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1 PATRICIA A. SAVAGE, SBN 236235
SAVAGE, LAMB & LUNDE, PC FILED^.
2 1550 Humboldt Road, Suite 4
Chico, CA 95928 Superior Court Of California^
3
Telephone: (530) 592-3861
4 Fax: (530) 592-3865
0S/iB/20lB
5 Attomeys for PlaintifF, J Deputy
JAY ROBINSON and CaStt Mumber:
6 HUGO PINEDA individually and on
34-2019"002i2942
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.
12 HUGO PINEDA individually and on behalf of
all others similarly situated.
13 COMPLAINT FOR DAMAGES
Plaintiffs,
14 1. Violation of the Private Attorney
15 V. General Act
2. Failure to Pay Overtime
16 ASOMEO ENVIRONMENTAL 3. Failure to Pay Minimum Wages
RESTORATION INDUSTRY, LLC, a 4. Failure to Provide Meal Periods or
17 California Corporation and Premium Pay
PHILLIPS & JORDAN ENVIRONMENTAL 5. Failure to Provide Rest Periods or
18 SERVICES LLC, a Delaware Corporation and Premium Pay
19 DOES 1-10, 6. Failure to Pay Final Wages
7. Failure to Furnish Accurate Wage
20 Defendants. Statements
8. Failure to Pay Reimbursement
21 Expenses
22 9. Violation of Labor Code Section 558
10. Failure to Keep Accurate Time
23 Records
11. Solicitation of Employees by
24 Misrepresentation
12. Unfair Competition
25
26
DEMAND FOR JURY TRIAL
27
28
1
Complaint for Damages
1 Plaintiffs JAY ROBINSON and HUGO PINEDA (collectively "Plaintiffs") pursuant to the
2 California Code of Civil Procedure Section 382 and California Labor Code Private Attorneys General
3 Act of 2004 ("PAGA"), California Labor Code Section 2698 et seq., on behalf of themselves as
4 individuals and in their representative capacities, by and through their undersigned attomeys, allege as
5 follows.
6 I. INTRODUCTION
7 1. This case arises out of unlawful wage payment and employment practices by the
8 Defendants. The Plaintiffs bring this action individually and on behalf of similarly situated persons who
9 on and after four (4) years prior to the filing of this action through the date of trial, were denied lawful
10 rights pursuant to the California Labor Code, including but not limited to Sections: 226, 226.7, 201-203,
11 510, 558, 1194, 2802, 1174, 970.
12 2. As used herein, the term "Plaintiffs" refers to JAY ROBINSON AND HUGO PINEDA
13 who are the named Plaintiff representatives, and the phrase "other similarly situated employees" refers
14 to the undetermined class of those similarly situated to Plaintiffs.
15 3. The Plaintiffs seek compensation for themselves and those who are similarly situated
16 during the period defined as four years prior to the filing of this action through the trial date, based upon
17 information and belief that the Defendants are continuing, and will continue, their unlawful practices as
18 described herein.
19 n. PARTIES AND JURISDICTION
20 4. This is a class action and PAGA law enforcement representative action seeking unpaid
21 wages, overtime, damages, liquidated damages, continuing wages, reimbursement for expenses,
22 restitution, penalties, civil penalties and attomeys' fees and costs. This Complaint asserts violations of
23 California labor Code section, including 201, 202, 201.3, 203, 204, 210, 226, 226.3, 226.7510, 512, 516,
24 558, 1174, 1194, 1194.2, 1197.1, 1197.5, 1198, 1198.5, 2802, and 2698 et seq. (PAGA); 8 Cal. Code
25 Regs, Sections 11160 including 11160(4), 11160(6), 11160(10) and 11160(11); violations ofthe
26 relevant Wage Order of the Industrial Welfare Commission including Orders 4 and 16; violation so
27 section 17200 et seq. of the California Business and Professions Code; and otherwise as hereinafter
28 alleged. Plaintiffs bring this action pursuant to Califomia Code of Civil Procedure Section 382, on
Complaint for Damages
1 behalf of individuals and class basis and on behalf of all-natural persons who, at any time from
2 November 8, 2018 through the present provided services to Defendants as non-exempt employees in
3 California.
4 5. This Court has jurisdiction over Defendants' violations of the Califomia Labor Code
5 because the amount in controversy exceeds this Court's jurisdictional minimum.
6 6. Plaintiff JAY ROBINSON (hereinafter "ROBINSON") was at all relevant times herein,
7 an employee of the Defendant and is otherwise eligible to bring this action. Plaintiff ROBINSON was
8 employed by the Defendant AERI to perfonn services as an hourly employee in approximately
9 December of 2018, and continuing thereafter through part of Febmary, 2019. Plaintiff ROBINSON'S
10 claims are common to those of the other similarly situated employees.
11 7. Plaintiff HUGO PINEDA (hereinafter "PINEDA") was at all relevant times herein an
12 employee of the Defendant AERI and is otherwise eligible to bring this action. Plaintiff PINEDA was
13 employed by the Defendant AERI to perform services as an hourly employee commencing in about
14 December of 2018 and continuing thereafter until the end of January, 2019. Plaintiff PINEDA'S claims
15 are common to those of the other similarly situated employees.
16 8. Plaintiffs are informed and believe and thereon allege that Defendant ASOMEO
17 ENVIRONMENTAL RESTORATION INDUSTRY LLC ("AERI") is a Califomia Limited Liability
18 Corporation with its primary place of business in the County of Sutter, and was the employer of the
19 Plaintiffs and the other similarly situated employees during the defined period.
20 9. Plaintiffs are informed and believe and thereon allege that Defendant PHILLIPS &.
21 JORDAN ENVIRONMENTAL SERVICES LLC. dba Phillips «& Jordan, Inc. (hereinafter "PHILLIPS
22 & JORDAN"), is a Delaware Corporation based in Tennessee who operates their business and provides
23 services in Califomia through their Regional Office located in Sacramento County. Hereinafter,
24 collectively, PHILLIPS & JORDAN and AERI will be referred to as "Defendants."
25 10. Plaintiffs are informed and believe and thereon allege that, at all times relevant.
26 Defendant PHILLIPS 8c JORDAN was the "direct contractor," and at all times relevant, Defendant
27 AERI was the "subcontractor" and that both Defendants w^ere contracted to perform restoration and
28 clean-up services in relation to the "Camp Fire" of November 8, 2018.
Complaint for Damages
1 11. Plaintiffs are informed and believe and thereon allege that as the direct contractor.
2 Defendant PHILLIPS & JORDAN is liable for any wages owed to PlaintifF Class Members incurred by
3 subcontractor AERI, in AERI'S performance of labor in relation to the subject contract between
4 PHILLIPS & JORDAN and AERI, as identified in California Labor Code Section 218.7.
5 12. Pursuant to Code of Civil Procedure §§ 395(a) and 395.5, venue and jurisdiction are
6 proper because the Defendant PHILLIPS & JORDAN transacts business in the County of Sacramento,
7 operates their Regional Office in the County of Sacramento and entered into a contract with Defendant
8 AERI in the County of Sacramento for the restoration and clean-up associated with the Camp Fire.
9 Furthermore, the non-payment of wages as alleged herein had a direct effect on employees of the
10 Defendants in the State of Califomia, and in particular, within the County of Sacramento. The monetary
11 claims of the Plaintiffs are within the jurisdiction of this court.
12 13. Plaintiffs are informed and believe and thereon allege that the number of other similarly
13 situated employees is over thirty (30), therefore the monetary claims of the Plaintiffs exceed the
14 jurisdictional minimum of this Court.
15 14. Each of the similarly situated employees are identifiable persons who were or are
16 employed by the Defendants during the Class Period in the State of California. Plaintiffs reserve the
17 right to seek additional amendment of this Complaint to add as named Plaintiffs, some or all of the
18 persons who are similarly situated employees.
19 15. This Court has jurisdiction over Defendants because, upon information and belief.
20 Defendants' are either a resident of California, have minimum contacts in California, otherwise
21 intentionally avails itself of the protections of Califomia so as to render Califomia's exercise of
22 jurisdiction over Defendants consistent with traditional notions of fair play and substantial justice.
23 16. Defendants DOES 1 through 10, are owners, operators, managers, subsidiaries of or
24 owned entities of Defendants, and each of them, or persons otherwise responsible for paying the wages
25 and penalties alleged herein, who were conducting business in the State of California and employing
26 employees in the State of Califomia. Plaintiffs are ignorant of the tme names, capacities, relationships
27 and extent of participation in the conduct herein alleged, of the Defendants sued herein as DOES 1
28 through 10, inclusive, and therefore sues these Defendants by such fictitious names.
Complaint for Damages
1 17. At all times relevant, each and every Defendant was an agent and/or employee of each
2 and every other Defendant. In doing the things alleged in the causes of action stated herein, each and
3 every Defendant was acting within the course and scope of this agency or employment, and was acting
4 with the consent, permission, and authorization of each remaining Defendant. All actions of each
5 Defendant as alleged herein were ratified and approved by every other Defendant or their officers or
6 managing agents. PlaintifF will amend this complaint to allege the tme names and capacities of the DOE
7 Defendants when ascertained.
8 18. At all times mentioned herein. Defendants, and each of them were members of and
9 engaged in a joint venture, partnership, and common enterprise, and acting within the course and scope
10 of and in pursuance of said joint venture, partnership, and common enterprise. Further, Plaintiffs allege
11 that all Defendants were joint employers for all purposes of Plaintiffs and int non-exempt employees.
12 m . EXHAUSTION OF ADMINISTRATIVE REMEDIES
13 19. Plaintiffs have sought permission pursuant to Labor Code § 2698 et seq. to pursue to the
14 claims set forth in this Complaint against Defendants as Private Attomey General on behalf of
15 themselves and other similarly situated employees. Pursuant to California Labor Code § 2699.3,
16 Plaintiffs timely filed their notice with the Labor Workforce and Development Agency ("LWDA") via
17 online submission on approximately March 28, 2019, and served notice of Defendants by Certified mail
18 prior to filing this action.
19 20. Plaintiffs have waited 65 days and have not received notice from the LWDA of its intent
20 to pursue Plaintiffs' claims. Plaintiffs have received authorization from the LWDA to pursue the claims
21 set forth in this Complaint against Defendants as Private Attomey Generals on behalf of themselves and
22 others similarly situated employees based on the LWDA'S failure to provide notice of its intent to
23 pursue these claims and based on Defendants' failure to cure.
24 IV. GENERAL ALLEGATIONS
25 21. During all, or a portion of the defined Period, the Plaintiffs and other similarly situated
26 employees were employed by Defendants, and each of them, in the State of California. During their
27 employment, Plaintiffs and other similarly situated employees were employees covered under one or
28
Complaint for Damages
1 more regulations or Industrial Welfare Commission (IWC) Wage Orders, including but not limited to
2 Wage Order 16-2001.
3 FIRST CAUSE OF ACTION
4 VIOLATION OF THE PRIVATE ATTORNEYS GENERAL ACT
5 (PlaintifTs and Aggrieved Employees on behalf of the State of California against All Defendants)
6 22. The allegations set forth in this Complaint are hereby realleged and incorporated by
7 reference.
8 23. Plaintiffs have alleged to the LWDA that Defendants have violated the following
9 provisions of the California Labor Code in their dealings with Plaintiffs and other similarly situated
10 current and former employees:
11 • Violation of Labor Code §§ 1194 and 510 (failure to pay overtime and minimum wages);
12 • Violation of Labor Code § 226.7 (failure to provide meal periods or premium wages in lieu
13 thereof);
14 • Violation of Labor Code § 226.7 (failure to provide rest breaks or premium wages in lieu
15 thereof);
16 • Violation of Labor Code §§ 201-203 (failure to pay final wages);
17 • Violation of Labor Code §§ 226 and 226.3 (failure to provide accurate wage statements);
18 • Violation of Labor Code § 2802 (failure to pay reimbursement for business expenses);
19 • Violation of Labor Code § 558 (violations of the provision of any Industrial Welfare
20 Commission Order);
21 • Violation of Labor Code § 1174 (failure to keep accurate time records);
22 • Violation of Labor Code § 970 (fraudulent inducement)
23
24. Plaintiffs have received authorization, based on the LWDA's failure to send notice of its
24
intent to pursue Plaintiffs claims and based on Defendants' failure to cure, to act on behalf of the Labor
25
Commissioner to assess civil penalties against Defendants.
26
25. Plaintiffs seek civil penalties against Defendants pursuant to Labor Code § 2699(f)(2) to
27
the extent there is no enumerated penalty provision for the specific sections cited above.
28
Complaint for Damages
1 26. Plaintiffs seek these civil penalties on behalf of themselves and all other former and
2 current employees from Defendants pursuant to Labor Code §§ 2699(a) and 2699.3.
3 Wherefore, Plaintiffs request relief as hereinafter prayed for.
4 SECOND CAUSE OF ACTION
5 VIOLATION OF LABOR CODE §§ 1194 and 510
6 FAILURE TO PAY OVERTIME WAGES
7 (Plaintiffs and Aggrieved Employees on behalf of the State of California against All Defendants)
8 27. The allegations set forth in this Complaint are hereby realleged and incorporated by
9 reference.
10 28. At all times relevant to this action. Industrial Welfare Commission Order No. 16-2001,
11 and Labor Code § 510 applied to Plaintiffs' and other similarly employees' employment by Defendants,
12 and provided that any work performed by an employee in excess of eight hours in a work day or forty
13 hours in a workweek be compensated at one-and-one-half times the employee's regular rate of pay.
14 29. Plaintiffs and other similarly situated employees routinely worked over eight hours in a
15 day and over forty hours in a workweek.
16 30. Defendants, and each of them, failed to lawfully compensate Plaintiffs and other similarly
17 situated employees for the hours worked in excess of eight hours in a day or forty hours in a workweek.
18 31. Plaintiffs and others similarly situated, are entitled to recover their unpaid overtime
19 wages and all penalties arising therefrom. Additionally, Plaintiffs' are entitled to attomeys' fees, interest
20 and costs pursuant to Labor Code § 1194.
21 Wherefore, Plaintiffs request relief as hereinafter prayed for.
22 THIRD CAUSE OF ACTION
23 VIOLATION OF LABOR CODE § 1194 and TWC Order No. 16-2001
24 FAILURE TO PAY MINIMUM WAGES
25 (Plaintiffs and Aggrieved Employees on behalf of the State of California against All Defendants)
26 32. The allegations set forth in this Complaint are hereby realleged and incorporated by
27 reference.
28
Complaint for Damages
1 33. At all times relevant to this action. Industrial Welfare Commission Order No. 16-2001
2 and Labor Code § 1194 applied to Plaintiffs' and other similarly situated employees' employment by
3 Defendants and required that California employees to receive the minimum wage for all hours worked at
4 the rate of $11.00 an hour in December 2018, and $12.00 an hour beginning January 1, 2019.
5 34. Defendants, and each of them, failed to pay minimum wages to Plaintiffs and other
6 similarly situated employees for all hours worked during their employment with Defendants.
7 Defendants' acts were intentional and in complete disregard for Plaintiffs' and other similarly situated
8 employees' rights under Califomia law.
9 35. As a direct and proximate result of the acts or omissions of Defendants, Plaintiffs and
10 other similarly situated employees, have been deprived of minimum wages due in an amount to be
11 determined at trial, and therefore. Plaintiffs are entitled to liquidated damages pursuant to Labor Code
12 §§ 1194 and 1194.2.
13 Wherefore, Plaintiff and Class members request relief as hereinafter prayed for.
14 FOURTH CAUSE OF ACTION
15 VIOLATION OF LABOR CODE SECTIONS 512, 226.7 AND IWC WAGE ORDER 16-2001
16 FAILURE TO PROVIDE MEAL PERIODS OR PREMIUM PAY IN LIEU THEREOF
17 (Plaintiffs and Aggrieved Employees on behalf of the State of California against All Defendants)
18 36. The allegations set forth in this Complaint are hereby realleged and incorporated by
19 reference.
20 37. At all times relevant, Wage Order 16-2001, and Labor Code §§ 512 and 226.7 were in
21 fiill force and effect requiring employers in California to provide employees with a meal period of not
22 less than thirty (30) minutes before their fifth hour of work for a work period of more than five hours. I f
23 an employer fails to provide an employee a meal period in accordance with the Labor Code or the
24 governing Wage Order, the employer shall pay the employee one (1) hour of pay at the employee's
25 regular rate of compensation for each work day that the meal period is not provided.
26 38. Defendants, and each of them, routinely failed to provide Plaintiffs and other similarly
27 situated employees with a thirty-minute meal period before their fifth hour of work. Defendants
28
8
Complaint for Damages
1 routinely required Plaintiffs and other similarly situated employees to work through their lunch or
2 required Plaintiffs and other similarly situated employees to work without taking a lunch.
3 39. Defendants, and each of them, failed to pay Plaintiffs and other similarly situated
4 employees one hour of premium pay for the days that they were not provided an opportunity to take a
5 thirty-minute meal break before their fifth hour.
6 Wherefore, Plaintiffs request relief as hereinafter prayed for.
7 FIFTH CAUSE OF ACTION
8 VIOLATION OF LABOR CODE SECTION 226.7 AND IWC WAGE ORDER 16-2001
9 FAILURE TO PROVIDE REST PERIODS OR PREMIUM PAY IN L I E U THEREOF
10 (Plaintiffs and Aggrieved Employees on behalf of the State of California against All Defendants)
11
12 40. The allegations set forth in this Complaint are hereby realleged and incorporated by
13 reference.
14 41. At all times relevant. Industrial Welfare Commission Order No 16-2001 and Labor Code
15 § 226.7 were in full force and effect requiring employers in California to provide employees with a ten-
16 minute rest period for every four hours worked, or a majorfractionthereof If an employer fails to
17 provide an employee a rest period in accordance with California law or applicable Wage Order, the
18 employer shall pay the employee one (1) hour of pay the employee's regular rate of compensation for
19 each workday that a rest period is not provided.
20 42. Defendants, and each of them, routinely failed to provide Pliaintiffs and other similarly
21 situated employees with a ten-minute rest period for every four hours worked. Defendants routinely
22 required Plaintiffs and other similarly situated employees to work through their rest breaks or required
23 Plaintiffs and other similarly situated employees to work without taking a rest break.
24 43. Defendants, and each of them, failed to pay Plaintiffs and other similarly situated
25 employees one hour of premium pay for the days that they were not provided a ten-minute rest period
26 for every four hours they worked.
27 Wherefore, Plaintiffs request relief as hereinafter prayed for.
28
Complaint for Damages
1 SIXTH CAUSE OF ACTION
2 VIOLATION OF LABOR CODE §§ 201, 202, AND 203
3 FAILURE TO PAY FINAL WAGES
4 (Plaintiffs and Aggrieved Employees on behalf of the State of California against All Defendants)
5 44. The allegations set forth in this Complaint are hereby realleged and incorporated by
6 reference.
7 45. California Labor Code § 201 requires an employer who discharges an employee to pay all
8 compensation due and owing to that employee immediately upon discharge.
9 46. California Labor Code § 202 requires an employer to pay all compensation due and
10 owing to an employee who quits within 72 hours of that employee quitting, unless the employee
11 provides at least 72 hours-notice of quitting, in which case all compensation is due at the end of the
12 employee's final day of work.
13 47. California Labor Code § 203 provides that if an employer willfully fails to pay
14 compensation promptly upon discharge, as required by § 201 or § 202, then the employer is liable for
15 waiting time penalties in the form on continue compensation of up to 30 work days.
16 48. Defendants, and each of them, willfully failed and refused to timely pay compensation
17 and wages, including overtime compensation that is sue and owing to Plaintiffs and other similarly
18 situated employees upon their termination of employment with Defendants. As a result. Defendants, and
19 each of them, are liable to Plaintiffs and other similarly situated employees, for waiting time penalties,
20 together with interest thereon and reasonable attomey's fees and costs, under Califomia Labor Code §
21 203.
22 Wherefore, Plaintiffs request relief as hereinafter prayed for.
23 SEVENTH CAUSE OF ACTION
24 VIOLATION OF LABOR CODE 226
25 FAILURE TO FURNISH ACCURATE WAGE STATEMENTS
26 (Plaintiffs and Aggrieved Employees on behalf of the State of Caiifornia against All Defendants)
27 49. The allegations set forth in this Complaint are hereby realleged and incorporated by
28 reference.
10
Complaint for Damages
1 50. California Labor Code § 226(a) requires employers semi-monthly or at the time of each
2 payment of wages to fiimish each employee with a statement itemizing, among other things, gross
3 wages eamed, and all deductions. Cal. Labor Code § 226(b) provides that if an employer knowingly and
4 intentionally fails to provide a statement itemizing, among other things, gross wages eamed and accurate
5 deductions, then the employee is entitled to recover the greater of all actual damages or fifty dollars
6 ($50) forthe initial violation and one hundred dollars ($100) for each subsequent violation, up to four
7 thousand dollars ($4000).
8 51. Defendants and each of them, knowingly and intentionally failed to fiimish to Plaintiffs
9 and others similarly situated employees itemized wage statements depicting their actual gross wages in
10 part due to Defendants' failure to accurately record Plaintiffs' and other similarly situated employees'
11 overtime and Defendants' failure to record and pay premium wages for missed meal period.
12 52. Defendants, and each of them, are liable to Plaintiffs and other similarly situated
13 employees forthe amounts provided by Cal. Labor Code § 226(e)(1) and for penalties and attomeys'
14 fees.
15 Wherefore, Plaintiffs request relief as hereinafter prayed for.
16 EIGHTH CAUSE OF ACTION
17 VIOLATION OF LABOR CODE 2802
18 FAILURE TO PAY REIMBURSEMENT EXPENSES
19 (Plaintiffs and Aggrieved Employees on behalf of the State of California against All Defendants)
20 53. The allegations set forth in this Complaint are hereby realleged and incorporated by
21 reference.
22 54. At all times relevant to this action. Labor Code § 2802 requires that an employer shall
23 indemnify his or her employee "for all necessary expenditures or losses incurred by the employee in
24 direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of
25 the employer."
26 55. At all times herein mentioned Defendants, and each of them, were the employers of
27 Plaintiffs and other similarly situated employees. During the course of their employment with
28 Defendants, Plaintiffs and other similarly situated employees were required to use their personal cell
11
Complaint for Damages
1 phones for work purposes, they were required to pay for their travel expenses, they were required to pay
2 for their training, and Plaintiffs and others similarly situated employees were required to pay for their
3 tools to perform services for the benefit of the Defendants.
4 56. As an actual and proximate result of the aforementioned violation. Plaintiffs and other
5 similarly situated employees have been damaged in an amount according to proof, but in an amount in
6 excess, of the jurisdiction of this Court. Plaintiffs and other similarly situated employees are entitled to
7 the losses they incurred for the benefit of the Defendants during their employment with Defendants:
8 Wherefore, Plaintiffs request relieF as hereinafter prayed for.
9 NINTH CAUSE OF ACTION
10 VIOLATION OF LABOR CODE 558
11 CIVIL PENALTIES FOR VIOLATION OF CALIFORNIA LABOR CODE WAGE AND HOUR
12 PROVISIONS AND PROVISIONS OF INDUSTRIAL WELFARE COMMISSION
13 (Plaintiffs and Aggrieved Employees on behalf of the State of California against All Defendants)
14 57. The allegations of this Complaint are hereby realleged and incorporated by reference.
15 58. Defendants, and each of them, have violated various provisions of the Labor Code and
16 IWC Wage Order 16-2001 as set forth above. In doing so. Defendants, and each of them are subjected to
17 civil penalties as follows: (1) For any initial violation, fifty dollars ($50) for each underpaid employee
18 for each pay period for which the employee was underpaid in addition to an amount sufficient to recover
19 underpaid wages; (2) For each subsequent violation, one hundred dollars ($100) for each underpaid
20 employee for each pay period for which the employee was underpaid in addition to an amount sufficient
21 to recover undeipaid wages; (3) Wages recovered pursuant to this section shall be paid to the affected
22 employee.
23 Wherefore, Plaintiffs request relief as hereinafter prayed for.
24 TENTH CAUSE OF ACTION
25 VIOLATION OF LABOR CODE §§ 247 AND 247.5
26 FAILURE TO POST NOTICE OF SICK LEAVE AND FAILURE TO K E E P ACCURATE
27 RECORDS OF PAID SICK L E A V E
28 (Plaintiffs and Aggrieved Employees on behalf of the State of California against All Defendants)
12
Complaint for Damages
1 59. The allegations set forth in this Complaint are hereby realleged and incorporated by
2 reference.
3 60. Labor Code § 247 provides that an employer must display a poster in a conspicuous place
4 containing information including: (1) An employee is entitled to accme, request, and use paid sick days;
5 (2) The amount of sick days provided for by this article; (3) The terms of use of paid sick days; (4) That
6 retaliation or discrimination against an employee who requests paid sick days or uses paid sick days, or
7 both, is prohibited and that an employee has the right under this article to file a complaint with the Labor
8 Commissioner against an employer who retaliates or discriminates against the employee.
9 61. An employer who willfully violates the posting requirement of this section is subject to a
10 civil penalty of not more than one hundred dollars ($100) per each offense.
11 62. Defendants, and each of them, willfully failed the posting requirements of Labor Code §
12 247, and therefore, are subjected to civil penalties of $100 for each offense.
13 63. Labor Code § 247.5 provides that an employer shall keep for at least three years records
14 documenting the hours worked and paid sick days accmed and used by an employee. If an employer
15 does not maintain adequate records pursuant to this section, it shall be presumed that the employee is
16 entitled to the maximum number of hours accmable under this article, unless the employer can show
17 otherwise by clear and convincing evidence.
18 64. Defendants, and each of them, have failed to keep accurate records of all paid sick days
19 accmed by Plaintiffs and other similarly situated employees. As a result of Defendants conduct.
20 Plaintiffs and other similarly situated employees have siiffered harm in an amount in excess of the
21 jurisdictional minimum of this Court.
22 Wherefore, Plaintiffs request relief as in hereinafter prayed for.
23 ELEVENTH CAUSE OF ACTION
24 VIOLATION OF LABOR CODE § 970
25 SOLICITATION OF EMPLOYEES BY MISREPRESENTATION
26 (Plaintiffs and Aggrieved Employees on behalf of the State of California against All Defendants)
27 65. The allegations set forth in this Complaint are hereby realleged and incorporated by
28 reference.
13
Complaint for Damages
1 66. California Labor Code § 970 provides that no person, or agent or officer thereof, directly
2 or indirectly, shall influence, persuade, or engage any person to change from one place to another in this
3 State or from any place outside to any place within the State, of from any place within the State to
4 outside, for the purpose of working in any branch of labor, through or by means of knowingly false
5 representations, whether spoken, written, or advertised in printed form, conceming either (a) The kind,
6 character, or existence of such work; (b) The length of time such work will last, or the compensation
7 therefor; (c) The sanitary or housing conditions relating to or surrounding the work; (d) The existence or
8 nonexistence of any strike, lockout, or other labor dispute affecting it and pending between the proposed
9 employer and the persons then or last engaged in the performance of the labor for which the employee is
10 sought.
11 67. Defendants, and each of them, willflilly made misrepresentations to the Plaintiffs and
12 other similarly situated employees regarding the kind, character, and existence of work, the length of
13 time the work will last, the compensations of the work, and the housing conditions relating to
14 employment, including but not limited to promises to provide and pay for certified training. Defendants
15 further promised to pay to Plaintiffs and those similarly situated per diem pay to cover food and lodging
16 costs for their relocation. Plaintiffs and other similarly situated employees reasonable relied on
17 Defendants' misrepresentations to their detriment.
18 68. As a direct and proximate result of Defendants' conduct. Plaintiffs and other similarly
19 situated employees have suffered harm in an amounf in excess of the jurisdictional minimum of this
20 Court.
21 69. The above described actions were perpetrated and/or ratified by a managing agent or
22 officer of Defendants. These acts were done with malice,fraud,oppression, and in reckless disregard of
23 Plaintiffs' rights and the rights of those similarly situated. Further, said actions were despicable in
24 character and wartant the imposition of punitive damages in a sum sufficient to punish and deter
25 Defendants' fiiture conduct.
26 Wherefore, Plaintiffs request relief as hereinafter prayed for.
27
28
14
Complaint for Damages
1 TWELFTH CAUSE OF ACTION
2 VIOLATION OF BUSINESS AND PROFESSIONS CODE § 17200, et seq.
3 UNFAIR COMPETITION ACT
4 (Plaintiffs and Aggrieved Employees on behalf ofthe State of California against All Defendants)
5 70. The allegations set forth in this Complaint are hereby realleged and incorporated by
6 reference.
7 71. Defendants' conduct, as alleged herein, has been and continues to be unfair, unlawful,
8 and harmfiil to Plaintiffs and other similarly situated employees. Defendants' activities, as alleged
9 herein, are violations of California law and constitute unlawfiil business acts and practices in violation of
10 California Business and Professions Code §§ 17200 et seq.
11 72. A violation of Cal. Bus. Prof code § 17200 may be predicated on the violation of any
12 state or federal law. In this case. Defendants had a policy and practice of failing to pay Plaintiffs and
13 other similarly situated employees all overtime hours worked, for missed rest and meal periods, for
14 reimbursement pay, and their final wages, which violates several California Labor Code Sections and
15 Industrial Commission Welfare Wage Order provisions.
16 73. Plaintiffs and other similarly situated employees have been personally injured by
17 Defendants unlawful and unfair business practices including but not limited to sufferingfinancialloss.
18 Plaintiffs and other similarly situated employees are entitled to restitution of the wages withheld and
19 retained by Defendants during the defined period.
20 74. Further, the Plaintiffs and other similarly situated employees request the violations of the
21 Defendants alleged herein be enjoined, and other equitable relief as this court deems proper.
22 Wherefore, Plaintiffs request relief as hereinafter prayed for.
23 V. PRAYER FOR RELIEF
24 WHEREFORE, PlaintifF(s) demand judgment against Defendants and any other Defendants who
25 may later be added as follows:
26 AS TO THE FIRST CAUSE OF ACTION
27 75. Penalties according to the following schedule: For any initial violation, one hundred
28 dollars ($100) for each aggrieved employee per pay period; For any subsequent violation, two hundred
15
Complaint for Damages
1 dollars ($200) for each aggrieved employee per pay period; or otherwise enumerated for specific Labor
2 Code sections;
3 76. Reasonable Attomeys' Fees and costs pursuant to Labor Code Section 2699;
4 77. Wages as proved at trial;
5 78. Any and all other applicable penalties pursuant to all applicable statutes or legal
6 principles;
7 79. For prejudgment interest on all amounts claimed;
8 80. Injunctive and Declaratory Relief;
9 81. For such other and fiirther relief as this Court may deem just and proper;
10 AS TO THE REMAINING CAUSES OF ACTION
11 82. Compensatory Damages, including general and special damages, including but not
12 limited to wages;
13 83. For double damages pursuant to Labor Code Section 972;
14 84. For Attomeys' fees and costs pursuant to all applicable statutes or legal principles;
15 85. Any and all other applicable penalties pursuant to all applicable statutes or legal
16 principles;
17 86. For punitive damages;
18 87. For prejudgment interest on all amounts claimed;
19 88. For such other and fiirther relief as the Court may deem just and proper.
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22 Date: August \ 1 , 2019 / ^ ! A V A ( % L A M B & LUNDE
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A. SAVAGE
25 E. RYAN LAMB
MICHELLE LUNDE
26 Attomeys for Plaintiffs
JAY ROBINSON and HUGO PINEDA, and
27 all others similarly situated
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Complaint for Damages
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DEMAND FOR JURY TRIAL
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Date: August 15, 2019 SAVAGE, LAMB & LUNDE
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PATRICIA ATSAVAGE
7 E. RYAN LAMB
MICHELLE LUNDE
8 Attorneys for Plaintiffs
9 JAY ROBINSON and HUGO PINEDA and
all others similarly situated
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Complaint for Damages
Preview
1 PATRICIA A. SAVAGE, SBN 236235 SAVAGE, LAMB & LUNDE, PC FILED^. 2 1550 Humboldt Road, Suite 4 Chico, CA 95928 Superior Court Of California^ 3 Telephone: (530) 592-3861 4 Fax: (530) 592-3865 0S/iB/20lB 5 Attomeys for PlaintifF, J Deputy JAY ROBINSON and CaStt Mumber: 6 HUGO PINEDA individually and on 34-2019"002i2942 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. 12 HUGO PINEDA individually and on behalf of all others similarly situated. 13 COMPLAINT FOR DAMAGES Plaintiffs, 14 1. Violation of the Private Attorney 15 V. General Act 2. Failure to Pay Overtime 16 ASOMEO ENVIRONMENTAL 3. Failure to Pay Minimum Wages RESTORATION INDUSTRY, LLC, a 4. Failure to Provide Meal Periods or 17 California Corporation and Premium Pay PHILLIPS & JORDAN ENVIRONMENTAL 5. Failure to Provide Rest Periods or 18 SERVICES LLC, a Delaware Corporation and Premium Pay 19 DOES 1-10, 6. Failure to Pay Final Wages 7. Failure to Furnish Accurate Wage 20 Defendants. Statements 8. Failure to Pay Reimbursement 21 Expenses 22 9. Violation of Labor Code Section 558 10. Failure to Keep Accurate Time 23 Records 11. Solicitation of Employees by 24 Misrepresentation 12. Unfair Competition 25 26 DEMAND FOR JURY TRIAL 27 28 1 Complaint for Damages 1 Plaintiffs JAY ROBINSON and HUGO PINEDA (collectively "Plaintiffs") pursuant to the 2 California Code of Civil Procedure Section 382 and California Labor Code Private Attorneys General 3 Act of 2004 ("PAGA"), California Labor Code Section 2698 et seq., on behalf of themselves as 4 individuals and in their representative capacities, by and through their undersigned attomeys, allege as 5 follows. 6 I. INTRODUCTION 7 1. This case arises out of unlawful wage payment and employment practices by the 8 Defendants. The Plaintiffs bring this action individually and on behalf of similarly situated persons who 9 on and after four (4) years prior to the filing of this action through the date of trial, were denied lawful 10 rights pursuant to the California Labor Code, including but not limited to Sections: 226, 226.7, 201-203, 11 510, 558, 1194, 2802, 1174, 970. 12 2. As used herein, the term "Plaintiffs" refers to JAY ROBINSON AND HUGO PINEDA 13 who are the named Plaintiff representatives, and the phrase "other similarly situated employees" refers 14 to the undetermined class of those similarly situated to Plaintiffs. 15 3. The Plaintiffs seek compensation for themselves and those who are similarly situated 16 during the period defined as four years prior to the filing of this action through the trial date, based upon 17 information and belief that the Defendants are continuing, and will continue, their unlawful practices as 18 described herein. 19 n. PARTIES AND JURISDICTION 20 4. This is a class action and PAGA law enforcement representative action seeking unpaid 21 wages, overtime, damages, liquidated damages, continuing wages, reimbursement for expenses, 22 restitution, penalties, civil penalties and attomeys' fees and costs. This Complaint asserts violations of 23 California labor Code section, including 201, 202, 201.3, 203, 204, 210, 226, 226.3, 226.7510, 512, 516, 24 558, 1174, 1194, 1194.2, 1197.1, 1197.5, 1198, 1198.5, 2802, and 2698 et seq. (PAGA); 8 Cal. Code 25 Regs, Sections 11160 including 11160(4), 11160(6), 11160(10) and 11160(11); violations ofthe 26 relevant Wage Order of the Industrial Welfare Commission including Orders 4 and 16; violation so 27 section 17200 et seq. of the California Business and Professions Code; and otherwise as hereinafter 28 alleged. Plaintiffs bring this action pursuant to Califomia Code of Civil Procedure Section 382, on Complaint for Damages 1 behalf of individuals and class basis and on behalf of all-natural persons who, at any time from 2 November 8, 2018 through the present provided services to Defendants as non-exempt employees in 3 California. 4 5. This Court has jurisdiction over Defendants' violations of the Califomia Labor Code 5 because the amount in controversy exceeds this Court's jurisdictional minimum. 6 6. Plaintiff JAY ROBINSON (hereinafter "ROBINSON") was at all relevant times herein, 7 an employee of the Defendant and is otherwise eligible to bring this action. Plaintiff ROBINSON was 8 employed by the Defendant AERI to perfonn services as an hourly employee in approximately 9 December of 2018, and continuing thereafter through part of Febmary, 2019. Plaintiff ROBINSON'S 10 claims are common to those of the other similarly situated employees. 11 7. Plaintiff HUGO PINEDA (hereinafter "PINEDA") was at all relevant times herein an 12 employee of the Defendant AERI and is otherwise eligible to bring this action. Plaintiff PINEDA was 13 employed by the Defendant AERI to perform services as an hourly employee commencing in about 14 December of 2018 and continuing thereafter until the end of January, 2019. Plaintiff PINEDA'S claims 15 are common to those of the other similarly situated employees. 16 8. Plaintiffs are informed and believe and thereon allege that Defendant ASOMEO 17 ENVIRONMENTAL RESTORATION INDUSTRY LLC ("AERI") is a Califomia Limited Liability 18 Corporation with its primary place of business in the County of Sutter, and was the employer of the 19 Plaintiffs and the other similarly situated employees during the defined period. 20 9. Plaintiffs are informed and believe and thereon allege that Defendant PHILLIPS &. 21 JORDAN ENVIRONMENTAL SERVICES LLC. dba Phillips «& Jordan, Inc. (hereinafter "PHILLIPS 22 & JORDAN"), is a Delaware Corporation based in Tennessee who operates their business and provides 23 services in Califomia through their Regional Office located in Sacramento County. Hereinafter, 24 collectively, PHILLIPS & JORDAN and AERI will be referred to as "Defendants." 25 10. Plaintiffs are informed and believe and thereon allege that, at all times relevant. 26 Defendant PHILLIPS 8c JORDAN was the "direct contractor," and at all times relevant, Defendant 27 AERI was the "subcontractor" and that both Defendants w^ere contracted to perform restoration and 28 clean-up services in relation to the "Camp Fire" of November 8, 2018. Complaint for Damages 1 11. Plaintiffs are informed and believe and thereon allege that as the direct contractor. 2 Defendant PHILLIPS & JORDAN is liable for any wages owed to PlaintifF Class Members incurred by 3 subcontractor AERI, in AERI'S performance of labor in relation to the subject contract between 4 PHILLIPS & JORDAN and AERI, as identified in California Labor Code Section 218.7. 5 12. Pursuant to Code of Civil Procedure §§ 395(a) and 395.5, venue and jurisdiction are 6 proper because the Defendant PHILLIPS & JORDAN transacts business in the County of Sacramento, 7 operates their Regional Office in the County of Sacramento and entered into a contract with Defendant 8 AERI in the County of Sacramento for the restoration and clean-up associated with the Camp Fire. 9 Furthermore, the non-payment of wages as alleged herein had a direct effect on employees of the 10 Defendants in the State of Califomia, and in particular, within the County of Sacramento. The monetary 11 claims of the Plaintiffs are within the jurisdiction of this court. 12 13. Plaintiffs are informed and believe and thereon allege that the number of other similarly 13 situated employees is over thirty (30), therefore the monetary claims of the Plaintiffs exceed the 14 jurisdictional minimum of this Court. 15 14. Each of the similarly situated employees are identifiable persons who were or are 16 employed by the Defendants during the Class Period in the State of California. Plaintiffs reserve the 17 right to seek additional amendment of this Complaint to add as named Plaintiffs, some or all of the 18 persons who are similarly situated employees. 19 15. This Court has jurisdiction over Defendants because, upon information and belief. 20 Defendants' are either a resident of California, have minimum contacts in California, otherwise 21 intentionally avails itself of the protections of Califomia so as to render Califomia's exercise of 22 jurisdiction over Defendants consistent with traditional notions of fair play and substantial justice. 23 16. Defendants DOES 1 through 10, are owners, operators, managers, subsidiaries of or 24 owned entities of Defendants, and each of them, or persons otherwise responsible for paying the wages 25 and penalties alleged herein, who were conducting business in the State of California and employing 26 employees in the State of Califomia. Plaintiffs are ignorant of the tme names, capacities, relationships 27 and extent of participation in the conduct herein alleged, of the Defendants sued herein as DOES 1 28 through 10, inclusive, and therefore sues these Defendants by such fictitious names. Complaint for Damages 1 17. At all times relevant, each and every Defendant was an agent and/or employee of each 2 and every other Defendant. In doing the things alleged in the causes of action stated herein, each and 3 every Defendant was acting within the course and scope of this agency or employment, and was acting 4 with the consent, permission, and authorization of each remaining Defendant. All actions of each 5 Defendant as alleged herein were ratified and approved by every other Defendant or their officers or 6 managing agents. PlaintifF will amend this complaint to allege the tme names and capacities of the DOE 7 Defendants when ascertained. 8 18. At all times mentioned herein. Defendants, and each of them were members of and 9 engaged in a joint venture, partnership, and common enterprise, and acting within the course and scope 10 of and in pursuance of said joint venture, partnership, and common enterprise. Further, Plaintiffs allege 11 that all Defendants were joint employers for all purposes of Plaintiffs and int non-exempt employees. 12 m . EXHAUSTION OF ADMINISTRATIVE REMEDIES 13 19. Plaintiffs have sought permission pursuant to Labor Code § 2698 et seq. to pursue to the 14 claims set forth in this Complaint against Defendants as Private Attomey General on behalf of 15 themselves and other similarly situated employees. Pursuant to California Labor Code § 2699.3, 16 Plaintiffs timely filed their notice with the Labor Workforce and Development Agency ("LWDA") via 17 online submission on approximately March 28, 2019, and served notice of Defendants by Certified mail 18 prior to filing this action. 19 20. Plaintiffs have waited 65 days and have not received notice from the LWDA of its intent 20 to pursue Plaintiffs' claims. Plaintiffs have received authorization from the LWDA to pursue the claims 21 set forth in this Complaint against Defendants as Private Attomey Generals on behalf of themselves and 22 others similarly situated employees based on the LWDA'S failure to provide notice of its intent to 23 pursue these claims and based on Defendants' failure to cure. 24 IV. GENERAL ALLEGATIONS 25 21. During all, or a portion of the defined Period, the Plaintiffs and other similarly situated 26 employees were employed by Defendants, and each of them, in the State of California. During their 27 employment, Plaintiffs and other similarly situated employees were employees covered under one or 28 Complaint for Damages 1 more regulations or Industrial Welfare Commission (IWC) Wage Orders, including but not limited to 2 Wage Order 16-2001. 3 FIRST CAUSE OF ACTION 4 VIOLATION OF THE PRIVATE ATTORNEYS GENERAL ACT 5 (PlaintifTs and Aggrieved Employees on behalf of the State of California against All Defendants) 6 22. The allegations set forth in this Complaint are hereby realleged and incorporated by 7 reference. 8 23. Plaintiffs have alleged to the LWDA that Defendants have violated the following 9 provisions of the California Labor Code in their dealings with Plaintiffs and other similarly situated 10 current and former employees: 11 • Violation of Labor Code §§ 1194 and 510 (failure to pay overtime and minimum wages); 12 • Violation of Labor Code § 226.7 (failure to provide meal periods or premium wages in lieu 13 thereof); 14 • Violation of Labor Code § 226.7 (failure to provide rest breaks or premium wages in lieu 15 thereof); 16 • Violation of Labor Code §§ 201-203 (failure to pay final wages); 17 • Violation of Labor Code §§ 226 and 226.3 (failure to provide accurate wage statements); 18 • Violation of Labor Code § 2802 (failure to pay reimbursement for business expenses); 19 • Violation of Labor Code § 558 (violations of the provision of any Industrial Welfare 20 Commission Order); 21 • Violation of Labor Code § 1174 (failure to keep accurate time records); 22 • Violation of Labor Code § 970 (fraudulent inducement) 23 24. Plaintiffs have received authorization, based on the LWDA's failure to send notice of its 24 intent to pursue Plaintiffs claims and based on Defendants' failure to cure, to act on behalf of the Labor 25 Commissioner to assess civil penalties against Defendants. 26 25. Plaintiffs seek civil penalties against Defendants pursuant to Labor Code § 2699(f)(2) to 27 the extent there is no enumerated penalty provision for the specific sections cited above. 28 Complaint for Damages 1 26. Plaintiffs seek these civil penalties on behalf of themselves and all other former and 2 current employees from Defendants pursuant to Labor Code §§ 2699(a) and 2699.3. 3 Wherefore, Plaintiffs request relief as hereinafter prayed for. 4 SECOND CAUSE OF ACTION 5 VIOLATION OF LABOR CODE §§ 1194 and 510 6 FAILURE TO PAY OVERTIME WAGES 7 (Plaintiffs and Aggrieved Employees on behalf of the State of California against All Defendants) 8 27. The allegations set forth in this Complaint are hereby realleged and incorporated by 9 reference. 10 28. At all times relevant to this action. Industrial Welfare Commission Order No. 16-2001, 11 and Labor Code § 510 applied to Plaintiffs' and other similarly employees' employment by Defendants, 12 and provided that any work performed by an employee in excess of eight hours in a work day or forty 13 hours in a workweek be compensated at one-and-one-half times the employee's regular rate of pay. 14 29. Plaintiffs and other similarly situated employees routinely worked over eight hours in a 15 day and over forty hours in a workweek. 16 30. Defendants, and each of them, failed to lawfully compensate Plaintiffs and other similarly 17 situated employees for the hours worked in excess of eight hours in a day or forty hours in a workweek. 18 31. Plaintiffs and others similarly situated, are entitled to recover their unpaid overtime 19 wages and all penalties arising therefrom. Additionally, Plaintiffs' are entitled to attomeys' fees, interest 20 and costs pursuant to Labor Code § 1194. 21 Wherefore, Plaintiffs request relief as hereinafter prayed for. 22 THIRD CAUSE OF ACTION 23 VIOLATION OF LABOR CODE § 1194 and TWC Order No. 16-2001 24 FAILURE TO PAY MINIMUM WAGES 25 (Plaintiffs and Aggrieved Employees on behalf of the State of California against All Defendants) 26 32. The allegations set forth in this Complaint are hereby realleged and incorporated by 27 reference. 28 Complaint for Damages 1 33. At all times relevant to this action. Industrial Welfare Commission Order No. 16-2001 2 and Labor Code § 1194 applied to Plaintiffs' and other similarly situated employees' employment by 3 Defendants and required that California employees to receive the minimum wage for all hours worked at 4 the rate of $11.00 an hour in December 2018, and $12.00 an hour beginning January 1, 2019. 5 34. Defendants, and each of them, failed to pay minimum wages to Plaintiffs and other 6 similarly situated employees for all hours worked during their employment with Defendants. 7 Defendants' acts were intentional and in complete disregard for Plaintiffs' and other similarly situated 8 employees' rights under Califomia law. 9 35. As a direct and proximate result of the acts or omissions of Defendants, Plaintiffs and 10 other similarly situated employees, have been deprived of minimum wages due in an amount to be 11 determined at trial, and therefore. Plaintiffs are entitled to liquidated damages pursuant to Labor Code 12 §§ 1194 and 1194.2. 13 Wherefore, Plaintiff and Class members request relief as hereinafter prayed for. 14 FOURTH CAUSE OF ACTION 15 VIOLATION OF LABOR CODE SECTIONS 512, 226.7 AND IWC WAGE ORDER 16-2001 16 FAILURE TO PROVIDE MEAL PERIODS OR PREMIUM PAY IN LIEU THEREOF 17 (Plaintiffs and Aggrieved Employees on behalf of the State of California against All Defendants) 18 36. The allegations set forth in this Complaint are hereby realleged and incorporated by 19 reference. 20 37. At all times relevant, Wage Order 16-2001, and Labor Code §§ 512 and 226.7 were in 21 fiill force and effect requiring employers in California to provide employees with a meal period of not 22 less than thirty (30) minutes before their fifth hour of work for a work period of more than five hours. I f 23 an employer fails to provide an employee a meal period in accordance with the Labor Code or the 24 governing Wage Order, the employer shall pay the employee one (1) hour of pay at the employee's 25 regular rate of compensation for each work day that the meal period is not provided. 26 38. Defendants, and each of them, routinely failed to provide Plaintiffs and other similarly 27 situated employees with a thirty-minute meal period before their fifth hour of work. Defendants 28 8 Complaint for Damages 1 routinely required Plaintiffs and other similarly situated employees to work through their lunch or 2 required Plaintiffs and other similarly situated employees to work without taking a lunch. 3 39. Defendants, and each of them, failed to pay Plaintiffs and other similarly situated 4 employees one hour of premium pay for the days that they were not provided an opportunity to take a 5 thirty-minute meal break before their fifth hour. 6 Wherefore, Plaintiffs request relief as hereinafter prayed for. 7 FIFTH CAUSE OF ACTION 8 VIOLATION OF LABOR CODE SECTION 226.7 AND IWC WAGE ORDER 16-2001 9 FAILURE TO PROVIDE REST PERIODS OR PREMIUM PAY IN L I E U THEREOF 10 (Plaintiffs and Aggrieved Employees on behalf of the State of California against All Defendants) 11 12 40. The allegations set forth in this Complaint are hereby realleged and incorporated by 13 reference. 14 41. At all times relevant. Industrial Welfare Commission Order No 16-2001 and Labor Code 15 § 226.7 were in full force and effect requiring employers in California to provide employees with a ten- 16 minute rest period for every four hours worked, or a majorfractionthereof If an employer fails to 17 provide an employee a rest period in accordance with California law or applicable Wage Order, the 18 employer shall pay the employee one (1) hour of pay the employee's regular rate of compensation for 19 each workday that a rest period is not provided. 20 42. Defendants, and each of them, routinely failed to provide Pliaintiffs and other similarly 21 situated employees with a ten-minute rest period for every four hours worked. Defendants routinely 22 required Plaintiffs and other similarly situated employees to work through their rest breaks or required 23 Plaintiffs and other similarly situated employees to work without taking a rest break. 24 43. Defendants, and each of them, failed to pay Plaintiffs and other similarly situated 25 employees one hour of premium pay for the days that they were not provided a ten-minute rest period 26 for every four hours they worked. 27 Wherefore, Plaintiffs request relief as hereinafter prayed for. 28 Complaint for Damages 1 SIXTH CAUSE OF ACTION 2 VIOLATION OF LABOR CODE §§ 201, 202, AND 203 3 FAILURE TO PAY FINAL WAGES 4 (Plaintiffs and Aggrieved Employees on behalf of the State of California against All Defendants) 5 44. The allegations set forth in this Complaint are hereby realleged and incorporated by 6 reference. 7 45. California Labor Code § 201 requires an employer who discharges an employee to pay all 8 compensation due and owing to that employee immediately upon discharge. 9 46. California Labor Code § 202 requires an employer to pay all compensation due and 10 owing to an employee who quits within 72 hours of that employee quitting, unless the employee 11 provides at least 72 hours-notice of quitting, in which case all compensation is due at the end of the 12 employee's final day of work. 13 47. California Labor Code § 203 provides that if an employer willfully fails to pay 14 compensation promptly upon discharge, as required by § 201 or § 202, then the employer is liable for 15 waiting time penalties in the form on continue compensation of up to 30 work days. 16 48. Defendants, and each of them, willfully failed and refused to timely pay compensation 17 and wages, including overtime compensation that is sue and owing to Plaintiffs and other similarly 18 situated employees upon their termination of employment with Defendants. As a result. Defendants, and 19 each of them, are liable to Plaintiffs and other similarly situated employees, for waiting time penalties, 20 together with interest thereon and reasonable attomey's fees and costs, under Califomia Labor Code § 21 203. 22 Wherefore, Plaintiffs request relief as hereinafter prayed for. 23 SEVENTH CAUSE OF ACTION 24 VIOLATION OF LABOR CODE 226 25 FAILURE TO FURNISH ACCURATE WAGE STATEMENTS 26 (Plaintiffs and Aggrieved Employees on behalf of the State of Caiifornia against All Defendants) 27 49. The allegations set forth in this Complaint are hereby realleged and incorporated by 28 reference. 10 Complaint for Damages 1 50. California Labor Code § 226(a) requires employers semi-monthly or at the time of each 2 payment of wages to fiimish each employee with a statement itemizing, among other things, gross 3 wages eamed, and all deductions. Cal. Labor Code § 226(b) provides that if an employer knowingly and 4 intentionally fails to provide a statement itemizing, among other things, gross wages eamed and accurate 5 deductions, then the employee is entitled to recover the greater of all actual damages or fifty dollars 6 ($50) forthe initial violation and one hundred dollars ($100) for each subsequent violation, up to four 7 thousand dollars ($4000). 8 51. Defendants and each of them, knowingly and intentionally failed to fiimish to Plaintiffs 9 and others similarly situated employees itemized wage statements depicting their actual gross wages in 10 part due to Defendants' failure to accurately record Plaintiffs' and other similarly situated employees' 11 overtime and Defendants' failure to record and pay premium wages for missed meal period. 12 52. Defendants, and each of them, are liable to Plaintiffs and other similarly situated 13 employees forthe amounts provided by Cal. Labor Code § 226(e)(1) and for penalties and attomeys' 14 fees. 15 Wherefore, Plaintiffs request relief as hereinafter prayed for. 16 EIGHTH CAUSE OF ACTION 17 VIOLATION OF LABOR CODE 2802 18 FAILURE TO PAY REIMBURSEMENT EXPENSES 19 (Plaintiffs and Aggrieved Employees on behalf of the State of California against All Defendants) 20 53. The allegations set forth in this Complaint are hereby realleged and incorporated by 21 reference. 22 54. At all times relevant to this action. Labor Code § 2802 requires that an employer shall 23 indemnify his or her employee "for all necessary expenditures or losses incurred by the employee in 24 direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of 25 the employer." 26 55. At all times herein mentioned Defendants, and each of them, were the employers of 27 Plaintiffs and other similarly situated employees. During the course of their employment with 28 Defendants, Plaintiffs and other similarly situated employees were required to use their personal cell 11 Complaint for Damages 1 phones for work purposes, they were required to pay for their travel expenses, they were required to pay 2 for their training, and Plaintiffs and others similarly situated employees were required to pay for their 3 tools to perform services for the benefit of the Defendants. 4 56. As an actual and proximate result of the aforementioned violation. Plaintiffs and other 5 similarly situated employees have been damaged in an amount according to proof, but in an amount in 6 excess, of the jurisdiction of this Court. Plaintiffs and other similarly situated employees are entitled to 7 the losses they incurred for the benefit of the Defendants during their employment with Defendants: 8 Wherefore, Plaintiffs request relieF as hereinafter prayed for. 9 NINTH CAUSE OF ACTION 10 VIOLATION OF LABOR CODE 558 11 CIVIL PENALTIES FOR VIOLATION OF CALIFORNIA LABOR CODE WAGE AND HOUR 12 PROVISIONS AND PROVISIONS OF INDUSTRIAL WELFARE COMMISSION 13 (Plaintiffs and Aggrieved Employees on behalf of the State of California against All Defendants) 14 57. The allegations of this Complaint are hereby realleged and incorporated by reference. 15 58. Defendants, and each of them, have violated various provisions of the Labor Code and 16 IWC Wage Order 16-2001 as set forth above. In doing so. Defendants, and each of them are subjected to 17 civil penalties as follows: (1) For any initial violation, fifty dollars ($50) for each underpaid employee 18 for each pay period for which the employee was underpaid in addition to an amount sufficient to recover 19 underpaid wages; (2) For each subsequent violation, one hundred dollars ($100) for each underpaid 20 employee for each pay period for which the employee was underpaid in addition to an amount sufficient 21 to recover undeipaid wages; (3) Wages recovered pursuant to this section shall be paid to the affected 22 employee. 23 Wherefore, Plaintiffs request relief as hereinafter prayed for. 24 TENTH CAUSE OF ACTION 25 VIOLATION OF LABOR CODE §§ 247 AND 247.5 26 FAILURE TO POST NOTICE OF SICK LEAVE AND FAILURE TO K E E P ACCURATE 27 RECORDS OF PAID SICK L E A V E 28 (Plaintiffs and Aggrieved Employees on behalf of the State of California against All Defendants) 12 Complaint for Damages 1 59. The allegations set forth in this Complaint are hereby realleged and incorporated by 2 reference. 3 60. Labor Code § 247 provides that an employer must display a poster in a conspicuous place 4 containing information including: (1) An employee is entitled to accme, request, and use paid sick days; 5 (2) The amount of sick days provided for by this article; (3) The terms of use of paid sick days; (4) That 6 retaliation or discrimination against an employee who requests paid sick days or uses paid sick days, or 7 both, is prohibited and that an employee has the right under this article to file a complaint with the Labor 8 Commissioner against an employer who retaliates or discriminates against the employee. 9 61. An employer who willfully violates the posting requirement of this section is subject to a 10 civil penalty of not more than one hundred dollars ($100) per each offense. 11 62. Defendants, and each of them, willfully failed the posting requirements of Labor Code § 12 247, and therefore, are subjected to civil penalties of $100 for each offense. 13 63. Labor Code § 247.5 provides that an employer shall keep for at least three years records 14 documenting the hours worked and paid sick days accmed and used by an employee. If an employer 15 does not maintain adequate records pursuant to this section, it shall be presumed that the employee is 16 entitled to the maximum number of hours accmable under this article, unless the employer can show 17 otherwise by clear and convincing evidence. 18 64. Defendants, and each of them, have failed to keep accurate records of all paid sick days 19 accmed by Plaintiffs and other similarly situated employees. As a result of Defendants conduct. 20 Plaintiffs and other similarly situated employees have siiffered harm in an amount in excess of the 21 jurisdictional minimum of this Court. 22 Wherefore, Plaintiffs request relief as in hereinafter prayed for. 23 ELEVENTH CAUSE OF ACTION 24 VIOLATION OF LABOR CODE § 970 25 SOLICITATION OF EMPLOYEES BY MISREPRESENTATION 26 (Plaintiffs and Aggrieved Employees on behalf of the State of California against All Defendants) 27 65. The allegations set forth in this Complaint are hereby realleged and incorporated by 28 reference. 13 Complaint for Damages 1 66. California Labor Code § 970 provides that no person, or agent or officer thereof, directly 2 or indirectly, shall influence, persuade, or engage any person to change from one place to another in this 3 State or from any place outside to any place within the State, of from any place within the State to 4 outside, for the purpose of working in any branch of labor, through or by means of knowingly false 5 representations, whether spoken, written, or advertised in printed form, conceming either (a) The kind, 6 character, or existence of such work; (b) The length of time such work will last, or the compensation 7 therefor; (c) The sanitary or housing conditions relating to or surrounding the work; (d) The existence or 8 nonexistence of any strike, lockout, or other labor dispute affecting it and pending between the proposed 9 employer and the persons then or last engaged in the performance of the labor for which the employee is 10 sought. 11 67. Defendants, and each of them, willflilly made misrepresentations to the Plaintiffs and 12 other similarly situated employees regarding the kind, character, and existence of work, the length of 13 time the work will last, the compensations of the work, and the housing conditions relating to 14 employment, including but not limited to promises to provide and pay for certified training. Defendants 15 further promised to pay to Plaintiffs and those similarly situated per diem pay to cover food and lodging 16 costs for their relocation. Plaintiffs and other similarly situated employees reasonable relied on 17 Defendants' misrepresentations to their detriment. 18 68. As a direct and proximate result of Defendants' conduct. Plaintiffs and other similarly 19 situated employees have suffered harm in an amounf in excess of the jurisdictional minimum of this 20 Court. 21 69. The above described actions were perpetrated and/or ratified by a managing agent or 22 officer of Defendants. These acts were done with malice,fraud,oppression, and in reckless disregard of 23 Plaintiffs' rights and the rights of those similarly situated. Further, said actions were despicable in 24 character and wartant the imposition of punitive damages in a sum sufficient to punish and deter 25 Defendants' fiiture conduct. 26 Wherefore, Plaintiffs request relief as hereinafter prayed for. 27 28 14 Complaint for Damages 1 TWELFTH CAUSE OF ACTION 2 VIOLATION OF BUSINESS AND PROFESSIONS CODE § 17200, et seq. 3 UNFAIR COMPETITION ACT 4 (Plaintiffs and Aggrieved Employees on behalf ofthe State of California against All Defendants) 5 70. The allegations set forth in this Complaint are hereby realleged and incorporated by 6 reference. 7 71. Defendants' conduct, as alleged herein, has been and continues to be unfair, unlawful, 8 and harmfiil to Plaintiffs and other similarly situated employees. Defendants' activities, as alleged 9 herein, are violations of California law and constitute unlawfiil business acts and practices in violation of 10 California Business and Professions Code §§ 17200 et seq. 11 72. A violation of Cal. Bus. Prof code § 17200 may be predicated on the violation of any 12 state or federal law. In this case. Defendants had a policy and practice of failing to pay Plaintiffs and 13 other similarly situated employees all overtime hours worked, for missed rest and meal periods, for 14 reimbursement pay, and their final wages, which violates several California Labor Code Sections and 15 Industrial Commission Welfare Wage Order provisions. 16 73. Plaintiffs and other similarly situated employees have been personally injured by 17 Defendants unlawful and unfair business practices including but not limited to sufferingfinancialloss. 18 Plaintiffs and other similarly situated employees are entitled to restitution of the wages withheld and 19 retained by Defendants during the defined period. 20 74. Further, the Plaintiffs and other similarly situated employees request the violations of the 21 Defendants alleged herein be enjoined, and other equitable relief as this court deems proper. 22 Wherefore, Plaintiffs request relief as hereinafter prayed for. 23 V. PRAYER FOR RELIEF 24 WHEREFORE, PlaintifF(s) demand judgment against Defendants and any other Defendants who 25 may later be added as follows: 26 AS TO THE FIRST CAUSE OF ACTION 27 75. Penalties according to the following schedule: For any initial violation, one hundred 28 dollars ($100) for each aggrieved employee per pay period; For any subsequent violation, two hundred 15 Complaint for Damages 1 dollars ($200) for each aggrieved employee per pay period; or otherwise enumerated for specific Labor 2 Code sections; 3 76. Reasonable Attomeys' Fees and costs pursuant to Labor Code Section 2699; 4 77. Wages as proved at trial; 5 78. Any and all other applicable penalties pursuant to all applicable statutes or legal 6 principles; 7 79. For prejudgment interest on all amounts claimed; 8 80. Injunctive and Declaratory Relief; 9 81. For such other and fiirther relief as this Court may deem just and proper; 10 AS TO THE REMAINING CAUSES OF ACTION 11 82. Compensatory Damages, including general and special damages, including but not 12 limited to wages; 13 83. For double damages pursuant to Labor Code Section 972; 14 84. For Attomeys' fees and costs pursuant to all applicable statutes or legal principles; 15 85. Any and all other applicable penalties pursuant to all applicable statutes or legal 16 principles; 17 86. For punitive damages; 18 87. For prejudgment interest on all amounts claimed; 19 88. For such other and fiirther relief as the Court may deem just and proper. 20 21 22 Date: August \ 1 , 2019 / ^ ! A V A ( % L A M B & LUNDE 23 24 A. SAVAGE 25 E. RYAN LAMB MICHELLE LUNDE 26 Attomeys for Plaintiffs JAY ROBINSON and HUGO PINEDA, and 27 all others similarly situated 28 16 Complaint for Damages 1 DEMAND FOR JURY TRIAL 2 3 Date: August 15, 2019 SAVAGE, LAMB & LUNDE 4 5 6 PATRICIA ATSAVAGE 7 E. RYAN LAMB MICHELLE LUNDE 8 Attorneys for Plaintiffs 9 JAY ROBINSON and HUGO PINEDA and all others similarly situated 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17 Complaint for Damages