Preview
1 BLUMENTHAL NORDREHAUG BHOWMIK DE BLOUW LLP
Norman B. Blumenthal (State Bar #068687)
2 Kyle R. Nordrehaug (State Bar #205975)
Aparajit Bhowmik (State Bar #248066)
3 Nicholas J. De Blouw (State Bar #280922)
2255 Calle Clara
4 La Jolla, CA 92037
Telephone: (858)551-1223
5 Facsimile: (858) 551-1232
Website: www.bamlawca.com
6
Attorneys for Plaintiff
7
SUPERIOR COURT OF THE STATE OF CALIFORNIA
8
IN AND FOR THE COUNTY OF SAN MATEO
9
10 PRECIOUS CHATMAN, an individual, on Case No. ____________________
11 behalf of herself and on behalf of all persons
similarly situated, CLASS ACTION COMPLAINT FOR:
12 1. UNFAIR COMPETITION IN
13 VIOLATION OF CAL. BUS. & PROF.
Plaintiff, CODE §§ 17200, et seq.;
14 2. FAILURE TO PAY MINIMUM WAGES
vs. IN VIOLATION OF CAL. LAB. CODE §§
15 1194, 1197 & 1197.1;
WEDRIVEU, INC., a California Corporation; 3. FAILURE TO PAY OVERTIME WAGES
16 and DOES 1 through 50, inclusive, IN VIOLATION OF CAL. LAB. CODE §
510;
17 4. FAILURE TO PROVIDE REQUIRED
MEAL PERIODS IN VIOLATION OF CAL.
18 Defendants. LAB. CODE §§ 226.7 & 512 AND THE
APPLICABLE IWC WAGE ORDER;
19 5. FAILURE TO PROVIDE REQUIRED
REST PERIODS IN VIOLATION OF CAL.
20 LAB. CODE §§ 226.7 & 512 AND THE
APPLICABLE IWC WAGE ORDER;
21 6. FAILURE TO PROVIDE ACCURATE
ITEMIZED STATEMENTS IN VIOLATION
22 OF CAL. LAB. CODE § 226;
7. FAILURE TO REIMBURSE
23 EMPLOYEES FOR REQUIRED
EXPENSES IN VIOLATION OF CAL. LAB.
24 CODE § 2802; and,
8. FAILURE TO PAY SICK PAY WAGES
25 IN VIOLATION OF CAL. LAB CODE
§§201-204, 233, 246.
26
27 DEMAND FOR A JURY TRIAL
28
1
CLASS ACTION COMPLAINT
1 Plaintiff Precious Chatman (“PLAINTIFF”), an individual, on behalf of herself and all
2 other similarly situated current and former employees alleges on information and belief, except
3 for her own acts and knowledge which are based on personal knowledge, the following:
4
5 THE PARTIES
6 1. Defendant WeDriveU, Inc. is a California corporation that at all relevant times
7 mentioned herein conducted and continues to conduct substantial business in the state of
8 California.
9 2. DEFENDANT provides shuttle transportation services.
10 3. PLAINTIFF has been employed by DEFENDANT in California since April of
11 2018 and has been at all times classified by DEFENDANT as a non-exempt employee, paid on
12 an hourly basis, and entitled to the legally required meal and rest periods and payment of
13 minimum and overtime wages due for all time worked.
14 4. PLAINTIFF brings this Class Action on behalf of herself and a California class,
15 defined as all individuals who are or previously were employed by DEFENDANT in California,
16 including any employees staffed with DEFENDANT by a third party, and classified as non-
17 exempt employees (the “CALIFORNIA CLASS”) at any time during the period beginning four
18 (4) years prior to the filing of this Complaint and ending on the date as determined by the Court
19 (the “CALIFORNIA CLASS PERIOD”). The amount in controversy for the aggregate claim
20 of CALIFORNIA CLASS Members is under five million dollars ($5,000,000.00).
21 5. PLAINTIFF brings this Class Action on behalf of herself and a CALIFORNIA
22 CLASS in order to fully compensate the CALIFORNIA CLASS for their losses incurred during
23 the CALIFORNIA CLASS PERIOD caused by DEFENDANT’s policy and practice which
24 failed to lawfully compensate these employees. DEFENDANT’s policy and practice alleged
25 herein was an unlawful, unfair and deceptive business practice whereby DEFENDANT retained
26 and continues to retain wages due PLAINTIFF and the other members of the CALIFORNIA
27 CLASS. PLAINTIFF and the other members of the CALIFORNIA CLASS seek an injunction
28 enjoining such conduct by DEFENDANT in the future, relief for the named PLAINTIFF and
2
CLASS ACTION COMPLAINT
1 the other members of the CALIFORNIA CLASS who have been economically injured by
2 DEFENDANT’s past and current unlawful conduct, and all other appropriate legal and
3 equitable relief.
4 6. The true names and capacities, whether individual, corporate, subsidiary,
5 partnership, associate or otherwise of defendants DOES 1 through 50, inclusive, are presently
6 unknown to PLAINTIFF who therefore sues these Defendants by such fictitious names pursuant
7 to Cal. Civ. Proc. Code § 474. PLAINTIFF will seek leave to amend this Complaint to allege
8 the true names and capacities of Does 1 through 50, inclusive, when they are ascertained.
9 PLAINTIFF is informed and believes, and based upon that information and belief alleges, that
10 the Defendants named in this Complaint, including DOES 1 through 50, inclusive, are
11 responsible in some manner for one or more of the events and happenings that proximately
12 caused the injuries and damages hereinafter alleged.
13 7. The agents, servants and/or employees of the Defendants and each of them acting
14 on behalf of the Defendants acted within the course and scope of his, her or its authority as the
15 agent, servant and/or employee of the Defendants, and personally participated in the conduct
16 alleged herein on behalf of the Defendants with respect to the conduct alleged herein.
17 Consequently, the acts of each Defendant are legally attributable to the other Defendants and
18 all Defendants are jointly and severally liable to PLAINTIFF and the other members of the
19 CALIFORNIA CLASS, for the loss sustained as a proximate result of the conduct of the
20 Defendants’ agents, servants and/or employees.
21 THE CONDUCT
22 8. Pursuant to the Industrial Welfare Commission Wage Orders, DEFENDANT was
23 required to pay PLAINTIFF and CALIFORNIA CLASS Members for all their time worked,
24 meaning the time during which an employee is subject to the control of an employer, including
25 all the time the employee is suffered or permitted to work. DEFENDANT requires PLAINTIFF
26 and CALIFORNIA CLASS Members to work without paying them for all the time they are
27 under DEFENDANT’s control. PLAINTIFF and CALIFORNIA CLASS Members also
28 worked off the clock with respect to time spent undergoing mandatory drug testing or any other
3
CLASS ACTION COMPLAINT
1 testing and/or examination required as a condition of employment. Additionally, DEFENDANT,
2 as a matter of established company policy and procedure, administers a uniform practice of
3 rounding the actual time worked and recorded by PLAINTIFF and CALIFORNIA CLASS
4 Members, always to the benefit of DEFENDANT, so that during the course of their
5 employment, PLAINTIFF and CALIFORNIA CLASS Members are paid less than they would
6 have been paid had they been paid for actual recorded time rather than “rounded” time.
7 Additionally, DEFENDANT engages in the practice of requiring PLAINTIFF and
8 CALIFORNIA CLASS Members to perform work off the clocking that DEFENDANT, as a
9 condition of employment, required these employees to submit to mandatory temperature checks
10 and symptom questionnaires for COVID-19 screening prior to clocking into DEFENDANT’s
11 timekeeping system for the workday. As a result, PLAINTIFF and other CALIFORNIA
12 CLASS Members forfeit minimum wage, overtime wage compensation, and off-duty meal
13 breaks by working without their time being correctly recorded and without compensation at the
14 applicable rates. DEFENDANT’s policy and practice not to pay PLAINTIFF and other
15 CALIFORNIA CLASS Members for all time worked, is evidenced by DEFENDANT’s
16 business records.
17 9. State and federal law provides that employees must be paid overtime and meal and
18 rest break premiums at one-and-one-half times their “regular rate of pay.” PLAINTIFF and
19 other CALIFORNIA CLASS Members are compensated at an hourly rate plus incentive pay that
20 is tied to specific elements of an employee’s performance.
21 10. The second component of PLAINTIFF’s and other CALIFORNIA CLASS
22 Members’ compensation is DEFENDANT’s non-discretionary incentive program that paid
23 PLAINTIFF and other CALIFORNIA CLASS Members incentive wages based on their
24 performance for DEFENDANT. The non-discretionary incentive program provided all
25 employees paid on an hourly basis with incentive compensation when the employees met the
26 various performance goals set by DEFENDANT. However, when calculating the regular rate
27 of pay in order to pay overtime and meal and rest break premiums to PLAINTIFF and other
28 CALIFORNIA CLASS Members, DEFENDANT failed to include the incentive compensation
4
CLASS ACTION COMPLAINT
1 as part of the employees’ “regular rate of pay” for purposes of calculating overtime pay and
2 meal and rest break premium pay. Management and supervisors described the incentive
3 program to potential and new employees as part of the compensation package. As a matter of
4 law, the incentive compensation received by PLAINTIFF and other CALIFORNIA CLASS
5 Members must be included in the “regular rate of pay.” The failure to do so has resulted in a
6 underpayment of overtime compensation and meal and rest break premiums to PLAINTIFF and
7 other CALIFORNIA CLASS Members by DEFENDANT.
8 11. As a result of their rigorous work schedules, PLAINTIFF and other
9 CALIFORNIA CLASS Members are from time to time unable to take thirty (30) minute off
10 duty meal breaks and are not fully relieved of duty for their meal periods. PLAINTIFF and
11 other CALIFORNIA CLASS Members are required from time to time to perform work as
12 ordered by DEFENDANT for more than five (5) hours during some shifts without receiving a
13 meal break. Further, DEFENDANT from time to time fails to provide PLAINTIFF and
14 CALIFORNIA CLASS Members with a second off-duty meal period for some workdays in
15 which these employees are required by DEFENDANT to work ten (10) hours of work.
16 DEFENDANT also engages in the practice of rounding the meal period times to avoid paying
17 penalties to PLAINTIFF and other CALIFORNIA CLASS Members. PLAINTIFF and other
18 members of the CALIFORNIA CLASS therefore forfeit meal breaks without additional
19 compensation and in accordance with DEFENDANT’s corporate policy and practice.
20 12. During the CALIFORNIA CLASS PERIOD, PLAINTIFF and other
21 CALIFORNIA CLASS Members are also required from time to time to work in excess of four
22 (4) hours without being provided ten (10) minute rest periods. Further, these employees are
23 denied their first rest periods of at least ten (10) minutes for some shifts worked of at least two
24 (2) to four (4) hours from time to time, a first and second rest period of at least ten (10) minutes
25 for some shifts worked of between six (6) and eight (8) hours from time to time, and a first,
26 second and third rest period of at least ten (10) minutes for some shifts worked of ten (10) hours
27 or more from time to time. PLAINTIFF and other CALIFORNIA CLASS Members are also
28 not provided with one hour wages in lieu thereof. Additionally, the applicable California Wage
5
CLASS ACTION COMPLAINT
1 Order requires employers to provide employees with off-duty rest periods, which the California
2 Supreme Court defined as time during which an employee is relieved from all work related
3 duties and free from employer control. In so doing, the Court held that the requirement under
4 California law that employers authorize and permit all employees to take rest period means that
5 employers must relieve employees of all duties and relinquish control over how employees
6 spend their time which includes control over the locations where employees may take their rest
7 period. Employers cannot impose controls that prohibit an employee from taking a brief walk -
8 five minutes out, five minutes back. Here, DEFENDANT’s policy restricts PLAINTIFF and
9 other CALIFORNIA CLASS Members from unconstrained walks and is unlawful based on
10 DEFENDANT’s rule which states PLAINTIFF and other CALIFORNIA CLASS Members
11 cannot leave the work premises during their rest period.
12 13. During the CALIFORNIA CLASS PERIOD, DEFENDANT fails to accurately
13 record and pay PLAINTIFF and other CALIFORNIA CLASS Members for the actual amount
14 of time these employees work. Pursuant to the Industrial Welfare Commission Wage Orders,
15 DEFENDANT is required to pay PLAINTIFF and other CALIFORNIA CLASS Members for
16 all time worked, meaning the time during which an employee was subject to the control of an
17 employer, including all the time the employee was permitted or suffered to permit this work.
18 DEFENDANT requires these employees to work off the clock without paying them for all the
19 time they are under DEFENDANT’s control. As such, DEFENDANT knew or should have
20 known that PLAINTIFF and the other members of the CALIFORNIA CLASS are under
21 compensated for all time worked. As a result, PLAINTIFF and other CALIFORNIA CLASS
22 Members forfeit time worked by working without their time being accurately recorded and
23 without compensation at the applicable minimum wage and overtime wage rates. To the extent
24 that the time worked off the clock does not qualify for overtime premium payment,
25 DEFENDANT fails to pay minimum wages for the time worked off-the-clock in violation of
26 Cal. Lab. Code §§ 1194, 1197, and 1197.1.
27 14. From time to time, DEFENDANT also fails to provide PLAINTIFF and the other
28 members of the CALIFORNIA CLASS with complete and accurate wage statements which
6
CLASS ACTION COMPLAINT
1 failed to show, among other things, the correct gross and net wages earned. Cal. Lab. Code §
2 226 provides that every employer shall furnish each of his or her employees with an accurate
3 itemized wage statement in writing showing, among other things, gross wages earned and all
4 applicable hourly rates in effect during the pay period and the corresponding amount of time
5 worked at each hourly rate. Additionally, DEFENDANT violates Cal. Lab. Code 226(a)(8) by
6 failing to list the correct name of the legal entity that employs PLAINTIFF and other
7 CALIFORNIA CLASS Members. Aside, from the violations listed above in this paragraph,
8 DEFENDANT fails to issue to PLAINTIFF an itemized wage statement that lists all the
9 requirements under California Labor Code 226 et seq. As a result, DEFENDANT from time to
10 time provides PLAINTIFF and the other members of the CALIFORNIA CLASS with wage
11 statements which violated Cal. Lab. Code § 226.
12 15. Cal. Lab. Code § 204(d) provides, the requirements of this section shall be
13 deemed satisfied by the payment of wages for weekly, biweekly, or semimonthly payroll if the
14 wages are paid not more than seven calendar days following the close of the payroll period.
15 Cal. Lab. Code § 210 provides:
16 [I]n addition to, and entirely independent and apart from, any other penalty provided in
this article, every person who fails to pay the wages of each employee as provided in
17 Sections. . . .204. . .shall be subject to a civil penalty as follows: (1) For any initial
violation, one hundred dollars ($100) for each failure to pay each employee; (2) For each
18 subsequent violation, or any willful or intentional violation, two hundred dollars ($200)
for each failure to pay each employee, plus 25 percent of the amount unlawfully
19 withheld.
20 16. DEFENDANT from time to time fails to pay PLAINTIFF and members of the
21 CALIFORNIA LABOR SUB-CLASS Members within seven (7) days of the close of the payroll
22 period in accordance with Cal. Lab. Code § 204(d).
23 17. DEFENDANT underpays sick pay wages to PLAINTIFF and other
24 CALIFORNIA CLASS Members by failing to pay such wages at the regular rate of pay in
25 violation of Cal. Lab. Code Section 246. Specifically, PLAINTIFF and other non-exempt
26 employees earn non-discretionary remuneration, including but not limited to, incentives, shift
27 differential pay, and bonuses. Rather than pay sick pay at the regular rate of pay, DEFENDANT
28 underpays sick pay to PLAINTIFF and other CALIFORNIA CLASS Members at their base
7
CLASS ACTION COMPLAINT
1 rates of pay.
2 18. Cal. Lab. Code Section 246(l)(2) requires that paid sick time for nonexempt
3 employees be calculated by dividing the employee’s total wages, not including overtime
4 premium pay, by the employee’s total hours worked in the full pay periods of the prior 90 days
5 of employment.
6 19. DEFENDANT violated Cal. Lab. Code Section 246 by failing to pay sick pay at
7 the regular rate of pay. PLAINTIFF and CALIFORNIA CLASS Members routinely earned non-
8 discretionary incentive wages which increased their regular rate of pay. However, when sick pay
9 was paid, it was paid at the base rate of pay for PLAINTIFF and members of the CALIFORNIA
10 CLASS, as opposed to the correct, higher regular rate of pay, as required under Cal. Lab. Code
11 Section 246.
12 20. As a pattern and practice, DEFENDANT regularly failed to pay PLAINTIFF and
13 other members of the CALIFORNIA CLASS their correct wages and accordingly owe waiting
14 time penalties pursuant to Cal. Lab. Code Section 203. Further, PLAINTIFF is informed and
15 believes and based thereon alleges that such failure to pay sick pay at regular rate was willful,
16 such that PLAINTIFF and members of the CALIFORNIA CLASS whose employment has
17 separated are entitled to waiting time penalties pursuant to Cal. Lab. Code Sections 201-203.
18 21. Pursuant to Cal. Lab. Code Section 221, “It shall be unlawful for any employer
19 to collect or receive from an employee any part of wages theretofore paid by said employer to
20 said employee.” DEFENDANT fails to pay all compensation due to PLAINTIFF and other
21 CALIFORNIA LABOR SUB-CLASS Members, makes unlawful deductions from
22 compensation payable to PLAINTIFF and CALIFORNIA LABOR SUB-CLASS Members,
23 fails to disclose all aspects of the deductions from compensation payable to PLAINTIFF and
24 CALIFORNIA LABOR SUB-CLASS Members, and thereby fails to pay these employees all
25 wages due at each applicable pay period and upon termination. PLAINTIFF and members of
26 the CALIFORNIA LABOR SUB-CLASS seek recovery of all illegal deductions from wages
27 according to proof, related penalties, interest, attorney fees and costs.
28 22. DEFENDANT intentionally and knowingly fails to reimburse and indemnify
8
CLASS ACTION COMPLAINT
1 PLAINTIFF and the other CALIFORNIA CLASS Members for required business expenses
2 incurred by the PLAINTIFF and other CALIFORNIA CLASS Members in direct consequence
3 of discharging their duties on behalf of DEFENDANT. Under California Labor Code Section
4 2802, employers are required to indemnify employees for all expenses incurred in the course
5 and scope of their employment. Cal. Lab. Code § 2802 expressly states that "an employer shall
6 indemnify his or her employee for all necessary expenditures or losses incurred by the employee
7 in direct consequence of the discharge of his or her duties, or of his or her obedience to the
8 directions of the employer, even though unlawful, unless the employee, at the time of obeying
9 the directions, believed them to be unlawful."
10 23. In the course of their employment PLAINTIFF and other CALIFORNIA CLASS
11 Members as a business expense, are required by DEFENDANT to use their own personal
12 cellular phones as a result of and in furtherance of their job duties as employees for
13 DEFENDANT but are not reimbursed or indemnified by DEFENDANT for the cost associated
14 with the use of their personal cellular phones for DEFENDANT’s benefit. Specifically,
15 PLAINTIFF and other CALIFORNIA CLASS Members are required by DEFENDANT to use
16 their personal cellular phones. As a result, in the course of their employment with
17 DEFENDANT, PLAINTIFF and other members of the CALIFORNIA CLASS incurred
18 unreimbursed business expenses which included, but were not limited to, costs related to the use
19 of their personal cellular phones all on behalf of and for the benefit of DEFENDANT.
20 24. Specifically as to PLAINTIFF, DEFENDANT fails to provide all the legally
21 required off-duty meal and rest breaks to PLAINTIFF as required by the applicable Wage Order
22 and Labor Code and failed to pay PLAINTIFF all minimum and overtime wages due to
23 PLAINTIFF. DEFENDANT does not have a policy or practice which provided timely off-duty
24 meal and rest breaks to PLAINTIFF and also fails to compensate PLAINTIFF for PLAINTIFF’s
25 missed meal and rest breaks. The nature of the work performed by the PLAINTIFF does not
26 prevent PLAINTIFF from being relieved of all of his duties for the legally required off-duty
27 meal periods. As a result, DEFENDANT’s failure to provide PLAINTIFF with the legally
28 required meal periods is evidenced by DEFENDANT’s business records. The amount in
9
CLASS ACTION COMPLAINT
1 controversy for PLAINTIFF individually does not exceed the sum or value of $75,000.
2
3 JURISDICTION AND VENUE
4 25. This Court has jurisdiction over this Action pursuant to California Code of Civil
5 Procedure, Section 410.10 and California Business & Professions Code, Section 17203. This
6 action is brought as a Class Action on behalf of PLAINTIFF and similarly situated employees
7 of DEFENDANT pursuant to Cal. Code of Civ. Proc. § 382.
8 26. Venue is proper in this Court pursuant to California Code of Civil Procedure,
9 Sections 395 and 395.5, because PLAINTIFF worked in this County for DEFENDANT and
10 DEFENDANT (i) currently maintains and at all relevant times maintained offices and facilities
11 in this County and/or conducts substantial business in this County, and (ii) committed the
12 wrongful conduct herein alleged in this County against members of the CALIFORNIA CLASS.
13
14 THE CALIFORNIA CLASS
15 27. PLAINTIFF brings the First Cause of Action for Unfair, Unlawful and Deceptive
16 Business Practices pursuant to Cal. Bus. & Prof. Code §§ 17200, et seq. (the "UCL") as a Class
17 Action, pursuant to Cal. Code of Civ. Proc. § 382, on behalf of a California class, defined as
18 all individuals who are or previously were employed by DEFENDANT in California, including
19 any employees staffed with DEFENDANT by a third party, and classified as non-exempt
20 employees (the “CALIFORNIA CLASS”) at any time during the period beginning four (4)
21 years prior to the filing of this Complaint and ending on the date as determined by the Court
22 (the “CALIFORNIA CLASS PERIOD”). The amount in controversy for the aggregate claim
23 of CALIFORNIA CLASS Members is under five million dollars ($5,000,000.00).
24 28. To the extent equitable tolling operates to toll claims by the CALIFORNIA
25 CLASS against DEFENDANT, the CALIFORNIA CLASS PERIOD should be adjusted
26 accordingly.
27 29. DEFENDANT, as a matter of company policy, practice and procedure, and in
28 violation of the applicable Labor Code, Industrial Welfare Commission (“IWC”) Wage Order
10
CLASS ACTION COMPLAINT
1 requirements, and the applicable provisions of California law, intentionally, knowingly, and
2 wilfully, engaged in a practice whereby DEFENDANT failed to record all meal and rest breaks
3 missed by PLAINTIFF and other CALIFORNIA CLASS Members, even though DEFENDANT
4 enjoyed the benefit of this work, required employees to perform this work and permits or suffers
5 to permit this work.
6 30. DEFENDANT has the legal burden to establish that each and every
7 CALIFORNIA CLASS Member was paid accurately for all meal and rest breaks missed as
8 required by California laws. The DEFENDANT, however, as a matter of policy and procedure
9 failed to have in place during the CALIFORNIA CLASS PERIOD and still fails to have in
10 place a policy or practice to ensure that each and every CALIFORNIA CLASS Member is paid
11 as required by law. This common business practice is applicable to each and every
12 CALIFORNIA CLASS Member can be adjudicated on a class-wide basis as unlawful, unfair,
13 and/or deceptive under Cal. Business & Professions Code §§ 17200, et seq. (the “UCL”) as
14 causation, damages, and reliance are not elements of this claim.
15 31. The CALIFORNIA CLASS, is so numerous that joinder of all CALIFORNIA
16 CLASS Members is impracticable.
17 32. DEFENDANT violated the rights of the CALIFORNIA CLASS under California
18 law by:
19 (a) Committing an act of unfair competition in violation of , Cal. Bus. & Prof.
20 Code §§ 17200, et seq. (the "UCL"), by unlawfully, unfairly and/or
21 deceptively having in place company policies, practices and procedures
22 that failed to record and pay PLAINTIFF and the other members of the
23 CALIFORNIA CLASS for all time worked, including minimum wages
24 owed and overtime wages owed for work performed by these employees;
25 and,
26 (b) Committing an act of unfair competition in violation of the UCL, by
27 failing to provide the PLAINTIFF and the other members of the
28 CALIFORNIA CLASS with the legally required meal and rest periods.
11
CLASS ACTION COMPLAINT
1 33. This Class Action meets the statutory prerequisites for the maintenance of a Class
2 Action as set forth in Cal. Code of Civ. Proc. § 382, in that:
3 (a) The persons who comprise the CALIFORNIA CLASS are so numerous
4 that the joinder of all such persons is impracticable and the disposition of
5 their claims as a class will benefit the parties and the Court;
6 (b) Nearly all factual, legal, statutory, declaratory and injunctive relief issues
7 that are raised in this Complaint are common to the CALIFORNIA
8 CLASS will apply to every member of the CALIFORNIA CLASS;
9 (c) The claims of the representative PLAINTIFF are typical of the claims of
10 each member of the CALIFORNIA CLASS. PLAINTIFF, like all the
11 other members of the CALIFORNIA CLASS, was classified as a non-
12 exempt employee paid on an hourly basis who was subjected to the
13 DEFENDANT’s deceptive practice and policy which failed to provide the
14 legally required meal and rest periods to the CALIFORNIA CLASS and
15 thereby underpaid compensation to PLAINTIFF and CALIFORNIA
16 CLASS. PLAINTIFF sustained economic injury as a result of
17 DEFENDANT’s employment practices. PLAINTIFF and the members of
18 the CALIFORNIA CLASS were and are similarly or identically harmed
19 by the same unlawful, deceptive and unfair misconduct engaged in by
20 DEFENDANT; and,
21 (d) The representative PLAINTIFF will fairly and adequately represent and
22 protect the interest of the CALIFORNIA CLASS, and has retained
23 counsel who are competent and experienced in Class Action litigation.
24 There are no material conflicts between the claims of the representative
25 PLAINTIFF and the members of the CALIFORNIA CLASS that would
26 make class certification inappropriate. Counsel for the CALIFORNIA
27 CLASS will vigorously assert the claims of all CALIFORNIA CLASS
28 Members.
12
CLASS ACTION COMPLAINT
1 34. In addition to meeting the statutory prerequisites to a Class Action, this action is
2 properly maintained as a Class Action pursuant to Cal. Code of Civ. Proc. § 382, in that:
3 (a) Without class certification and determination of declaratory, injunctive,
4 statutory and other legal questions within the class format, prosecution of
5 separate actions by individual members of the CALIFORNIA CLASS will
6 create the risk of:
7 1) Inconsistent or varying adjudications with respect to individual
8 members of the CALIFORNIA CLASS which would establish
9 incompatible standards of conduct for the parties opposing the
10 CALIFORNIA CLASS; and/or,
11 2) Adjudication with respect to individual members of the
12 CALIFORNIA CLASS which would as a practical matter be
13 dispositive of interests of the other members not party to the
14 adjudication or substantially impair or impede their ability to
15 protect their interests.
16 (b) The parties opposing the CALIFORNIA CLASS have acted or refused to
17 act on grounds generally applicable to the CALIFORNIA CLASS, making
18 appropriate class-wide relief with respect to the CALIFORNIA CLASS
19 as a whole in that DEFENDANT failed to pay all wages due to members
20 of the CALIFORNIA CLASS as required by law;
21 1) With respect to the First Cause of Action, the final relief on behalf
22 of the CALIFORNIA CLASS sought does not relate exclusively to
23 restitution because through this claim PLAINTIFF seeks
24 declaratory relief holding that the DEFENDANT’s policy and
25 practices constitute unfair competition, along with declaratory
26 relief, injunctive relief, and incidental equitable relief as may be
27 necessary to prevent and remedy the conduct declared to constitute
28 unfair competition;
13
CLASS ACTION COMPLAINT
1 (c) Common questions of law and fact exist as to the members of the
2 CALIFORNIA CLASS, with respect to the practices and violations of
3 California law as listed above, and predominate over any question
4 affecting only individual CALIFORNIA CLASS Members, and a Class
5 Action is superior to other available methods for the fair and efficient
6 adjudication of the controversy, including consideration of:
7 1) The interests of the members of the CALIFORNIA CLASS in
8 individually controlling the prosecution or defense of separate
9 actions in that the substantial expense of individual actions will be
10 avoided to recover the relatively small amount of economic losses
11 sustained by the individual CALIFORNIA CLASS Members when
12 compared to the substantial expense and burden of individual
13 prosecution of this litigation;
14 2) Class certification will obviate the need for unduly duplicative
15 litigation that would create the risk of:
16 A. Inconsistent or varying adjudications with respect to
17 individual members of the CALIFORNIA CLASS, which
18 would establish incompatible standards of conduct for the
19 DEFENDANT; and/or,
20 B. Adjudications with respect to individual members of the
21 CALIFORNIA CLASS would as a practical matter be
22 dispositive of the interests of the other members not parties
23 to the adjudication or substantially impair or impede their
24 ability to protect their interests;
25 3) In the context of wage litigation because a substantial number of
26
Preview
1 BLUMENTHAL NORDREHAUG BHOWMIK DE BLOUW LLP Norman B. Blumenthal (State Bar #068687) 2 Kyle R. Nordrehaug (State Bar #205975) Aparajit Bhowmik (State Bar #248066) 3 Nicholas J. De Blouw (State Bar #280922) 2255 Calle Clara 4 La Jolla, CA 92037 Telephone: (858)551-1223 5 Facsimile: (858) 551-1232 Website: www.bamlawca.com 6 Attorneys for Plaintiff 7 SUPERIOR COURT OF THE STATE OF CALIFORNIA 8 IN AND FOR THE COUNTY OF SAN MATEO 9 10 PRECIOUS CHATMAN, an individual, on Case No. ____________________ 11 behalf of herself and on behalf of all persons similarly situated, CLASS ACTION COMPLAINT FOR: 12 1. UNFAIR COMPETITION IN 13 VIOLATION OF CAL. BUS. & PROF. Plaintiff, CODE §§ 17200, et seq.; 14 2. FAILURE TO PAY MINIMUM WAGES vs. IN VIOLATION OF CAL. LAB. CODE §§ 15 1194, 1197 & 1197.1; WEDRIVEU, INC., a California Corporation; 3. FAILURE TO PAY OVERTIME WAGES 16 and DOES 1 through 50, inclusive, IN VIOLATION OF CAL. LAB. CODE § 510; 17 4. FAILURE TO PROVIDE REQUIRED MEAL PERIODS IN VIOLATION OF CAL. 18 Defendants. LAB. CODE §§ 226.7 & 512 AND THE APPLICABLE IWC WAGE ORDER; 19 5. FAILURE TO PROVIDE REQUIRED REST PERIODS IN VIOLATION OF CAL. 20 LAB. CODE §§ 226.7 & 512 AND THE APPLICABLE IWC WAGE ORDER; 21 6. FAILURE TO PROVIDE ACCURATE ITEMIZED STATEMENTS IN VIOLATION 22 OF CAL. LAB. CODE § 226; 7. FAILURE TO REIMBURSE 23 EMPLOYEES FOR REQUIRED EXPENSES IN VIOLATION OF CAL. LAB. 24 CODE § 2802; and, 8. FAILURE TO PAY SICK PAY WAGES 25 IN VIOLATION OF CAL. LAB CODE §§201-204, 233, 246. 26 27 DEMAND FOR A JURY TRIAL 28 1 CLASS ACTION COMPLAINT 1 Plaintiff Precious Chatman (“PLAINTIFF”), an individual, on behalf of herself and all 2 other similarly situated current and former employees alleges on information and belief, except 3 for her own acts and knowledge which are based on personal knowledge, the following: 4 5 THE PARTIES 6 1. Defendant WeDriveU, Inc. is a California corporation that at all relevant times 7 mentioned herein conducted and continues to conduct substantial business in the state of 8 California. 9 2. DEFENDANT provides shuttle transportation services. 10 3. PLAINTIFF has been employed by DEFENDANT in California since April of 11 2018 and has been at all times classified by DEFENDANT as a non-exempt employee, paid on 12 an hourly basis, and entitled to the legally required meal and rest periods and payment of 13 minimum and overtime wages due for all time worked. 14 4. PLAINTIFF brings this Class Action on behalf of herself and a California class, 15 defined as all individuals who are or previously were employed by DEFENDANT in California, 16 including any employees staffed with DEFENDANT by a third party, and classified as non- 17 exempt employees (the “CALIFORNIA CLASS”) at any time during the period beginning four 18 (4) years prior to the filing of this Complaint and ending on the date as determined by the Court 19 (the “CALIFORNIA CLASS PERIOD”). The amount in controversy for the aggregate claim 20 of CALIFORNIA CLASS Members is under five million dollars ($5,000,000.00). 21 5. PLAINTIFF brings this Class Action on behalf of herself and a CALIFORNIA 22 CLASS in order to fully compensate the CALIFORNIA CLASS for their losses incurred during 23 the CALIFORNIA CLASS PERIOD caused by DEFENDANT’s policy and practice which 24 failed to lawfully compensate these employees. DEFENDANT’s policy and practice alleged 25 herein was an unlawful, unfair and deceptive business practice whereby DEFENDANT retained 26 and continues to retain wages due PLAINTIFF and the other members of the CALIFORNIA 27 CLASS. PLAINTIFF and the other members of the CALIFORNIA CLASS seek an injunction 28 enjoining such conduct by DEFENDANT in the future, relief for the named PLAINTIFF and 2 CLASS ACTION COMPLAINT 1 the other members of the CALIFORNIA CLASS who have been economically injured by 2 DEFENDANT’s past and current unlawful conduct, and all other appropriate legal and 3 equitable relief. 4 6. The true names and capacities, whether individual, corporate, subsidiary, 5 partnership, associate or otherwise of defendants DOES 1 through 50, inclusive, are presently 6 unknown to PLAINTIFF who therefore sues these Defendants by such fictitious names pursuant 7 to Cal. Civ. Proc. Code § 474. PLAINTIFF will seek leave to amend this Complaint to allege 8 the true names and capacities of Does 1 through 50, inclusive, when they are ascertained. 9 PLAINTIFF is informed and believes, and based upon that information and belief alleges, that 10 the Defendants named in this Complaint, including DOES 1 through 50, inclusive, are 11 responsible in some manner for one or more of the events and happenings that proximately 12 caused the injuries and damages hereinafter alleged. 13 7. The agents, servants and/or employees of the Defendants and each of them acting 14 on behalf of the Defendants acted within the course and scope of his, her or its authority as the 15 agent, servant and/or employee of the Defendants, and personally participated in the conduct 16 alleged herein on behalf of the Defendants with respect to the conduct alleged herein. 17 Consequently, the acts of each Defendant are legally attributable to the other Defendants and 18 all Defendants are jointly and severally liable to PLAINTIFF and the other members of the 19 CALIFORNIA CLASS, for the loss sustained as a proximate result of the conduct of the 20 Defendants’ agents, servants and/or employees. 21 THE CONDUCT 22 8. Pursuant to the Industrial Welfare Commission Wage Orders, DEFENDANT was 23 required to pay PLAINTIFF and CALIFORNIA CLASS Members for all their time worked, 24 meaning the time during which an employee is subject to the control of an employer, including 25 all the time the employee is suffered or permitted to work. DEFENDANT requires PLAINTIFF 26 and CALIFORNIA CLASS Members to work without paying them for all the time they are 27 under DEFENDANT’s control. PLAINTIFF and CALIFORNIA CLASS Members also 28 worked off the clock with respect to time spent undergoing mandatory drug testing or any other 3 CLASS ACTION COMPLAINT 1 testing and/or examination required as a condition of employment. Additionally, DEFENDANT, 2 as a matter of established company policy and procedure, administers a uniform practice of 3 rounding the actual time worked and recorded by PLAINTIFF and CALIFORNIA CLASS 4 Members, always to the benefit of DEFENDANT, so that during the course of their 5 employment, PLAINTIFF and CALIFORNIA CLASS Members are paid less than they would 6 have been paid had they been paid for actual recorded time rather than “rounded” time. 7 Additionally, DEFENDANT engages in the practice of requiring PLAINTIFF and 8 CALIFORNIA CLASS Members to perform work off the clocking that DEFENDANT, as a 9 condition of employment, required these employees to submit to mandatory temperature checks 10 and symptom questionnaires for COVID-19 screening prior to clocking into DEFENDANT’s 11 timekeeping system for the workday. As a result, PLAINTIFF and other CALIFORNIA 12 CLASS Members forfeit minimum wage, overtime wage compensation, and off-duty meal 13 breaks by working without their time being correctly recorded and without compensation at the 14 applicable rates. DEFENDANT’s policy and practice not to pay PLAINTIFF and other 15 CALIFORNIA CLASS Members for all time worked, is evidenced by DEFENDANT’s 16 business records. 17 9. State and federal law provides that employees must be paid overtime and meal and 18 rest break premiums at one-and-one-half times their “regular rate of pay.” PLAINTIFF and 19 other CALIFORNIA CLASS Members are compensated at an hourly rate plus incentive pay that 20 is tied to specific elements of an employee’s performance. 21 10. The second component of PLAINTIFF’s and other CALIFORNIA CLASS 22 Members’ compensation is DEFENDANT’s non-discretionary incentive program that paid 23 PLAINTIFF and other CALIFORNIA CLASS Members incentive wages based on their 24 performance for DEFENDANT. The non-discretionary incentive program provided all 25 employees paid on an hourly basis with incentive compensation when the employees met the 26 various performance goals set by DEFENDANT. However, when calculating the regular rate 27 of pay in order to pay overtime and meal and rest break premiums to PLAINTIFF and other 28 CALIFORNIA CLASS Members, DEFENDANT failed to include the incentive compensation 4 CLASS ACTION COMPLAINT 1 as part of the employees’ “regular rate of pay” for purposes of calculating overtime pay and 2 meal and rest break premium pay. Management and supervisors described the incentive 3 program to potential and new employees as part of the compensation package. As a matter of 4 law, the incentive compensation received by PLAINTIFF and other CALIFORNIA CLASS 5 Members must be included in the “regular rate of pay.” The failure to do so has resulted in a 6 underpayment of overtime compensation and meal and rest break premiums to PLAINTIFF and 7 other CALIFORNIA CLASS Members by DEFENDANT. 8 11. As a result of their rigorous work schedules, PLAINTIFF and other 9 CALIFORNIA CLASS Members are from time to time unable to take thirty (30) minute off 10 duty meal breaks and are not fully relieved of duty for their meal periods. PLAINTIFF and 11 other CALIFORNIA CLASS Members are required from time to time to perform work as 12 ordered by DEFENDANT for more than five (5) hours during some shifts without receiving a 13 meal break. Further, DEFENDANT from time to time fails to provide PLAINTIFF and 14 CALIFORNIA CLASS Members with a second off-duty meal period for some workdays in 15 which these employees are required by DEFENDANT to work ten (10) hours of work. 16 DEFENDANT also engages in the practice of rounding the meal period times to avoid paying 17 penalties to PLAINTIFF and other CALIFORNIA CLASS Members. PLAINTIFF and other 18 members of the CALIFORNIA CLASS therefore forfeit meal breaks without additional 19 compensation and in accordance with DEFENDANT’s corporate policy and practice. 20 12. During the CALIFORNIA CLASS PERIOD, PLAINTIFF and other 21 CALIFORNIA CLASS Members are also required from time to time to work in excess of four 22 (4) hours without being provided ten (10) minute rest periods. Further, these employees are 23 denied their first rest periods of at least ten (10) minutes for some shifts worked of at least two 24 (2) to four (4) hours from time to time, a first and second rest period of at least ten (10) minutes 25 for some shifts worked of between six (6) and eight (8) hours from time to time, and a first, 26 second and third rest period of at least ten (10) minutes for some shifts worked of ten (10) hours 27 or more from time to time. PLAINTIFF and other CALIFORNIA CLASS Members are also 28 not provided with one hour wages in lieu thereof. Additionally, the applicable California Wage 5 CLASS ACTION COMPLAINT 1 Order requires employers to provide employees with off-duty rest periods, which the California 2 Supreme Court defined as time during which an employee is relieved from all work related 3 duties and free from employer control. In so doing, the Court held that the requirement under 4 California law that employers authorize and permit all employees to take rest period means that 5 employers must relieve employees of all duties and relinquish control over how employees 6 spend their time which includes control over the locations where employees may take their rest 7 period. Employers cannot impose controls that prohibit an employee from taking a brief walk - 8 five minutes out, five minutes back. Here, DEFENDANT’s policy restricts PLAINTIFF and 9 other CALIFORNIA CLASS Members from unconstrained walks and is unlawful based on 10 DEFENDANT’s rule which states PLAINTIFF and other CALIFORNIA CLASS Members 11 cannot leave the work premises during their rest period. 12 13. During the CALIFORNIA CLASS PERIOD, DEFENDANT fails to accurately 13 record and pay PLAINTIFF and other CALIFORNIA CLASS Members for the actual amount 14 of time these employees work. Pursuant to the Industrial Welfare Commission Wage Orders, 15 DEFENDANT is required to pay PLAINTIFF and other CALIFORNIA CLASS Members for 16 all time worked, meaning the time during which an employee was subject to the control of an 17 employer, including all the time the employee was permitted or suffered to permit this work. 18 DEFENDANT requires these employees to work off the clock without paying them for all the 19 time they are under DEFENDANT’s control. As such, DEFENDANT knew or should have 20 known that PLAINTIFF and the other members of the CALIFORNIA CLASS are under 21 compensated for all time worked. As a result, PLAINTIFF and other CALIFORNIA CLASS 22 Members forfeit time worked by working without their time being accurately recorded and 23 without compensation at the applicable minimum wage and overtime wage rates. To the extent 24 that the time worked off the clock does not qualify for overtime premium payment, 25 DEFENDANT fails to pay minimum wages for the time worked off-the-clock in violation of 26 Cal. Lab. Code §§ 1194, 1197, and 1197.1. 27 14. From time to time, DEFENDANT also fails to provide PLAINTIFF and the other 28 members of the CALIFORNIA CLASS with complete and accurate wage statements which 6 CLASS ACTION COMPLAINT 1 failed to show, among other things, the correct gross and net wages earned. Cal. Lab. Code § 2 226 provides that every employer shall furnish each of his or her employees with an accurate 3 itemized wage statement in writing showing, among other things, gross wages earned and all 4 applicable hourly rates in effect during the pay period and the corresponding amount of time 5 worked at each hourly rate. Additionally, DEFENDANT violates Cal. Lab. Code 226(a)(8) by 6 failing to list the correct name of the legal entity that employs PLAINTIFF and other 7 CALIFORNIA CLASS Members. Aside, from the violations listed above in this paragraph, 8 DEFENDANT fails to issue to PLAINTIFF an itemized wage statement that lists all the 9 requirements under California Labor Code 226 et seq. As a result, DEFENDANT from time to 10 time provides PLAINTIFF and the other members of the CALIFORNIA CLASS with wage 11 statements which violated Cal. Lab. Code § 226. 12 15. Cal. Lab. Code § 204(d) provides, the requirements of this section shall be 13 deemed satisfied by the payment of wages for weekly, biweekly, or semimonthly payroll if the 14 wages are paid not more than seven calendar days following the close of the payroll period. 15 Cal. Lab. Code § 210 provides: 16 [I]n addition to, and entirely independent and apart from, any other penalty provided in this article, every person who fails to pay the wages of each employee as provided in 17 Sections. . . .204. . .shall be subject to a civil penalty as follows: (1) For any initial violation, one hundred dollars ($100) for each failure to pay each employee; (2) For each 18 subsequent violation, or any willful or intentional violation, two hundred dollars ($200) for each failure to pay each employee, plus 25 percent of the amount unlawfully 19 withheld. 20 16. DEFENDANT from time to time fails to pay PLAINTIFF and members of the 21 CALIFORNIA LABOR SUB-CLASS Members within seven (7) days of the close of the payroll 22 period in accordance with Cal. Lab. Code § 204(d). 23 17. DEFENDANT underpays sick pay wages to PLAINTIFF and other 24 CALIFORNIA CLASS Members by failing to pay such wages at the regular rate of pay in 25 violation of Cal. Lab. Code Section 246. Specifically, PLAINTIFF and other non-exempt 26 employees earn non-discretionary remuneration, including but not limited to, incentives, shift 27 differential pay, and bonuses. Rather than pay sick pay at the regular rate of pay, DEFENDANT 28 underpays sick pay to PLAINTIFF and other CALIFORNIA CLASS Members at their base 7 CLASS ACTION COMPLAINT 1 rates of pay. 2 18. Cal. Lab. Code Section 246(l)(2) requires that paid sick time for nonexempt 3 employees be calculated by dividing the employee’s total wages, not including overtime 4 premium pay, by the employee’s total hours worked in the full pay periods of the prior 90 days 5 of employment. 6 19. DEFENDANT violated Cal. Lab. Code Section 246 by failing to pay sick pay at 7 the regular rate of pay. PLAINTIFF and CALIFORNIA CLASS Members routinely earned non- 8 discretionary incentive wages which increased their regular rate of pay. However, when sick pay 9 was paid, it was paid at the base rate of pay for PLAINTIFF and members of the CALIFORNIA 10 CLASS, as opposed to the correct, higher regular rate of pay, as required under Cal. Lab. Code 11 Section 246. 12 20. As a pattern and practice, DEFENDANT regularly failed to pay PLAINTIFF and 13 other members of the CALIFORNIA CLASS their correct wages and accordingly owe waiting 14 time penalties pursuant to Cal. Lab. Code Section 203. Further, PLAINTIFF is informed and 15 believes and based thereon alleges that such failure to pay sick pay at regular rate was willful, 16 such that PLAINTIFF and members of the CALIFORNIA CLASS whose employment has 17 separated are entitled to waiting time penalties pursuant to Cal. Lab. Code Sections 201-203. 18 21. Pursuant to Cal. Lab. Code Section 221, “It shall be unlawful for any employer 19 to collect or receive from an employee any part of wages theretofore paid by said employer to 20 said employee.” DEFENDANT fails to pay all compensation due to PLAINTIFF and other 21 CALIFORNIA LABOR SUB-CLASS Members, makes unlawful deductions from 22 compensation payable to PLAINTIFF and CALIFORNIA LABOR SUB-CLASS Members, 23 fails to disclose all aspects of the deductions from compensation payable to PLAINTIFF and 24 CALIFORNIA LABOR SUB-CLASS Members, and thereby fails to pay these employees all 25 wages due at each applicable pay period and upon termination. PLAINTIFF and members of 26 the CALIFORNIA LABOR SUB-CLASS seek recovery of all illegal deductions from wages 27 according to proof, related penalties, interest, attorney fees and costs. 28 22. DEFENDANT intentionally and knowingly fails to reimburse and indemnify 8 CLASS ACTION COMPLAINT 1 PLAINTIFF and the other CALIFORNIA CLASS Members for required business expenses 2 incurred by the PLAINTIFF and other CALIFORNIA CLASS Members in direct consequence 3 of discharging their duties on behalf of DEFENDANT. Under California Labor Code Section 4 2802, employers are required to indemnify employees for all expenses incurred in the course 5 and scope of their employment. Cal. Lab. Code § 2802 expressly states that "an employer shall 6 indemnify his or her employee for all necessary expenditures or losses incurred by the employee 7 in direct consequence of the discharge of his or her duties, or of his or her obedience to the 8 directions of the employer, even though unlawful, unless the employee, at the time of obeying 9 the directions, believed them to be unlawful." 10 23. In the course of their employment PLAINTIFF and other CALIFORNIA CLASS 11 Members as a business expense, are required by DEFENDANT to use their own personal 12 cellular phones as a result of and in furtherance of their job duties as employees for 13 DEFENDANT but are not reimbursed or indemnified by DEFENDANT for the cost associated 14 with the use of their personal cellular phones for DEFENDANT’s benefit. Specifically, 15 PLAINTIFF and other CALIFORNIA CLASS Members are required by DEFENDANT to use 16 their personal cellular phones. As a result, in the course of their employment with 17 DEFENDANT, PLAINTIFF and other members of the CALIFORNIA CLASS incurred 18 unreimbursed business expenses which included, but were not limited to, costs related to the use 19 of their personal cellular phones all on behalf of and for the benefit of DEFENDANT. 20 24. Specifically as to PLAINTIFF, DEFENDANT fails to provide all the legally 21 required off-duty meal and rest breaks to PLAINTIFF as required by the applicable Wage Order 22 and Labor Code and failed to pay PLAINTIFF all minimum and overtime wages due to 23 PLAINTIFF. DEFENDANT does not have a policy or practice which provided timely off-duty 24 meal and rest breaks to PLAINTIFF and also fails to compensate PLAINTIFF for PLAINTIFF’s 25 missed meal and rest breaks. The nature of the work performed by the PLAINTIFF does not 26 prevent PLAINTIFF from being relieved of all of his duties for the legally required off-duty 27 meal periods. As a result, DEFENDANT’s failure to provide PLAINTIFF with the legally 28 required meal periods is evidenced by DEFENDANT’s business records. The amount in 9 CLASS ACTION COMPLAINT 1 controversy for PLAINTIFF individually does not exceed the sum or value of $75,000. 2 3 JURISDICTION AND VENUE 4 25. This Court has jurisdiction over this Action pursuant to California Code of Civil 5 Procedure, Section 410.10 and California Business & Professions Code, Section 17203. This 6 action is brought as a Class Action on behalf of PLAINTIFF and similarly situated employees 7 of DEFENDANT pursuant to Cal. Code of Civ. Proc. § 382. 8 26. Venue is proper in this Court pursuant to California Code of Civil Procedure, 9 Sections 395 and 395.5, because PLAINTIFF worked in this County for DEFENDANT and 10 DEFENDANT (i) currently maintains and at all relevant times maintained offices and facilities 11 in this County and/or conducts substantial business in this County, and (ii) committed the 12 wrongful conduct herein alleged in this County against members of the CALIFORNIA CLASS. 13 14 THE CALIFORNIA CLASS 15 27. PLAINTIFF brings the First Cause of Action for Unfair, Unlawful and Deceptive 16 Business Practices pursuant to Cal. Bus. & Prof. Code §§ 17200, et seq. (the "UCL") as a Class 17 Action, pursuant to Cal. Code of Civ. Proc. § 382, on behalf of a California class, defined as 18 all individuals who are or previously were employed by DEFENDANT in California, including 19 any employees staffed with DEFENDANT by a third party, and classified as non-exempt 20 employees (the “CALIFORNIA CLASS”) at any time during the period beginning four (4) 21 years prior to the filing of this Complaint and ending on the date as determined by the Court 22 (the “CALIFORNIA CLASS PERIOD”). The amount in controversy for the aggregate claim 23 of CALIFORNIA CLASS Members is under five million dollars ($5,000,000.00). 24 28. To the extent equitable tolling operates to toll claims by the CALIFORNIA 25 CLASS against DEFENDANT, the CALIFORNIA CLASS PERIOD should be adjusted 26 accordingly. 27 29. DEFENDANT, as a matter of company policy, practice and procedure, and in 28 violation of the applicable Labor Code, Industrial Welfare Commission (“IWC”) Wage Order 10 CLASS ACTION COMPLAINT 1 requirements, and the applicable provisions of California law, intentionally, knowingly, and 2 wilfully, engaged in a practice whereby DEFENDANT failed to record all meal and rest breaks 3 missed by PLAINTIFF and other CALIFORNIA CLASS Members, even though DEFENDANT 4 enjoyed the benefit of this work, required employees to perform this work and permits or suffers 5 to permit this work. 6 30. DEFENDANT has the legal burden to establish that each and every 7 CALIFORNIA CLASS Member was paid accurately for all meal and rest breaks missed as 8 required by California laws. The DEFENDANT, however, as a matter of policy and procedure 9 failed to have in place during the CALIFORNIA CLASS PERIOD and still fails to have in 10 place a policy or practice to ensure that each and every CALIFORNIA CLASS Member is paid 11 as required by law. This common business practice is applicable to each and every 12 CALIFORNIA CLASS Member can be adjudicated on a class-wide basis as unlawful, unfair, 13 and/or deceptive under Cal. Business & Professions Code §§ 17200, et seq. (the “UCL”) as 14 causation, damages, and reliance are not elements of this claim. 15 31. The CALIFORNIA CLASS, is so numerous that joinder of all CALIFORNIA 16 CLASS Members is impracticable. 17 32. DEFENDANT violated the rights of the CALIFORNIA CLASS under California 18 law by: 19 (a) Committing an act of unfair competition in violation of , Cal. Bus. & Prof. 20 Code §§ 17200, et seq. (the "UCL"), by unlawfully, unfairly and/or 21 deceptively having in place company policies, practices and procedures 22 that failed to record and pay PLAINTIFF and the other members of the 23 CALIFORNIA CLASS for all time worked, including minimum wages 24 owed and overtime wages owed for work performed by these employees; 25 and, 26 (b) Committing an act of unfair competition in violation of the UCL, by 27 failing to provide the PLAINTIFF and the other members of the 28 CALIFORNIA CLASS with the legally required meal and rest periods. 11 CLASS ACTION COMPLAINT 1 33. This Class Action meets the statutory prerequisites for the maintenance of a Class 2 Action as set forth in Cal. Code of Civ. Proc. § 382, in that: 3 (a) The persons who comprise the CALIFORNIA CLASS are so numerous 4 that the joinder of all such persons is impracticable and the disposition of 5 their claims as a class will benefit the parties and the Court; 6 (b) Nearly all factual, legal, statutory, declaratory and injunctive relief issues 7 that are raised in this Complaint are common to the CALIFORNIA 8 CLASS will apply to every member of the CALIFORNIA CLASS; 9 (c) The claims of the representative PLAINTIFF are typical of the claims of 10 each member of the CALIFORNIA CLASS. PLAINTIFF, like all the 11 other members of the CALIFORNIA CLASS, was classified as a non- 12 exempt employee paid on an hourly basis who was subjected to the 13 DEFENDANT’s deceptive practice and policy which failed to provide the 14 legally required meal and rest periods to the CALIFORNIA CLASS and 15 thereby underpaid compensation to PLAINTIFF and CALIFORNIA 16 CLASS. PLAINTIFF sustained economic injury as a result of 17 DEFENDANT’s employment practices. PLAINTIFF and the members of 18 the CALIFORNIA CLASS were and are similarly or identically harmed 19 by the same unlawful, deceptive and unfair misconduct engaged in by 20 DEFENDANT; and, 21 (d) The representative PLAINTIFF will fairly and adequately represent and 22 protect the interest of the CALIFORNIA CLASS, and has retained 23 counsel who are competent and experienced in Class Action litigation. 24 There are no material conflicts between the claims of the representative 25 PLAINTIFF and the members of the CALIFORNIA CLASS that would 26 make class certification inappropriate. Counsel for the CALIFORNIA 27 CLASS will vigorously assert the claims of all CALIFORNIA CLASS 28 Members. 12 CLASS ACTION COMPLAINT 1 34. In addition to meeting the statutory prerequisites to a Class Action, this action is 2 properly maintained as a Class Action pursuant to Cal. Code of Civ. Proc. § 382, in that: 3 (a) Without class certification and determination of declaratory, injunctive, 4 statutory and other legal questions within the class format, prosecution of 5 separate actions by individual members of the CALIFORNIA CLASS will 6 create the risk of: 7 1) Inconsistent or varying adjudications with respect to individual 8 members of the CALIFORNIA CLASS which would establish 9 incompatible standards of conduct for the parties opposing the 10 CALIFORNIA CLASS; and/or, 11 2) Adjudication with respect to individual members of the 12 CALIFORNIA CLASS which would as a practical matter be 13 dispositive of interests of the other members not party to the 14 adjudication or substantially impair or impede their ability to 15 protect their interests. 16 (b) The parties opposing the CALIFORNIA CLASS have acted or refused to 17 act on grounds generally applicable to the CALIFORNIA CLASS, making 18 appropriate class-wide relief with respect to the CALIFORNIA CLASS 19 as a whole in that DEFENDANT failed to pay all wages due to members 20 of the CALIFORNIA CLASS as required by law; 21 1) With respect to the First Cause of Action, the final relief on behalf 22 of the CALIFORNIA CLASS sought does not relate exclusively to 23 restitution because through this claim PLAINTIFF seeks 24 declaratory relief holding that the DEFENDANT’s policy and 25 practices constitute unfair competition, along with declaratory 26 relief, injunctive relief, and incidental equitable relief as may be 27 necessary to prevent and remedy the conduct declared to constitute 28 unfair competition; 13 CLASS ACTION COMPLAINT 1 (c) Common questions of law and fact exist as to the members of the 2 CALIFORNIA CLASS, with respect to the practices and violations of 3 California law as listed above, and predominate over any question 4 affecting only individual CALIFORNIA CLASS Members, and a Class 5 Action is superior to other available methods for the fair and efficient 6 adjudication of the controversy, including consideration of: 7 1) The interests of the members of the CALIFORNIA CLASS in 8 individually controlling the prosecution or defense of separate 9 actions in that the substantial expense of individual actions will be 10 avoided to recover the relatively small amount of economic losses 11 sustained by the individual CALIFORNIA CLASS Members when 12 compared to the substantial expense and burden of individual 13 prosecution of this litigation; 14 2) Class certification will obviate the need for unduly duplicative 15 litigation that would create the risk of: 16 A. Inconsistent or varying adjudications with respect to 17 individual members of the CALIFORNIA CLASS, which 18 would establish incompatible standards of conduct for the 19 DEFENDANT; and/or, 20 B. Adjudications with respect to individual members of the 21 CALIFORNIA CLASS would as a practical matter be 22 dispositive of the interests of the other members not parties 23 to the adjudication or substantially impair or impede their 24 ability to protect their interests; 25 3) In the context of wage litigation because a substantial number of 26