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IANA ALO
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
Document Scanning Lead Sheet
Jan-18-2011 3:02 pm
Case Number: CGC-10-504804
Filing Date: Jan-18-2011 2:53
Juke Box: 001 Image: 03093995
COMPLAINT
EO INDIVIDUALLY, AND ON BEHALF OF ALL et al VS. CITY SIGHTSEEING CORPORATII
001C03093995
Instructions:
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Ashwin Ladva. Esq. (SB# 206140)
LADVA LAW FIRM FIL E D
530 Jackson St., 2" floor SE Ten rane
San Francisco, CA 94133
Telephone: (415) 296-8844 JAN 16 2011
ladvalaw@gmail.com
Daniel Martinez de la Vega, Esq. (SB# 255885)
LAW OFFICES OF DANIEL VEGA
201 Spear Street, Suite 1100
San Francisco, CA 94105
Telephone: (415) 287-6203
Fax: (415) 704-5067
dvega(@vegalawyer.com
Attorneys for Salvatore Mineo, Gina Schembari. Phillip T Nails. Benjamin Duax. and David
Hayward individually, and on behalf of all others similarly situated.
SUPERIOR COURT FOR THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN FRANCSICO
Salvatore Mineo, Gina Schembari. Phillip Case No: CGC-10-504804
Thomas Nails. Benjamin Duax, and David
Hayward individually, and on behalf of all
others similarly situated.
SECOND AMENDED COMPLAINT FOR
DAMAGES
oe CLASS ACTION COMPLAINT FOR:
Plaintiffs,
VS. © Violations of California Labor Code
§§ 510 and 204
« Violations of California Labor Code
§§ 201, 202, 203, and 203.1
¢ Violations of California Labor Code
§ 226;
¢ Violations of California Labor Code
§ 226.7;
* Violations of Business and
Professions Code §§ 17200 Et Seq.;
¢ Unjust Enrichment;
e Declaratory Reliet
CITY SIGHTSEEING CORPORATION. A
DELAWARE CORPORATION, CITY
SIGHTSEEING WORLDWIDE and DOES 1-
500. inclusive,
Defendants
wee SS SSS SS eS ee ee eee
JURY TRIAL DEMANDED
First Amended Complaint For DamagesPlaintiffs SALVATORE MINEO, GINA SCHEMBARI. PHILLIP THOMAS,
NAILS, BENJAMIN DUAX, and DAVID HAYWARD individually, and on behalf of ail
others similarly situated, for their complaint against defendants CITY SIGHTSEEING
CORPORATION. A DELAWARE CORPORATION (Hereafter referred to as "CSC™). CITY
SIGHTSEEING WORLDWIDE (Hereafter referred to as “CSCW”), and DOES 1-500. inclusive,
inclusive. alleges upon information and belief. except as to the allegations that pertain to
Plaintiffs and his counsel. as follows:
JURISDICTION AND VENUE
1. Plaintiff SALVATORE MINEO is an individual who, at all relevant time periods,
resided in California, was a citizen of the State of California, was offered employment by CITY
SIGHTSEEING CORPORATION, A DELAWARE CORPORATION. (hereinafter referred to as)
“CSC” or “CORPORATE DEFENDANT”). and who worked for CSC in California from
approximately October 2009 until approximately August 6°, 2010, when he resigned. Plaintiff
MINEO was employed by CSC as a front desk reception and in-side sales. Plaintiff Minco after
his resignation never received his final sales commission for his July 2010 work with CSC.
Plaintiff Mineo estimates he was owed approximately $500.00
2. Plaintiff GINA SCHEMBARI is an individual who. at all relevant time periods. resided
in California, was a citizen of the State of California, was offered employment by CITY
SIGHTSEEING CORPORATION, A DELAWARE CORPORATION, (hereinafter referred to as}
“CSC” or “CORPORATE DEFENDANT”), and who worked for CSC in California trom
approximately June 2009 until approximately June 2010. Plaintiff SCHEMBARI was employe
by CSC as a front desk reception and in-side sales.
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3. Plaintiff PHILLIP THOMAS NAILS is an individual who, at all relevant time periods.
resided in California, was a citizen of the State of California. was offered employment by CITY
SIGHTSEEING CORPORATION. A DELAWARE CORPORATION. (hereinalter referred to as
=CSC" or "CORPORATE DEFENDANT”), and who worked for CSC in California from
approximately August 2007 until approximately September, 2009. Plaintiff NAILS was
employed by CSC as a tour guide.
4. Plaintiff BENJAMIN DUAX is an individual who. at al! relevant time periods. resided
in California, was a citizen of the State of California, was offered employment by CIEY
SIGHTSEEING CORPORATION, A DELAWARE CORPORATION. (hereinafter referred to as
“CSC or “CORPORATE DEFENDANT"). and who worked for CSC in California from
approximately January 2007 until approximately August 2009. Plaintiff DUAX was employed
by CSC as a tour guide.
5. Plaintiff DAVED HAYWARD is an individual who, at all relevant time periods, resided
in California, was a citizen of the State of California, was offered employment by CITY
SIGHTSEEING CORPORATION. A DELAWARE CORPORATION. (hereinafter reterred to as
“CSC? or “CORPORATE DEFENDANT"), and who worked for CSC in California from
approximately January 2006 to until approximately September 2009, Plaintifl Hayward was
employed by CSC as a Bus Driver.
6. Detendant CSC is a California Tour Company that offers tours in San Francisco Bay
Area, CSC’s San Francisco Office is located at 2800 LEVENWORTH ST STE 14. SAN
FRANCISCO CA 94133. CSC has multiple centers in the State of California. including a branch
in San Diego County.
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First Amended Complaint For Damages
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7. Defendant CSW is a International Tour Company that offers tours in San Francisco Bay
Area. CSW headquartered located at Purfleet Industrial Park, Juliette Close. Purfleet, Essex
RMIS4YF. CSW has multiple centers in the State of California and across the United States.
CSW. Upon information and belief, the class contends that CSC and CSW operate their San
Francisco tours as a joint venture.
8, Plaintiffs lack sufficient information and belief to allege the true names and capacities of
defendants sued herein as DOES 1 through 500. inclusive. For that reason, Plaintit!s sue said
fictitiously named defendants by such fictitious names. When the true names. nature and
capacity of said fictitiously named defendants are ascertained, Plaintiffs shall amend this
Complaint accordingly. At all times herein mentioned. all defendants herein, whether named or
unnamed were and are responsible and liable to Plaintiffs for all of the Plaintiffs’ damages and
other relief prayed for herein. Plaintiffs alleges on information and belie! that at all times herein
mentioned. each of the defendants herein. whether named or unnamed. was the agent. servant
employee. co conspirator, co adventurer, and employee of each other defendant herein, whether
named or unnamed. With respect to each action and inaction pled in the following paragraphs.
each of the defendants, whether named or unnamed. was acting within the course and scope of
their agency and employment and was acting with the full knowledge, consent. ratification and
approval of each other defendant herein. whether named or unnamed.
9. This Court has personal jurisdiction over the named corporate Defendants. which: (1)
conducts business in the State of California through its branches and service centers in
California; (2) hires and maintains employces in the State of California: and (3) avails itself of
the protection of the laws of the State of California. Venue is proper in this Court because
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Defendants committed the acts complained of herein in San Francisco County as well as in other
locations throughout the State of California.
CLASS ACTION ALLEGATIONS
10. Plaintiffs brings this class action pursuant to California Code of Civil Procedure section
382 on behalf of a Class consisting of all current and former employees of Defendants in the
State of California who were denied all wages. overtime, meal and rest periods. and their tinal
paycheck during all applicable statutes of limitations (the “Class Period”).
11. The wrongful acts or omissions were and are a uniform practice that affected all putative
class members equally. Rezpondents. by their practices and policies. have violated the rights of
their employees under the California Labor Code, and the Unfair Competition Law. The
questions raised are therefore of common or general interest to the class members. and they have
a well defined community of interest in the questions of law and fact raised in this action. The
only recognizable difference between class members will be the amounts owed to each
individual member.
12. Based on information and belief, Defendant CSC has employed a large number of
individuals in the State of California (a number known particularly to Defendants) since the
beginning of the Class Period. These individuals have been subject to Defendants’ unlawful and
wrongful practices, and their numerosity makes it impractical to bring them ail before this forum,
and disposition of their claims in a class action is a benefit to the parties and to the court.
13. A class action is superior to other available means for the fair and efficient adjudication
of this controversy. Individual joinder of all class members is not practicable. and questions of
law and fact common to the class predominate over any questions affecting only individual
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members of the class. Each member of the class has been damaged and is entitled to recover,
Class action treatment will allow those similarly situated persons to litigate their claims in the
manner that is most efficient and economical for the parties and the judicial system.
14. A class action is appropriate since Plaintiff's and class members’ damages. although by no
means inconsequential. do not rise to the level to make prosecution of individual claims
economically feasible for Plaintiffs and class members to pursue. The burden and expense of
individual litigation makes it economically unfeasible for the members of the class to seck
redress other than through a class action. Consequently, there would be a failure of justice but
for the maintenance of the present class action.
15. The prosecution of individual remedies by members of the class would tend to establish
inconsistent standards of conduct for the Defendants and would result in the impairment of class
members’ rights and the disposition of their interests through actions to which they were not
parties.
16. Plaintiffs knows of uo difficulty which will be encountered in the management of this
litigation which would preclude its maintenance as a class action.
17, Plaintiffs have incurred and. during the pendency of this action. will incur attorneys’ fees
and expenses. Such attorneys’ fees and expenses are necessary for the prosecution of this action
and will result in a benefit to the class.
18. Upon information and belief, Defendants were aware of the facts herein alleged at the
lime they failed to perform the duties alleged herein.
19. The names and addresses of the persons who are members of the class are available from
CORPORATE DEFENDANTS’ records and are therefore known to Detendants. Notice can be
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First Amended Complaint For Damages
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provided to the member of the class by mail. or by using techniques and a form of notice similar
to those customarily used in class actions under California law. with the costs of any notice to be
borne by Defendants.
20. The Defendants’ unlawful acts and unfair trade practices have affected all members of
the Class in a similar manner, i.e., all members of the Class have been denied all wages.
overtime. and meal and rest periods. In addition, CORPORATE DEFENDANTS have failed to
maintain accurate records of hours worked by employees. Among the questions of law and fact
common to the Class are:
(a) Whether Defendants have violated California law. including California’s Unfair
Competition laws (Business & Professions Code §§ 17200, et seq.), and/or California Labor
Code § 226.7.
(b) Whether Defendants have unlawfully denied employees regular and overtime wages as a
condition to maintaining their jobs, in violation of the California Iabor Code.
(c) Whether Defendants have unlawfully coerced or compelled or otherwise required the
Class to forego meal and rest periods to maintain their jobs, in violation of the California
Labor Code.
(d) Whether Defendants have unlawiully failed to maintain employees” pay records, in
violation of the California Labor Code.
(e) Whether Defendants’ labor policies and practices. as described herein. constitute
intentional or reckless violations of California law. entitling Plaintiffs and the Class to
punitive or exemplary damages.
21. Plaintiffs and the entire Class have been, and/or still are, denied overtime wages for work
in excess of eight (8) hours in a day and forty (40) hours ina weck.
92. Plaintiffs and the entire Class have been, and/or still are, required to forego meal and rest
periods as a term and condition of their employment.
23. CORPORATE DEFENDANTS did not keep accurate payroll records as required by
California law.
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24. Plaintiffs’ claims are typical of those of the Class they seeks to represent because
Plaintiffs and all members of the Class were injured and/or continue to be injured in the same
manner by Defendants’ illegal acts and practices. and other wrongful conduct complained of
herein.
5. Plaintiffs will fully and adequately protect the interests of all members of the Class.
Plaintifis has retained counsels who are experienced in class action litigation. Plaintiff! has no
interests that are adverse to or in conflict with other members of the Class.
FACTUAL ALLEGATIONS
26. Upon information and belief, CORPORATE DEFENDANTS fail to provide Plaintiff
Schembuari, Plaintiff Mineo and other persons in their employment with regular and overtime
wages. Defendants’ policies and practices toward its employees violate California Labor Code
§§ 510 and 204. which provide, in relevant part:
Sec. 510(a). Eight hours of labor constitutes a day's work. Any work in excess of eight
hours in one workday and any work in excess of 40 hours in any one workweek and the
first eight hours worked on the seventh day of work in any one workweek shall be
compensated at the rate of no less than one and one-half times the regular rate of pay for
an employee. Any work in excess of 12 hours in one day shall be compensated at the rate!
of no less than twice the regular rate of pay for an employee. In addition, any work in
excess of eight hours on any seventh day of a workweek shall be compensated at the rate
of no less than twice the regular rate of pay of an employee.
Sec, 204. All wages. other than those mentioned in Section 201, 202, 204.1, or 204.2.
earned by any person in any employment are due and payable twice during each calendar
month, on days designated in advance by the employer as the regular paydays.
27. Upon information and belief, CORPORATE DEFENDANTS fail to provide Plaintiff
Schembari, Plaintiff Mineo. Plaintiff Nails, and persons in their employment with meal and rest
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periods. Defendants’ policies and practices towards its employees violate California Labor Code
§ 226.7. which provides:
(a) No employer shall require any employee to work during any meal or rest period
mandated by an applicable order of the Industrial Welfare Commission.
(b) If an employer fails to provide an employee a meal period or rest period in
accordance with an applicable order of the Industrial Welfare Commission. the emplover
shall pay the employee one additional hour of pay at the employee's regular rate of
compensation for each work day that the meal or rest period is not provided.
28. Upon information and belief. CORPORATH: DEFENDANTS fail to maintain accurate
payroll records. Defendants” policies and practices towards its employees violate California
Labor Code § 226, which provides, in relevant part:
(a) Every employer shall. semimonthly or at the time of each payment of wages. furnish each
of his or her employees, either as a detachable part of the check. draft, or voucher paying the
employee's wages. or separately when wages are paid by personal check or cash. an accurate
itemized statement in writing showing (1) gross wages eared, (2) total hours worked by the
employee, except for any employee whose compensation is solely based on a salary and who
is exempt from payment of overtime under subdivision (a) of Section 515 or any applicable
order of the Industrial Welfare Commission, (3) the number of piece-rate units rned and
any applicable piece rate if the employee is paid on a piece-rate basis. (4) all deductions.
provided that all deductions made on written orders of the employee may be aggregated and
shown as one item, (5) net wages earned, (6) the inclusive dates of the period for which the
employee is paid, (7) the name of the employee and his or her social security number. except
that by January 1. 2008. only the last four digits of his or her social security number or an
employee identification number other than a social security number may be shown on the
itemized statement, (8) the name and address of the legal entity that is the employer. and (9)
all applicable hourly rates in effect during the pay period and the corresponding number of
hours worked at each hourly rate by the employee. The deductions made from payments of
wages shall be recorded in ink or other indelible form, properly dated. showing the month.
day. and year, and a copy of the statement or a record of the deductions shal! be kept on file
by the employer for at least three years at the place of employment or at a central location
within the State of California.
29, Defendants routinely required employees to work more than five (5) hours at a time
without a break. Plaintiffs and the Class were routinely not permitted to take a one-hour meal
9
First Amended Complaint For Damagesperiod or even a 30-minute meal period, as required by law. Defendants routinely scheduled
employees to work consecutive hours (over five) during a given day without interruption.
30. Defendants routinely denied employees regular wages, and overtime wages lo employees
working more than eight (8) hours per day and more than forty (40) hours per week. In addition,
Delendants routinely failed (o timely pay employees” due wages.
31. Defendant's illegal policy of denying regular and overtime wages. failing to timely pay
wages, and forcing employees to forego a meal and rest period also constitute a violation of
California's Untair Competition Law (Business and Professions Code §§17200, et seq.). in that
Defendant's policies and practices constitute unlawful, unfair or fraudulent business acts or
practices. including violations of California Labor Code provisions and California IWC Orders.
32. Defendants’ policies and practices are despicable and are enforced through oppressive
and fraudulent means, as described herein. including the verbal and economic harassment of
their employees for Defendants’ profit. Defendants’ acts were committed and continue to be
committed with malice. and constitute despicable conduct that is carried on by Defendants with al
willful and conscious disregard of the rights of their employees. Plaintiffs and the Class are
entitled to punitive or exemplary damages for Defendants* intentional and despicable conduct
33. Plaintiffs seeks injunctive relief prohibiting Defendants from engaging in the illegal tabor
acts described herein. Injunctive relief is required. Unless enjoined. Defendants’ unlawful
conduet will continue unchecked. while Plaintifls and the Class bear the financial brant of
Defendant's unlawful conduct.
34, Plaintilfs also seeks restitution of costs incurred by Plaintiffs and members of the class
under California’s Unfair Competition Law.
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First Amended Complaint For Damages.,
First Cause of Action
(On Behalf of Plaintiffs and the Entire Class)
Against All Defendants
For Willful Violations of California Labor Code §
510 and 204 -
Failure to Pay All Wages and Overtime Under California Law
35. Plaintilfs repeats and realleges the preceding and subsequent paragraphs as though set
forth herein.
36. On January 1. 2000, Labor Code § 510(a) was enacted and provides: Light hours of labor
constitutes a day's work. Any work in excess of eight hours in one workday and any work in
excess of 40 hours in any one workweek and the first eight hours worked on the seventh day of
work in any one workweck shall be compensated at the rate of no less than one and one-hall”
» shall
times the regular rate of pay for an employee. Any work in excess of 12 hours in one day
be compensated at the rate of no less than twice the regular rate of pay for an employee. In
addition. any work in excess of eight hours on any seventh day ofa workweek shall be
compensated at the rate of no less than twice the regular rate of pay of an employee.
37. Labor Code § 1194(a) states:
Notwithstanding any agreement to work for a lesser wage. any employee receiving less than
the legal minimum wage or the legal overtime compensation applicable to the employee is
entitled to recover in a civil action the unpaid balance of the full amount of this minimum
wage or overtime compensation, including interest thereon, reasonable attorney's fees. and
costs of suit.
38. Labor Code § 204 s‘ates. in pertinent part:
All wages. other than those mentioned in Section 201, 202. 204.1. or 204.2. earned by any
person in any employment are due and payable twice during each calendar month, on days
designated in advance by the employer as the regular paydays.
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First Amended Complaint For DamagesNw
39. Under California law. CORPORATE DEFENDANTS are required to pay wages for each
hour worked, and overtime wages when non-exempt employees work over 8 hours in a day or 40
hours ina week by calculating the hourly rate and then computing the overtime premium amount
owed. Plaintiffs and putative class members have worked for Defendants without being paid for
all hours worked. regular and overtime.
40, As a result of CORPORATE DEFENDANTS’ violation of statutory duties to comply
with statutory wage requirements, as more fully set forth above, Plainuiffs and Class members
were damaged in an amount above the jurisdictional limits of this Court.
4]. Plaintiffs and Class members seek as damages all wages owed to individuals employed
by CORPORATE DEFENDANTS.
42. Plaintiffs and Class members are entitled to, and therefore request. an award of pre-
judgment interest on the unpaid wages set forth herein.
43. Plaintiffs have incurred. and will continue to incur attorneys” fees and costs in the
prosecution of this action. Plaintiffs seeks attorneys’ fecs under all applicable provisions of law.
Wherefore. Plaintiffs prays judgment as set forth herein below.
Second Cause of Action
(On Behalf of Plaintiffs and the Entire Class)
Against All Defendants
For Willful Violations of California Labor Code §§ 201, 202, 203, and 203.1 —
Failure to Pay Wages Upon Discharge or Quitting, and issue payroll cheek with
insufficient funds; Waiting Time Penalties
44. Plaintiffs repeats and realleges the preceding and subsequent paragraphs as though set
forth herein.
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First Amended Complaint For Damages45, California Labor Code §§ 201 and 202 require CORPORATE DEFENDANTS to pay
their employees all wages due immediately upon discharge or 72 hours after an employee quits.
California Labor Code § 203 provides that if an emptoyer willfully fails to imely pay such
wages the employer must. as a penalty. continue lo pay the subject employees’ wages until the
back wages are paid in full or an action is commenced. The penalty cannot exceed 30 days of
wages. A worker need not prove malice or intentional conduct in establishing their claim for
waiting time penalties, but merely establish the employer did not do something it was obligated
to do. (See Mamika v. Barca (1998) 68 Cal. App. 4th 487: Barnhill v. Robert Saunders & Co.
(1981) 125 Cal. App.3d 1.)
46. California Labor Code §§ 203.1 required an employer such as CORPORATE
DEFENDANTS “pays an employee in the regular course of employment or in accordance with
Section 201. 201.3. 201.5. 201.7. or 202 any wages or fringe benefits. or both. by check, draft or
voucher. which check. draft or voucher is subsequently refused payment because the employer orf
maker has no account with the bank, institution. or person on which the instrument is drawn. or
has insutticient funds in the account upon which the instrument is drawn at the time of its
presentation. so long as the same is presented within 30 days of receipt by the employce of the
check, draft or voucher. those wages or fringe benefits. or both, shall continue as a penalty from
the due date thereof at the same rate until paid or until an action therefor is commenced.
However. those wages and fringe benefits shall not continue for more than 30 days and this
penalty shall not apply if the cmployer can establish to the satisfaction of the Labor
Commissioner or an appropriate court of law that the violation of this section was unintentional.
This penalty also shall not apply in any case in which an employee recovers the service charge
authorized by Section 1719 of the Civil Code in an action brought by the employee there under.”
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47. Plaintiff Schembari. Plaintiff Mineo, Plaintiff Nails and other persons in CSC's
employment had several payroll pay checks that bounced from August 2007 to August 201 0.
CSC payroll accounts that had insufficient funds to cover its employees pay cheeks.
48. Plaintiffs and Class members are entitled to unpaid compensation, but to date have not
-cived such compensation. Defendants failed to pay Plaintiffs and Punitive Class members”
earned commissions on or before the date of Plaintiffs’ resignation. Defendants failed to
complete the necessary calculations and pay the commissions on the date of the termination in
the case of a discharge or a voluntary quit with more than 72 hours prior notice. or w ithin 72
hours of the termination of the employment relationship in the case of a voluntary quit without
such prior notice. Defendants issued pay checks to Plaintiffs and Class members that their banks
subsequently refused payment because the Defendants had no account with the bank. institution,
or had insufficient funds in the account upon which the instrument is drawn at the time of its
INDANTS? willful conduct in not
presentation. Asa consequence of CORPORATE DEI
paying compensation for all hours worked. Plaintiffs and Class members are entitled to 30 days
wages as penalty under Labor Code § 203. together with interest thereon and attorney s° fees and
costs. Wherefore. Plaintiffs prays judgment as set forth herein below,
Third Cause of Action
On Behalf of Plaintiffs and the Entire Class
Against All Defendants
For Willful Violations of California Labor Code § 226.7 -
Failure to Afford Mandatory Breaks or Meal Periods as Required by
IWC Orders and Labor Code
49. Plaintiffs repeat and realleges the preceding and subsequent paragraphs as though set
forth herein.
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50. Atall times relevant. Plaintiffs and the Class members were covered by the provisions of
Industrial Wage Commission (*TWC”) Orders. including IWC Orders 1-2001.
51. The IWC Orders provide, in applicable part:
11.(A) No employer shall employ any person for a work period of more than five (5} hours
without a meal period of not less than 30 minutes. except that when a work period of not
more than six (6) hours will complete the day’s work the meal period may be waived by
mutual consent of the employer and employee. In the case of employees covered by a valid
collective bargaining agreement, the parties to the collective bargaining agreement may agree
to a meal period that commences after no more than six (6) hours of work.
11, (B) An employer may not employ an employee for a work period of more than ten (10)
hours per day without providing the employee with a second meal period of not less than 30
minutes. except that if the total hours worked is no more than 12 hours. the second meal
period may be waived by mutual consent of the employer and the employee only if the first
meal period was not waived.
11. (C) Unless the employee is relieved of all duty during a 30 minute meal period. the meal
period shall be considered an “on duty” meal period and counted as time worked. An “on
duty” meal period shall be permitted only when the nature of the work prevents an employee
trom being relieved of all duty and when by written agreement between the parties an on-the-
job paid meal period is agreed to. The written agrecment shail state that the employee may.
in writing. revoke the agreement at any time.
11. (D) If an employer fails to provide an employee a meal period in accordance with the
applicable provisions of this order, the employer shall pay the employee one (1) hour of pay
at the employee's regular rate of compensation for each workday that the meal period is not
provided.
12. (A) Every employer shall authorize and permit all employees to take rest periods. which
insofar as practicable shall be in the middle of each work period, The authorized rest period
time shal! be based on the total hours worked daily at the rate of ten (10) minutes net rest
time per four (4) hours ur major fraction thereof. However. a rest period need not be
authorized for employees whose total daily work time is less than three and one-half (3.4)
hours. Authorized rest period time shall be counted as hours worked for which there shall be
no deduction from wages.
12. (B) If'an employer fails to provide an employee a rest period in accordance with the
applicable provisions of this order. the employer shall pay the employee one (1) hour of pay
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First Amended Complaint For Damages()
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at the employee's regular rate of compensation for each workday that the rest period is not
provided.
52. California Labor Code § 226.7 states:
(a) No employer shall require any employee to work during any meal or rest period mandated)
by an applicable order of the Industrial Welfare Commission.
(b) If an employer fails to provide an employee a meal period or rest period in accordance
with an applicable order of the Industrial Welfare Commission, the employer shall pay the
employee one additional hour of pay at the employee's regular rate of compensation for each
work day that the meal or rest period is not provided.
53. CORPORATE DEFENDANTS routinely failed to provide Plaintiffs and the Class
members with a 30-minute unpaid meal period within the first five (5) hours of work in
compliance with IWC Orders and Labor Code § 226.7. Defendants routinely failed to provide
Plaintiffs and the Class members with a second 30-minute meal period within the second five (5)
hours of work in compliance with [IWC Orders and Labor Code § 226.7. Asa result of
Defendants’ failure, Plaintiffs and the Class members are entitled to recover an amount to be
proved at trial. of not less than one additional hour of pay at the regular rate of compensation for
each workday that the meal period was not provided, and any and all civil penalties provided by
law,
54. CORPORATE DEFENDANTS routinely failed to provide Plaintiff's and the Class
members with a 10-minute paid rest period for each four (4) hour period of work. in compliance
with [WC Orders and Labor Code § 226.7. As a result of Defendants” failure. Plaintiffs and the
Class members are entitled to recover an amount to be proved at trial, of not less than one
additional hour of pay at the regular rate of compensation for each workday that the rest period
was not provided, and any and all civil penalties provided by law.
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35. CORPORATE DEFENDANTS" policy and practice of denying Plaintiffs and the entire
Class meal and rest periods constitutes a willful violation of California Labor Code § 226.7.
Plaintiffs and the entire Class have sustained damages as a direct and proximate consequence of
the Defendants’ willful and illegal conduct, to wit, they have been forced to work continuously
throughout the day, every day. without being allowed to take meal and rest periods.
56. Plaintiffs have incurred. and will continue to incur attorney fees and costs in the
prosecution of this action. Plaintiffs seeks attorneys’ fees under all applicable provisions of Jaw.
Wherefore. Plaintiffs prays judgment as set forth herein below.
Fourth Cause of Action
(On Behalf of Plaintiffs and the Entire Class)
Against All Defendants
For Willful Violations of Labor Code § 226 —
Failure to Maintain Pay Records
57, Plaintiffs repeats and realleges the preceding and subsequent paragraphs as though set
forth herein.
58. CORPORATE DEFENDANTS knowingly and intentionally failed to maintain accurate
pay records, in violation of California Labor Code § 226.
59. Asa direct result of CORPORATE DEFENDANTS” failure. Plaintiffs and Class
members were injured and are entitled to recover an amount to be proved at trial. of not less than
$750 for cach violation.
60. Plaintiffs and Class members are entitled to statutory penalties and attorneys’ fees
pursuant to Labor Code § 226 and California Code of Civil Procedure § 1021.5. Wherefore.
Plaintiffs prays judgment as set forth herein below.
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First Amended Complaint For Damages- vot
Fifth Cause of Action
{On Behalf of Plaintiffs and the Entire Class)
Against All Defendants
For Violations of California Business and Professions Code Sections 17200, ct seq.
Based Upon Defendants’ Unfair Business Acts and Practices
61, Plaintiffs repeats and realleges the preceding and subsequent paragraphs as though set
forth herein.
62. Plaintiffs further brings this action pursuant to the Business and Professions Code
Sections 17200, et sey.. seeking restitution for monies owed for regular and overtime wages,
denial of meal and rest periods, and injunctive relief to enjoin CORPORATE DEFENDANTS”
illegal practices.
63. The Unfair Competition Law prohibits all unfair competition, which is detined as "any
unlawful, unfair or fraudulent business act or practice.” Plaintiffs and the class have standing lo
bring this claim because they are direct victims of CORPORATE DEFENDANTS? illegal and
unfair business practices. which Defendants engaged in for their sole financial benelit.
64. Defendants. and each of them, are “persons” as defined under Business and Professions
Code § 17201. Each of the directors. officers, and/or agents of Defendants. and cach of them.
are equally responsible for the acts of the other directors. officers. employees and/or agents as sel
forth in the Business and Professions Code § 17095.
65. Plaintiffs and the Class members bring this action in the interest of themselves. as
representatives, and in the interest of other employees of Defendants, and each of them. and in
the interest of the public pursuant to § 17203 of the California Business and Professions Code.
Plaintiffs and Class members bring this cause of action secking restitution for CORPORATE
18
First Amended Complaint For DamagesnN
)
DEFENDANTS? failure to pay employees regular and overtime wages, and failure to provide
meal and rest periods. as well as an injunction prohibiting Defendants from denying employees
regular and overtime wages and meal and rest periods. now and in the future.
66. Plaintiffs and the Class members bring this action to pursue claims during a 4-year statute
of limitations under § 17208 of the California Business and Professions Code.
67. The following practices of Defendants, and each of them. are unlawful and untair
business practices under California Business and Professions Code $$ 17200 et seq.:
(a) failure to pay all regular and overtime wages. in violation of the California Labor Code
and all other applicable laws:
(b) failure to provide rest breaks and meal periods pursuant to the California Labor Code and
IWC wage orders:
(c) failure to maintain accurate pay records;
(d) unjust enrichment due to the failure to pay wages. including overtime wages.
(e) Plaintiff Schembari. Plaintiff Mineo, Plaintiff Nails and other persons in CSC’s
employment had several pay checks that bounced from August 2007 to August 2010. CSC
payroll accounts that had insufficient funds to cover its employees pay checks.
(f) Plaintitf Nails and other persons in CSC*s employment were mis-classificd as
Independent Contractors. For approximately the first six (6) months of Plainitif? Nails
employment CSC classified him as an independent contractor even though all of Plaintill
Nails work schedule, assignments, and equipment to perform his duties were provided by
csc.
19
First Amended Complaint For Damages68, At all times material to this action, CORPORATE DEFENDANTS’ conduct deseribed
above is an unfair. unlawful. and/or fraudulent business practice in violation of California
Business & Professions Code §§ 17200 et seq.
69. As alleged hereinabove. CORPORATE DEFENDANTS have inequitably and unlawfully
conspired, agreed. arranged and combined to violate California labor laws, as alleged herein.
70. As set forth below. Plaintiffs and Class members are informed and believe and thereupon
allege, that by failing to pay wages to all employees at Defendants” business. Defendants have
engaged in business within the State of California in a manner that injured competitors. lead to
misrepresentations to the public about the manner in which Defendants engaged in business.
and/or destroyed competition in violation of Business and Professions Code § 17043. Upon
information and belief. Plaintiffs and Class members allege that Defendants engaged in the acts
and omissions heretofore alleged for the purpose of profiting from lower labor costs. and
obtaining an unlawful or unfair advantage, all in a scheme to engage in unfair competition. at the
expense of their employees and to the detriment of public policy for the lawful employment of
employees.
71. Pursuant to Business and Professions Code $8 17071 and 17075. the failure of
Defendants. and each of them. to pay all wages, including overtime wages. is admissible as
evidence of Defendants’ intent to violate the California Unfair Practices Act.
72, Asa direct and proximate result of the unfair. unlawful. and/or fraudulent business
practices alleged herein. Plaintiffs and the entire Class have been denied due wages. both regular
20
First Amended Complaint For Damages~ on
— va
and overtime, as well as meal and rest periods. all to their detriment and all to CORPORATE
DEFENDANTS: illegal economic advantage.
73. Plaintiffs and the Class members are informed and believe and thereon allege that the
Defendants. and each of them. by committing the above-described acts, have deceived the public
by illegally depriving its employees regular and overtime wages. and meal and rest periods. thus
injuring its employees.
74. Business and Professions Code provides that the Court may restore to an aggrieved party
any money or property acquired by means of unlawful and unfair business practices, Plaintifi’s
and Class members seek restitution of all unpaid wages owing to them and members of the
general public. according to proof, that the Defendants have enjoyed as a result of the unfair
business practices.
75. Business and Professions Code § 17202 states: “Notwithstanding Section 3369 of the
Civil Code. specific or preventive relief may be granted to enforce a penalty. forfeiture, or penal
law ina case of unfair competition.”
76. In addition to restoration of ali wages owed, Plaintiffs and Class members seek to enforce
penalties in the interest of themselves. in the interest of other employees of Defendants. and each
of them. and in the interest of the general public pursuant to § 17202:
(a) waiting time penalties (Labor Code § 203);
(b) extra hour of pay for not authorizing or permitting breaks and meal periods
(Labor Code § 226.7);
(c) failure to maintain accurate pay records (Labor Code § 226)
21
First Amended Complaint For Damages77. There is a financial burden incurred in pursuing this action which would be unjust to
place on Plaintiffs and the Class members, because the burden of enforcing work force-wide
rights is disproportionate to that of enforcing only individual claims. It would be against the
interests of justice to force payment of attorneys” fees from Plaintiffs and Class members’
recovery in this action. Therefore. attorneys’ fees are appropriate and sought pursuant to all
applicable laws. including but not limited to California Code of Civil Procedure § 1021.5.
78. Unless equitable relief is granted. members of the Class will continue to be subjected to
Defendants’ illegal conduct. Pursuant to Business and Professions Code §§ 17203. Plaintiffs and
the Class seek a permanent injunction enjoining Defendants” continuing violations of
California’s Unfair Competition Law on the grounds that such acts described herein violate §
17200 of the Business and Professions Code and California’s public policy. Wherefore, prays
judgment as set forth herein below.
sixth Cause of Action
‘On Behalf of Plaintiffs and the Entire Class
Against All Defendants
For Unjust Enrichment
79, Plaintiffs repeats and realleges the preceding and subsequent paragraphs as though set
forth herein.
80. By taking advantage of Plaintiffs’ and Class members, Defendants. and each of them.
were unjustly enriched at Plaintiffs’ and Class members” expense. CORPORATE
DEFENDANTS gained an advantage by denying Plaintiffs and Class members regular and
overtime wages. and meal and resot periods. As a proximate result. Plaintiffs and Class
2»?
First Amended Complaint For Damages~ on
—— «wt
members suffered damages. The interests of equity require that Defendants pay restitution and
penalties for violating the [-abor Code and Business and Professions Code. Wherefore, Plaintiffs
prays judgment as set forth herein below.
Seyenth Cause of Action
Against All Defendants
For Declaratory Relief
81. Plaintiffs repeats and realleges the preceding and subsequent paragraphs as though set
forth herein.
82. Plaintiffs and the Class seek a Declaration by this Court that Defendants” concerted
violations alleged herein constitute unfair business practices. in violation of the Untair
Competition Act.
83. Plaintiffs and the Class also seek a Declaration by this Court that Defendants” policy and
practice of denying regular and overtime wages and meal and rest periods constitute a violation
of California law, as alleged herein. In addition, Plaintiffs and Class members seek a Declaratior
by this Court that Defendants’ policy and practice of tailing to maintain accurate pay records.
and failing to provide employees with those records for inspection upon request constitutes a
violation of California law. as alleged herein.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs prays for judgment against Defendants. and cach of them. as
follows:
23
First Amended Complaint For Damages(a) Certifying this action to proceed as a class action pursuant to California Code of
Civil Procedure section 382 and designating Plaintiffs as the representative of the Class and his
counsel as counsel for the Class:
(b) For damages for unpaid wages, including regular and overtime wages. and such
general and special damages as may be appropriate. according to proof at ial:
(c) For 30 days waiting time penalties under Labor Code § 203:
(d) For statutory penalties under Labor Code § 210 and 558(a)(3):
(e) For penalties under Labor Code § 226(1);
(f) For damages calculated at one extra hour for each day no rest period was provided
and at one extra hour for each day no meal period was provided (Labor Code § 226.7):
(g) Declaring that the concerted violations alleged herein constitute untiir
competition in violation of California's Unfair Competition Law. and violations of California's
Labor Code:
(hy Permanently enjoining Defendants from continuing to engage in the unlawtul
concerted conduct described herein:
(i) Equitable remedies, including but not limited to, an equitable accounting, as the
court deems just and proper under the circumstances:
@ Awarding Plaintiffs and the Class punitive or exemplary damages based on
Defendants’ oppressive and despicable conduct;
(k) Granting Plaintiffs and the Class the costs of prosecuting this action. together with]
interest and reasonable attorneys’ and experts’ fees; and
24
First Amended Complaint For DamagesDated:
Dated:
Dated:
Dated:
dy Granting such other relief as this Court may deem just and proper under the
circumstances.
January 14,2011
January 14.2011
LADVA LAW FIRM
By: VALE
‘ai Ladva, £
ttorney for Plaintif
LAW OFFICES_OF DANIEL VEGA
ts
JURY DEMAND
To the full extent available, Plaintiffs demands a trial by jury.
January 14,2011
January 14.2011
LADVA LAW FIRM
By:
ttorney for Plaintiffs
LAW OFFIC - DANIEL VEGA
By:
aniel Martinez
Attorney for Plaintiffs
Vega. Esq.
25
First Amended Complaint For Damages
Preview
IANA ALO SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO Document Scanning Lead Sheet Jan-18-2011 3:02 pm Case Number: CGC-10-504804 Filing Date: Jan-18-2011 2:53 Juke Box: 001 Image: 03093995 COMPLAINT EO INDIVIDUALLY, AND ON BEHALF OF ALL et al VS. CITY SIGHTSEEING CORPORATII 001C03093995 Instructions: Please place this sheet on top of the document to be scanned.is 1é q) ~~ i Ashwin Ladva. Esq. (SB# 206140) LADVA LAW FIRM FIL E D 530 Jackson St., 2" floor SE Ten rane San Francisco, CA 94133 Telephone: (415) 296-8844 JAN 16 2011 ladvalaw@gmail.com Daniel Martinez de la Vega, Esq. (SB# 255885) LAW OFFICES OF DANIEL VEGA 201 Spear Street, Suite 1100 San Francisco, CA 94105 Telephone: (415) 287-6203 Fax: (415) 704-5067 dvega(@vegalawyer.com Attorneys for Salvatore Mineo, Gina Schembari. Phillip T Nails. Benjamin Duax. and David Hayward individually, and on behalf of all others similarly situated. SUPERIOR COURT FOR THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN FRANCSICO Salvatore Mineo, Gina Schembari. Phillip Case No: CGC-10-504804 Thomas Nails. Benjamin Duax, and David Hayward individually, and on behalf of all others similarly situated. SECOND AMENDED COMPLAINT FOR DAMAGES oe CLASS ACTION COMPLAINT FOR: Plaintiffs, VS. © Violations of California Labor Code §§ 510 and 204 « Violations of California Labor Code §§ 201, 202, 203, and 203.1 ¢ Violations of California Labor Code § 226; ¢ Violations of California Labor Code § 226.7; * Violations of Business and Professions Code §§ 17200 Et Seq.; ¢ Unjust Enrichment; e Declaratory Reliet CITY SIGHTSEEING CORPORATION. A DELAWARE CORPORATION, CITY SIGHTSEEING WORLDWIDE and DOES 1- 500. inclusive, Defendants wee SS SSS SS eS ee ee eee JURY TRIAL DEMANDED First Amended Complaint For DamagesPlaintiffs SALVATORE MINEO, GINA SCHEMBARI. PHILLIP THOMAS, NAILS, BENJAMIN DUAX, and DAVID HAYWARD individually, and on behalf of ail others similarly situated, for their complaint against defendants CITY SIGHTSEEING CORPORATION. A DELAWARE CORPORATION (Hereafter referred to as "CSC™). CITY SIGHTSEEING WORLDWIDE (Hereafter referred to as “CSCW”), and DOES 1-500. inclusive, inclusive. alleges upon information and belief. except as to the allegations that pertain to Plaintiffs and his counsel. as follows: JURISDICTION AND VENUE 1. Plaintiff SALVATORE MINEO is an individual who, at all relevant time periods, resided in California, was a citizen of the State of California, was offered employment by CITY SIGHTSEEING CORPORATION, A DELAWARE CORPORATION. (hereinafter referred to as) “CSC” or “CORPORATE DEFENDANT”). and who worked for CSC in California from approximately October 2009 until approximately August 6°, 2010, when he resigned. Plaintiff MINEO was employed by CSC as a front desk reception and in-side sales. Plaintiff Minco after his resignation never received his final sales commission for his July 2010 work with CSC. Plaintiff Mineo estimates he was owed approximately $500.00 2. Plaintiff GINA SCHEMBARI is an individual who. at all relevant time periods. resided in California, was a citizen of the State of California, was offered employment by CITY SIGHTSEEING CORPORATION, A DELAWARE CORPORATION, (hereinafter referred to as} “CSC” or “CORPORATE DEFENDANT”), and who worked for CSC in California trom approximately June 2009 until approximately June 2010. Plaintiff SCHEMBARI was employe by CSC as a front desk reception and in-side sales. 2 First Amended Complaint For DamagesBs _ ~ - ~~ 3. Plaintiff PHILLIP THOMAS NAILS is an individual who, at all relevant time periods. resided in California, was a citizen of the State of California. was offered employment by CITY SIGHTSEEING CORPORATION. A DELAWARE CORPORATION. (hereinalter referred to as =CSC" or "CORPORATE DEFENDANT”), and who worked for CSC in California from approximately August 2007 until approximately September, 2009. Plaintiff NAILS was employed by CSC as a tour guide. 4. Plaintiff BENJAMIN DUAX is an individual who. at al! relevant time periods. resided in California, was a citizen of the State of California, was offered employment by CIEY SIGHTSEEING CORPORATION, A DELAWARE CORPORATION. (hereinafter referred to as “CSC or “CORPORATE DEFENDANT"). and who worked for CSC in California from approximately January 2007 until approximately August 2009. Plaintiff DUAX was employed by CSC as a tour guide. 5. Plaintiff DAVED HAYWARD is an individual who, at all relevant time periods, resided in California, was a citizen of the State of California, was offered employment by CITY SIGHTSEEING CORPORATION. A DELAWARE CORPORATION. (hereinafter reterred to as “CSC? or “CORPORATE DEFENDANT"), and who worked for CSC in California from approximately January 2006 to until approximately September 2009, Plaintifl Hayward was employed by CSC as a Bus Driver. 6. Detendant CSC is a California Tour Company that offers tours in San Francisco Bay Area, CSC’s San Francisco Office is located at 2800 LEVENWORTH ST STE 14. SAN FRANCISCO CA 94133. CSC has multiple centers in the State of California. including a branch in San Diego County. 3 First Amended Complaint For Damages itt are CC I,() ¢ 7. Defendant CSW is a International Tour Company that offers tours in San Francisco Bay Area. CSW headquartered located at Purfleet Industrial Park, Juliette Close. Purfleet, Essex RMIS4YF. CSW has multiple centers in the State of California and across the United States. CSW. Upon information and belief, the class contends that CSC and CSW operate their San Francisco tours as a joint venture. 8, Plaintiffs lack sufficient information and belief to allege the true names and capacities of defendants sued herein as DOES 1 through 500. inclusive. For that reason, Plaintit!s sue said fictitiously named defendants by such fictitious names. When the true names. nature and capacity of said fictitiously named defendants are ascertained, Plaintiffs shall amend this Complaint accordingly. At all times herein mentioned. all defendants herein, whether named or unnamed were and are responsible and liable to Plaintiffs for all of the Plaintiffs’ damages and other relief prayed for herein. Plaintiffs alleges on information and belie! that at all times herein mentioned. each of the defendants herein. whether named or unnamed. was the agent. servant employee. co conspirator, co adventurer, and employee of each other defendant herein, whether named or unnamed. With respect to each action and inaction pled in the following paragraphs. each of the defendants, whether named or unnamed. was acting within the course and scope of their agency and employment and was acting with the full knowledge, consent. ratification and approval of each other defendant herein. whether named or unnamed. 9. This Court has personal jurisdiction over the named corporate Defendants. which: (1) conducts business in the State of California through its branches and service centers in California; (2) hires and maintains employces in the State of California: and (3) avails itself of the protection of the laws of the State of California. Venue is proper in this Court because 4 First Amended Complaint For Damagesom, ww _ Defendants committed the acts complained of herein in San Francisco County as well as in other locations throughout the State of California. CLASS ACTION ALLEGATIONS 10. Plaintiffs brings this class action pursuant to California Code of Civil Procedure section 382 on behalf of a Class consisting of all current and former employees of Defendants in the State of California who were denied all wages. overtime, meal and rest periods. and their tinal paycheck during all applicable statutes of limitations (the “Class Period”). 11. The wrongful acts or omissions were and are a uniform practice that affected all putative class members equally. Rezpondents. by their practices and policies. have violated the rights of their employees under the California Labor Code, and the Unfair Competition Law. The questions raised are therefore of common or general interest to the class members. and they have a well defined community of interest in the questions of law and fact raised in this action. The only recognizable difference between class members will be the amounts owed to each individual member. 12. Based on information and belief, Defendant CSC has employed a large number of individuals in the State of California (a number known particularly to Defendants) since the beginning of the Class Period. These individuals have been subject to Defendants’ unlawful and wrongful practices, and their numerosity makes it impractical to bring them ail before this forum, and disposition of their claims in a class action is a benefit to the parties and to the court. 13. A class action is superior to other available means for the fair and efficient adjudication of this controversy. Individual joinder of all class members is not practicable. and questions of law and fact common to the class predominate over any questions affecting only individual 5 First Amended Complaint For Damages-_ a ~~ members of the class. Each member of the class has been damaged and is entitled to recover, Class action treatment will allow those similarly situated persons to litigate their claims in the manner that is most efficient and economical for the parties and the judicial system. 14. A class action is appropriate since Plaintiff's and class members’ damages. although by no means inconsequential. do not rise to the level to make prosecution of individual claims economically feasible for Plaintiffs and class members to pursue. The burden and expense of individual litigation makes it economically unfeasible for the members of the class to seck redress other than through a class action. Consequently, there would be a failure of justice but for the maintenance of the present class action. 15. The prosecution of individual remedies by members of the class would tend to establish inconsistent standards of conduct for the Defendants and would result in the impairment of class members’ rights and the disposition of their interests through actions to which they were not parties. 16. Plaintiffs knows of uo difficulty which will be encountered in the management of this litigation which would preclude its maintenance as a class action. 17, Plaintiffs have incurred and. during the pendency of this action. will incur attorneys’ fees and expenses. Such attorneys’ fees and expenses are necessary for the prosecution of this action and will result in a benefit to the class. 18. Upon information and belief, Defendants were aware of the facts herein alleged at the lime they failed to perform the duties alleged herein. 19. The names and addresses of the persons who are members of the class are available from CORPORATE DEFENDANTS’ records and are therefore known to Detendants. Notice can be 6 First Amended Complaint For Damages (Ae eS A:-~ - New’ a provided to the member of the class by mail. or by using techniques and a form of notice similar to those customarily used in class actions under California law. with the costs of any notice to be borne by Defendants. 20. The Defendants’ unlawful acts and unfair trade practices have affected all members of the Class in a similar manner, i.e., all members of the Class have been denied all wages. overtime. and meal and rest periods. In addition, CORPORATE DEFENDANTS have failed to maintain accurate records of hours worked by employees. Among the questions of law and fact common to the Class are: (a) Whether Defendants have violated California law. including California’s Unfair Competition laws (Business & Professions Code §§ 17200, et seq.), and/or California Labor Code § 226.7. (b) Whether Defendants have unlawfully denied employees regular and overtime wages as a condition to maintaining their jobs, in violation of the California Iabor Code. (c) Whether Defendants have unlawfully coerced or compelled or otherwise required the Class to forego meal and rest periods to maintain their jobs, in violation of the California Labor Code. (d) Whether Defendants have unlawiully failed to maintain employees” pay records, in violation of the California Labor Code. (e) Whether Defendants’ labor policies and practices. as described herein. constitute intentional or reckless violations of California law. entitling Plaintiffs and the Class to punitive or exemplary damages. 21. Plaintiffs and the entire Class have been, and/or still are, denied overtime wages for work in excess of eight (8) hours in a day and forty (40) hours ina weck. 92. Plaintiffs and the entire Class have been, and/or still are, required to forego meal and rest periods as a term and condition of their employment. 23. CORPORATE DEFENDANTS did not keep accurate payroll records as required by California law. 7 First Amended Complaint For Damages_ —_ - ws 24. Plaintiffs’ claims are typical of those of the Class they seeks to represent because Plaintiffs and all members of the Class were injured and/or continue to be injured in the same manner by Defendants’ illegal acts and practices. and other wrongful conduct complained of herein. 5. Plaintiffs will fully and adequately protect the interests of all members of the Class. Plaintifis has retained counsels who are experienced in class action litigation. Plaintiff! has no interests that are adverse to or in conflict with other members of the Class. FACTUAL ALLEGATIONS 26. Upon information and belief, CORPORATE DEFENDANTS fail to provide Plaintiff Schembuari, Plaintiff Mineo and other persons in their employment with regular and overtime wages. Defendants’ policies and practices toward its employees violate California Labor Code §§ 510 and 204. which provide, in relevant part: Sec. 510(a). Eight hours of labor constitutes a day's work. Any work in excess of eight hours in one workday and any work in excess of 40 hours in any one workweek and the first eight hours worked on the seventh day of work in any one workweek shall be compensated at the rate of no less than one and one-half times the regular rate of pay for an employee. Any work in excess of 12 hours in one day shall be compensated at the rate! of no less than twice the regular rate of pay for an employee. In addition, any work in excess of eight hours on any seventh day of a workweek shall be compensated at the rate of no less than twice the regular rate of pay of an employee. Sec, 204. All wages. other than those mentioned in Section 201, 202, 204.1, or 204.2. earned by any person in any employment are due and payable twice during each calendar month, on days designated in advance by the employer as the regular paydays. 27. Upon information and belief, CORPORATE DEFENDANTS fail to provide Plaintiff Schembari, Plaintiff Mineo. Plaintiff Nails, and persons in their employment with meal and rest 8 First Amended Complaint For Damages-_ om. ww wt periods. Defendants’ policies and practices towards its employees violate California Labor Code § 226.7. which provides: (a) No employer shall require any employee to work during any meal or rest period mandated by an applicable order of the Industrial Welfare Commission. (b) If an employer fails to provide an employee a meal period or rest period in accordance with an applicable order of the Industrial Welfare Commission. the emplover shall pay the employee one additional hour of pay at the employee's regular rate of compensation for each work day that the meal or rest period is not provided. 28. Upon information and belief. CORPORATH: DEFENDANTS fail to maintain accurate payroll records. Defendants” policies and practices towards its employees violate California Labor Code § 226, which provides, in relevant part: (a) Every employer shall. semimonthly or at the time of each payment of wages. furnish each of his or her employees, either as a detachable part of the check. draft, or voucher paying the employee's wages. or separately when wages are paid by personal check or cash. an accurate itemized statement in writing showing (1) gross wages eared, (2) total hours worked by the employee, except for any employee whose compensation is solely based on a salary and who is exempt from payment of overtime under subdivision (a) of Section 515 or any applicable order of the Industrial Welfare Commission, (3) the number of piece-rate units rned and any applicable piece rate if the employee is paid on a piece-rate basis. (4) all deductions. provided that all deductions made on written orders of the employee may be aggregated and shown as one item, (5) net wages earned, (6) the inclusive dates of the period for which the employee is paid, (7) the name of the employee and his or her social security number. except that by January 1. 2008. only the last four digits of his or her social security number or an employee identification number other than a social security number may be shown on the itemized statement, (8) the name and address of the legal entity that is the employer. and (9) all applicable hourly rates in effect during the pay period and the corresponding number of hours worked at each hourly rate by the employee. The deductions made from payments of wages shall be recorded in ink or other indelible form, properly dated. showing the month. day. and year, and a copy of the statement or a record of the deductions shal! be kept on file by the employer for at least three years at the place of employment or at a central location within the State of California. 29, Defendants routinely required employees to work more than five (5) hours at a time without a break. Plaintiffs and the Class were routinely not permitted to take a one-hour meal 9 First Amended Complaint For Damagesperiod or even a 30-minute meal period, as required by law. Defendants routinely scheduled employees to work consecutive hours (over five) during a given day without interruption. 30. Defendants routinely denied employees regular wages, and overtime wages lo employees working more than eight (8) hours per day and more than forty (40) hours per week. In addition, Delendants routinely failed (o timely pay employees” due wages. 31. Defendant's illegal policy of denying regular and overtime wages. failing to timely pay wages, and forcing employees to forego a meal and rest period also constitute a violation of California's Untair Competition Law (Business and Professions Code §§17200, et seq.). in that Defendant's policies and practices constitute unlawful, unfair or fraudulent business acts or practices. including violations of California Labor Code provisions and California IWC Orders. 32. Defendants’ policies and practices are despicable and are enforced through oppressive and fraudulent means, as described herein. including the verbal and economic harassment of their employees for Defendants’ profit. Defendants’ acts were committed and continue to be committed with malice. and constitute despicable conduct that is carried on by Defendants with al willful and conscious disregard of the rights of their employees. Plaintiffs and the Class are entitled to punitive or exemplary damages for Defendants* intentional and despicable conduct 33. Plaintiffs seeks injunctive relief prohibiting Defendants from engaging in the illegal tabor acts described herein. Injunctive relief is required. Unless enjoined. Defendants’ unlawful conduet will continue unchecked. while Plaintifls and the Class bear the financial brant of Defendant's unlawful conduct. 34, Plaintilfs also seeks restitution of costs incurred by Plaintiffs and members of the class under California’s Unfair Competition Law. 10 First Amended Complaint For Damages., First Cause of Action (On Behalf of Plaintiffs and the Entire Class) Against All Defendants For Willful Violations of California Labor Code § 510 and 204 - Failure to Pay All Wages and Overtime Under California Law 35. Plaintilfs repeats and realleges the preceding and subsequent paragraphs as though set forth herein. 36. On January 1. 2000, Labor Code § 510(a) was enacted and provides: Light hours of labor constitutes a day's work. Any work in excess of eight hours in one workday and any work in excess of 40 hours in any one workweek and the first eight hours worked on the seventh day of work in any one workweck shall be compensated at the rate of no less than one and one-hall” » shall times the regular rate of pay for an employee. Any work in excess of 12 hours in one day be compensated at the rate of no less than twice the regular rate of pay for an employee. In addition. any work in excess of eight hours on any seventh day ofa workweek shall be compensated at the rate of no less than twice the regular rate of pay of an employee. 37. Labor Code § 1194(a) states: Notwithstanding any agreement to work for a lesser wage. any employee receiving less than the legal minimum wage or the legal overtime compensation applicable to the employee is entitled to recover in a civil action the unpaid balance of the full amount of this minimum wage or overtime compensation, including interest thereon, reasonable attorney's fees. and costs of suit. 38. Labor Code § 204 s‘ates. in pertinent part: All wages. other than those mentioned in Section 201, 202. 204.1. or 204.2. earned by any person in any employment are due and payable twice during each calendar month, on days designated in advance by the employer as the regular paydays. ul First Amended Complaint For DamagesNw 39. Under California law. CORPORATE DEFENDANTS are required to pay wages for each hour worked, and overtime wages when non-exempt employees work over 8 hours in a day or 40 hours ina week by calculating the hourly rate and then computing the overtime premium amount owed. Plaintiffs and putative class members have worked for Defendants without being paid for all hours worked. regular and overtime. 40, As a result of CORPORATE DEFENDANTS’ violation of statutory duties to comply with statutory wage requirements, as more fully set forth above, Plainuiffs and Class members were damaged in an amount above the jurisdictional limits of this Court. 4]. Plaintiffs and Class members seek as damages all wages owed to individuals employed by CORPORATE DEFENDANTS. 42. Plaintiffs and Class members are entitled to, and therefore request. an award of pre- judgment interest on the unpaid wages set forth herein. 43. Plaintiffs have incurred. and will continue to incur attorneys” fees and costs in the prosecution of this action. Plaintiffs seeks attorneys’ fecs under all applicable provisions of law. Wherefore. Plaintiffs prays judgment as set forth herein below. Second Cause of Action (On Behalf of Plaintiffs and the Entire Class) Against All Defendants For Willful Violations of California Labor Code §§ 201, 202, 203, and 203.1 — Failure to Pay Wages Upon Discharge or Quitting, and issue payroll cheek with insufficient funds; Waiting Time Penalties 44. Plaintiffs repeats and realleges the preceding and subsequent paragraphs as though set forth herein. 12 First Amended Complaint For Damages45, California Labor Code §§ 201 and 202 require CORPORATE DEFENDANTS to pay their employees all wages due immediately upon discharge or 72 hours after an employee quits. California Labor Code § 203 provides that if an emptoyer willfully fails to imely pay such wages the employer must. as a penalty. continue lo pay the subject employees’ wages until the back wages are paid in full or an action is commenced. The penalty cannot exceed 30 days of wages. A worker need not prove malice or intentional conduct in establishing their claim for waiting time penalties, but merely establish the employer did not do something it was obligated to do. (See Mamika v. Barca (1998) 68 Cal. App. 4th 487: Barnhill v. Robert Saunders & Co. (1981) 125 Cal. App.3d 1.) 46. California Labor Code §§ 203.1 required an employer such as CORPORATE DEFENDANTS “pays an employee in the regular course of employment or in accordance with Section 201. 201.3. 201.5. 201.7. or 202 any wages or fringe benefits. or both. by check, draft or voucher. which check. draft or voucher is subsequently refused payment because the employer orf maker has no account with the bank, institution. or person on which the instrument is drawn. or has insutticient funds in the account upon which the instrument is drawn at the time of its presentation. so long as the same is presented within 30 days of receipt by the employce of the check, draft or voucher. those wages or fringe benefits. or both, shall continue as a penalty from the due date thereof at the same rate until paid or until an action therefor is commenced. However. those wages and fringe benefits shall not continue for more than 30 days and this penalty shall not apply if the cmployer can establish to the satisfaction of the Labor Commissioner or an appropriate court of law that the violation of this section was unintentional. This penalty also shall not apply in any case in which an employee recovers the service charge authorized by Section 1719 of the Civil Code in an action brought by the employee there under.” 13 First Amended Complaint For Damages~ ~ — —w 47. Plaintiff Schembari. Plaintiff Mineo, Plaintiff Nails and other persons in CSC's employment had several payroll pay checks that bounced from August 2007 to August 201 0. CSC payroll accounts that had insufficient funds to cover its employees pay cheeks. 48. Plaintiffs and Class members are entitled to unpaid compensation, but to date have not -cived such compensation. Defendants failed to pay Plaintiffs and Punitive Class members” earned commissions on or before the date of Plaintiffs’ resignation. Defendants failed to complete the necessary calculations and pay the commissions on the date of the termination in the case of a discharge or a voluntary quit with more than 72 hours prior notice. or w ithin 72 hours of the termination of the employment relationship in the case of a voluntary quit without such prior notice. Defendants issued pay checks to Plaintiffs and Class members that their banks subsequently refused payment because the Defendants had no account with the bank. institution, or had insufficient funds in the account upon which the instrument is drawn at the time of its INDANTS? willful conduct in not presentation. Asa consequence of CORPORATE DEI paying compensation for all hours worked. Plaintiffs and Class members are entitled to 30 days wages as penalty under Labor Code § 203. together with interest thereon and attorney s° fees and costs. Wherefore. Plaintiffs prays judgment as set forth herein below, Third Cause of Action On Behalf of Plaintiffs and the Entire Class Against All Defendants For Willful Violations of California Labor Code § 226.7 - Failure to Afford Mandatory Breaks or Meal Periods as Required by IWC Orders and Labor Code 49. Plaintiffs repeat and realleges the preceding and subsequent paragraphs as though set forth herein. 14 First Amended Complaint For Damages-_ a, ~ wt 50. Atall times relevant. Plaintiffs and the Class members were covered by the provisions of Industrial Wage Commission (*TWC”) Orders. including IWC Orders 1-2001. 51. The IWC Orders provide, in applicable part: 11.(A) No employer shall employ any person for a work period of more than five (5} hours without a meal period of not less than 30 minutes. except that when a work period of not more than six (6) hours will complete the day’s work the meal period may be waived by mutual consent of the employer and employee. In the case of employees covered by a valid collective bargaining agreement, the parties to the collective bargaining agreement may agree to a meal period that commences after no more than six (6) hours of work. 11, (B) An employer may not employ an employee for a work period of more than ten (10) hours per day without providing the employee with a second meal period of not less than 30 minutes. except that if the total hours worked is no more than 12 hours. the second meal period may be waived by mutual consent of the employer and the employee only if the first meal period was not waived. 11. (C) Unless the employee is relieved of all duty during a 30 minute meal period. the meal period shall be considered an “on duty” meal period and counted as time worked. An “on duty” meal period shall be permitted only when the nature of the work prevents an employee trom being relieved of all duty and when by written agreement between the parties an on-the- job paid meal period is agreed to. The written agrecment shail state that the employee may. in writing. revoke the agreement at any time. 11. (D) If an employer fails to provide an employee a meal period in accordance with the applicable provisions of this order, the employer shall pay the employee one (1) hour of pay at the employee's regular rate of compensation for each workday that the meal period is not provided. 12. (A) Every employer shall authorize and permit all employees to take rest periods. which insofar as practicable shall be in the middle of each work period, The authorized rest period time shal! be based on the total hours worked daily at the rate of ten (10) minutes net rest time per four (4) hours ur major fraction thereof. However. a rest period need not be authorized for employees whose total daily work time is less than three and one-half (3.4) hours. Authorized rest period time shall be counted as hours worked for which there shall be no deduction from wages. 12. (B) If'an employer fails to provide an employee a rest period in accordance with the applicable provisions of this order. the employer shall pay the employee one (1) hour of pay 1s First Amended Complaint For Damages() ‘ at the employee's regular rate of compensation for each workday that the rest period is not provided. 52. California Labor Code § 226.7 states: (a) No employer shall require any employee to work during any meal or rest period mandated) by an applicable order of the Industrial Welfare Commission. (b) If an employer fails to provide an employee a meal period or rest period in accordance with an applicable order of the Industrial Welfare Commission, the employer shall pay the employee one additional hour of pay at the employee's regular rate of compensation for each work day that the meal or rest period is not provided. 53. CORPORATE DEFENDANTS routinely failed to provide Plaintiffs and the Class members with a 30-minute unpaid meal period within the first five (5) hours of work in compliance with IWC Orders and Labor Code § 226.7. Defendants routinely failed to provide Plaintiffs and the Class members with a second 30-minute meal period within the second five (5) hours of work in compliance with [IWC Orders and Labor Code § 226.7. Asa result of Defendants’ failure, Plaintiffs and the Class members are entitled to recover an amount to be proved at trial. of not less than one additional hour of pay at the regular rate of compensation for each workday that the meal period was not provided, and any and all civil penalties provided by law, 54. CORPORATE DEFENDANTS routinely failed to provide Plaintiff's and the Class members with a 10-minute paid rest period for each four (4) hour period of work. in compliance with [WC Orders and Labor Code § 226.7. As a result of Defendants” failure. Plaintiffs and the Class members are entitled to recover an amount to be proved at trial, of not less than one additional hour of pay at the regular rate of compensation for each workday that the rest period was not provided, and any and all civil penalties provided by law. 16 First Amended Complaint For DamagesC) f 35. CORPORATE DEFENDANTS" policy and practice of denying Plaintiffs and the entire Class meal and rest periods constitutes a willful violation of California Labor Code § 226.7. Plaintiffs and the entire Class have sustained damages as a direct and proximate consequence of the Defendants’ willful and illegal conduct, to wit, they have been forced to work continuously throughout the day, every day. without being allowed to take meal and rest periods. 56. Plaintiffs have incurred. and will continue to incur attorney fees and costs in the prosecution of this action. Plaintiffs seeks attorneys’ fees under all applicable provisions of Jaw. Wherefore. Plaintiffs prays judgment as set forth herein below. Fourth Cause of Action (On Behalf of Plaintiffs and the Entire Class) Against All Defendants For Willful Violations of Labor Code § 226 — Failure to Maintain Pay Records 57, Plaintiffs repeats and realleges the preceding and subsequent paragraphs as though set forth herein. 58. CORPORATE DEFENDANTS knowingly and intentionally failed to maintain accurate pay records, in violation of California Labor Code § 226. 59. Asa direct result of CORPORATE DEFENDANTS” failure. Plaintiffs and Class members were injured and are entitled to recover an amount to be proved at trial. of not less than $750 for cach violation. 60. Plaintiffs and Class members are entitled to statutory penalties and attorneys’ fees pursuant to Labor Code § 226 and California Code of Civil Procedure § 1021.5. Wherefore. Plaintiffs prays judgment as set forth herein below. 7 First Amended Complaint For Damages- vot Fifth Cause of Action {On Behalf of Plaintiffs and the Entire Class) Against All Defendants For Violations of California Business and Professions Code Sections 17200, ct seq. Based Upon Defendants’ Unfair Business Acts and Practices 61, Plaintiffs repeats and realleges the preceding and subsequent paragraphs as though set forth herein. 62. Plaintiffs further brings this action pursuant to the Business and Professions Code Sections 17200, et sey.. seeking restitution for monies owed for regular and overtime wages, denial of meal and rest periods, and injunctive relief to enjoin CORPORATE DEFENDANTS” illegal practices. 63. The Unfair Competition Law prohibits all unfair competition, which is detined as "any unlawful, unfair or fraudulent business act or practice.” Plaintiffs and the class have standing lo bring this claim because they are direct victims of CORPORATE DEFENDANTS? illegal and unfair business practices. which Defendants engaged in for their sole financial benelit. 64. Defendants. and each of them, are “persons” as defined under Business and Professions Code § 17201. Each of the directors. officers, and/or agents of Defendants. and cach of them. are equally responsible for the acts of the other directors. officers. employees and/or agents as sel forth in the Business and Professions Code § 17095. 65. Plaintiffs and the Class members bring this action in the interest of themselves. as representatives, and in the interest of other employees of Defendants, and each of them. and in the interest of the public pursuant to § 17203 of the California Business and Professions Code. Plaintiffs and Class members bring this cause of action secking restitution for CORPORATE 18 First Amended Complaint For DamagesnN ) DEFENDANTS? failure to pay employees regular and overtime wages, and failure to provide meal and rest periods. as well as an injunction prohibiting Defendants from denying employees regular and overtime wages and meal and rest periods. now and in the future. 66. Plaintiffs and the Class members bring this action to pursue claims during a 4-year statute of limitations under § 17208 of the California Business and Professions Code. 67. The following practices of Defendants, and each of them. are unlawful and untair business practices under California Business and Professions Code $$ 17200 et seq.: (a) failure to pay all regular and overtime wages. in violation of the California Labor Code and all other applicable laws: (b) failure to provide rest breaks and meal periods pursuant to the California Labor Code and IWC wage orders: (c) failure to maintain accurate pay records; (d) unjust enrichment due to the failure to pay wages. including overtime wages. (e) Plaintiff Schembari. Plaintiff Mineo, Plaintiff Nails and other persons in CSC’s employment had several pay checks that bounced from August 2007 to August 2010. CSC payroll accounts that had insufficient funds to cover its employees pay checks. (f) Plaintitf Nails and other persons in CSC*s employment were mis-classificd as Independent Contractors. For approximately the first six (6) months of Plainitif? Nails employment CSC classified him as an independent contractor even though all of Plaintill Nails work schedule, assignments, and equipment to perform his duties were provided by csc. 19 First Amended Complaint For Damages68, At all times material to this action, CORPORATE DEFENDANTS’ conduct deseribed above is an unfair. unlawful. and/or fraudulent business practice in violation of California Business & Professions Code §§ 17200 et seq. 69. As alleged hereinabove. CORPORATE DEFENDANTS have inequitably and unlawfully conspired, agreed. arranged and combined to violate California labor laws, as alleged herein. 70. As set forth below. Plaintiffs and Class members are informed and believe and thereupon allege, that by failing to pay wages to all employees at Defendants” business. Defendants have engaged in business within the State of California in a manner that injured competitors. lead to misrepresentations to the public about the manner in which Defendants engaged in business. and/or destroyed competition in violation of Business and Professions Code § 17043. Upon information and belief. Plaintiffs and Class members allege that Defendants engaged in the acts and omissions heretofore alleged for the purpose of profiting from lower labor costs. and obtaining an unlawful or unfair advantage, all in a scheme to engage in unfair competition. at the expense of their employees and to the detriment of public policy for the lawful employment of employees. 71. Pursuant to Business and Professions Code $8 17071 and 17075. the failure of Defendants. and each of them. to pay all wages, including overtime wages. is admissible as evidence of Defendants’ intent to violate the California Unfair Practices Act. 72, Asa direct and proximate result of the unfair. unlawful. and/or fraudulent business practices alleged herein. Plaintiffs and the entire Class have been denied due wages. both regular 20 First Amended Complaint For Damages~ on — va and overtime, as well as meal and rest periods. all to their detriment and all to CORPORATE DEFENDANTS: illegal economic advantage. 73. Plaintiffs and the Class members are informed and believe and thereon allege that the Defendants. and each of them. by committing the above-described acts, have deceived the public by illegally depriving its employees regular and overtime wages. and meal and rest periods. thus injuring its employees. 74. Business and Professions Code provides that the Court may restore to an aggrieved party any money or property acquired by means of unlawful and unfair business practices, Plaintifi’s and Class members seek restitution of all unpaid wages owing to them and members of the general public. according to proof, that the Defendants have enjoyed as a result of the unfair business practices. 75. Business and Professions Code § 17202 states: “Notwithstanding Section 3369 of the Civil Code. specific or preventive relief may be granted to enforce a penalty. forfeiture, or penal law ina case of unfair competition.” 76. In addition to restoration of ali wages owed, Plaintiffs and Class members seek to enforce penalties in the interest of themselves. in the interest of other employees of Defendants. and each of them. and in the interest of the general public pursuant to § 17202: (a) waiting time penalties (Labor Code § 203); (b) extra hour of pay for not authorizing or permitting breaks and meal periods (Labor Code § 226.7); (c) failure to maintain accurate pay records (Labor Code § 226) 21 First Amended Complaint For Damages77. There is a financial burden incurred in pursuing this action which would be unjust to place on Plaintiffs and the Class members, because the burden of enforcing work force-wide rights is disproportionate to that of enforcing only individual claims. It would be against the interests of justice to force payment of attorneys” fees from Plaintiffs and Class members’ recovery in this action. Therefore. attorneys’ fees are appropriate and sought pursuant to all applicable laws. including but not limited to California Code of Civil Procedure § 1021.5. 78. Unless equitable relief is granted. members of the Class will continue to be subjected to Defendants’ illegal conduct. Pursuant to Business and Professions Code §§ 17203. Plaintiffs and the Class seek a permanent injunction enjoining Defendants” continuing violations of California’s Unfair Competition Law on the grounds that such acts described herein violate § 17200 of the Business and Professions Code and California’s public policy. Wherefore, prays judgment as set forth herein below. sixth Cause of Action ‘On Behalf of Plaintiffs and the Entire Class Against All Defendants For Unjust Enrichment 79, Plaintiffs repeats and realleges the preceding and subsequent paragraphs as though set forth herein. 80. By taking advantage of Plaintiffs’ and Class members, Defendants. and each of them. were unjustly enriched at Plaintiffs’ and Class members” expense. CORPORATE DEFENDANTS gained an advantage by denying Plaintiffs and Class members regular and overtime wages. and meal and resot periods. As a proximate result. Plaintiffs and Class 2»? First Amended Complaint For Damages~ on —— «wt members suffered damages. The interests of equity require that Defendants pay restitution and penalties for violating the [-abor Code and Business and Professions Code. Wherefore, Plaintiffs prays judgment as set forth herein below. Seyenth Cause of Action Against All Defendants For Declaratory Relief 81. Plaintiffs repeats and realleges the preceding and subsequent paragraphs as though set forth herein. 82. Plaintiffs and the Class seek a Declaration by this Court that Defendants” concerted violations alleged herein constitute unfair business practices. in violation of the Untair Competition Act. 83. Plaintiffs and the Class also seek a Declaration by this Court that Defendants” policy and practice of denying regular and overtime wages and meal and rest periods constitute a violation of California law, as alleged herein. In addition, Plaintiffs and Class members seek a Declaratior by this Court that Defendants’ policy and practice of tailing to maintain accurate pay records. and failing to provide employees with those records for inspection upon request constitutes a violation of California law. as alleged herein. PRAYER FOR RELIEF WHEREFORE, Plaintiffs prays for judgment against Defendants. and cach of them. as follows: 23 First Amended Complaint For Damages(a) Certifying this action to proceed as a class action pursuant to California Code of Civil Procedure section 382 and designating Plaintiffs as the representative of the Class and his counsel as counsel for the Class: (b) For damages for unpaid wages, including regular and overtime wages. and such general and special damages as may be appropriate. according to proof at ial: (c) For 30 days waiting time penalties under Labor Code § 203: (d) For statutory penalties under Labor Code § 210 and 558(a)(3): (e) For penalties under Labor Code § 226(1); (f) For damages calculated at one extra hour for each day no rest period was provided and at one extra hour for each day no meal period was provided (Labor Code § 226.7): (g) Declaring that the concerted violations alleged herein constitute untiir competition in violation of California's Unfair Competition Law. and violations of California's Labor Code: (hy Permanently enjoining Defendants from continuing to engage in the unlawtul concerted conduct described herein: (i) Equitable remedies, including but not limited to, an equitable accounting, as the court deems just and proper under the circumstances: @ Awarding Plaintiffs and the Class punitive or exemplary damages based on Defendants’ oppressive and despicable conduct; (k) Granting Plaintiffs and the Class the costs of prosecuting this action. together with] interest and reasonable attorneys’ and experts’ fees; and 24 First Amended Complaint For DamagesDated: Dated: Dated: Dated: dy Granting such other relief as this Court may deem just and proper under the circumstances. January 14,2011 January 14.2011 LADVA LAW FIRM By: VALE ‘ai Ladva, £ ttorney for Plaintif LAW OFFICES_OF DANIEL VEGA ts JURY DEMAND To the full extent available, Plaintiffs demands a trial by jury. January 14,2011 January 14.2011 LADVA LAW FIRM By: ttorney for Plaintiffs LAW OFFIC - DANIEL VEGA By: aniel Martinez Attorney for Plaintiffs Vega. Esq. 25 First Amended Complaint For Damages