Miscellaneous: RAMESH SHRESTHA VS. HOTEL SUNRISE, INC. ET AL

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                                MEDICA TT

SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO

Document Scanning Lead Sheet
Aug-01-2016 12:46 pm

Case Number: CGC-16-553387
Filing Date: Aug-01-2016 12:34
Filed by: MADONNA CARANTO
Image: 05495565
COMPLAINT

RAMESH SHRESTHA VS. HOTEL SUNRISE, INC. ET AL

001005495565

Instructions:
Please place this sheet on top of the document to be scanned.. ‘we SUM-100
SUMMONS FOR COURT USE ONLY

(CITACION JUDICIAL) (SOLO PARA USO DE LA CORTE)

NOTICE TO DEFENDANT:

(AVISO AL DEMANDADO):

HOTEL SUNRISE, INC., a California corporation; HOTEL SUNRISE, LLC, a
California limited liability company;

(See Additional Parties Attachment)

YOU ARE BEING SUED BY PLAINTIFF:

(LO ESTA DEMANDANDO EL DEMANDANTE):
RAMESH SHRESTHA aka RAY SHRESTHA, an individual

NOTICE! You have been sued. The court may decide against you without your being heard unless you respond within 30 days. Read the information
below.

You have 30 CALENDAR DAYS after this summons and legal papers are served on you to file a written response at this court and have a copy
served on the plaintiff. A letter or phone call will not protect you. Your written response must be in proper legal form if you want the court to hear your
case, There may be a court form that you can use for your response. You can find these court forms and more information at the California Courts
Online Self-Help Center (www. courtinfo.ca.gov/selfhelp), your county law library, or the courthouse nearest you. It you cannot pay the filing fee, ask
the court clerk for a fee waiver form. If you do not file your response on time, you may lose the case by default, and your wages, money, and property
may be taken without further warning from the court.

There are other legal requirements. You may want to call an attorney right away. If you do not know an attorney, you may want to call an attorney
referral service. If you cannot afford an attorney, you may be eligible for free legal services from a nonprofit legal services program. You can locate
these nonprofit groups at the California Legal Services Web site (www.lawhelpcalifornia.org), the California Courts Online Self-Help Center
(www.courtinto.ca.gov/selfhelp), or by contacting your local court or county bar association. NOTE: The court has a statutory lien for waived fees and
costs on any settlement or arbitration award of $10,000 or more in a civil case. The court's lien must be paid before the court will dismiss the case.
jAVISO! Lo han demandado. Si no responde dentro de 30 dias, la corte puede decidir en su contra sin escuchar su versién. Lea la informacion a
continuacion.

Tiene 30 DIAS DE CALENDARIO después de que le entreguen esta citacién y papeles legales para presentar una respuesta por escrito en esta
corte y hacer que se entregue una copia al demandante. Una carta o una llamada telefénica no lo protegen. Su respuesta por escrito tiene que estar
en formato legal correcto si desea que procesen su caso en la corte. Es posible que haya un formulario que usted pueda usar para su respuesta.
Puede encontrar estos formularios de la corte y mas informacién en el Centro de Ayuda de las Cortes de California (www.sucorte.ca.gov), en la
biblioteca de leyes de su condado o en la corte que le quede mas cerca. Si no puede pagar la cuota de presentacion, pida al secretario de la corte
que /e dé un formulario de exencidn de pago de cuotas. Sino presenta su respuesta a tiempo, puede perder el caso por incumplimiento y la corte le
podra quitar su sueldo, dinero y bienes sin mas advertencia.

Hay otros requisitos legales. Es recomendable que llame a un abogado inmediatamente. Si no conoce a un abogado, puede llamar a un servicio de
remisién a abogados. Si no puede pagar a un abogado, es posible que cumpla con los requisitos para obtener servicios legales gratuitos de un
programa de servicios legales sin fines de lucro. Puede encontrar estos grupos sin fines de lucro en el sitio web de California Legal Services,
(www.lawhelpcalifornia.org), en el Centro de Ayuda de las Cortes de California, (www.sucorte.ca.gov) 0 poniéndose en contacto con la corte o el
colegio de abogados locales. AVISO: Por ley, la corte tiene derecho a reciamar las cuotas y los costos exentos por imponer un gravamen sobre
cualquier recuperacién de $10,000 6 mas de valor recibida mediante un acuerdo o una concesi6n de arbitraje en un caso de derecho civil. Tiene que
pagar el gravamen de la corte antes de que la corte pueda desechar el caso.

The name and address of the court is: CCE TESS 5 3 3 8 7

(El nombre y direccién de la corte es):

San Francisco Superior Court
400 McAllister Street

San Francisco 94102

The name, address, and telephone number of plaintiff's attorney, or plaintiff without an attorney, is:
(El nombre, la direccion y el numero de teléfono del abogado del demandante, o del demandante que no tiene abogado, es):
Martin Zurada 218235; Jamie Retmier 308060 Venardi Zurada LLP
700 Ygnacio Valley Road, Suite 300 (925) 937-3900
Walnut Creek, CA 94596

(rocha) AUG =1 - 12016 CLERK OF THE COURT
re proof of service of this summons, 0).,

(Pare prueba de entrega de esta citacion use el formulario Proof of Service of Summons, (POS-010)).

NOTICE TO THE PERSON SERVED: You are served MADONNA CARANTO
1. as an individual defendant.

2. as the person sued under the fictitious name of (specify):

Clerk, by , Deputy

(Adjunto)

3. (2) on behalf of (specify):
under: CCP 416.10 (corporation) CCP 416.60 (minor)
CCP 416.20 (defunct corporation) CCP 416.70 (conservatee)
CCP 416.40 (association or partnership) CCP 416.90 (authorized person)
other (specify):

4. (C) by personal delivery on (date):

Page 1 of 1

od Menaon “SUNIMONS Gi Procadie #1820.
GR SG emnm Tose of Gui rosea 6541220, 65

ev. Jul www courtinfo.ca.gov

| senna Fens” RAMESH SHRESTHA aka RAY SHRESTHASUM-200(A)

SHORT TITLE: CASE NUMBER:
r~ Shrestha v. Hotel Sunrise, Inc., et al.

INSTRUCTIONS FOR USE
> This form may be used as an attachment to any summons if space does not permit the listing of all parties on the summons.
> If this attachment is used, insert the following statement in the plaintiff or defendant box on the summons: “Additional Parties
Attachment form is attached."

List additional parties (Check only one box. Use a separate page for each type of party.):

C2) Piaintitt [Q] Defendant} (C] Cross-Complainant [2] Cross-Defendant

KIRIT KUMAL PATEL aka KIRIT KUMAR PATEL aka KIRITKUMAR PATEL aka KEN
PATEL, an individual; SHAKUNTALAL PATEL aka SHAKUNTIA PATEL aka
SHAKUNTLA PATEL aka SKAKUNTA PATEL aka NINA PATEL, an individual; and
DOES 1-100, inclusive.

Page___1 of __1

Page 1 1
itt our Calton” ADDITIONAL PARTIES ATTACHMENT
UM: 20018) [Rev. January 1. 20071 Attachment to Summons RAMESH SHRESTHA aka RAY SHRESTHA

(-9) Naren Deas
(? ESSENTIAL FORMS"VENARDI ZURADA LLP
700 Ygnacio Valley Road, Suite 300

Walnut Creek, CA 94596

Tel: (925) 937-3900

BY FA

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Fax: (925) 937-3905

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Mark L. Venardi (SBN 173140)
Martin Zurada (SBN 218235)
VENARDI ZURADA LLP

700 Ygnacio Valley Road, Suite 300
Walnut Creek, California 94596
Telephone: (925) 937-3900
Facsimile: (925) 937-3905

Attorneys for Plaintiff
RAMESH SHRESTHA aka RAY SHRESTHA

F_I

Superior Court of California
County of San Francisco

AUG - 12016

CLERK OF THE GOURT

BY: —
Deputy Clerk

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN FRANCISCO

RAMESH SHRESTHA aka RAY SHRESTHA, an
individual,

Plaintiff,
v.

HOTEL SUNRISE, INC., a California corporation;
HOTEL SUNRISE, LLC, a California limited
liability company; KIRIT KUMAL PATEL aka
KIRIT KUMAR PATEL aka KIRITKUMAR
PATEL aka KEN PATEL, an individual;
SHAKUNTALAL PATEL aka SHAKUNTIA
PATEL aka SHAKUNTLA PATEL aka
SKAKUNTA PATEL aka NINA PATEL, an
individual; and DOES 1-100, inclusive,

Defendants.

GC-16-553387

‘ASE NO.:
COMPLAINT FOR DAMAGES

1, Non-Payment of Overtime Time/and or
Double Time Wages (Labor Code § 510);

2. Failure to Provide Rest Breaks and/or
Meal Periods (Labor Code § 226.7);

3. Inadequate Records (Labor Code § 1174);

4. Pay Stub Violations (Labor Code § 226);

5. Unfair Business Practices (Bus & Prof
Code §§ 17200 et Seq.)

6, Wrongful Eviction (Oakland Rent
Ordinance § 8.22.300)

7. Tortious Breach of Warranty of
Habitability

8. Breach of the Covenant of Quiet
Enjoyment

9. Negligence

10. Nuisance

11, Intentional Infliction of Emotional
Distress

12. Negligent Infliction of Emotional Distress

Plaintiff RAMESH SHRESTHA aka RAY SHRESTHA alleges as follows:
NATURE OF CLAIM
1. This is an action by an employee against Defendants, his joint employers, for damages

arising out of the employers’ violations of the California Labor Code, California Business &

COMPLAINTVENARDI ZURADA LLP
700 Ygnacio Valley Road, Suite 300
Walnut Creek, CA 94596
Tel: (925) 937-3900
Fax: (925) 937-3905

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Professions Code, and Wage Orders. Specifically, Plaintiff sues for non-payment of minimum
wages, non-payment of regular wages, non-payment of overtime/double time wages, failure to
provide meal and rest breaks, failure to keep accurate time records, and failure to provide proper and
itemized wage statements. In addition to his employment related claims, Plaintiff also sues for
wrongful eviction, breach of warranty of habitability, breach of the covenant of quiet enjoyment,
negligence, nuisance, intentional infliction of emotional distress and negligent infliction of emotional
distress. The remedies he seeks include unpaid regular, overtime, and double time wages, civil
penalties, liquidated damages, prejudgment interest, civil penalties, and costs, as well as attorneys’
fees, as provided by law.
PARTIES

2. At all relevant times, Plaintiff RAMESH SHRESTHA aka RAY SHRESTHA
(“Plaintiff”) is an individual jointly employed and housed by Defendants at a hotel called “Sunrise
Motel” located at 447 Valencia Street in San Francisco, California (the “Hotel”).

3. Defendant KIRIT KUMAL PATEL aka KIRIT KUMAR PATEL aka
KIRITKUMAR PATEL aka KEN PATEL (“Ken”) is an individual who, within the relevant statute
of limitations, owns or owned and jointly employed or employs Plaintiff at the Hotel. Defendant
SHAKUNTALAL PATEL aka SHAKUNTIA PATEL aka SHAKUNTLA PATEL aka
SKAKUNTA PATEL aka NINA PATEL (“Nina Patel”), is an individual (Ken’s wife) who, within
the relevant statute of limitations, owns or owned and jointly employed or employs Plaintiff at the
Hotel. Ken and Nina will be collectively referred to as the Individual Defendants.

4, Defendant HOTEL SUNRISE, INC. is a California corporation that, within the
relevant statute of limitations, owns or owned and jointly employed or employs Plaintiff at the
Hotel. Defendant HOTEL SUNRISE, LLC, a defunct California limited liability company that,
within the relevant statute of limitations, owns or owned and jointly employed or employs Plaintiff
at the Hotel. Hotel Sunrise, Inc. and Hotel Sunrise, LLC will be collectively referred to as the
Entity Defendants.

5. Atall relevant times, (a) Defendants were the joint employers of Plaintiff because they

exercised control over Plaintiff's hours, wages and working conditions, suffered or permitted Plaintiff]

COMPLAINTVENARDI ZURADA LLP
700 Ygnacio Valley Road, Suite 300

Walnut Creek, CA 94596

Tel: (925) 937-3900

Fax: (925) 937-3905

to work, or engaged Plaintiff thereby creating a common law employment relationship; (b) Individual
Defendants are the president, owner and/or managing agent of the Entity Defendants with significant
control over the pay and work conditions of Plaintiff and other employees; and/or (c) Defendants are
an alter ego of each other.

6. Recognition of the privilege of separate existence of the Entity Defendants would be
inappropriate because the Individual Defendants have in bad faith dominated and controlled the
Entity Defendants and/or one of the Entity Defendants has in bad faith dominated and controlled the
other Entity Defendant. Plaintiff is also informed and believes, and thereon alleges that Defendants:

(a) | Commingled funds and other assets of the Entity Defendants and their own
funds and other assets for their own convenience and to assist in evading payment of obligations;

(b) _ Diverted funds and other assets of Entity Defendants for non-corporate uses;

(c) Treated the assets of Entity Defendant as their own;

(d) Failed to obtain authority to issue shares or to subscribe to or issue
shares/membership interests of Entity Defendants;

(©) _ Failed to maintain minutes or adequate corporate records of Entity Defendants,

(f) Failed to adequately capitalize or provide any assets to the Entity Defendants;

(g) Used Entity Defendants as a mere shell, instrumentality or conduit; and

(h) _Diverted assets from Entity Defendants to themselves to the detriment of
creditors, including Plaintiff.

7. Plaintiff is ignorant of the true names and capacities of Defendants sued herein as
DOES 1-100 and therefore sues these Defendants by such fictitious names. Plaintiff will amend
this Complaint to allege their true names and capacities when ascertained. Plaintiff is informed and
believes, and on the basis of such information and belief alleges, that each of the fictitiously named
Defendants is responsible in some manner for some or all of the occurrences alleged in this
Complaint, and that Plaintiff's damages as herein alleged were proximately caused by such
Defendants.

SUBJECT MATTER JURISDICTION AND VENUE

8. This Court has subject matter jurisdiction and is a proper venue because all, or

COMPLAINTVENARDI ZURADA LLP
700 Ygnacio Valley Road, Suite 300

Walnut Creek, CA 94596

Tel: (925) 937-3900
Fax: (925) 937-3905

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virtually all, events giving rise to this lawsuit occurred in San Francisco County.
GENERAL ALLEGATIONS

9. Plaintiff was jointly employed by Defendants from about September 2007 until the
present except for a break between about September 2011 and about May 2012. Plaintiff was
initially employed as a night clerk before becoming a resident manager and residing at a small
manager’s apartment located at the Hotel and attached to the front desk (the “Apartment”). Upon
becoming the resident manager, Plaintiff worked from 10 am until 12 pm, seven days per week with
a night clerk relieved him from duties between 12 pm and 10 am each day. Plaintiff was paid a flat
monthly salary (initially $2,800 but increased over time to $3,500) partly in cash and partly by
check. Plaintiff was misclassified as an exempt employee because he overwhelmingly performed
non-exempt duties as the resident manager.

10. Starting sometime in about 2015, Plaintiff began receiving his monthly salary (by
then increased to $3,500) via a monthly payroll check which disguised the salary as a payment
based on an arbitrary fixed number of hours (170) each month. This number was picked by
Defendants and had no basis in reality. Then in about April 2016, Defendants required Plaintiff to
sign a written management agreement pursuant to which Plaintiff was required to split his seven
day per week 14-hour shifts with Plaintiff's wife, and started to get a deduction of $834.59 per
month for living in the Apartment.

11. The Apartment where Plaintiff has resided suffers from numerous building code
violations which made it uninhabitable and unsafe to Plaintiff and his family. The Apartment
consists of an office/kitchen space attached directly to the front desk of the Hotel, a small living
room adjoining the kitchen/office on one end and a small bedroom on the other end, and the small
bedroom has a bathroom. Defendants (primarily Ken and the night clerk) used the kitchen/office
for Hotel business on a daily basis, and Ken also used the shower in the bathroom adjoining the
small bedroom. The Apartment’s habitability issues include, without limitation, bars on windows
that prevent them from being used as an exit in an emergency, outdated and poorly maintained

sprinkler system, electrical issues, mold, leaks and non-conforming construction and repairs.

COMPLAINTVENARDI ZURADA LLP
700 Ygnacio Valley Road, Suite 300

Walnut Creek, CA 94596

Tel: (925) 937-3900

Fax: (925) 937-3905

FIRST CAUSE OF ACTION
Non-payment of Overtime and/or Double Time Wages in Violation of
Labor Code § 510
(Plaintiff against Defendants)

12. Plaintiff re-alleges and incorporates his allegations set forth in paragraphs 1-11 of
this Complaint.

13. Labor Code § 510 which apply to Plaintiff's employment by Defendants, provides
that all employees are entitled to payment at the rate of time and one half for hours worked in
excess of 8 hours in one day, 40 hours in one week, and/or the first 8 hours of work on a seventh
consecutive day, plus double time for hours worked in excess of 12 hours per day and any hours
over eight hours worked on the seventh consecutive day of work in any workweek.

14. Labor Code §1194 and applicable Wage Order makes it unlawful for employers not
to make the required overtime and double time payments identified in the preceding paragraph and
that employees not paid such payments can recover any monies owed by civil action.

15. Defendants did not pay Plaintiff for overtime or double time hours,

16. Plaintiff worked for Defendants during the statutory period defined as the last 3
years for the purpose of this claim.

17. Asa direct or proximate result of Defendant’s conduct, Plaintiff suffered damages in
the form of lost overtime/double time in an amount to be proven at trial.

18. Pursuant to Labor Code §§ 1194(a) and 218.5 as well as applicable Wage Order,
Plaintiff requests that, in addition to the overtime/double time wages owed, that the Court award
Plaintiff's attorneys’ fees and costs incurred in this action.

19. Plaintiff also seeks recovery of minimum wage damages and penalties pursuant to
Labor Code §§ 1182.12, 1194, 1194.2 and 1197.1 because the non-payment of overtime caused
Defendant to pay Plaintiff less than the minimum wage.

SECOND CAUSE OF ACTION
Failure to Provide Meal/Rest Periods in Violation of Labor Code § 226.7 and
8 California Code of Regulations §§ 11010 et seq. (CCR)
(Plaintiff against Defendants)

20. Plaintiff re-alleges and incorporates his allegations set forth in paragraphs 1-19 of

COMPLAINTTel: (925) 937-3900
Fax: (925) 937-3905

VENARDI ZURADA LLP
700 Ygnacio Valley Road, Suite 300
Walnut Creek, CA 94596

this Complaint.

21, Atal relevant times herein, Plaintiff's employment with Defendants was subject to
the provisions of Labor Code § 226.7 and 8 CCR §§ 11010 et seq., which require employers to
provide employees a ten-minute unpaid rest period for every four hours worked and thirty-minute
unpaid meal break for every five hours worked, unless expressly exempted.

22. During the employment with Defendants, Plaintiff was not provided the meal
periods and/or rest periods required by law.

23. Plaintiff worked for Defendants during the statutory period defined as the last 3
years for the purpose of this claim.

24. For each time that Plaintiff was not provided the required rest or meal period,
Plaintiff is entitled to recover one additional hour of pay at his regular rate of compensation, and
two additional hours of pay if neither a rest nor a meal period was provided, pursuant to Labor
Code § 226.7 and 8 CCR § 11010 et seq.

25. Plaintiff is entitled to payment in an amount to be proven at trial for each rest and/or

meal period that Defendants did not provide to Plaintiff.

THIRD CAUSE OF ACTION
Failure to Keep Adequate Time Records in Violation of Labor Code § 1174

(Plaintiff against Defendants)

26. Plaintiff re-alleges and incorporates his allegations set forth in paragraphs 1-25 of
this Complaint.

27. Labor Code § 1174 requires that all employers shall keep accurate time and wage
records for all employees. Labor Code § 1174.5 further requires that any employee suffering injury
due to a willful violation of the aforementioned obligations may seek damages, including civil
penalties, from the employer.

28. During the course of Plaintiff's employment, Defendants consistently failed to

maintain accurate time and wage records for Plaintiff as required by Labor Code § 1174.

COMPLAINTVENARDI ZURADA LLP
700 Ygnacio Valley Road, Suite 300

Walnut Creek, CA 94596

Tel: (925) 937-3900
Fax: (925) 937-3905

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29. Plaintiff worked for Defendants during the statutory period defined as the last 3

years for the purpose of this claim,

30. Defendants failed to maintain such records under Labor Code § 1174 and
Defendants’ failure to maintain such records subjects Defendants to statutory damages of $500.

31. Plaintiff has incurred costs and attorneys’ fees in bringing this action and seek to
recover such costs under Labor Code § 1174.

FOURTH CAUSE OF ACTION
Pay Stub Violations Under Labor Code § 226
(Plaintiff against Defendants)

32. Plaintiff re-alleges and incorporates his allegations set forth in paragraphs 1-31 of
this Complaint.

33. Labor Code § 226 requires that, at each time for payment of wages, an employer

must furnish each employee with an accurate semi-monthly pay stub reflecting, among other things,
the total amount of hours worked by the employee and the hourly rate of compensation, during that
time period.

34. Defendants failed to provide Plaintiff with the legally required paystubs.

35. Plaintiff worked for Defendants during the statutory period defined as the last 3 year

for the purpose of this claim.
36.  Atall relevant times, Plaintiff's employment with Defendants was subject to Labor

Code § 226. Defendants’ failure to furnish proper pay stubs to Plaintiff was a knowing and willful
violation of Labor Code § 226(a) entitling Plaintiff to recover the greater of all actual damages
incurred by Plaintiff or statutory penalties of $50 for the initial pay period violation and $100 for
each subsequent pay period violation up to a total aggregate penalty of $4,000.

37. Plaintiff suffered injuries as a result of Defendants’ violation of Labor Code § 226 to
be determined at trial.

38. Plaintiff incurred costs and attorneys’ fees in bringing this action and seeks to

recover such costs under Labor Code § 226(e).

COMPLAINTVENARDI ZURADA LLP
700 Ygnacio Valley Road, Suite 300

Walnut Creek, CA 94596

Tel: (925) 937-3900

Fax: (925) 937-3905

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FIFTH CAUSE OF ACTION
Waiting Time Penalties Pursuant to Labor Code §§ 201, 202 and 203
(Plaintiff Against Defendants)

39. Plaintiff re-alleges and incorporates his allegations set forth in paragraphs 1-38 of
this Complaint.

40. At the time Plaintiff's joint employment with Defendants was terminated,
Defendants owed Plaintiff certain unpaid wages.

41. Plaintiff worked for Defendants during the statutory period defined as the last 3
years for the purpose of this claim.

42. Failure to pay wages owed at an employee’s termination as required by Labor Code
§§ 201 and 202 subjects the employer to the payment of a penalty equaling up to 30 days’ wages, as
provided for in Labor Code § 203.

43. As of this date, Defendants failed and refused, and continue to fail and refuse, to pay
the amount due, thus making Defendants liable to Plaintiff for penalties equal to 30 days’ wages.

SIXTH CAUSE OF ACTION
Unfair Business Practices in Violation of Business & Professions Code § 17200
(Plaintiff Against Defendants)

44. Plaintiff re-alleges and incorporates his allegations set forth in paragraphs 1-43 of
this Complaint.

45. — Atall relevant times, Plaintiff's employment with Defendants was subject to the
California Labor Code and applicable Wage Orders promulgated by the California Industrial
Welfare Commission. At all:relevant times, Defendants, as employers of Plaintiff, were subject to
the California Unfair Trade Practices Act, California Business & Professions Code §§ 17200 et
seq., which required them to abide by the California Labor Code and applicable Wage Orders
promulgated by the Industrial Welfare Commission.

46. Plaintiff worked for Defendants during the statutory period defined as the last 4
years for the purpose of this claim.

47. Defendants engaged in unfair trade practices prohibited by California Business &
Professions Code §§ 17200 et seq. by:

(a) Failing to pay overtime and/or double time wages in violation of Labor Code

COMPLAINTVENARDI ZURADA LLP
700 Ygnacio Valley Road, Suite 300

Walnut Creek, CA 94596

Tel: (925) 937-3900

Fax: (925) 937-3905

§510 (See First Cause of Action of this Complaint);

(b) Failing to provide rest and/or meal breaks in violation of Labor Code § 226.7
(See Second Cause of Action of this Complaint);

(c) _ Failing to keep adequate time records in violation of Labor Code § 1174 (See
Third Cause of Action of this Complaint);

(a) Failing to provide adequate pay stubs in violation of Labor Code § 226 (See
Fourth Cause of Action of this Complaint);

(d) _ Discriminating against Plaintiff on the basis of disability in violation of
California Gov't Code §12940(a) (See Seventh Cause of Action of this Complaint);

(e) Failing to engage in the interactive process and failing to accommodate
Plaintiff's disability in violation of California Gov’t Code §12940(m) (See Eighth Cause of Action
of this Complaint);

(f) Failing to prevent disability discrimination in violation of Cal. Gov't Code
§12940(k) (See Ninth Cause of Action of this Complaint); and

(g) _ Retaliating against Plaintiff for taking medical leave in violation of Cal.
Gov't Code § 12945.2(1) (See Tenth Cause of Action of this Complaint).

48. Defendants violated California Business & Professions Code §§ 17200, et seq., by
committing acts prohibited by applicable Labor Code provisions thus giving Defendants a
competitive advantage over other employers and businesses with whom Defendants were in
competition and who were in compliance with the law.

49. Asa direct and proximate result of Defendants’ violations, Plaintiff's rights under
the law were violated because Plaintiff suffered monetary losses. Plaintiff seeks restitution in the
form of unpaid wages and premium wages due for rest breaks and/or meal periods, with interest
thereon, together with disgorgement of profits obtained by Defendants resulting from their violation
of California law with respect to plaintiff and, injunctive relief to prohibit Defendants from

violating the California laws and regulations listed in this cause of action.

COMPLAINTVENARDI ZURADA LLP
700 Ygnacio Valley Road, Suite 300

Walnut Creek, CA 94596

Tel: (925) 937-3900
Fax: (925) 937-3905

SEVENTH CAUSE OF ACTION
Tortuous Breach of Warranty of Habitability
(Plaintiff against Defendants)

50. Plaintiff re-alleges and incorporates his allegations set forth in paragraphs 1-49 of
this Complaint.

51. The Apartment substantially lacked many of the affirmative standard characteristics
identified in Civil Code § 1941.1 and of the Health and Safety Code § 17920.10 as well as the
building codes. The defective conditions were not caused by any act or omission of Plaintiff. The
defective conditions alleged herein constitute violations of state and local housing laws and posed
severe health and safety hazards and breached the implied warranty of habitability. Plaintiff did not
cause, create or contribute to the existence of the defective conditions alleged herein.

52. Defendants had actual and constructive notice of the defective conditions alleged
herein, but despite such notice, failed to adequately repair and abate the conditions at the
Apartment.

53. By failing to correct said defective conditions at the Apartment, Defendants
breached the warranty of habitability implied under California law.

54. Defendants knew or should have known that permitting said defective conditions to
exist threatened the physical and emotional health and well-being of Plaintiff, and posed a serious
threat and danger to his health and safely.

55.  Asadirect and proximate result of Defendants’ breach of the warranty of
habitability, Plaintiff has sustained special, general and property damage in amounts to be
determined at trial.

EIGHTH CAUSE OF ACTION
Breach of the Covenant of Quiet Enjoyment
(Plaintiff against Defendants)

56. Plaintiff re-alleges and incorporates his allegations set forth in paragraphs 1-55 of
this Complaint.

57. Implied in the rental agreement between Defendants and Plaintiff is a covenant that
the Defendants would not and will not interfere with Plaintiff's quiet enjoyment of The Property

during the term of their respective tenancies. This covenant of quiet enjoyment is codified in Civil

-10-

COMPLAINTVENARDI ZURADA LLP
700 Ygnacio Valley Road, Suite 300

Walnut Creek, CA 94596

Tel: (925) 937-3900
Fax: (925) 937-3905

Code § 1927.

58. The Apartment substantially lacked the affirmative standard characteristics identified
in Civil Code § 1941.1 and of the Health and Safety Code § 17920.10 as well as applicable building
codes. The defective conditions were not caused by any act or omission of Plaintiff. The defective
conditions alleged herein constitute violations of state and local housing laws and posed severe
health and safety hazards and breached the implied warranty of habitability. Plaintiff did not cause,
create or contribute to the existence of the defective conditions alleged herein.

59.  Asadirect and proximate result of Defendants’ breach of the covenant of quiet
enjoyment, the value of the leasehold held by Plaintiff has been materially diminished.
Consequently, Plaintiff has been damaged in an amount to be established at trial.

60.  Asadirect and proximate result of Defendants’ conduct, Plaintiff has sustained
general, special and property damage in amounts to be determined at trial.

NINETH CAUSE OF ACTION
Negligence

(Plaintiff against Defendants)

61. Plaintiff re-alleges and incorporates his allegations set forth in paragraphs 1-60 of
this Complaint.

62. As owners and providers of the Apartment, the Defendants owed Plaintiff the duty to
exercise reasonable care in the ownership, management and control of the Apartment.

63. These duties owed by Defendants to Plaintiff to exercise reasonable care include, but
are not limited to: the duty to refrain from interfering with Plaintiff's full use of and quiet
enjoyment of their rented premises; the duty to comply with all applicable state and local laws
governing Plaintiff's rights as tenant; the duty to maintain Plaintiff's premises in a safe, healthy and
habitable condition for the entire term of Plaintiff's tenancy and the duty to not obstruct Plaintiff's
full use and occupancy of their residences.

64. Defendants, by the conduct alleged above, so negligently and carelessly maintained,
operated, and managed the Apartment as to breach the duties that they owed to Plaintiff. Asa
direct and proximate result of these breaches of duty by Defendants, Plaintiff has sustained general,

special and property damage in amounts to be determined at trial.

+11

COMPLAINTVENARDI ZURADA LLP
700 Ygnacio Valley Road, Suite 300

Wainut Creek, CA 94596

Tel: (925) 937-3900

Fax: (925) 937-3905

Co Or AW FF WN

10

TENTH CAUSE OF ACTION

Nuisance
(Against Flavors of India Defendants and Yu Defendants)

65. Plaintiff re-alleges and incorporates his allegations set forth in paragraphs 1-64 of
this Complaint.

66. | The Apartment substantially lacked the affirmative standard characteristics identified
in Civil Code § 1941.1 and of the Health and Safety Code § 17920.10 as well as applicable building
codes. The defective conditions were not caused by any act or omission of Plaintiff. The defective
conditions alleged herein constitute violations of state and local housing laws and posed severe
health and safety hazards and breached the implied warranty of habitability. Plaintiff did not cause,
create or contribute to the existence of the defective conditions alleged herein.

67. The conditions of the Apartment that Defendants, and each of them, negligently and
intentionally caused to exist constitute a nuisance under, but not limited to, Civil Code § 3479 et
seq. in that said defective conditions were and are injurious to the health and safety of Plaintiff,
indecent and offensive to the senses of Plaintiff and did and continue to interfere substantially with
Plaintiff's comfortable enjoyment of the Apartment.

68. Defendants’ failure to maintain or repair the deplorable condition of the Premises
and/or the Dwelling, deprived Plaintiff of the safe, healthy and comfortable use of the Premises
and/or the Dwelling.

69. Asa direct and proximate result of Defendants’ wrongful conduct, Plaintiff suffered
substantial harm in an amount to be determined at trial.

70. The nuisance permitted by Defendants constitutes oppressive, fraudulent and
malicious conduct towards Plaintiff warranting an assessment of punitive damages in an amount
appropriate to punish defendants and deter Defendants and others from engaging in similar
misconduct towards others.

ELEVENTH CAUSE OF ACTION
Intentional Infliction of Emotional Distress
(Plaintiff against Defendants)

71. Plaintiff re-alleges and incorporates his allegations set forth in paragraphs 1-70 of

this Complaint.

COMPLAINTVENARDI ZURADA LLP
700 Ygnacio Valley Road, Suite 300

Walnut Creek, CA 94596

Tel: (925) 937-3900

Fax: (925) 937-3905

Coo nd DAH FF WN

NNN NY YN NNN | ee ee es ee Se eS
ea aA aA eB oONH KH SOMA HH F WN | CO

72. Defendants engaged in outrageous, malicious, unprivileged conduct, described in
this Complaint. Defendants intended to cause Plaintiff emotional distress, and/or the Defendants
engaged in the conduct complained of with reckless disregard of the probability of causing Plaintiff
such distress, Plaintiff was present at the time the outrageous conduct occurred; and the Defendants
knew that Plaintiffs were present. Plaintiff suffered severe emotional distress and this outrageous
conduct of the defendants was a cause of the emotional distress suffered by Plaintiff.

73.  Asadirect and proximate result of Defendants’ wrongful conduct, Plaintiff suffered
substantial harm in an amount to be determined at trial.

74. Defendants acted willfully, maliciously, knowingly, with reckless disregard and
callous indifference to the known consequences of their acts and omissions, and purposefully with
intent to harm Plaintiffs, thereby warranting punitive and exemplary damages against the
Defendants, in an amount to be proven at trial of this matter.

TWELVETH CAUSE OF ACTION
Negligent Infliction of Emotional Distress
(Plaintiff against Defendants)

75. Plaintiff re-alleges and incorporates the allegations of paragraphs 1-74 of this
Complaint.

76. Defendant engaged in negligent conduct described in detail in this Complaint, and
Plaintiff suffered serious emotional distress as a result of Defendants’ conduct.

77. Defendants’ negligent conduct was a substantial factor and/or cause of the serious
emotional distress to Plaintiff.

78.  Asadirect and proximate result of Defendants’ wrongful conduct, Plaintiff suffered
substantial harm in an amount to be determined at trial.

PRAYER FOR RELIEF
WHEREFORE, Plaintiff prays for the following relief:

1. All unpaid wages due including, regular time, overtime, double time and
statutory prejudgment interest pursuant to Labor Code §§ 510, 1194, 1182.12, 1197.1 and Business
& Professions Code §§ 17200, et seq., in an amount to be determined at trial;

-13-

COMPLAINTS$
a

2. For liquidated damages for non-payment of minimum wages pursuant to
Labor Code §§ 1194.2 and 1197.1;

3. For wages for failure to provide and/or ensure rest breaks pursuant to
California Labor Code § 226.7 with statutory prejudgment interest;

4. For restitution of sums to Plaintiff for Defendants’ past failure to pay. over
the last four years, overtime wages and compensation for missed meal and work breaks in an
amount according to the proof pursuant to Labor Code § 17200 et seq.;

5. For injunctive relief to prohibit Defendants from violating California
employments laws described in this Complaint pursuant to Labor Code § 17200 et seq.;

6. For damages or statutory penalties for inadequate pay stubs pursuant to
Labor Code § 226;

7. For damages for inadequate wage and hour records pursuant to Labor Code
§ 1174 in the statutory amount;

8. For attorneys’ fees incurred in pursing the recovery of wages pursuant to
California Labor Code §§ 218.5, 1194(a), 1974 and 226(e);

9. For general damages (including emotional distress, pain and suffering, and
loss of enjoyment of life) and special damages against all Defendants;

10. For punitive damages sufficient to punish and/or deter (for tort causes of
action only) against all Defendants;

ll. For costs of the suit herein; and

12. For such other and further relief as the Court may deem appropriate.

Dated: August 1, 2016 VENARDI ZURADA LLP

Ze

Martin Zurada

Attorneys for Plaintiff
RAMESH SHRESTHA aka
RAY SHRESTHA

- ide

COMPLAINTDI ZURADA LLP

25) 937-3900

-3905

Fax: (925) 93

Ww

Dated: August 1, 2016

DEMAND FOR JURY TRIAL

Plaintiff respectfully requests a jury trial in this matter.

VENARDI ZURADA LLP

BEE

Martin Zurada

Attorneys for Plaintiff
RAMESH SHRESTHA aka
RAY SHRESTHA

COMPLAINTATTORNEY OR PARTY WITHOUT ATTORNEY (Name, State Bar number, and address)
|_ Martin Zurada 218235; Jamie Retmier 308060
Venardi Zurada_LLP .
700 Ygnacio Valley Road, Suite 300
4

FOR COURT USE ONLY

F I

Superior Court of Gal
County of San peso

AUG ~ 1 2016

ow Tt fag Ae fe OUR

Duty Clark

Walnut Creek, CA 596
teverroneno. (925) 937-3900  raxno (925) 937-3905
ATTORNEY FOR (Namey PLAINTIFF
SUPERIOR COURT OF CALIFORNIA, COUNTY OF San Francisco
| street aooress: 400 McAllister Street
MAILING ADDRESS
civanoziecoos San Francisco 94102
BRANCH NAME

CASENAME: Shrestha v. Hotel Sunrise, Inc., et al.

CM-010
>

CIVIL CASE COVER SHEET | Complex Case Designation
i

(QQ Unlimited (2) Limited

COG 7 6-553387

(Amount (Amount | () counter [2] Joinder OE
demanded demanded is Filed with first appearance by defendant
exceeds $25,000) $25,000 or less)| (Cal. Rules of Court, rule 3.402) DEPT

Items 1-6 below must be completed (see instructions on page 2).

T. Check one box below for the case type that best describes this case:
Auto Tort Gontract
Hy Auto (22) Breach of contractwarranty (06)

Uninsured motorist (46) Rule 3.740 collections (09)
Other PYPDWD (Personal Injury/Property Pearce sovorage 8)
Damage/Wrongful Death) Tort 9
‘asbestos (04) Other contract (37)
Product liability (24)

Medical malpractice (45)
Other PUPDIWD (23)

Non-PI/PD/WD (Other) Tort

Business tortunfair business practice (07)
Civil rights (08)

Defamation (13)

Fraud (16)

Intellectual property (19)

Professional negligence (25)

Other non-PUPDAWD tort (35)

Employment
Wrongful termination (36)
Other employment (18)

Real Property

CQ) Eminent domain/inverse
condemnation (14)
Wrongful eviction (33)
Other real property (26)

Untawful Detainer
Commercial (31)
Residential (32)
Drugs (38)

Judicial Review
Asset forfeiture (05)
Petition re: arbitration award (11)
Writ of mandate (02)
Other judicial review (39)

Provisionally Complex Civil Litigation

Cal, Rules of Court, rules 3.400-3.403)
AntitrusTrade regulation (03)
Construction defect (10)
‘Mass tort (40)
Securities litigation (28)
Environmental/Toxic tort (30)
Insurance coverage claims arising from the
above listed provisionally complex case
types (41)

Enforcement of Judgment
(CD Enforcement of judgment (20)

Miscellaneous Civil Complaint

+ RICO (27)

Other complaint (not specified above) (42)
Miscellaneous Civil Petition

Partnership and corporate governance (21)
Other petition (not specified above} (43)

2. Thiscase Cis 1 is not
factors requiring exceptional judicial management:
a. Large number of separately represented parties
b Extensive motion practice raising difficult or novel
issues that will be time-consuming to resolve
c. (2) Substantial amount of documentary evidence

2a

This case is is not a class action suit.
If there are any known related cases, file and serve a notice of related case. (You m

Number of causes of action erect Twelve (12)

Dane

Date: August 1,

Jamie Retmier
(TYPE OR PRINT NAME)

2016

complex under rule 3.400 of the California Rules of Court. If the case is complex, mark the

Large number of witnesses

Coordination with related actions pending in one or more courts
in other counties, states, or countries, or in a federal court
fC) Substantial postjudgment judicial supervision

Remedies sought (check all that apply): a. (XJ monetary b. (J nonmonetary; declaratory or injunctive relief c. (XQ punitive

U

NOTICE

Plaintiff must file this cover sheet with the first paper filed in the action or proceeding (except small claims cases or cases filed
| under the Probate Code, Family Code, or Welfare and Institutions Code). (Cal. Rules of Court, rule 3.220.) Failure to file may result

in sanctions.
+ File this cover sheet in addition to any cover sheet required by local court rule

* Ifthis case is complex under rule 3.400 et seq. of the California Rules of Court, you must serve a copy of this cover sheet on all

other parties to the action or proceeding

« Unless this is a collections case under rule 3.740 or a complex case, this cover sheet will be used for statistical purposes only.

Page 1 of 2

Feqnareeiezeenieigay CIVIL CASE COVER SHEET

HBT [Rev July 1. 2007}

Martin Dean's

ESSENTIAL FORMS"

Cal Rylas gf Court culos 2 30, 3.220 3 400-9
‘Eat Standards of Judicial Administration, oid
avis Couriia ca gov

RAMESH SHRESTHA aka RAY SHRESTHACM-010

INSTRUCTIONS ON HOW TO COMPLETE THE COVER SHEET
To Plaintiffs and Others Filing First Papers. If you are Kling 2 first paper (for example, a complaint) in a civil case, you must

complete and file, along with your first paper, the Civil Case
statistics about the types and numbers of!

‘one box for the case that

ver Sheet contained on
cases filed. You must complete items 1 throug!
best describes the case. If the case fits both a

hoo

1. This information will be used to compile
n the sheet. In item 1, you must check

eneral and a more specific type of case listed in item 1,

check the more specific one. If the case has multiple causes of action, check the box that best indicates the primary cause of action.

To assist you in completir
sheet must be filed only

the sheet, examples of the cases that belong under each case type in item 1 are provided belc
h your initial paper. Failure to file a cover sheet with the first paper filed in a civil case may subject a party,
its counsel, or both to sanctions under rules 2.30 and 3.220 of the California Rules of Court.

low. A cover

To Parties in Rule 3.740 Collections Cases. A “collections case" under rule 3.740 is defined as an action for recovery of money
owed in a sum stated to be certain that is not more than $25,000, exclusive of interest and attorney's fees, arising from a transaction in
which property, services, or money was acquired on credit. A collections case does not include an action seeking the following: (1) tort

dami . (2) punitive damages,
attachment. hols

time-for-service requirements and case management rules, unless a defendant files a re:
case will be subject to the requirements for service and obtaining a judgment in rule 3.74(

}) recovery of real property, (4) recovery of

personal property, or (5) a prejudgment writ of
1 identification of a case as a rule 3.740 collections case on this form means that it will be exempt from the general
sponsive pleading. A rule 3.740 collections

To Parties in Complex Cases. In complex cases only, parties must also use the Civil Case Cover Sheet to designate whether the
case is complex. If a plaintiff believes the case is complex under rule 3.400 of the California Rules of Court, this must be indicated b

completing 1!

complaint on all parties to the action. A defendant may

appropriate boxes in items 1 and 2. Ifa Plaintit designates a case as complex, the cover sheet must be served with
ile and serve no later than the time of its first appearance a joinder in the

plaintifs designation, a counter-designation that the case is not complex, or, if the plaintiff has made no designation, a designation that

he case is complex.

Auto Tort
‘Auto (22}-Personal Injury/Property
Dar frongful Death
Uninsured Motorist (46) (if the
case involves an uninsured

arbitr

instead of Auto)
Other PUPDIWD (Personal Injury!
Property Damage/Wrongful Death)

Property Damage
Asbestos Personal Injury/
Wrongful Death
Product Liability (not asbestos or
toxic/environmental) (24)
Medical Malpractice (45)
Medical Malpractice-

Physicians & Surgeons
Other Professional Health Care
Malpractice
Other PUPDIWD (23)
Premises Liability (e.9., slip
and fall)

Intentional Bodily Injury/PD/WD
(@.g., assault, vandalism)

Intentional Infliction of
Emotional Distress

Negligent Inftiction of
Emotional Distress.

Other P/PD/WD-

Non-PUPDIWD (Other) Tort
Business Tort/Unfair Business

Practice (07)

Civil Rights (e.g., discrimination,
false arrest) (not civil
harassment) (08)

Defamation (@.9., slander, libel)

)
Intellectual Property (19)
Professional Negligence (25)
Legal Malpractice
Other Professional Malpractice

(not medical or legal)
Other Non-PUPD/WD Tort (35)

Employment
‘Wrongful Termination (36)
Other Employment (15)

CASE TYPES AND EXAMPLES
Contract
Breach of Contract/Warranty (06)
Breach of Rental/Lease
Contract (not unlawful detainer
or wrongful eviction)
Contract/Warranty Breach-Seller
Plaintiff (not fraud or negligence)
Negligent Breach of Contract/
Warranty
Other Breach of ContractWarranty
Collections (e.g., money owed, open
‘book accounts) (09)
Collection Case-Seller Plaintiff
Other Promissory Note/Collections

Case

Insurance Coverage (not provisionally
complex) (18)

Auto Subrogation
Other Coverage

Other Contract (37)
Contractual Fraud
Other Contract Dispute

Real Property

Eminent Domain/Inverse
Condemnation (14)

Wrongful Eviction (33)

Other Real Property (@.9., quiet title) (26)
‘Writ of Possession of Real Property
Mortgage Foreclosure
Quiet Title
‘Other Real Property (not eminent

in, landlordfenant, or
foreclosure)
Unlawful Detainer

Commercial (31)

Residential (32)

Drugs (38) (if the case involves illegal
drugs, check this item; otherwise,
report as Commercial or Residential)

Judicial Review

Asset Forfeiture (05)

Petition Re: Arbitration Award (11)

‘Writ of Mandate (02)
Writ-Administrative Mandamus.
Writ-Mandamus on Limited Court

Case Matter
‘Writ-Other Limited Court Case
Review

Other Judicial Review (39)

Review of Health Officer Order
Notice of Appeal-Labor
Commissioner Appeals

Provisionally Complex Civil Litigation (Cal.
Rules of Court Rules 3.400-3.403)
Antitrust/Trade Regulation (03)
Construction Defect (10)
Claims Involving Mass Tort (40)
Securities Litigation (28)
Environmental/Toxic Tort (30)
Insurance Coverage Claims
(arising from provisionally complex
case type listed above) (41)
Enforcement of Judgment
Enforcement of Judgment (20)
Abstract of Judgment (Out of
County)
Confession of Judgment (non-
domestic relations)
Sister State Judgment
Administrative Agency Award
(not unpaid taxes)
Petition/Certification of Entry of
Judgment on Unpaid Taxes
Other Enforcement of Judgment

Case
Miscellaneous Civil Complaint
RICO (27)
‘Other Complaint (not specified
above) (42)
Declaratory Retief Only
Injunctive Relief Only (non-

Mechanics Lien
Other Commercial Complaint

Case (1
Other Civil Complaint
(non-tort/non-complex)
Miscellaneous Civil Petition
Partnership and Corporate
Governance (21)
Other Petition (not specified
‘above) (43)
Civil Harassment
Workplace Violence
Elder/Dependent Adult
Abuse
Election Contest
Petition for Name Change
Petition for Retief from Late
Claim
Other Civil Petition

CHOI (Rev Jay, 2007) startin Deans

ESSENTIAL FORMS™

CIVIL CASE COVER SHEET

Page 2 of2
RAMESH SHRESTHA aka RAY SHRESTHA