MARIA GUZMAN VS GATEWAY FRONTLINE SERVICES INC ET AL

Tentative Rulings

Case Number: BC693419    Hearing Date: January 15, 2020    Dept: 24

Plaintiff’s default judgment application is DENIED without prejudice.

Plaintiff commenced this action on February 8, 2018. This action arises out of allegations by Plaintiff Maria Guzman that her joint employers, Defendants Gateway Frontline Services, Inc. (“GFS”) and Gateway Security, Inc. dba Gateway Group One (“GS”), and her manager, Annie An (“An”), discriminated against her and retaliated against her for taking leave under the California Family Rights Act (“CFRA”) and Family and Medical Leave Act (“FMLA”). In the operative First Amended Complaint (“FAC”), Plaintiff alleges six causes of action for: (1) Fair Employment and Housing Act (”FEHA”) Failure to Provide Reasonable Accommodation; (2) FEHA Failure to Engage in the interactive process; (3) CFRA Retaliation; (4) FMLA Retaliation and Interference; (5) FEHA Disability Discrimination; and (6) Wrongful Termination in Violation of Public Policy.

Plaintiff dismissed An on July 3, 2019. Plaintiff now moves for default against GFS and GS.

The Court notes the following issues:

Service as to GS appears defective. A nonresident defendant can be served anywhere in the world simply by mailing him or her copies of the summons and complaint by first-class mail, postage prepaid, requiring a return receipt. (CCP § 415.40.) Where defendant is a corporation, the “person to be served” is one of the individuals specified by statute to be served on its behalf. (CCP § 416.10(b).) Therefore, any mailing a summons to the corporation itself is not valid service; the summons must be mailed to an individual who may be served on its behalf. To prove service by mail on a nonresident, there must be evidence of actual delivery: either a signed receipt or other proof that the defendant (or someone authorized by defendant) actually received the mail. (CCP § 417.20(a); see Dill v. Berquist Const. Co., Inc. (1994) 24 Cal.App.4th 1426, 1437-1438 [CCP § 415.40 service was invalid because it was not addressed to a person upon whom service could be made on the corporation's behalf; the fact someone signed the postal receipt as “agent” for the corporation did not establish that person as the corporation's agent for service of process].) On October 3, 2019, Plaintiff submitted a proof of service regarding GS. The form indicates service of GS c/o Kurus Elavia (CEO) pursuant to CCP section 416.10(b). While Elavia would be a proper person to serve, there is no indication that any proper agent of GS received the packet. The receipt states that a person named “Silviya” received the package. The last name of Silviya is unclear, but it certainly is not Kurus Elavia. Plaintiff should provide evidence demonstrating that an authorized agent received the mailing. (CCP § 417.20.) If not, GS’s default will be vacated and GS will need to be served. Plaintiff has still not provided sufficient notice of the damages she seeks. CCP section 580(a) limits a trial court's jurisdiction to grant relief on a default judgment to the amount stated in the complaint. (CCP § 580(a); see Greenup v. Rodman (1986) 42 Cal.3d 822, 826-827; Dhawan v. Biring (2015) 241 Cal.App.4th 963, 968-969.) The FAC only notices specific amounts of damages less than the amounts requested in the default judgment. The FAC notices: 1) $52,451.62 in economic damages; 2) $52,451.62 in liquidated damages; 3) $50,000.00 in general damages; and 4) $1,831.81 in interest. The default judgment requests: 1) $77,503.14 in economic damages 2) $77,503.14 in liquidated damages; 3) $75,000.00 in general damages and 4) $5,425.22 in interest. Therefore, the Court cannot grant the requested $230,006.28. Further amendment would be required to enter judgment for the requested amount. As to economic damages, Plaintiff does not explain why she is owed the amount requested. She indicates that her average earnings per week were $391.43. She then provides that she has lost 198 weeks’ worth of earnings, without explaining why she would be entitled to 198 weeks. For her general damages, more detailed evidence is required beyond her ambiguous statement that she has experienced stress, lack of sleep, loss of appetite, foggy-mindedness, sadness and headaches.

Plaintiff has not demonstrated that she is entitled to prejudgment interest. The claims at issue do not appear certain or capable of being made certain by calculation” prior to entry of judgment (Civ. Code § 3287.) Further, the FAC requests $1,831.81 in interest. The Court would not go beyond the specific amount demanded in the complaint.