Preview
/
1 PATRICIA A. SAVAGE, SBN 236235
SAVAGE, LAMB & LUNDE, PC
FILED/ENDORSED
2 1550 Humboldt Road, Suite 4
Chico, CA 95928 JAN 2 2020
3
Telephone: (530) 592-3861 M. Williams
Fax: (530)592-3865 By:
4 Deputy Clerk
5 Attomeys for Plaintiff,
JAY ROBINSON and
6 HUGO PINEDA, individually and on
7 behalf of all others similarly situated
8
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10
COUNTY OF SACRAMENTO
11
JAY ROBINSON and Case No. 34-2019-00262942
12 HUGO PINEDA, individually and on behalf of
all others similarly situated. CLASS ACTION
13
Plaintiffs, FIRST AMENDED COMPLAINT FOR
14
DAMAGES
15
1. Violation of the Private Attorney
16 ASOMEO ENVIRONMENTAL General Act
RESTORATION INDUSTRY, LLC, a 2. Failure to Pay Overtime
17 Califomia Corporation and 3. Failure to Pay Minimum Wages
PHILLIPS & JORDAN CO. a North Carolina 4. Failure to Provide Meal Periods or
18
Corporation and Premium Pay
19 DOES 1-10, 5. Failure to Provide Rest Periods or
Premium Pay
20 Defendants. 6. Failure to Pay Final Wages
7. Failure to Furnish Accurate Wage
21
Statements
22 8. Failure to Pay Reimbursement
Expenses
23 9. Violation of Labor Code Section 558
10. Failure to Keep Accurate Time
24 Records
25 11. Violation of Labor Code 970
12. Unfair Competition
26
27 DEMAND FOR JURY TRIAL
28
FIRST AMENDED COIVIPLAINT FOR DAMAGES
1 Plaintiffs JAY ROBINSON and HUGO PINEDA, individually and on behalf of all others
2 similarly situated, complains and allege as follows:
3 I. INTRODUCTION
4 1. This case arises out of unlawful wage payment and employment practices by the
5 Defendants. The Plaintiffs bring this action individually and on behalf of similarly situated persons who
6 on and after four (4) years prior to the filing of this action through the date of trial (Class Period), were
7 deprived of wages and not provided lawful meal and rest periods (Plaintiff Class Members).
8 2. As used herein, the term "Plaintiffs" refers to JAY ROBINSON AND HUGO PINEDA
9 who are the named Plaintiff Class representative; the term "Plaintiff Class" includes the Plaintiffs and all
10 Plaintiff Class Members; the term "Class Members" includes all Plaintiffs and Plaintiff Class Members.
11 3. The Plaintiffs seek compensation due the class Members during the "Class Period" which
12 is defined as four years prior to the filing of this action through the trial date, based upon information
13 and belief that the Defendants are continuing, and will continue, their unlawful practices as described
14 herein.
15 H. PARTIES AND JURISDICTION
16 4. Plaintiff JAY ROBINSON (hereinafter "ROBINSON") was at all relevant fimes herein, -
17 an employee ofthe Defendant ASOMEO ENVIRONMENTAL RESTORATION INDUSTRY LLC
18 (hereinafter "AERI") and is otherwise eligible to bring this action. Plaintiff ROBFNSON was employed
19 by the Defendant AERI to perform services as an hourly employee in approximately December of 2018,
20 and continuing thereafter through part of February, 2019. Plaintiff ROBINSON'S claims are common
21 to those of the Class Members.
22 5. Plaintiff HUGO PINEDA (hereinafter "PINEDA") was at all relevant times herein an
23 employee of the Defendant AERI and is otherwise eligible to bring this action. Plaintiff PINEDA was
24 employed by the Defendant AERI to perform services as an hourly employee commencing in about
25 December of 2018 and confinuing thereafter until the end of January, 2019. Plainfiff PFNEDA'S claims
26 are common to those of the Class Members.
27 6. Plainfiffs are informed and believe and thereon allege that Defendant ASOMEO
28 ENVIRONMENTAL RESTORATION INDUSTRY LLC ("AERI") is a Califomia Limited Liability
FIRST AMENDED COMPLAINT FOR DAMAGES
1 Corporation with its primary place ofbusiness in the County of Sutter, and was the employer of the
2 Plainfiff and the Members of Plaintiff Class during the Class Period.
3 7. Plaintiffs are informed and believe and thereon allege that Defendant PHILLIPS &
4 JORDAN INC. (hereinafter "PHILLIPS & JORDAN"), is a North Carolina Corporation who operates
5 their business and provides services in Califomia through their Regional Office located in Sacramento
6 County. Hereinafter, collectively, PHILLIPS & JORDAN and AERI will be referred to as
7 "Defendants."
8 8. Plaintiffs are informed and believe and thereon allege that, at all times relevant.
9 Defendant PHILLIPS & JORDAN was the "direct contractor," and at all times relevant. Defendant
10 AERI was the "subcontractor" and that both Defendants were contracted to perform restoration and
11 clean-up services in relation to the "Camp Fire" of November 8, 2018.
12 9. Plaintiffs are informed and believe and thereon allege that as the direct contractor.
13 Defendant PHILLIPS & JORDAN is liable for any wages owed to Plaintiff Class Members incurred by
14 subcontractor AERI, in AERI'S performance of labor in relation to the subject contract between
15 PHILLIPS & JORDAN and AERI.
16 10. Pursuant to Code of Civil Procedure §§ 395(a) and 395.5, venue and jurisdiction are
17 proper because the Defendant PHILLIPS & JORDAN transacts business in the County of Sacramento,
18 operates their Regional Office in the County of Sacramento and entered into a contract with Defendant
19 AERI in the County of Sacramento for the restoration and clean-up associated with the Camp Fire.
20 Furthermore, the non-payment of wages as alleged herein had a direct effect on employees of the
21 Defendants in the State of Califomia, and in particular, within the County of Sacramento. The monetary
22 claims of the Plainfiffs are within the jurisdicfion ofthis court.
23 11. Plaintiffs are informed and believe and thereon allege that the number of class Members
24 is over thirty (30), therefore the monetary claims of the Plaintiffs and Class Members exceed the
25 jurisdictional minimum of this Court.
26 12. Each of the Plaintiff Class Members are identifiable, similarly situated persons and were
27 employed by the Defendants during the Class Period in the State of California. Plaintiffs reserve the
28
FIRST AMENDED COMPLAINT FOR DAMAGES
1 right to seek additional amendment of this Complaint to add as named Plaintiffs, some or all of the
2 persons who are Members of the Plaintiff Class.
3 13. Defendants DOES 1 through 10, are owners, operators, managers, subsidiaries of or
4 owned entities of Defendants, and each of them, or persons otherwise responsible for paying the wages
5 and penalfies alleged herein, who were conducting business in the State of Califomia and employing
6 employees in the State of Califomia. Plaintiffs are ignorant of the true names, capacities, relationships
7 and extent of participation in the conduct herein alleged, of the Defendants sued herein as DOES 1
8 through 10, inclusive, and therefore sues these Defendants by such fictitious names.
9 14. At all times relevant, each and every Defendant was an agent and/or employee of each
10 and every other Defendant. In doing the things alleged in the causes of action stated herein, each and
11 every Defendant was acting within the course and scope of this agency or employment, and was acting
12 with the consent, permission, and authorization of each remaining Defendant. All actions of each
13 Defendant as alleged herein were ratified and approved by every other Defendant or their officers or
14 managing agents. Plaintiff will amend this complaint to allege the true names and capacities of the DOE
15 Defendants when ascertained.
16 III. EXHAUSTION OF ADMINISTRATIVE REMEDIES
17 15. Plaintiffs have sought permission pursuant to Labor Code § 2698 et seq. to pursue to the
18 claims set forth in this Complaint against Defendants as Private Attomey General on behalf of
19 themselves and Plaintiff class members. Pursuant to California Labor Code § 2699.3, Plaintiffs timely
20 filed their notice with the Labor Workforce and Development Agency ("LWDA") via online submission
21 on approximately March 28, 2019, and served notice of Defendants by Certified mail prior to filing this
22 action.
23 16. Plaintiffs have waited 65 days and have not received notice from the LWDA of its intent
24 to pursue Plaintiffs' claims. Plaintiffs have received authorization from the LWDA to pursue the claims
25 set forth in this Complaint against Defendants as Private Attomey Generals on behalf of themselves and
26 others similarly situated employees based on the LWDA'S failure to provide notice of its intent to
27 pursue these claims and based on Defendants' failure to cure.
28
FIRST AMENDED COMPLAINT FOR DAMAGES
1 IV. GENERAL ALLEGATIONS
2 17. During all, or a portion of the Class Period, the Plaintiffs and each Member of the
3 Plaintiff Class was employed by Defendants, and each of them, in the State of Califomia. During their
4 employment. Plaintiffs and Plaintiff Class Members were employees covered under one or more
5 regulations or Industrial Welfare Commission (IWC) Wage Orders, including but not limited to Wage
6 Order 16-2001.
7 V. CLASS ACTION ALLEGATIONS
8 18. Plaintiffs brings this action on behalf of themselves and all other similarly situated
9 persons, as a class action pursuant to Califomia Code of Civil Procedure §382. The Plaintiff Class is
10 composed of and defined as follows:
11 Plaintiff Class;
12 19. All persons who at any time within four (4) years prior to the filing of this action through
13 the date of trial in this lawsuit, who were employed by the Defendants in an hourly position.
14 20. Plaintiff reserves the right to establish additional subclasses as appropriate.
15 21. This action has been brought and may be maintained as a class action pursuant to Code of
16, Civil Procedure §382 because there is a well-defined community of interest in the litigation and the class
17 is readily ascertainable:
18 (a) Numerositv: The Members of the class are so numerous that joinder of all Members
19 would be unfeasible and impractical. The Membership of the entire class is unknown to Plaintiffs at this
20 time; however, the class is estimated to be greater than thirty (30) individuals and the identity of such
21 Membership is readily ascertainable by inspection of Defendants' employment records. While the exact
22 number of class Members is unknown to the Plaintiffs at this time, the Plaintiffs are informed and
23 believe there are over thirty (30) class Members.
24 (b) Typicality: Plaintiffs' claims are typical of the class Members and Plaintiffs share a
25 well-defined community of interest as demonstrated herein. Plaintiffs and all Class Members sustained
26 injuries and damages arising out of Defendants' common course of conduct in violation of the law as
27 alleged herein.
28
FIRST AMENDED COMPLAINT FOR DAMAGES
1 (c) Adequacy: Plaintiffs' are qualified to, and will, fairly and adequately, protect the
2 interests of each class Member with whom they share a well-defined community of interest and
3 typicality of claims. Plaintiffs' attomeys, the proposed class counsel, are well-versed in the mles
4 goveming class action discovery, certification, and settlement. Plaintiff and counsel have incurred, and
5 throughout the duration of this action will continue to incur costs and attomey's fees that have been, are,
6 and will be necessarily expended for the prosecution of this action for the substantial benefit for each
7 class Member.
8 (d) Superiority: A class action is superior to other available means of fair and efficient
9 adjudication of the claims of the class Members, since joinder of all Class Members is impractical.
10 Class action treatment will allow a large number of similarly situated persons to prosecute their common
11 claims in a single forum, simultaneously, efficiently, and without the unnecessary duplication of effort
12 and expense that numerous individual actions would cause to such Plaintiffs or to the court system.
13 Further, the damages of many individual Class Members may be relatively small, and the burden and
14 expenses of individual litigation would make it difficult or impossible for individual Members of the
15 class to seek and obtain relief, while a class action will serve an important public interest. Further,
16 individual litigation would present the potential for inconsistent or contradictory judgments.
17 (e) Commonality: Common questions of law and fact exist as to the Plainfiffs and Class
18 Members that predominate over any questions, which affect only individual Members of the class.
19 These common questions include, but are not limited to:
20 (1) Whether Defendants paid Plaintiffs and Class Members overtime wages
21 for all overtime hours worked during their employment with Defendants;
22 (2) Whether Defendants provided Plaintiffs and Class Members with a 30-
23 minute uninterrupted meal period within the first five hours of work, and/or whether Defendants
24 provided Plaintiffs and Class Members with a second 30-minute uninterrupted meal period on shift
25 longer than 10 hours, as required by Califomia law;
26 (3) Whether Defendants provided Plaintiffs and Class Members with a 10-
27 minute rest period for every four hours worked, as required by Califomia law;
28
FIRST AMENDED COMPLAINT FOR DAMAGES
1 (4) Whether Defendants provided Plaintiffs and Class Members with one hour
2 of premium wages when statutory meal periods were not provided, as required by Califomia law;
3 (5) Whether Defendants provided Plaintiffs and Class Members with one hour
4 of premium wages when statutory rest periods were not provided, as required by Califomia law;
5 (6) Whether Defendants provided Plaintiffs and Class Members all monies
6 owed upon the separation of their employment within the time period required by Califomia Law;
7 (7) Whether Defendants provided Plaintiffand Class Members reimbursement
8 for all necessary business-related expenses made during their employment with Defendants;
9 (8) The effect upon and the extent of any injuries sustained by the Plaintiffs
10 and Class Members and the appropriate type and/or measure of damages;
11 (9) The appropriateness and nature of relief to the Plaintiffs and Class
12 Members;
13 (10) The appropriate nature of class-wide equitable relief; and
14 (11) The extent of liability of each Defendant, including DOE Defendants, to
15 the Plaintiffs and each Class Member.
16 22. Plaintiff ROBINSON and PINEDA are unaware of any difficulties that are likely to be •
17 encountered in the management of this action that would preclude its maintenance as a class action.
18 VL VIOLATIONS ALLEGED
19 FIRST CAUSE OF ACTION
20 VIOLATION OF THE PRIVATE ATTORNEYS GENERAL ACT
21 (By Plaintiffs on behalf of the State of California and Aggrieved Employees against All
22 Defendants)
23 23. The allegations set forth in this Complaint are hereby realleged and incorporated by
24 reference.
25 24. Defendants' violation of California wage and hour laws enable Plaintiffs to recover civil
26 penalties as aggrieved employees and on behalf of all others similarly situated to class members.
27
28
FIRST AMENDED COMPLAINT FOR DAMAGES
1 25. Plaintiffs have alleged to the LWDA that Defendants have violated the following ^
2 provisions of the Califomia Labor Code in their dealings with Plaintiffs and other similarly situated
3 current and former employees:
4 • Violafion of Labor Code §§ 1194 and 510 (failure to pay overtime and minimum wages);
5 • Violation of Labor Code § 226.7 (failure to provide meal periods or premium wages in lieu
6 thereof);
7 • Violation of Labor Code § 226.7 (failure to provide rest breaks or premium wages in lieu
8 thereof);
9 • Violafion of Labor Code §§ 201-203 (failure to pay final wages);
10 • Violation of Labor Code §§ 226 and 226.3 (failure to provide accurate wage statements);
11 • Violation of Labor Code § 2802 (failure to pay reimbursement for business expenses);
12 • Violation of Labor Code § 558 (violations of the provision of any Industrial Welfare
13 Commission Order);
14 • Violation of Labor Code § 1174 (failure to keep accurate time records);
15 • Violation of Labor Code § 970 (fraudulent inducement)
16
26. Plaintiffs have complied with the procedural requirements specified in Labor code §
17
2699. As a result. Plaintiffs have exhausted all administrative procedures required of them under Labor
18
Code §§ 2698, 2699, and 2699.3, and are justified as a matter of right in bringing forward this cause of
19
action.
20
27. Plaintiffs seek civil penalties against Defendant pursuant to Labor Code § 2699(f)(2) to
21
the extent there is no enumerated penalty provision for the specific sections cited above.
22
28. Plaintiffs seek these civil penalties on behalf of themselves and all other former and
23
current aggrieved employees from Defendants pursuant to Labor Code §§ 2699(a) and 2699.3.
24
29. Pursuant to Labor Code §2699(i), PLAINTIFFS should be awarded twenty-five percent
25
(25%) of all penalties due under California law, interest, attorneys' fees and costs. The LWDA should be
26
awarded seventy-five percent (75%) of the penalties due and awarded.
27
Wherefore, Plaintiffs request relief as hereinafter prayed for.
28
FIRST AMENDED COMPLAINT FOR DAMAGES
I SECOND CAUSE OF ACTION
2 VIOLATION OF LABOR CODE §§ 1194 and 510
3 FAILURE TO PAY OVERTIME WAGES
4 (PlaintifTs against All Defendants)
5 30. The allegations set forth in this Complaint are hereby realleged and incorporated by
6 reference.
7 31. At all times relevant to this acfion. Industrial Welfare Commission Order No. 16-2001,
8 and Labor Code § 510 applied to Plaintiffs' and other similarly employees' employment by Defendants,
9 and provided that any work performed by an employee in excess of eight hours in a work day or forty
10 hours in a workweek be compensated at one-and-one-half times the employee's regular rate of pay.
11 32. Plaintiffs and Plaintiff class members routinely worked over eight hours in a day and over
12 forty hours in a workweek.
13 33. Defendants, and each of them, failed to lawfully compensate Plaintiffs and Plaintiff class
14 members for the hours worked in excess of eight hours in a day or forty hours in a workweek.
15 34. Plaintiffs and Plaintiff class members are entitled to recover their unpaid overtime wages
16 and all penalties arising therefrom. Additionally, Plaintiffs' are entitled to attomeys' fees, interest and •
17 costs pursuant to Labor Code § 1194.
18 Wherefore, Plaintiffs request relief as hereinafter prayed for.
19 THIRD CAUSE OF ACTION
20 VIOLATION OF LABOR CODE § 1194 and IWC Order No. 16-2001
21 FAILURE TO PAY MINIMUM WAGES
22 (Plaintiffs against All Defendants)
23 35. The allegations set forth in this Complaint are hereby realleged and incorporated by
24 reference.
25 36. At all times relevant to this action. Industrial Welfare Commission Order No. 16-2001
26 and Labor Code § 1194 applied to Plaintiffs' and Plaintiff class members' employment by Defendants
27 and required that California employees to receive the minimum wage for all hours worked at the rate of
28 $11.00 an hour in December 2018, and $12.00 an hour beginning January 1, 2019.
FIRST AMENDED COMPLAINT FOR DAMAGES
1 37. Defendants, and each of them, failed to pay minimum wages to Plaintiffs and Plaintiff
2 class members for all hours worked during their employment with Defendants. Defendants' acts were
3 intentional and in complete disregard for Plaintiffs' and Plaintiff class members' rights under California
4 law.
5 38. As a direct and proximate result of the acts or omissions of Defendants, Plaintiffs and
6 class members, have been deprived of minimum wages due in an amount to be determined at trial, and
7 therefore. Plaintiffs are entitled to liquidated damages pursuant to Labor Code §§ 1194 and 1194.2.
8 Wherefore, Plaintiffs request relief as hereinafter prayed for.
9 FOURTH CAUSE OF ACTION
10 VIOLATION OF LABOR CODE SECTIONS 512, 226.7 AND IWC WAGE ORDER 16-2001
11 FAILURE TO PROVIDE MEAL PERIODS OR PREMIUM PAY IN LIEU THEREOF
12 (Plaintiffs against All Defendants)
13 39. The allegations set forth in this Complaint are hereby realleged and incorporated by
14 reference.
15 40. At allfimesrelevant. Wage Order 16-2001, and Labor Code §§ 512 and 226.7 were in
16 full force and effect requiring employers in California to provide employees with a meal period of not -
17 less than thirty (30) minutes before their fifth hour of work for a work period of more than five hours. If
18 an employer fails to provide an employee a meal period in accordance with the Labor Code or the
19 goveming Wage Order, the employer shall pay the employee one (1) hour of pay at the employee's
20 regular rate of compensation for each work day that the meal period is not provided.
21 41. Defendants, and each of them, routinely failed to provide Plaintiffs and class members
22 with a thirty-minute meal period before their fifth hour of work. Defendants routinely required Plaintiffs
23 and Plainfiff class members to work through their lunch or required Plaintiffs and Plaintiff class
24 members to work without taking a lunch.
25 42. Defendants, and each of them, failed to pay Plaintiffs and Plaintiff class members one
26 hour of premium pay for the days that they were not provided an opportunity to take a thirty-minute
27 meal break before their fifth hour.
28 Wherefore, Plaintiffs request relief as hereinafter prayed for.
10
FIRST AMENDED COMPLAINT FOR DAMAGES
1 FIFTH CAUSE OF ACTION
2 VIOLATION OF LABOR CODE SECTION 226.7 AND IWC WAGE ORDER 16-2001
3 FAILURE TO PROVIDE REST PERIODS OR PREMIUM PAY IN LIEU THEREOF
4 (Plaintiffs against All Defendants)
5 43. The allegations set forth in this Complaint are hereby realleged and incorporated by
6 reference.
7 44. At all times relevant. Industrial Welfare Commission Order No 16-2001 and Labor Code
8 § 226.7 were in full force and effect requiring employers in Califomia to provide employees with a ten-
9 minute rest period for every four hours worked, or a major fraction thereof If an employer fails to
10 provide an employee a rest period in accordance, with California law or applicable Wage Order, the
11 employer shall pay the employee one (1) hour of pay the employee's regular rate of compensation for
12 each workday that a rest period is not provided.
13 45. Defendants, and each of them, routinely failed to provide Plaintiffs and Plaintiff class
I
14
members with a ten-minute rest period for every four hours worked. Defendants routinely required
15
Plaintiffs and Plaintiff class members to work through their rest breaks or required Plaintiffs and
16
Plaintiff class members to work without taking a rest break.
17
46. Defendants, and each of them, failed to pay Plaintiffs and Plaintiff class members one
18
hour of premium pay for the days that they were not provided a ten-minute rest period for every four
19
hours they worked.
20
Wherefore, Plaintiffs request relief as hereinafter prayed for.
21
SIXTH CAUSE OF ACTION
22
VIOLATION OF LABOR CODE §§ 201,202, AND 203
23
FAILURE TO PAY FINAL WAGES
24
(Plaintiffs against All Defendants)
25
47. The allegations set forth in this Complaint are hereby realleged and incorporated by
26
reference.
27
48. Califomia Labor Code § 201 requires an employer who discharges an employee to pay all
28
compensation due and owing to that employee immediately upon discharge.
11
FIRST AMENDED COMPLAINT FOR DAMAGES
1 49. Califomia Labor Code § 202 requires an employer to pay all compensation due and
2 owing to an employee who quits within 72 hours of that employee quitting, unless the employee
3 provides at least 72 hours-notice of quitting, in which case all compensation is due at the end of the
4 employee's fmal day of work.
5 50. Califomia Labor Code § 203 provides that if an employer willfully fails to pay
6 compensation promptly upon discharge, as required by § 201 or § 202, then the employer is liable for
7 waifing time penalties in the form on continue compensation of up to 30 work days.
8 51. Defendants, and each of them, willfully failed and refused to timely pay compensation
9 and wages, including overtime compensation that issue and owing to Plaintiffs and Plaintiff class
10 members upon their terminafion of employment with Defendants. As a result. Defendants, and each of
11 them, are liable to Plaintiffs and Plaintiff class members, for waiting time penalties, together with
12 interest thereon and reasonable attorney's fees and costs, under Califomia Labor Code § 203.
13 Wherefore, Plaintiffs request relief as hereinafter prayed for.
14
15 SEVENTH CAUSE OF ACTION
16 VIOLATION OF LABOR CODE 226
17 FAILURE TO FURNISH ACCURATE WAGE STATEMENTS
18 (Plaintiffs against All Defendants)
19 52. The allegations set forth in this Complaint are hereby realleged and incorporated by
20 reference.
21 53. Califomia Labor Code § 226(a) requires employers semi-monthly or at the time of each
22 payment of wages to fumish each employee with a statement itemizing, among other things, gross
23 wages earned, and all deducfions. Cal. Labor Code § 226(b) provides that if an employer knowingly and
24 intentionally fails to provide a statement itemizing, among other things, gross wages eamed and accurate
25 deducfions, then the employee is entitled to recover the greater of all actual damages or fifty dollars
26 ($50) for the initial violation and one hundred dollars ($100) for each subsequent violation, up to four
27 thousand dollars ($4000).
28
12
FIRST AMENDED COMPLAINT FOR DAMAGES
1 54. Defendants and each of them, knowingly and intentionally failed to furnish to Plainfiffs
2 and Plaintiff class member itemized wage statements depicting their actual gross wages in part due to
3 Defendants' failure to accurately record Plaintiffs' and Plaintiff class members' overtime and
4 Defendants' failure to record and pay premium wages for missed meal period.
5 55. Defendants, and each of them, are liable to Plaintiffs and Plaintiff class members for the
6 amounts provided by Cal. Labor Code § 226(e)(1) and for penalties and attorneys' fees.
7 Wherefore, Plaintiffs request relief as hereinafter prayed for.
8 EIGHTH CAUSE OF ACTION
9 VIOLATION OF LABOR CODE 2802
10 FAILURE TO PAY REIMBURSEMENT EXPENSES
11 (Plaintiffs against All Defendants)
12 56. The allegations set forth in this Complaint are hereby realleged and incorporated by
13 reference.
14 57. At all times relevant to this action. Labor Code § 2802 requires that an employer shall
15 indemnify his or her employee "for all necessary expenditures or losses incurred by the employee in
16 direct consequence ofthe discharge of his or her duties, or of his or her obedience to the directions of -
17 the employer."
18 58. At all times herein mentioned Defendants, and each of them, were the employers of
19 Plaintiffs and Plaintiff class members. During the course of their employment with Defendants,
20 Plaintiffs and Plaintiff class members were required to use their personal cell phones for work purposes,
21 they were required to pay for their travel expenses, they were required to pay for their training, and
22 Plaintiffs and others similarly situated employees were required to pay for their tools to perform services
23 for the benefit of the Defendants.
24 59. As an actual and proximate result of the aforementioned violation, Plaintiffs and Plaintiff
25 class members have been damaged in an amount according to proof, but in an amount in excess, of the
26 jurisdicfion of this Court. Plaintiffs and Plaintiff class members are entitled to the losses they incurred
27 for the benefit of the Defendants during their employment with Defendants.
28 Wherefore, Plaintiffs request relief as hereinafter prayed for.
13
FIRST AMENDED COMPLAINT FOR DAMAGES
1 NINTH CAUSE OF ACTION
2 VIOLATION OF LABOR CODE 558
3 CIVIL PENALTIES FOR VIOLATION OF CALIFORNIA LABOR CODE WAGE AND HOUR
4 PROVISIONS AND PROVISIONS OF INDUSTRIAL WELFARE COMMISSION
5 (Plaintiffs against All Defendants)
6 60. The allegations ofthis Complaint are hereby realleged and incorporated by reference.
7 61. Defendants, and each of them, have violated various provisions of the Labor Code and
8 IWC Wage Order 16-2001 as set forth above. In doing so. Defendants, and each of them are subjected to
9 civil penalties as follows: (1) For any initial violation, fifty dollars ($50) for each underpaid employee
10 for each pay period for which the employee was underpaid in addition to an amount sufficient to recover
11 underpaid wages; (2) For each subsequent violation, one hundred dollars ($100) for each underpaid
12 employee for each pay period for which the employee was underpaid in addition to an amount sufficient
13 to recover underpaid wages; (3) Wages recovered pursuant to this section shall be paid to the affected
14 employee.
15 Wherefore, Plaintiffs request relief as hereinafter prayed for.
16 TENTH CAUSE OF ACTION
17 VIOLATION OF LABOR CODE §§ 247 AND 247.5
18 FAILURE TO POST NOTICE OF SICK LEAVE AND FAILURE TO KEEP ACCURATE
19 RECORDS OF PAID SICK LEAVE
20 (Plaintiffs against All Defendants)
21 62. The allegations set forth in this Complaint are hereby realleged and incorporated by
22 reference.
23 63. Labor Code § 247 provides that an employer must display a poster in a conspicuous place
24 containing information including: (1) An employee is entitled to accrue, request, and use paid sick days;
25 (2) The amount of sick days provided for by this article; (3) The terms of use of paid sick days; (4) That
26 retaliafion or discrimination against an employee who requests paid sick days or uses paid sick days, or
27 both, is prohibited and that an employee has the right under this article to file a complaint with the Labor
28 Commissioner against an employer who retaliates or discriminates against the employee.
14
FIRST AMENDED COMPLAINT FOR DAMAGES
1 64. An employer who willfully violates the posting requirement of this section is subject to a
2 civil penalty of not more than one hundred dollars ($100) per each offense.
3 65. Defendants, and each of them, willfully failed the posting requirements of Labor Code §
4 247, and therefore, are subjected to civil penalties of $100 for each offense.
5 66. Labor Code § 247.5 provides that an employer shall keep for at least three years records
6 docimienfing the hours worked and paid sick days accrued and used by an employee. If an employer
7 does not maintain adequate records pursuant to this section, it shall be presumed that the employee is
8 entitled to the maximum number of hours accruable under this article, unless the employer can show
9 otherwise by clear and convincing evidence.
10 67. Defendants, and each of them, have failed to keep accurate records of all paid sick days
11 accmed by Plaintiffs and Plaintiff class members. As a result of Defendants conduct. Plaintiffs and
12 Plaintiff class members have suffered harm in an amount in excess of the jurisdictional minimum of this
13 Court.
14 Wherefore, Plaintiffs request relief as in hereinafter prayed for.
15 ELEVENTH CAUSE OF ACTION
16 VIOLATION OF LABOR CODE § 970
17 SOLICITATION OF EMPLOYEES BY MISREPRESENTATION
18 (Plaintiffs against All Defendants)
19 68. The allegations set forth in this Complaint are hereby realleged and incorporated by
20 reference.
21 69. Califomia Labor Code § 970 provides that no person, or agent or officer thereof, directly
22 or indirectly, shall influence, persuade, or engage any person to change from one place to another in this
23 State or from any place outside to any place within the State, of from any place within the State to
24 outside, for the purpose of working in any branch of labor, through or by means of knowingly false
25 representations, whether spoken, written, or advertised in printed form, conceming either (a) The kind,
26 character, or existence of such work; (b) The length of tinie such work will last, or the compensation
27 therefor; (c) The sanitary or housing conditions relating to or surrounding the work; (d) The existence or
28 nonexistence of any strike, lockout, or other labor dispute affecting it and pending between the proposed
15
FIRST AMENDED COMPLAINT FOR DAMAGES
1 employer and the persons then or last engaged in the performance of the labor for which the employee is
2 sought.
3 70. Defendants, and each of them, willfully made misrepresentations to the Plaintiffs and
4 Plaintiff class members regarding the kind, character, and existence of work, the length of time the work
5 will last, the compensations of the work, and the housing conditions relating to employment, including
6 but not limited to promises to provide and pay for certified training. Defendants further promised to pay
7 to Plaintiffs and those similarly situated per diem pay to cover food and lodging costs for their
8 relocation. Plaintiffs and Plaintiff class members reasonable relied on Defendants' misrepresentations to
9 their detriment.
10 71. As a direct and proximate result of Defendants' conduct. Plaintiffs and Plaintiff class
11 members have suffered harm in an amount in excess of the jurisdictional minimum of this Court.
12 72. The above described actions were perpetrated and/or ratified by a managing agent or
13 officer of Defendants. These acts were done with malice, fraud, oppression, and in reckless disregard of
14 Plaintiffs' rights and the rights of those similarly situated. Further, said actions were despicable in
15 character and warrant the imposition of punitive damages in a sum sufficient to punish and deter
16 Defendants' future conduct.
17 Wherefore, Plaintiffs request relief as hereinafter prayed for.
18 TWELFTH CAUSE OF ACTION
19 VIOLATION OF BUSINESS AND PROFESSIONS CODE § 17200, et seq.
20 UNFAIR COMPETITION ACT
21 (Plaintiffs against All Defendants)
22 73. The allegations set forth in this Complaint are hereby realleged and incorporated by
23 reference.
24 74. Defendants' conduct, as alleged herein, has been and continues to be unfair, unlawful,
25 and harmful to Plaintiffs and Plaintiff class members. Defendants' activities, as alleged herein, are
26 violations ofCalifornia law and constitute unlawful business acts and practices in violation of Califomia
27 Business and Professions Code §§ 17200 et seq.
28
16
FIRST AMENDED COMPLAINT FOR DAMAGES
1 75. A violation of Cal. Bus. Prof, code § 17200 may be predicated on the violafion of any
2 state or federal law. In this case. Defendants had a policy and practice of failing to pay Plaintiffs and
3 Plainfiff class members all overtime hours worked, for missed rest and meal periods, for reimbursement
4 pay, and their final wages, which violates several Califomia Labor Code Sections and Industrial
5 Commission Welfare Wage Order provisions.
6 76. Plaintiffs and Plaintiff class members have been personally injured by Defendants
7 unlawful and unfair business practices including but not limited to sufferingfinancialloss. Plaintiffs and
8 Plainfiff class members are entitled to restitution of the wages withheld and retained by Defendants
9 during the defined period.
10 77. Further, the Plaintiffs and Plaintiff class members request the violations of the
11 Defendants alleged herein be enjoined, and other equitable relief as this court deems proper.
12 Wherefore, Plaintiffs request relief as hereinafter prayed for.
13 V. PRAYER FOR RELIEF
14 WHEREFORE, Plaintiff(s) demand judgment against Defendants and any other Defendants who
15 may later be added as follows:
16 AS TO THE FIRST CAUSE OF ACTION
17 78. Penalties according to the following schedule: For any initial violation, one hundred
18 dollars ($100) for each aggrieved employee per pay period; For any subsequent violation, two hundred
19 dollars ($200) for each aggrieved employee per pay period; or otherwise enumerated for specific Labor
20 Code sections;
21 79. Reasonable Attomeys' Fees and costs pursuant to Labor Code Section 2699;
22 80. Wages as proved at trial;
23 81. For prejudgment interest on all amounts claimed;
24 82. Injunctive and Declaratory Relief;
25 83. For such other and further relief as this Court may deem just and proper;
26 AS TO THE REMAINING CAUSES OF ACTION
27 84. For an Order certifying this action as a class action;
28
17
FIRST AMENDED COMPLAINT FOR DAMAGES
1 85. Compensatory Damages, including general and special damages, including but not
2 limited to wages;
3 86. For liquidated damages in the amount equal to the unpaid minimum wage and interest
4 thereon, from at least four (4) years prior to the filing of this action, according to proof;
5 87. For double damages pursuant to Labor Code Section 972;
6 88. For Attorneys' Fees and costs pursuant to all applicable statutes or legal principles;
7 89. , For punitive damages;
8 90. For prejudgment interest on all amounts claimed;
9 91. For such other and further relief as the Court may deem just and proper.
10
11
12
13
14 Date: January^o?, 2020 & LUNDE
15
16 ^\TRTCfA A. SAVAGE, attorney for Plaintiffs
17 JAY ROBINSON and HUGO PINEDA,
and THE PUTATIVE CLASS
18
19
20
21
22
23
24
25
26
27
28
FIRST AMENDED COMPLAINT FOR DAMAGES
Proof of Service
I, Angela Hooper, am a citizen of the United States and employed in the County of Butte.
I am over the age of eighteen years and not a party to the within action. My business address is
1550 Humboldt Road, Suite 4, Chico, CA 95928. I am readily familiar with the pracfice of
collection and processing of correspondence/documents for mailing with the United States Postal
Service and that said correspondence/documents are deposited with the
United Stated Postal Service in the ordinary course ofbusiness on the same day.
On January 22, 2020,1 served the within:
FIRST AMENDED COMPLAINT FOR DAMAGES
On the parties below by placing a tme copy thereof in a sealed envelope and served same
on the parties/counsel, addressed as follows:
Christopher T. Benton Darwin A. Hindman, III
Lewis Brisbois Baker, Donelson, Bearman, Caldwell &
2020 West El Camino Avenue Berkowitz, PC
Suite 700 211 Commerce St.
Sacramento, CA 95833 Nashville, TN 37201
The following is a procedure in which service of this document was effected:
XXXX U.S. Postal Service (by placing for collection and deposit in the United
States mail a copy of said document at Chico, CA).
Ovemight delivery (Federal Express or UPS)
Personal Service
Facsimile
I declare under penalty of perjury that the foregoing is tme and correct under the laws of
the State of California and that this declaration was executed q^^anuary 22,2020, at Chico,
Califomia.
Angel **fboper
Preview
/ 1 PATRICIA A. SAVAGE, SBN 236235 SAVAGE, LAMB & LUNDE, PC FILED/ENDORSED 2 1550 Humboldt Road, Suite 4 Chico, CA 95928 JAN 2 2020 3 Telephone: (530) 592-3861 M. Williams Fax: (530)592-3865 By: 4 Deputy Clerk 5 Attomeys for Plaintiff, JAY ROBINSON and 6 HUGO PINEDA, individually and on 7 behalf of all others similarly situated 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF SACRAMENTO 11 JAY ROBINSON and Case No. 34-2019-00262942 12 HUGO PINEDA, individually and on behalf of all others similarly situated. CLASS ACTION 13 Plaintiffs, FIRST AMENDED COMPLAINT FOR 14 DAMAGES 15 1. Violation of the Private Attorney 16 ASOMEO ENVIRONMENTAL General Act RESTORATION INDUSTRY, LLC, a 2. Failure to Pay Overtime 17 Califomia Corporation and 3. Failure to Pay Minimum Wages PHILLIPS & JORDAN CO. a North Carolina 4. Failure to Provide Meal Periods or 18 Corporation and Premium Pay 19 DOES 1-10, 5. Failure to Provide Rest Periods or Premium Pay 20 Defendants. 6. Failure to Pay Final Wages 7. Failure to Furnish Accurate Wage 21 Statements 22 8. Failure to Pay Reimbursement Expenses 23 9. Violation of Labor Code Section 558 10. Failure to Keep Accurate Time 24 Records 25 11. Violation of Labor Code 970 12. Unfair Competition 26 27 DEMAND FOR JURY TRIAL 28 FIRST AMENDED COIVIPLAINT FOR DAMAGES 1 Plaintiffs JAY ROBINSON and HUGO PINEDA, individually and on behalf of all others 2 similarly situated, complains and allege as follows: 3 I. INTRODUCTION 4 1. This case arises out of unlawful wage payment and employment practices by the 5 Defendants. The Plaintiffs bring this action individually and on behalf of similarly situated persons who 6 on and after four (4) years prior to the filing of this action through the date of trial (Class Period), were 7 deprived of wages and not provided lawful meal and rest periods (Plaintiff Class Members). 8 2. As used herein, the term "Plaintiffs" refers to JAY ROBINSON AND HUGO PINEDA 9 who are the named Plaintiff Class representative; the term "Plaintiff Class" includes the Plaintiffs and all 10 Plaintiff Class Members; the term "Class Members" includes all Plaintiffs and Plaintiff Class Members. 11 3. The Plaintiffs seek compensation due the class Members during the "Class Period" which 12 is defined as four years prior to the filing of this action through the trial date, based upon information 13 and belief that the Defendants are continuing, and will continue, their unlawful practices as described 14 herein. 15 H. PARTIES AND JURISDICTION 16 4. Plaintiff JAY ROBINSON (hereinafter "ROBINSON") was at all relevant fimes herein, - 17 an employee ofthe Defendant ASOMEO ENVIRONMENTAL RESTORATION INDUSTRY LLC 18 (hereinafter "AERI") and is otherwise eligible to bring this action. Plaintiff ROBFNSON was employed 19 by the Defendant AERI to perform services as an hourly employee in approximately December of 2018, 20 and continuing thereafter through part of February, 2019. Plaintiff ROBINSON'S claims are common 21 to those of the Class Members. 22 5. Plaintiff HUGO PINEDA (hereinafter "PINEDA") was at all relevant times herein an 23 employee of the Defendant AERI and is otherwise eligible to bring this action. Plaintiff PINEDA was 24 employed by the Defendant AERI to perform services as an hourly employee commencing in about 25 December of 2018 and confinuing thereafter until the end of January, 2019. Plainfiff PFNEDA'S claims 26 are common to those of the Class Members. 27 6. Plainfiffs are informed and believe and thereon allege that Defendant ASOMEO 28 ENVIRONMENTAL RESTORATION INDUSTRY LLC ("AERI") is a Califomia Limited Liability FIRST AMENDED COMPLAINT FOR DAMAGES 1 Corporation with its primary place ofbusiness in the County of Sutter, and was the employer of the 2 Plainfiff and the Members of Plaintiff Class during the Class Period. 3 7. Plaintiffs are informed and believe and thereon allege that Defendant PHILLIPS & 4 JORDAN INC. (hereinafter "PHILLIPS & JORDAN"), is a North Carolina Corporation who operates 5 their business and provides services in Califomia through their Regional Office located in Sacramento 6 County. Hereinafter, collectively, PHILLIPS & JORDAN and AERI will be referred to as 7 "Defendants." 8 8. Plaintiffs are informed and believe and thereon allege that, at all times relevant. 9 Defendant PHILLIPS & JORDAN was the "direct contractor," and at all times relevant. Defendant 10 AERI was the "subcontractor" and that both Defendants were contracted to perform restoration and 11 clean-up services in relation to the "Camp Fire" of November 8, 2018. 12 9. Plaintiffs are informed and believe and thereon allege that as the direct contractor. 13 Defendant PHILLIPS & JORDAN is liable for any wages owed to Plaintiff Class Members incurred by 14 subcontractor AERI, in AERI'S performance of labor in relation to the subject contract between 15 PHILLIPS & JORDAN and AERI. 16 10. Pursuant to Code of Civil Procedure §§ 395(a) and 395.5, venue and jurisdiction are 17 proper because the Defendant PHILLIPS & JORDAN transacts business in the County of Sacramento, 18 operates their Regional Office in the County of Sacramento and entered into a contract with Defendant 19 AERI in the County of Sacramento for the restoration and clean-up associated with the Camp Fire. 20 Furthermore, the non-payment of wages as alleged herein had a direct effect on employees of the 21 Defendants in the State of Califomia, and in particular, within the County of Sacramento. The monetary 22 claims of the Plainfiffs are within the jurisdicfion ofthis court. 23 11. Plaintiffs are informed and believe and thereon allege that the number of class Members 24 is over thirty (30), therefore the monetary claims of the Plaintiffs and Class Members exceed the 25 jurisdictional minimum of this Court. 26 12. Each of the Plaintiff Class Members are identifiable, similarly situated persons and were 27 employed by the Defendants during the Class Period in the State of California. Plaintiffs reserve the 28 FIRST AMENDED COMPLAINT FOR DAMAGES 1 right to seek additional amendment of this Complaint to add as named Plaintiffs, some or all of the 2 persons who are Members of the Plaintiff Class. 3 13. Defendants DOES 1 through 10, are owners, operators, managers, subsidiaries of or 4 owned entities of Defendants, and each of them, or persons otherwise responsible for paying the wages 5 and penalfies alleged herein, who were conducting business in the State of Califomia and employing 6 employees in the State of Califomia. Plaintiffs are ignorant of the true names, capacities, relationships 7 and extent of participation in the conduct herein alleged, of the Defendants sued herein as DOES 1 8 through 10, inclusive, and therefore sues these Defendants by such fictitious names. 9 14. At all times relevant, each and every Defendant was an agent and/or employee of each 10 and every other Defendant. In doing the things alleged in the causes of action stated herein, each and 11 every Defendant was acting within the course and scope of this agency or employment, and was acting 12 with the consent, permission, and authorization of each remaining Defendant. All actions of each 13 Defendant as alleged herein were ratified and approved by every other Defendant or their officers or 14 managing agents. Plaintiff will amend this complaint to allege the true names and capacities of the DOE 15 Defendants when ascertained. 16 III. EXHAUSTION OF ADMINISTRATIVE REMEDIES 17 15. Plaintiffs have sought permission pursuant to Labor Code § 2698 et seq. to pursue to the 18 claims set forth in this Complaint against Defendants as Private Attomey General on behalf of 19 themselves and Plaintiff class members. Pursuant to California Labor Code § 2699.3, Plaintiffs timely 20 filed their notice with the Labor Workforce and Development Agency ("LWDA") via online submission 21 on approximately March 28, 2019, and served notice of Defendants by Certified mail prior to filing this 22 action. 23 16. Plaintiffs have waited 65 days and have not received notice from the LWDA of its intent 24 to pursue Plaintiffs' claims. Plaintiffs have received authorization from the LWDA to pursue the claims 25 set forth in this Complaint against Defendants as Private Attomey Generals on behalf of themselves and 26 others similarly situated employees based on the LWDA'S failure to provide notice of its intent to 27 pursue these claims and based on Defendants' failure to cure. 28 FIRST AMENDED COMPLAINT FOR DAMAGES 1 IV. GENERAL ALLEGATIONS 2 17. During all, or a portion of the Class Period, the Plaintiffs and each Member of the 3 Plaintiff Class was employed by Defendants, and each of them, in the State of Califomia. During their 4 employment. Plaintiffs and Plaintiff Class Members were employees covered under one or more 5 regulations or Industrial Welfare Commission (IWC) Wage Orders, including but not limited to Wage 6 Order 16-2001. 7 V. CLASS ACTION ALLEGATIONS 8 18. Plaintiffs brings this action on behalf of themselves and all other similarly situated 9 persons, as a class action pursuant to Califomia Code of Civil Procedure §382. The Plaintiff Class is 10 composed of and defined as follows: 11 Plaintiff Class; 12 19. All persons who at any time within four (4) years prior to the filing of this action through 13 the date of trial in this lawsuit, who were employed by the Defendants in an hourly position. 14 20. Plaintiff reserves the right to establish additional subclasses as appropriate. 15 21. This action has been brought and may be maintained as a class action pursuant to Code of 16, Civil Procedure §382 because there is a well-defined community of interest in the litigation and the class 17 is readily ascertainable: 18 (a) Numerositv: The Members of the class are so numerous that joinder of all Members 19 would be unfeasible and impractical. The Membership of the entire class is unknown to Plaintiffs at this 20 time; however, the class is estimated to be greater than thirty (30) individuals and the identity of such 21 Membership is readily ascertainable by inspection of Defendants' employment records. While the exact 22 number of class Members is unknown to the Plaintiffs at this time, the Plaintiffs are informed and 23 believe there are over thirty (30) class Members. 24 (b) Typicality: Plaintiffs' claims are typical of the class Members and Plaintiffs share a 25 well-defined community of interest as demonstrated herein. Plaintiffs and all Class Members sustained 26 injuries and damages arising out of Defendants' common course of conduct in violation of the law as 27 alleged herein. 28 FIRST AMENDED COMPLAINT FOR DAMAGES 1 (c) Adequacy: Plaintiffs' are qualified to, and will, fairly and adequately, protect the 2 interests of each class Member with whom they share a well-defined community of interest and 3 typicality of claims. Plaintiffs' attomeys, the proposed class counsel, are well-versed in the mles 4 goveming class action discovery, certification, and settlement. Plaintiff and counsel have incurred, and 5 throughout the duration of this action will continue to incur costs and attomey's fees that have been, are, 6 and will be necessarily expended for the prosecution of this action for the substantial benefit for each 7 class Member. 8 (d) Superiority: A class action is superior to other available means of fair and efficient 9 adjudication of the claims of the class Members, since joinder of all Class Members is impractical. 10 Class action treatment will allow a large number of similarly situated persons to prosecute their common 11 claims in a single forum, simultaneously, efficiently, and without the unnecessary duplication of effort 12 and expense that numerous individual actions would cause to such Plaintiffs or to the court system. 13 Further, the damages of many individual Class Members may be relatively small, and the burden and 14 expenses of individual litigation would make it difficult or impossible for individual Members of the 15 class to seek and obtain relief, while a class action will serve an important public interest. Further, 16 individual litigation would present the potential for inconsistent or contradictory judgments. 17 (e) Commonality: Common questions of law and fact exist as to the Plainfiffs and Class 18 Members that predominate over any questions, which affect only individual Members of the class. 19 These common questions include, but are not limited to: 20 (1) Whether Defendants paid Plaintiffs and Class Members overtime wages 21 for all overtime hours worked during their employment with Defendants; 22 (2) Whether Defendants provided Plaintiffs and Class Members with a 30- 23 minute uninterrupted meal period within the first five hours of work, and/or whether Defendants 24 provided Plaintiffs and Class Members with a second 30-minute uninterrupted meal period on shift 25 longer than 10 hours, as required by Califomia law; 26 (3) Whether Defendants provided Plaintiffs and Class Members with a 10- 27 minute rest period for every four hours worked, as required by Califomia law; 28 FIRST AMENDED COMPLAINT FOR DAMAGES 1 (4) Whether Defendants provided Plaintiffs and Class Members with one hour 2 of premium wages when statutory meal periods were not provided, as required by Califomia law; 3 (5) Whether Defendants provided Plaintiffs and Class Members with one hour 4 of premium wages when statutory rest periods were not provided, as required by Califomia law; 5 (6) Whether Defendants provided Plaintiffs and Class Members all monies 6 owed upon the separation of their employment within the time period required by Califomia Law; 7 (7) Whether Defendants provided Plaintiffand Class Members reimbursement 8 for all necessary business-related expenses made during their employment with Defendants; 9 (8) The effect upon and the extent of any injuries sustained by the Plaintiffs 10 and Class Members and the appropriate type and/or measure of damages; 11 (9) The appropriateness and nature of relief to the Plaintiffs and Class 12 Members; 13 (10) The appropriate nature of class-wide equitable relief; and 14 (11) The extent of liability of each Defendant, including DOE Defendants, to 15 the Plaintiffs and each Class Member. 16 22. Plaintiff ROBINSON and PINEDA are unaware of any difficulties that are likely to be • 17 encountered in the management of this action that would preclude its maintenance as a class action. 18 VL VIOLATIONS ALLEGED 19 FIRST CAUSE OF ACTION 20 VIOLATION OF THE PRIVATE ATTORNEYS GENERAL ACT 21 (By Plaintiffs on behalf of the State of California and Aggrieved Employees against All 22 Defendants) 23 23. The allegations set forth in this Complaint are hereby realleged and incorporated by 24 reference. 25 24. Defendants' violation of California wage and hour laws enable Plaintiffs to recover civil 26 penalties as aggrieved employees and on behalf of all others similarly situated to class members. 27 28 FIRST AMENDED COMPLAINT FOR DAMAGES 1 25. Plaintiffs have alleged to the LWDA that Defendants have violated the following ^ 2 provisions of the Califomia Labor Code in their dealings with Plaintiffs and other similarly situated 3 current and former employees: 4 • Violafion of Labor Code §§ 1194 and 510 (failure to pay overtime and minimum wages); 5 • Violation of Labor Code § 226.7 (failure to provide meal periods or premium wages in lieu 6 thereof); 7 • Violation of Labor Code § 226.7 (failure to provide rest breaks or premium wages in lieu 8 thereof); 9 • Violafion of Labor Code §§ 201-203 (failure to pay final wages); 10 • Violation of Labor Code §§ 226 and 226.3 (failure to provide accurate wage statements); 11 • Violation of Labor Code § 2802 (failure to pay reimbursement for business expenses); 12 • Violation of Labor Code § 558 (violations of the provision of any Industrial Welfare 13 Commission Order); 14 • Violation of Labor Code § 1174 (failure to keep accurate time records); 15 • Violation of Labor Code § 970 (fraudulent inducement) 16 26. Plaintiffs have complied with the procedural requirements specified in Labor code § 17 2699. As a result. Plaintiffs have exhausted all administrative procedures required of them under Labor 18 Code §§ 2698, 2699, and 2699.3, and are justified as a matter of right in bringing forward this cause of 19 action. 20 27. Plaintiffs seek civil penalties against Defendant pursuant to Labor Code § 2699(f)(2) to 21 the extent there is no enumerated penalty provision for the specific sections cited above. 22 28. Plaintiffs seek these civil penalties on behalf of themselves and all other former and 23 current aggrieved employees from Defendants pursuant to Labor Code §§ 2699(a) and 2699.3. 24 29. Pursuant to Labor Code §2699(i), PLAINTIFFS should be awarded twenty-five percent 25 (25%) of all penalties due under California law, interest, attorneys' fees and costs. The LWDA should be 26 awarded seventy-five percent (75%) of the penalties due and awarded. 27 Wherefore, Plaintiffs request relief as hereinafter prayed for. 28 FIRST AMENDED COMPLAINT FOR DAMAGES I SECOND CAUSE OF ACTION 2 VIOLATION OF LABOR CODE §§ 1194 and 510 3 FAILURE TO PAY OVERTIME WAGES 4 (PlaintifTs against All Defendants) 5 30. The allegations set forth in this Complaint are hereby realleged and incorporated by 6 reference. 7 31. At all times relevant to this acfion. Industrial Welfare Commission Order No. 16-2001, 8 and Labor Code § 510 applied to Plaintiffs' and other similarly employees' employment by Defendants, 9 and provided that any work performed by an employee in excess of eight hours in a work day or forty 10 hours in a workweek be compensated at one-and-one-half times the employee's regular rate of pay. 11 32. Plaintiffs and Plaintiff class members routinely worked over eight hours in a day and over 12 forty hours in a workweek. 13 33. Defendants, and each of them, failed to lawfully compensate Plaintiffs and Plaintiff class 14 members for the hours worked in excess of eight hours in a day or forty hours in a workweek. 15 34. Plaintiffs and Plaintiff class members are entitled to recover their unpaid overtime wages 16 and all penalties arising therefrom. Additionally, Plaintiffs' are entitled to attomeys' fees, interest and • 17 costs pursuant to Labor Code § 1194. 18 Wherefore, Plaintiffs request relief as hereinafter prayed for. 19 THIRD CAUSE OF ACTION 20 VIOLATION OF LABOR CODE § 1194 and IWC Order No. 16-2001 21 FAILURE TO PAY MINIMUM WAGES 22 (Plaintiffs against All Defendants) 23 35. The allegations set forth in this Complaint are hereby realleged and incorporated by 24 reference. 25 36. At all times relevant to this action. Industrial Welfare Commission Order No. 16-2001 26 and Labor Code § 1194 applied to Plaintiffs' and Plaintiff class members' employment by Defendants 27 and required that California employees to receive the minimum wage for all hours worked at the rate of 28 $11.00 an hour in December 2018, and $12.00 an hour beginning January 1, 2019. FIRST AMENDED COMPLAINT FOR DAMAGES 1 37. Defendants, and each of them, failed to pay minimum wages to Plaintiffs and Plaintiff 2 class members for all hours worked during their employment with Defendants. Defendants' acts were 3 intentional and in complete disregard for Plaintiffs' and Plaintiff class members' rights under California 4 law. 5 38. As a direct and proximate result of the acts or omissions of Defendants, Plaintiffs and 6 class members, have been deprived of minimum wages due in an amount to be determined at trial, and 7 therefore. Plaintiffs are entitled to liquidated damages pursuant to Labor Code §§ 1194 and 1194.2. 8 Wherefore, Plaintiffs request relief as hereinafter prayed for. 9 FOURTH CAUSE OF ACTION 10 VIOLATION OF LABOR CODE SECTIONS 512, 226.7 AND IWC WAGE ORDER 16-2001 11 FAILURE TO PROVIDE MEAL PERIODS OR PREMIUM PAY IN LIEU THEREOF 12 (Plaintiffs against All Defendants) 13 39. The allegations set forth in this Complaint are hereby realleged and incorporated by 14 reference. 15 40. At allfimesrelevant. Wage Order 16-2001, and Labor Code §§ 512 and 226.7 were in 16 full force and effect requiring employers in California to provide employees with a meal period of not - 17 less than thirty (30) minutes before their fifth hour of work for a work period of more than five hours. If 18 an employer fails to provide an employee a meal period in accordance with the Labor Code or the 19 goveming Wage Order, the employer shall pay the employee one (1) hour of pay at the employee's 20 regular rate of compensation for each work day that the meal period is not provided. 21 41. Defendants, and each of them, routinely failed to provide Plaintiffs and class members 22 with a thirty-minute meal period before their fifth hour of work. Defendants routinely required Plaintiffs 23 and Plainfiff class members to work through their lunch or required Plaintiffs and Plaintiff class 24 members to work without taking a lunch. 25 42. Defendants, and each of them, failed to pay Plaintiffs and Plaintiff class members one 26 hour of premium pay for the days that they were not provided an opportunity to take a thirty-minute 27 meal break before their fifth hour. 28 Wherefore, Plaintiffs request relief as hereinafter prayed for. 10 FIRST AMENDED COMPLAINT FOR DAMAGES 1 FIFTH CAUSE OF ACTION 2 VIOLATION OF LABOR CODE SECTION 226.7 AND IWC WAGE ORDER 16-2001 3 FAILURE TO PROVIDE REST PERIODS OR PREMIUM PAY IN LIEU THEREOF 4 (Plaintiffs against All Defendants) 5 43. The allegations set forth in this Complaint are hereby realleged and incorporated by 6 reference. 7 44. At all times relevant. Industrial Welfare Commission Order No 16-2001 and Labor Code 8 § 226.7 were in full force and effect requiring employers in Califomia to provide employees with a ten- 9 minute rest period for every four hours worked, or a major fraction thereof If an employer fails to 10 provide an employee a rest period in accordance, with California law or applicable Wage Order, the 11 employer shall pay the employee one (1) hour of pay the employee's regular rate of compensation for 12 each workday that a rest period is not provided. 13 45. Defendants, and each of them, routinely failed to provide Plaintiffs and Plaintiff class I 14 members with a ten-minute rest period for every four hours worked. Defendants routinely required 15 Plaintiffs and Plaintiff class members to work through their rest breaks or required Plaintiffs and 16 Plaintiff class members to work without taking a rest break. 17 46. Defendants, and each of them, failed to pay Plaintiffs and Plaintiff class members one 18 hour of premium pay for the days that they were not provided a ten-minute rest period for every four 19 hours they worked. 20 Wherefore, Plaintiffs request relief as hereinafter prayed for. 21 SIXTH CAUSE OF ACTION 22 VIOLATION OF LABOR CODE §§ 201,202, AND 203 23 FAILURE TO PAY FINAL WAGES 24 (Plaintiffs against All Defendants) 25 47. The allegations set forth in this Complaint are hereby realleged and incorporated by 26 reference. 27 48. Califomia Labor Code § 201 requires an employer who discharges an employee to pay all 28 compensation due and owing to that employee immediately upon discharge. 11 FIRST AMENDED COMPLAINT FOR DAMAGES 1 49. Califomia Labor Code § 202 requires an employer to pay all compensation due and 2 owing to an employee who quits within 72 hours of that employee quitting, unless the employee 3 provides at least 72 hours-notice of quitting, in which case all compensation is due at the end of the 4 employee's fmal day of work. 5 50. Califomia Labor Code § 203 provides that if an employer willfully fails to pay 6 compensation promptly upon discharge, as required by § 201 or § 202, then the employer is liable for 7 waifing time penalties in the form on continue compensation of up to 30 work days. 8 51. Defendants, and each of them, willfully failed and refused to timely pay compensation 9 and wages, including overtime compensation that issue and owing to Plaintiffs and Plaintiff class 10 members upon their terminafion of employment with Defendants. As a result. Defendants, and each of 11 them, are liable to Plaintiffs and Plaintiff class members, for waiting time penalties, together with 12 interest thereon and reasonable attorney's fees and costs, under Califomia Labor Code § 203. 13 Wherefore, Plaintiffs request relief as hereinafter prayed for. 14 15 SEVENTH CAUSE OF ACTION 16 VIOLATION OF LABOR CODE 226 17 FAILURE TO FURNISH ACCURATE WAGE STATEMENTS 18 (Plaintiffs against All Defendants) 19 52. The allegations set forth in this Complaint are hereby realleged and incorporated by 20 reference. 21 53. Califomia Labor Code § 226(a) requires employers semi-monthly or at the time of each 22 payment of wages to fumish each employee with a statement itemizing, among other things, gross 23 wages earned, and all deducfions. Cal. Labor Code § 226(b) provides that if an employer knowingly and 24 intentionally fails to provide a statement itemizing, among other things, gross wages eamed and accurate 25 deducfions, then the employee is entitled to recover the greater of all actual damages or fifty dollars 26 ($50) for the initial violation and one hundred dollars ($100) for each subsequent violation, up to four 27 thousand dollars ($4000). 28 12 FIRST AMENDED COMPLAINT FOR DAMAGES 1 54. Defendants and each of them, knowingly and intentionally failed to furnish to Plainfiffs 2 and Plaintiff class member itemized wage statements depicting their actual gross wages in part due to 3 Defendants' failure to accurately record Plaintiffs' and Plaintiff class members' overtime and 4 Defendants' failure to record and pay premium wages for missed meal period. 5 55. Defendants, and each of them, are liable to Plaintiffs and Plaintiff class members for the 6 amounts provided by Cal. Labor Code § 226(e)(1) and for penalties and attorneys' fees. 7 Wherefore, Plaintiffs request relief as hereinafter prayed for. 8 EIGHTH CAUSE OF ACTION 9 VIOLATION OF LABOR CODE 2802 10 FAILURE TO PAY REIMBURSEMENT EXPENSES 11 (Plaintiffs against All Defendants) 12 56. The allegations set forth in this Complaint are hereby realleged and incorporated by 13 reference. 14 57. At all times relevant to this action. Labor Code § 2802 requires that an employer shall 15 indemnify his or her employee "for all necessary expenditures or losses incurred by the employee in 16 direct consequence ofthe discharge of his or her duties, or of his or her obedience to the directions of - 17 the employer." 18 58. At all times herein mentioned Defendants, and each of them, were the employers of 19 Plaintiffs and Plaintiff class members. During the course of their employment with Defendants, 20 Plaintiffs and Plaintiff class members were required to use their personal cell phones for work purposes, 21 they were required to pay for their travel expenses, they were required to pay for their training, and 22 Plaintiffs and others similarly situated employees were required to pay for their tools to perform services 23 for the benefit of the Defendants. 24 59. As an actual and proximate result of the aforementioned violation, Plaintiffs and Plaintiff 25 class members have been damaged in an amount according to proof, but in an amount in excess, of the 26 jurisdicfion of this Court. Plaintiffs and Plaintiff class members are entitled to the losses they incurred 27 for the benefit of the Defendants during their employment with Defendants. 28 Wherefore, Plaintiffs request relief as hereinafter prayed for. 13 FIRST AMENDED COMPLAINT FOR DAMAGES 1 NINTH CAUSE OF ACTION 2 VIOLATION OF LABOR CODE 558 3 CIVIL PENALTIES FOR VIOLATION OF CALIFORNIA LABOR CODE WAGE AND HOUR 4 PROVISIONS AND PROVISIONS OF INDUSTRIAL WELFARE COMMISSION 5 (Plaintiffs against All Defendants) 6 60. The allegations ofthis Complaint are hereby realleged and incorporated by reference. 7 61. Defendants, and each of them, have violated various provisions of the Labor Code and 8 IWC Wage Order 16-2001 as set forth above. In doing so. Defendants, and each of them are subjected to 9 civil penalties as follows: (1) For any initial violation, fifty dollars ($50) for each underpaid employee 10 for each pay period for which the employee was underpaid in addition to an amount sufficient to recover 11 underpaid wages; (2) For each subsequent violation, one hundred dollars ($100) for each underpaid 12 employee for each pay period for which the employee was underpaid in addition to an amount sufficient 13 to recover underpaid wages; (3) Wages recovered pursuant to this section shall be paid to the affected 14 employee. 15 Wherefore, Plaintiffs request relief as hereinafter prayed for. 16 TENTH CAUSE OF ACTION 17 VIOLATION OF LABOR CODE §§ 247 AND 247.5 18 FAILURE TO POST NOTICE OF SICK LEAVE AND FAILURE TO KEEP ACCURATE 19 RECORDS OF PAID SICK LEAVE 20 (Plaintiffs against All Defendants) 21 62. The allegations set forth in this Complaint are hereby realleged and incorporated by 22 reference. 23 63. Labor Code § 247 provides that an employer must display a poster in a conspicuous place 24 containing information including: (1) An employee is entitled to accrue, request, and use paid sick days; 25 (2) The amount of sick days provided for by this article; (3) The terms of use of paid sick days; (4) That 26 retaliafion or discrimination against an employee who requests paid sick days or uses paid sick days, or 27 both, is prohibited and that an employee has the right under this article to file a complaint with the Labor 28 Commissioner against an employer who retaliates or discriminates against the employee. 14 FIRST AMENDED COMPLAINT FOR DAMAGES 1 64. An employer who willfully violates the posting requirement of this section is subject to a 2 civil penalty of not more than one hundred dollars ($100) per each offense. 3 65. Defendants, and each of them, willfully failed the posting requirements of Labor Code § 4 247, and therefore, are subjected to civil penalties of $100 for each offense. 5 66. Labor Code § 247.5 provides that an employer shall keep for at least three years records 6 docimienfing the hours worked and paid sick days accrued and used by an employee. If an employer 7 does not maintain adequate records pursuant to this section, it shall be presumed that the employee is 8 entitled to the maximum number of hours accruable under this article, unless the employer can show 9 otherwise by clear and convincing evidence. 10 67. Defendants, and each of them, have failed to keep accurate records of all paid sick days 11 accmed by Plaintiffs and Plaintiff class members. As a result of Defendants conduct. Plaintiffs and 12 Plaintiff class members have suffered harm in an amount in excess of the jurisdictional minimum of this 13 Court. 14 Wherefore, Plaintiffs request relief as in hereinafter prayed for. 15 ELEVENTH CAUSE OF ACTION 16 VIOLATION OF LABOR CODE § 970 17 SOLICITATION OF EMPLOYEES BY MISREPRESENTATION 18 (Plaintiffs against All Defendants) 19 68. The allegations set forth in this Complaint are hereby realleged and incorporated by 20 reference. 21 69. Califomia Labor Code § 970 provides that no person, or agent or officer thereof, directly 22 or indirectly, shall influence, persuade, or engage any person to change from one place to another in this 23 State or from any place outside to any place within the State, of from any place within the State to 24 outside, for the purpose of working in any branch of labor, through or by means of knowingly false 25 representations, whether spoken, written, or advertised in printed form, conceming either (a) The kind, 26 character, or existence of such work; (b) The length of tinie such work will last, or the compensation 27 therefor; (c) The sanitary or housing conditions relating to or surrounding the work; (d) The existence or 28 nonexistence of any strike, lockout, or other labor dispute affecting it and pending between the proposed 15 FIRST AMENDED COMPLAINT FOR DAMAGES 1 employer and the persons then or last engaged in the performance of the labor for which the employee is 2 sought. 3 70. Defendants, and each of them, willfully made misrepresentations to the Plaintiffs and 4 Plaintiff class members regarding the kind, character, and existence of work, the length of time the work 5 will last, the compensations of the work, and the housing conditions relating to employment, including 6 but not limited to promises to provide and pay for certified training. Defendants further promised to pay 7 to Plaintiffs and those similarly situated per diem pay to cover food and lodging costs for their 8 relocation. Plaintiffs and Plaintiff class members reasonable relied on Defendants' misrepresentations to 9 their detriment. 10 71. As a direct and proximate result of Defendants' conduct. Plaintiffs and Plaintiff class 11 members have suffered harm in an amount in excess of the jurisdictional minimum of this Court. 12 72. The above described actions were perpetrated and/or ratified by a managing agent or 13 officer of Defendants. These acts were done with malice, fraud, oppression, and in reckless disregard of 14 Plaintiffs' rights and the rights of those similarly situated. Further, said actions were despicable in 15 character and warrant the imposition of punitive damages in a sum sufficient to punish and deter 16 Defendants' future conduct. 17 Wherefore, Plaintiffs request relief as hereinafter prayed for. 18 TWELFTH CAUSE OF ACTION 19 VIOLATION OF BUSINESS AND PROFESSIONS CODE § 17200, et seq. 20 UNFAIR COMPETITION ACT 21 (Plaintiffs against All Defendants) 22 73. The allegations set forth in this Complaint are hereby realleged and incorporated by 23 reference. 24 74. Defendants' conduct, as alleged herein, has been and continues to be unfair, unlawful, 25 and harmful to Plaintiffs and Plaintiff class members. Defendants' activities, as alleged herein, are 26 violations ofCalifornia law and constitute unlawful business acts and practices in violation of Califomia 27 Business and Professions Code §§ 17200 et seq. 28 16 FIRST AMENDED COMPLAINT FOR DAMAGES 1 75. A violation of Cal. Bus. Prof, code § 17200 may be predicated on the violafion of any 2 state or federal law. In this case. Defendants had a policy and practice of failing to pay Plaintiffs and 3 Plainfiff class members all overtime hours worked, for missed rest and meal periods, for reimbursement 4 pay, and their final wages, which violates several Califomia Labor Code Sections and Industrial 5 Commission Welfare Wage Order provisions. 6 76. Plaintiffs and Plaintiff class members have been personally injured by Defendants 7 unlawful and unfair business practices including but not limited to sufferingfinancialloss. Plaintiffs and 8 Plainfiff class members are entitled to restitution of the wages withheld and retained by Defendants 9 during the defined period. 10 77. Further, the Plaintiffs and Plaintiff class members request the violations of the 11 Defendants alleged herein be enjoined, and other equitable relief as this court deems proper. 12 Wherefore, Plaintiffs request relief as hereinafter prayed for. 13 V. PRAYER FOR RELIEF 14 WHEREFORE, Plaintiff(s) demand judgment against Defendants and any other Defendants who 15 may later be added as follows: 16 AS TO THE FIRST CAUSE OF ACTION 17 78. Penalties according to the following schedule: For any initial violation, one hundred 18 dollars ($100) for each aggrieved employee per pay period; For any subsequent violation, two hundred 19 dollars ($200) for each aggrieved employee per pay period; or otherwise enumerated for specific Labor 20 Code sections; 21 79. Reasonable Attomeys' Fees and costs pursuant to Labor Code Section 2699; 22 80. Wages as proved at trial; 23 81. For prejudgment interest on all amounts claimed; 24 82. Injunctive and Declaratory Relief; 25 83. For such other and further relief as this Court may deem just and proper; 26 AS TO THE REMAINING CAUSES OF ACTION 27 84. For an Order certifying this action as a class action; 28 17 FIRST AMENDED COMPLAINT FOR DAMAGES 1 85. Compensatory Damages, including general and special damages, including but not 2 limited to wages; 3 86. For liquidated damages in the amount equal to the unpaid minimum wage and interest 4 thereon, from at least four (4) years prior to the filing of this action, according to proof; 5 87. For double damages pursuant to Labor Code Section 972; 6 88. For Attorneys' Fees and costs pursuant to all applicable statutes or legal principles; 7 89. , For punitive damages; 8 90. For prejudgment interest on all amounts claimed; 9 91. For such other and further relief as the Court may deem just and proper. 10 11 12 13 14 Date: January^o?, 2020 & LUNDE 15 16 ^\TRTCfA A. SAVAGE, attorney for Plaintiffs 17 JAY ROBINSON and HUGO PINEDA, and THE PUTATIVE CLASS 18 19 20 21 22 23 24 25 26 27 28 FIRST AMENDED COMPLAINT FOR DAMAGES Proof of Service I, Angela Hooper, am a citizen of the United States and employed in the County of Butte. I am over the age of eighteen years and not a party to the within action. My business address is 1550 Humboldt Road, Suite 4, Chico, CA 95928. I am readily familiar with the pracfice of collection and processing of correspondence/documents for mailing with the United States Postal Service and that said correspondence/documents are deposited with the United Stated Postal Service in the ordinary course ofbusiness on the same day. On January 22, 2020,1 served the within: FIRST AMENDED COMPLAINT FOR DAMAGES On the parties below by placing a tme copy thereof in a sealed envelope and served same on the parties/counsel, addressed as follows: Christopher T. Benton Darwin A. Hindman, III Lewis Brisbois Baker, Donelson, Bearman, Caldwell & 2020 West El Camino Avenue Berkowitz, PC Suite 700 211 Commerce St. Sacramento, CA 95833 Nashville, TN 37201 The following is a procedure in which service of this document was effected: XXXX U.S. Postal Service (by placing for collection and deposit in the United States mail a copy of said document at Chico, CA). Ovemight delivery (Federal Express or UPS) Personal Service Facsimile I declare under penalty of perjury that the foregoing is tme and correct under the laws of the State of California and that this declaration was executed q^^anuary 22,2020, at Chico, Califomia. Angel **fboper