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SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF
San Diego
JUDICIAL DISTRICT
Central Division
'LAINTIFF:
Derald Leggitt
DEFENDANT:
10 - 86954 MM
BY
DEPUTY
inda Aguilar
JUDGMENT
A certified copy of a final Order, Decision or Award of the Labor Commissioner has been filed with this court. Judgment therefore is entered
as follows: Plaintiff recover from Defendant.
83.00 for wages and expenses pursuant to Labor Code Section 98.1;
72.33 for liquidated damages pursuant to Labor Code Section 1194.2;
16.38 interest pursuant to Labor Code Section(s) 98.1(c), 1194.2 and/or 2802(b);
2,160.00 for additional wages accrued pursuant to Labor Code Section 203 as a penalty;
0.00 for penalties pursuant to Labor Code Section 203.1;
0.00 other (specify):
2,331.71 Total Amount of Plaintiff's Award
0.68 for post hearing interest pursuant to Labor Code Section 98.1(c)
225.00 for filing fee, pursuant to Labor Code Section 101, et. seq.
2,557.39 Total Amount of Judgment
MAY 1 0 2016
Clerk, by
(--
in Judgment book
at page
I-
eepduaty Clerk
L.C. 98
TELEPHONE NUMBER
F 1
1.
E D
tro.-fik4gtitierforeourt
MAY 1 0 2016
DEFENDANT: DIGITAL EAR, INC., a California Corporation
Case Number
10
86954 MM
To the parties and their attorneys of record: You are hereby notified that the attached copy of the
MAY 1 0 2016
judgment in the above entitled cause was entered on
CLERK'S CERTIFICATE OF SERVICE
I hereby certify that Lam a clerk of the above-named court and not a party to this cause, that I served
a copy of this NOTICE and a copy of the judgment, on the below date, by placing a copy thereof in
separate envelope(s) addressed to:
LABOR COMMISSIONER, STATE OF CALIFORNIA
Department of Industrial Relations
Division of Labor Standards Enforcement
7575 Metropolitan Dr., Ste. 210
San Diego CA 92108
Derald Leggitt
3213 Midway Drive #808
San Diego, CA 92110
and by then sending said envelopt) and depopifipg same with postage fully prepaid thereon, in the
MAY 1 fl 21116
121crin
California on
(7n/ln
United States mail at
Clerk of the Court
by
DLSE 545C (Rev. 3/11)
fict
1. Pineda
STATE OF CALIFORNIA
DEPARTMENT OF INDUSTRIAL RELATIONS
DIVISION OF LABOR STANDARDS ENFORCEMENT
CERTIFICATION OF SERVICE BY MAIL
(C.C.P. 1013A) OR CERTIFIED MAIL
, do hereby certify that I am a resident of or employed in the County
T isa M Rriggs
San Diegn
of
, over 18 years of age, not a party to the within action, and that J am
employed at and my business address is:
LABOR COMMISSIONER, STATE OF CALIFORNIA
7575 Metropolitan Dr., Ste. 210
San Diego CA 92108
Tel: (619) 220-5451 Fax: (619) 767-2020
I am readily familiar with the business practice of my place of business for collection and processing
of correspondence for mailing with the United States Postal Service. Correspondence so collected
and processed is deposited with the United States Postal Service that same day in the ordinary course
of business.
On
April 19,
2016
was(were) placed for deposit in the United States Postal Service in a sealed envelope, by
first class mail
, with postage fully prepaid, addressed to:
NOTICE TO:
Derald Leggitt
3213 Midway Drive # 808
San Diego, CA 92110
and that envelope was placed for collection and mailing on that date following ordinary
business practices.
I certify under penalty of perjury that the foregoing is true and correct.
Executed on:
April 19 7016
at
CERTIFICATION OF MAILING
L.C. 98
STATE OF CALIFORNIA
DEPARTMENT OF INDUSTRIAL RELATIONS
DIVISION OF LABOR STANDARDS ENFORCEMENT
CERTIFICATION OF SERVICE BY MAIL
(C.C.P. 1013A) OR CERTIFIED MAIL
T Ica M Ftriggc
San Diego
April 19 2016
was(were) placed for deposit in the United States Postal Service in a sealed envelope, by
firat Haas mail
with postage fully prepaid, addressed to:
,
NOTICE TO
and that envelope was placed for collection and mailing on that date following ordinary
business practices.
certify under penalty of perjury that the foregoing is true and correct.
Executed on:
at
CERTIFICATION OF MAILING
L.C. 98
Derald Leggitt
Defendant:
You have been served a copy of the Labor Commissioner's Order, Decision or Award.
If the full amount of the sums set forth in the Order, Decision or Award is received by this office
within ten (10 ) days of the date the Order, Decision or Award was served upon you, no
judgment will be entered in this matter.
Payment must be made by certified check, cashier's check or money order (no other tender will be
accepted) made payable to the Plaintiff named in the Order, Decision or Award, and addressed to the
Office of the Labor Commissioner at the address shown above.
la ffeelet
Mark Meeker
619-767-2008
L.C. 98
Plaintiff:
For
ir
Only:
Derald Leggitt
Court Number
Defendant:
10 86954 MM
-
I. The above-entitled matter came on for hearing before the Labor Commissioner of the State of California as follows:
LABOR COMM
AP:
BY
.41111(..ca 41,
a Aguilar
ORDER, DECISION OR AWARD OF THE LABOR COMMISSIONER
fr HEARING OFFICER
L.C. 98
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In the Matter of
10-86954-MM
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5
DERALD LEGGITT
(Plaintiff)
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)
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V.
DIGITAL EAR, INC.,
A CALIFORNIA CORPORATION
(Defendant)
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BACKGROUND
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The Plaintiff filed an initial report or claim with the Labor Commissioner's office on
May 6, 2015. The complaint raises the following allegations:
1.
That the Plaintiff is entitled to recover from the Defendant $83.00 for the
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balance due for regular and overtime wages earned in the period January 19, 2015 to
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February 2, 2015, being 51 regular hours at $9.00 per hour and 2.37 overtime hours at
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$13.50 per hour, for a total earnings of $491.00, less $408.00 previously paid.
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2.
That the Plaintiff is entitled to recover from the Defendant penalties pursuant
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to the provisions of Labor Code Section 203 at the rate of $72.00 per day for an
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3.
That the Plaintiff is entitled to recover from the Defendant $72.33 for liquidated
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Page 1
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4. That the Plaintiff is entitled to recover from the Defendant interest pursuant to
the provisions of Labor Code Section 98.1.
On December 16, 2016, a hearing was conducted at the Labor Commissioner's office
in San Diego, California. The hearing was presided over by the undersigned hearing
officer designated by the Labor Commissioner to hear the matter.
The Plaintiff appeared pro persona.
The Defendant's agent was served at the address of record listed with the California
Secretary of State but failed to appear at the hearing and did not file an answer to the
complaint.
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Due consideration having been given to the testimony, documentary evidence, and
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arguments presented, the Labor Commissioner hereby adopts the following Order,
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Decision or Award.
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FINDINGS OF FACT
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The Defendant operates a business involved in the sales of home theater and audio
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systems. The Plaintiff was employed by the Defendant to perform personal services
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as a Salesman for the period January 18, 2015 to March 27, 2015. The Plaintiff testified
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he worked 51 regular hours at $9.00 per hour and 2.37 overtime hours at $13.50 per
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hour, earning total wages of $491.00. The Plaintiff testified he would e-mail his
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worked hours to his manager. The Plaintiff testified that the Defendant did not pay
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him correctly and that he received $408.00 from the Defendant for the payment
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wages earned during the period of January 18, 2015 to March 27, 2015.
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a his
The Plaintiff testified he quit without notice on March 27, 2015 and informed his
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manager that he was quitting effective immediately. The Plaintiff testified he worked
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Page 2
LEGAL ANALYSIS
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The wages, hours and working conditions of the Defendant's employees are
regulated by the provisions of the California Labor Code and Industrial Welfare
Commission Orders.
In these administrative hearings, the Plaintiff has the initial burden of proof. 1
degree of belief concerning a fact in the mind of the trier of fact or the court. In these
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the senses that are offered to prove the existence or nonexistence of a fact.
"Preponderance of the evidence" means that evidence that, when weighed with that
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opposed to it, has more convincing force and the greater probability of truth. 2
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In that the Defendant failed to appear at the hearing and did not file an answer to
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the complaint, there is nothing before the Hearing Officer to deny or mitigate the
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Plaintiff's complaint.
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That being said, Labor Code Section 98(f) provides, in part, "If the defendant fails to
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appear or answer within the time allowed under this chapter, no default shall be
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Page 3
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taken against him or her, but the Labor Commissioner shall hear the evidence offered
and shall issue an order, decision, or award in accordance with the evidence."
WAGES
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The Plaintiff's complaint alleges, in part, that the Plaintiff is entitled to recover from
the Defendant $83.00 for the balance due for regular and overtime wages earned in
the period January 19, 2015 to February 2, 2015, being 51 regular hours at $9.00 per
hour and 2.37 overtime hours at $13.50 per hour, for a total earnings of $491.00, less
$408.00 previously paid.
Labor Code Section 200 defines wages as "...all amounts for labor performed by
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Labor Code Section 510 provides, in relevant part, "Eight hours of labor constitutes a
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day's work. Any work in excess of eight hours in one workday and any work in excess
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of 40 hours in any one workweek and the first eight hours worked on the seventh day
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of work in any one workweek shall be compensated at the rate of no less than one and
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one-half times the regular rate of pay for an employee. Any work in excess of 12
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hours in one day shall be compensated at the rate of no less than twice the regular rate
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of pay for an employee. In addition, any work in excess of eight hours on any seventh
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day of a workweek shall be compensated at the rate of no less than twice the regular
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Concerning this portion of the Plaintiff's complaint, the evidence supports a finding
that the Plaintiff has met the burden of proof as required by law.
Therefore, the Plaintiff is entitled to recover from the Defendant $$83.00 for the
balance due for regular and overtime wages earned in the period January 19, 2015 to
February 2, 2015, being 51 regular hours at $9.00 per hour and 2.37 overtime hours at
$13.50 per hour, for a total earnings of $491.00, less $408.00 previously paid.
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Page 4
The Plaintiff's complaint alleges, in part, that the Plaintiff is entitled to recover from
the Defendant penalties pursuant to the provisions of Labor Code Section 203 at the
rate of $72.00 per day for an indeterminate number of days not to exceed thirty (30)
days.
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California Labor Code Section 203 provides, in relevant part, "If an employer
willfully fails to pay, without abatement or reduction, in accordance with Sections 201,
201.5, 202, and 205.5, any wages of an employee who is discharged or who quits, the
wages of the employee shall continue as a penalty from the due date thereof at the
same rate until paid or until an action therefor is commenced; but the wages shall not
continue for more than 30 days. An employee who secretes or absents himself or
herself to avoid payment to him or her, or who refuses to receive the payment when
fully tendered to him or her, including any penalty then accrued under this section, is
not entitled to any benefit under this section for the time during which he or she so
avoids payment."
The California Code of Regulations Title 8, Section 13520 defines "willful" as
follows: "A willful failure to pay wages within the meaning of Labor Code Section 203
occurs when an employer intentionally fails to pay wages to an employee when those
wages are due. However, a good faith dispute that any wages are due will preclude
imposition of waiting time penalties under Section 203.(a) Good Faith Dispute. A
"good faith dispute" that any wages are due occurs when an employer presents a
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defense, based in law or fact which, if successful, would preclude any recover on the
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part of the employee. The fact that a defense is ultimately unsuccessful will not
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preclude a finding that a good faith dispute did exist. Defenses presented which,
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under all the circumstances, are unsupported by any evidence, are unreasonable, or
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are presented in bad faith, will preclude a finding of a "good faith dispute."
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Page 5
California Labor Code Section 202 provides, in relevant part, "If an employee not
2
having a written contract for a definite period quits his or her employment, his or her
wages shall become due and payable not later than 72 hours thereafter, unless the
employee has given 72 hours previous notice of his or her intention to quit, in which
case the employee is entitled to his or her wages at the time of quitting.
Notwithstanding any other provision of law, an employee who quits without
requests and designates a mailing address. The date of the mailing shall constitute the
date of payment for purposes of the requirement to provide payment within 72 hours
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shall be paid at the place of discharge, and every employee who quits shall be paid at
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the office or agency of the employer in the county where the employee has been
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performing labor. All payments shall be made in the manner provided by law."
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The evidence supports a finding that the Plaintiff quit and did not provide seventytwo (72) hours advanced notice thereof.
The evidence supports a finding that the Plaintiff's final wages remain unpaid or
were paid more than thirty (30) days after they were due.
Concerning this portion of the Plaintiff's complaint, the evidence supports a finding
that the Plaintiff has met the burden of proof as required by law.
Therefore, the Plaintiff is entitled to recover from the Defendant $2,160.00 for
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penalties pursuant to the provisions of Labor Code Section 203 being $72.00 per day
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Page 6
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The Plaintiff's complaint alleges, in part, that the Plaintiff is entitled to recover from
the Defendant $72.33 for liquidated damages pursuant to the provisions of Labor
Labor Code Section 1194.2 provides, "(a) In any action under Section 98, 1193.6, or
1194 to recover wages because of the payment of a wage less than the minimum wage
recover liquidated damages in an amount equal to the wages unlawfully unpaid arid
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of the court or the Labor Commissioner that the act or omission giving rise to the
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action was in good faith and that the employer had reasonable grounds for believing
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that the act or omission was not a violation of any provision of the Labor Code
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relating to minimum wage, or an order of the commission, the court or the Labor
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award any amount of liquidated damages not exceeding the amount specified in
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subdivision (a). (c) This section applies only to civil actions commenced on or after
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January 1, 1992."
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in relevant part "(B) Every employer shall pay to each employee, on the established
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payday for the period involved, not less than the applicable minimum wage for all
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hours worked in the payroll period, whether the remuneration is measured by time,
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The evidence supports a finding that for the period of the complaint, the Plaintiff
was not paid the minimum wage, when due, for all hours worked.
Page 7
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Therefore, the Plaintiff is entitled to recover from the Defendant $72.33 in liquidated
damages (53.37 hours worked x $9.00 per hour less $408.00 paid) pursuant to the
provisions of Labor Code Section 1194.2.
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The Plaintiff's complaint alleges, in part, that the Plaintiff is entitled to recover from
the Defendant interest pursuant to the provisions of Labor Code Sections 98.1.
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Labor Code Section 98.1(c) provides, "All awards granted pursuant to a hearing
under this chapter shall accrue interest on all due and unpaid wages at the same rate
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as prescribed by subdivision (b) of Section 3289 of the Civil Code. The interest shall
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accrue until the wages are paid from the date that the wages were due and payable as
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In that a portion of the Plaintiff's award is for due and unpaid wages and liquidated
damages, the Plaintiff is entitled to interest on the award.
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CONCLUSION
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For all of the reasons set forth above, it is hereby ordered that the Plaintiff is entitled
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1.
2.
$2,160.00 for penalties pursuant to the provisions of Labor Code Section 203
3.
$72.33 for liquidated damages pursuant to the provisions of Labor Code Section
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1194.2.
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4.
$16.38 for interest pursuant to the provisions of Labor Code Section 98.1
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Linda Aguilar
Hearing Officer
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Page 8
STATE OF CALIFORNIA
DEPART \ 1EN I OF INDLSTRIAL RELATIONS
Di\ ision of Labor Standards Enforcement
7573 Nletrorolitan NI\
211.)
San Diego. C.1 1)210S
(61 0 ) 220-5431
G. 13rm n. jr.
ou
rt 1
"I hereby certify that the herein contained document is a full, true and correct copy of the
final Order, Decision or Award of the Labor Commissioner served on the parties herein."
State of California
Department of Industrial Relations
By
Aguilar
'or Deputy Labor Commissioner