This case was last updated from Los Angeles County Superior Courts on 01/16/2021 at 11:05:05 (UTC).

LISA MILLER ET AL VS MARCIN LLP ET AL

Case Summary

On 01/17/2017 LISA MILLER filed a Labor - Other Labor lawsuit against MARCIN LLP. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is DENNIS J. LANDIN. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****7123

  • Filing Date:

    01/17/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Labor - Other Labor

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

DENNIS J. LANDIN

 

Party Details

Plaintiffs and Petitioners

VAUGHIN DEBBIE

MILLER LISA

VAUGHN DEBBIE

Defendants and Respondents

DOES 1 TO 5

LAMBEITH TIMOTHY A.

MARCIN JOHN BERNARD

MARCIN LAMBIRTH LLP

MARCIN LLP

MARCIN LLP FKA MARCIN LAMBIRTH LLP

LAMBIRTH TIMOTHY A.

1 DOE

Attorney/Law Firm Details

Plaintiff and Petitioner Attorney

JOSEFSBERG HENRY J. ESQ.

Defendant Attorneys

JONES DAVID G.

JONES DAVID GARY

VO ALEX SILVA

LAMBIRTH TIMOTHY

 

Court Documents

Trial Brief - TRIAL BRIEF PLAINTIFFS

7/19/2019: Trial Brief - TRIAL BRIEF PLAINTIFFS

Exhibit List - EXHIBIT LIST PLAINTIFFS

7/19/2019: Exhibit List - EXHIBIT LIST PLAINTIFFS

Proof of Service by Mail

8/5/2019: Proof of Service by Mail

NOTICE OF ENTRY OF DEFAULT AGAINST MARCIN LLP, FKA MARCIN LAMBIRTH, LLP, JOHN BERNARD MARCIN

1/5/2018: NOTICE OF ENTRY OF DEFAULT AGAINST MARCIN LLP, FKA MARCIN LAMBIRTH, LLP, JOHN BERNARD MARCIN

PLAINTIFFS' STATEMENT OF THE CASE

5/10/2018: PLAINTIFFS' STATEMENT OF THE CASE

PLANTIFFS' TRIAL BRIEF

5/10/2018: PLANTIFFS' TRIAL BRIEF

Memorandum of Costs (Summary)

11/30/2020: Memorandum of Costs (Summary)

Notice Re: Continuance of Hearing and Order

3/20/2020: Notice Re: Continuance of Hearing and Order

Notice of Stay of Proceedings (Bankruptcy)

8/2/2019: Notice of Stay of Proceedings (Bankruptcy)

DEFENDANTS' OPPOSITION TO PLAINTIFFS' MOTION TO BIFURCATE TRIAL TO CONDUCT BENCH TRIAL ON ALTER EGO ISSUE AND UNFAIR BUSINESS PRACTICES CAUSE OF ACTION

3/1/2018: DEFENDANTS' OPPOSITION TO PLAINTIFFS' MOTION TO BIFURCATE TRIAL TO CONDUCT BENCH TRIAL ON ALTER EGO ISSUE AND UNFAIR BUSINESS PRACTICES CAUSE OF ACTION

DECLARATION OF LISA MILLER IN OPPOSITION TO MOTION FOR SUMMARY DISPOSITION

3/16/2018: DECLARATION OF LISA MILLER IN OPPOSITION TO MOTION FOR SUMMARY DISPOSITION

DEFENDANTS TIMOTHY A. LAMBIRTH AND TIMOTHY A. LAMBIRTH, A PROFESSIONAL CORPORATION'S [PROPOSED] STATEMENT OF THE CASE

5/11/2018: DEFENDANTS TIMOTHY A. LAMBIRTH AND TIMOTHY A. LAMBIRTH, A PROFESSIONAL CORPORATION'S [PROPOSED] STATEMENT OF THE CASE

DECLARATION OF DAVID G. JONES IN SUPPORT OF DEFENDANT TIMOTHY A. LAMBIRTH?S MOTION TO COMPEL PLAINTIFF LISA MILLER TO PROVIDE FURTHER RESPONSES AND DOCUMENTS IN RESPONSE TO REQUEST FOR PRODUCTION OF D

8/21/2017: DECLARATION OF DAVID G. JONES IN SUPPORT OF DEFENDANT TIMOTHY A. LAMBIRTH?S MOTION TO COMPEL PLAINTIFF LISA MILLER TO PROVIDE FURTHER RESPONSES AND DOCUMENTS IN RESPONSE TO REQUEST FOR PRODUCTION OF D

NOTICE OF EX PARTE APPLICATION AND APPLICATION FOR DETERMINATION OF SUFFICIENCY OF SERVICE OF PROCESS ON JOHN BERNARD MARCIN AND ETC

9/20/2017: NOTICE OF EX PARTE APPLICATION AND APPLICATION FOR DETERMINATION OF SUFFICIENCY OF SERVICE OF PROCESS ON JOHN BERNARD MARCIN AND ETC

DECLARATION OF HENRY J. JOSEFSBERG IN SUPPORT OF EX PARTE APPLICATION FOR DETERMINATION OF SUFFICIENCY OF SERVICE OF PROCESS ON JOHN BERNARD MARCIN AND MARCIN, LLP

9/20/2017: DECLARATION OF HENRY J. JOSEFSBERG IN SUPPORT OF EX PARTE APPLICATION FOR DETERMINATION OF SUFFICIENCY OF SERVICE OF PROCESS ON JOHN BERNARD MARCIN AND MARCIN, LLP

Minute Order -

9/25/2017: Minute Order -

REPLY TO MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT TIMOTHY LAMBIRTH'S MOTION FOR SUMMARY JUDGMENT OR ADJUDICATION

12/6/2017: REPLY TO MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT TIMOTHY LAMBIRTH'S MOTION FOR SUMMARY JUDGMENT OR ADJUDICATION

303 More Documents Available

 

Docket Entries

  • 01/27/2021
  • Hearing01/27/2021 at 10:00 AM in Department 51 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion - Other Re: Plaintiffs' Post-Trial Motion for Pre-Judgment Interest

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  • 12/22/2020
  • Docketat 10:00 AM in Department 51, Dennis J. Landin, Presiding; Hearing on Motion - Other (RePlaintiffs' Post-Trial Motion for Pre-Judgment Interest) - Held - Continued

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  • 12/22/2020
  • DocketMinute Order ( (Hearing on Motion - Other Re: Plaintiffs' Post-Trial Motion f...)); Filed by Clerk

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  • 12/22/2020
  • DocketNotice (of Continued Hearing on Pre-Judgment Interest); Filed by Lisa Miller (Plaintiff); Debbie Vaughn (Plaintiff)

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  • 12/14/2020
  • DocketNotice (of Hearing on Motion for Pre-Trial Interest); Filed by Lisa Miller (Plaintiff); Debbie Vaughn (Plaintiff)

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  • 12/09/2020
  • Docketat 3:00 PM in Department 51, Dennis J. Landin, Presiding; Court Order

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  • 12/09/2020
  • DocketMinute Order ( (Court Order)); Filed by Clerk

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  • 12/09/2020
  • DocketCertificate of Mailing for ((Court Order) of 12/09/2020); Filed by Clerk

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  • 12/04/2020
  • Docketat 09:30 AM in Department 51, Dennis J. Landin, Presiding; Hearing - Other (Post-Trial Request for Costs and Attorney Fees) - Held

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  • 12/04/2020
  • DocketNotice (of Entry of Default Judgment); Filed by Lisa Miller (Plaintiff); Debbie Vaughn (Plaintiff)

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533 More Docket Entries
  • 03/28/2017
  • DocketNotice; Filed by Plaintiff/Petitioner

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  • 03/20/2017
  • DocketNotice; Filed by Plaintiff/Petitioner

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  • 03/20/2017
  • DocketNOTICE OF FILING PROOFS OF SERVICE: JOHN B. MARCIN; MARCIN LLP

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  • 01/31/2017
  • DocketNOTICE OF CASE MANAGEMENT CONFERENCE

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  • 01/31/2017
  • DocketNotice; Filed by Plaintiff/Petitioner

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  • 01/19/2017
  • DocketNOTICE OF CASE MANAGEMENT CONFERENCE

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  • 01/19/2017
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 01/17/2017
  • DocketComplaint; Filed by Lisa Miller (Plaintiff); Debbie Vaughn (Plaintiff)

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  • 01/17/2017
  • DocketSUMMONS

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  • 01/17/2017
  • DocketCOMPLAINT FOR DAMAGES AND INJUNCTIVE AND OTHER EQUITABLE RELIEF `CAUSES OF ACTION FOR: 1. DEFAMATION 2. LABOR CODE VIOLATIONS I 3. LABOR CODE VIOLATIONS 2 4. RETALIATION 5. UNFAIR BUSINESS PRACTICES

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Tentative Rulings

Case Number: BC647123    Hearing Date: December 22, 2020    Dept: 51

Background

Plaintiffs Lisa Miller (“Miller”) and Debbie Vaughn (“Vaughn”) (collectively “Plaintiffs”) bring this employment action against their former employer Defendant Marcin, LLP fka Marcin Lambirth, LLP (“Marcin, LLP”) and its partners, Defendants John Bernard Marcin (“Marcin”) and Timothy A. Lambirth (“Lambirth”) (collectively “Defendants”).

On January 17, 2017, Plaintiff filed a complaint against Defendants Marcin, LLP, Marcin, and Lambirth.for:

  1. Defamation (against Marcin, LLP and Marcin)

  2. Labor Code Violations 1 (against All Defendants)

  3. Labor Code Violations 2 (against All Defendants)

  4. Retaliation (against Marcin, LLP and Marcin)

  5. Unfair Business Practices (against All Defendants)

On October 4, 2017, Plaintiffs filed an amendment to complaint, substituting in Timothy A. Lambirth, APC (“Lambirth APC”) for Doe 1.

On December 5, 2017, default was entered against Defendants Marcin, LLP and Marcin.

On November 17, 2020, the Court proceeded with the non-jury trial and default prove-up hearing and found in favor of Plaintiffs. The Court entered default judgment for Plaintiffs and against Defendants Marcin, LLP and Marcin. The Court also ordered Plaintiffs’ counsel to submit a revised proposed judgment against Defendant Lambirth APC.

On November 30, 2020, the Court entered judgment in favor of Plaintiffs and against Defendant Lambirth APC. Plaintiffs filed the instant motion for pre-judgment interest on the same date. No opposition has been filed.

The Court considered the moving papers, and rules as follows.

Pre-Judgment Interest Standard

CCP section 3287 provides:

(a) A person who is entitled to recover damages certain, or capable of being made certain by calculation, and the right to recover which is vested in the person upon a particular day, is entitled also to recover interest thereon from that day, except when the debtor is prevented by law, or by the act of the creditor from paying the debt. This section is applicable to recovery of damages and interest from any debtor, including the state or any county, city, city and county, municipal corporation, public district, public agency, or any political subdivision of the state.

Code Civ. Proc., § 3287.

Civil Code section 3288 provides that “[i]n an action for the breach of an obligation not arising from contract, and in every case of oppression, fraud, or malice, interests may be given, in the discretion of the jury.” Id., § 3288.

Analysis

Plaintiffs seek prejudgment interest on the damages they were awarded on their Labor Code violation claims and on Miller’s retaliation/wrongful termination claim.

Labor Code Violation Claims

Plaintiff Miller seeks prejudgment interest in the amount of $178,130.00 on the $348,233.00 awarded as damages for her Labor Code violation claims. Plaintiff Vaughn seeks prejudgment interest in the amount of $22,433.23 on the $56,893.07 awarded as damages for her Labor Code violation claims.

Labor Code section 218.6 provides that “[i]n any action brought for the nonpayment of wages, the court shall award interest on all due and unpaid wages at the rate of interest specified in subdivision (b) of Section 3289 of the Civil Code, which shall accrue from the date that the wages were due and payable as provide in Part 1 (commencing with Section 200) of Division 2.” Lab. Code, § 218.6. Civil Code section 3289(b) provides for an interest rate of 10 percent per annum. Civ. Code, § 3289(b).

The Court finds Plaintiffs have failed to demonstrate that their Labor Code violation claims constitute claims for nonpayment of wages for the purposes of Labor Code section 218.6. Plaintiff Miller’s “wage damages” consist of damages for unpaid regular time wages, unpaid overtime, unpaid meal breaks, unpaid rest breaks, unpaid expenses, improper wage statements, and wage continuation penalty. Plaintiff Vaughn’s “wage damages” consist of damages for unpaid overtime, unpaid meal breaks and rest breaks, withheld taxes, vacation pay, unpaid medical pay, improper wage statements, and wage continuation penalty. It appears only Miller’s claim for unpaid regular time wages constitutes a claim for nonpayment of wages under Labor Code section 218.6.

Plaintiffs contend that overtime pay, unpaid meal and rest break premium pay, benefits, vacation pay, and the like are for wages such that Labor Code section 218.6 applies, citing to Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094. However, Murphy dealt with whether section 226.7 claims for unpaid meal and rest breaks are considered penalties or wages for the purposes of determining the statute of limitations, not whether section 226.7 claims constitute nonpayment of wage for the purposes of Labor Code section 218.6. Regarding this issue, the Court of Appeal in Naranjo v. Spectrum Security Services, Inc. (2019) 40 Cal.App.5th 444 specifically found that an action pursuant to Labor Code section 226.7 for meal and rest breaks does not constitute an action for nonpayment of wages. Naranjo v. Spectrum Security Services, Inc. (2019) 40 Cal.App.5th 444, 475; see also Kirby v. Immoos Fire Protection, Inc. (2012) 53 Cal.4th 1244, 1256-57 [“[A] section 226.7 claim is not an action brought for nonpayment of wages; it is an action brought for nonprovision of meal or rest breaks.”].

Regarding the rest of Plaintiffs’ claims, the Court has found no on-pointe authority providing whether these claims constitute nonpayment of wage claims for the purposes of Labor Code section 218.6. Plaintiffs have also failed to provide such authority. However, the Court finds that, on its face, claims for unpaid medical pay, withholding of taxes, improper wage statements, and wage continuation penalties cannot be said to be claims for nonpayment of wages. Cf. Lane v. Francis Capital (2014) 224 Cal.App.4th 676, 684 [finding waiting time penalties and failure to provide itemized wage statements claims do not seek to collect due and unpaid wages for purposes of Labor Code section 229]. Regarding unpaid vacation pay, while vested vacation is to be paid as wages pursuant to Labor Code section 227.3, the Court finds it is still not a claim for nonpayment of wages. As for unpaid overtime, the Court finds this is also not a claim for nonpayment of wages; rather, it is a claim for excess compensation.

Based on the foregoing, only Plaintiff Miller is entitled to interest pursuant to Labor Code section 218.6 and only for the damages recovered for her unpaid regular time pay claim.

While Plaintiffs are not entitled to interest pursuant to Labor Code section 218.6, with the exception of Miller’s claim for unpaid regular time pay, the Court finds Plaintiffs are still entitled to interest at a rate of seven percent pursuant to Civil Code section 3287(a) on the unpaid overtime, unpaid meal and rest breaks, unpaid vacation pay, and unpaid medical pay claims. In Naranjo, the Court of Appeal found that while plaintiffs were not entitled to interest at ten percent pursuant to Labor Code section 218.6 for the meal break claims, plaintiffs were still entitled to interest at seven percent pursuant to Civil Code section 3287. Naranjo, supra, 40 Cal.App.5th at 475-76. In so finding, the Naranjo Court explained that an employee is entitled to the additional hour of pay immediately upon being forced to miss a rest or meal period. Id. [citing Murphy, supra, 40 Cal.4th at 1108]. The Naranjo Court further stated that, by contrast, the right to a penalty does not vest until someone has taken action to enforce it. Id. [citing Murphy, supra, 40 Cal.4th at 1108]. Based on this, the Court finds that Plaintiffs are entitled to interest at seven percent on those claims that vested prior to Plaintiffs’ filing of this action—i.e., unpaid overtime, unpaid meal and rest breaks, unpaid vacation pay, and unpaid medical pay.

Accordingly, Plaintiffs are awarded prejudgment interest at a rate of seven percent on their unpaid overtime, unpaid meal, unpaid rest break, unpaid vacation pay, and unpaid medical pay claims. Plaintiff Miller is awarded prejudgment interest at a rate of ten percent on her unpaid regular time pay claim.

Retaliation/Wrongful Termination

Plaintiffs seek interest in the amount of $217,800.00 on Miller’s damages for wrongful termination in the amount of $550,000.00.

Plaintiffs’ request is made pursuant to Civil Code section 3288, which permits the court to award interest in its discretion. Civ. Code, § 3288; Altavion, Inc. v. Konica Minolta Systems Laboratory, Inc. (2014) 226 Cal.App.4th 26, 69.

The Court finds that an award of prejudgment interest on Miller’s retaliation/wrongful termination claim is improper in this case. As explained in Altavion, prejudgment interest is awarded to compensate a party for the loss of his or her property and such interest can usually be computed with fair accuracy on a specific sum of money or on property subject to specific valuation. Altavion, Inc., supra, 226 Cal.App.4th at 69. Plaintiff Miller’s claim for retaliation/wrongful termination is not capable of such accurate and certain calculation. Plaintiffs are correct that a wrongful termination claim primarily involves property rights. Holmes v. General Dynamics Corp. (1993) 17 Cal.App.4th 1418, 1436. To the extent the wrongful termination claim seeks loss of salary, it is capable of accurate and certain calculation. However, wrongful termination claims, including Miller’s claim in this action, also involve emotional distress damages. Such damages are not capable of calculation with certainty. See Marine Terminals Corp. v. Paceco (1983) 145 Cal.App.3d 991, 996 [finding that damages are deemed capable of being made certain by calculation if the amount due can be determined by reference to a fixed standard such as a payment schedule, a readily ascertainable market value, or data supplied by plaintiff to defendant]. The Court in Greater Westchester HOA v. City of LA (1979) 26 Cal.3d 86 specifically found that interest awards under Civil Code section 3288 only apply to past economic losses and interest on damages on pure pain and suffering and mental anguish damages was improper. Greater Westchester HOA v. City of LA (1979) 26 Cal.3d 86, 102-03. As the judgment does not break down the wrongful termination damages and thus necessarily includes damages for emotional and mental distress that lack certainty, interest cannot be awarded pursuant to Civil Code section 3288.

Plaintiffs cite to Mass v. Board of Education of San Francisco Unified School Dist. (1964) 61 Cal.2d 612 in their proposed judgment as support for awarding interest on wrongful termination damages. Mass is distinguishable. The Mass Court did not deal with prejudgment interest on a wrongful termination claim. Rather, the Mass Court dealt with prejudgment interest on an award of salary as damages specifically provided by relevant Education Code provisions. Such interest was thus capable of certainty. As discussed, Miller’s retaliation/wrongful termination claim is not capable of such certainty because it includes damages for emotional and mental distress.

Plaintiff Miller is thus not entitled to an award of interest on her wrongful termination damages.

Conclusion

Based on the foregoing, Plaintiffs’ motion for pre-judgment interest is CONTINUED to ____________. Plaintiffs are ordered to submit interest calculations based on the awards set forth in this order.

Also, it appears notice of the 12/22/20 hearing date was not served on Defendants Lambirth APC and Lambirth until 12/14/20, only six days prior to the hearing on this motion. The notice was also served by regular mail. However, it also appears the hearing date on this motion was not set by the Court until 12/9/20. Since there does not appear to have been sufficient notice on Defendants, a continuance to allow Defendants an opportunity to file any opposition.

Plaintiffs to give notice.