Lucas Ramirez v. Cookson ( 2023 )

1 2 3 UNITED STATES DISTRICT COURT 4 EASTERN DISTRICT OF CALIFORNIA 5 ERICK MOISES LUCAS RAMIREZ, et al., Case No. 1:22-cv-01623-SKO 6 Plaintiffs, FINDINGS AND 7 RECOMMENDATIONS THAT PLAINTIFFS’ MOTION FOR 8 v. DEFAULT JUDGMENT BE GRANTED IN PART AND DENIED IN 9 PART MICHAEL COOKSON CONSTRUCTION, 10 INC. and MICHAEL SHERMAN COOKSON, (Doc. 12) 11 Defendants. OBJECTIONS DUE: 21 DAYS 12 _________________________________ ____ / Clerk to Assign District Judge 13 I. INTRODUCTION 14 15 On May 11, 2023, Plaintiffs Erick Moises Lucas Ramirez (“Plaintiff Ramirez”), Isidro 16 Jeronimo Gomez (“Plaintiff Gomez”), and Diego Matzar Mendez (“Plaintiff Mendez”) 17 (collectively, “Plaintiffs”) filed a motion for default judgment against Defendants Michael Cookson 18 Construction (“Defendant MCC”) and Michael Sherman Cookson (“Defendant Cookson”) 19 (collectively, “Defendants”), pursuant to Fed. R. Civ. P. 55(b)(2). (Doc. 12). No opposition to 20 either motion has been filed. (See Docket.) The Court reviewed the parties’ papers and all 21 supporting material and found the matter suitable for decision without oral argument, pursuant to 22 E.D. Cal. Local Rule 230(g). (Doc. 15.) The hearing set for June 21, 2023, was therefore vacated. 23 (Id.) 24 For the reasons set forth below, the undersigned recommends that the motion for default 25 judgment be granted in part and denied in part.1 26 27 28 1 The motion for default judgment is referred to the undersigned by E.D. Cal. Local Rule 302(c)(19) for the entry of 1 2 Plaintiffs allege they were employed by Defendant MCC and its alter ego Defendant 3 Cookson as drivers and general laborers from June 2020 to August 2022. (Doc. 1 ¶¶ 13–23.) On 4 December 20, 2022, Plaintiffs filed this lawsuit alleging that during their employment Defendants 5 violated various federal and state labor laws, including failure to pay minimum wage and overtime, 6 failure to pay waiting time penalties, failure to provide rest breaks, and failure to provide complete 7 wage statements. (Doc. 1 ¶¶ 24–180.) 8 On February 15, 2023, Defendant Cookson was personally served with this lawsuit, and 9 Defendant MCC was served through its registered agent, Defendant Cookson. (See Docs. 5, 7.) 10 Neither Defendant has filed an answer or taken any action indicating that they intend to defend the 11 suit. 12 Plaintiffs requested entry of default against Defendants on March 28, 2023, which was 13 entered by the Clerk of Court that same day. (See Docs. 9 & 10.) On May 11, 2023, Plaintiffs filed 14 the present motion for default judgment, requesting entry of judgment in favor of Plaintiffs in the 15 amounts of $108,992.20 to Plaintiff Ramirez, $54,800.00 to Plaintiff Gomez, and $54,800.00 to 16 Plaintiff Mendez.2 (Doc. 12 at 3.) Plaintiffs also seek an award of $4,130 in attorney’s fees and 17 costs. (Id.) As noted above, no opposition to the motion for default judgment has been filed. 18 III. LEGAL STANDARD 19 Granting or denying default judgment is within the court’s sound discretion. Draper v. 20 Coombs, 792 F.2d 915, 924–25 (9th Cir. 1986); Aldabe v. Aldabe, 616 F.2d. 1089, 1092 (9th Cir. 21 1980). The court is free to consider a variety of factors in exercising its discretion. Eitel v. McCool, 22 782 F.2d 1470, 1471–72 (9th Cir. 1986). Among the factors that may be considered by the court 23 are: (1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff’s substantive claims, 24 (3) the sufficiency of the complaint, (4) the sum of money at stake in the action; (5) the possibility 25 of a dispute concerning material facts; (6) whether the default was due to excusable neglect, and (7) 26 the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits. 27 2 The declarations filed in support of the motion seek an additional $5,000 each for Plaintiffs Gomez and Mendez, 28 however. (See Doc. 12 at 16–17 (requesting a total of $59,800.00 for Plaintiff Gomez); id. at 21–22 (requesting a total 1 Eitel, 782 F.2d at 1471–72 (citing 6 MOORE’S FEDERAL PRACTICE ¶ 55–05[2], at 55–24 to 55–26). 2 IV. DISCUSSION 3 In considering Plaintiffs’ motion, the undersigned will address each of the Eitel factors in 4 turn below. 5 A. Factor 1: Possibility of Prejudice 6 If default judgment is not entered, Plaintiffs will effectively be denied a remedy until 7 Defendants participate and make an appearance in the litigation—which may never occur. Denying 8 Plaintiffs a means of recourse is, by itself, sufficient to meet the burden imposed by this factor. See 9 Philip Morris USA, Inc. v. Castworld Prods., Inc., 219 F.R.D. 494, 499 (C.D. Cal. 2003) 10 (“prejudice” exists where the plaintiff has no “recourse for recovery” other than default judgment). 11 Consideration of this factor weighs in favor of granting Plaintiffs’ motion. 12 B. Factors 2 & 3: Merits of Plaintiffs’ Claims and Sufficiency of Complaint 13 The second and third Eitel factors, relating to the merits of Plaintiffs’ claims and the 14 sufficiency of the complaint, can be discussed in tandem. See Dr. JKL Ltd. v. HPC IT Educ. Ctr., 15 749 F. Supp. 2d 1038, 1048 (N.D. Cal. 2010) (“Under an Eitel analysis, the merits of plaintiff’s 16 substantive claims and the sufficiency of the complaint are often analyzed together.”). “[T]he 17 general rule is that well-pled allegations in the complaint regarding liability are deemed true.” Fair 18 Hous. of Marin v. Combs, 285 F.3d 899, 906 (9th Cir. 2002). 19 The Court finds that these factors are satisfied as to all of the claims in the complaint, as 20 discussed below. “Of all the Eitel factors, courts often consider the second and third factors to be 21 the most important.” Vietnam Reform Party v. Viet Tan - Vietnam Reform Party, 416 F. Supp. 3d 22 948, 962 (N.D. Cal. 2019) (internal quotation marks and citation omitted). Thus, Plaintiffs’ 23 satisfaction of the second and third Eitel factors weighs strongly in favor of default judgment. 24 1. Unpaid Wages Under the FLSA 25 Claim 1, brought by Plaintiff Ramirez alone, alleges failure to pay overtime wages under the 26 FLSA, which provides for overtime wages of not less than time and a half for hours worked in 27 excess of 40 hours in a workweek. 29 U.S.C. § 207(a). Claims 3, 9, 15, brought by Plaintiffs 28 Ramirez, Gomez, and Mendez, respectively, allege failure to pay minimum wages under the FLSA. 1 29 U.S.C. § 206(a). “To establish a minimum-wage or overtime violation of the FLSA, Plaintiffs 2 must establish three elements: (1) [they were] an employee of Defendants, (2) [they were] covered 3 under the FLSA, and (3) Defendants failed to pay [them] minimum wage or overtime wages.” Smith 4 v. Nov. Bar N Grill LLC, 441 F. Supp. 3d 830, 834 (D. Ariz. 2020). 5 With respect to the first element, that the plaintiff was an employee of the defendant, the 6 Ninth Circuit has held that “the definition of ‘employer’ under the FLSA is not limited by the 7 common law concept of ‘employer,’ but is to be given an expansive interpretation in order to 8 effectuate the FLSA’s broad remedial purposes.” Lambert v. Ackerley, 180 F.3d 997, 1011-12 (9th 9 Cir. 1999) (internal quotation marks and citation omitted). For example, “[w]here an individual 10 exercises control over the nature and structure of the employment relationship, or economic control 11 over the relationship, that individual is an employer within the meaning of the Act, and is subject to 12 liability.” Id. at 1012 (internal quotation marks and citation omitted). 13 Here, the complaint alleges that each of the defendants was an employer of Plaintiffs within 14 the meaning of the FLSA. (See Doc. 1. ¶¶ 10–12, 29.) Plaintiffs allegedly were employed by 15 Defendant MCC, which is the alter ego of Defendant Cookson, see id. ¶¶ 10, 19–23, and Defendant 16 Cookson allegedly exercised control over the employment relationship, see id. ¶¶ 11, 12. The 17 undersigned finds the complaint’s allegations, taken as true, to be sufficient to establish the first 18 element of the FLSA claims. 19 With respect to the second element, that the plaintiff was covered under the FLSA, an 20 individual is covered under the FLSA if the individual “works for an enterprise engaged in 21 commerce.” Smith, 441 F. Supp. 3d at 841. The complaint alleges that Defendants provide 22 residential and commercial remodeling services and were employers covered by the FLSA. (Doc. 23 ¶¶ 10, 11, 25, 26.) The undersigned finds these allegations sufficient to satisfy the second element 24 of the FLSA claims. 25 With respect to the third element, that Defendants failed to pay the plaintiff minimum or 26 overtime wages, the complaint alleges that: “Throughout the course of Plaintiff [Ramirez]’s 27 employment with Defendants, Defendants regularly scheduled and directed Plaintiff [Ramirez] to 28 work over forty (40) hours per week,” Doc. 1 ¶ 33; “Defendants willfully, intentionally, and with 1 reckless disregard failed to pay Plaintiff [Ramirez] the minimum wage for all his/her hours worked 2 in violation of the FLSA,” id. ¶ 34; and “Defendants failed to pay Plaintiff[s] [their] earned wages . 3 . . and instead paid [them] $0 per hour . . . Defendants failed to pay Plaintiff[s] the legal minimum 4 wage,” id. ¶¶ 45, 91, 137, . While these allegations set forth Plaintiffs’ theory of recovery and the 5 general outlines of their claims, they are not sufficient on their own. However, as discussed below, 6 the allegations of the complaint combined with evidence in the record is sufficient to satisfy the 7 second and third Eitel factors. 8 To establish a failure to pay minimum wages in violation of the FLSA, the employee must 9 show that in a given work week, the total amount paid divided by the hours worked falls below the 10 minimum wage set by the statute. See Durland v. Straub, No. 3:20-CV-00031-IM, 2022 WL 11 2704169, at *5 (D. Or. July 12, 2022). To establish a failure to pay overtime wages, the employee 12 must show that in a given work week, the employee worked more than forty hours and was not paid 13 time and a half for all hours in excess of forty. See id. at *6. Those necessary specifics are supplied 14 by the declarations of Plaintiffs, the documents attached thereto, and the supplemental briefing filed 15 in support of the motion. (See Docs. 12 & 16.) Plaintiffs attach declarations and spreadsheets, 16 broken down by workweek, listing: average hours worked per week; hours worked in excess of 40 17 hours per week; hourly wage; minimum wage per hour; unpaid minimum wage; unpaid overtime 18 wage; weekly wage; wage paid; and FLSA liquidated damages. (See Doc. 12 at 9–30.) Plaintiffs 19 have also provided supplemental briefing directed to their unpaid minimum wage claims. (See Doc. 20 18.) 21 The undersigned finds that the allegations of the complaint, combined with the declarations 22 of Plaintiffs, the documents attached thereto, and the supplemental briefing filed in support of the 23 motion, establish the merits and sufficiency of Plaintiffs’ claims for overtime wages and minimum 24 wages under the FLSA. 25 2. Unpaid Wages Under California Law 26 Claim 2, brought by Plaintiff Ramirez alone, alleges failure to pay overtime wages under the 27 California Labor Code, which provides for overtime wages of not less than time and a half for hours 28 worked in excess of 40 hours in a workweek. Cal. Lab. Code § 510(a). Claims 4, 10, 16, brought 1 by Plaintiffs Ramirez, Gomez, and Mendez, respectively, allege failure to pay minimum wages 2 under California Labor Code. See Cal. Lab. Code § 1182.12(a). As set forth, supra n.2, under 3 California Labor Code § 1194, “any employee receiving less than the legal minimum wage or the 4 legal overtime compensation applicable to the employee is entitled to recover in a civil action the 5 unpaid balance of the full amount of this minimum wage or overtime compensation, including 6 interest thereon, reasonable attorney’s fees, and costs of suit.” Cal. Lab. Code § 1194(a). 7 The definition of employer for purposes of the California Labor Code is slightly different 8 from the definition of employer under the FLSA. See Martinez v. Combs, 49 Cal. 4th 35, 67 (2010). 9 Under California law, an employer is one who “employs or exercises control over the wages, hours, 10 or working conditions of any person.” Id. The same alleged facts that satisfy the definition of 11 employer for purposes of the FLSA also satisfy the definition of employer under California law— 12 Plaintiffs allegedly were employed by Defendant MCC, which is the alter ego of Defendant 13 Cookson, see Doc. 1 ¶¶ 10, 19–23, and Defendant Cookson allegedly exercised control over the 14 employment relationship, see id. ¶¶ 11, 12. Moreover, the declarations of Plaintiffs, the documents 15 attached thereto, and the supplemental briefing filed in support of the motion show Plaintiffs were 16 not paid the overtime wages and minimum wages required under California law when they worked 17 for Defendants in California. (Doc. 12 at 9–30; Doc. 18-2 , 18-3, and 18-4.) 18 The Court finds that these documents, combined with the allegations of the complaint, 19 establish the merits and sufficiency of Plaintiffs’ claims for overtime wages and minimum wages 20 under California law. 21 3. Waiting Time Penalties Under California Law 22 Claims 5, 11, and 17 brought by Plaintiffs Ramirez, Gomez, and Mendez, respectively, 23 allege failure to pay waiting time penalties in violation of California Labor Code § 203, which 24 provides that when an employer fails to pay all compensation due at the termination of employment, 25 “the wages of the employee shall continue as a penalty from the due date thereof at the same rate 26 until paid or until an action therefor is commenced; but the wages shall not continue for more than 27 30 days.” Cal. Lab. Code § 203(a). The complaint alleges that Defendants failed to pay wages due, 28 including minimum wages and overtime wages, to Plaintiffs following termination of their 1 employment. (See Doc. 1 ¶¶ 60–64, 106–110, 152–156.) The declarations of Plaintiffs and the 2 documents attached thereto provide a calculation of the recovery due to each Plaintiff for 30 days 3 of waiting time penalties. (See Doc. 12 at 9–30.) The Court finds that the allegations of the 4 complaint, combined with the declarations of Plaintiffs and the documents attached thereto, 5 establish the merits and sufficiency of Plaintiffs’ claims for waiting time penalties under California 6 law. 7 4. California Unfair Competition Law 8 California’s Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code §17200, creates a 9 cause of action for business practices that are: (1) unlawful, (2) unfair, or (3) fraudulent. Henry v. 10 Lehman Commer. Paper, Inc. (In re First Alliance Mortg. Co.), 471 F.3d 977, 995 (9th Cir. 2006). 11 “Its coverage has been described as sweeping, embracing anything that can properly be called a 12 business practice and at the same time is forbidden by law.” Id. (internal quotations and citation 13 omitted). “Each prong of the UCL is a separate and distinct theory of liability; thus, the ‘unfair’ 14 practices prong offers an independent basis for relief.” Lozano v. AT & T Wireless Servs., Inc., 504 15 F.3d 718, 731 (9th Cir. 2007) (citation omitted). “By proscribing ‘any unlawful’ business practice, 16 [section 17200] borrows violations of other laws and treats them as unlawful practices that the unfair 17 competition law makes independently actionable.” Cel–Tech Commc’ns, Inc. v. L.A. Cellular Tel. 18 Co., 20 Cal. 4th 163, 180 (1999) (internal quotations and citations omitted). 19 The predicate for Plaintiffs’ claims 6 (Plaintiff Ramirez), 12 (Plaintiff Gomez), and 18 20 (Plaintiff Ramirez) under the UCL is Defendants’ alleged violations of the wage and hour laws 21 discussed above. (See Doc. 1 ¶¶ 67–68, 113–114, 159–160.) Because Plaintiffs’ allegations, taken 22 as true, establish violations of those statutes, Plaintiffs may “borrow” from those violations to 23 sustain a UCL claim. See Cel–Tech Commc’ns, Inc., 20 Cal. 4th at 180. 24 5. Rest and Meal Periods Under California Law 25 Claims 7, 13, and 19 brought by Plaintiffs Ramirez, Gomez, and Mendez, respectively, 26 allege failure to provide rest periods in violation of California Labor Code §§ 226.7 and 512 and 27 applicable wages orders. “[E]mployers who unlawfully denied their employees a meal or rest period 28 on any given day must pay the employees an additional hour of pay at their regular rate.” Naranjo 1 v. Spectrum Sec. Servs., Inc., 13 Cal. 5th 93, 105 (2022) (internal quotation marks and citations 2 omitted). The complaint alleges that Plaintiffs were not provided any meal or rest periods to which 3 they were entitled while working for Defendants. (See Doc. 1 ¶¶ 77–81, 123–27, 168–73.) 4 Plaintiffs’ declarations and attachments thereto show that they were not given required rest and meal 5 periods, and a calculation of the rest and meal period compensation due to each Plaintiff is provided. 6 (See Doc. 12 at 9–30.) The Court finds that these documents, combined with the allegations of the 7 complaint, establish the merits and sufficiency of Plaintiffs’ claims for denial of rest and meal 8 periods under California law. 9 6. Wage Statements Under California Law 10 Claims 8, 14, and 20 brought by Plaintiffs Ramirez, Gomez, and Mendez, respectively, 11 allege failure to provide accurate wage statements in violation of California Labor Code § 226. 12 California Labor Code § 226 requires employers to provide employees with accurate itemized 13 statements in writing showing, among other things, their gross and net wages earned, total hours 14 worked, all deductions, the dates included in the pay period, and the identifying information of the 15 employee and employer, and “all applicable hourly rates in effect during the pay period and the 16 corresponding number of hours worked at each hourly rate by the employee.” Cal. Lab. Code § 17 226(a). These statements must be provided on a semimonthly basis or at the time of each wage 18 payment. See id. “An employee suffering injury as a result of a knowing and intentional failure by 19 an employer to comply with subdivision (a) is entitled to recover the greater of all actual damages 20 or fifty dollars ($50) for the initial pay period in which a violation occurs and one hundred dollars 21 ($100) per employee for each violation in a subsequent pay period, not to exceed an aggregate 22 penalty of four thousand dollars ($4,000), and is entitled to an award of costs and reasonable 23 attorney’s fees.” Cal. Lab. Code § 226(e). 24 The complaint alleges that Defendants failed to list the following information on Plaintiffs’ 25 wage statements: gross wages earned; total hours worked; net wages earned; the applicable hourly 26 rate in effect during the pay period; the corresponding number of hours worked at each hourly rate; 27 28 1 and information pertaining to compensable rest and recovery periods and other nonproductive time.3 2 (See Doc. 1 ¶¶ 83–84, 129–130, 175–176.) Plaintiffs’ declarations and attachments provide a 3 calculation of the recovery due to each Plaintiff for the failure to provide wage statements. (See 4 Doc. 12 at 9–30.) The Court finds that the allegations of the complaint, combined with the 5 declarations of Plaintiffs and the documents attached thereto, establish the merits and sufficiency of 6 Plaintiffs’ claims for failure to provide wage statements under California law. 7 C. Factor 4: Sum of Money at Stake 8 Under the fourth Eitel factor, the Court must consider the amount of money at stake in 9 relation to the seriousness of Defendants’ conduct. “Default judgment is disfavored where the sum 10 of money at stake is too large or unreasonable in light of defendant’s actions.” Love v. Griffin, No. 11 18-CV-00976-JSC, 2018 WL 4471073, at *5 (N.D. Cal. Aug. 20, 2018). Here, Plaintiffs seek the 12 following amounts: $108,992.20 for Plaintiff Ramirez, $54,800.00 for Plaintiff Gomez, and 13 $54,800.00 for Plaintiff Mendez. (See Doc. 12 at 2.) In the undersigned’s view, those amounts are 14 not too large or unreasonable considering Defendants’ alleged blatant violations of the FLSA and 15 California wage and hour laws. The fourth Eitel factor favors default judgment. 16 D. Factor 5: Possibility of Dispute 17 Under the fifth Eitel factor, the Court considers whether there is a possibility of a dispute 18 over any material fact. See Love, 2018 WL 4471073, at *5; Ridola v. Chao, No. 16-CV-02246- 19 BLF, 2018 WL 2287668, at *13 (N.D. Cal. May 18, 2018). Because Defendants have not appeared, 20 they are not entitled to dispute the facts established by Plaintiffs. This factor favors default 21 judgment. 22 E. Factor 6: Reason for Default 23 Under the sixth Eitel Factor, the Court considers whether the default was due to excusable 24 neglect. There is no indication on this record that Defendants’ failure to respond to this action was 25 due to excusable neglect. This factor favors default judgment. 26 /// 27 28 3 Plaintiffs’ complaint refers to “Wage Statement Subclass Members.” (See Doc. 1 ¶¶ 85, 131, 177.) These references 1 F. Factor 7: Policy Favoring Decision on the Merits 2 The seventh Eitel factor, which is the strong policy favoring decisions on the merits, weighs 3 against default judgment. In cases where the other Eitel factors weigh in favor of default judgment, 4 the seventh factor will not be an impediment to granting default judgment. See Ridola, 2018 WL 5 2287668, at *13 (“Although federal policy favors decision on the merits, Rule 55(b)(2) permits entry 6 of default judgment in situations, such as this, where a defendant refuses to litigate.”). 7 G. Conclusion as the Eitel Factors 8 All of the Eitel factors except the seventh weigh in favor of default judgment. The second 9 and third factors, which are the most important, strongly favor default judgment. Accordingly, the 10 undersigned will recommend that Plaintiffs’ motion for default judgment against Defendants be 11 granted in part, as explained below. 12 H. Relief Requested 13 Having concluded that Plaintiffs are entitled to default judgment, the undersigned must 14 consider whether they have established that they are entitled to the relief requested. “Upon entry of 15 default, a plaintiff is required to prove the amount of his damages, because neither the default nor 16 the allegations in the complaint can establish the amount of damages.” Lasheen v. Embassy of The 17 Arab Republic of Egypt, 625 F. App’x 338, 341 (9th Cir. 2015). “The district court may determine 18 the amount of damages without an evidentiary hearing where the amount claimed is a liquidated 19 sum or capable of mathematical calculation.” Id. (internal quotation marks and citation omitted). 20 Plaintiffs seek damages and penalties the following amounts: $108,992.20 for Plaintiff 21 Ramirez, $54,800.00 for Plaintiff Gomez, and $54,800.00 for Plaintiff Mendez. (See Doc. 12 at 2, 22 9–30.) As discussed above, Plaintiffs have submitted declarations along with spreadsheets 23 calculating the total damages requested by each Plaintiff, as well as supplemental briefing on the 24 calculation of their unpaid minimum wage damages. (See Doc. 18.) Plaintiffs also seek an award 25 of attorney’s fees and costs in the amount of $4,130.00 under the FLSA, supported by the declaration 26 of Plaintiffs’ counsel. (See Doc. 12 at 2, 28–30.) 27 For the most part, the damages calculations are straightforward and need not be addressed 28 in detail here. (See, e.g., Doc. 12 at 9–30.) The Court discusses in depth only a few aspects of the 1 request for relief, as follows. 2 1. No Duplication of Wage Claims Under FLSA and State Law 3 Claims 1, 3, 9, and 15 request unpaid minimum and overtime wages under the FLSA, while 4 Claims 2, 4, 10, and 16 request unpaid minimum and overtime wages under California state law. It 5 appears Plaintiffs do not seek a damage award under both the FLSA and California law separately, 6 to avoid a double recovery.4 (See Doc. 12 at 9–30.) 7 2. Unpaid Wage Claim Damages 8 In the order directing supplemental briefing, the undersigned observed that Plaintiffs 9 calculated their damages for their unpaid minimum wage claims “using not the state-mandated 10 hourly minimum wage, but their regular hourly wage rate instead, which is substantially higher,” 11 and ordered that Plaintiffs provide “authority to support this as an appropriate calculation for unpaid 12 minimum wage damages under the FLSA and California law.” (Doc. 16.) Plaintiffs’ supplemental 13 briefing does not supply such authority, arguing instead, without citation, that the overtime 14 provisions of the FLSA and the California Labor Code give rise to a “reasonable presumption that 15 Plaintiffs would be entitled to their regular rate for their unpaid regular hours as well.” (Doc. 18 at 16 4.) 17 The undersigned rejects such unsupported “presumption,” finding instead that the penalty 18 provisions of both the FLSA and the California Labor Code expressly measure the damages for 19 unpaid minimum wage claims in terms of “minimum wages” and not regular rate wages. See 29 20 U.S.C. § 216(b) (“Any employer who violates the provisions of section 206 . . . of this title shall be 21 liable to the employee or employees affected in the amount of their unpaid minimum wages . . . . 22 .”) (emphasis added); Cal. Labor Code § 1194 (“[A]ny employee receiving less than the legal 23 minimum wage . . . is entitled to recover in a civil action the unpaid balance of the full amount of 24 this minimum wage . . . .”) (emphasis added). 25 Accordingly, the undersigned recommends that the motion for default judgment be denied 26 to the extent Plaintiffs calculate their damages for unpaid minimum wages under the FLSA and state 27 28 4 Plaintiffs also do not seek a separate restitution award under the UCL (Claims 6, 12, and 18) in their motion for 1 law (Claims 3, 4, 9, 10, 15, and 16) using their regular rate of pay. Instead, the undersigned 2 recommends awarding Plaintiff Ramirez damages for his 15 days of unpaid wages (see Doc. 18-2) 3 in the amount of $2,700: $1,800 (8 hours per day at $15.00 per hour applicable minimum wage rate, 4 see Cal. Lab. Code § 1182.12, for 15 days) + $900 (2 overtime hours per day at $30.00 per hour 5 rate, which is “not less than one and one-half times the regular rate at which he is employed,” see 6 29 U.S.C. § 207, for 15 days).5 The undersigned further recommends awarding Plaintiffs Gomez 7 and Mendez damages for their 12 days of unpaid wages (see Docs. 18-3 & 18-4) in the amount of 8 $1,440 each (8 hours per day at $15.00 per hour applicable minimum wage rate, see Cal. Lab. Code 9 § 1182.12, for 12 days).6 10 3. Liquidated Damages 11 Under the FLSA, “[a]ny employer who violates the provisions of section 206 or section 207 12 of this title shall be liable to the employee or employees affected in the amount of their unpaid 13 minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional 14 equal amount as liquidated damages.” 29 U.S.C.A. § 216(b). For Claims 1, 3, 9, and 15 brought 15 under the FLSA, Moving Parties properly seek liquidated damages equal to the total recoverable 16 unpaid minimum and overtime wages. (See Doc. 12 at 9–30.) 17 Under California law, “[i]n any action . . . to recover wages because of the payment of a 18 wage less than the minimum wage fixed by an order of the commission or by statute, an employee 19 shall be entitled to recover liquidated damages in an amount equal to the wages unlawfully unpaid 20 and interest thereon.” Cal. Lab. Code § 1194.2(a). However, “[n]othing in this subdivision shall be 21 construed to authorize the recovery of liquidated damages for failure to pay overtime 22 compensation.” Id. Plaintiffs do not seek liquidated damages for their unpaid minimum wages 23 under state law (Claims 4, 10, 16), to avoid a double recovery. 24 Plaintiffs do not seek liquidated damages with respect to Claims 5, 11, and 17 (waiting time 25 26 5 To avoid double recovery, Plaintiff Ramirez’s overtime damages calculation as reflected on his supporting spreadsheet (Doc. 12 at 13) will be reduced by $600, the amount of missed overtime pay he claims for these workweeks. 27 6 Plaintiffs’ supplemental briefing indicates that Plaintiffs Gomez and Mendez worked overtime hours (see Docs. 18-3 and 18-4), but they do not plead such a claim in the complaint, nor does the motion for default judgment contain any 28 calculation of unpaid overtime damages. Thus, the undersigned declines to find that Plaintiffs Gomez and Mendez are 1 penalties), Claims 7, 13, and 19 (meal and rest time premium pay), or Claims 8, 14, and 20 (wage 2 statement penalties) brought under California law. The undersigned finds that Plaintiffs have proved 3 their entitlement to the requested premium pay and penalties. 4 4. Attorney’s Fees and Costs 5 Plaintiffs seek attorney’s fees of $3,260.00 for the work of their counsel, James M. Dore, in 6 this matter. They also seek costs of $870.00 expended on this matter. The undersigned recommends 7 awarding these amounts, as discussed below. 8 a. Applicable Law 9 Under the “American Rule,” each party to a lawsuit ordinarily bears its own attorney fees 10 unless there is express statutory authorization to award attorney fees. Hensley v. Eckerhart, 461 11 U.S. 424, 429 (1983). The FLSA provides that in addition to any judgment, an employee is entitled 12 to reasonable attorney fees and costs of the action. 29 U.S.C. § 216(b). Additionally, Plaintiffs are 13 entitled to attorney fees under multiple state statutes: Cal. Lab. Code § 218.5; Cal Lab. Code § 14 226(e)(1); Cal. Lab. Code § 226(h); Cal. Lab. Code § 1194(a); Cal. Lab. Code § 1198.5(l); and Cal. 15 Lab. Code § 2802(c). 16 Trial courts have broad discretion in determining the reasonableness of attorney fees. Gates 17 v. Deukmejian, 987 F.2d 1392, 1398 (9th Cir. 1992). The Ninth Circuit utilizes the “lodestar” 18 approach for assessing reasonable attorney’s fees, where the number of hours reasonably expended 19 is multiplied by a reasonable hourly rate. Gonzalez v. City of Maywood, 729 F.3d 1196, 1202 (9th 20 Cir. 2013); Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 978 (9th Cir. 2008). In determining 21 reasonable hours, counsel bears the burden of submitting detailed time records justifying the hours 22 claimed to have been expended.” Chalmers v. City of Los Angeles, 796 F.2d 1205, 1210–11 (9th 23 Cir. 1986). 24 The Supreme Court has explained that the loadstar amount is to be determined based upon 25 the prevailing market rate in the relevant community. Blum v. Stenson, 465 U.S. 886, 896 (1984). 26 The “relevant legal community” for the purposes of the lodestar calculation is generally the forum 27 in which the district court sits. Gonzalez, 729 F.3d at 1205. The relevant community here is the 28 Fresno Division of the Eastern District of California. The standard is the “rate prevailing in the 1 community for similar work performed by attorneys of comparable skill, experience, and 2 reputation.” Barjon v. Dalton, 132 F.3d 496, 502 (9th Cir. 1997) (quoting Chalmers, 796 F.2d at 3 1210–11). 4 b. Analysis 5 Plaintiffs seek $400 per hour for the time spent by Mr. Dore on this matter. (See Doc. 12 at 6 28–30.) According to Mr. Dore’s declaration, he has been “practicing law for over thirteen years.” 7 (Id. at 28.) Courts in the Eastern District of California, Fresno Division, however, have found that 8 the reasonable hourly rates for competent attorneys with less than fifteen years of experience are 9 $250 to $350 per hour. See, e.g., In re Taco Bell Wage & Hour Actions, 222 F. Supp. 3d 813, 839 10 (E.D. Cal. 2016) (concluding that appropriate rates in this community are $350 to $400 per hour for 11 attorneys with twenty or more years of experience, $250 to $350 per hour for attorneys with less 12 than fifteen years of experience, and $125 to $200 per hour for attorneys with less than two years of 13 experience); Torchia, 304 F.R.D. at 277 (awarding attorney with seven years of experience $300.00 14 per hour in wage and hour class action); Sanchez v. Frito-Lay, Inc., No. 1:14-CV-00797-AWI-MJS, 15 2015 WL 4662636, at *18 (E.D. Cal. Aug. 5, 2015) (finding reasonable rate for attorney with 16 fourteen years of experience was $275.00 per hour in a wage and hour class action); Jones v. Lehigh 17 Southwest Cement Co., Inc., No. 1:12–cv–00633–AWI, 2014 WL 346619, at *6 n.3 (E.D. Cal. Jan. 18 30, 2014) (awarding $280.00 and $215.00 per hour in employment action); Williams v. Ruan 19 Transport Corp., No. 13–cv–01157–LJO, 2013 WL 6623254, at *6 (E.D. Cal. Dec. 16, 2013) (this 20 Court awarded $375.00 per hour to attorney with over thirty years of experience and $325.00 per 21 hour to attorney with fifteen years of experience in employment action). 22 Based on the authorities cited above, the undersigned finds that a downward adjustment to 23 the rate requested by Mr. Dore is appropriate to reflect the prevailing rates in the Eastern District of 24 California. Therefore, the undersigned recommends awarding Mr. Dore attorney’s fees at an hourly 25 rate of $300. 26 Regarding the hours spent (8.15 hours), Mr. Dore has provided detailed billing records that 27 include the date, amount of time spent, attorney name, and description of the activity being billed. 28 (Doc. 12 at 29.) The undersigned has reviewed the time accounting and determines that the amount 1 of time spent appears to be reasonable. Accordingly, the undersigned recommends an award of 2 attorney’s fees in the amount of $2,445.00. 3 Finally, Plaintiffs seek an award of their costs in filing this action. (See id.) Plaintiffs assert 4 the costs incurred totaled $870.00, which represents the filing fee ($402) and the cost of servicing 5 the summons and complaint on Defendants ($468). (Id.) The undersigned finds these costs are 6 reasonable. 7 In sum, the undersigned recommends Plaintiff’s request for attorney’s fees and costs be 8 granted in part, as modified above. 9 V. CONCLUSION AND RECOMMENDATION 10 In view of the foregoing, IT IS HEREBY RECOMMENDED that: 11 1. Plaintiffs’ motion for default judgment against Defendants Michael Cookson 12 Construction and Michael Sherman Cookson (Doc. 12) be granted in part and denied in 13 part as to Claims 3, 4, 9, 10, 15, and 16, as set forth herein, and granted as to all other 14 claims; 15 2. Judgment be entered against Defendants Michael Cookson Construction and Michael 16 Sherman Cookson; 17 3. Plaintiff Ramirez be awarded the following damages: $23,660 in unpaid wages; $23,660 18 in liquidated damages; $6,000 in waiting time penalties; $38,808 for failure to provide 19 rest and meal periods; and $4,000 for failure to provide complete and accurate wage 20 statements; 21 4. Plaintiff Gomez be awarded the following damages: $1,440 in unpaid wages; $1,440 in 22 liquidated damages; $6,000 in waiting time penalties; $45,000 for failure to provide rest 23 and meal periods; and $4,000 for failure to provide complete and accurate wage 24 statements; 25 5. Plaintiff Mendez be awarded the following damages: $1,440 in unpaid wages; $1,440 26 in liquidated damages; $6,000 in waiting time penalties; $45,000 for failure to provide 27 rest and meal periods; and $4,000 for failure to provide complete and accurate wage 28 statements; 1 6. Plaintiffs’ request for attorney’s fees and costs be granted in part and denied in part, as 2 set forth herein; and 3 7. Plaintiffs be awarded their attorney’s fees and costs in the amount of $3,315.00. 4 The Clerk of Court shall assign a district judge to this matter. 5 These findings and recommendations are submitted to the district judge assigned to this 6 action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within twenty-one 7 (21) days of service of this recommendation, any party may file written objections to these 8 findings and recommendations with the Court and serve a copy on all parties. Such a document 9 should be captioned “Objections to Magistrate Judge’s Findings and Recommendation.” The 10 district judge will review the magistrate judge’s findings and recommendation pursuant to 28 U.S.C. 11 § 636(b)(1)(C). The parties are advised that failure to file objections within the specified time may 12 waive the right to appeal the district judge’s order. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th 13 Cir. 2014). 14 IT IS SO ORDERED. 15 16 Dated: July 24, 2023 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28