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Rodriguez v. Cho

California Court of Appeals, Second District, Eighth Division

May 7, 2015

DULCE RODRIGUEZ, Plaintiff and Respondent,
v.
NAM MIN CHO, Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, No. BC465804 Mark Bornstein, Judge.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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COUNSEL

Law Office of Chad Biggins and Chad Biggins for Defendant and Appellant.

Brown & Lipinsky, Daren H. Lipinsky, Aaron Ray Boyd and Bryan L. McNally for Plaintiff and Respondent.

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OPINION

FLIER, J.

Nam Min Cho appeals from an order denying his motion to set aside the default judgment in this action. Cho raises two main contentions, one relating to purportedly improper or fraudulent service of the summons and complaint, and the second relating to the amount of damages awarded in the default judgment. We find the first contention lacks merit but the second does not. We hold the default judgment is void because it exceeded the amount of damages stated in the complaint. Accordingly, we reverse and remand with directions.

FACTS AND PROCEDURE

1. Allegations of Complaint

Dulce Rodriguez filed a complaint on July 11, 2011, against defendants Cho and Reliable Building Maintenance (Reliable), alleging Cho did business as Reliable. The complaint alleged defendants employed Rodriguez as a “housekeeper” at the Los Angeles County courthouse in Pomona from September 2005 to November 2010. Rodriguez’s husband also worked for defendants at the same location. When she finished her shift, she would stay and assist her husband with his cleaning. Defendants knew of her overtime work and did not object, and they did not pay her overtime.

In 2009, Rodriguez filed a claim with the Division of Labor Standards Enforcement (DLSE) seeking unpaid overtime wages. Maintenance Cooperation Trust Fund, a statewide watchdog organization that works to abolish illegal and unfair business practices in the janitorial industry, assisted her with the DLSE claim. She presented letters from witnesses in support of her claimed overtime hours. The deputy labor commissioner assigned to her case would not accept such letters, but wanted sworn affidavits or live testimony. The DLSE dismissed her claim. In July 2009, the Maintenance Cooperation Trust Fund sent defendants a letter stating the dismissal of Rodriguez’s claim did not change the fact that her filing was a protected action under California law, and the law prohibited retaliating against her for the filing.

Rodriguez’s coworker also filed a claim against defendants for unpaid overtime with the Maintenance Cooperation Trust Fund’s assistance. In November 2010, Rodriguez’s manager informed her that because she had filed a claim with the DLSE, and because she had inspired her coworker to likewise file a claim, defendants were terminating her effective November 18, 2010. Rodriguez alleged defendants’ conduct caused her pain and suffering, extreme and severe mental anguish, and emotional distress, as well as a loss of earnings and other benefits and job opportunities.

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Rodriguez exhausted her administrative remedies by sending letters via certified mail to the Labor and Workforce Development Agency, Cho, and Reliable, alleging violations of the Labor Code by defendants. More than 33 days elapsed, and Rodriguez did not receive notice from the Labor and Workforce Development Agency that it intended to investigate her claims.

The complaint alleged causes of action for retaliation under three different Labor Code sections (Lab. Code, §§ 98.6, 232, subd. (c), 1102.5, subd. (b)), violations of the Labor Code Private Attorneys General Act of 2004 (PAGA) (Lab. Code, § 2698 et. seq.), and wrongful termination in violation of public policy.

The prayer for relief requested general, special, compensatory, and punitive damages in an amount to be proved at trial, a civil penalty in the amount of $10, 000 (Lab. Code, ยง 1102.5, subd. (f)), civil ...


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