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1 BLUMENTHAL NORDREHAUG BHOWMIK DE BLOUW LLP
Norman B. Blumenthal (State Bar #068687)
2 Kyle R. Nordrehaug (State Bar #205975)
Aparajit Bhowmik (State Bar #248066)
3 Piya Mukherjee (State Bar #274217)
Victoria B. Rivapalacio (State Bar #275115)
4 2255 Calle Clara
La JoUa, CA 92037 ''tB 1 5 2019
5 Telephone: (858)551-1223
Facsimile: (858) 551-1232 By:. iLPoftalanza
6 .'O^PUly Clerii
Attomeys for Plaintiff
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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IN AND FOR THE COUNTY OF SACRAMENTO
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13 ANDREA SPEARS, an individual, on behalf CaseNo. 34-2017-00210560-CU-OE-GDS
of herself and on behalf of all persons
14 similarly situated. CLASS ACTION
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Plaintiff, DECLARATION OF JEFFREY S. HERMAN IN
16 OPPOSITION TO DEFENDANT'S MOTION AS
vs. TO WHY SPEARS' CASE SHOULD NOT
17 PROCEED AS A PAGA REPRESENTATIVE
HEALTH NET OF CALIFORNIA, INC., a ACTION , r-AV/
18 Califomia Corporation; and Does 1 through
50, Inclusive, BY FAX
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Defendants. Hearing Date: April 11, 2019
20 Hearing Time: 10:00 a.m
Dept: 35
21 TOMAS R. ARANA, on behalf of himself,
all others similarly sitaated.
22 Action Filed: April 5, 2017
Plaintiff,
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vs.
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HEALTH NET OF CALIFORNIA, INC., a
25 Califomia corporation; and DOES 1 through
50, inclusive.
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Defendants.
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DECL. OF JSH IN OPPOSITION TO DEFENDANT'S MOTION AS TO WHY SPEARS' CASE SHOULD NOT
PROCEED AS A PAGA REPRESENTATIVE ACTION
CASE No. 34-2017-00210560
1 I, Jeffrey S. Herman, declare as follows:
2 1. I am an attomey at law duly Hcensed to practice before all of the courts of the State of
3 CaUfomia. I am an attomey with the lawfirmof Blumenthal Nordrehaug Bhowmik De Blouw LLP, counsel
4 of record for Plaintiff Andrea Spears. I have personal knowledge of the facts set forth herein, and if called
5 as a witaess, could and would testify competentiy thereto.
6 2. A tme and correct copy of Plaintiffs original Complaint is attached hereto as Exhibit 1.
7 3. A tme and correct copy of Plaintiff s PAGA Notice is attached hereto as Exhibit 2.
8 4. A tme and correct copy ofpertinent portions firom the PMK Deposition ofDiane Rodes is
9 attached hereto as Exhibit 3.
10 5 A tme and correct copy ofthe email chain among Counsel regarding Ms. Rodes' deposition
11 is attached hereto as Exhibit 4.
12 6. A tme and correct copy of the Order m Mejia v. 99 Cents Only Stores, 2018 Cal. Super.
13 LEXIS 3082 (L.A.S.C. April 6,2018) denymg the defendant's motion to strike the plaintiffs representative
14 action is attached hereto as Exhibit 5.
15 I declare under penalty of perjury under the laws of the State of Califomia and the United States that
16 the foregouig is tme and correct. Executed at La JoUa, CaUfomia on February 15, 2019.
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DECL. OF JSH IN OPPOSITION TO DEFENDANT'S MOTION AS TO WHY SPEARS' CASE SHOULD NOT
PROCEED AS A PAGA REPRESENTATIVE ACTION
CASE No. 34-2017-00210560
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21 EXHIBIT 1
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DECL. OF JSH IN OPPOSITION TO DEFENDANT'S MOTION AS TO WHY SPEARS' CASE SHOULD NOT
PROCEED AS A PAGA REPRESENTATIVE ACTION
CASE No. 34-2017-00210560
FILED
1 BLUMENTHAL, NORDREHAUG & BHOWMIK LLP SSupBrior Court Of Cailfor^Ba,
Norman B. Blumenthal (State Bar #068687)
2 Kyle R. Nordrehaug (State Bar #205975)
Aparajit Bhowmik (State Bar #248066) 04/05/2017
3 2255 Calle Clara
La Jolla,CA 92037 jinortt
4 Telephone: (858)551-1223 B)L_ ,, Depijiiy
Facsimile: (858) 551-1232
5 Website: www, oamlawca. com
Attorneys for Plaintiff
34-2017-002l05&tl
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10 SUPERIOR COURT OF THE STATE OF CALIFORNIA
11 IN AND FOR THE COUNTY OF SACRAMENTO
12
ANDREA SPEARS, an individual, on Case No.
13 behalf of herself and on behalf of all
persons shnilarly situated, CLASS ACTION COMPLAINT FOR:
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1. UNFAIR COMPETITION IN
15 Plaintiff, VIOLATION OF CAL. BUS. & PROF.
CODE§§ 17200, etseq.;
16 f
vs.
2. FAILURE TO PAY OVERTIME
17 HEALTH NET OF CALIFORNIA, INC., WAGES IN VIOLATION OF CAL.
a Califomia Corporation; and Does 1 LAB. CODE § § 510, seq.;
18 through 50, Inclusive,
3. FAILURE TO PROVIDE
19 ACCURATE ITEMIZED STATEMENTS
IN VIOLATION OF CAL. LAB. CODE §
20 Defendants. 226; and,
21 4. FAILURE TO PROVIDE WAGES
WHEN DUE DSf VIOLATION OF CAL.
22 LAB. CODE §§ 201,202 AND 203.
23
24 DEMAND FOR A JURY TRIAL
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28 1
CLASS ACnON COMPLAINT
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 own acts and knowledge which are based on personal knowledge, the followmg:
4
5 THE PARTIES
6 1. Defendant Health Net Of California, Inc. ("DEFENDANT") is a Califomia
7 corporation and at all relevant times mentioned herein conducted and continues to conduct
8 substantial and regular business throughout California.
9 2. DEFENDANT provides health care insurance and other services in Califomia,
10 the United States. The company also iniplements a tool that electronically prompts doctors to
11 prescribe generics. The company was founded in 1977 and is based in Woodland Hills,
12 Califomia. 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 meal and rest periods from December 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 compensation from DEFENDANT in the form of non-discretionary incentive wages.
18 4. PLAINTIFF brings this Class Action on behalf of herself and a Califomia class,
19 defmed as all individuals who are or previously were employed by DEFENDANT in Califomia
20 and classified as non-exempt employees (the "CALIFORNIA CLASS") at any time during the
21 period beginning four (4) years prior to the filing of this Complaint and ending on the date as
22 detennined by the Court (the "CALIFORNIA CLASS PERIOD"). The amount in controversy
23 for the aggregate claim of CALIFORNIA CLASS Members is under five million dollars
24 ($5,000,000.00).
25 5. PLAINTIFF brings this Class Action on behalf of herself and a CALIFORNIA
26 CLASS in order to fully compensate the CALIFORNIA CLASS for their losses incurred during
27 the CALIFORNIA CLASS PERIOD caused by DEFENDANT'S uniform policy and practice
28
CLASS ACTION COMPLAINT
1 which failed to lawfully compensate these employees for all their overtime worked.
2 DEFENDANT'S uniform policy and practice alleged herein is an unlawful, 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 members of the CALIFORNIA CLASS seek an injunction enjoining such conduct by
6 DEFENDANT in the future, relief for the named PLAINTIFF and the other members of the
7 CALIFORNL\ CLASS who have been economically injured by DEFENDANT'S past and
8 current unlawful conduct, and all other appropriate legal and equitable relief
9 6. The tme names and capacities, whether individual, corporate, subsidiary,
10 partnership, associate or otherwise of defendants DOES 1 through 50, inclusive, are presently
11 unknown to PLAINTIFF who therefore sues these Defendants by such fictitious names pursuant
12 to Cal. Civ. Proc. Code § 474. PLAINTIFF will seek leave to amend this Complaint to allege
13 the tme 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 in this Complaint, including DOES 1 through 50, inclusive, are^
16 responsible in some maimer for one or more of the events and happenings that proximately
17 caused the injuries and damages hereinafter alleged.
18 7. The agents, servants and/or employees ofthe Defendants and each of them acting
19 on behalf ofthe Defendants acted within the course and scope of his, her or its authority as the
20 agent, servant 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 PLAINTIFF and the other members of the
24 CALIFORNIA CLASS, for the loss sustained as a proximate result of the conduct of the
25 Defendants' agents, servants and/or employees.
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28
CLASS ACTION COMPLAINT
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 of the CALIFORNIA
4 CLASS for their overtime worked. DEFENDANT systematically, unlawfully 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 ofthe CALIFORNIA CLASS
8 forfeited wages due them for working overtime without compensation at the correct overtime
9 rates. DEFENDANT'S uniform policy and practice to not pay the members of the
10 CALIFORNIA CLASS the correct overtime rate for all overtime worked in accordance with
11 applicable law is evidenced by DEFENDANT'S business records.
12 9. State law provides that employees must be paid overtime at one-and-one-half
13 times their "regular rate of pay." 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 other CALIFORNIA CLASS
17 Members' compensation was DEFENDANT'S non-discretionary incentive program that paid
18 PLAINTIFF and other CALIFORNIA CLASS Members incentive wages based on theu"
19 performance for DEFENDANT. The non-discretionary 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 benefits
22 cash out options. PLAINTIFF and other CALIFORNIA CLASS Members were entitied to
23 receive "cash back" payments for any unused portion of their medical benefits. However, when
24 calculating the regular rate of pay in order to pay overtime to PLAINTIFF and other
25 CALIFORNIA CLASS Members, DEFENDANT failed to include the incentive compensation
26 as part of the employees' "regular rate of pay" for purposes of calculating overtime pay.
27 Management and supervisors described the incentive program to potential and new employees
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4
CLASS ACTION COMPLAINT
1 as part of the compensation package. As a matter of law, the incentive compensation received
2 by PLAE^TIFF and other 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 CALIFORNL\ CLASS Members by DEFENDANT.
5 11. In violation of the applicable sections of the Califomia Labor Code and the
6 requirements of the Industrial Welfare Commission ("IWC") Wage Order, DEFENDANT as
7 a matter of company policy, practice and procedure, intentionally, knowingly and systematically
8 failed to compensate PLAINTIFF and the other members of the CALIFORNLA CLASS at the
9 correct rate of pay for all overtime worked. This uniform policy and practice of DEFENDANT
10 is intended to purposefully avoid the payment 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 by the CALIFORNIA CLASS against DEFENDANT, the CALIFORNIA CLASS
14 PERIOD should be adjusted accordingly.
15 12. As a result of their rigorous work schedules, PLAINTIFF and other
16 CALIFORNIA CLASS Members were also fromtimeto time unable to take off duty meal
17 breaks and were not fully 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 than five (5) hours during a shift without receiving an off-duty meal break. Further,
20 DEFENDANT failed to provide PLAINTIFF and CALIFORNIA CLASS Members with a
21 second off-duty meal period each workday in which these employees were required by
22 DEFENDANT to work ten (10) hours of work. PLAINTIFF and the other CALIFORNIA
23 CLASS Members therefore forfeited meal breaks without additional compensation and in
24 accordance with DEFENDANT'S strict corporate policy and practice.
25 13. During the CALIFORNIA CLASS PERIOD, PLAINTIFF and other
26 CALIFORNIA CL AS S Members were also required to work in excess of four (4) hours without
27 being provided ten (10) minute rest periods. Further, these employees were denied their first
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5
CLASS ACTION COMPLAINT
1 rest periods of at least ten (10) minutes for every shift worked of at least two (2) to four (4)
2 hours, a first and 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 of their rigorous work schedules, PLAINTIFF and other CALIFORNIA CLASS
7 Members were systemically denied their proper rest periods by DEFENDANT and
8 DEFENDANT'S managers.
9 14. When PLAINTIFF and other CALIFORNIA CLASS Members worked overtime
10 in the same pay period they earned incentive wages and/or missed meal and rest breaks,
11 DEFENDANT also failed to provide PLAINTIFF and the other members of the CALIFORNIA
12 CLASS 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 fumish each of his or her employees with an accurate itemized wage statement in writing
17 showing, among other things, gross wages earned and all applicable hourly rates in effect during
18 the pay period and the corresponding amount of time worked at each hourly rate. Additionally,
19 the wage statements DEFENDANT issued to PLAINTIFF and other CALIFORNIA CLASS
20 Members violated Cal. Lab. Code Section 226(a) in that DEFENDANT failed to correctly list
21 the correct name of the legal entity that was the employer of PLAINTIFF and the
22 CALIFORNIA CLASS Members. Aside, from the violations listed above in this paragraph,
23 DEFENDANT failed to issue to PLAINTIFF an itemized wage statement that lists all the
24 requirements under Califomia Labor Code 226 et seq. As a result, from time to time
25 DEFENDANT provided PLAINTIFF and the other members of the CALIFORNIA CLASS
26 with wage statements which violated Cal. Lab. Code § 226.
27 15. By reason of this uniform conduct applicable to PLAINTIFF and all
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6
CLASS ACTION COMPLAINT
1 CALIFORNIA CLASS Members, DEFENDANT committed acts of unfair competition in
2 violation of the Califomia Unfair Competition Law, Cal. Bus. & Prof Code §§ 17200, et seq.
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 resuk 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 throughout her employment with 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 included the mcentive 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 throughout her
23 employment with 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 also from time to time
26 unable to take off duty meal and rest breaks and was not fully relieved of duty for her meal
27 periods, PLAINTIFF was required to perform work as ordered by DEFENDANT for more than
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CLASS ACTION COMPLAINT
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 therefore
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 with a paystub that 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 fully 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 controversy 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 California 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 this County and DEFENDANT (i)
20 currently maintains and at all relevant times maintained offices arid facilities in this County
21 and/or conducts substantial business in this County, and (ii) committed the wrongful conduct
22 herein alleged in this County against members of the CALIFORNIA CLASS and
23 CALIFORNL\ LABOR SUB-CLASS. ^
24
25 THE CALIFORNIA CLASS
26 19. PLAINTIFF brings the First Cause of Action for Unfair, Unlawful and Deceptive
27 Business Practices pursuant to Cal. Bus. & Prof Code §§ 17200, et seq. (the "UCL") as a Class
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CLASS ACTION COMPLAINT
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 in California and
3 classified as non-exempt employees (the "CALIFORNIA CLASS") at any time during the
4 period beginning four (4) years prior to the filing of this Complaint and ending on the date as
5 determined by the Court (the "CALIFORNIA CLASS PERIOD"). The amount in controversy
6 for the aggregate claim of CALIFORNIA CLASS Members is under five million dollars
7 ($5,000,000.00).
8 20. To the extent 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 Califomia Legislature has commanded that "all wages eamed by any
12 person in any employment are due and payable twice during each calendar month, on days
13 designated in advance by the employer as the regular paydays", and further that "[ajnywork
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-half times the
16 regular rate of pay for an employee." (Lab. Code § 204 and § 510(a).) The Industrial Welfare
17 Commission (IWC), however, is statutorily authorized to, "establish exemptions from the
18 requirement that an overtime rate of compensation be paid for executive, administrative, and
19 professional employees, provided [inter alia] that the employee is primarily engaged in duties
20 that meet the test of the exemption, [and] customarily and regularly exercises discretion and
21 independent judgment in performing those duties..." (Lab. Code § 510(a).) Neither the
22 PLAINTIFF nor the other members of the CALIFORNIA CLASS and/or the CALIFORNIA
23 LABOR SUB-CLASS qualify for exemption from the above requirements.
24 22. DEFENDANT, as a matter of company policy, practice and procedure, and in
25 violation of the applicable Labor Code, Industrial Welfare Commission ("IWC") Wage Order
26 requirements, and the applicable provisions of Califomia law, intentionally, knowingly, and
27 wilfully, engaged in a practice whereby DEFENDANT systematically failed to correctly
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CLASS ACTION COMPLAINT
1 calculate and record overtime compensation for overtime worked by PLAINTIFF and the other
2 members ofthe CALIFORNIA CLASS, eventiioughDEFENDANT enjoyed the benefit 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 paid the applicable rate for all overtime worked and to
7 accurately calculate the "regular rate of pay" by including the incentive compensation that
8 PLAE^TIFF and members of the CALIFORNIA CLASS were awarded by DEFENDANT.
9 DEFENDANT, 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 practice applicable to each and every CALIFORNIA CLASS Member can be adjudicated on
14 a class-wide basis as unlawful, unfair, and/or deceptive under Cal. Business & Professions Code
15 §§ 17200, et seq. (the "UCL") as causation, damages, and reliance are not elements of this
16 claim.
17 24. At no time during the CALIFORNIA CLASS PERIOD was the compensation for
18 any member of the CALIFORNIA CLASS properly recalculated so as to compensate the
19 employee for all overtime worked at the applicable rate, as required by Califomia Labor Code
20 §§ 204 and 510, et seq. At no time during the CALIFORNIA CLASS PERIOD was the
21 overtime compensation for any member ofthe CALIFORNIA CLASS properly recalculated
22 so as to include all earnings in the overtime compensation calculation as required by Califomia
23 Labor Code §§ 510, seq.
24 25. The CALIFORNIA CLASS, is so numerous that joinder of all CALIFORNIA
25 CLASS Members is impracticable.
26 26. DEFENDANT uniformly violated the rights ofthe CALIFORNIA CLASS under
27 California law by:
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CLASS ACTION COMPLAINT
1 (a) Violating the Califomia Unfair Competition Laws, Cal. Bus. & Prof Code
2 §§ 17200, et seq., by unlawfully, unfairly and/or deceptively having in
3 place company policies, practices and procedures that failed to pay all
4 wages due the CALIFORNI A CLASS for aU overtime worked, and failed
5 to accurately record the applicable rates of all overtime worked by the
6 CALIFORNL\ 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 unlawfully, 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 and the members of the CALIFORNIA
12 CLASS; and,
13 (c) Committing an act of unfair competition in violation ofthe Califomia
14 UnfairCompetitionLaws, Cal. Bus. & Prof Code §§ 17200, e^^e^., by
15 failing to provide mandatory meal and/or rest breaks to PLAINTIFF and
16 the CALIFORNIA CLASS members.
17 27. This Class Action meets the statutory prerequisites for the maintenance of a Class
18 Action as set forth in Cal. Code of Civ. Proc. § 382, in that:
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 factual, 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 of the CALIFORNIA
25 CLASS;
26 (c) The claims of the representative PLAINTIFF are typical of the claims of
27 each member ofthe CALIFORNIA CLASS. PLAINTIFF, like all the
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CLASS ACTION COMPLAINT
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 overtime wages due to the
6 CALIFORNIA CLASS for all overtime worked by the CALIFORNL\
7 CLASS and thereby systematically underpays overtime compensation to
8 the CALIFORNIA CLASS. PLAINTIFF sustained economic injury as a
9 result of DEFENDANT'S employment practices. PLAINTIFF and the
10 members of the CALIFORNIA CLASS were and are similarly or
11 identically harmed by the same unlawful, 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 the CALIFORNLA 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 and the members of the CALIFORNIA CLASS that would
18 make class certification inappropriate. Counsel for the CALIFORNIA
19 CLASS will vigorously assert the claims of all CALIFORNIA CLASS
20 Members.
21 28. In addition to meeting the statutory prerequisites to a Class Action, this action
22 is properly maintained as a Class Action pursuant to Cal. Code of Civ. Proc. § 382, in that:
23 (a) Without class certification and determination of declaratory, injunctive,
24 statutory and other legal questions within the class format, prosecution of
25 separateactionsby individual members ofthe CALIFORNIA CLASS will
26 create the risk of:
27 1) Inconsistent or varying adjudications with respect to individual
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CLASS ACTION COMPLAINT
1 members of the CALIFORNIA CLASS which would establish
2 incompatible standards of conduct for the parties opposing the
3 CALIFORNL\ 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 CALIFORNI A CLASS have acted or refused to
10 act on grounds generally applicable to the CALIFORNIA CLASS, 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 ofthe
14 CALIFORNIA CLASS as required by law;
15 1) With respect to the First Cause of Action, the final relief on behalf
16 of the CALIFORNIA CLASS sought does not relate exclusively fo
17 restitution because through this claim PLAINTIFF seeks
18 declaratory relief holding that the 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 California 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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CLASS ACTION COMPLAINT
1 adjudication of the controversy, including consideration of:
2 1) The interests of the members of the CALIFORNL\ 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 by the individual CALIFORNIA CL AS S Members when
7 compared to the 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 ofthe 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 of the 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 legal rights out 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 methods for the fair
27 and efficient adjudication of this litigation because class treatment
28 14
CLASS ACTION COMPLAINT
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 to the CALIFORNIA CLASS
7 predominate over any question affecting only individual CALIFORNIA
8 CL AS S 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 ofthe claims ofthe members of the CALIFORNIA
13 CLASS because in the context of employment litigation a substantial
14 number of individual CALIFORNLA 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 of the CALIFORNIA CLASS are so numerous that it is
18 impractical to bring all members of the CALIFORNIA CLASS before the
19 Court;
20 (d) PLAINTIFF, and the other CALIFORNL\ 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 DEFENDANT'S actions have inflicted upon
27 the CALIFORNL\ CLASS;
28 15
CLASS ACTION COMPLAINT
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 CALIFORNL\ CLASS for the injuries sustained;
4 (g) DEFENDANT has acted or refused 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 of the 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 ofthe CALIFORNLA CLASS.
13 30. DEFENDANTmaintainsrecordsfrom which the Court can ascertain and identify
14 by job title each of DEFENDANT'S employees who as have been systematically, mtentionally
15 and uniformly subj ected 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 titles
17 of similarly situated employees when they have been identified.
18
19 THE CALIFORNIA LABOR SUB-CLASS
20 31. PLAINTIFF further brings the Second, Third and Fourth causes of Action on
21 behalf of a Califomia sub-class, defined as all members of the CALIFORNIA CLASS classified
22 as non-exempt employees (the "CALIFORNIA LABOR SUB-CLASS") at any time during the
23 period three (3) years prior to the filing of the complaint and ending on the date as determined
24 by the Court (tiie "CALIFORNIA LABOR SUB-CLASS PERIOD") pursuant to Cal. Code of
25 Civ.Proc. § 382. The amount in controversy for the aggregate claim of CALIFORNIA LABOR
26 SUB-CLASS Members is under five million dollars ($5,000,000.00).
27 . 32. DEFENDANT, as a matter of company policy, practice and procedure, and in
28 16
CLASS ACTION COMPLAINT
1 violation ofthe applicable Labor Code, Industrial Welfare Commission ("IWC") Wage Order
2 requirements, and the applicable provisions of Califomia law, intentionally, knowingly, and
3 wilfully, engaged in a practice whereby DEFENDANT failed to correctly calculate overtime
4 compensation for the overtime worked by PLAINTIFF and the other members of the
5 CALIFORNLA LABOR SUB-CLASS, even though DEFENDANT enjoyed the benefit of this
6 work, required employees to perform this work and permitted or suffered to permit this
7 overtime work. DEFENDANT has uniformly denied these CALIFORNIA LABOR SUB-
8 CLASS Members overtime wages at the correct amount to which these employees are entitled
9 in order to unfairly cheat the competition and unlawfully profit. To the extent equitable tolling
10 operates to toll claims by the CALIFORNIA LABOR SUB-CLASS against DEFENDANT, the
11 CALIFORNLA LABOR SUB-CLASS PERIOD should be adjusted accordmgly.
12 33. DEFEND ANT maintains records from which the Court can ascertain and identify
13 by name and job title, 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 numerous that joinder of all
18 CALIFORNLA LABOR SUB-CLASS Members is impracticable.
19 35. Common questions of law and fact exist as to members ofthe CALIFORNIA
20 LABOR SUB-CLASS, including, but not limited, to the following:
21 (a) Whether DEFENDANT unlawfully failed to correctly calculate and pay
22 overtime compensation to members of the CALIFORNIA LABOR SUB-
23 CLASS in violation of the Califomia Labor Code and California
24 regulations and the applicable California Wage Order;
25 (b) Whether the members ofthe CALIFORNIA LABOR SUB-CLASS are
26 entitled to overtime compensation for overtime worked under the overtime
27 pay requirements of California law;
28 17
CLASS ACTION COMPLAINT
1 (c) Whether DEFENDANT failed to accurately record the applicable
2 overtime rates for all overtime worked PLAINTIFF and the other
3 members ofthe CALIFORNIA LABOR SUB-CLASS;
4 (d) Whether DEFENDANT failed to provide PLAINTIFF and the other
5 members of the CALIFORNIA 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 of damages and penalties owed to the members ofthe
10 CALIFORNLA LABOR SUB-CLASS; and,
11 (g) Whether DEFENDANT'S conduct was willful.
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 of the CALIFORNIA 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 uniformly applied to each and every member of the
19 CALIFORNIA LABOR SUB-CLASS, and therefore, the propriety of this conduct can be
20 adjudicated on a class-wide basis.
21 37. DEFENDANT violated therightsof the 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 and the members of the CALIFORNIA LABOR SUB-
25 CLASS the correct overtime pay for which DEFENDANT is liable
26 pursuant to Cal. Lab. Code § 1194 & § 1198;
27 (b) Violating Cal. Lab. Code § 226, by failing to provide PLAINTIFF and the
28
18
CLASS ACTION COMPLAINT
1 members of the CALIFORNIA LABOR SUB-CLASS with an accurate
2 itemized statement in writing showing all accurate and applicable
3 overtime rates in effect during the pay period and the corresponduig
4 amount of time worked at each overtime rate by the employee; and,
5 (c) Violating Cal. Lab. Code §§ 201, 202 and/or 203, which provides that
6 when an employee is discharged or quits from employment, the employer
7 must pay the employee all wages due without abatement, by failing to
8 tender full payment and/or restitution of wages owed or in the mariner
9 required by Califomia law to the members ofthe CALIFORNIA LABOR
10 SUB-CLASS who have terminated their employment.
11 38. This Class Action meets the statutory prerequisites for the maintenance ofa Class
12 Action as set forth in Cal. Code of Civ. Proc. § 382, in that:
13 (a) The persons who comprise the CALIFORNLA LABOR SUB-CLASS are
14 so numerous that the joinder of all CALIFORNIA LABOR SUB-CLASS
15 Members is impracticable and the disposition of their claims as a class
16 will benefit the parties and the Court;
17 (b) Nearly all factual, legal, statutory, declaratory and injunctive relief issues
18 that are raised in this Complaint are common to the CALIFORNIA
19 LABOR SUB-CLASS and will apply uniformly to every member of the
20 CALIFORNIA LABOR SUB-CLASS;
21 (c) The claims of the representative PLAINTIFF are typical of the claims of
22 each member ofthe CALIFORNIA LABOR SUB-CLASS. PLAINTIFF,
23 like all the other members ofthe CALIFORNIA LABOR SUB-CLASS,
24 was a non-exempt employee paid on an hourly basis and paid additional
25 non-discretionary incentive wages who was subjected to the
26 DEFENDANT'S practice and policy which failed to pay the correct rate
27 of overtime wages due to the CALIFORNIA LABOR SUB-CLASS for
28 19_
CLASS ACTION COMPLAINT
1 ' all overtime worked. PLAINTIFF sustained economic injury as a result
2 of DEFEND ANT's employment practices. PLAINTIFF and the members
3 of the CALIFORNIA LABOR SUB-CLASS were and are similarly or
4 identically harmed by the same unlawful, deceptive, unfair and pervasive
5 pattem of misconduct engaged in by DEFENDANT; and,
6 (d) The representative PLAINTIFF will fairly and adequately represent and
7 protect the interest ofthe CALIFORNIA LABOR SUB-CLASS, and has
8 retained counsel who are competent and experienced in Class Action
9 litigation. There are no material conflicts between the claims of the
10 representative PLAINTIFF and the members of the CALIFORNIA
11 LABOR SUB-CLASS that would make class certification inappropriate.
12 Counsel for the CALIFORNIA LABOR SUB-CLASS w
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1 BLUMENTHAL NORDREHAUG BHOWMIK DE BLOUW LLP Norman B. Blumenthal (State Bar #068687) 2 Kyle R. Nordrehaug (State Bar #205975) Aparajit Bhowmik (State Bar #248066) 3 Piya Mukherjee (State Bar #274217) Victoria B. Rivapalacio (State Bar #275115) 4 2255 Calle Clara La JoUa, CA 92037 ''tB 1 5 2019 5 Telephone: (858)551-1223 Facsimile: (858) 551-1232 By:. iLPoftalanza 6 .'O^PUly Clerii Attomeys for Plaintiff 7 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 IN AND FOR THE COUNTY OF SACRAMENTO 11 12 13 ANDREA SPEARS, an individual, on behalf CaseNo. 34-2017-00210560-CU-OE-GDS of herself and on behalf of all persons 14 similarly situated. CLASS ACTION 15 Plaintiff, DECLARATION OF JEFFREY S. HERMAN IN 16 OPPOSITION TO DEFENDANT'S MOTION AS vs. TO WHY SPEARS' CASE SHOULD NOT 17 PROCEED AS A PAGA REPRESENTATIVE HEALTH NET OF CALIFORNIA, INC., a ACTION , r-AV/ 18 Califomia Corporation; and Does 1 through 50, Inclusive, BY FAX 19 Defendants. Hearing Date: April 11, 2019 20 Hearing Time: 10:00 a.m Dept: 35 21 TOMAS R. ARANA, on behalf of himself, all others similarly sitaated. 22 Action Filed: April 5, 2017 Plaintiff, 23 vs. 24 HEALTH NET OF CALIFORNIA, INC., a 25 Califomia corporation; and DOES 1 through 50, inclusive. 26 Defendants. 27 28 DECL. OF JSH IN OPPOSITION TO DEFENDANT'S MOTION AS TO WHY SPEARS' CASE SHOULD NOT PROCEED AS A PAGA REPRESENTATIVE ACTION CASE No. 34-2017-00210560 1 I, Jeffrey S. Herman, declare as follows: 2 1. I am an attomey at law duly Hcensed to practice before all of the courts of the State of 3 CaUfomia. I am an attomey with the lawfirmof Blumenthal Nordrehaug Bhowmik De Blouw LLP, counsel 4 of record for Plaintiff Andrea Spears. I have personal knowledge of the facts set forth herein, and if called 5 as a witaess, could and would testify competentiy thereto. 6 2. A tme and correct copy of Plaintiffs original Complaint is attached hereto as Exhibit 1. 7 3. A tme and correct copy of Plaintiff s PAGA Notice is attached hereto as Exhibit 2. 8 4. A tme and correct copy ofpertinent portions firom the PMK Deposition ofDiane Rodes is 9 attached hereto as Exhibit 3. 10 5 A tme and correct copy ofthe email chain among Counsel regarding Ms. Rodes' deposition 11 is attached hereto as Exhibit 4. 12 6. A tme and correct copy of the Order m Mejia v. 99 Cents Only Stores, 2018 Cal. Super. 13 LEXIS 3082 (L.A.S.C. April 6,2018) denymg the defendant's motion to strike the plaintiffs representative 14 action is attached hereto as Exhibit 5. 15 I declare under penalty of perjury under the laws of the State of Califomia and the United States that 16 the foregouig is tme and correct. Executed at La JoUa, CaUfomia on February 15, 2019. 17 18 19 20 21 22 23 24 25 26 27 DECL. OF JSH IN OPPOSITION TO DEFENDANT'S MOTION AS TO WHY SPEARS' CASE SHOULD NOT PROCEED AS A PAGA REPRESENTATIVE ACTION CASE No. 34-2017-00210560 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 EXHIBIT 1 22 23 24 25 26 27 28 DECL. OF JSH IN OPPOSITION TO DEFENDANT'S MOTION AS TO WHY SPEARS' CASE SHOULD NOT PROCEED AS A PAGA REPRESENTATIVE ACTION CASE No. 34-2017-00210560 FILED 1 BLUMENTHAL, NORDREHAUG & BHOWMIK LLP SSupBrior Court Of Cailfor^Ba, Norman B. Blumenthal (State Bar #068687) 2 Kyle R. Nordrehaug (State Bar #205975) Aparajit Bhowmik (State Bar #248066) 04/05/2017 3 2255 Calle Clara La Jolla,CA 92037 jinortt 4 Telephone: (858)551-1223 B)L_ ,, Depijiiy Facsimile: (858) 551-1232 5 Website: www, oamlawca. com Attorneys for Plaintiff 34-2017-002l05&tl 6 7 8 9 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA 11 IN AND FOR THE COUNTY OF SACRAMENTO 12 ANDREA SPEARS, an individual, on Case No. 13 behalf of herself and on behalf of all persons shnilarly situated, CLASS ACTION COMPLAINT FOR: 14 1. UNFAIR COMPETITION IN 15 Plaintiff, VIOLATION OF CAL. BUS. & PROF. CODE§§ 17200, etseq.; 16 f vs. 2. FAILURE TO PAY OVERTIME 17 HEALTH NET OF CALIFORNIA, INC., WAGES IN VIOLATION OF CAL. a Califomia Corporation; and Does 1 LAB. CODE § § 510, seq.; 18 through 50, Inclusive, 3. FAILURE TO PROVIDE 19 ACCURATE ITEMIZED STATEMENTS IN VIOLATION OF CAL. LAB. CODE § 20 Defendants. 226; and, 21 4. FAILURE TO PROVIDE WAGES WHEN DUE DSf VIOLATION OF CAL. 22 LAB. CODE §§ 201,202 AND 203. 23 24 DEMAND FOR A JURY TRIAL 25 26 27 28 1 CLASS ACnON COMPLAINT 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 own acts and knowledge which are based on personal knowledge, the followmg: 4 5 THE PARTIES 6 1. Defendant Health Net Of California, Inc. ("DEFENDANT") is a Califomia 7 corporation and at all relevant times mentioned herein conducted and continues to conduct 8 substantial and regular business throughout California. 9 2. DEFENDANT provides health care insurance and other services in Califomia, 10 the United States. The company also iniplements a tool that electronically prompts doctors to 11 prescribe generics. The company was founded in 1977 and is based in Woodland Hills, 12 Califomia. 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 meal and rest periods from December 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 compensation from DEFENDANT in the form of non-discretionary incentive wages. 18 4. PLAINTIFF brings this Class Action on behalf of herself and a Califomia class, 19 defmed as all individuals who are or previously were employed by DEFENDANT in Califomia 20 and classified as non-exempt employees (the "CALIFORNIA CLASS") at any time during the 21 period beginning four (4) years prior to the filing of this Complaint and ending on the date as 22 detennined by the Court (the "CALIFORNIA CLASS PERIOD"). The amount in controversy 23 for the aggregate claim of CALIFORNIA CLASS Members is under five million dollars 24 ($5,000,000.00). 25 5. PLAINTIFF brings this Class Action on behalf of herself and a CALIFORNIA 26 CLASS in order to fully compensate the CALIFORNIA CLASS for their losses incurred during 27 the CALIFORNIA CLASS PERIOD caused by DEFENDANT'S uniform policy and practice 28 CLASS ACTION COMPLAINT 1 which failed to lawfully compensate these employees for all their overtime worked. 2 DEFENDANT'S uniform policy and practice alleged herein is an unlawful, 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 members of the CALIFORNIA CLASS seek an injunction enjoining such conduct by 6 DEFENDANT in the future, relief for the named PLAINTIFF and the other members of the 7 CALIFORNL\ CLASS who have been economically injured by DEFENDANT'S past and 8 current unlawful conduct, and all other appropriate legal and equitable relief 9 6. The tme names and capacities, whether individual, corporate, subsidiary, 10 partnership, associate or otherwise of defendants DOES 1 through 50, inclusive, are presently 11 unknown to PLAINTIFF who therefore sues these Defendants by such fictitious names pursuant 12 to Cal. Civ. Proc. Code § 474. PLAINTIFF will seek leave to amend this Complaint to allege 13 the tme 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 in this Complaint, including DOES 1 through 50, inclusive, are^ 16 responsible in some maimer for one or more of the events and happenings that proximately 17 caused the injuries and damages hereinafter alleged. 18 7. The agents, servants and/or employees ofthe Defendants and each of them acting 19 on behalf ofthe Defendants acted within the course and scope of his, her or its authority as the 20 agent, servant 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 PLAINTIFF and the other members of the 24 CALIFORNIA CLASS, for the loss sustained as a proximate result of the conduct of the 25 Defendants' agents, servants and/or employees. 26 /// 27 /// 28 CLASS ACTION COMPLAINT 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 of the CALIFORNIA 4 CLASS for their overtime worked. DEFENDANT systematically, unlawfully 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 ofthe CALIFORNIA CLASS 8 forfeited wages due them for working overtime without compensation at the correct overtime 9 rates. DEFENDANT'S uniform policy and practice to not pay the members of the 10 CALIFORNIA CLASS the correct overtime rate for all overtime worked in accordance with 11 applicable law is evidenced by DEFENDANT'S business records. 12 9. State law provides that employees must be paid overtime at one-and-one-half 13 times their "regular rate of pay." 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 other CALIFORNIA CLASS 17 Members' compensation was DEFENDANT'S non-discretionary incentive program that paid 18 PLAINTIFF and other CALIFORNIA CLASS Members incentive wages based on theu" 19 performance for DEFENDANT. The non-discretionary 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 benefits 22 cash out options. PLAINTIFF and other CALIFORNIA CLASS Members were entitied to 23 receive "cash back" payments for any unused portion of their medical benefits. However, when 24 calculating the regular rate of pay in order to pay overtime to PLAINTIFF and other 25 CALIFORNIA CLASS Members, DEFENDANT failed to include the incentive compensation 26 as part of the employees' "regular rate of pay" for purposes of calculating overtime pay. 27 Management and supervisors described the incentive program to potential and new employees 28 4 CLASS ACTION COMPLAINT 1 as part of the compensation package. As a matter of law, the incentive compensation received 2 by PLAE^TIFF and other 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 CALIFORNL\ CLASS Members by DEFENDANT. 5 11. In violation of the applicable sections of the Califomia Labor Code and the 6 requirements of the Industrial Welfare Commission ("IWC") Wage Order, DEFENDANT as 7 a matter of company policy, practice and procedure, intentionally, knowingly and systematically 8 failed to compensate PLAINTIFF and the other members of the CALIFORNLA CLASS at the 9 correct rate of pay for all overtime worked. This uniform policy and practice of DEFENDANT 10 is intended to purposefully avoid the payment 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 by the CALIFORNIA CLASS against DEFENDANT, the CALIFORNIA CLASS 14 PERIOD should be adjusted accordingly. 15 12. As a result of their rigorous work schedules, PLAINTIFF and other 16 CALIFORNIA CLASS Members were also fromtimeto time unable to take off duty meal 17 breaks and were not fully 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 than five (5) hours during a shift without receiving an off-duty meal break. Further, 20 DEFENDANT failed to provide PLAINTIFF and CALIFORNIA CLASS Members with a 21 second off-duty meal period each workday in which these employees were required by 22 DEFENDANT to work ten (10) hours of work. PLAINTIFF and the other CALIFORNIA 23 CLASS Members therefore forfeited meal breaks without additional compensation and in 24 accordance with DEFENDANT'S strict corporate policy and practice. 25 13. During the CALIFORNIA CLASS PERIOD, PLAINTIFF and other 26 CALIFORNIA CL AS S Members were also required to work in excess of four (4) hours without 27 being provided ten (10) minute rest periods. Further, these employees were denied their first 28 5 CLASS ACTION COMPLAINT 1 rest periods of at least ten (10) minutes for every shift worked of at least two (2) to four (4) 2 hours, a first and 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 of their rigorous work schedules, PLAINTIFF and other CALIFORNIA CLASS 7 Members were systemically denied their proper rest periods by DEFENDANT and 8 DEFENDANT'S managers. 9 14. When PLAINTIFF and other CALIFORNIA CLASS Members worked overtime 10 in the same pay period they earned incentive wages and/or missed meal and rest breaks, 11 DEFENDANT also failed to provide PLAINTIFF and the other members of the CALIFORNIA 12 CLASS 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 fumish each of his or her employees with an accurate itemized wage statement in writing 17 showing, among other things, gross wages earned and all applicable hourly rates in effect during 18 the pay period and the corresponding amount of time worked at each hourly rate. Additionally, 19 the wage statements DEFENDANT issued to PLAINTIFF and other CALIFORNIA CLASS 20 Members violated Cal. Lab. Code Section 226(a) in that DEFENDANT failed to correctly list 21 the correct name of the legal entity that was the employer of PLAINTIFF and the 22 CALIFORNIA CLASS Members. Aside, from the violations listed above in this paragraph, 23 DEFENDANT failed to issue to PLAINTIFF an itemized wage statement that lists all the 24 requirements under Califomia Labor Code 226 et seq. As a result, from time to time 25 DEFENDANT provided PLAINTIFF and the other members of the CALIFORNIA 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 6 CLASS ACTION COMPLAINT 1 CALIFORNIA CLASS Members, DEFENDANT committed acts of unfair competition in 2 violation of the Califomia Unfair Competition Law, Cal. Bus. & Prof Code §§ 17200, et seq. 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 resuk 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 throughout her employment with 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 included the mcentive 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 throughout her 23 employment with 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 also from time to time 26 unable to take off duty meal and rest breaks and was not fully relieved of duty for her meal 27 periods, PLAINTIFF was required to perform work as ordered by DEFENDANT for more than 28 7 " CLASS ACTION COMPLAINT 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 therefore 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 with a paystub that 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 fully 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 controversy 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 California 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 this County and DEFENDANT (i) 20 currently maintains and at all relevant times maintained offices arid facilities in this County 21 and/or conducts substantial business in this County, and (ii) committed the wrongful conduct 22 herein alleged in this County against members of the CALIFORNIA CLASS and 23 CALIFORNL\ LABOR SUB-CLASS. ^ 24 25 THE CALIFORNIA CLASS 26 19. PLAINTIFF brings the First Cause of Action for Unfair, Unlawful and Deceptive 27 Business Practices pursuant to Cal. Bus. & Prof Code §§ 17200, et seq. (the "UCL") as a Class 28 8 ' CLASS ACTION COMPLAINT 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 in California and 3 classified as non-exempt employees (the "CALIFORNIA CLASS") at any time during the 4 period beginning four (4) years prior to the filing of this Complaint and ending on the date as 5 determined by the Court (the "CALIFORNIA CLASS PERIOD"). The amount in controversy 6 for the aggregate claim of CALIFORNIA CLASS Members is under five million dollars 7 ($5,000,000.00). 8 20. To the extent 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 Califomia Legislature has commanded that "all wages eamed by any 12 person in any employment are due and payable twice during each calendar month, on days 13 designated in advance by the employer as the regular paydays", and further that "[ajnywork 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-half times the 16 regular rate of pay for an employee." (Lab. Code § 204 and § 510(a).) The Industrial Welfare 17 Commission (IWC), however, is statutorily authorized to, "establish exemptions from the 18 requirement that an overtime rate of compensation be paid for executive, administrative, and 19 professional employees, provided [inter alia] that the employee is primarily engaged in duties 20 that meet the test of the exemption, [and] customarily and regularly exercises discretion and 21 independent judgment in performing those duties..." (Lab. Code § 510(a).) Neither the 22 PLAINTIFF nor the other members of the CALIFORNIA CLASS and/or the CALIFORNIA 23 LABOR SUB-CLASS qualify for exemption from the above requirements. 24 22. DEFENDANT, as a matter of company policy, practice and procedure, and in 25 violation of the applicable Labor Code, Industrial Welfare Commission ("IWC") Wage Order 26 requirements, and the applicable provisions of Califomia law, intentionally, knowingly, and 27 wilfully, engaged in a practice whereby DEFENDANT systematically failed to correctly 28 9 CLASS ACTION COMPLAINT 1 calculate and record overtime compensation for overtime worked by PLAINTIFF and the other 2 members ofthe CALIFORNIA CLASS, eventiioughDEFENDANT enjoyed the benefit 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 paid the applicable rate for all overtime worked and to 7 accurately calculate the "regular rate of pay" by including the incentive compensation that 8 PLAE^TIFF and members of the CALIFORNIA CLASS were awarded by DEFENDANT. 9 DEFENDANT, 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 practice applicable to each and every CALIFORNIA CLASS Member can be adjudicated on 14 a class-wide basis as unlawful, unfair, and/or deceptive under Cal. Business & Professions Code 15 §§ 17200, et seq. (the "UCL") as causation, damages, and reliance are not elements of this 16 claim. 17 24. At no time during the CALIFORNIA CLASS PERIOD was the compensation for 18 any member of the CALIFORNIA CLASS properly recalculated so as to compensate the 19 employee for all overtime worked at the applicable rate, as required by Califomia Labor Code 20 §§ 204 and 510, et seq. At no time during the CALIFORNIA CLASS PERIOD was the 21 overtime compensation for any member ofthe CALIFORNIA CLASS properly recalculated 22 so as to include all earnings in the overtime compensation calculation as required by Califomia 23 Labor Code §§ 510, seq. 24 25. The CALIFORNIA CLASS, is so numerous that joinder of all CALIFORNIA 25 CLASS Members is impracticable. 26 26. DEFENDANT uniformly violated the rights ofthe CALIFORNIA CLASS under 27 California law by: 28 10 CLASS ACTION COMPLAINT 1 (a) Violating the Califomia Unfair Competition Laws, Cal. Bus. & Prof Code 2 §§ 17200, et seq., by unlawfully, unfairly and/or deceptively having in 3 place company policies, practices and procedures that failed to pay all 4 wages due the CALIFORNI A CLASS for aU overtime worked, and failed 5 to accurately record the applicable rates of all overtime worked by the 6 CALIFORNL\ 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 unlawfully, 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 and the members of the CALIFORNIA 12 CLASS; and, 13 (c) Committing an act of unfair competition in violation ofthe Califomia 14 UnfairCompetitionLaws, Cal. Bus. & Prof Code §§ 17200, e^^e^., by 15 failing to provide mandatory meal and/or rest breaks to PLAINTIFF and 16 the CALIFORNIA CLASS members. 17 27. This Class Action meets the statutory prerequisites for the maintenance of a Class 18 Action as set forth in Cal. Code of Civ. Proc. § 382, in that: 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 factual, 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 of the CALIFORNIA 25 CLASS; 26 (c) The claims of the representative PLAINTIFF are typical of the claims of 27 each member ofthe CALIFORNIA CLASS. PLAINTIFF, like all the 28 11 CLASS ACTION COMPLAINT 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 overtime wages due to the 6 CALIFORNIA CLASS for all overtime worked by the CALIFORNL\ 7 CLASS and thereby systematically underpays overtime compensation to 8 the CALIFORNIA CLASS. PLAINTIFF sustained economic injury as a 9 result of DEFENDANT'S employment practices. PLAINTIFF and the 10 members of the CALIFORNIA CLASS were and are similarly or 11 identically harmed by the same unlawful, 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 the CALIFORNLA 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 and the members of the CALIFORNIA CLASS that would 18 make class certification inappropriate. Counsel for the CALIFORNIA 19 CLASS will vigorously assert the claims of all CALIFORNIA CLASS 20 Members. 21 28. In addition to meeting the statutory prerequisites to a Class Action, this action 22 is properly maintained as a Class Action pursuant to Cal. Code of Civ. Proc. § 382, in that: 23 (a) Without class certification and determination of declaratory, injunctive, 24 statutory and other legal questions within the class format, prosecution of 25 separateactionsby individual members ofthe CALIFORNIA CLASS will 26 create the risk of: 27 1) Inconsistent or varying adjudications with respect to individual 28 12 CLASS ACTION COMPLAINT 1 members of the CALIFORNIA CLASS which would establish 2 incompatible standards of conduct for the parties opposing the 3 CALIFORNL\ 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 CALIFORNI A CLASS have acted or refused to 10 act on grounds generally applicable to the CALIFORNIA CLASS, 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 ofthe 14 CALIFORNIA CLASS as required by law; 15 1) With respect to the First Cause of Action, the final relief on behalf 16 of the CALIFORNIA CLASS sought does not relate exclusively fo 17 restitution because through this claim PLAINTIFF seeks 18 declaratory relief holding that the 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 California 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 CLASS ACTION COMPLAINT 1 adjudication of the controversy, including consideration of: 2 1) The interests of the members of the CALIFORNL\ 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 by the individual CALIFORNIA CL AS S Members when 7 compared to the 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 ofthe 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 of the 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 legal rights out 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 methods for the fair 27 and efficient adjudication of this litigation because class treatment 28 14 CLASS ACTION COMPLAINT 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 to the CALIFORNIA CLASS 7 predominate over any question affecting only individual CALIFORNIA 8 CL AS S 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 ofthe claims ofthe members of the CALIFORNIA 13 CLASS because in the context of employment litigation a substantial 14 number of individual CALIFORNLA 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 of the CALIFORNIA CLASS are so numerous that it is 18 impractical to bring all members of the CALIFORNIA CLASS before the 19 Court; 20 (d) PLAINTIFF, and the other CALIFORNL\ 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 DEFENDANT'S actions have inflicted upon 27 the CALIFORNL\ CLASS; 28 15 CLASS ACTION COMPLAINT 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 CALIFORNL\ CLASS for the injuries sustained; 4 (g) DEFENDANT has acted or refused 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 of the 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 ofthe CALIFORNLA CLASS. 13 30. DEFENDANTmaintainsrecordsfrom which the Court can ascertain and identify 14 by job title each of DEFENDANT'S employees who as have been systematically, mtentionally 15 and uniformly subj ected 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 titles 17 of similarly situated employees when they have been identified. 18 19 THE CALIFORNIA LABOR SUB-CLASS 20 31. PLAINTIFF further brings the Second, Third and Fourth causes of Action on 21 behalf of a Califomia sub-class, defined as all members of the CALIFORNIA CLASS classified 22 as non-exempt employees (the "CALIFORNIA LABOR SUB-CLASS") at any time during the 23 period three (3) years prior to the filing of the complaint and ending on the date as determined 24 by the Court (tiie "CALIFORNIA LABOR SUB-CLASS PERIOD") pursuant to Cal. Code of 25 Civ.Proc. § 382. The amount in controversy for the aggregate claim of CALIFORNIA LABOR 26 SUB-CLASS Members is under five million dollars ($5,000,000.00). 27 . 32. DEFENDANT, as a matter of company policy, practice and procedure, and in 28 16 CLASS ACTION COMPLAINT 1 violation ofthe applicable Labor Code, Industrial Welfare Commission ("IWC") Wage Order 2 requirements, and the applicable provisions of Califomia law, intentionally, knowingly, and 3 wilfully, engaged in a practice whereby DEFENDANT failed to correctly calculate overtime 4 compensation for the overtime worked by PLAINTIFF and the other members of the 5 CALIFORNLA LABOR SUB-CLASS, even though DEFENDANT enjoyed the benefit of this 6 work, required employees to perform this work and permitted or suffered to permit this 7 overtime work. DEFENDANT has uniformly denied these CALIFORNIA LABOR SUB- 8 CLASS Members overtime wages at the correct amount to which these employees are entitled 9 in order to unfairly cheat the competition and unlawfully profit. To the extent equitable tolling 10 operates to toll claims by the CALIFORNIA LABOR SUB-CLASS against DEFENDANT, the 11 CALIFORNLA LABOR SUB-CLASS PERIOD should be adjusted accordmgly. 12 33. DEFEND ANT maintains records from which the Court can ascertain and identify 13 by name and job title, 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 numerous that joinder of all 18 CALIFORNLA LABOR SUB-CLASS Members is impracticable. 19 35. Common questions of law and fact exist as to members ofthe CALIFORNIA 20 LABOR SUB-CLASS, including, but not limited, to the following: 21 (a) Whether DEFENDANT unlawfully failed to correctly calculate and pay 22 overtime compensation to members of the CALIFORNIA LABOR SUB- 23 CLASS in violation of the Califomia Labor Code and California 24 regulations and the applicable California Wage Order; 25 (b) Whether the members ofthe CALIFORNIA LABOR SUB-CLASS are 26 entitled to overtime compensation for overtime worked under the overtime 27 pay requirements of California law; 28 17 CLASS ACTION COMPLAINT 1 (c) Whether DEFENDANT failed to accurately record the applicable 2 overtime rates for all overtime worked PLAINTIFF and the other 3 members ofthe CALIFORNIA LABOR SUB-CLASS; 4 (d) Whether DEFENDANT failed to provide PLAINTIFF and the other 5 members of the CALIFORNIA 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 of damages and penalties owed to the members ofthe 10 CALIFORNLA LABOR SUB-CLASS; and, 11 (g) Whether DEFENDANT'S conduct was willful. 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 of the CALIFORNIA 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 uniformly applied to each and every member of the 19 CALIFORNIA LABOR SUB-CLASS, and therefore, the propriety of this conduct can be 20 adjudicated on a class-wide basis. 21 37. DEFENDANT violated therightsof the 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 and the members of the CALIFORNIA LABOR SUB- 25 CLASS the correct overtime pay for which DEFENDANT is liable 26 pursuant to Cal. Lab. Code § 1194 & § 1198; 27 (b) Violating Cal. Lab. Code § 226, by failing to provide PLAINTIFF and the 28 18 CLASS ACTION COMPLAINT 1 members of the CALIFORNIA LABOR SUB-CLASS with an accurate 2 itemized statement in writing showing all accurate and applicable 3 overtime rates in effect during the pay period and the corresponduig 4 amount of time worked at each overtime rate by the employee; and, 5 (c) Violating Cal. Lab. Code §§ 201, 202 and/or 203, which provides that 6 when an employee is discharged or quits from employment, the employer 7 must pay the employee all wages due without abatement, by failing to 8 tender full payment and/or restitution of wages owed or in the mariner 9 required by Califomia law to the members ofthe CALIFORNIA LABOR 10 SUB-CLASS who have terminated their employment. 11 38. This Class Action meets the statutory prerequisites for the maintenance ofa Class 12 Action as set forth in Cal. Code of Civ. Proc. § 382, in that: 13 (a) The persons who comprise the CALIFORNLA LABOR SUB-CLASS are 14 so numerous that the joinder of all CALIFORNIA LABOR SUB-CLASS 15 Members is impracticable and the disposition of their claims as a class 16 will benefit the parties and the Court; 17 (b) Nearly all factual, legal, statutory, declaratory and injunctive relief issues 18 that are raised in this Complaint are common to the CALIFORNIA 19 LABOR SUB-CLASS and will apply uniformly to every member of the 20 CALIFORNIA LABOR SUB-CLASS; 21 (c) The claims of the representative PLAINTIFF are typical of the claims of 22 each member ofthe CALIFORNIA LABOR SUB-CLASS. PLAINTIFF, 23 like all the other members ofthe CALIFORNIA LABOR SUB-CLASS, 24 was a non-exempt employee paid on an hourly basis and paid additional 25 non-discretionary incentive wages who was subjected to the 26 DEFENDANT'S practice and policy which failed to pay the correct rate 27 of overtime wages due to the CALIFORNIA LABOR SUB-CLASS for 28 19_ CLASS ACTION COMPLAINT 1 ' all overtime worked. PLAINTIFF sustained economic injury as a result 2 of DEFEND ANT's employment practices. PLAINTIFF and the members 3 of the CALIFORNIA LABOR SUB-CLASS were and are similarly or 4 identically harmed by the same unlawful, deceptive, unfair and pervasive 5 pattem of misconduct engaged in by DEFENDANT; and, 6 (d) The representative PLAINTIFF will fairly and adequately represent and 7 protect the interest ofthe CALIFORNIA LABOR SUB-CLASS, and has 8 retained counsel who are competent and experienced in Class Action 9 litigation. There are no material conflicts between the claims of the 10 representative PLAINTIFF and the members of the CALIFORNIA 11 LABOR SUB-CLASS that would make class certification inappropriate. 12 Counsel for the CALIFORNIA LABOR SUB-CLASS w