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1 Timothy J. Long (SBN 137591)
Samuel S. Hyde (SBN 327065)
2 GREENBERG TRAURIG, LLP —^ /"
1201 K Street, Suite 1100
3 Sacramento, CA 95814 MAR - 6 2Q20
Telephone: 916.442.1111
4 Facsimile: 916.448.1709
longt@gtlaw.com
5 Bv:
Rowena Santos (SBN 210185)
6 GREENBERG TRAURIG, LLP
18565 Jamboree Road, Suite 500
7 Irvine, CA 92612
Telephone: 949.732.6500
8 Facsimile: 949.732.6501
9 Attorneys for Defendant
HEALTH NET OF CALIFORNIA, INC.
10
SUPERIOR COURT OF THE STATE OF CALIFORNIA
11
COUNTY OF SACRAMENTO
12
ANDREA SPEARS, an individual, on behalf Consolidated Case No. 34-2017-00210560-
13 of herself and on behalf of all persons CU-OE-GDS (Consolidated with Case No.
similarly situated, 34-2017-00216685-CU-OE-GDS)
14 Plaintiff,
15 DECLARATION OF TIMOTHY J.
LONG IN SUPPORT OF MOTION TO
16 STRIKE SPEARS' REPRESENTATIVE
HEALTH NET OF CALIFORNIA, INC., a PAGA CLAIMS
Califomia Corporation; and Does 1 through
17 50, inclusive, Date: April 3,2020
Time: 1:30 p.m.
18 Defendants. Dept: 41
Judge: Hon. David De Alba
19
Complaint Filed: Aprils, 2017
20 FAC Filed: June 29,2017
21
TOMAS R. ARANA, on behalf of himself, all
Complaint Filed: August 1,2017
22 others similarly situated. Consolidated Complaint Filed: Dec. 21,2017
23 Plaintiff,
24 V.
25 HEALTH NET OF CALIFORNL\, INC., a
Califomia corporation; and DOES 1-50,
26 inclusive.
27 Defendant.
28 1
DECLARATION OF TIMOTHY J. LONG IN SUPPORT OF MOTION TO STRIKE SPEARS' REPRESENTATIVE
PAGA CLAIMS
1 I, Timothy J. Long, hereby declare as follows:
2 1. I am an attomey duly admitted to practice before the courts of the State of
3 Califomia and a shareholder in the law firm of Greenberg Traurig LLP, attomeys of record for
4 Defendant Health Net of Califomia, Inc. ("HNCA"). I make this declaration on personal
5 knowledge and, if swom as a witness, could competently testify to the following facts except
6 where otherwise indicated.
7 2. On June 15,2017, Ms. Spearsfiledan amended complaint in this action, adding a
8 representative action under the Private Attorneys' General Act ("PAGA"). Ms. Spears included
9 the written noticed shefiledwith the Labor and Workforce Development Agency ("LWDA") on
10 April 5, 2017, as Exhibit 1 to her amended complaint. A tme and correct copy of Ms. Spears'
11 amended complaint is attached hereto as Exhibit A.
12 3. On August 30,2019, the Court issued an Order Denying Defendant's Motions for
13 Why Plaintiffs Spears and Arana's Cases Should Not Proceed As PAGA Representative Actions.
14 A tme and correct copy of that Order is attached hereto as Exhibit B.
15 4. On September 27,2019, the Court held a hearing in this matter. A tme and correct
16 copy of the relevant portions of that hearing transcript is attached hereto as Exhibit C.
17 5. On June 1,2018, an order was issued in Robert Turner, et al. v. Ampac Fine
18 Chemicals LLC, No. 34-2015-00176993 in the Superior Court of Califomia, County of
19 Sacramento. A tme and correct copy of that order is attached hereto as Exhibit D.
20 6. On December 5,2018,1 deposed Ms. Spears in this matter. A tme and correct
21 copy of the relevant portions of Ms. Spears' deposition transcript are attached hereto as Exhibit
22 E.
23 7. Spears' counsel, Aparajit Bhowmik, deposed HNCA's Person Most Qualified
24 Diane Rodes on May 2,2018. A trae and correct copy of the relevant portions of Ms. Rodes'
25 deposition is attached hereto as Exhibit F.
26 8. On December 21,2018, Health Net Inc.'s Director of Human Resources Diane
27 Rodes submitted a Declaration in Support of Motion as to Why Spears' Case Should Not Proceed
28 as a PAGA Representative Action. A trae and correct copy of that declaration is attached hereto
2
DECLARATION OF TIMOTHY J. LONG IN SUPPORT OF MOTION TO STRIKE SPEARS' REPRESENTATIVE
PAGA CLAIMS
1 as Exhibit G.
2 I declare under the penalty of perjury ofthe laws of the State of Califomia that the
3 foregoing is trae and correct. Executed this 6th day of March, 2020, m.Sacrament6, California.
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DECLARATION OF TIMOTHY J. LONG IN SUPPORT OF MOTION TO STRIKE SPEARS' REPRESENTATIVE
PAGA CLAIMS
EXHIBIT A
1 BLUMENTHAL, NORDREHAUG & BHOWMIK LLP
Norman B. Blumenthal (State Bar #068687)
2 Kyle R. Nordrehaug (State Bar #205975)
Aparajit Bhowmik (State Bar #248066).
3 2255 Calle Clara
La Jolla, CA 92037
4 Telephone: (858)551-1223
Facsimile: (858) 551-1232
5 Website: www.Damlawca.com
6 Attorneys for Plaintiff
7.
8
SUPERIOR COURT OF THE STATE OF CALIFORNIA
9
IN AND FOR THE COUNTY OF SACRAMENTO
10
11 ANDREA SPEARS, an individual, on Case No. 34-2017-00210560
12 behalf of herself and on behalf of all
persons similarly situated, FIRST AMENDED CLASS ACTION
COMPLAINT FOR;
13
14 Plaintiff, 1. UNFAIR COMPETITION
VIOLATION OF CAL. BUS. & PROF.
15 vs. CODE§§ 17200, etseq.;
16 HEALTH NET OF CALXFORNIA, INC.. 2. FAILURE to PAY OVERTIME
a Califomia Corporation; and Does 1 WAGES IN VIOLATION OF CAL.
through 50, Inclusive, LAB. CODE §§ 510, etseq.;
17
3. FAILURE TO PROVIDE
18 ACCURATE ITEMIZED STATEMENTS
Defendants. IN VIOLATION OF CAL. LAB. CODE §
19 226; -
20 4. FAILURE TO PROVIDE WAGES
21 WHEN DUE IN VIOLATION OF CAL.
LAB. CODE §§ 201,202 AND 203; and,
22 5. VIOLATION OF tHE PRIVATE
23 ATTORNEYS GENiERAL ACT
[LABOR CODE §§ 2698, et seq.].
24
25 DEMAND FOR A JURY TRIAL
26
27
28 1
FIRST AMENDED CLASS ACTION COMPLAINT
CaseNoi 34-2017-00210560
1 Plaintiff Andrea Spears ("PLAINTIFF"), an individual, on behalf of herself and all other
2 similarly situated current and former employees, alleges on information and belief, except for
3 her o^yn acts and knowledge which are based on personal kn6wledge, the following:
4
5 THE PARTIES
6 1. Defendant Health Net Of Califomia, Inc. ("DEFENDANT") is a Califomia
7 corporation and at all relevant tiines mentioned herein conducted and continues to conduct
8 substantial and regular business throughout Califomia.
9 2. DEFENDANT provides health care insurance and other services in Califomia,
10 the United States. The company also iinplenients a tool that electronically prompts doctors to
11 prescribe generics. The company was founded in 1977 and is based in Woodland Hills,
12 California. Health Net Of California, Inc. operates as a subsidiary of Health Net Inc.
13 3. PLAINTIFF was employed by DEFENDANT in Califomia as a non-exempt
14 employee entitled to overtime pay and riieal and rest periodsfromDecember of 2013 to October
15 of 2016. PLAINTIFF was at all times relevant mentioned herein classified by DEFENDANT
16 as a non-exempt employee paid in whole or in part on an hourly basis and received additional
17 compensationfromDEFENDANT in the form of noh-discretionary incentive wages.
18 4. PLAINTIFF brings diis Class Action on behalf of herself and a California class,
19 defined as all individuals who are or previously were employed by DEFEND^^T in California
20 and classified as non-exempt employees (the "CALIFORNIA CLASS") at any time during the
21 period beginning four (4) years prior tottiefilingof this Complaint ahd ending on the date as
22 determined by the Court (the "CALIFORNIA GLASS PERIOD"). The amount in controversy
23 for the aggregate claim Of CALIFORNIA CLASS Members is underfivemillion dollars
24 ($5,000,000.00). •
25 5. PLAINTIFF brings this Class Actipii on behalf of herself and a CALIFORNIA
26 CLASS in order tpfollycompensate the CALIFORNIA CLASS for their losses incurred during
27 the CALIFORNIA CLASS PERIOD caused by DEFENDANT'S uniform policy and practice
28
FIRST AMENDED CLASS ACTION COMPLAINT
Case No. 34-2017-00210560
1 which failed to lawfully compensate these employees for all their overtime worked.
2 DEFENDANT'S uniform policy and practice alleged herein is an unlawfol, unfair and deceptive
3 business practice whereby DEFENDANT retained and continues to retain wages due
4 PLAINTIFF and the other members ofthe CALIFORNIA CLASS. PLAINTIFF and the other
5 meinbers of the CALIFORNIA CLASS seek an injunction enjoining such conduct by
6 DEFENDANT in thefottire,relief for the named PLAINTIFF and the other members of the
7 CALIFORNIA CLASS who have been economically injured by DEFENDANT'S past and
8 current unlawfol conduct, and all other appropriate legal and equitable relief
9 6. The trae names and capacities, whether individual, corporate, subsidiary,
10 partnership, associate or otherwise of defendants DOES 1 through 50, inclusive, are presently
M imknown to PLAINTIFF who therefore sues these Defendants by suchfictitiousnames pursuant
12 tb Cal. Civ. Proc. Code § 474. PLAINTIFF will seek leave to amend this Complaint to allege
13 the trae names and capacities of Does 1 through 50, inclusive!, when they are ascertained.
14 PLAINTIFF is informed and believes, and based upon that information and belief alleges, that
15 the Defendants named iii this Complaint, including DOES 1 through 50, inclusive, are
16 responsible in some maimer for one or more of the events arid happenings that proximately
17 causedttieinjuries and damages hereinafrer alleged.
18 7. The agents, servants and/or employees ofthe Defendants and each of them acting
19 on behalf of the Defendants acted within the course and scope of his, her or its authority as the
20 agent, servwt and/or employee of the Defendants, and personally participated in the conduct
21 alleged herein on behalf of the Defendants with respect to the conduct alleged herein.
22 Consequently, the acts of each Defendant are legally attributable to the other Defendants and
23 all Defendants are jointly and severally liable to jPLAJNTIFF and the other members ofthe
24 CALIFORNIA CLASS, for the loss sustained as a proximate result of the conduct of the
25 Defendants' agents, servants and/or employees.
26 HI
i
27 III
28
FIRST AMENDED CLASS ACTION COMPLAINT
Case No. 34-2017-00210560
1 THE CONDUCT
2 8. During the CALIFORNIA CLASS PERIOD, DEFENDANT failed and continues
3 to fail to accurately calculate and pay PLAINTIFF and the other members ofthe CALIFORNIA
4 CLASS for their overtime worked. DEFENDANT systematically, unlawfoUy and unilaterally
5 failed to accurately calculate wages for overtime worked by PLAINTIFF and other members
6 ofthe CALIFORNIA CLASS in order to avoid paying these employees the correct overtime
7 compensation. As a result, PLAINTIFF and the other members ofttieCALIFORNIA CLASS
8 forfeited wages due them for working overtime vsdthput compensation at the correct overtime
9. rates. DEFENDANT'S uniform policy and practice to hot pay the rnembers of the
10 CALlFdRNIA.CLASS the correct overtime rate for all overtime workied iii accordance with
11 applicable law is evidenced by DESCENDANT'S business records.
12 9. State law provides that employees must be paid overtime at one-and-one-half
13 times their "regular rate ofpay." PLAINTIFF and other CALIFORNIA CLASS Members were
14 compensated at an hourly rate plus incentive pay that was tied to specific elements of an
15 employee's performance.
16 10. The second component of PLAINTIFF'S and ottier CALIFORNL\ CLASS
17 Members' compensation was DEFENDANT'S noil-discretionary incentive program that paid
18 PLAINTIFF and other CALIFORNIA CLASS Members incentive wages based on" ttieir
19 performance for DEFENDANT. The non-discretionaiy incentive program provided all
20 employees paid on an hourly basis with incentive compensation when the employees met the
21 various performance goals set by DEFENDANT, including but not limited to, health beaefits
22 cash oiit options. PLAINTIFF and other CALIFORNIA CLASS Members were entitled to
23 receive "cash back" payments for any imused portion ofttieirmedical benefits. However, when
24 calculating the regular rate of pay iii order to pay overtime to PLAINTIFF and other
25 CALIFORNIA CLASS Members, DEFENDANT failed to includettie incentive cornpensation
26 as part of the employees' "regular rate of pay" for purposes of calculatiiig overtime pay.
27 Management and supervisors described the incentive program tb potential and new employees
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HRST AMENDED GLASS ACTION COMPLAINT
Case No. 34-2017-00210560
1 as part of the compensation package. As a matter of law, the incentive compensation received
2 by PLAINTIFF and ottier CALIFORNIA CLASS Members must be included in the "regular
3 rate of pay." The failure to do so has resulted in a systematic underpayment of overtime
4 compensation to PLAINTIFF and other CALIFORNIA CLASS Members by DEFENDANT.
5 11. In violation of the applicable sections of the Califomia Labor Code and the
6 requirements ofthe Indusfrial Welfare Commission ("IWC") Wage Order, DEFENDANT as
7 a matter of company policy, practice and procedure, mtentionally, knowingly and systematically
8 failed to compensate PLAINTIFF andtiieottier members ofttieCALIFORNIA CLASS at tiie
9 correct rate of pay for all overtime worked. This uniform policy and practice of DEFENDANT
10 is intended to putposefolly avoid the pajonent of the correct overtime compensation as required
11 by California law which allowed DEFENDANT to illegally profit and gain an unfair advantage
12 over competitors who complied with the law. To the extent equitable tolling operates to toll
13 claims byttieCALIFORNIA CLASS against DEFENDANT, ttie CALIFORNIA CLASS
14 PERIOD should be adjusted accordingly.
15 12. As a result of their rigorous work schedules, PLAINTIFF and Other
16 CALIFORNIA GLASS Members were alsofromtime to time unable to take off duty meal
17 breaks and were not folly relieved of duty for meal periods. PLAINTIFF and other
18 CALIFORNIA CLASS Members were required to perform work as ordered by DEFENDANT
19 for more thanfive(5) hours dining a shift without receiving an off-duty meal break. Further,
20 DEFENDANT failed to provide PLAINTIFF and CALIFORNLA CLASS Members witti a
21 second off-duty meal period each workday in which these employees were required by
22 DEFENDANT tp work ten (10) hours of work, PLAINTIFF andtiieottier CALIFORNIA
23 CLASS Members therefore forfeited meal breaks without additional compensation and in
24 accordance witti DEFENDANT'S strict corporate policy and practice.
25 13, During flie CALIFORNLA CLASS PERIOD, PLAINTIFF and otiier
26 CALIFORNIA CLASS Members were also required to work in excess of four (4) hours without
27 being provided ten (10) minute rest periods. FUrttier, these employees were denied their first
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FIRST AMENDED CLASS ACTION COMPLAINT
Case No. 34-2017-00210560
^1
1 rest periods of at least ten (10) minutes for every shift worked of at least two (2) to four (4)
2 hours, afirstand second rest period of at least ten (10) minutes for every shift worked of
3 between six (6) and eight (8) hours, and afirst,second and third rest period of at least ten (10)
4 minutes for every shift worked of ten (10) hours or more. PLAINTIFF and other
5 CALIFORNIA CLASS Members were also not provided with one hour wages in lieu thereof
6 As a result oftiieirrigorouswork schedules, PLAINTIFF and other CALIFORNIA CLASS
7 Members were systemically denied ttieir proper rest periods by DEFENDANT and
8 DEFENDANT'S managers.
9 14. When PLAINTIFF and ottier CALIFORNIA CLASS Members worked overtime
10 in the same pay period they eamed mcentive wages and/or missed meal and rest breaks,
11 DEFENDANT also failed to provide PLAINTIFF andttieottier members ofttieCALIFORNLA
12 CLAS S with complete and accurate wage statements which failed to show, among other things,
13 the correct overtime rate for overtime worked, including, work performed in excess of eight (8)
14 hours in a workday and/or forty (40) hours in any workweek, and the correct penalty payments
15 or missed meal and rest periods. Cal. Lab. Code § 226 provides that every employer shall
16 fimiish each of his or her employees with an accurate itemized wage statement m writing
17 showing, among other things, gross wages eamed and all applicable hourly rates in effect during
18 the pay period and the corresponding amount oftimeworked at each hourly rate. Additionally,
19 ttie wage statements DEFENDANT issued to PLAINTIFF and other CALIFORNLA CLASS
20. Members violated Cal. Lab. Code Section 226(a) intiiatDEFENDANT tailed to correctly Ust
21. the correct name of tiie legal entity that was the employer of PLAINTIFF and ttie
22 CALIFORNIA CLASS Members. Aside,fromthe violations listed above in this paragraph,
23 DEFENDANT failed to issue to PLAINTIFF an itemized wage statementtiiatlists all ttie
24 requirements under Califomia Labor Code 226 et seq. As a result,fromtime to time
25 DEFENDANT provided PLAINTIFF andttieotiier members ofttieCALIFORNLA CLASS
26 with wage statements which violated Cal. Lab. Code § 226.
27 15. By reason of this uniform conduct applicable to PLAINTIFF and all
28
FIRST AMENDED CLASS ACTION COMPLAINT
Case No. 34-2017-00210560
1 CALIFORNIA CLASS Members, DEFENDANT committed acts of unfair competition in
2 violation oftiieCalifomia Unfair Competition Law, Cal. Bus. & Prof Code §§ 17200, etseq.
3 (the "UCL"), by engaging in a company-wide policy and procedure which failed to accurately
4 calculate and record the correct overtime rate for the overtime worked by PLAINTIFF and other
5 CALIFORNIA CLASS Members. The proper calculation of these employees' overtime hour
6 rates is the DEFENDANT'S burden. As a result of DEFENDANT'S intentional disregard of
7 the obligation to meet this burden, DEFENDANT failed to properly calculate and/or pay all
8 required overtime compensation for work performed by the members of the CALIFORNIA
9 CLASS and violated the Califomia Labor Code and regulations promulgated thereunder as
10 herein alleged.
11 16. Specifically as to PLAINTIFF'S pay, DEFENDANT provided compensation to
12 her in the form of two components. One component of PLAINTIFF'S compensation was a base
13 hourly wage. The second component of PLAINTIFF'S compensation were non-discretionary
14 incentive wages as described herein in Paragraph No. 10. DEFENDANT paid the incentive
15 wages, SO long as PLAINTIFF met certain predefined performance requirements. PLAINTIFF
16 met DEFENDANT'S predefined eligibility performance requirements in various pay periods
17 ttiroughout her employment witti DEFENDANT and DEFENDANT paid PLAINTIFF the
18 incentive wages. During these pay periods in which PLAINTIFF was paid the non-
19 discretionary incentive wages by DEFENDANT, PLAINTIFF also worked overtime for
20 DEFENDANT, but DEFENDANT never mcludedttieincentive compensation in PLAINTIFF'S
21 regular rate of pay for the purposes of calculating what should have been PLAINTIFF'S
22 accurate overtime rate and thereby underpaid PLAINTIFF for overtime worked throughouther
23 employment witti DEFENDANT. The incentive compensation paid by DEFENDANT
24 constituted wages within the meaning of the Califomia Labor Code and thereby should have
25 been part of PLAINTIFF'S "regular rate of pay." PLAINTIFF was alsofromtimeto time
26 unable to take off duty meal and rest breaks and was notfollyrelieved of duty for her meal
27 periods. PLAINTIFF was required to perform work as ordered by DEFENDANT for more than
28
FIRST AMENDED CLASS ACTION COMPLAINT
Case No. 34-2017-00210560
) ' ) -
1 five (5) hours during a shift without receiving an off-duty meal break. Further, DEFENDANT
2 failed to provide PLAINTIFF with a second off-duty meal period each workday in which he
3 was required by DEFENDANT to work ten (10) hours of work. PLAINTIFF ttierefore
4 forfeited meal and rest breaks without additional compensation and in accordance with
5 DEFENDANT'S strict corporate policy and practice. DEFENDANT also provided
6 PLAINTIFF witii a paysUib tiiat failed to accurately display PLAINTIFF'S correct rates of
7 overtime pay and payments for missed meal and rest periods for certain pay periods in violation
8 of Cal, Lab. Code § 226(a). To date, DEFENDANT has not folly paid PLAINTIFF the
9 overtime compensation still owed to her or any penalty wages owed to her under Cal. Lab. Code
10 § 203. The amount in conttoversy for PLAINTIFF individually does not exceed the sum or
11 value of $75,000.
12
13 JURISDICTION AND VENUE
14 17. This Court has jurisdiction over this Action pursuant to Califomia Code of Civil
15 Procedure, Section 410.10 and Califomia Business & Professions Code, Section 17203. This
16 action is brought as a Class Action on behalf of PLAINTIFF and similarly situated employees
17 of DEFENDANT pursuant to Cal. Code of Civ. Proc. § 382.
18 18. Venue is proper in this Court pursuant to Califomia Code of Civil Procedure,
19 Sections 395 and 395.5, because PLAINITFF resides in tiiis County and DEFENDANT (i)
20 currently maintains and at all relevant times maintained offices and facilities in this County
21 and/or conducts substantial business in this County, and (ii) committed the wrongfol conduct
22 herein alleged in ttiis County against members of the CALIFORNIA CLASS and
^3 CALFORNLA LABOR SUB-CLASS. -
24
25 THE CALIFORNIA CLASS
26 19. PLAINTIFF brings the First Cause ofAction for Unfair, Unlawfol and Deceptive
27 Business Practices pursuant to Cal. Bus. & Prof Code §§ 17200, etseq. (the "UCL") as a Class
28
8
FIRST AMENDED CLASS ACTION COMPLAINT
Case No. 34-2017-00210560
n n )
1 Action, pursuant to Cal. Code of Civ. Proc. § 382, on behalf of a Califomia class, defined as
2 all individuals .who are or previously were employed by DEFENDANT ui California and
3 classified as non-exempt employees (the "CALIFOIWIA CLASS") at any time during the
4 period beginning four (4) years prior totiiefilingof this Complaint and ending on the date as
5 determined bytiieCourt (tiie "CALIFORNIA CLASS PERIOD"). The amount in controversy
6. fortiieaggregate claim of CALIFORNIA CLASS Members is underfivemillion dollars
7 ($5,000,000.00).
8 20. Tottieextent equitable tolling operates to toll claims by the CALIFORNIA
9 CLASS against DEFENDANT, the CALIFORNIA CLASS PERIOD should be adjusted
10 accordingly.
11 21. The California Legislature has commanded that "all wages eamed by any.
12 perison in any employment are due and payable twice during each calendar month, on days
13 designated ih advance by the employer as the regular paydays", andfiirtherthat "[a]ny work
14 in excess of eight hours in one workday and any work in excess of 40 hours in any one
15 workweek . . . shall be compensated at the rate of no less than one and one-halftimesthe
16 regular rate of pay for an employee." (Lab. Code § 204 and § 510(a).) TTie Industrial Welfare
17 Commission (IWC),, however, is statutorily authorized to "establish exemptionsfromttie
18 requirement that an overtime rate of conlpensation bepaid^ for executive, administrative, and
19 professional employees, provided [inter alia]ttiatthe employee is primarily engaged in duties
20 that me^t the test ofthe exemption, [and] customarily and regul^ly exercises discretion and
21 independent judgment in performing those duties..." (Lab. Code §. 5lb(a).) Neittier the
22 PLAINTIFF norttieottier members ofttieCALIFORNIA CLASS and/ortiieCALIFORNIA
23 LABOR SUB-CLASS qualify for exemptionfromthe above requirements.
24 22. DEFENDANT, as a matter of company policy, practice and procedure, and in
25 violation oftiieapplicable Labor Code, Industrial Welfaris Corhmissioh ("IWC") Wage Order
26 requirements, and the applicable provisions bf Califomia law, intentionally, knowingly, and
27 wilfolly, engaged in a practice whereby DEFENDANT systematically failed tp correctly
^ 9
FIRST AMENDED CLASS ACTION COMPLAINT
Case No. 34-2017-00210560
1 calculate and record overtime compensation for overtime worked by PLAINTIFF and the other
2 members ofttieCALIFORNIA CLASS, eventiioughDEFENDANT enjoyedtiiebenefit of this
3 work, required employees to perform this work and permitted or suffered to permit this
4 overtime work.
5 23. DEFENDANT has the legal burden to establish that each and every
6 CALIFORNIA CLASS Member is jpaid the applicable rate for all overtime worked and to'
7 accurately calculate the "regular rate of pay" by including the incentive compensation that
• 8. PLAINTIFF and members oftiieCALIFORNIA CLASS were awarded by DEFENDANT.
9 D E F E N D A N T ; however, as a matter of uniform and systematic policy and procedure failed to
10 have in place during the CALIFORNIA CLASS PERIOD and still fails to have in place a policy
11 or practice to ensure that each and every CALIFORNIA CLASS Member is paid the applicable
12 overtime rate for all overtime worked, so as to satisfy their burden. This common business
13 practipe applicable to each and every CALIFORNIA CLASS Member can be adjudicated on
14 a class-wide basis as unlawfol, unfair, and/or deceptive under Cal. Business & Professions Code
15 § § 17^00, et seq. (the "UCL") as causation, damages, and reliance are not elements of this
16 claim.
17 24. At notimeduring the CALIFORNIA CLASS PERIOD wasttiecompensation for
18 any member of ttie CALIFORNIA CLASS properly recalculated so as to compensate ttie
19 employee for all overtime worked at the applicable rate, as required by California Laboi- Code
20 §§ 204 and 510, et seq. At no time during the CALIFORNIA CLASS PERIOD was ttie
21 overtime compensation for any member of the CALIFORNIA CLASS properly recalculated
22 so as to include all .earnings in the overtime compensation calculation as required by California
23 Labor Code §§ 510, etseq.
24 25. The CALIFORNIA CLASS, is so nvunerOustiiatjoinder of all CALIFORNIA
25 CLASS Members is impracticable.
26 26. DEFENDANT uniformly violatedttierightsofttieCALIFORMA CLASS under
27 California law by:
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10
FIRST AMENDED GLASS ACTION COMPLAINT
Case No. 34-2017-00210560
1 (a) Violating the Califomia Unfair Competition Laws, Cal. Bus. & Prof Code
2 §§ 17200, et seq., by unlawfolly, unfairly and/or deceptively having in
3 place company policies, practices and procedures that failed to pay all
4 wages due the CALIFORNIA CLAS S for all overtime worked, and failed
5 to accurately record the applicable rates of all overtime worked by the
6 CALIFORNIA CLASS;
7 (b) Committing an act of unfair competition in violation of the Califomia
8 Unfair Competition Laws, Cal. Bus. & Prof Code §§ 17200, et seq., by
9 unlawfolly, unfairly, and/or deceptively having in place a company policy,
10 practice and procedure that failed to correctly calculate overtime
11 compensation due to PLAINTIFF andtiiemembers ofthe CALIFORNLA
12 CLASS; and,
13 (c) Committing an act of unfair competition in violation of the Califomia
14 Unfair Competition Laws, Cal. Bus. & Prof Code §§ 17200, et seq., by
15 failing to provide mandatory meal and/or rest breaks to PLAINTIFF and
16 ttie CALIFORNLA CLASS members.
17 27. This Class Action meets the stamtory prerequisites for the maintenance of a Class
18 Action as set forth in Cal. Code of Civ. Proc. § 382, in ttiat:
19 (a) The persons who comprise the CALIFORNIA CLASS are so numerous
20 that the joinder of all such persons is impracticable and the disposition of
21 their claims as a class will benefit the parties and the Court;
22 (b) Nearly all facfoal, legal, statutory, declaratory and injunctive relief issues
23 that are raised in this Complaint are common to the CALIFORNIA
24 CLASS will apply uniformly to every member oftiieCALIFORNIA
25 CLASS;
26 (c) The claims of the representative PLAINTIFF are typical of the claims of
27 each member ofttieCALIFORNIA CLASS. PLAINTIFF, like all ttie
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FIRST AMENDED CLASS ACTION COMPLAINT "
Case No. 34-2017-00210560
)
1 other members of the CALIFORNIA CLASS, was subjected to the,
2 uniform employment practices of DEFENDANT and was a non-exempt
3 employee paid on an hourly basis and paid additional non-discretionary
4 incentive wages who was subjected to the DEFENDANT'S practice and
5 policy which fails to pay the correct rate of overthne wages due to the
6 CALIFORNIA CLASS for all overtime worked byttieCALIFORNIA
7 CLASS and thereby systematically underpays overtime compensation to
8 ttie CALIFORNIA CLASS. PLAINTIFF sustained economic injury as a
9 result of DEFENDANT'S employment practices. PLAINTIFF and tiie
10 members of the CALIFORNIA CLASS were and are similarly or
11 identicallyharmedby the same unlawfol, deceptive, unfair and pervasive
12 pattem of misconduct engaged in by DEFENDANT; and,
13 (d) The representative PLAINTIFF will fairly and adequately represent and
14 protect the interest of ttie CALIFORNIA CLASS, and has retained
15 counsel who are competent and experienced in Class Action litigation.
16 There are no material conflicts between the claims of the representative
17 PLAINTIFF andttiemembers ofttieCALIFORNIA CLASSttiatwould
18 make class certification inappropriate. Counsel for the CALIFORNIA
19 CLASS will vigorously assertttieclaims of all CALIFORNIA CLASS
20 Members.
21 28. In addition to meeting the stafotory prerequisites to a Class Action, this action
22 is properly maintained as a Class Action pursuant to Cal. Code of Civ. Proc. § 382, m that:
23 (a) Without class certification and determination of declaratory, injunctive,
24 statutory and other legal questions within the class format, prosecution of
25 separate actions by individual members of the CALIFORNIA CLASS will
26 create theriskof:
27 1) Inconsistent or v^ing adjudications with respect to individual
28
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FIRST AMENDED CLASS ACTION COMPLAINT
Case No. 34-2017-00210560
1 !
1 members of the CALIFORNIA CLASS which would establish
2 incompatible standards of conduct for the parties opposing the
3 CALIFORNIA.CLASS; and/or,
4 2) Adjudication with respect to individual members of the
5 CALIFORNIA CLASS which would as a practical matter be
6 dispositive of interests of the other members not party to the
7 adjudication or substantially impair or impede their ability to
8 protect their interests.
9 (b) The parties opposing the CALIFORNIA CLAS S have acted or refosed to
10 . act on grounds generally applicable to the CALIFORNIA CLAS S, making
11 appropriate class-wide relief with respect to the CALIFORNIA CLASS
12 as a whole in that DEFENDANT uniformly failed to pay all wages due.
13 Including the correct overtime rate, for all worked by the members of the
14 CALIFORNLA CLASS as required by law;
15 1) With respect to the First Cause of Action, thefinalrelief on behalf
16 ofthe CALIFORNIA CLASS sought does not relate exclusively to
17 restifotion because through this claim PLAINTIFF seeks
18 declaratory relief holdingttiatthe DEFENDANT'S policy and
19 practices constitute unfair competition, along with declaratory
20 relief, injunctive relief, and incidental equitable relief as may be
21 necessary to prevent and remedy the conduct declared to constitute
22 unfair competition;
23 (c) Common questions of law and fact exist as to the members of the
24 CALIFORNIA CLASS, with respect to the practices and violations of
25 Califomia law as listed above, and predominate over any question
26 affecting only individual CALIFORNIA CLASS Members, and a Class
27 Action is superior to other available methods for the fair and efficient
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FIRST AMENDED CLASS ACTION COMPLAINT
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1 adjudication of the controversy, including consideration of:
2 1) The interests oftiiemembers oftiieCALIFORNIA CLASS in
3 individually controlling the prosecution or defense of separate
4 actions in that the substantial expense of individual actions will be
5 avoided to recover the relatively small amount of economic losses
6 sustained bythe individual CALIFORNIA CLASS Members when
7 compared to die substantial expense and burden of individual
8 prosecution of this litigation;
9 2) Class certification will obviate the need for unduly duplicative
10 litigation that would create the risk of:
11 A. Inconsistent or varying adjudications with respect to
12 individual members pftiie CALIFORNIA CLASS, which
13 would establish incompatible standards of conduct for the
14 DEFENDANT; and/or,
15 B. Adjudications with respect to individual members of the
16 CALIFORNIA CLASS would as a practical matter be
17 dispositive ofthe interests of the other members not parties
18 to the adjudication or substantially impair or impede their
19 ability to protect their interests;
20 3) In the context of wage litigation because a substantial number of
21 individual CALIFORNIA CLASS Members will avoid asserting
22 their legalrightsout of fear of retaliation by DEFENDANT, which
23 may adversely affect an individual's job with DEFENDANT or
24 with a subsequent employer, the Class Action is the only means to
25 assert their claims through a representative; and,
26 4) A class action is superior to other available metiiods for the fair
27 and efficient adjudication of this litigation because class treatment
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FIRST AMENDED CLASS ACTION COMPLAINT
Case No. 34-2017-00210560
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1 will obviate the need for unduly and unnecessary duplicative
2 litigation that is likely to result in the absence of certification of
3 this action pursuant to Cal. Code of Civ. Proc. § 382.
4 29. This Court should permit this action to be maintained as a Class Action pursuant
5 to Cal. Code of Civ. Proc. § 382 because:
6 (a) The questions of law and fact common tottieCALIFORNIA CLASS
7 predominate over any question affecting only individual CALIFORNIA
8 CLASS Members because the DEFENDANT'S employment practices are
9 uniform and systematically applied with respect to the CALIFORNIA
10 CLASS;
11 (b) A Class Action is superior to any other available method for the fair and
12 efficient adjudication of the claims of the members of the CALIFORNIA
13 CLASS because in the context of employment litigation a substantial
14 number of individual CALIFORNIA CLASS Members will avoid
15- asserting their rights individually out of fear of retaliation or adverse
16 impact on their employment;
17 (c) The members ofttieCALIFORNLA CLASS are so numerousttiatit is
18 impractical to bring all members of the CALIFORNIA CLASS before the
19 Court;
20 (d) PLAINTIFF, andtiieottier CALIFORNIA CLASS Members, will not be
21 able to obtain effective and economic legal redress unless the action is
22 maintained as a Class Action;
23 (e) There is a community of interest in obtaining appropriate legal and
24 equitable relief for the acts of unfair competition, statutory violations and
25 other improprieties, and in obtaining adequate compensation for the
26 damages and injuries which DEFEND ANT's actions have inflicted upon
27 tiie CALIFORNIA CLASS;
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FIRST AMENDED CLASS ACTION COMPLAINT
Case No. 34-2017-00210560
1 (f) There is a community of interest in ensuring that the combined assets of
2 DEFENDANT are sufficient to adequately compensate the members of
3 the CALIFORNLA CLASS forttieinjuries sustained;
4 (g) DEFENDANT has acted or refosed to act on grounds generally applicable
5 to the CALIFORNIA CLASS, thereby making final class-wide relief
6 appropriate with respect to the CALIFORNIA CLASS as a whole;
7 (h) The members ofthe CALIFORNIA CLASS are readily ascertainable from
8 the business records of DEFENDANT; and,
9 (i) Class treatment provides manageable judicial treatment calculated to bring
10 a efficient and rapid conclusion to all litigation of all wage and hour
11 related claims arising out of the conduct of DEFENDANT as to the
12- members ofttieCALIFORNIA CLASS.
13 30. DEFENDANT maintains recordsfromwhich the Court can ascertain and identify
14 by job title each of DEFENDANT'S employees who as have been systematically, intentionally
15 and uniformly subjected to DEFENDANT'S company policy, practices and procedures as herein
16 alleged; PLAINTIFF will seek leave to amend the Complaint to include any additional job tities
17 of similarly situated employees when they have been identified.
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19 THE CALIFORNIA LABOR SUB-CLASS
20 31. PLAINTIFF fiirther brings the Second, Third and Fourth causes of Action on
21 behalf of a Califomia sub-class, defined as all members bfthe CALIFORNIA CLASS classified
22 as non-exempt employees (ttie "CALIFORNLA LABOR SUB-CLASS") at any time during tiie
23 period three (3) years prior to the filing of the complaint and ending on the date as determined
24 byttieCourt (ttie "CALIFORNIA LABOR SUB-CLASS PERIOD") pursuant to Cal. Code of
25 Civ. Proc. § 3 82. The amount in conti-oversy forttieaggregate clakn of CALffORNLA LABOR
26 SUB-CLASS Members is underfivemillion dollars ($5,000,000.00).
27 32. DEFENDANT, as a matter of company policy, practice and procedure, and in
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FIRST AMENDED CLASS ACTION COMPLAINT
Case No. 34-2017-00210560
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1 violation of the applicable Labor Code, Industtial Welfare Commission ("IWC") Wage Order
2 requirements, and the applicable provisions of Califomia law, intentionally, knowingly, and
3 wilfolly, engaged in a practice whereby DEFENDANT failed to correctiy calculate overtime
4 compensation for the overtime worked by PLAINTIFF and the other members of the
5 CALIFORNIA LABOR SUB-CLASS, eventtioughDEFENDANT enjoyedtiiebenefit of this
6 work, required employees to perform this work and permitted or suffered to permit this
7 overtime work. DEFENDANT has uniformly deniedtiieseCALIFORNIA LABOR SUB-
8 CLASS Members overtime wages at the correct amount to which these employees are entitied
9 in order to unfairly cheat the competition and unlawfolly profit. To the extent equitable tolling
10 operates to toll claims bythe CALIFORNIA LABOR SUB-CLASS against DEFENDANT, ttie
11 CALIFORNIA LABOR SUB-CLASS PERIOD should be adjusted accordingly.
12 33. DEFENDANT maintains recordsfromwhich the Court can ascertain and identify
13 by name and jobtitie,each of DEFENDANT'S employees who have been systematically,
14 intentionally and uniformly subjected to DEFENDANT'S company policy, practices and
15 procedures as herein alleged. PLAINTIFF will seek leave to amend the complaint to include
16 any additional job titles of similarly situated employees when they have been identified.
17 ,34. The CALIFORNIA- LABOR SUB-CLASS is so numeroustiiatjoinder of all
18 CALIFORNIA LABOR SUB-CLASS Members is impracticable.
19 35. Common questions of law and fact exist as to members of the CALIFORNIA
20 LABOR SUB-CLASS, including, but not limited, totiiefollowmg:
21 (a) Whether DEFENDANT unlawfolly failed to correctly calculate and pay
22 overtime compensation to members of the CALIFORNIA LABOR SUB-
23 CLASS m violation of the Califomia Labor Code and Califomia
24 regulations and the applicable Califomia Wage Order;
25 (b) Whettierttiemembers ofttieCALIFORNLA LABOR SUB-CLASS are
26 entitied to overtime compensation for overtime worked under the overtime
27 pay requirements of Califomia law;
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FIRST AMENDED CLASS ACTION COMPLAINT
Case No. 34-2017-00210560
1 (c) Whether DEFENDANT failed to accurately record the applicable
2 overtime rates for all overtime worked PLAINTIFF and the other
3 members ofttie CALIFORNIA LABOR SUB-CLASS;
4 (d) Whether DEFENDANT failed to provide PLAINTIFF andtiieother
5 members ofttieCALIFORNIA LABOR SUB-CLASS with accurate
6 itemized wage statements;
7 (e) Whether DEFENDANT has engaged in unfair competition by the
8 above-listed conduct;
9 (f) The proper measure ofdamages and penalties owed to the members ofthe
10 CALIFORNIA LABOR SUB-CLASS; and,
11 (g) WhetiierDEFENDA^NT's conduct was willfiil.
12 36. DEFENDANT, as a matter of company policy, practice and procedure, failed to
13 accurately calculate overtime compensation for the CALIFORNIA LABOR SUB-CLASS
14 Members and failed to provide accurate records of the applicable overtime rates for the
15 overtime worked by these employees. All ofttieCALIFORNLA LABOR SUB-CLASS
16 Members, including PLAINTIFF, were non-exempt employees who were paid on an hourly
17 basis by DEFENDANT according to uniform and systematic company procedures as alleged
18 herein above. This business practice was unifonnly applied to each and every member of the
19 CALIFORNIA LABOR SUB-CLASS, and therefore, the propriety oftiiisconduct can be
20 adjudicated on a class-wide basis.
21 37. DEFENDANT violatedttierightsofttie CALIFORNLA LABOR SUB-CLASS
22 under Califomia law by:
23 (a) Violating Cal. Lab. Code §§ 510, et seq., by failing to accurately pay
24 PLAINTIFF andttiemembers ofttieCALIFORNLA LABOR SUB-
25 CLASS ttie correct overtime pay for which DEFENDANT is liable
26 pursuant to CaL Lab. Code § 1194 & § 1198;
27 (b) Violatmg CaL Lab. Code §226, by failing to provide PLAINTIFF and tiie
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FIRST AMENDED CLASS ACTION COMPLAINT
Case No. 34-2017-00210560
1 membei-s of the CALIFORNIA LABOR SUB-CLASS witii an accurate
2 itemized statement in writing showing all accurate and applicable
3 overtime rates in effect during the pay period and the corresponding
4 amount oftimeworked at each overtime rate by the employee; and,
5 (c) Violating Cal. Lab. Cod
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1 Timothy J. Long (SBN 137591) Samuel S. Hyde (SBN 327065) 2 GREENBERG TRAURIG, LLP —^ /" 1201 K Street, Suite 1100 3 Sacramento, CA 95814 MAR - 6 2Q20 Telephone: 916.442.1111 4 Facsimile: 916.448.1709 longt@gtlaw.com 5 Bv: Rowena Santos (SBN 210185) 6 GREENBERG TRAURIG, LLP 18565 Jamboree Road, Suite 500 7 Irvine, CA 92612 Telephone: 949.732.6500 8 Facsimile: 949.732.6501 9 Attorneys for Defendant HEALTH NET OF CALIFORNIA, INC. 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA 11 COUNTY OF SACRAMENTO 12 ANDREA SPEARS, an individual, on behalf Consolidated Case No. 34-2017-00210560- 13 of herself and on behalf of all persons CU-OE-GDS (Consolidated with Case No. similarly situated, 34-2017-00216685-CU-OE-GDS) 14 Plaintiff, 15 DECLARATION OF TIMOTHY J. LONG IN SUPPORT OF MOTION TO 16 STRIKE SPEARS' REPRESENTATIVE HEALTH NET OF CALIFORNIA, INC., a PAGA CLAIMS Califomia Corporation; and Does 1 through 17 50, inclusive, Date: April 3,2020 Time: 1:30 p.m. 18 Defendants. Dept: 41 Judge: Hon. David De Alba 19 Complaint Filed: Aprils, 2017 20 FAC Filed: June 29,2017 21 TOMAS R. ARANA, on behalf of himself, all Complaint Filed: August 1,2017 22 others similarly situated. Consolidated Complaint Filed: Dec. 21,2017 23 Plaintiff, 24 V. 25 HEALTH NET OF CALIFORNL\, INC., a Califomia corporation; and DOES 1-50, 26 inclusive. 27 Defendant. 28 1 DECLARATION OF TIMOTHY J. LONG IN SUPPORT OF MOTION TO STRIKE SPEARS' REPRESENTATIVE PAGA CLAIMS 1 I, Timothy J. Long, hereby declare as follows: 2 1. I am an attomey duly admitted to practice before the courts of the State of 3 Califomia and a shareholder in the law firm of Greenberg Traurig LLP, attomeys of record for 4 Defendant Health Net of Califomia, Inc. ("HNCA"). I make this declaration on personal 5 knowledge and, if swom as a witness, could competently testify to the following facts except 6 where otherwise indicated. 7 2. On June 15,2017, Ms. Spearsfiledan amended complaint in this action, adding a 8 representative action under the Private Attorneys' General Act ("PAGA"). Ms. Spears included 9 the written noticed shefiledwith the Labor and Workforce Development Agency ("LWDA") on 10 April 5, 2017, as Exhibit 1 to her amended complaint. A tme and correct copy of Ms. Spears' 11 amended complaint is attached hereto as Exhibit A. 12 3. On August 30,2019, the Court issued an Order Denying Defendant's Motions for 13 Why Plaintiffs Spears and Arana's Cases Should Not Proceed As PAGA Representative Actions. 14 A tme and correct copy of that Order is attached hereto as Exhibit B. 15 4. On September 27,2019, the Court held a hearing in this matter. A tme and correct 16 copy of the relevant portions of that hearing transcript is attached hereto as Exhibit C. 17 5. On June 1,2018, an order was issued in Robert Turner, et al. v. Ampac Fine 18 Chemicals LLC, No. 34-2015-00176993 in the Superior Court of Califomia, County of 19 Sacramento. A tme and correct copy of that order is attached hereto as Exhibit D. 20 6. On December 5,2018,1 deposed Ms. Spears in this matter. A tme and correct 21 copy of the relevant portions of Ms. Spears' deposition transcript are attached hereto as Exhibit 22 E. 23 7. Spears' counsel, Aparajit Bhowmik, deposed HNCA's Person Most Qualified 24 Diane Rodes on May 2,2018. A trae and correct copy of the relevant portions of Ms. Rodes' 25 deposition is attached hereto as Exhibit F. 26 8. On December 21,2018, Health Net Inc.'s Director of Human Resources Diane 27 Rodes submitted a Declaration in Support of Motion as to Why Spears' Case Should Not Proceed 28 as a PAGA Representative Action. A trae and correct copy of that declaration is attached hereto 2 DECLARATION OF TIMOTHY J. LONG IN SUPPORT OF MOTION TO STRIKE SPEARS' REPRESENTATIVE PAGA CLAIMS 1 as Exhibit G. 2 I declare under the penalty of perjury ofthe laws of the State of Califomia that the 3 foregoing is trae and correct. Executed this 6th day of March, 2020, m.Sacrament6, California. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3- DECLARATION OF TIMOTHY J. LONG IN SUPPORT OF MOTION TO STRIKE SPEARS' REPRESENTATIVE PAGA CLAIMS EXHIBIT A 1 BLUMENTHAL, NORDREHAUG & BHOWMIK LLP Norman B. Blumenthal (State Bar #068687) 2 Kyle R. Nordrehaug (State Bar #205975) Aparajit Bhowmik (State Bar #248066). 3 2255 Calle Clara La Jolla, CA 92037 4 Telephone: (858)551-1223 Facsimile: (858) 551-1232 5 Website: www.Damlawca.com 6 Attorneys for Plaintiff 7. 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 IN AND FOR THE COUNTY OF SACRAMENTO 10 11 ANDREA SPEARS, an individual, on Case No. 34-2017-00210560 12 behalf of herself and on behalf of all persons similarly situated, FIRST AMENDED CLASS ACTION COMPLAINT FOR; 13 14 Plaintiff, 1. UNFAIR COMPETITION VIOLATION OF CAL. BUS. & PROF. 15 vs. CODE§§ 17200, etseq.; 16 HEALTH NET OF CALXFORNIA, INC.. 2. FAILURE to PAY OVERTIME a Califomia Corporation; and Does 1 WAGES IN VIOLATION OF CAL. through 50, Inclusive, LAB. CODE §§ 510, etseq.; 17 3. FAILURE TO PROVIDE 18 ACCURATE ITEMIZED STATEMENTS Defendants. IN VIOLATION OF CAL. LAB. CODE § 19 226; - 20 4. FAILURE TO PROVIDE WAGES 21 WHEN DUE IN VIOLATION OF CAL. LAB. CODE §§ 201,202 AND 203; and, 22 5. VIOLATION OF tHE PRIVATE 23 ATTORNEYS GENiERAL ACT [LABOR CODE §§ 2698, et seq.]. 24 25 DEMAND FOR A JURY TRIAL 26 27 28 1 FIRST AMENDED CLASS ACTION COMPLAINT CaseNoi 34-2017-00210560 1 Plaintiff Andrea Spears ("PLAINTIFF"), an individual, on behalf of herself and all other 2 similarly situated current and former employees, alleges on information and belief, except for 3 her o^yn acts and knowledge which are based on personal kn6wledge, the following: 4 5 THE PARTIES 6 1. Defendant Health Net Of Califomia, Inc. ("DEFENDANT") is a Califomia 7 corporation and at all relevant tiines mentioned herein conducted and continues to conduct 8 substantial and regular business throughout Califomia. 9 2. DEFENDANT provides health care insurance and other services in Califomia, 10 the United States. The company also iinplenients a tool that electronically prompts doctors to 11 prescribe generics. The company was founded in 1977 and is based in Woodland Hills, 12 California. Health Net Of California, Inc. operates as a subsidiary of Health Net Inc. 13 3. PLAINTIFF was employed by DEFENDANT in Califomia as a non-exempt 14 employee entitled to overtime pay and riieal and rest periodsfromDecember of 2013 to October 15 of 2016. PLAINTIFF was at all times relevant mentioned herein classified by DEFENDANT 16 as a non-exempt employee paid in whole or in part on an hourly basis and received additional 17 compensationfromDEFENDANT in the form of noh-discretionary incentive wages. 18 4. PLAINTIFF brings diis Class Action on behalf of herself and a California class, 19 defined as all individuals who are or previously were employed by DEFEND^^T in California 20 and classified as non-exempt employees (the "CALIFORNIA CLASS") at any time during the 21 period beginning four (4) years prior tottiefilingof this Complaint ahd ending on the date as 22 determined by the Court (the "CALIFORNIA GLASS PERIOD"). The amount in controversy 23 for the aggregate claim Of CALIFORNIA CLASS Members is underfivemillion dollars 24 ($5,000,000.00). • 25 5. PLAINTIFF brings this Class Actipii on behalf of herself and a CALIFORNIA 26 CLASS in order tpfollycompensate the CALIFORNIA CLASS for their losses incurred during 27 the CALIFORNIA CLASS PERIOD caused by DEFENDANT'S uniform policy and practice 28 FIRST AMENDED CLASS ACTION COMPLAINT Case No. 34-2017-00210560 1 which failed to lawfully compensate these employees for all their overtime worked. 2 DEFENDANT'S uniform policy and practice alleged herein is an unlawfol, unfair and deceptive 3 business practice whereby DEFENDANT retained and continues to retain wages due 4 PLAINTIFF and the other members ofthe CALIFORNIA CLASS. PLAINTIFF and the other 5 meinbers of the CALIFORNIA CLASS seek an injunction enjoining such conduct by 6 DEFENDANT in thefottire,relief for the named PLAINTIFF and the other members of the 7 CALIFORNIA CLASS who have been economically injured by DEFENDANT'S past and 8 current unlawfol conduct, and all other appropriate legal and equitable relief 9 6. The trae names and capacities, whether individual, corporate, subsidiary, 10 partnership, associate or otherwise of defendants DOES 1 through 50, inclusive, are presently M imknown to PLAINTIFF who therefore sues these Defendants by suchfictitiousnames pursuant 12 tb Cal. Civ. Proc. Code § 474. PLAINTIFF will seek leave to amend this Complaint to allege 13 the trae names and capacities of Does 1 through 50, inclusive!, when they are ascertained. 14 PLAINTIFF is informed and believes, and based upon that information and belief alleges, that 15 the Defendants named iii this Complaint, including DOES 1 through 50, inclusive, are 16 responsible in some maimer for one or more of the events arid happenings that proximately 17 causedttieinjuries and damages hereinafrer alleged. 18 7. The agents, servants and/or employees ofthe Defendants and each of them acting 19 on behalf of the Defendants acted within the course and scope of his, her or its authority as the 20 agent, servwt and/or employee of the Defendants, and personally participated in the conduct 21 alleged herein on behalf of the Defendants with respect to the conduct alleged herein. 22 Consequently, the acts of each Defendant are legally attributable to the other Defendants and 23 all Defendants are jointly and severally liable to jPLAJNTIFF and the other members ofthe 24 CALIFORNIA CLASS, for the loss sustained as a proximate result of the conduct of the 25 Defendants' agents, servants and/or employees. 26 HI i 27 III 28 FIRST AMENDED CLASS ACTION COMPLAINT Case No. 34-2017-00210560 1 THE CONDUCT 2 8. During the CALIFORNIA CLASS PERIOD, DEFENDANT failed and continues 3 to fail to accurately calculate and pay PLAINTIFF and the other members ofthe CALIFORNIA 4 CLASS for their overtime worked. DEFENDANT systematically, unlawfoUy and unilaterally 5 failed to accurately calculate wages for overtime worked by PLAINTIFF and other members 6 ofthe CALIFORNIA CLASS in order to avoid paying these employees the correct overtime 7 compensation. As a result, PLAINTIFF and the other members ofttieCALIFORNIA CLASS 8 forfeited wages due them for working overtime vsdthput compensation at the correct overtime 9. rates. DEFENDANT'S uniform policy and practice to hot pay the rnembers of the 10 CALlFdRNIA.CLASS the correct overtime rate for all overtime workied iii accordance with 11 applicable law is evidenced by DESCENDANT'S business records. 12 9. State law provides that employees must be paid overtime at one-and-one-half 13 times their "regular rate ofpay." PLAINTIFF and other CALIFORNIA CLASS Members were 14 compensated at an hourly rate plus incentive pay that was tied to specific elements of an 15 employee's performance. 16 10. The second component of PLAINTIFF'S and ottier CALIFORNL\ CLASS 17 Members' compensation was DEFENDANT'S noil-discretionary incentive program that paid 18 PLAINTIFF and other CALIFORNIA CLASS Members incentive wages based on" ttieir 19 performance for DEFENDANT. The non-discretionaiy incentive program provided all 20 employees paid on an hourly basis with incentive compensation when the employees met the 21 various performance goals set by DEFENDANT, including but not limited to, health beaefits 22 cash oiit options. PLAINTIFF and other CALIFORNIA CLASS Members were entitled to 23 receive "cash back" payments for any imused portion ofttieirmedical benefits. However, when 24 calculating the regular rate of pay iii order to pay overtime to PLAINTIFF and other 25 CALIFORNIA CLASS Members, DEFENDANT failed to includettie incentive cornpensation 26 as part of the employees' "regular rate of pay" for purposes of calculatiiig overtime pay. 27 Management and supervisors described the incentive program tb potential and new employees 28 HRST AMENDED GLASS ACTION COMPLAINT Case No. 34-2017-00210560 1 as part of the compensation package. As a matter of law, the incentive compensation received 2 by PLAINTIFF and ottier CALIFORNIA CLASS Members must be included in the "regular 3 rate of pay." The failure to do so has resulted in a systematic underpayment of overtime 4 compensation to PLAINTIFF and other CALIFORNIA CLASS Members by DEFENDANT. 5 11. In violation of the applicable sections of the Califomia Labor Code and the 6 requirements ofthe Indusfrial Welfare Commission ("IWC") Wage Order, DEFENDANT as 7 a matter of company policy, practice and procedure, mtentionally, knowingly and systematically 8 failed to compensate PLAINTIFF andtiieottier members ofttieCALIFORNIA CLASS at tiie 9 correct rate of pay for all overtime worked. This uniform policy and practice of DEFENDANT 10 is intended to putposefolly avoid the pajonent of the correct overtime compensation as required 11 by California law which allowed DEFENDANT to illegally profit and gain an unfair advantage 12 over competitors who complied with the law. To the extent equitable tolling operates to toll 13 claims byttieCALIFORNIA CLASS against DEFENDANT, ttie CALIFORNIA CLASS 14 PERIOD should be adjusted accordingly. 15 12. As a result of their rigorous work schedules, PLAINTIFF and Other 16 CALIFORNIA GLASS Members were alsofromtime to time unable to take off duty meal 17 breaks and were not folly relieved of duty for meal periods. PLAINTIFF and other 18 CALIFORNIA CLASS Members were required to perform work as ordered by DEFENDANT 19 for more thanfive(5) hours dining a shift without receiving an off-duty meal break. Further, 20 DEFENDANT failed to provide PLAINTIFF and CALIFORNLA CLASS Members witti a 21 second off-duty meal period each workday in which these employees were required by 22 DEFENDANT tp work ten (10) hours of work, PLAINTIFF andtiieottier CALIFORNIA 23 CLASS Members therefore forfeited meal breaks without additional compensation and in 24 accordance witti DEFENDANT'S strict corporate policy and practice. 25 13, During flie CALIFORNLA CLASS PERIOD, PLAINTIFF and otiier 26 CALIFORNIA CLASS Members were also required to work in excess of four (4) hours without 27 being provided ten (10) minute rest periods. FUrttier, these employees were denied their first 28 5 FIRST AMENDED CLASS ACTION COMPLAINT Case No. 34-2017-00210560 ^1 1 rest periods of at least ten (10) minutes for every shift worked of at least two (2) to four (4) 2 hours, afirstand second rest period of at least ten (10) minutes for every shift worked of 3 between six (6) and eight (8) hours, and afirst,second and third rest period of at least ten (10) 4 minutes for every shift worked of ten (10) hours or more. PLAINTIFF and other 5 CALIFORNIA CLASS Members were also not provided with one hour wages in lieu thereof 6 As a result oftiieirrigorouswork schedules, PLAINTIFF and other CALIFORNIA CLASS 7 Members were systemically denied ttieir proper rest periods by DEFENDANT and 8 DEFENDANT'S managers. 9 14. When PLAINTIFF and ottier CALIFORNIA CLASS Members worked overtime 10 in the same pay period they eamed mcentive wages and/or missed meal and rest breaks, 11 DEFENDANT also failed to provide PLAINTIFF andttieottier members ofttieCALIFORNLA 12 CLAS S with complete and accurate wage statements which failed to show, among other things, 13 the correct overtime rate for overtime worked, including, work performed in excess of eight (8) 14 hours in a workday and/or forty (40) hours in any workweek, and the correct penalty payments 15 or missed meal and rest periods. Cal. Lab. Code § 226 provides that every employer shall 16 fimiish each of his or her employees with an accurate itemized wage statement m writing 17 showing, among other things, gross wages eamed and all applicable hourly rates in effect during 18 the pay period and the corresponding amount oftimeworked at each hourly rate. Additionally, 19 ttie wage statements DEFENDANT issued to PLAINTIFF and other CALIFORNLA CLASS 20. Members violated Cal. Lab. Code Section 226(a) intiiatDEFENDANT tailed to correctly Ust 21. the correct name of tiie legal entity that was the employer of PLAINTIFF and ttie 22 CALIFORNIA CLASS Members. Aside,fromthe violations listed above in this paragraph, 23 DEFENDANT failed to issue to PLAINTIFF an itemized wage statementtiiatlists all ttie 24 requirements under Califomia Labor Code 226 et seq. As a result,fromtime to time 25 DEFENDANT provided PLAINTIFF andttieotiier members ofttieCALIFORNLA CLASS 26 with wage statements which violated Cal. Lab. Code § 226. 27 15. By reason of this uniform conduct applicable to PLAINTIFF and all 28 FIRST AMENDED CLASS ACTION COMPLAINT Case No. 34-2017-00210560 1 CALIFORNIA CLASS Members, DEFENDANT committed acts of unfair competition in 2 violation oftiieCalifomia Unfair Competition Law, Cal. Bus. & Prof Code §§ 17200, etseq. 3 (the "UCL"), by engaging in a company-wide policy and procedure which failed to accurately 4 calculate and record the correct overtime rate for the overtime worked by PLAINTIFF and other 5 CALIFORNIA CLASS Members. The proper calculation of these employees' overtime hour 6 rates is the DEFENDANT'S burden. As a result of DEFENDANT'S intentional disregard of 7 the obligation to meet this burden, DEFENDANT failed to properly calculate and/or pay all 8 required overtime compensation for work performed by the members of the CALIFORNIA 9 CLASS and violated the Califomia Labor Code and regulations promulgated thereunder as 10 herein alleged. 11 16. Specifically as to PLAINTIFF'S pay, DEFENDANT provided compensation to 12 her in the form of two components. One component of PLAINTIFF'S compensation was a base 13 hourly wage. The second component of PLAINTIFF'S compensation were non-discretionary 14 incentive wages as described herein in Paragraph No. 10. DEFENDANT paid the incentive 15 wages, SO long as PLAINTIFF met certain predefined performance requirements. PLAINTIFF 16 met DEFENDANT'S predefined eligibility performance requirements in various pay periods 17 ttiroughout her employment witti DEFENDANT and DEFENDANT paid PLAINTIFF the 18 incentive wages. During these pay periods in which PLAINTIFF was paid the non- 19 discretionary incentive wages by DEFENDANT, PLAINTIFF also worked overtime for 20 DEFENDANT, but DEFENDANT never mcludedttieincentive compensation in PLAINTIFF'S 21 regular rate of pay for the purposes of calculating what should have been PLAINTIFF'S 22 accurate overtime rate and thereby underpaid PLAINTIFF for overtime worked throughouther 23 employment witti DEFENDANT. The incentive compensation paid by DEFENDANT 24 constituted wages within the meaning of the Califomia Labor Code and thereby should have 25 been part of PLAINTIFF'S "regular rate of pay." PLAINTIFF was alsofromtimeto time 26 unable to take off duty meal and rest breaks and was notfollyrelieved of duty for her meal 27 periods. PLAINTIFF was required to perform work as ordered by DEFENDANT for more than 28 FIRST AMENDED CLASS ACTION COMPLAINT Case No. 34-2017-00210560 ) ' ) - 1 five (5) hours during a shift without receiving an off-duty meal break. Further, DEFENDANT 2 failed to provide PLAINTIFF with a second off-duty meal period each workday in which he 3 was required by DEFENDANT to work ten (10) hours of work. PLAINTIFF ttierefore 4 forfeited meal and rest breaks without additional compensation and in accordance with 5 DEFENDANT'S strict corporate policy and practice. DEFENDANT also provided 6 PLAINTIFF witii a paysUib tiiat failed to accurately display PLAINTIFF'S correct rates of 7 overtime pay and payments for missed meal and rest periods for certain pay periods in violation 8 of Cal, Lab. Code § 226(a). To date, DEFENDANT has not folly paid PLAINTIFF the 9 overtime compensation still owed to her or any penalty wages owed to her under Cal. Lab. Code 10 § 203. The amount in conttoversy for PLAINTIFF individually does not exceed the sum or 11 value of $75,000. 12 13 JURISDICTION AND VENUE 14 17. This Court has jurisdiction over this Action pursuant to Califomia Code of Civil 15 Procedure, Section 410.10 and Califomia Business & Professions Code, Section 17203. This 16 action is brought as a Class Action on behalf of PLAINTIFF and similarly situated employees 17 of DEFENDANT pursuant to Cal. Code of Civ. Proc. § 382. 18 18. Venue is proper in this Court pursuant to Califomia Code of Civil Procedure, 19 Sections 395 and 395.5, because PLAINITFF resides in tiiis County and DEFENDANT (i) 20 currently maintains and at all relevant times maintained offices and facilities in this County 21 and/or conducts substantial business in this County, and (ii) committed the wrongfol conduct 22 herein alleged in ttiis County against members of the CALIFORNIA CLASS and ^3 CALFORNLA LABOR SUB-CLASS. - 24 25 THE CALIFORNIA CLASS 26 19. PLAINTIFF brings the First Cause ofAction for Unfair, Unlawfol and Deceptive 27 Business Practices pursuant to Cal. Bus. & Prof Code §§ 17200, etseq. (the "UCL") as a Class 28 8 FIRST AMENDED CLASS ACTION COMPLAINT Case No. 34-2017-00210560 n n ) 1 Action, pursuant to Cal. Code of Civ. Proc. § 382, on behalf of a Califomia class, defined as 2 all individuals .who are or previously were employed by DEFENDANT ui California and 3 classified as non-exempt employees (the "CALIFOIWIA CLASS") at any time during the 4 period beginning four (4) years prior totiiefilingof this Complaint and ending on the date as 5 determined bytiieCourt (tiie "CALIFORNIA CLASS PERIOD"). The amount in controversy 6. fortiieaggregate claim of CALIFORNIA CLASS Members is underfivemillion dollars 7 ($5,000,000.00). 8 20. Tottieextent equitable tolling operates to toll claims by the CALIFORNIA 9 CLASS against DEFENDANT, the CALIFORNIA CLASS PERIOD should be adjusted 10 accordingly. 11 21. The California Legislature has commanded that "all wages eamed by any. 12 perison in any employment are due and payable twice during each calendar month, on days 13 designated ih advance by the employer as the regular paydays", andfiirtherthat "[a]ny work 14 in excess of eight hours in one workday and any work in excess of 40 hours in any one 15 workweek . . . shall be compensated at the rate of no less than one and one-halftimesthe 16 regular rate of pay for an employee." (Lab. Code § 204 and § 510(a).) TTie Industrial Welfare 17 Commission (IWC),, however, is statutorily authorized to "establish exemptionsfromttie 18 requirement that an overtime rate of conlpensation bepaid^ for executive, administrative, and 19 professional employees, provided [inter alia]ttiatthe employee is primarily engaged in duties 20 that me^t the test ofthe exemption, [and] customarily and regul^ly exercises discretion and 21 independent judgment in performing those duties..." (Lab. Code §. 5lb(a).) Neittier the 22 PLAINTIFF norttieottier members ofttieCALIFORNIA CLASS and/ortiieCALIFORNIA 23 LABOR SUB-CLASS qualify for exemptionfromthe above requirements. 24 22. DEFENDANT, as a matter of company policy, practice and procedure, and in 25 violation oftiieapplicable Labor Code, Industrial Welfaris Corhmissioh ("IWC") Wage Order 26 requirements, and the applicable provisions bf Califomia law, intentionally, knowingly, and 27 wilfolly, engaged in a practice whereby DEFENDANT systematically failed tp correctly ^ 9 FIRST AMENDED CLASS ACTION COMPLAINT Case No. 34-2017-00210560 1 calculate and record overtime compensation for overtime worked by PLAINTIFF and the other 2 members ofttieCALIFORNIA CLASS, eventiioughDEFENDANT enjoyedtiiebenefit of this 3 work, required employees to perform this work and permitted or suffered to permit this 4 overtime work. 5 23. DEFENDANT has the legal burden to establish that each and every 6 CALIFORNIA CLASS Member is jpaid the applicable rate for all overtime worked and to' 7 accurately calculate the "regular rate of pay" by including the incentive compensation that • 8. PLAINTIFF and members oftiieCALIFORNIA CLASS were awarded by DEFENDANT. 9 D E F E N D A N T ; however, as a matter of uniform and systematic policy and procedure failed to 10 have in place during the CALIFORNIA CLASS PERIOD and still fails to have in place a policy 11 or practice to ensure that each and every CALIFORNIA CLASS Member is paid the applicable 12 overtime rate for all overtime worked, so as to satisfy their burden. This common business 13 practipe applicable to each and every CALIFORNIA CLASS Member can be adjudicated on 14 a class-wide basis as unlawfol, unfair, and/or deceptive under Cal. Business & Professions Code 15 § § 17^00, et seq. (the "UCL") as causation, damages, and reliance are not elements of this 16 claim. 17 24. At notimeduring the CALIFORNIA CLASS PERIOD wasttiecompensation for 18 any member of ttie CALIFORNIA CLASS properly recalculated so as to compensate ttie 19 employee for all overtime worked at the applicable rate, as required by California Laboi- Code 20 §§ 204 and 510, et seq. At no time during the CALIFORNIA CLASS PERIOD was ttie 21 overtime compensation for any member of the CALIFORNIA CLASS properly recalculated 22 so as to include all .earnings in the overtime compensation calculation as required by California 23 Labor Code §§ 510, etseq. 24 25. The CALIFORNIA CLASS, is so nvunerOustiiatjoinder of all CALIFORNIA 25 CLASS Members is impracticable. 26 26. DEFENDANT uniformly violatedttierightsofttieCALIFORMA CLASS under 27 California law by: 28 10 FIRST AMENDED GLASS ACTION COMPLAINT Case No. 34-2017-00210560 1 (a) Violating the Califomia Unfair Competition Laws, Cal. Bus. & Prof Code 2 §§ 17200, et seq., by unlawfolly, unfairly and/or deceptively having in 3 place company policies, practices and procedures that failed to pay all 4 wages due the CALIFORNIA CLAS S for all overtime worked, and failed 5 to accurately record the applicable rates of all overtime worked by the 6 CALIFORNIA CLASS; 7 (b) Committing an act of unfair competition in violation of the Califomia 8 Unfair Competition Laws, Cal. Bus. & Prof Code §§ 17200, et seq., by 9 unlawfolly, unfairly, and/or deceptively having in place a company policy, 10 practice and procedure that failed to correctly calculate overtime 11 compensation due to PLAINTIFF andtiiemembers ofthe CALIFORNLA 12 CLASS; and, 13 (c) Committing an act of unfair competition in violation of the Califomia 14 Unfair Competition Laws, Cal. Bus. & Prof Code §§ 17200, et seq., by 15 failing to provide mandatory meal and/or rest breaks to PLAINTIFF and 16 ttie CALIFORNLA CLASS members. 17 27. This Class Action meets the stamtory prerequisites for the maintenance of a Class 18 Action as set forth in Cal. Code of Civ. Proc. § 382, in ttiat: 19 (a) The persons who comprise the CALIFORNIA CLASS are so numerous 20 that the joinder of all such persons is impracticable and the disposition of 21 their claims as a class will benefit the parties and the Court; 22 (b) Nearly all facfoal, legal, statutory, declaratory and injunctive relief issues 23 that are raised in this Complaint are common to the CALIFORNIA 24 CLASS will apply uniformly to every member oftiieCALIFORNIA 25 CLASS; 26 (c) The claims of the representative PLAINTIFF are typical of the claims of 27 each member ofttieCALIFORNIA CLASS. PLAINTIFF, like all ttie 28 11 FIRST AMENDED CLASS ACTION COMPLAINT " Case No. 34-2017-00210560 ) 1 other members of the CALIFORNIA CLASS, was subjected to the, 2 uniform employment practices of DEFENDANT and was a non-exempt 3 employee paid on an hourly basis and paid additional non-discretionary 4 incentive wages who was subjected to the DEFENDANT'S practice and 5 policy which fails to pay the correct rate of overthne wages due to the 6 CALIFORNIA CLASS for all overtime worked byttieCALIFORNIA 7 CLASS and thereby systematically underpays overtime compensation to 8 ttie CALIFORNIA CLASS. PLAINTIFF sustained economic injury as a 9 result of DEFENDANT'S employment practices. PLAINTIFF and tiie 10 members of the CALIFORNIA CLASS were and are similarly or 11 identicallyharmedby the same unlawfol, deceptive, unfair and pervasive 12 pattem of misconduct engaged in by DEFENDANT; and, 13 (d) The representative PLAINTIFF will fairly and adequately represent and 14 protect the interest of ttie CALIFORNIA CLASS, and has retained 15 counsel who are competent and experienced in Class Action litigation. 16 There are no material conflicts between the claims of the representative 17 PLAINTIFF andttiemembers ofttieCALIFORNIA CLASSttiatwould 18 make class certification inappropriate. Counsel for the CALIFORNIA 19 CLASS will vigorously assertttieclaims of all CALIFORNIA CLASS 20 Members. 21 28. In addition to meeting the stafotory prerequisites to a Class Action, this action 22 is properly maintained as a Class Action pursuant to Cal. Code of Civ. Proc. § 382, m that: 23 (a) Without class certification and determination of declaratory, injunctive, 24 statutory and other legal questions within the class format, prosecution of 25 separate actions by individual members of the CALIFORNIA CLASS will 26 create theriskof: 27 1) Inconsistent or v^ing adjudications with respect to individual 28 12 FIRST AMENDED CLASS ACTION COMPLAINT Case No. 34-2017-00210560 1 ! 1 members of the CALIFORNIA CLASS which would establish 2 incompatible standards of conduct for the parties opposing the 3 CALIFORNIA.CLASS; and/or, 4 2) Adjudication with respect to individual members of the 5 CALIFORNIA CLASS which would as a practical matter be 6 dispositive of interests of the other members not party to the 7 adjudication or substantially impair or impede their ability to 8 protect their interests. 9 (b) The parties opposing the CALIFORNIA CLAS S have acted or refosed to 10 . act on grounds generally applicable to the CALIFORNIA CLAS S, making 11 appropriate class-wide relief with respect to the CALIFORNIA CLASS 12 as a whole in that DEFENDANT uniformly failed to pay all wages due. 13 Including the correct overtime rate, for all worked by the members of the 14 CALIFORNLA CLASS as required by law; 15 1) With respect to the First Cause of Action, thefinalrelief on behalf 16 ofthe CALIFORNIA CLASS sought does not relate exclusively to 17 restifotion because through this claim PLAINTIFF seeks 18 declaratory relief holdingttiatthe DEFENDANT'S policy and 19 practices constitute unfair competition, along with declaratory 20 relief, injunctive relief, and incidental equitable relief as may be 21 necessary to prevent and remedy the conduct declared to constitute 22 unfair competition; 23 (c) Common questions of law and fact exist as to the members of the 24 CALIFORNIA CLASS, with respect to the practices and violations of 25 Califomia law as listed above, and predominate over any question 26 affecting only individual CALIFORNIA CLASS Members, and a Class 27 Action is superior to other available methods for the fair and efficient 28 13 FIRST AMENDED CLASS ACTION COMPLAINT Case No. ,34-2017-00210560 I I 1 adjudication of the controversy, including consideration of: 2 1) The interests oftiiemembers oftiieCALIFORNIA CLASS in 3 individually controlling the prosecution or defense of separate 4 actions in that the substantial expense of individual actions will be 5 avoided to recover the relatively small amount of economic losses 6 sustained bythe individual CALIFORNIA CLASS Members when 7 compared to die substantial expense and burden of individual 8 prosecution of this litigation; 9 2) Class certification will obviate the need for unduly duplicative 10 litigation that would create the risk of: 11 A. Inconsistent or varying adjudications with respect to 12 individual members pftiie CALIFORNIA CLASS, which 13 would establish incompatible standards of conduct for the 14 DEFENDANT; and/or, 15 B. Adjudications with respect to individual members of the 16 CALIFORNIA CLASS would as a practical matter be 17 dispositive ofthe interests of the other members not parties 18 to the adjudication or substantially impair or impede their 19 ability to protect their interests; 20 3) In the context of wage litigation because a substantial number of 21 individual CALIFORNIA CLASS Members will avoid asserting 22 their legalrightsout of fear of retaliation by DEFENDANT, which 23 may adversely affect an individual's job with DEFENDANT or 24 with a subsequent employer, the Class Action is the only means to 25 assert their claims through a representative; and, 26 4) A class action is superior to other available metiiods for the fair 27 and efficient adjudication of this litigation because class treatment 28 14 FIRST AMENDED CLASS ACTION COMPLAINT Case No. 34-2017-00210560 ^) • .o 1 will obviate the need for unduly and unnecessary duplicative 2 litigation that is likely to result in the absence of certification of 3 this action pursuant to Cal. Code of Civ. Proc. § 382. 4 29. This Court should permit this action to be maintained as a Class Action pursuant 5 to Cal. Code of Civ. Proc. § 382 because: 6 (a) The questions of law and fact common tottieCALIFORNIA CLASS 7 predominate over any question affecting only individual CALIFORNIA 8 CLASS Members because the DEFENDANT'S employment practices are 9 uniform and systematically applied with respect to the CALIFORNIA 10 CLASS; 11 (b) A Class Action is superior to any other available method for the fair and 12 efficient adjudication of the claims of the members of the CALIFORNIA 13 CLASS because in the context of employment litigation a substantial 14 number of individual CALIFORNIA CLASS Members will avoid 15- asserting their rights individually out of fear of retaliation or adverse 16 impact on their employment; 17 (c) The members ofttieCALIFORNLA CLASS are so numerousttiatit is 18 impractical to bring all members of the CALIFORNIA CLASS before the 19 Court; 20 (d) PLAINTIFF, andtiieottier CALIFORNIA CLASS Members, will not be 21 able to obtain effective and economic legal redress unless the action is 22 maintained as a Class Action; 23 (e) There is a community of interest in obtaining appropriate legal and 24 equitable relief for the acts of unfair competition, statutory violations and 25 other improprieties, and in obtaining adequate compensation for the 26 damages and injuries which DEFEND ANT's actions have inflicted upon 27 tiie CALIFORNIA CLASS; 28 15 FIRST AMENDED CLASS ACTION COMPLAINT Case No. 34-2017-00210560 1 (f) There is a community of interest in ensuring that the combined assets of 2 DEFENDANT are sufficient to adequately compensate the members of 3 the CALIFORNLA CLASS forttieinjuries sustained; 4 (g) DEFENDANT has acted or refosed to act on grounds generally applicable 5 to the CALIFORNIA CLASS, thereby making final class-wide relief 6 appropriate with respect to the CALIFORNIA CLASS as a whole; 7 (h) The members ofthe CALIFORNIA CLASS are readily ascertainable from 8 the business records of DEFENDANT; and, 9 (i) Class treatment provides manageable judicial treatment calculated to bring 10 a efficient and rapid conclusion to all litigation of all wage and hour 11 related claims arising out of the conduct of DEFENDANT as to the 12- members ofttieCALIFORNIA CLASS. 13 30. DEFENDANT maintains recordsfromwhich the Court can ascertain and identify 14 by job title each of DEFENDANT'S employees who as have been systematically, intentionally 15 and uniformly subjected to DEFENDANT'S company policy, practices and procedures as herein 16 alleged; PLAINTIFF will seek leave to amend the Complaint to include any additional job tities 17 of similarly situated employees when they have been identified. 18 19 THE CALIFORNIA LABOR SUB-CLASS 20 31. PLAINTIFF fiirther brings the Second, Third and Fourth causes of Action on 21 behalf of a Califomia sub-class, defined as all members bfthe CALIFORNIA CLASS classified 22 as non-exempt employees (ttie "CALIFORNLA LABOR SUB-CLASS") at any time during tiie 23 period three (3) years prior to the filing of the complaint and ending on the date as determined 24 byttieCourt (ttie "CALIFORNIA LABOR SUB-CLASS PERIOD") pursuant to Cal. Code of 25 Civ. Proc. § 3 82. The amount in conti-oversy forttieaggregate clakn of CALffORNLA LABOR 26 SUB-CLASS Members is underfivemillion dollars ($5,000,000.00). 27 32. DEFENDANT, as a matter of company policy, practice and procedure, and in 28 16 FIRST AMENDED CLASS ACTION COMPLAINT Case No. 34-2017-00210560 ( ) 1 violation of the applicable Labor Code, Industtial Welfare Commission ("IWC") Wage Order 2 requirements, and the applicable provisions of Califomia law, intentionally, knowingly, and 3 wilfolly, engaged in a practice whereby DEFENDANT failed to correctiy calculate overtime 4 compensation for the overtime worked by PLAINTIFF and the other members of the 5 CALIFORNIA LABOR SUB-CLASS, eventtioughDEFENDANT enjoyedtiiebenefit of this 6 work, required employees to perform this work and permitted or suffered to permit this 7 overtime work. DEFENDANT has uniformly deniedtiieseCALIFORNIA LABOR SUB- 8 CLASS Members overtime wages at the correct amount to which these employees are entitied 9 in order to unfairly cheat the competition and unlawfolly profit. To the extent equitable tolling 10 operates to toll claims bythe CALIFORNIA LABOR SUB-CLASS against DEFENDANT, ttie 11 CALIFORNIA LABOR SUB-CLASS PERIOD should be adjusted accordingly. 12 33. DEFENDANT maintains recordsfromwhich the Court can ascertain and identify 13 by name and jobtitie,each of DEFENDANT'S employees who have been systematically, 14 intentionally and uniformly subjected to DEFENDANT'S company policy, practices and 15 procedures as herein alleged. PLAINTIFF will seek leave to amend the complaint to include 16 any additional job titles of similarly situated employees when they have been identified. 17 ,34. The CALIFORNIA- LABOR SUB-CLASS is so numeroustiiatjoinder of all 18 CALIFORNIA LABOR SUB-CLASS Members is impracticable. 19 35. Common questions of law and fact exist as to members of the CALIFORNIA 20 LABOR SUB-CLASS, including, but not limited, totiiefollowmg: 21 (a) Whether DEFENDANT unlawfolly failed to correctly calculate and pay 22 overtime compensation to members of the CALIFORNIA LABOR SUB- 23 CLASS m violation of the Califomia Labor Code and Califomia 24 regulations and the applicable Califomia Wage Order; 25 (b) Whettierttiemembers ofttieCALIFORNLA LABOR SUB-CLASS are 26 entitied to overtime compensation for overtime worked under the overtime 27 pay requirements of Califomia law; 28 17 FIRST AMENDED CLASS ACTION COMPLAINT Case No. 34-2017-00210560 1 (c) Whether DEFENDANT failed to accurately record the applicable 2 overtime rates for all overtime worked PLAINTIFF and the other 3 members ofttie CALIFORNIA LABOR SUB-CLASS; 4 (d) Whether DEFENDANT failed to provide PLAINTIFF andtiieother 5 members ofttieCALIFORNIA LABOR SUB-CLASS with accurate 6 itemized wage statements; 7 (e) Whether DEFENDANT has engaged in unfair competition by the 8 above-listed conduct; 9 (f) The proper measure ofdamages and penalties owed to the members ofthe 10 CALIFORNIA LABOR SUB-CLASS; and, 11 (g) WhetiierDEFENDA^NT's conduct was willfiil. 12 36. DEFENDANT, as a matter of company policy, practice and procedure, failed to 13 accurately calculate overtime compensation for the CALIFORNIA LABOR SUB-CLASS 14 Members and failed to provide accurate records of the applicable overtime rates for the 15 overtime worked by these employees. All ofttieCALIFORNLA LABOR SUB-CLASS 16 Members, including PLAINTIFF, were non-exempt employees who were paid on an hourly 17 basis by DEFENDANT according to uniform and systematic company procedures as alleged 18 herein above. This business practice was unifonnly applied to each and every member of the 19 CALIFORNIA LABOR SUB-CLASS, and therefore, the propriety oftiiisconduct can be 20 adjudicated on a class-wide basis. 21 37. DEFENDANT violatedttierightsofttie CALIFORNLA LABOR SUB-CLASS 22 under Califomia law by: 23 (a) Violating Cal. Lab. Code §§ 510, et seq., by failing to accurately pay 24 PLAINTIFF andttiemembers ofttieCALIFORNLA LABOR SUB- 25 CLASS ttie correct overtime pay for which DEFENDANT is liable 26 pursuant to CaL Lab. Code § 1194 & § 1198; 27 (b) Violatmg CaL Lab. Code §226, by failing to provide PLAINTIFF and tiie 28 , 18 FIRST AMENDED CLASS ACTION COMPLAINT Case No. 34-2017-00210560 1 membei-s of the CALIFORNIA LABOR SUB-CLASS witii an accurate 2 itemized statement in writing showing all accurate and applicable 3 overtime rates in effect during the pay period and the corresponding 4 amount oftimeworked at each overtime rate by the employee; and, 5 (c) Violating Cal. Lab. Cod