This case was last updated from Los Angeles County Superior Courts on 11/25/2022 at 11:24:53 (UTC).

JOSEPH ZALENSKI VS FLYING DANS INC

Case Summary

On 06/09/2017 JOSEPH ZALENSKI filed a Labor - Other Labor lawsuit against FLYING DANS INC. This case was filed in Los Angeles County Superior Courts, Pomona Courthouse South located in Los Angeles, California. The Judges overseeing this case are PETER A. HERNANDEZ, DAN THOMAS OKI, THOMAS C. FALLS and GLORIA WHITE-BROWN. The case status is Disposed - Judgment Entered.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****9373

  • Filing Date:

    06/09/2017

  • Case Status:

    Disposed - Judgment Entered

  • Case Type:

    Labor - Other Labor

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

PETER A. HERNANDEZ

DAN THOMAS OKI

THOMAS C. FALLS

GLORIA WHITE-BROWN

 

Party Details

Plaintiff

ZALENSKI JOSEPH

Defendants

KANG WILLIAM

YOON PETER

CHANG DAVID

FLYING DANS INC.

Attorney/Law Firm Details

Plaintiff Attorney

BABAIAN RAYMOND

Defendant Attorney

RIDDLES RYAN SCOTT

 

Court Documents

RETURNED MAIL

6/30/2022: RETURNED MAIL

Order - ORDER TENTATIVE RULING

6/22/2022: Order - ORDER TENTATIVE RULING

Judgment

6/22/2022: Judgment

Request for Entry of Default / Judgment

6/22/2022: Request for Entry of Default / Judgment

Judgment

6/22/2022: Judgment

Minute Order - MINUTE ORDER (ORDER TO SHOW CAUSE RE: ENTRY OF DEFAULT/DEFAULT JUDGMENT)

6/22/2022: Minute Order - MINUTE ORDER (ORDER TO SHOW CAUSE RE: ENTRY OF DEFAULT/DEFAULT JUDGMENT)

Request for Entry of Default / Judgment

6/22/2022: Request for Entry of Default / Judgment

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (ORDER TO SHOW CAUSE RE: ENTRY OF DEFAULT/DEFAULT JUDGMENT) OF 06/22/2022

6/22/2022: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (ORDER TO SHOW CAUSE RE: ENTRY OF DEFAULT/DEFAULT JUDGMENT) OF 06/22/2022

Declaration - DECLARATION DECLARATION OF ERIC GILANIANS IN SUPPORT OF PLAINTIFF JOSEPH ZALENSKIS APPLICATION FOR DEFAULT JUDGMENT BY THE COURT

6/9/2022: Declaration - DECLARATION DECLARATION OF ERIC GILANIANS IN SUPPORT OF PLAINTIFF JOSEPH ZALENSKIS APPLICATION FOR DEFAULT JUDGMENT BY THE COURT

Declaration - DECLARATION DECLARATION OF JOSEPH ZALENSKI IN SUPPORT OF PLAINTIFFS APPLICATION FOR DEFAULT JUDGMENT BY THE COURT

6/9/2022: Declaration - DECLARATION DECLARATION OF JOSEPH ZALENSKI IN SUPPORT OF PLAINTIFFS APPLICATION FOR DEFAULT JUDGMENT BY THE COURT

Application - APPLICATION APPLICATION FOR DEFAULT JUDGMENT BY COURT PURSUANT TO CRC 3.1800

6/9/2022: Application - APPLICATION APPLICATION FOR DEFAULT JUDGMENT BY COURT PURSUANT TO CRC 3.1800

Order - ORDER TENTATIVE RULING

1/21/2022: Order - ORDER TENTATIVE RULING

Minute Order - MINUTE ORDER (ORDER TO SHOW CAUSE RE: ENTRY OF DEFAULT/DEFAULT JUDGMENT)

1/21/2022: Minute Order - MINUTE ORDER (ORDER TO SHOW CAUSE RE: ENTRY OF DEFAULT/DEFAULT JUDGMENT)

Notice Re: Continuance of Hearing and Order

12/9/2021: Notice Re: Continuance of Hearing and Order

Notice Re: Continuance of Hearing and Order

10/7/2021: Notice Re: Continuance of Hearing and Order

Order - ORDER TENTATIVE RULING

9/28/2021: Order - ORDER TENTATIVE RULING

Minute Order - MINUTE ORDER (ORDER TO SHOW CAUSE RE: ENTRY OF DEFAULT/DEFAULT JUDGMENT)

9/28/2021: Minute Order - MINUTE ORDER (ORDER TO SHOW CAUSE RE: ENTRY OF DEFAULT/DEFAULT JUDGMENT)

Notice of Case Reassignment and Order for Plaintiff to Give Notice

8/23/2021: Notice of Case Reassignment and Order for Plaintiff to Give Notice

88 More Documents Available

 

Docket Entries

  • 06/30/2022
  • DocketRETURNED MAIL; Filed by Clerk

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  • 06/22/2022
  • Docketat 08:30 AM in Department R, Thomas C. Falls, Presiding; Order to Show Cause Re: (Entry of Default/Default Judgment) - Held

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  • 06/22/2022
  • DocketRequest for Entry of Default / Judgment; Filed by Joseph Zalenski (Plaintiff)

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  • 06/22/2022
  • DocketOrder (Tentative Ruling); Filed by Clerk

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  • 06/22/2022
  • DocketRequest for Entry of Default / Judgment; Filed by Joseph Zalenski (Plaintiff)

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  • 06/22/2022
  • DocketJudgment; Filed by Joseph Zalenski (Plaintiff)

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  • 06/22/2022
  • DocketMinute Order ( (Order to Show Cause Re: Entry of Default/Default Judgment)); Filed by Clerk

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  • 06/22/2022
  • DocketCertificate of Mailing for ((Order to Show Cause Re: Entry of Default/Default Judgment) of 06/22/2022); Filed by Clerk

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  • 06/22/2022
  • DocketJudgment; Filed by Joseph Zalenski (Plaintiff)

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  • 06/09/2022
  • DocketDeclaration (DECLARATION OF JOSEPH ZALENSKI IN SUPPORT OF PLAINTIFFS APPLICATION FOR DEFAULT JUDGMENT BY THE COURT); Filed by Joseph Zalenski (Plaintiff)

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136 More Docket Entries
  • 09/25/2017
  • DocketMinute order entered: 2017-09-25 00:00:00; Filed by Clerk

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  • 08/17/2017
  • DocketOSC-Failure to File Proof of Serv; Filed by Clerk

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  • 06/23/2017
  • DocketProof of Service (not Summons and Complaint); Filed by Joseph Zalenski (Plaintiff)

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  • 06/23/2017
  • DocketRtn of Service of Summons & Compl; Filed by Joseph Zalenski (Plaintiff)

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  • 06/23/2017
  • DocketRtn of Service of Summons & Compl; Filed by Joseph Zalenski (Plaintiff)

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  • 06/12/2017
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 06/09/2017
  • DocketNotice of Case Assignment - Unlimited Civil Case; Filed by Clerk

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  • 06/09/2017
  • DocketCivil Case Cover Sheet; Filed by Joseph Zalenski (Plaintiff)

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  • 06/09/2017
  • DocketComplaint; Filed by Joseph Zalenski (Plaintiff)

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  • 06/09/2017
  • DocketSummons (on Complaint)

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Tentative Rulings

Case Number: ****9373 Hearing Date: June 22, 2022 Dept: R

Plaintiff Joseph Zalenski’s APPLICATION FOR DEFAULT JUDGMENT

Tentative Ruling

Plaintiff Joseph Zalenski’s Application for Default Judgment is GRANTED. Default judgment is entered against Defendant Flying Dan's Inc. in the amount of $120,966.61.

Background

Plaintiff Joseph Zalenski (“Plaintiff”) alleges as follows: Flying Dans, Inc. (“Flying Dans”)

owns, manages, and operates a “Denny’s” restaurant in Pomona. David Chang (“Chang”),

William Kang (“Kang”) and Peter Yoon (“Yoon”) are owners, officers and/or directors of Flying

Dans (collectively, “Defendants”). On or about October 12, 2015, Plaintiff began working full-

time as the general manager for Defendants’ “Denny’s” restaurant. Defendants misrepresented to

Plaintiff that Defendants were withholding and forwarding a portion of Plaintiff’s wages to the

San Bernardino County, Department of Child Support Services (“Department”) on Plaintiff’s

behalf. Plaintiff received notices in August and October 2016 from the Department notifying

Plaintiff that it had not received his monthly support payments; Plaintiff, in turn, notified

Defendants of this issue. Plaintiff, in the meantime, used his own income to pay the Department

and keep his child support account current. Beginning on or about January 2016, Plaintiff

notified Chang and Kang that certain co-workers and/or managers were committing wage theft

and fraud against Flying Dans. Plaintiff also complained of Defendants’ unlawful practice of

paying employees in cash and off the clock to avoid overtime rates. Defendants wrongfully

terminated Plaintiff and have not complied with Plaintiff’s written request for his personnel file

and other employment-related documents. Shortly after Plaintiff was terminated, Plaintiff learned

from the Department that the Department had still not received any payments from Flying Dans

and, as a result, the Department had directly debited funds from his personal account. Plaintiff’s

personal account was also placed on hold by the court until such time that he paid the balance of

his support payments to the Department and his California driving privileges were suspended.

On February 23, 2018, Plaintiff filed a First Amended Complaint (“FAC”), asserting causes of action against Defendants and Does 1-20 for:

1. Fraud

2. Negligent Misrepresentation

3. Conversion

4. Retaliation in Violation of FEHA

5. Wrongful Termination in Violation of Public Policy

6. Violation of Labor Code 226

7. Violation of Labor Code 1198.5

8. Violation of Family Code 5235

9. Intentional Infliction of Emotional Distress

10. Negligent Infliction of Emotional Distress

On January 25, 2019, Flying Dan’s default was entered. On February 6, 2019, Chang’s, Kang’s and Yoon’s defaults were entered. On January 21, 2020, Plaintiff dismissed Kang and Yoon without prejudice.

On September 28, 2021, the court denied without prejudice Plaintiff’s application for default judgment.

On December 10, 2021, Plaintiff again filed an application for default judgment as to Defendants Flying Dans, inc. and David Chang, which the court denied.

Plaintiff re-filed its application on June 9, 2022.

Discussion

Upon a review of the updated default packet, the defect has been cured—notably that the itemization of costs does not include any costs associated with transit, mileage, and/or parking.

Therefore, default judgment is entered against Defendant Flying Dan's Inc. in the amount of $120,966.61.


Case Number: ****9373 Hearing Date: January 21, 2022 Dept: R

Plaintiff Joseph Zalenski’s APPLICATION FOR DEFAULT JUDGMENT

Tentative Ruling

Plaintiff Joseph Zalenski’s Second Application for Default Judgment is DENIED without prejudice.

Background

Plaintiff Joseph Zalenski (“Plaintiff”) alleges as follows: Flying Dans, Inc. (“Flying Dans”)

owns, manages, and operates a “Denny’s” restaurant in Pomona. David Chang (“Chang”),

William Kang (“Kang”) and Peter Yoon (“Yoon”) are owners, officers and/or directors of Flying

Dans (collectively, “Defendants”). On or about October 12, 2015, Plaintiff began working full-

time as the general manager for Defendants’ “Denny’s” restaurant. Defendants misrepresented to

Plaintiff that Defendants were withholding and forwarding a portion of Plaintiff’s wages to the

San Bernardino County, Department of Child Support Services (“Department”) on Plaintiff’s

behalf. Plaintiff received notices in August and October 2016 from the Department notifying

Plaintiff that it had not received his monthly support payments; Plaintiff, in turn, notified

Defendants of this issue. Plaintiff, in the meantime, used his own income to pay the Department

and keep his child support account current. Beginning on or about January 2016, Plaintiff

notified Chang and Kang that certain co-workers and/or managers were committing wage theft

and fraud against Flying Dans. Plaintiff also complained of Defendants’ unlawful practice of

paying employees in cash and off the clock to avoid overtime rates. Defendants wrongfully

terminated Plaintiff and have not complied with Plaintiff’s written request for his personnel file

and other employment-related documents. Shortly after Plaintiff was terminated, Plaintiff learned

from the Department that the Department had still not received any payments from Flying Dans

and, as a result, the Department had directly debited funds from his personal account. Plaintiff’s

personal account was also placed on hold by the court until such time that he paid the balance of

his support payments to the Department and his California driving privileges were suspended.

On February 23, 2018, Plaintiff filed a First Amended Complaint (“FAC”), asserting causes of action against Defendants and Does 1-20 for:

1. Fraud

2. Negligent Misrepresentation

3. Conversion

4. Retaliation in Violation of FEHA

5. Wrongful Termination in Violation of Public Policy

6. Violation of Labor Code 226

7. Violation of Labor Code 1198.5

8. Violation of Family Code 5235

9. Intentional Infliction of Emotional Distress

10. Negligent Infliction of Emotional Distress

On January 25, 2019, Flying Dan’s default was entered. On February 6, 2019, Chang’s, Kang’s and Yoon’s defaults were entered. On January 21, 2020, Plaintiff dismissed Kang and Yoon without prejudice.

On September 28, 2021, the court denied without prejudice Plaintiff’s application for default judgment.

On December 10, 2021, Plaintiff again filed an application for default judgment as to Defendants Flying Dans, inc. and David Chang.

The instant Application is before the court with a scheduled hearing (Order to Show Cause Re: Entry of Default/Default Judgment) on Friday, January 21, 2022 at 11:00 a.m.

Discussion

The court’s September 28, 2021 order denying Plaintiff’s application for default judgment did so for the following defects:

1. The court will not award $82,250.00 as against Chang. Again, Plaintiff has sued Chang

for fraud, negligent misrepresentation, conversion, violation of Family Code 5235, intentional infliction of emotional distress and negligent infliction of emotional distress only. Plaintiff has not sued Chang for retaliation in violation of FEHA, wrongful termination in violation of public policy, violation of Labor Code 226, violation of Labor Code 1198.5 and Plaintiff’s prayer for various Labor Code penalties pertains to Flying Dan’s only. (See FAC, 52-71).

Plaintiff’s FAC identifies the following monetary amounts:

$461.00 (i.e., debited from Plaintiff’s account [see 33 and 39]

$60,000.00 (i.e., lost wages [see prayer, 4])

$750.00 (i.e., civil penalties for violation of Labor Code 226(b) [see prayer, 6])

$750.00 (i.e., civil penalties for violation of Labor Code 11905(k) [see prayer, 7])

$10,000.00 (i.e., civil penalties for violation of Labor Code 98.6 [see prayer, 8])

$10,000.00 (i.e., civil penalties for violation of Labor Code 1102.5 [see prayer, 9])

$750.00 (i.e., civil penalties for violation of Family Code 5235(d) [see prayer, 10])

These amounts total $82,711.00. Chang would not be liable for $21,150.00 in Labor Code civil penalties because none of those causes of action were asserted against Chang. Chang would not be liable for $60,000.00 in lost wages, because the FEHA retaliation and wrongful termination causes of action were not asserted against him.

Plaintiff seeks $1,345.52 for damages related to violation of Family Code 5235 and $80,904.48 in emotional distress damages. (Application, 3:2-3). General damages “refers to damages for harm or loss such as pain, suffering, emotional distress, and other forms of detriment that are sometimes characterized as ‘subjective’ or not directly quantifiable.” (Beeman v. Burling (1990) 216 Cal.App.3d 1586, 1599.) Plaintiff did not request $82,250.00 in general damages as against Chang in the FAC; rather, in 75, 81 and 87 (i.e., in his causes of action for Violation of Family Code 5235, Intentional Infliction of Emotional Distress and Negligent Infliction of Emotional Distress) Plaintiff generically alleges that he “seeks an award of general damages, special damages, exemplary damages, costs and damages in excess of the jurisdictional minimum of this Court.”[1] In Becker v. S.P.V. Construction Co. (1980) 27 Cal.3d 489, the complaint sought damages “in excess of $20,000,” punitive damages of $100,000, and costs. A default judgment was entered for $26,457.50 in compensatory damages, $2,500 in attorney’s fees and costs. The Supreme Court affirmed the order vacating the judgment, rejecting the argument that it could be saved because it did not exceed the aggregate damages alleged in the complaint:

“Here, the specific amount of damages alleged in the complaint was $20,000. Accordingly, the trial court exceeded its jurisdiction under section 580 insofar

as it awarded damages in excess of that amount. It is irrelevant that the award of

damages was within the total amount of compensatory and punitive damages

demanded in the complaint. Since compensatory and punitive damages are

different remedies in both nature and purpose, a demand or prayer for one is not

a demand legally, or otherwise, for the other, or for both.” (Id. at 494 [quotation

marks and citation omitted].)

In the instant case, it would appear that Plaintiff is limited to a maximum $25,000.00 request for emotional distress damages. Further, “[t]he amount of general damages awarded is usually correlated to the special damages proved.” (Jones v. Interstate Recovery Service (1984) 160 Cal.App.3d 925, 929.)

Here, Plaintiff’s Application states that Plaintiff has made the following change to the Default Application: “Plaintiff has clarified the breakdown of damages against DAVID CHANG below in section 5(B) of this Default Application. Plaintiff is seeking $82,250 from CHANG ($1,345.52 for damages related to Violation of Family Code 5235; and $80,904.48 in emotion distress).” (Application p. 3:1-3.)

First, the court finds this statement unclear: Plaintiff seems to state it is seeking $82,250.00 as to Chang but the amount stated in section 5B of the Application reflects judgment in the amount of $25,000.00. (Application p. 13.) In any event, considering the court’s previous order stating Plaintiff is limited to a maximum of $25,000.00 for emotional distress damages, the court will use that figure.

Accordingly, this deficiency has been cured.

2. Costs are limited to those set forth in Code of Civil Procedure 1033.5 and do not

include parking fees and local travel. (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 775-776.)

Here, despite Plaintiff’s Counsel noting that his declaration explains the breakdown of costs and has attached an itemization for the court’s review, the court finds the same costs and same itemization. Both the instant Default Application and the July 23, 2021 Default Application state that “[t]he itemization of cost is included in the following categories with cost: $252.15 in messenger fees, $818.50 in calling fees, $1,779.90 in service fees, $601.83 in filing fees, and $1,915.98 in court fees for a grand total of $5,368.36.” Thus, reviewing the exhibit with the itemization of costs, Plaintiff again seeks costs for ‘Transit to Court for CMC,’ ‘Courthouse Parking for CMC hearing,’ and ‘Mileage to and from Pomona Courthouse.’ (Gilanians Decl., 10, Ex. P, p. 47-57.) As previously stated, such costs are prohibited.

Accordingly, this deficiency has not been cured.


[1] He also seeks “civil penalties pursuant to Family Cide 5241(d)” in his eighth cause of action.



Case Number: ****9373 Hearing Date: January 20, 2022 Dept: R

Defendant Amwest Funding Corporation’s Motion for Judgment on the Pleadings as to Plaintiff City of El Monte’s Complaint

Responding Party: Plaintiff, City of El Monte

Tentative Ruling

Defendant Amwest Funding Corporation’s Motion for Judgment on the Pleadings as to Plaintiff City of El Monte’s Complaint is GRANTED WITH LEAVE TO AMEND.

Background

This is a nuisance case. The City of El Monte (“City” or “Plaintiff”) alleges as follows: On January 15, 2020, the El Monte Police Department executed a search warrant at the Subject Property wherein officers observed marijuana cultivation. The City is informed and believes, and on that basis alleges, that the marijuana cultivation, manufacture, storage, and/or sale at the Property also caused nuisance. The City further alleges that the marijuana operation at the Property is detrimental to nearby residential properties and leads to social and economic harm to the community and the city of El Monte’s residents.

On May 13, 2021, the City filed suit against Minlian Su, Amwest Funding Corp., and Does 1 through 100 for:

1. Narcotics Abatement (Health and Safety Code Sections 11570 et. seq.)

2. Public Nuisance (Civil Code Sections 3479 et seq.)

3. Violation of El Monte Municipal Code (EMMC Chapters 5.18 and Ch. 1.19)

4. Violation of Unfair Competition Law (Business and Professions Code Sections 17200 et seq.) and

5. Violation of MAUCRSA (Business and Professions Code Section 26000 et seq.)

On August 2, 2021, Defendant Amwest Funding Corp. filed its Answer.

On October 14, 2021, Defendant Amwest Funding Corp. filed the instant Motion for Judgment on the Pleadings.

On January 6, 2022, the City filed its Opposition.

On January 12, 2022, Defendant Amwest Funding Corp. filed its Reply.[1]

The instant Motion for Judgment on the Pleadings is before the court with a scheduled hearing on January 20, 2022. The Case Management Conference is scheduled for February 16, 2022.

Meet and Confer

The declaration of Defendant Amwest Funding’s Counsel, Nima Sabeti, provides that the Parties adequately met and conferred but were “unable to come to any agreement.” (Sabeti Decl., 4.)

Legal Standard

The rules governing demurrers are generally applicable to a motion for judgment on the pleadings. (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999; Code Civ. Proc., 438, subd. (d) [“The grounds for motion. . . shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice. Where the motion is based on a matter of which the court may take judicial notice. . ., the matter shall be specified in the notice of motion, or in the supporting points and authorities, except as the court may otherwise permit”].)

A motion by a plaintiff may only be made on the grounds “that the complaint states facts sufficient to constitute a cause or causes of action against the defendant and the answer does not state facts sufficient to constitute a defense to the complaint.” (Code Civ. Proc., 438, subd. (c)(1)(A).) A motion by a defendant may only be made on the grounds that (1) “[t]he court has no jurisdiction of the subject of the cause of action alleged in the complaint” or (2) “[t]he complaint does not state facts sufficient to constitute a cause of action against that defendant.” (Code Civ. Proc., 438, subd. (c).)

Judicial Notice

Defendant Amwest Funding requests the court take judicial notice of (1) a Deed and (2) a Full Reconveyance, both of which were recorded in the Official Records of the County of Los Angeles.

However, Defendant Amwest Funding’s Request for Judicial Notice (“RJN”) is DENIED, inasmuch as Defendant does not provide any explanation regarding the relevance of these documents in the request for judicial notice itself. While the court has formulated its own understanding of why Defendant Amwest Funding seeks judicial notice of these two documents--as Defendant Amwest’s only interest in the Property where the alleged marijuana cultivation occurred is that it was the lender in a mortgage loan of $360,000.00 to Defendant Su as secured by a deed of trust recorded in the Recorder’s Office of Los Angeles and that Defendant Amwest released its security interest after the Loan was paid-off on the Property by recording a Full Reconveyance of the deed of trust in the Recorder’s Office of Los Angeles County on June 23, 2021—it is not the court’s burden to do so.

“Although a court may judicially notice a variety of matters, only relevant material may be noticed.” (Aquila, Inc v. Superior Court (2007) 148 Cal.App.4th 556, 569 [quotation marks and citation omitted].) “The burden is on the party seeking judicial notice to provide sufficient information to allow the court to take judicial notice.” (Ross v. Creel Printing & Publishing Co. (2002) 100 Cal.App.4th 736, 744.)

Here, Defendant Amwest Funding’s Request for Judicial Notice merely cites to Evidence Code sections 452 and 453 but provides no substantive reasoning as to why the court should take judicial notice of the matter.[2]

Therefore, inasmuch as the court has DENIED Amwest Funding’s request for judicial notice, which would be the evidence to create the uncontroverted position that Amwest was a former secured lender, the court will approach its discussion with the notion that Defendant Amwest Funding is not a former secured lender but rather that at all relevant times, Amwest was also an owner and a mortgagee of the Property.” (Opp. p. 3:7-10.)

Discussion

The issue before the court is not whether an illegal sale of cannabis is a nuisance. Rather, the issue before the court is whether Defendant Amwest Funding’s status as a secured lender of the purported illegal operations and owner but not as the operator of the marijuana cultivation activity, can be liable for any counts of action the City has asserted against it when, according to the City, “Amwest knew and/or should have known about the illegal activity occurring at the Property, did nothing to abate it, and profited from the illegal activity through mortgage payments and other payments it received, ultimately, from the operations at the Property.” (Opp. p. 3:11-15.) The court finds the City can not because the City has failed to allege any facts that by way of its loan, Defendant Amwest Funding knowingly and intentionally engaged in the illegal activity. What’s more, the City fails to proffer any authority to support its basic proposition that the mere status as a titleholder and mortagee on the subject property that serves as a collateral for its loan creates automatic liability for narcotics abatement, public nuisance, violation of El Monte Municipal Code (the “EMMC”), violation of California Unfair Competition Law, and violation of state marijuana laws. The court will address each cause of action separately below.

1. First Cause of Action for Narcotics Abatement

Defendant Amwest Funding brings forth the judgment on the pleadings as to the first cause of action for narcotics abatement.

Section 11570, which Plaintiff cites, states: “[e]very building or place used for the purpose of unlawfully selling, serving, storing, keeping, manufacturing, or giving away any controlled substance, precursor, or analog specified in this division, and every building or place wherein or upon which those acts take place, is a nuisance which shall be enjoined, abated, and prevented, and for which damages may be recovered, whether it is a public or private nuisance.” Marijuana is a “controlled substance” within the meaning of section 11570. ( 11007, 11054, subd. (d)(13)) (emphasis added). Unless authorized by law, selling, furnishing, or giving away marijuana is a crime. ( 11360.)

Here, Defendant Amwest Funding states that the City has failed to state a cause of action because “Plaintiff has failed to allege facts supporting its claim that Amwest has created or maintained the nuisance activity. Plaintiff has failed to allege a single fact in support of its conclusory statement that Amwest, a lender, knew or should have known that Su was cultivating marijuana. Nothing is alleged as to when Amwest knew or how it found out. Nothing is alleged as to why and how Amwest should have known. There are no facts stating how Amwest caused the nuisance. Amwest, as a lender, cannot be considered an owner.” (Motion p. 6.) In short, Defendant Amwest claims that the “only party that can be liable for a nuisance are those that maintain the nuisance as well as the party or parties who create or assist in its creation.” (Motion p. 5:10-11.)

In its Opposition, Plaintiff does not necessarily substantively address Defendant Amwest Funding’s motion but rather takes issue with its case citations, cases which do not involve a motion for judgment on the pleadings but do thoroughly discuss a nuisance cause of action.

The court agrees with Defendant Amwest Funding: Plaintiff does not adequately plead facts to support its contention that “the City also alleges that Amwest (from its vantage point) knew or should have known of the nuisance activity occurring at the Property but did nothing to prevent it from occurring” (Opp. p. 5:16-18.) To the extent that Plaintiff points to the broad definition of “person” under the Health and Safety Code section 11570, again, Plaintiff still does not plead facts that Defendant Amwest Funding, even as a ‘person’ under the statute, “conduct[ed] or maintain[ed]” the nuisance.” (Opp. p. 5.) Rather, Plaintiff states that “[t]he City has alleged that Amwest was an owner and mortgagee at the relevant times. This should end the analysis” (Motion p. 6:1-2) but provides no authority to support such a bold proposition.

Therefore, considering that “liability for nuisance does not hinge on whether the defendant owns, possesses or controls the property, nor on whether he is in a position to abate the nuisance; the critical question is whether the defendant created or assisted in the creation of the nuisance” (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 306 citing City of Modesto Redevelopment Agency v. Superior Court (2004) 119 Cal.App.4th 28, 38, 13 Cal.Rptr.3d 865, italics added (Modesto)), and absent facts that aside from Defendant Amwest’s status as a lender and owner of the property by way of its deed that it assisted in the creation of this nuisance, the court GRANTS the motion for judgment on the pleadings as to the first cause of action for nuisance abatement.

2. Second Cause of Action for Public Nuisance

Anything which is injurious to health ... or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property ... is a nuisance.” (Civ.Code, 3479.) “A public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal.” (Civ.Code, 3480.) “The remedies against a public nuisance are: [ ] 1. Indictment or information; [ ] 2. A civil action; or, [ ] 3. Abatement.” (Civ.Code, 3491.) “A civil action may be brought in the name of the people of the State of California to abate a public nuisance....” (Code Civ. Proc., 731; Gov.Code, 26528.)

“[P]ublic nuisances are offenses against, or interferences with, the exercise of rights common to the public.” (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1103, original italics.) “Of course, not every interference with collective social interests constitutes a public nuisance. To qualify, and thus be enjoinable [or abatable], the interference must be both substantial and unreasonable.” (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1105 (Acuna).) It is substantial if it causes significant harm and unreasonable if its social utility is outweighed by the gravity of the harm inflicted. (Acuna, at p. 1105, 60 Cal.Rptr.2d 277, 929 P.2d 596.)

Here, Defendant Amwest Funding brings forth the motion based on the same arguments as raised in the discussion on the first cause of action.[3]

In its Opposition, the City relies on the notion that it is unlawful to “manage or control any place, whether permanently or temporarily, either as an owner, lessee, agent, employee, occupant, or mortgagee, and knowingly and intentionally rent, lease, profit from, or make available for use, with or without compensation, the place for the purpose of unlawfully manufacturing, storing, distributing, or using a controlled substance.” (Opp. p. 7:6-10) (emphasis added).

The court again finds a fatal flaw with this argument: the City has not alleged any facts that Defendant Amwest Funding knew of any marijuana cultivation before providing the loan. The City itself cites authority stating that if “a building or other property is so used as to make it a nuisance under the statute, the nuisance may be abated [] notwithstanding that the owner had no knowledge that it was used for the unlawful purpose constituting a nuisance.” (Opp. p. 7:11-13 citing People ex re Bradford v. Barbiere (1917) 33 Cal.App. 770, 779). And while the court in People ex re Bradford continued to state that it has been held that “the owner of property is presumed to know the business conducted thereon,” the court finds the instant case indisputably distinguishable. In People ex re Bradford, the court found that “a fair and reasonable inference arises from the evidence that both defendants knew at all times of the immoral uses to which the condemned buildings were being put” because “the two buildings, the one owned by [defendant] and the other by his wife, are so connected together and attached to each other that the two may be used as one building; that [the defendant] as seen, conducted a saloon in his building, while the other building, as conducted by [the lessee], was used for the purpose of prostitution and assignation; that visitors to the [lessee’s] apartments entered said apartments through the entrance passing through the saloon. Moreover, from the whole record and the general situation as presented, it is fairly inferable that the entrance into the [lessee’s] apartments through the saloon was maintained, not alone for the purpose of providing for the visitors and inmates easy and unobserved access to the [lessee’s] apartments, which the evidence plainly enough shows were conducted as a place of prostitution, but also for the purpose of readily furnishing the inmates of and frequenters to the apartments with liquors and wines, and of facilitating the sale of those articles by [defendant] to those persons.” (Id.)

Here, however, there are no facts that Defendant Amwest Funding even physically stepped foot on the Subject Property cultivating marijuana nor are there any facts alleging that the loan was made with knowledge that Defendant Su would engage in marijuana cultivation.

Therefore, the court, abiding my clear established law and precedent, disagrees with the City’s blanket assertion that “Civil Code section 3479 is essentially a strict liability statute” (Opp. p. 7:11-12) and finds that the City has failed to plead any facts for public nuisance.

3. Third Cause of Action for Violation of El Monte Municipal Code (EMMC Chapters 5.18 and Ch. 1.19)

“No person may engage in any commercial cannabis activity within the city unless the person (1) has a valid commercial cannabis business license issued by the city; (2) has a valid state license; (3) any other applicable approvals, including, but not limited to, a building permit and city business license; and (4) is currently in compliance with all applicable state and local laws and regulations pertaining to the commercial cannabis activity.” (emphasis added). Subsection 1.19.020 defines “responsible person” as “any person that causes, creates, allows, permits, suffers, or maintains a public nuisance to exist or continue to exist within the city, by an act or omission of any act or duty, including, but not limited to, any person have legal title to, or who leases, rents, occupies or has charge, control or possession of, any real property in the city, including all persons shown as owners on the last equalized assessment roll of the Los Angeles County Assessor’s Office.”

Here, Defendant Amwest Funding states that “Plaintiff has not stated any facts supporting its allegation that Amwest engaged in a commercial cannabis activity within the City of El Monte” (Motion p. 8:24-25).

On the other hand, Plaintiff in its Opposition states that “Amwest, who is a person who has legal title, charge, and control over the Property as mortgagee and who permitted the illegal activity to occur.” (Opp. p. 8:25-27.)

The City is correct in that the municipal code captures Defendant Amwest as a ‘person,’ but what the City fails to address is how Defendant Amwest Funding engaged in the commercial cannabis activity.

Therefore, again absent facts to show that aside from Defendant Amwest Funding lending money to Defendant Su and aside from Defendant Amwest Funding holding title the property by way of its mortgage, the City has failed to state any facts to support a violation of the El Monte Municipal Code.

4. Fourth Cause of Action for Violation of Unfair Competition Law (“UCL”) (Business and Professions Code Sections 17200 et seq.

Business and Professions Code Section 17200 provides that: “[a]s used in this chapter, unfair competition shall mean and include any unlawful, unfair or fraudulent business act or practice.” (Cal. Bus. & Prof. Code 17200.) “Each of these three adjectives captures a separate and distinct theory of liability.” Rubio v. Capital One Bank, 613 F.3d 1195, 1203 (9th Cir. 2010). A plaintiff alleging unfair business practices under these statutes must state with reasonable particularity the facts supporting the statutory elements of the violation. (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 619 citing 5 Witkin, Cal.Procedure, Pleading, 728, p. 176.)

The City’s complaint Defendant Amwest Funding has “engaged in unlawful and unfair competition within the meaning of and in violation of Business and Professions Code sections 17200 et seq., including but not limited to, one or more unlawful business acts or practices. Such unlawful business acts or practices include, but are not limited to: a. using the land and building on the Property for an unlicensed commercial marijuana operation in violation of EMMC Chapter 5.18; and b. illegally storing, selling, serving, or giving away marijuana in violation of Health and Safety Code sections 11570 et seq.” (Complaint 52.)

Here, Defendant Amwest Funding avers that “Plaintiff seeks to remedy a past conduct as opposed to an ongoing conduct.” (Motion p. 10:1-2.) To this, Defendant Amwest Funding explains that the Complaint “clearly states facts which make it clear that the illegal activity stopped after the police “executed a search warrant” and seized “341.6 pounds” of marijuana along with several fans, lights and other equipment (Complaint 12- 14).” (Motion p. 10:4-7.) And to the extent that the activity has subsided, Defendant Amwest Funding argues that “a UCL claim can only apply to ongoing conduct, relief is not available to remedy past conduct.” (Motion p. 9:25-26, citing Mangini v. Aerojet-General Corp. (1991) 230 Cal.App.3d 1125.)

First, the court notes that Defendant Amwest Funding may have caught an error in citing to Mangiani as that case was superseded by statute (Reply p. 5:17-18). Second, as to Defendant’s argument raised in its Reply that “Plaintiff claims that Amwest violated the Health and Safety Code and therefore is liable under UCL,” the court agrees with Defendant Amwest Funding: Plaintiff still has not stated facts sufficient to show Amwest violated any laws, a prerequisite for this cause of action.

Therefore, the court grants Defendant Amwest’s motion as to the fourth cause of action.

5. Fifth Cause of Action for a Violation of MAUCRSA (Business and Professions Code Section 26000 et seq.)

The Code provides that (a) A person engaging in commercial cannabis activity without a license required by this division shall be subject to civil penalties of up to three times the amount of the license fee for each violation, and the court may order the destruction of cannabis associated with that violation in accordance with Section 11479 of the Health and Safety Code. Each day of operation shall constitute a separate violation of this section. All civil penalties imposed and collected pursuant to this section by the department shall be deposited into the General Fund except as provided in subdivision (b). A violator shall be responsible for the cost of the destruction of cannabis associated with their violation. Bus. & Prof. Code, 26038.

As iterated in every cause of action above, Plaintiff has failed to at the very least articulate how Defendant Amwest Funding has engaged in commercial activity, a prerequisite for liability under this Code section.

Therefore, the court grants Defendant Amwest Funding’s Motion as to the fifth cause of action.

Conclusion

In sum, the fatal flaw to Plaintiff’s complaint is that the entirety of its allegations against Defendant Amwet Funding is that it is liable for the five causes of actions based on the fact that Defendant Amwest Funding provided a loan to Defendant Su, the operator of the marijuana operation, and by way of its loan secured a deed on the Property where the marijuana cultivation occurred. This is conclusory. At the very least, the City should have alleged facts that Defendant Amwest Funding knew of the marijuana cultivation or at the very least proffered authority that as a titleholder and mortgagee on the property, Defendant Amwest Funding has potential liable for allegedly permitting the illegal activity “due to its ability to control what occurs on premises in its role to maintain and preserving the Property that serves as collateral for its loan.” (Op. p. 2:1-8.)

Based on the foregoing, the court GRANTS the entirety of Defendant Amwest Funding’s Motion for Judgment on the Pleadings WITH LEAVE TO AMEND.

[1] The court notes that all of the papers (the motion itself, the opposition, and reply) are timely.

[2] The court notes that the City’s Opposition takes issue with Defendant Amwest Funding’s request for judicial notice because Amwest offers these documents as “evidence of hotly contested facts.” The court need not address this argument by way of it denying the request for judicial notice. But, briefly, at this stage, disputed factual issues may not be resolved; thus, although the documents may be judicially noticeable, the effect of the Deed and Full Reconveyance are not judicially noticeable. (C.R. v. Tenet Healthcare Corp. (2009) 169 Cal.App.4th 1094, 1104.)

[3] In its Reply, Defendant Amwest also raises a compelling argument that “Plaintiff’s claim for nuisance abatement is invalid. Plaintiff in its complaint admits that the nuisance activity has been abated when the police executed a warrant on the Property and stopped the marijuana operation on the Property.” (Reply p. 4:3-5.)



b'

Case Number: ****9373 Hearing Date: September 28, 2021 Dept: R

Plaintiff Joseph Zalenski’s APPLICATION FOR DEFAULT JUDGMENT

Tentative Ruling

Plaintiff Joseph Zalenski’s Application for Default Judgment is DENIED without prejudice.

Background

Plaintiff Joseph Zalenski (“Plaintiff”) alleges as follows: Flying Dans, Inc. (“Flying Dans”)

owns, manages, and operates a “Denny’s” restaurant in Pomona. David Chang (“Chang”),

William Kang (“Kang”) and Peter Yoon (“Yoon”) are owners, officers and/or directors of Flying

Dans (collectively, “Defendants”). On or about October 12, 2015, Plaintiff began working full-

time as the general manager for Defendants’ “Denny’s” restaurant. Defendants misrepresented to

Plaintiff that Defendants were withholding and forwarding a portion of Plaintiff’s wages to the

San Bernardino County, Department of Child Support Services (“Department”) on Plaintiff’s

behalf. Plaintiff received notices in August and October 2016 from the Department notifying

Plaintiff that it had not received his monthly support payments; Plaintiff, in turn, notified

Defendants of this issue. Plaintiff, in the meantime, used his own income to pay the Department

and keep his child support account current. Beginning on or about January 2016, Plaintiff

notified Chang and Kang that certain co-workers and/or managers were committing wage theft

and fraud against Flying Dans. Plaintiff also complained of Defendants’ unlawful practice of

paying employees in cash and off the clock to avoid overtime rates. Defendants wrongfully

terminated Plaintiff and have not complied with Plaintiff’s written request for his personnel file

and other employment-related documents. Shortly after Plaintiff was terminated, Plaintiff learned

from the Department that the Department had still not received any payments from Flying Dans

and, as a result, the Department had directly debited funds from his personal account. Plaintiff’s

personal account was also placed on hold by the court until such time that he paid the balance of

his support payments to the Department and his California driving privileges were suspended.

On February 23, 2018, Plaintiff filed a First Amended Complaint (“FAC”), asserting causes of action against Defendants and Does 1-20 for:

1. Fraud

2. Negligent Misrepresentation

3. Conversion

4. Retaliation in Violation of FEHA

5. Wrongful Termination in Violation of Public Policy

6. Violation of Labor Code ; 226

7. Violation of Labor Code ; 1198.5

8. Violation of Family Code ; 5235

9. Intentional Infliction of Emotional Distress

10. Negligent Infliction of Emotional Distress

On January 25, 2019, Flying Dan’s default was entered. On February 6, 2019, Chang’s, Kang’s and Yoon’s defaults were entered. On January 21, 2020, Plaintiff dismissed Kang and Yoon without prejudice.

An Order to Show Cause Re: Entry of Default/Default Judgment is set for June 16, 2021.

Discussion

Plaintiff’s application for default judgment is DENIED without prejudice. The following defects are noted:

1. The court will not award $82,250.00 as against Chang. Again, Plaintiff has sued Chang

for fraud, negligent misrepresentation, conversion, violation of Family Code ; 5235, intentional infliction of emotional distress and negligent infliction of emotional distress only. Plaintiff has not sued Chang for retaliation in violation of FEHA, wrongful termination in violation of public policy, violation of Labor Code ; 226, violation of Labor Code ; 1198.5 and Plaintiff’s prayer for various Labor Code penalties pertains to Flying Dan’s only. (See FAC, ¶¶ 52-71).

Plaintiff’s FAC identifies the following monetary amounts:

$461.00 (i.e., debited from Plaintiff’s account [see ¶¶ 33 and 39]

$60,000.00 (i.e., lost wages [see prayer, ¶ 4])

$750.00 (i.e., civil penalties for violation of Labor Code ; 226(b) [see prayer, ¶ 6])

$750.00 (i.e., civil penalties for violation of Labor Code ; 11905(k) [see prayer, ¶ 7])

$10,000.00 (i.e., civil penalties for violation of Labor Code ; 98.6 [see prayer, ¶ 8])

$10,000.00 (i.e., civil penalties for violation of Labor Code ; 1102.5 [see prayer, ¶ 9])

$750.00 (i.e., civil penalties for violation of Family Code ; 5235(d) [see prayer, ¶ 10])

These amounts total $82,711.00. Chang would not be liable for $21,150.00 in Labor Code civil penalties because none of those causes of action were asserted against Chang. Chang would not be liable for $60,000.00 in lost wages, because the FEHA retaliation and wrongful termination causes of action were not asserted against him.

Plaintiff seeks $1,345.52 for damages related to violation of Family Code ; 5235 and $80,904.48 in emotional distress damages. (Application, 3:2-3). General damages “refers to damages for harm or loss such as pain, suffering, emotional distress, and other forms of detriment that are sometimes characterized as ‘subjective’ or not directly quantifiable.” (Beeman v. Burling (1990) 216 Cal.App.3d 1586, 1599.) Plaintiff did not request $82,250.00 in general damages as against Chang in the FAC; rather, in ¶¶ 75, 81 and 87 (i.e., in his causes of action for Violation of Family Code ; 5235, Intentional Infliction of Emotional Distress and Negligent Infliction of Emotional Distress) Plaintiff generically alleges that he “seeks an award of general damages, special damages, exemplary damages, costs and damages in excess of the jurisdictional minimum of this Court.”[1] In Becker v. S.P.V. Construction Co. (1980) 27 Cal.3d 489, the complaint sought damages “in excess of $20,000,” punitive damages of $100,000, and costs. A default judgment was entered for $26,457.50 in compensatory damages, $2,500 in attorney’s fees and costs. The Supreme Court affirmed the order vacating the judgment, rejecting the argument that it could be saved because it did not exceed the aggregate damages alleged in the complaint:

“Here, the specific amount of damages alleged in the complaint was $20,000. Accordingly, the trial court exceeded its jurisdiction under section 580 insofar

as it awarded damages in excess of that amount. It is irrelevant that the award of

damages was within the total amount of compensatory and punitive damages

demanded in the complaint. Since compensatory and punitive damages are

different remedies in both nature and purpose, a demand or prayer for one is not

a demand legally, or otherwise, for the other, or for both.” (Id. at 494 [quotation

marks and citation omitted].)

In the instant case, it would appear that Plaintiff is limited to a maximum $25,000.00 request for emotional distress damages. Further, “[t]he amount of general damages awarded is usually correlated to the special damages proved.” (Jones v. Interstate Recovery Service (1984) 160 Cal.App.3d 925, 929.)

2. Costs are limited to those set forth in Code of Civil Procedure ; 1033.5 and do not

include parking fees and local travel. (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 775-776.)

[1] He also seeks “civil penalties pursuant to Family Cide ; 5241(d)” in his eighth cause of action.

'


Case Number: ****9373    Hearing Date: May 7, 2021    Dept: J

   

OSC DATE: Friday, May 7, 2021

RE: Zalenski v. Flying Dans, Inc., et al. (****9373) [2nd Submission]

______________________________________________________________________________

 

Plaintiff Joseph Zalenski’s APPLICATION FOR DEFAULT JUDGMENT

Tentative Ruling

Plaintiff Joseph Zalenski’s Application for Default Judgment is DENIED without prejudice.

Background

Plaintiff Joseph Zalenski (“Plaintiff”) alleges as follows: Flying Dans, Inc. (“Flying Dans”)

owns, manages, and operates a “Denny’s” restaurant in Pomona. David Chang (“Chang”),

William Kang (“Kang”) and Peter Yoon (“Yoon”) are owners, officers and/or directors of Flying

Dans (collectively, “Defendants”). On or about October 12, 2015, Plaintiff began working full-

time as the general manager for Defendants’ “Denny’s” restaurant. Defendants misrepresented to

Plaintiff that Defendants were withholding and forwarding a portion of Plaintiff’s wages to the

San Bernardino County, Department of Child Support Services (“Department”) on Plaintiff’s

behalf. Plaintiff received notices in August and October 2016 from the Department notifying

Plaintiff that it had not received his monthly support payments; Plaintiff, in turn, notified

Defendants of this issue. Plaintiff, in the meantime, used his own income to pay the Department

and keep his child support account current. Beginning on or about January 2016, Plaintiff

notified Chang and Kang that certain co-workers and/or managers were committing wage theft

and fraud against Flying Dans. Plaintiff also complained of Defendants’ unlawful practice of

paying employees in cash and off the clock to avoid overtime rates. Defendants wrongfully

terminated Plaintiff and have not complied with Plaintiff’s written request for his personnel file

and other employment-related documents. Shortly after Plaintiff was terminated, Plaintiff learned

from the Department that the Department had still not received any payments from Flying Dans

and, as a result, the Department had directly debited funds from his personal account. Plaintiff’s

personal account was also placed on hold by the court until such time that he paid the balance of

his support payments to the Department and his California driving privileges were suspended.

On February 23, 2018, Plaintiff filed a First Amended Complaint (“FAC”), asserting causes of action against Defendants and Does 1-20 for:

  1. Fraud

  2. Negligent Misrepresentation

  3. Conversion

  4. Retaliation in Violation of FEHA

  5. Wrongful Termination in Violation of Public Policy

  6. Violation of Labor Code ; 226

  7. Violation of Labor Code ; 1198.5

  8. Violation of Family Code ; 5235

  9. Intentional Infliction of Emotional Distress

  10. Negligent Infliction of Emotional Distress

On January 25, 2019, Flying Dan’s default was entered. On February 6, 2019, Chang’s, Kang’s and Yoon’s defaults were entered. On January 21, 2020, Plaintiff dismissed Kang and Yoon without prejudice.

An Order to Show Cause Re: Entry of Default/Default Judgment is set for May 7, 2021.

Discussion

Plaintiff’s application for default judgment is DENIED without prejudice. The following defects are noted:

  1. Paragraph 2(d) (i.e., “Costs” under “Judgment to be entered”) on both of Plaintiff’s CIV-

100 Judicial Council forms is blank.

  1. Plaintiff has submitted two CIV-100 Judicial Council forms, one for Flying Dan’s and

one for Chang and two proposed judgments, one for Flying Dan’s and one for Chang. The amounts listed on the CIV-100 Judicial Council form and proposed judgment for Flying Dan’s do not match (i.e., $115,150.00 versus $120,518.36.) The amounts listed in ¶ 2 of the CIV-100 Judicial Council form for Chang (i.e., $82,250.00 and $32,900.00) do not total $87,618.36, as stated. Although Plaintiff represents that he is no longer seeking attorney’s fees against Chang, ¶ 2 of the CIV-100 Judicial Council form for Chang continues to list $32,900.00 in attorney’s fees.

  1. Paragraph 1 of the Declaration of Eric Gilanians dated April 23, 2021 indicates that

default judgment is being sought against Flying Dans, Chang, Kang and Yoon. Kang and Yoon, however, were dismissed without prejudice on January 21, 2020.

  1. It is unclear how Plaintiff’s $82,250.00 in damages was calculated as against Chang.

Plaintiff has sued Chang for fraud, negligent misrepresentation, conversion, intentional infliction of emotional distress and negligent infliction of emotional distress only. Plaintiff has not sued Chang for retaliation in violation of FEHA, wrongful termination in violation of public policy, violation of Labor Code ; 226, violation of Labor Code ; 1198.5 and violation of Family Code ; 5235. Plaintiff’s prayer for Labor Code ;; 226(b), 98.6, 1102.5 and 1198.5 and Family Code ; 5235 penalties pertains to Flying Dan’s only. (See FAC, ¶¶ 55 and 56.) Plaintiff indicates that he has been damaged in the amount of $166,180.00 in front pay on his wrongful termination in violation of public policy; again, however, this cause of action was not asserted against Chang.

ANALYSIS

Yes (1/25/19;

2/6/19) Default Entered. (JC Form CIV-100.)

Yes Dismissal of all parties against whom judgment is not sought or an

application for separate judgment against specified parties under CCP

579, supported by a showing of grounds for each judgment. (CRC 3.1800(a)(7).)

Yes Mandatory Judicial Council Form CIV-100. (CRC 3.1800(a).)

See above Relief sought is within amount of prayer of complaint or statement of damages. (Due Process; Greenup v. Rodman (1986) 42 Cal.3d 822, 824.)

Yes _____ Summary of the case. (CRC 3.1800 (a)(1).)

Yes Declarations in support of the judgment. (CRC 3.1800 (a)(2).)

See above Attorney fees if supported by contract, statute or law. (CRC 3.1800 (a)(9); Local R. 3.214; open book – CC 1717.5.)

N/A Interest computations. (CRC 3.1800 (a)(3); 10% for contracts - Civ. Code 3289.)

See above Memorandum of costs and disbursements. (CRC 3.1800 (a)(4); JC Form CIV-100 item 7.)

Yes Declaration of nonmilitary status for each defendant. (CRC 3.1800 (a)(5); JC Form CIV-100 item 8.)

Yes Proposed form of judgment. (CRC 3.1800 (a)(6).)

N/A Statement of Damages served (P.I./wrongful death). (JC Form CIV-050; CCP 425.11.)

N/A Punitive Damages are supported. Info re Defendant’s financial status. (CCP 425.115.



Case Number: ****9373    Hearing Date: January 25, 2021    Dept: J

OSC DATE: Monday, January 25, 2021

RE: Zalenski v. Flying Dans, Inc., et al. (****9373)

______________________________________________________________________________

 

Plaintiff Joseph Zalenski’s APPLICATION FOR DEFAULT JUDGMENT

Tentative Ruling

Plaintiff Joseph Zalenski’s Application for Default Judgment is DENIED without prejudice.

Background

Plaintiff Joseph Zalenski (“Plaintiff”) alleges as follows: Flying Dans, Inc. (“Flying Dans”)

owns, manages, and operates a “Denny’s” restaurant in Pomona. David Chang (“Chang”),

William Kang (“Kang”) and Peter Yoon (“Yoon”) are owners, officers and/or directors of Flying

Dans (collectively, “Defendants”). On or about October 12, 2015, Plaintiff began working full-

time as the general manager for Defendants’ “Denny’s” restaurant. Defendants misrepresented to

Plaintiff that Defendants were withholding and forwarding a portion of Plaintiff’s wages to the

San Bernardino County, Department of Child Support Services (“Department”) on Plaintiff’s

behalf. Plaintiff received notices in August and October 2016 from the Department notifying

Plaintiff that it had not received his monthly support payments; Plaintiff, in turn, notified

Defendants of this issue. Plaintiff, in the meantime, used his own income to pay the Department

and keep his child support account current. Beginning on or about January 2016, Plaintiff

notified Chang and Kang that certain co-workers and/or managers were committing wage theft

and fraud against Flying Dans. Plaintiff also complained of Defendants’ unlawful practice of

paying employees in cash and off the clock to avoid overtime rates. Defendants wrongfully

terminated Plaintiff and have not complied with Plaintiff’s written request for his personnel file

and other employment-related documents. Shortly after Plaintiff was terminated, Plaintiff learned

from the Department that the Department had still not received any payments from Flying Dans

and, as a result, the Department had directly debited funds from his personal account. Plaintiff’s

personal account was also placed on hold by the court until such time that he paid the balance of

his support payments to the Department and his California driving privileges were suspended.

On February 23, 2018, Plaintiff filed a First Amended Complaint (“FAC”), asserting causes of action against Defendants and Does 1-20 for:

  1. Fraud

  2. Negligent Misrepresentation

  3. Conversion

  4. Retaliation in Violation of FEHA

  5. Wrongful Termination in Violation of Public Policy

  6. Violation of Labor Code ; 226

  7. Violation of Labor Code ; 1198.5

  8. Violation of Family Code ; 5235

  9. Intentional Infliction of Emotional Distress

  10. Negligent Infliction of Emotional Distress

On January 25, 2019, Flying Dan’s default was entered. On February 6, 2019, Chang’s, Kang’s and Yoon’s defaults were entered. On January 21, 2020, Plaintiff dismissed Kang and Yoon without prejudice.

An Order to Show Cause Re: Entry of Default/Default Judgment is set for January 25, 2021.

Discussion

Plaintiff’s application for default judgment is DENIED without prejudice. The following defects are noted:

  1. Paragraphs 2 (i.e., “Judgment to be entered”) and 8 (i.e., “Declaration of nonmilitary

status”) of Plaintiff’s CIV-100 Judicial Council form are blank.

  1. Plaintiff seeks $7,189.86 in “filing and service fees” via his “Memorandum of Costs.”

The amount requested appears excessive. Plaintiff is requested to provide an itemization of costs incurred.

  1. Plaintiff seeks $32,900.00 in attorney’s fees against both Flying Dan’s and Chang.

Plaintiff has asserted the following causes of action against Chang: first (i.e., for Fraud), 2nd (i.e., for Negligent Misrepresentation), 3rd (i.e., for Conversion) , 8th (i.e., Violation of Family Code ; 5235), 9th (i.e., Intentional Infliction of Emotional Distress) and 10th (i.e., for Negligent Infliction of Emotional Distress). The Labor Code violation and FEHA causes of action are asserted against Flying Dan’s only. Plaintiff has not articulated a statutory or contractual basis for attorney’s fees against Chang. Family Code ; 5235 does not reference attorney’s fees.

  1. Plaintiff seeks “front pay” pursuant to his 4th cause of action (i.e., for Retaliation in

Violation of FEHA). (Application, 9:16-18.) This cause of action is not asserted against Chang, however. Plaintiff also seeks Labor Code penalties; again, however, the Labor Code violation causes of action are not asserted against Chang.

  1. It is unclear how Plaintiff’s $82,250.00 in damages was calculated. Plaintiff’s application

represents that Plaintiff has front pay damages of $166,180.00 (Application, 9:16-10:13) and that Plaintiff seeks $1,500.00 in Labor Code penalties (Id., 10:15-20), $150,000.00 in emotional distress damages (Id., 10:22-11:21) and $200,000.00 in punitive damages (Id., 11:23-12:12).

Again, Plaintiff filed proofs of service on July 18, 2019 indicating that Statements of Damages

were substitute served on Flying Dan’s and Chang on April 28, 2019 and May 1, 2019, respectively. Again, default was entered against Flying Dan’s on January 25, 2019 and against Kang on February 6, 2019, before either Statement of Damages was served. A request for punitive damages pursuant to Code of Civil Procedure ; 425.115 must be served on defendant “before a default is taken, if the motion for default judgment includes a request for punitive damages.” [Code Civ. Proc., ; 425.115, subd. (f) (emphasis added).]

  1. “Evidence of a defendant’s financial condition is a legal precondition to the award of

punitive damages.” (Soto v. BorgWarner Morse TEC Inc. (2015) 239 Cal.App.4th 165, 195.) Plaintiff has failed to provide any evidence of Chang’s and/or Flying Dan’s financial condition.

  1. Plaintiff’s declaration is not accompanied by any documentation evidencing Plaintiff’s

complaint to Chang/Kang/Yoon/William Lee/Flying Dan’s regarding alleged wage theft and fraud committed by Plaintiff’s co-workers and/or Flying Dan’s “regular course and practice to

pay employees in cash and off the clock rather than pay overtime rates.” (Plaintiff’s Decl., ¶¶4-5.)

  1. Plaintiff’s declaration is not accompanied by any documentation evidencing the

suspension of Plaintiff’s California driver’s license.

  1. Plaintiff’s declaration references a March 10, 2017 written request to defendants for

Plaintiff’s personnel file; a copy of said letter, however, is not attached.

ANALYSIS

Yes (1/25/19;

2/6/19) Default Entered. (JC Form CIV-100.)

Yes Dismissal of all parties against whom judgment is not sought or an

application for separate judgment against specified parties under CCP

579, supported by a showing of grounds for each judgment. (CRC 3.1800(a)(7).)

See above Mandatory Judicial Council Form CIV-100. (CRC 3.1800(a).)

Yes Relief sought is within amount of prayer of complaint or statement of damages. (Due Process; Greenup v. Rodman (1986) 42 Cal.3d 822, 824.)

Yes _____ Summary of the case. (CRC 3.1800 (a)(1).)

Yes Declarations in support of the judgment. (CRC 3.1800 (a)(2).)

See above Attorney fees if supported by contract, statute or law. (CRC 3.1800 (a)(9); Local R. 3.214; open book – CC 1717.5.)

N/A Interest computations. (CRC 3.1800 (a)(3); 10% for contracts - Civ. Code 3289.)

See above Memorandum of costs and disbursements. (CRC 3.1800 (a)(4); JC Form CIV-100 item 7.)

No Declaration of nonmilitary status for each defendant. (CRC 3.1800 (a)(5); JC Form CIV-100 item 8.)

Yes Proposed form of judgment. (CRC 3.1800 (a)(6).)

See above Statement of Damages served (P.I./wrongful death). (JC Form CIV-050; CCP 425.11.)

No Punitive Damages are supported. Info re Defendant’s financial status. (CCP 425.115.



Case Number: ****9373    Hearing Date: January 08, 2021    Dept: J

OSC DATE: Friday, January 8, 2021

RE: Zalenski v. Flying Dans, Inc., et al. (****9373)

______________________________________________________________________________

 

Plaintiff Joseph Zalenski’s APPLICATION FOR DEFAULT JUDGMENT

Tentative Ruling

Plaintiff Joseph Zalenski’s Application for Default Judgment is DENIED without prejudice.

Background

Plaintiff Joseph Zalenski (“Plaintiff”) alleges as follows: Flying Dans, Inc. (“Flying Dans”)

owns, manages, and operates a “Denny’s” restaurant in Pomona. David Chang (“Chang”),

William Kang (“Kang”) and Peter Yoon (“Yoon”) are owners, officers and/or directors of Flying

Dans (collectively, “Defendants”). On or about October 12, 2015, Plaintiff began working full-

time as the general manager for Defendants’ “Denny’s” restaurant. Defendants misrepresented to

Plaintiff that Defendants were withholding and forwarding a portion of Plaintiff’s wages to the

San Bernardino County, Department of Child Support Services (“Department”) on Plaintiff’s

behalf. Plaintiff received notices in August and October 2016 from the Department notifying

Plaintiff that it had not received his monthly support payments; Plaintiff, in turn, notified

Defendants of this issue. Plaintiff, in the meantime, used his own income to pay the Department

and keep his child support account current. Beginning on or about January 2016, Plaintiff

notified Chang and Kang that certain co-workers and/or managers were committing wage theft

and fraud against Flying Dans. Plaintiff also complained of Defendants’ unlawful practice of

paying employees in cash and off the clock to avoid overtime rates. Defendants wrongfully

terminated Plaintiff and have not complied with Plaintiff’s written request for his personnel file

and other employment-related documents. Shortly after Plaintiff was terminated, Plaintiff learned

from the Department that the Department had still not received any payments from Flying Dans

and, as a result, the Department had directly debited funds from his personal account. Plaintiff’s

personal account was also placed on hold by the court until such time that he paid the balance of

his support payments to the Department and his California driving privileges were suspended.

On February 23, 2018, Plaintiff filed a First Amended Complaint (“FAC”), asserting causes of action against Defendants and Does 1-20 for:

  1. Fraud

  2. Negligent Misrepresentation

  3. Conversion

  4. Retaliation in Violation of FEHA

  5. Wrongful Termination in Violation of Public Policy

  6. Violation of Labor Code ; 226

  7. Violation of Labor Code ; 1198.5

  8. Violation of Family Code ; 5235

  9. Intentional Infliction of Emotional Distress

  10. Negligent Infliction of Emotional Distress

On January 25, 2019, Flying Dan’s default was entered. On February 6, 2019, Chang’s, Kang’s and Yoon’s defaults were entered. On January 21, 2020, Plaintiff dismissed Kang and Yoon without prejudice.

A Case Management Conference and an Order to Show Cause Re: Entry of Default are set for March 3, 2020.

Discussion

Plaintiff’s application for default judgment is DENIED without prejudice. The following defects are noted:

  1. Plaintiff has failed to dismiss Does 1-20.

  2. Plaintiff’s default prove-up package is not accompanied by Judicial Council Form CIV-

100. Plaintiff has failed to provide the court with a completed “Memorandum of Costs” on CIV-100.

  1. Plaintiff seeks default judgment in the amount of $729,019.92 [i.e., comprised of

$166,180.00 in “front pay,” plus $750.00 in Labor Code ; 226(f) penalties, plus $750.00 in Labor Code ; 1198.5(k) penalties, plus $150,000.00 in emotional distress damages, plus $200,000.00 in punitive damages, plus $207,072.00 in attorney’s fees, plus $4,267.92 in costs].

The amounts set forth in the prayer of Plaintiff’s FAC, however, total only $82,250.00. “The relief granted to the plaintiff, if there is no answer, cannot exceed that demanded in the complaint . . .” (CCP ; 580(a).) “[I]n all default judgments the demand sets a ceiling on recovery.” (Greenup v. Rodman (1986) 42 Cal.3d 822, 824.)

  1. Plaintiff filed proofs of service on July 18, 2019 indicating that Statements of Damages

were substitute served on Flying Dan’s and Chang on April 28, 2019 and May 1, 2019, respectively. Again, default was entered against Flying Dan’s on January 25, 2019 and against Kang on February 6, 2019, before either Statement of Damages was served. A request for punitive damages pursuant to Code of Civil Procedure ; 425.115 must be served on defendant “before a default is taken, if the motion for default judgment includes a request for punitive damages.” [Code Civ. Proc., ; 425.115, subd. (f) (emphasis added).]

  1. “Evidence of a defendant’s financial condition is a legal precondition to the award of

punitive damages.” (Soto v. BorgWarner Morse TEC Inc. (2015) 239 Cal.App.4th 165, 195.) Plaintiff has failed to provide any evidence of Chang’s and/or Flying Dan’s financial condition.

  1. Plaintiff’s declaration is not accompanied by any documentation evidencing Plaintiff’s

complaint to Chang/Kang/Yoon/William Lee/Flying Dan’s regarding alleged wage theft and fraud committed by Plaintiff’s co-workers and/or Flying Dan’s “regular course and practice to

pay employees in cash and off the clock rather than pay overtime rates.” (Plaintiff’s Decl., ¶¶4-5.)

  1. Plaintiff’s declaration is not accompanied by any documentation evidencing the

suspension of Plaintiff’s California driver’s license.

  1. Plaintiff’s declaration references a March 10, 2017 written request to defendants for

Plaintiff’s personnel file; a copy of said letter, however, is not attached.



Case Number: ****9373    Hearing Date: November 16, 2020    Dept: J

OSC DATE: Monday, November 16, 2020

RE: Zalenski v. Flying Dans, Inc., et al. (****9373)

______________________________________________________________________________

 

Plaintiff Joseph Zalenski’s APPLICATION FOR DEFAULT JUDGMENT

Tentative Ruling

Plaintiff Joseph Zalenski’s Application for Default Judgment is DENIED without prejudice.

Background

Plaintiff Joseph Zalenski (“Plaintiff”) alleges as follows: Flying Dans, Inc. (“Flying Dans”)

owns, manages, and operates a “Denny’s” restaurant in Pomona. David Chang (“Chang”),

William Kang (“Kang”) and Peter Yoon (“Yoon”) are owners, officers and/or directors of Flying

Dans (collectively, “Defendants”). On or about October 12, 2015, Plaintiff began working full-

time as the general manager for Defendants’ “Denny’s” restaurant. Defendants misrepresented to

Plaintiff that Defendants were withholding and forwarding a portion of Plaintiff’s wages to the

San Bernardino County, Department of Child Support Services (“Department”) on Plaintiff’s

behalf. Plaintiff received notices in August and October 2016 from the Department notifying

Plaintiff that it had not received his monthly support payments; Plaintiff, in turn, notified

Defendants of this issue. Plaintiff, in the meantime, used his own income to pay the Department

and keep his child support account current. Beginning on or about January 2016, Plaintiff

notified Chang and Kang that certain co-workers and/or managers were committing wage theft

and fraud against Flying Dans. Plaintiff also complained of Defendants’ unlawful practice of

paying employees in cash and off the clock to avoid overtime rates. Defendants wrongfully

terminated Plaintiff and have not complied with Plaintiff’s written request for his personnel file

and other employment-related documents. Shortly after Plaintiff was terminated, Plaintiff learned

from the Department that the Department had still not received any payments from Flying Dans

and, as a result, the Department had directly debited funds from his personal account. Plaintiff’s

personal account was also placed on hold by the court until such time that he paid the balance of

his support payments to the Department and his California driving privileges were suspended.

On February 23, 2018, Plaintiff filed a First Amended Complaint (“FAC”), asserting causes of action against Defendants and Does 1-20 for:

  1. Fraud

  2. Negligent Misrepresentation

  3. Conversion

  4. Retaliation in Violation of FEHA

  5. Wrongful Termination in Violation of Public Policy

  6. Violation of Labor Code ; 226

  7. Violation of Labor Code ; 1198.5

  8. Violation of Family Code ; 5235

  9. Intentional Infliction of Emotional Distress

  10. Negligent Infliction of Emotional Distress

On January 25, 2019, Flying Dan’s default was entered. On February 6, 2019, Chang’s, Kang’s and Yoon’s defaults were entered. On January 21, 2020, Plaintiff dismissed Kang and Yoon without prejudice.

A Case Management Conference and an Order to Show Cause Re: Entry of Default are set for March 3, 2020.

Discussion

Plaintiff’s application for default judgment is DENIED without prejudice. The following defects are noted:

  1. Plaintiff has failed to dismiss Does 1-20.

  2. Plaintiff’s default prove-up package is not accompanied by Judicial Council Form CIV-

100. Plaintiff has failed to provide the court with a completed “Memorandum of Costs” on CIV-100.

  1. Plaintiff seeks default judgment in the amount of $729,019.92 [i.e., comprised of

$166,180.00 in “front pay,” plus $750.00 in Labor Code ; 226(f) penalties, plus $750.00 in Labor Code ; 1198.5(k) penalties, plus $150,000.00 in emotional distress damages, plus $200,000.00 in punitive damages, plus $207,072.00 in attorney’s fees, plus $4,267.92 in costs].

The amounts set forth in the prayer of Plaintiff’s FAC, however, total only $82,250.00. “The relief granted to the plaintiff, if there is no answer, cannot exceed that demanded in the complaint . . .” (CCP ; 580(a).) “[I]n all default judgments the demand sets a ceiling on recovery.” (Greenup v. Rodman (1986) 42 Cal.3d 822, 824.)

  1. Plaintiff filed proofs of service on July 18, 2019 indicating that Statements of Damages

were substitute served on Flying Dan’s and Chang on April 28, 2019 and May 1, 2019, respectively. Again, default was entered against Flying Dan’s on January 25, 2019 and against Kang on February 6, 2019, before either Statement of Damages was served. A request for punitive damages pursuant to Code of Civil Procedure ; 425.115 must be served on defendant “before a default is taken, if the motion for default judgment includes a request for punitive damages.” [Code Civ. Proc., ; 425.115, subd. (f) (emphasis added).]

  1. “Evidence of a defendant’s financial condition is a legal precondition to the award of

punitive damages.” (Soto v. BorgWarner Morse TEC Inc. (2015) 239 Cal.App.4th 165, 195.) Plaintiff has failed to provide any evidence of Chang’s and/or Flying Dan’s financial condition.

  1. Plaintiff’s declaration is not accompanied by any documentation evidencing Plaintiff’s

complaint to Chang/Kang/Yoon/William Lee/Flying Dan’s regarding alleged wage theft and fraud committed by Plaintiff’s co-workers and/or Flying Dan’s “regular course and practice to

pay employees in cash and off the clock rather than pay overtime rates.” (Plaintiff’s Decl., ¶¶4-5.)

  1. Plaintiff’s declaration is not accompanied by any documentation evidencing the

suspension of Plaintiff’s California driver’s license.

  1. Plaintiff’s declaration references a March 10, 2017 written request to defendants for

Plaintiff’s personnel file; a copy of said letter, however, is not attached.

ANALYSIS

Yes (1/25/19;

2/6/19) Default Entered. (JC Form CIV-100.)

No Dismissal of all parties against whom judgment is not sought or an

application for separate judgment against specified parties under CCP

579, supported by a showing of grounds for each judgment. (CRC 3.1800(a)(7).)

No Mandatory Judicial Council Form CIV-100. (CRC 3.1800(a).)

No Relief sought is within amount of prayer of complaint or statement of damages. (Due Process; Greenup v. Rodman (1986) 42 Cal.3d 822, 824.)

Yes _____ Summary of the case. (CRC 3.1800 (a)(1).)

Yes Declarations in support of the judgment. (CRC 3.1800 (a)(2).)

Yes Attorney fees if supported by contract, statute or law. (CRC 3.1800 (a)(9); Local R. 3.214; open book – CC 1717.5.)

N/A Interest computations. (CRC 3.1800 (a)(3); 10% for contracts - Civ. Code 3289.)

No Memorandum of costs and disbursements. (CRC 3.1800 (a)(4); JC Form CIV-100 item 7.)

Yes Declaration of nonmilitary status for each defendant. (CRC 3.1800 (a)(5); JC Form CIV-100 item 8.)

Yes Proposed form of judgment. (CRC 3.1800 (a)(6).)

See above Statement of Damages served (P.I./wrongful death). (JC Form CIV-050; CCP 425.11.)

No Punitive Damages are supported. Info re Defendant’s financial status. (CCP 425.115.



Case Number: ****9373    Hearing Date: March 03, 2020    Dept: J

OSC DATE: Tuesday, March 3, 2020

RE: Zalenski v. Flying Dans, Inc., et al. (****9373)

______________________________________________________________________________

 

Plaintiff Joseph Zalenski’s APPLICATION FOR DEFAULT JUDGMENT

Tentative Ruling

Plaintiff Joseph Zalenski’s Application for Default Judgment is DENIED without prejudice.

Background

Plaintiff Joseph Zalenski (“Plaintiff”) alleges as follows: Flying Dans, Inc. (“Flying Dans”)

owns, manages, and operates a “Denny’s” restaurant in Pomona. David Chang (“Chang”),

William Kang (“Kang”) and Peter Yoon (“Yoon”) are owners, officers and/or directors of Flying

Dans (collectively, “Defendants”). On or about October 12, 2015, Plaintiff began working full-

time as the general manager for Defendants’ “Denny’s” restaurant. Defendants misrepresented to

Plaintiff that Defendants were withholding and forwarding a portion of Plaintiff’s wages to the

San Bernardino County, Department of Child Support Services (“Department”) on Plaintiff’s

behalf. Plaintiff received notices in August and October 2016 from the Department notifying

Plaintiff that it had not received his monthly support payments; Plaintiff, in turn, notified

Defendants of this issue. Plaintiff, in the meantime, used his own income to pay the Department

and keep his child support account current. Beginning on or about January 2016, Plaintiff

notified Chang and Kang that certain co-workers and/or managers were committing wage theft

and fraud against Flying Dans. Plaintiff also complained of Defendants’ unlawful practice of

paying employees in cash and off the clock to avoid overtime rates. Defendants wrongfully

terminated Plaintiff and have not complied with Plaintiff’s written request for his personnel file

and other employment-related documents. Shortly after Plaintiff was terminated, Plaintiff learned

from the Department that the Department had still not received any payments from Flying Dans

and, as a result, the Department had directly debited funds from his personal account. Plaintiff’s

personal account was also placed on hold by the court until such time that he paid the balance of

his support payments to the Department and his California driving privileged were suspended.

On February 23, 2018, Plaintiff filed a First Amended Complaint (“FAC”), asserting causes of action against Defendants and Does 1-20 for:

  1. Fraud

  2. Negligent Misrepresentation

  3. Conversion

  4. Retaliation in Violation of FEHA

  5. Wrongful Termination in Violation of Public Policy

  6. Violation of Labor Code ; 226

  7. Violation of Labor Code ; 1198.5

  8. Violation of Family Code ; 5235

  9. Intentional Infliction of Emotional Distress

  10. Negligent Infliction of Emotional Distress

On January 25, 2019, Flying Dan’s default was entered. On February 6, 2019, Chang’s, Kang’s and Yoon’s defaults were entered. On January 21, 2020, Plaintiff dismissed Kang and Yoon without prejudice.

A Case Management Conference and an Order to Show Cause Re: Entry of Default are set for March 3, 2020.

Discussion

Plaintiff’s application for default judgment is DENIED without prejudice. The following defects are noted:

  1. Plaintiff has failed to dismiss Does 1-20.

  2. Plaintiff’s default prove-up package is not accompanied by Judicial Council Form CIV-100. Plaintiff has failed to provide the court with a completed “Memorandum of Costs” on CIV-100.

  3. Plaintiff seeks default judgment in the principal amount of $445,100.00 [i.e., comprised of $93,600 in “front pay,” plus $750.00 in Labor Code ; 226(f) penalties, plus $750.00 in Labor Code ; 1198.5(k) penalties, plus $150,000.00 in emotional distress damages, plus $200,000.00 in punitive damages]. The amounts set forth in the prayer of Plaintiff’s FAC, however, total only $82,250.00. Additionally, there is no indication that Plaintiff ever served a Statement of Damages in compliance with CCP ; 425.11 and/or CCP ; 425.115.

  4. Plaintiff’s declaration is not accompanied by any documentary evidence, including but not limited to, any child support order, any written notification by Plaintiff to Flying Dan’s that Flying Dan’s was required to withhold and forward child support from Plaintiff’s paychecks pursuant to a court order, Defendants’ purported deduction of “Child Support” from Plaintiff’s paychecks, any correspondence from the Department, any bank statements reflecting the Department’s debiting of $461.00 from Plaintiff’s personal account, and documentation evidencing the court’s alleged hold on Plaintiff’s personal account and suspension of Plaintiff’s California driver’s license.

ANALYSIS

Yes (1/25/19;

2/6/19) Default Entered. (JC Form CIV-100.)

No Dismissal of all parties against whom judgment is not sought or an

application for separate judgment against specified parties under CCP

579, supported by a showing of grounds for each judgment. (CRC 3.1800(a)(7).)

No Mandatory Judicial Council Form CIV-100. (CRC 3.1800(a).)

No Relief sought is within amount of prayer of complaint or statement of damages. (Due Process; Greenup v. Rodman (1986) 42 Cal.3d 822, 824.)

Yes _____ Summary of the case. (CRC 3.1800 (a)(1).)

Yes Declarations in support of the judgment. (CRC 3.1800 (a)(2).)

Yes Attorney fees if supported by contract, statute or law. (CRC 3.1800 (a)(9); Local R. 3.214; open book – CC 1717.5.)

N/A Interest computations. (CRC 3.1800 (a)(3); 10% for contracts - Civ. Code 3289.)

No Memorandum of costs and disbursements. (CRC 3.1800 (a)(4); JC Form CIV-100 item 7.)

Yes Declaration of nonmilitary status for each defendant. (CRC 3.1800 (a)(5); JC Form CIV-100 item 8.)

Yes Proposed form of judgment. (CRC 3.1800 (a)(6).)

No Statement of Damages served (P.I./wrongful death). (JC Form CIV-050; CCP 425.11.)

No Punitive Damages are supported. Info re Defendant’s financial status. (CCP 425.115)