Andrade v. Arby's Rest. Grp., Inc., Case No. 15–cv–03175 NC

• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
• Citation: 225 F.Supp.3d 1115
• Docket Number: Case No. 15–cv–03175 NC
• Parties: Miriam ANDRADE, Plaintiff, v. ARBY'S RESTAURANT GROUP, INC., Altamira Corporation, and Pedro Mota., Defendants.
• Decision Date: 12 December 2016

225 F.Supp.3d 1115

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

Case No. 15–cv–03175 NC

United States District Court, N.D. California.

Signed December 12, 2016
Filed December 13, 2016

225 F.Supp.3d 1125

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

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

Altamira Corporation, pro se.

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

NATHANAEL M. COUSINS, United States Magistrate Judge

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

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

I. BACKGROUND

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

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

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

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

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

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

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

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

Andrade moved for entry of default against Altamira on December 17, 2015. Dkt. No. 54. The Clerk of Court entered

225 F.Supp.3d 1127

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

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

II. LEGAL STANDARD

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

III. DISCUSSION

A. Jurisdiction and Service of Process

When presented with a motion for default judgment, the Court has "an affirmative duty to look into its jurisdiction over both the...