime Owed ((overtime rate — Worked Rate of Pay (overtime regular rate) * (hours of rate — regular rate) overtime worked)) March 16-31, $9.00 $13.50 4.9 $4.50 $22.05 2014 April 1-15, $9.00 $13.50 12.4 $4.50 $55.80 2014 May 1-15, 2014 $9.00 $13.50 10.2 $4.50 $45.90 June 1-15, 2014 $9.00 $13.50 3.2 $4.50 $14.40 June 16-30, $10.00 $15.00 3.9 $5.00 $19.50 2014 July 1-15, 2014 $10.00 $15.00 3.9 $5.00 $19.50 July 16-31, $10.00 $15.00 6 $5.00 $30.00 2014 Aug. 1-15, $10.00 $15.00 10.9 $5.00 $54.50 2014 Sept. 1-15, $10.00 $15.00 4.9 $5.00 $24.50 2014 Oct. 16-31, $10.00 $15.00 9 $5.00 $45.00 2014 Nov. 1-15, $10.00 $15.00 1 $5.00 $5.00 2014 Jan. 1-15, 2015 $10.30 $15.45 2.1 $5.15 $10.82 (according to legal minimum wage) Feb. 1-15, 2015 $11.00 $16.50 2.2 $5.50 $12.10 Total: $359.07 *Based on paystubs provided

*Based on paystubs provided

Average Weeks Worked

Pay Period Hours Worked Gross Amount Paid ($) 1 Feb. 1-15, 2014 17.30 147.05 2 Feb. 16-28, 2014 49.30 419.05 3 March 1-15, 2014 70 630.00 4 March 16-31, 2014 89.8 830.25 5 April 1-15, 2014 93.10 841.05 6 April 16-30, 2014 80.50 727.65 7 May 1-15, 2014 90.50 815.85 8 May 16-31, 2014 72.60 653.40 9 June 1-15, 2014 83.20 748.80 10 June 16-30, 2014 84.30 845.00 11 July 1-15, 2014 83.90 839.00 12 July 16-31, 2014 94 980.00 13 Aug. 1-15, 2014 90.90 909.00 14 Aug. 16-31, 2014 79.60 798.00 15 Sept. 1-15, 2014 85.60 859.50 16 Sept. 16-30, 2014 76.60 766.00 17 Oct. 1-15, 2014 78.30 783.00 18 Oct. 16-31, 2014 89 890.00 19 Nov. 1-15, 2014 81 810.00 20 Nov. 16-30, 2014 60.90 609.00 21 Dec. 1-15, 2014 79.40 794.00 22 Dec. 16-31, 2014 75 750.00 23 Jan. 1-15, 2015 82.10 821.00 24 Jan. 16-31, 2015 76.50 841.50 25 Feb. 1-15, 2015 82.20 904.20 26 Feb. 16-28, 2015 68.39 752.29 27 March 1-15, 2015 77 847.00 28 March 16-31, 2015 69.20 761.20 29 April 1-15, 2015 67.70 744.70 Average Hours Worked Per Week Between April 1,908.39/52=36.69 16, 2014 — April 17, 2015 (total hours/52) Total Earned Between April 16, 2014 — April 17, $19250.09 2015 Average Earned per Week ($19,250.09/52) $370.19


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Case details for

Andrade v. Arby's Rest. Grp., Inc.

Case Details

Full title:MIRIAM ANDRADE, Plaintiff, v. ARBY'S RESTAURANT GROUP, INC., ALTAMIRA…

Court:UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

Date published: Dec 12, 2016

Citations

225 F. Supp. 3d 1115 (N.D. Cal. 2016)

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