Law Offices of Thomas M. Diachenko

Recent Trials / Results

$4 MILLION PAGA SETTLEMENT AGAINST RESTAURANT CHAIN in 2018:

In a Private Attorney General Act (PAGA) case involving the failure to provide meal and rest periods without paying premiums, we secured more for the employees for a one-year claim than was recovered in a class action involving the same defendant for a four-year claim.

ATEMPA TRIAL VICTORY CONFIRMED on APPEAL IN 2018

The 2015 Trial: Marco Atempa and Keilyn Reyes v. PAMA Inc., and Paolo Pedrazzani, SDSC Case No. 37-2013-00058208-CU-OE-CTL.

Case Type: Wage & Hour/PAGA

Our trial team obtained a plaintiffs’ verdict of $958,834 with $736,337 of the resulting judgment obtained against the business owner personally. The verdict included $197,434 awarded pursuant to the California Private Attorney General Act (PAGA), which, at the time, was one of only a handful of PAGA plaintiff’s verdicts in the state. The court found that the defendant employer and owner failed to pay for overtime hours worked, failed to pay minimum wage, failed to provide meal and rest periods and issued phony pay-stubs. Thom exposed the defendants’ forgery of documents and alteration of time records, shaving hours of time worked to cheat employees out of their wages. After the defense attorney rejected a $15,000 demand to settle the case, they offered $50,000 the day before trial. It was too little, too late. Prior to the initiation of this lawsuit the business owner deceived an investigator from the Department of Labor by presenting falsified time records. Fortunately, this dishonest behavior was exposed in trial.

The 2018 Appeal

After PAMA filed bankruptcy, a small portion of the judgment was paid. The owner, Paolo Pedrazzani, sued his defense attorneys for legal malpractice and appealed the Atempa verdict. Pedrazzani and his attorney claimed that an individual business owner could not be held personally liable. They were both wrong. The Fourth District Court of Appeal upheld the San Diego Superior Court decisions, holding that Pedrazzani was personally liable to the tune of $736,337 pursuant to the PAGA, in the published decision of:

Atempa v. Pedrazzani (2018) 27 Cal.App.5th 809.

The 2019 Satisfaction of Judgment: We asserted a judgment lien on the legal malpractice case of Pedrazzani against his defense attorney and law firm which eventually resulted in a satisfaction of the Atempa judgment.

CUBIAS MID-TRIAL SETTLEMENT in 2019:

In late March of 2019, after a morning session of Thom Diachenko’s cross-examination of the business owner, the case settled for 20 times more than what the defendant business owner had offered prior to trial. The terms of which were put on the record in the case of:

Cubias, et. al. v. Protein for Pets, LLC, et. al., SDSC Case No. 37-2016-00045232-CU-OE-CTL.

Case Type: Wage & Hour/PAGA

~$4.25 MILLION RECOVERY FROM SERVICE CORPORATION INTERNATIONAL SUBSIDIARIES IN 2020

After a 4-week trial in February and March of 2019, we obtained a verdict eventually totaling nearly $2.5 million. The court’s initial statement of decision was issued on April 19, 2019, in favor of our client and over 30 outside salespeople in the case of: Horton v. Trident Society, Inc., Neptune Society, Inc. Neptune Management Corp., SCI Direct, Inc., and Guy Allen, SDSC Case No. 37-2016-00039356-CU-OE-CTL, as detailed below:

Case Type: Sexual Harassment/Wage & Hour/PAGA

Sexual Harassment:

The San Diego Superior Court awarded all general damages we asked for of $250,000 on the Sexual Harassment Claim. Key quote from Statement of Decision - “Unknown to the Plaintiff, Human Resources had already found that complaints by other women against [Guy] Allen were credible, and Trident’s work place was ripe with hostility… measured against an ostensible policy of zero tolerance of harassment, Allen survived termination because of this financial success at Trident.”

Wage & Hour Individual Claims:

The Court also found that Plaintiff was misclassified as independent contractor as an outside salesperson awarding wages for initial training (minimum wage plus liquidated damages pursuant to Labor Code 1194.2, plus interest), Labor Code 226 & 226.3 penalties for failure to provide accurate itemized pay-stubs, Labor Code 2802 failure to reimburse expenses, Labor Code 203 waiting time penalties on final payment of wages owed, Labor Code 558 & 1197.1 penalties for failure to pay minimum wage for all hours worked. The total amount of the award in this category was $70,402.90 on top of the $250,000 above.

PAGA Claims:

The Court also found in our favor on the PAGA claims for misclassification, ordering the Defendant companies to pay the misclassified outside sales employees (Independent Sales Representatives, aka “ISRs”) to be paid for the initial required training, associated liquidated damages and penalties. The Court’s Statement of Decision reads in part as follows: “The Court agrees with Plaintiff that Defendants misclassified Plaintiff and other ISRs as independent contractors. From the beginning, they should have been treated as employees under California law…Defendants are a sophisticated business enterprise which, with eyes wide open after their 2013 investigation of Allen, were not compliant with California Labor laws.” We also represented over a dozen other aggrieved misclassified employees who were a part of the PAGA group on their individual claims. After the corporate defendants’ trial loss in the Horton case, the defendants wisely decided to settle with 17 other aggrieved employees who sought our team's legal services following our trial win, for an additional $1,780,000, bringing the total recovery to ~ $4.25 million.

In a class action case handled by a Los Angeles law firm against the same corporate defendants (filed several months after the Horton case was filed) on similar claims, only ~$1.6 million was recovered in a class action settlement for over 230 employees for the same labor code violations. The comparative recovery for the 14 clients we represented as compared to class action settlement they would have received had they not opted out, was $910,364 (or 592%) more. For example, one of the employees would have received only $9,426 had she accepted what the class action attorneys proposed for her claims while we obtained a settlement of $183,750 (an increase of 1,949%). This is just one of many examples of our commitment to do what is necessary to get what his clients deserve, and not settle a case to avoid going to trial when the defense fails to make a reasonable settlement offer. Having never lost a trial on behalf of a worker for illegal pay and employment practices, our team relishes the opportunity to go to trial when necessary, to make things right.