Preview
Cex
FILED
Jonathan P. LaCour, Esq. (SBN: 285098) Superior Courtet Californie
Lisa Noveck, Esq. (SBN: 316660) Conny of LooxAmgetes
EMPLOYEES FIRST LABOR LAW P.C. NOV 08 2019
225 S. Lake Ave., 3" Floor
WV
Sherri R.Carter, EyecutiveOfficer/Clerk
Pasadena, California 91101 By_£ Me Lice Deputy
WY
Telephone: (310) 853-3461
Steven Dre
br
Facsimile: (949) 743-5442
Email: jonathanl@pierrelacour.com
lisan@pierrelacour.com
DN
GEORGE P. MOSCHOPOULOS (SBN 249905)
NY
THE LAW OFFICE OF
GEORGE MOSCHOPOULOS, APC
Aa
34197 Pacific Coast Highway, Suite 100
So
Dana Point, CA 92629
10 Telephone: 949.498.5413
Facsimile: 949.272.0428
11 Email: GeorgeM@logmapc.com
12 Attorneys for Plaintiffs, JESSICA PAXTON and RACHEL RAMIREZ
13
14 SUPERIOR COURT OF THE STATE OF CALIFORNIA
15 COUNTY OF LOS ANGELES, CENTRAL DISTRICT
16 JESSICA PAXTON, an individual, and caseno. 19STCV4O2 22
17 RACHEL RAMIREZ, an individual, on behalf | — REPRESENTATIVE ACTION COMPLAINT
of themselves and all other “aggrieved
18 employees, COMPLAINT FOR:
19 Plaintiffs, 1. CIVIL PENALTIES UNDER THE LABOR
CODE PRIVATE ATTORNEYS GENERAL
20 V. ACT (LABOR CODE §§ 2698 ET SEQ.);
21 DAVE & BUSTERS MANAGEMENT [DEMAND FOR JURY TRIAL]
22 CORPORATION, INC., a Delaware
Corporation; DOE 1, a California Resident, and
23 DOES 2 through 20, inclusive,
24 Defendants.
25
26
27
28
-|-
COMPLAINT FOR COMPENSATORY, AND LIQUIDATED DAMAGES, INJUNCTIVE RELIEF, AND CIVIL PENALTIES
AL. V. DAVE & BUSTER’S MANAGEMENT CORPORATION, INC. ET AL.
PAXTON ET
COME NOW PLAINTIFFS, JESSICA PAXTON and RACHEL RAMIREZ, on behalf of
themselves and all other aggrieved employees (“Plaintiffs”), for causes of action against the Defendants
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and each of them, alleged as follows:
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JURISDICTION AND VENUE
1. This Court is the proper court, and this action is properly filed in Los Angeles County,
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because Defendant’s obligations and liability arise therein, because Defendant maintains offices and
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transacts business within Los Angeles County, and because the work that is the subject of this action
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was performed by Plaintiffs in Los Angeles County.
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THE PARTIES
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2. Plaintiff, JESSICA PAXTON, (hereinafter referred to as “Ms. Paxton”) is and at all
10
1] times relevant hereto was a resident of the County of Los Angeles, State of California.
12 3. Plaintiff, RACHEL RAMIREZ, (hereinafter referred to as “Ms. Ramirez”) is and at all
13 times relevant hereto was a resident of the County of Los Angeles, State of California.
14 4. Plaintiffs are informed and believe, and based thereupon allege, that at all times
relevant hereto, Defendant DAVE & BUSTERS MANAGEMENT CORPORATION, INC.,
15
(hereinafter referred to as “Defendant” or “DBMC”) was and is a Delaware corporation doing
16
business at 400 South Baldwin Ave., #930U, Arcadia 91007 in the County of Los Angeles, State of
17
18 California.
5. On information and belief, DOE 1 is natural person and a California resident residing
19
within the jurisdictional boundaries of this Court who, at all pertinent times herein, acted on behalf of
20
DBMC and violated, or caused to be violated, provisions regulating minimum wages or hours and
21
work, as set forth in more detail below, in an order of the Industrial Welfare Commission, or
22 days of
or caused to be violated, Labor Code sections 203, 226, 226.7, 1193.6, 1194, or 2802. On
23 violated,
and belief, DOE 1 is an owner, director, officer, or managing agent of DBMC. Doe 1
24 information
Plaintiffs’ working hours and work schedules at DBMC’s place of business located at 400
a regulated
26 South Baldwin Ave., #930U, Arcadia 91007.
information and belief, at all pertinent times herein, DOE 1 exercised a degree of
Ze 6. On
and authority over the operations of DBMC so as to establish or change the corporate
28 discretion
-2-
AND LIQUIDATED DAMAGES, INJUNCTIVE RELIEF, AND CIVIL PENALTIES
COMPLAINT FOR COMPENSATORY,
V. DAVE & BUSTER’S MANAGEMENT CORPORATION, INC. ET AL.
PAXTON ET AL.
policies of DBMC. In particular, DOE 1 had complete and total discretion to set DBMC’s policies as
to the applicable working hours, meal periods, and allotted rest breaks for DBMC’s employees
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including Plaintiffs.
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7. Plaintiffs are informed and believe, and based thereupon allege, that at all times
relevant hereto, Defendant owned and/or operated a restaurant and arcade company and availed itself
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of the rights and privileges of the State of California. The true name of DOE 1 is unknown to
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Plaintiffs at this time and Plaintiffs will seek leave to amend to allege the true name of DOE | once it
NY
is ascertained.
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8. Moreover, the true names and capacities, whether individual, corporate, associate, or
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10 otherwise, of the Defendants named herein as DOES 2-20, inclusive, are unknown to Plaintiffs at this
11 time and therefore said Defendants are sued by such fictitious names. Plaintiffs will seek leave to
12 amend this complaint to insert the true names and capacities of said Defendants when the same
13 become known to Plaintiffs. Plaintiffs are informed and believe, and based thereupon allege, that each
14 of the fictitiously named Defendants is responsible for the wrongful acts alleged herein, and is
15 therefore liable to Plaintiffs as alleged hereinafter.
based thereupon allege, that at all times
16 9. Plaintiffs are informed and believe, and
were the agents, employees, managing agents,
17 relevant hereto, Defendants, and each of them,
joint employers, alter egos, successors, and/or joint
18 supervisors, coconspirators, parent corporation,
and in doing the things alleged herein, were acting
19 ventures of the other Defendants, and each of them,
scope of said agency, employment, conspiracy, joint employer,
20 at least in part within the course and
the permission and consent of each of
21 alter ego status, successor status and/or joint venture and with
22 the other Defendants.
and based thereupon alleges, that Defendants, and
23 10. Plaintiffs are informed and believe,
as DOES 2-20, acted in concert with one another to
24 each of them, including those defendants named
and aided, abetted, incited, compelled and/or coerced one
25 commit the wrongful acts alleged herein,
and/or attempted to do so. Plaintiffs are further informed
26 another in the wrongful acts alleged herein,
based thereupon allege, that Defendants, and each of them, including those
27 and believe, and
DOES 2-20, and each of them, formed and executed a conspiracy or common
28 defendants named as
-3-
FOR COMPENSATORY, AND LIQUIDATED DAMAGES, INJUNCTIVE RELIEF, AND CIVIL PENALTIES
COMPLAINT
ET AL. V. DAVE & BUSTER’S MANAGE MENT CORPOR ATION, INC. ET AL,
PAXTON
plan pursuant to which they would commit the unlawful acts alleged herein, with all such acts alleged
herein done as part of and pursuant to said conspiracy, intended to cause and actually causing
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Plaintiffs harm.
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11. | Whenever and wherever reference is made in this complaint to any act or failure to act
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by a Defendant or co-Defendant, such allegations and references shall also be deemed to mean the
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acts and/or failures to act by each Defendant acting individually, jointly and severally.
ALTER EGO, AGENCY, SUCCESSOR AND JOINT EMPLOYER
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12. Plaintiffs are informed and believe, and based thereon allege, that there exists such a
unity of interest and ownership between Defendant and DOES 2-20 that the individuality and
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10 separateness of Defendant have ceased to exist.
11 13. Plaintiffs are informed and believe, and based thereon allege, that despite the formation
12 of purported corporate existence, Defendant and DOES 2-20 are, in reality, one and the same as
13 Defendant, including, but not limited to because:
14 a. Defendant is completely dominated and controlled by DOES 2-20, who
15 personally committed the frauds and violated the laws as set forth in this complaint, and who have
16 hidden and currently hide behind Defendant to perpetrate frauds, circumvent statutes, or accomplish
17 some other wrongful or inequitable purpose.
18 b. DOES 2-20 derive actual and significant monetary benefits by and through
Defendant’s unlawful conduct, and by using Defendant as the funding source for their own personal
19
20 expenditures.
c. Plaintiffs are informed and believe that Defendant and DOES 2-20, while really
21
one and the same, were segregated to appear as though separate and distinct for purposes of
22
perpetrating a fraud, circumventing a statute, or accomplishing some other wrongful or inequitable
23
24 purpose.
d. Plaintiffs are informed and believe that Defendant does not comply with all
25
requisite corporate formalities to maintain a legal and separate corporate existence.
26
e. Plaintiffs are informed and believe, and based thereon alleges, that the business
27
and DOES 2-20 are, and at alltimes relevant were, so mixed and intermingled that
28 affairs of Defendant
-4-
AND LIQUIDATED DAMAGES, INJUNCTIVE RELIEF, AND CIVIL PENALTIES
COMPLAINT FOR COMPENSATORY,
AL. V. DAVE & BUSTER’S MANAGEMENT CORPORATION, INC. ET AL.
PAXTON ET
the same cannot reasonably be segregated, and the same are in inextricable confusion. Defendant is,
and at all times relevant hereto was, used by DOES 2-20 as a mere shell and conduit for the conduct of
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of Defendant’s affairs, and is, and was, the alter ego of DOES 2-20. The recognition of the
certain
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existence of Defendant would not promote justice, in that it would permit Defendant to
separate
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insulate itself from liability to Plaintiffs for violations of the Labor Code and other statutory violations.
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The corporate existence of Defendant and DOES 2-20 should be disregarded in equity and for the ends
of justice because such disregard isnecessary to avoid fraud and injustice to Plaintiffs herein.
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14. Accordingly, Defendant constitutes the alter ego of DOES 2-20, and the fiction of their
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separate corporate existence must be disregarded.
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15. Asa result of the aforementioned facts, Plaintiffs are informed and believe, and based
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thereon alleges that Defendant and DOES 2-20 are Plaintiffs’ joint employers by virtue of a joint
enterprise, and that Plaintiffs were employees of Defendant, and DOES 2-20. Plaintiffs performed
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services for each and every one of Defendants, and to the mutual benefit of all Defendants, and all
Defendants shared control of Plaintiffs as employees, either directly or indirectly, and the manner in
which Defendants’ business was and is conducted.
16. Alternatively, Plaintiffs are informed and believe and, based thereupon allege, that as
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and between DOES 2-20 and Defendant, (1) there is an express or implied agreement of assumption
pursuant to which DOES 2-20 agreed to be liable for the debts of Defendant, (2) the transaction
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DOES 2-20 and Defendant amounts to a consolidation or merger of the two corporations, (3)
between
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2-20 is a mere continuation of Defendant, or (4) the transfer of assets to DOES 2-20 is for the
DOES
WHY
FF
purpose of escaping liability for Defendant’s debts. Accordingly, DOES 2-20 are the
fraudulent
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successors of Defendant, and are liable on that basis.
NY
FOND
FACTUAL ALLEGATIONS
NY
Paxton began working at Defendant on or about October 1, 2017 as a server at a
17. Ms.
NY
per hour. On or about July of 2018, Ms. Paxton received a raise in her rate of
rate of pay of $11.25
A
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pay to $11.50 per hour.
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NY
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Ny
-5-
DAMAGES, INJUNCTIVE RELIEF, AND CIVIL PENALTIES
COMPLAINT FOR COMPENSATORY, AND LIQUIDATED
DAVE & BUSTER’S MANAGEMENT CORPORATION, INC. ET AL.
PAXTON ET AL. V.
18. Ms. Paxton’s job duties involved greeting tables, delivering food and drink orders to
customers, collecting payment, nightly cleaning of the restaurant, and helping out with other service
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tasks as assigned.
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19. Ms. Paxton typically worked over seven hours per day, four to five days per week
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throughout her employment. She also made roughly $300.00 in tips per week.
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20. Throughout Ms. Paxton’s employment with Defendant, she was unable to take
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uninterrupted meal breaks and rest periods. Indeed, she was not permitted to clock in or out for any
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breaks. Instead, Ms. Paxton clocked in at the startof her shift and clocked out at the end, with nothing
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in between.
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10 21. Ms. Paxton often complained to her supervisors about being unable to take proper
1 breaks, but her supervisors told Ms. Paxton that she would have to tolerate her lack of breaks, and it
12 was just how the business ran because of the crowd.
to use the restroom as often
13 22. Ms. Paxton was often so busy at work that she was unable
14 as she needed to, but when she complained about this to her supervisors, they gave her the same
of proper meal breaks and rest periods, and did
15 response that they had for her complaints about a lack
16 nothing to ameliorate the situation.
employment with Defendant on or about January 27,
17 23. Ms. Paxton was terminated from
18 2019.
at Defendant on or about November 1, 2016 as a server at
19 24. Ms. Ramirez began working
Ms. Ramirez received a raise in her rate
20 a rate of pay of $11.25 per hour. On or about June of 2018,
21 of pay to $11.50 per hour.
involved greeting tables, delivering food and
22 25. Like Ms. Paxton, Ms. Ramirez’ job duties
payment, nightly cleaning of the restaurant, and helping out with
23 drink orders to customers, collecting
24 other service tasks as assigned.
typically worked over eight hours per day, four to five days per week, and
25 26. Ms. Ramirez
26 earned approximately $300.00 in tips per week.
throughout her employment with Defendant, Ms. Ramirez was
27 27. Also like Ms. Paxton,
meal breaks and rest periods. She was unable to clock out for any
28 often required to work through her
-6-
AND LIQUIDATED DAMAGES, INJUNCTIVE RELIEF, AND CIVIL PENALTIES
COMPLAINT FOR COMPENSATORY,
V. DAVE & BUSTER’S MANAGEMENT CORPORATION, INC. ET AL.
PAXTON ET AL.
breaks, but rather clocked in once at the beginning of her shift and then clocked out at the end of her
shift, with nothing in between.
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28. Ms. Ramirez also frequently complained to her supervisors about being unable to take
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the meal breaks and rest periods to which she was entitled, but her supervisors did nothing in response
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to remedy the situation or otherwise ensure that Ms. Ramirez would be able to take her proper breaks.
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29. Ms. Ramirez was terminated from employment with Defendant on or about November
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1, 2018.
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30. For the entirety of Plaintiffs’ employment with Defendant, Defendant has failed and
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refused to pay Plaintiffs the total amount of wages that Plaintiffs, through their employment and labor
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had earned working for Defendant.
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entirety of Plaintiffs’ employment with Defendant, Defendant had consistently
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31. For the
failed to provide Plaintiffs with timely, accurate, and itemized wage and hour statements, in writing,
showing gross wages earned, total hours worked, all deductions made, net wages earned, the name
and address of the legal entity employing them, all applicable hourly rates in effect during each pay
period, and the corresponding number of hours worked by them at each hourly rate in and among
other information, as required by California wage-and-hour laws.
32. For the entirety of Plaintiffs’ employment with Defendant, Defendant routinely failed
of hours, and routinely
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to provide Plaintiffs with rest breaks after working the requisite number
required Plaintiffs to work more than the requisite number of hours without being given at least a 30-
YS
minute meal break. Further, Defendant routinely failed to compensate Plaintiffs for these missed rest
FFWY
breaks and meal periods.
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33. For the entirety of Plaintiffs’ employment with Defendant, Defendant had consistently
NY
REOHR
failed to pay Plaintiffs’ wages on a timely semi-monthly basis, as required by the Labor Code.
NY
34. For the entirety of Plaintiffs’ employment with Defendant, Defendant routinely
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to work more than eight hours per day and 40 hours per week. Plaintiff did not
required Plaintiff
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and overtime pay.
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receive accurate compensation for straight, regular time pay,
NY NY
2NO
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DAMAGES, INJUNCTIVE RELIEF, AND CIVIL PENALTIES
AND LIQUIDATED
COMPLAINT
PAXTON
FOR
ET
COMPENSATORY,
AL. V. DAVE & BUSTER’S MANAGEMENT CORPORATION, INC. ET AL.
35. Defendant failed to pay all wages due and owed to Plaintiffs at the time of their
termination or within seventy-two (72) hours of their resignation, as required by California wage-and-
WL
hour laws.
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36. Pursuant to the Labor Code, California law and applicable Wage Orders, Plaintiffs are
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entitled to all damages, unpaid wages, statutory penalties, waiting time penalties, interest and
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attorney’s fees and costs for the illegal and wrongful acts and omissions of Defendants, allas alleged
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throughout this Complaint.
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DHA
FIRST CAUSE OF ACTION
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RECOVERY FOR CIVIL PENALTIES UNDER THE LABOR CODE
PRIVATE ATTORNEY GENERAL ACT
aHR
AS
(LABOR CODE §§ 2698 ET SEQ.)
BY ALL PLAINTIFFS AGAINST DEFENDANT DBMC, DOE 1,DOES 2-20, INCLUSIVE
as
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37. Plaintiffs incorporate by reference and re-allege paragraphs | through 36, inclusive,
though set forth fully herein.
38. As alleged herein, Defendant has repeatedly committed several types of Labor Code
violations against Plaintiffs and all other aggrieved employees.
39. Plaintiffs, “aggrieved employees” within the meaning of California Labor Code
Section 2699(c), acting on behalf of themselves and the State of California’s Labor and Workforce
Development Agency, bring this action to recover the civil penalties provided for under the California
&
Private Attorney General Act of 2004 (“PAGA”), including, but not limited to, the
FY
Labor Code
SF
California Labor Code Sections 210, 225.5, 226.3, 558, 1197.1 and 2699,
NY
penalties provided under
SF
intentional Labor Code violations:
NY
subdivisions (a) and (f),for the following knowing and
and all other aggrieved employees all earned
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40. Failing and/or refusing to pay Plaintiffs
8 hours in a day and/or 40 hours in a week, in violation of
NY
overtime compensation for work beyond
IWC Wage Order 5 (see Labor Code §§ 558 & 2699%a));
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Labor Code section 510 and
refusing to pay Plaintiffs and all other aggrieved employees the legally-
NY
41. Failing and/or
wage for each hour worked, in violation of Labor Code section 1197 and Wage
Ua NY
mandated minimum
558 & 2699(a));
NY
Order 5, (see Labor Code §§ 1197.1,
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LIQUIDATED DAMAGES, INJUNCTIVE RELIEF, AND CIVIL PENALTIES
FOR COMPENSATORY, AND
COMPLAINT
PAXTON ET AL. V. DAVE & BUSTER’S MANAGEMENT CORPORATION, INC. ET AL.
42. Failing and/or refusing to pay all wages earned by Plaintiffs and all other aggrieved
KF
employees within the time limits prescribed by Labor Code section 204, (see Labor Code §§ 210, 558
NO
& 2699(a));
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43. Failing and/or refusing to properly maintain records of, and furnish to Plaintiffs and all
FSF
other aggrieved employees, accurate, itemized wage statements, in violation of Labor Code section
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226, (see Labor Code §§ 226.3, 558 & 2699(a));
Do
44. Failing and/or refusing to pay Plaintiffs and all other aggrieved employees wages due
NY
and owed at the time of termination or within seventy-two (72) hours of resignation, in violation of
Dea
Labor Code section 203, (see Labor Code §§ 203, 558 & 2699(a));
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45. Failing and/or refusing to provide Plaintiffs and all other aggrieved employees with
adequate meal periods in violation of Labor Code sections 512 and 226.7 (see Labor Code §§ 226.7,
512, 558 & 2699(a));
46. Failing and/or refusing to provide Plaintiffs and all other aggrieved employees with
adequate rest breaks in violation of Labor Code sections 512 and 226.7 (see Labor Code §§ 226.7,
558 & 2699(a)); and
47. Other violations of the Labor Code as may be disclosed in discovery.
48. On June 11, 2019, a letterwas sent by certified mail to Defendant, and to the California
Labor and Workforce Development Agency, (hereafter, “LWDA”), giving notice of Defendant’s
YY
violations of the California Labor Code as herein described, and of Plaintiffs’ intent to bring a civil
YS
claim for civil penalties under PAGA.
NY
49, More than 60 days have passed since Plaintiffs provided notice to the LWDA and they
NY
did not receive any notification that the LWDA intends to investigate the alleged violations.
NY
Plaintiffs are entitled to prosecute their PAGA claims under Labor Code section 2699, et
Therefore,
NY
seq.
NY
Plaintiffs were compelled to retain the services of counsel to file this court action to
50.
NY
interest, and to assess and collect the civil penalties owed by Defendant. Plaintiffs have
protect their
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fees and costs, which they are entitled to recover under Labor Code §
thereby incurred attorneys’
NY
2699.
Nb
-9-
COMPLAINT FOR COMPENSATORY, AND LIQUIDATED DAMAGES, INJUNCTIVE RELIEF, AND CIVIL PENALTIES
DAVE & BUSTER’S MANAGEMENT CORPORATION, INC. ET AL.
PAXTON ET AL. V.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs hereby pray that the Court enter judgment in their favor and against
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Defendants, and each of them, as follows:
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1. For payment of earned wages, meal and rest period compensation, waiting time
-&-
compensation, and other damages according to proof in an amount to be ascertained at
an
trial,and in excess of the jurisdictional limit of this court; for other special damages;
DD
2. For payment of all statutory obligations and penalties as required by law;
NN
3. For “civil penalties” to the extent permitted by law and Labor Code §§ 2698 and Section
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2699 et seq.;
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10 4. A declaration of the rights and interests of the parties;
ll 5. For prejudgment interest on each of the foregoing at the legal rate from the date the
12 obligation became due through the date ofjudgment in this matter;
13 6. For costs of suit, attorneys’ fees, and expert witness fees;
14 7. For post-judgment interest; and
15 8. For any other relief that isjust and proper.
16
November 6, 2019 EMPLOYEES FIRST LABOR LAW
DATED:
17
18
19
By: CM
Jonathan P. LaCour, Esq.
Attomeys for Plaintiffs
20 JESSICA PAXTON and RACHEL RAMIREZ
21
22
23
24
25
26
27
28
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AND LIQUIDATED DAMAGES, INJUNCTIVE RELIEF, AND CIVIL PENALTIES
COMPLAINT FOR COMPENSATORY,
PAXTON ET AL. V. DAVE & BUSTER’S MANAGEMENT CORPORATION, INC. ET AL.
JURY TRIAL DEMANDED
Plaintiffs demand trialby jury.
NO
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6, 2019 EMPLOYEES FIRST LABOR LAW
DATED: November
FP
2
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By:
Jonathan P. LaCour, Esq.
Dn
Attorneys for Plaintiffs
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JESSICA PAXTON and RACHEL RAMIREZ
oma
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NY
NY
NY
NY
NY
NY
NY
NO
NH
-11-
LIQUIDATED DAMAGES, INJUNCTIVE RELIEF, AND CIVIL PENALTIES
AND
COMPLAINT
PAXTON
FOR
ET
COMPENSATORY,
AL. V. DAVE & BUSTER’S MANAGEMENT CORPORATION, INC. ET AL.
Preview
Cex FILED Jonathan P. LaCour, Esq. (SBN: 285098) Superior Courtet Californie Lisa Noveck, Esq. (SBN: 316660) Conny of LooxAmgetes EMPLOYEES FIRST LABOR LAW P.C. NOV 08 2019 225 S. Lake Ave., 3" Floor WV Sherri R.Carter, EyecutiveOfficer/Clerk Pasadena, California 91101 By_£ Me Lice Deputy WY Telephone: (310) 853-3461 Steven Dre br Facsimile: (949) 743-5442 Email: jonathanl@pierrelacour.com lisan@pierrelacour.com DN GEORGE P. MOSCHOPOULOS (SBN 249905) NY THE LAW OFFICE OF GEORGE MOSCHOPOULOS, APC Aa 34197 Pacific Coast Highway, Suite 100 So Dana Point, CA 92629 10 Telephone: 949.498.5413 Facsimile: 949.272.0428 11 Email: GeorgeM@logmapc.com 12 Attorneys for Plaintiffs, JESSICA PAXTON and RACHEL RAMIREZ 13 14 SUPERIOR COURT OF THE STATE OF CALIFORNIA 15 COUNTY OF LOS ANGELES, CENTRAL DISTRICT 16 JESSICA PAXTON, an individual, and caseno. 19STCV4O2 22 17 RACHEL RAMIREZ, an individual, on behalf | — REPRESENTATIVE ACTION COMPLAINT of themselves and all other “aggrieved 18 employees, COMPLAINT FOR: 19 Plaintiffs, 1. CIVIL PENALTIES UNDER THE LABOR CODE PRIVATE ATTORNEYS GENERAL 20 V. ACT (LABOR CODE §§ 2698 ET SEQ.); 21 DAVE & BUSTERS MANAGEMENT [DEMAND FOR JURY TRIAL] 22 CORPORATION, INC., a Delaware Corporation; DOE 1, a California Resident, and 23 DOES 2 through 20, inclusive, 24 Defendants. 25 26 27 28 -|- COMPLAINT FOR COMPENSATORY, AND LIQUIDATED DAMAGES, INJUNCTIVE RELIEF, AND CIVIL PENALTIES AL. V. DAVE & BUSTER’S MANAGEMENT CORPORATION, INC. ET AL. PAXTON ET COME NOW PLAINTIFFS, JESSICA PAXTON and RACHEL RAMIREZ, on behalf of themselves and all other aggrieved employees (“Plaintiffs”), for causes of action against the Defendants WN and each of them, alleged as follows: Ww JURISDICTION AND VENUE 1. This Court is the proper court, and this action is properly filed in Los Angeles County, NN because Defendant’s obligations and liability arise therein, because Defendant maintains offices and DB transacts business within Los Angeles County, and because the work that is the subject of this action NY was performed by Plaintiffs in Los Angeles County. Oo THE PARTIES Oo 2. Plaintiff, JESSICA PAXTON, (hereinafter referred to as “Ms. Paxton”) is and at all 10 1] times relevant hereto was a resident of the County of Los Angeles, State of California. 12 3. Plaintiff, RACHEL RAMIREZ, (hereinafter referred to as “Ms. Ramirez”) is and at all 13 times relevant hereto was a resident of the County of Los Angeles, State of California. 14 4. Plaintiffs are informed and believe, and based thereupon allege, that at all times relevant hereto, Defendant DAVE & BUSTERS MANAGEMENT CORPORATION, INC., 15 (hereinafter referred to as “Defendant” or “DBMC”) was and is a Delaware corporation doing 16 business at 400 South Baldwin Ave., #930U, Arcadia 91007 in the County of Los Angeles, State of 17 18 California. 5. On information and belief, DOE 1 is natural person and a California resident residing 19 within the jurisdictional boundaries of this Court who, at all pertinent times herein, acted on behalf of 20 DBMC and violated, or caused to be violated, provisions regulating minimum wages or hours and 21 work, as set forth in more detail below, in an order of the Industrial Welfare Commission, or 22 days of or caused to be violated, Labor Code sections 203, 226, 226.7, 1193.6, 1194, or 2802. On 23 violated, and belief, DOE 1 is an owner, director, officer, or managing agent of DBMC. Doe 1 24 information Plaintiffs’ working hours and work schedules at DBMC’s place of business located at 400 a regulated 26 South Baldwin Ave., #930U, Arcadia 91007. information and belief, at all pertinent times herein, DOE 1 exercised a degree of Ze 6. On and authority over the operations of DBMC so as to establish or change the corporate 28 discretion -2- AND LIQUIDATED DAMAGES, INJUNCTIVE RELIEF, AND CIVIL PENALTIES COMPLAINT FOR COMPENSATORY, V. DAVE & BUSTER’S MANAGEMENT CORPORATION, INC. ET AL. PAXTON ET AL. policies of DBMC. In particular, DOE 1 had complete and total discretion to set DBMC’s policies as to the applicable working hours, meal periods, and allotted rest breaks for DBMC’s employees WN including Plaintiffs. WY 7. Plaintiffs are informed and believe, and based thereupon allege, that at all times relevant hereto, Defendant owned and/or operated a restaurant and arcade company and availed itself NN of the rights and privileges of the State of California. The true name of DOE 1 is unknown to DB Plaintiffs at this time and Plaintiffs will seek leave to amend to allege the true name of DOE | once it NY is ascertained. Oo 8. Moreover, the true names and capacities, whether individual, corporate, associate, or Oo 10 otherwise, of the Defendants named herein as DOES 2-20, inclusive, are unknown to Plaintiffs at this 11 time and therefore said Defendants are sued by such fictitious names. Plaintiffs will seek leave to 12 amend this complaint to insert the true names and capacities of said Defendants when the same 13 become known to Plaintiffs. Plaintiffs are informed and believe, and based thereupon allege, that each 14 of the fictitiously named Defendants is responsible for the wrongful acts alleged herein, and is 15 therefore liable to Plaintiffs as alleged hereinafter. based thereupon allege, that at all times 16 9. Plaintiffs are informed and believe, and were the agents, employees, managing agents, 17 relevant hereto, Defendants, and each of them, joint employers, alter egos, successors, and/or joint 18 supervisors, coconspirators, parent corporation, and in doing the things alleged herein, were acting 19 ventures of the other Defendants, and each of them, scope of said agency, employment, conspiracy, joint employer, 20 at least in part within the course and the permission and consent of each of 21 alter ego status, successor status and/or joint venture and with 22 the other Defendants. and based thereupon alleges, that Defendants, and 23 10. Plaintiffs are informed and believe, as DOES 2-20, acted in concert with one another to 24 each of them, including those defendants named and aided, abetted, incited, compelled and/or coerced one 25 commit the wrongful acts alleged herein, and/or attempted to do so. Plaintiffs are further informed 26 another in the wrongful acts alleged herein, based thereupon allege, that Defendants, and each of them, including those 27 and believe, and DOES 2-20, and each of them, formed and executed a conspiracy or common 28 defendants named as -3- FOR COMPENSATORY, AND LIQUIDATED DAMAGES, INJUNCTIVE RELIEF, AND CIVIL PENALTIES COMPLAINT ET AL. V. DAVE & BUSTER’S MANAGE MENT CORPOR ATION, INC. ET AL, PAXTON plan pursuant to which they would commit the unlawful acts alleged herein, with all such acts alleged herein done as part of and pursuant to said conspiracy, intended to cause and actually causing Nw Plaintiffs harm. W 11. | Whenever and wherever reference is made in this complaint to any act or failure to act FS by a Defendant or co-Defendant, such allegations and references shall also be deemed to mean the nn acts and/or failures to act by each Defendant acting individually, jointly and severally. ALTER EGO, AGENCY, SUCCESSOR AND JOINT EMPLOYER won 12. Plaintiffs are informed and believe, and based thereon allege, that there exists such a unity of interest and ownership between Defendant and DOES 2-20 that the individuality and Oo 10 separateness of Defendant have ceased to exist. 11 13. Plaintiffs are informed and believe, and based thereon allege, that despite the formation 12 of purported corporate existence, Defendant and DOES 2-20 are, in reality, one and the same as 13 Defendant, including, but not limited to because: 14 a. Defendant is completely dominated and controlled by DOES 2-20, who 15 personally committed the frauds and violated the laws as set forth in this complaint, and who have 16 hidden and currently hide behind Defendant to perpetrate frauds, circumvent statutes, or accomplish 17 some other wrongful or inequitable purpose. 18 b. DOES 2-20 derive actual and significant monetary benefits by and through Defendant’s unlawful conduct, and by using Defendant as the funding source for their own personal 19 20 expenditures. c. Plaintiffs are informed and believe that Defendant and DOES 2-20, while really 21 one and the same, were segregated to appear as though separate and distinct for purposes of 22 perpetrating a fraud, circumventing a statute, or accomplishing some other wrongful or inequitable 23 24 purpose. d. Plaintiffs are informed and believe that Defendant does not comply with all 25 requisite corporate formalities to maintain a legal and separate corporate existence. 26 e. Plaintiffs are informed and believe, and based thereon alleges, that the business 27 and DOES 2-20 are, and at alltimes relevant were, so mixed and intermingled that 28 affairs of Defendant -4- AND LIQUIDATED DAMAGES, INJUNCTIVE RELIEF, AND CIVIL PENALTIES COMPLAINT FOR COMPENSATORY, AL. V. DAVE & BUSTER’S MANAGEMENT CORPORATION, INC. ET AL. PAXTON ET the same cannot reasonably be segregated, and the same are in inextricable confusion. Defendant is, and at all times relevant hereto was, used by DOES 2-20 as a mere shell and conduit for the conduct of YP of Defendant’s affairs, and is, and was, the alter ego of DOES 2-20. The recognition of the certain WY existence of Defendant would not promote justice, in that it would permit Defendant to separate FP insulate itself from liability to Plaintiffs for violations of the Labor Code and other statutory violations. Dn The corporate existence of Defendant and DOES 2-20 should be disregarded in equity and for the ends of justice because such disregard isnecessary to avoid fraud and injustice to Plaintiffs herein. NI 14. Accordingly, Defendant constitutes the alter ego of DOES 2-20, and the fiction of their ea separate corporate existence must be disregarded. Oo 15. Asa result of the aforementioned facts, Plaintiffs are informed and believe, and based SS thereon alleges that Defendant and DOES 2-20 are Plaintiffs’ joint employers by virtue of a joint enterprise, and that Plaintiffs were employees of Defendant, and DOES 2-20. Plaintiffs performed AREBAH services for each and every one of Defendants, and to the mutual benefit of all Defendants, and all Defendants shared control of Plaintiffs as employees, either directly or indirectly, and the manner in which Defendants’ business was and is conducted. 16. Alternatively, Plaintiffs are informed and believe and, based thereupon allege, that as RHA and between DOES 2-20 and Defendant, (1) there is an express or implied agreement of assumption pursuant to which DOES 2-20 agreed to be liable for the debts of Defendant, (2) the transaction Ce DOES 2-20 and Defendant amounts to a consolidation or merger of the two corporations, (3) between YS 2-20 is a mere continuation of Defendant, or (4) the transfer of assets to DOES 2-20 is for the DOES WHY FF purpose of escaping liability for Defendant’s debts. Accordingly, DOES 2-20 are the fraudulent VY successors of Defendant, and are liable on that basis. NY FOND FACTUAL ALLEGATIONS NY Paxton began working at Defendant on or about October 1, 2017 as a server at a 17. Ms. NY per hour. On or about July of 2018, Ms. Paxton received a raise in her rate of rate of pay of $11.25 A NY pay to $11.50 per hour. UANY NY ec Ny -5- DAMAGES, INJUNCTIVE RELIEF, AND CIVIL PENALTIES COMPLAINT FOR COMPENSATORY, AND LIQUIDATED DAVE & BUSTER’S MANAGEMENT CORPORATION, INC. ET AL. PAXTON ET AL. V. 18. Ms. Paxton’s job duties involved greeting tables, delivering food and drink orders to customers, collecting payment, nightly cleaning of the restaurant, and helping out with other service bw tasks as assigned. W 19. Ms. Paxton typically worked over seven hours per day, four to five days per week FS throughout her employment. She also made roughly $300.00 in tips per week. un 20. Throughout Ms. Paxton’s employment with Defendant, she was unable to take Dn uninterrupted meal breaks and rest periods. Indeed, she was not permitted to clock in or out for any NI breaks. Instead, Ms. Paxton clocked in at the startof her shift and clocked out at the end, with nothing Aa in between. oOo 10 21. Ms. Paxton often complained to her supervisors about being unable to take proper 1 breaks, but her supervisors told Ms. Paxton that she would have to tolerate her lack of breaks, and it 12 was just how the business ran because of the crowd. to use the restroom as often 13 22. Ms. Paxton was often so busy at work that she was unable 14 as she needed to, but when she complained about this to her supervisors, they gave her the same of proper meal breaks and rest periods, and did 15 response that they had for her complaints about a lack 16 nothing to ameliorate the situation. employment with Defendant on or about January 27, 17 23. Ms. Paxton was terminated from 18 2019. at Defendant on or about November 1, 2016 as a server at 19 24. Ms. Ramirez began working Ms. Ramirez received a raise in her rate 20 a rate of pay of $11.25 per hour. On or about June of 2018, 21 of pay to $11.50 per hour. involved greeting tables, delivering food and 22 25. Like Ms. Paxton, Ms. Ramirez’ job duties payment, nightly cleaning of the restaurant, and helping out with 23 drink orders to customers, collecting 24 other service tasks as assigned. typically worked over eight hours per day, four to five days per week, and 25 26. Ms. Ramirez 26 earned approximately $300.00 in tips per week. throughout her employment with Defendant, Ms. Ramirez was 27 27. Also like Ms. Paxton, meal breaks and rest periods. She was unable to clock out for any 28 often required to work through her -6- AND LIQUIDATED DAMAGES, INJUNCTIVE RELIEF, AND CIVIL PENALTIES COMPLAINT FOR COMPENSATORY, V. DAVE & BUSTER’S MANAGEMENT CORPORATION, INC. ET AL. PAXTON ET AL. breaks, but rather clocked in once at the beginning of her shift and then clocked out at the end of her shift, with nothing in between. NYO 28. Ms. Ramirez also frequently complained to her supervisors about being unable to take WO the meal breaks and rest periods to which she was entitled, but her supervisors did nothing in response FP to remedy the situation or otherwise ensure that Ms. Ramirez would be able to take her proper breaks. Wn 29. Ms. Ramirez was terminated from employment with Defendant on or about November Dn 1, 2018. Nn 30. For the entirety of Plaintiffs’ employment with Defendant, Defendant has failed and ma refused to pay Plaintiffs the total amount of wages that Plaintiffs, through their employment and labor Co had earned working for Defendant. ES entirety of Plaintiffs’ employment with Defendant, Defendant had consistently AAREBEH 31. For the failed to provide Plaintiffs with timely, accurate, and itemized wage and hour statements, in writing, showing gross wages earned, total hours worked, all deductions made, net wages earned, the name and address of the legal entity employing them, all applicable hourly rates in effect during each pay period, and the corresponding number of hours worked by them at each hourly rate in and among other information, as required by California wage-and-hour laws. 32. For the entirety of Plaintiffs’ employment with Defendant, Defendant routinely failed of hours, and routinely Cer to provide Plaintiffs with rest breaks after working the requisite number required Plaintiffs to work more than the requisite number of hours without being given at least a 30- YS minute meal break. Further, Defendant routinely failed to compensate Plaintiffs for these missed rest FFWY breaks and meal periods. NY 33. For the entirety of Plaintiffs’ employment with Defendant, Defendant had consistently NY REOHR failed to pay Plaintiffs’ wages on a timely semi-monthly basis, as required by the Labor Code. NY 34. For the entirety of Plaintiffs’ employment with Defendant, Defendant routinely NY to work more than eight hours per day and 40 hours per week. Plaintiff did not required Plaintiff NY and overtime pay. Uaa receive accurate compensation for straight, regular time pay, NY NY 2NO -7- DAMAGES, INJUNCTIVE RELIEF, AND CIVIL PENALTIES AND LIQUIDATED COMPLAINT PAXTON FOR ET COMPENSATORY, AL. V. DAVE & BUSTER’S MANAGEMENT CORPORATION, INC. ET AL. 35. Defendant failed to pay all wages due and owed to Plaintiffs at the time of their termination or within seventy-two (72) hours of their resignation, as required by California wage-and- WL hour laws. WY 36. Pursuant to the Labor Code, California law and applicable Wage Orders, Plaintiffs are Ff entitled to all damages, unpaid wages, statutory penalties, waiting time penalties, interest and On attorney’s fees and costs for the illegal and wrongful acts and omissions of Defendants, allas alleged DB throughout this Complaint. NI DHA FIRST CAUSE OF ACTION Oo RECOVERY FOR CIVIL PENALTIES UNDER THE LABOR CODE PRIVATE ATTORNEY GENERAL ACT aHR AS (LABOR CODE §§ 2698 ET SEQ.) BY ALL PLAINTIFFS AGAINST DEFENDANT DBMC, DOE 1,DOES 2-20, INCLUSIVE as CwHeriAaAaREaA 37. Plaintiffs incorporate by reference and re-allege paragraphs | through 36, inclusive, though set forth fully herein. 38. As alleged herein, Defendant has repeatedly committed several types of Labor Code violations against Plaintiffs and all other aggrieved employees. 39. Plaintiffs, “aggrieved employees” within the meaning of California Labor Code Section 2699(c), acting on behalf of themselves and the State of California’s Labor and Workforce Development Agency, bring this action to recover the civil penalties provided for under the California & Private Attorney General Act of 2004 (“PAGA”), including, but not limited to, the FY Labor Code SF California Labor Code Sections 210, 225.5, 226.3, 558, 1197.1 and 2699, NY penalties provided under SF intentional Labor Code violations: NY subdivisions (a) and (f),for the following knowing and and all other aggrieved employees all earned oOKRNY 40. Failing and/or refusing to pay Plaintiffs 8 hours in a day and/or 40 hours in a week, in violation of NY overtime compensation for work beyond IWC Wage Order 5 (see Labor Code §§ 558 & 2699%a)); ARNY Labor Code section 510 and refusing to pay Plaintiffs and all other aggrieved employees the legally- NY 41. Failing and/or wage for each hour worked, in violation of Labor Code section 1197 and Wage Ua NY mandated minimum 558 & 2699(a)); NY Order 5, (see Labor Code §§ 1197.1, eo Nv -8- LIQUIDATED DAMAGES, INJUNCTIVE RELIEF, AND CIVIL PENALTIES FOR COMPENSATORY, AND COMPLAINT PAXTON ET AL. V. DAVE & BUSTER’S MANAGEMENT CORPORATION, INC. ET AL. 42. Failing and/or refusing to pay all wages earned by Plaintiffs and all other aggrieved KF employees within the time limits prescribed by Labor Code section 204, (see Labor Code §§ 210, 558 NO & 2699(a)); WO 43. Failing and/or refusing to properly maintain records of, and furnish to Plaintiffs and all FSF other aggrieved employees, accurate, itemized wage statements, in violation of Labor Code section On 226, (see Labor Code §§ 226.3, 558 & 2699(a)); Do 44. Failing and/or refusing to pay Plaintiffs and all other aggrieved employees wages due NY and owed at the time of termination or within seventy-two (72) hours of resignation, in violation of Dea Labor Code section 203, (see Labor Code §§ 203, 558 & 2699(a)); Oo 45. Failing and/or refusing to provide Plaintiffs and all other aggrieved employees with adequate meal periods in violation of Labor Code sections 512 and 226.7 (see Labor Code §§ 226.7, 512, 558 & 2699(a)); 46. Failing and/or refusing to provide Plaintiffs and all other aggrieved employees with adequate rest breaks in violation of Labor Code sections 512 and 226.7 (see Labor Code §§ 226.7, 558 & 2699(a)); and 47. Other violations of the Labor Code as may be disclosed in discovery. 48. On June 11, 2019, a letterwas sent by certified mail to Defendant, and to the California Labor and Workforce Development Agency, (hereafter, “LWDA”), giving notice of Defendant’s YY violations of the California Labor Code as herein described, and of Plaintiffs’ intent to bring a civil YS claim for civil penalties under PAGA. NY 49, More than 60 days have passed since Plaintiffs provided notice to the LWDA and they NY did not receive any notification that the LWDA intends to investigate the alleged violations. NY Plaintiffs are entitled to prosecute their PAGA claims under Labor Code section 2699, et Therefore, NY seq. NY Plaintiffs were compelled to retain the services of counsel to file this court action to 50. NY interest, and to assess and collect the civil penalties owed by Defendant. Plaintiffs have protect their NYO fees and costs, which they are entitled to recover under Labor Code § thereby incurred attorneys’ NY 2699. Nb -9- COMPLAINT FOR COMPENSATORY, AND LIQUIDATED DAMAGES, INJUNCTIVE RELIEF, AND CIVIL PENALTIES DAVE & BUSTER’S MANAGEMENT CORPORATION, INC. ET AL. PAXTON ET AL. V. PRAYER FOR RELIEF WHEREFORE, Plaintiffs hereby pray that the Court enter judgment in their favor and against WN Defendants, and each of them, as follows: Ww 1. For payment of earned wages, meal and rest period compensation, waiting time -&- compensation, and other damages according to proof in an amount to be ascertained at an trial,and in excess of the jurisdictional limit of this court; for other special damages; DD 2. For payment of all statutory obligations and penalties as required by law; NN 3. For “civil penalties” to the extent permitted by law and Labor Code §§ 2698 and Section Oo 2699 et seq.; Co 10 4. A declaration of the rights and interests of the parties; ll 5. For prejudgment interest on each of the foregoing at the legal rate from the date the 12 obligation became due through the date ofjudgment in this matter; 13 6. For costs of suit, attorneys’ fees, and expert witness fees; 14 7. For post-judgment interest; and 15 8. For any other relief that isjust and proper. 16 November 6, 2019 EMPLOYEES FIRST LABOR LAW DATED: 17 18 19 By: CM Jonathan P. LaCour, Esq. Attomeys for Plaintiffs 20 JESSICA PAXTON and RACHEL RAMIREZ 21 22 23 24 25 26 27 28 -10- AND LIQUIDATED DAMAGES, INJUNCTIVE RELIEF, AND CIVIL PENALTIES COMPLAINT FOR COMPENSATORY, PAXTON ET AL. V. DAVE & BUSTER’S MANAGEMENT CORPORATION, INC. ET AL. JURY TRIAL DEMANDED Plaintiffs demand trialby jury. NO WO 6, 2019 EMPLOYEES FIRST LABOR LAW DATED: November FP 2 nO By: Jonathan P. LaCour, Esq. Dn Attorneys for Plaintiffs NI JESSICA PAXTON and RACHEL RAMIREZ oma YS NY NY NY NY NY NY NY NO NH -11- LIQUIDATED DAMAGES, INJUNCTIVE RELIEF, AND CIVIL PENALTIES AND COMPLAINT PAXTON FOR ET COMPENSATORY, AL. V. DAVE & BUSTER’S MANAGEMENT CORPORATION, INC. ET AL.