Preview
ORIGINAL
PATRICIA A. SAVAGE (236235) Fi EN/ENNORSED
CRF
E. RYAN LAMB (266850)
SAVAGE, LAMB, & REIMER, LLP
1550 Humboldt Road, Suite 4 JUN 14 2023
Chico, CA 95928
Phone: 530-809-1851 By: b_Viacduilald
Fax: 530-592-3865 Jeputy wterk
Email: psavage@slrlawfirm.com
Attorneys for Plaintiff,
JAY ROBINSON and
HUGO PINEDA, individually and on
behalf of all others similarly situated
BY FAX
10 SUPERIOR COURT OF THE STATE OF CALIFORNIA
11 COUNTY OF SACRAMENTO
12 JAY ROBINSON and Case No. 34-2019-00262942
HUGO PINEDA, individually and on
13 behalf of all others similarly situated, APPENDIX OF EVIDENCE IN
SUPPORT OF PLAINTIFF’S MOTION
14 FOR SUMMARY ADJUDICATION
Plaintiffs,
15
[Filed concurrently with the Notice of
16 Motion; Separate Statement of Undisputed
Facts; Memorandum of Points and
17 Authorities; Proposed Order]
18 Date: August 29, 2023
Time: 9:00 a.m.
19 ASOMEO ENVIRONMENTAL Dept.: 54
RESTORATION INDUSTRY, LLC, a Judge: Hon. Christopher E. Krueger
20 California Corporation and
PHILLIPS & JORDAN INC. a North Action Filed: August 16, 2019
21
Carolina Corporation and Trial: No Date Set
DOES 1-10,
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23 Defendants.
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APPENDIX OF EVIDENCE IN SUPPORT OF PLAINTIFF’S MOTION FOR SUMMARY ADJUDICATION
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APPENDIX OF EVIDENCE
1 — an “Second Amended Class Action Complaint
2 Relevant Portions of the Deposition of Lawrence Kahn
3 AERI Sample Employee Records, Set 1
4 AERI Sample Employee Records, Set 2
5 AERI Sample Employee Records, Set 4
10
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12 Date: June 12, 2023 SAVAGE, LAMB, & REIMER, LLP
13
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15 Patricia A. Savage, Esq.
E. Ryan Lamb, Esq.
16 Attorneys for Plaintiff
Jay Robinson
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APPENDIX OF EVIDENCE IN SUPPORT OF PLAINTIFF’S MOTION FOR SUMMARY ADJUDICATION
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Exhibit 1
PATRICIA A. SAVAGE, SBN 236235
E. RYAN LAMB, SBN 266850
SAVAGE & LAMB, PC
1550, Humboldt Road, Suite 4
Chico, CA 95928
Telephone: (530) 592-3861
Fax: (530) 592-3865
By:___N. Zevaag |
Attorneys for Plaintiff, - puty Clerk
JAY ROBINSON and
HUGO PINEDA, individually and on
behalf of ali others similarly situated
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SACRAMENTO
JAY ROBINSON and Case No. 34-2019-00262942
HUGO PINEDA, individually and on behalf of
all others similarly situated, CLASS ACTION
Plaintiffs, SECOND AMENDED COMPLAINT FOR
DAMAGES
v.
1. Violation of the Private Attorney
ASOMEO ENVIRONMENTAL. General Act
RESTORATION INDUSTRY, LLC, a 2. Failure to Pay Overtime
California Corporation and 3. Failure to Pay Minimum Wages
PHILLIPS & JORDAN INC. a North Carolina 4. Failure to Provide Meal Periods or
Corporation and Premium Pay
DOES 1-10, §. Failure to Provide Rest Periods or
Premium Pay
Defendants. 6. Failure to Pay Final Wages
7. Failure to Furnish Accurate Wage
Statements
8. Failure to Pay Reimbursement
Expenses
. 9, Violation of Labor Code Section 558
10, Failure to Keep Accurate Time
_ Records
11, Violation of Labor Code 970
12. Unfair Competition
DEMAND FOR JURY TRIAL
SECOND AMENDED COMPLAINT FOR DAMAGES
Plaintiffs JAY ROBINSON and HUGO PINEDA, individually and on behalf of all others —
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similarly situated, complains and allege as follows:
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L_INTRODUCTION
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1. This case arises out of unlawful wage payment and employment practices by the
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Defendants. The Plaintiffs bring this action individually and on behalf of similarly situated persons who
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on and after four (4) years prior to the filing of this action through the date of trial (Class Period), were
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deprived of wages and not provided lawful meal and rest periods (Plaintiff Class Members). |
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2. As used herein, the term “Plaintiffs” refers to JAY ROBINSON AND HUGO PINEDA
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who are the named Plaintiff Class representative; the term “Plaintiff Class” includes the Plaintiffs and all
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Plaintiff Class Members; the term “Class Members” includes all Plaintiffs and Plaintiff Class Members.
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3. The Plaintiffs seek compensation due the class Members during the “Class Period” which
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is defined as four years prior to the filing of this action through the trial date, based upon information
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and belief that the Defendants are continuing, and will continue, their unlawful practices as described
herein. | .
U,_ PARTIES AND JURISDICTION
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4. Plaintiff JAY ROBINSON (hereinafter “ROBINSON”) was at all relevant times herein,
an employee of Defendants ASOMEO ENVIRONMENTAL RESTORATION INDUSTRY LLC
(hereinafter “AERI”) and PHILLIPS & JORDAN, INC. (hereinafter “PHILLIPS & JORDAN”) and is
ee
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otherwise eligible to bring this action. Plaintiff ROBINSON was employed by Defendants to perform
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— as an hourly employee in approximately December of 2018, and continuing thereafter through
part of February, 2019. Plaintiff received training and instruction from both AERI and PHILLIPS &
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JORDAN with respect to the work performed in regards to his employment. Plaintiff ROBINSON’S
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claims are common to those of the Class Members.
5. Plaintiff HUGO PINEDA (hereinafter “PINEDA”) was at all relevant times-herein an
employee of Defendants AERI and PHILLIPS & JORDAN, INC. and is otherwise eligible to bring this
action. Plaintiff PINEDA was employed by the Defendants to perform services as an hourly employee
commencing in about December of 2018 and continuing thereafter until the end of January, 2019.
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Plaintiff PINEDA’S claims are common to those of the Class Members.
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SECOND AMENDED COMPLAINT FOR DAMAGES
6. Plaintiffs are informed and believe and thereon allege that Defendant ASOMEO
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ENVIRONMENTAL RESTORATION INDUSTRY LLC (“AERI”) is a California Limited Liability
Corporation with its primary place of business in the County of Sutter, and was the employer of the
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Plaintiff and the Members of Plaintiff Class during the Class Period.
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ZF, Plaintiffs are informed and believe and thereon allege that Defendant PHILLIPS &
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JORDAN INC. (hereinafter “PHILLIPS & JORDAN”), is a North Carolina Corporation who operates
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their business and provides services in California through their Regional Office located in Sacramento
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County. Hereinafter, collectively, PHILLIPS & JORDAN and AERI will be referred to as
“Defendants.”
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8. Plaintiffs are informed and believe and thereon allege that, at all times relevant,
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Defendant PHILLIPS & JORDAN was the “direct contractor,” and at all times relevant, Defendant
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AERI was the “subcontractor” and that both Defendants were contracted to perform restoration and
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clean-up services in relation to the “Camp Fire” of November 8, 2018, and both Defendants trained,
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directed and supervised Plaintiffs and Plaintiff Class Members in their performance of duties in relation
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to the restoration services for the Camp Fire. .
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9. Plaintiffs are informed and believe and thereon allege that PHILLIPS & JORDAN was
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their employer because PHILLIPS & JORDAN provided them with identification badges displaying the
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PHILLIPS & JORDAN logo, because Plaintiffs were provided training from PHILLIPS & JORDAN,
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because Plaintiffs were provided equipment and trucks to use with the PHILLIPS & JORDAN name on
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them, and because PHILLIPS & JORDAN had direct oversight and supervision of Plaintiffs’ and
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Plaintiff Class Members’ work performance.
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10. _ Plaintiffs are informed and believe and thereon allege that AERI was their employer
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because AERI’s name was on their pay stubs, because AERI provided Plaintiffs with training, and
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because AERI had oversight and supervision of Plaintiffs’ and Plaintiff Class Members’ work
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performance. |
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11. Plaintiffs are informed and believe and thereon allege that Plaintiffs were under the
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direction, control and employment of both Defendant AERI and Defendant PHILLIPS & JORDAN as
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SECOND AMENDED COMPLAINT FOR DAMAGES
joint employers. Plaintiffs further allege that both AERI and PHILLIPS & JORDAN, as joint employers,
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exercised considerable control over the structure and conditions of Plaintiffs’ employment.
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12. Pursuant to Code of Civil Procedure §§ 395(a) and 395.5, venue and jurisdiction are
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proper because the Defendant PHILLIPS & JORDAN transacts business in the County of Sacramento,
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| operates their Regional Office in the County of Sacramento and entered into a contract with Defendant
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AERI in the County of Sacramento for the restoration and clean-up associated with the Camp Fire.
Furthermore, the non-payment of wages as alleged herein had a direct effect on employees of the
Defendants in the State of California, and in particular, within the County of Sacramento. The monetary
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claims of the Plaintiffs are within the jurisdiction of this court.
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13. Plaintiffs are informed and believe and thereon allege that the number of class Members
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is over thirty (30), therefore the monetary claims of the Plaintiffs and Class Members exceed the
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jurisdictional minimum of this Court.
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14. Each of the Plaintiff Class Members are identifiable, similarly situated persons and were
employed by the Defendants during the Class Period in the State of California. Plaintiffs reserve the
right to seek additional amendment of this Complaint to add as named Plaintiffs, some or all of the
persons who are Members of the Plaintiff Class.
15. | Defendants DOES | through 10, are owners, operators, managers, subsidiaries of or
owned entities of Defendants, and each of them, or persons otherwise responsible for paying the wages
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and penalties alleged herein, who were conducting business in the State of California and employing *
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employees in the State of California. Plaintiffs are ignorant of the true names, capacities, relationships
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and extent of participation in the sdnduee herein alleged, of the Defendants sued herein as DOES 1
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through 10, inclusive, and therefore sues these Defendants by such fictitious names.
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- 16. Atall times relevant, each and every Defendant was an agent and/or employee of each -
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and every other Defendant. In doing the things alleged in the causes of action stated herein, each and
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every Defendant was acting within the course and scope of this agency or employment, and was acting
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with the consent, permission, and authorization of each remaining Defendant. All actions of each
Defendant as alleged herein were ratified and approved by every other Defendant or their officers or
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SECOND AMENDED COMPLAINT FOR DAMAGES
managing agents. Plaintiff will amend this complaint to allege the true names and capacities of the DOE
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Defendants when ascertained.
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I, EXHAUSTION OF ADMINISTRATIVE REMEDIES
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17. Plaintiffs have sought permission pursuant to Labor Code § 2698 et seq. to pursue to the
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claims set forth in this Complaint against Defendants as Private Attorney General on behalf of |
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themselves and Plaintiff class members. Pursuant to California Labor Code § 2699.3, Plaintiffs timely
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filed their notice with the Labor Workforce and Development Agency (“LWDA”) via online submission
on approximately March 28, 2019, and served notice of Defendants by Certified mail prior to filing this
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action.
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. 18. Plaintiffs have waited 65 days and have not received notice from the LWDA of its intent
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to pursue Plaintiffs’ claims. Plaintiffs have received authorization from the LWDA to pursue the claims
set forth in this Complaint against Defendants as Private Attorney Generals on behalf of themselves and
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others similarly situated employees based on the LWDA’S failure to provide notice of its intent to
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pursue these claims and based on Defendants’ failure to cure.
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IV. GENERAL ALLEGATIONS
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19. During all, or a portion of the Class Period, the Plaintiffs and each Member of the
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Plaintiff Class was employed by Defendants, and each of them, in the State of California. During their
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| employment, Plaintiffs and Plaintiff Class Members were employees covered under one or more
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regulations or Industrial Welfare Commission (IWC) Wage Orders, including but not limited to Wage
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Order 16-2001.
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V._ CLASS ACTION ALLEGATIONS
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20. Plaintiffs brings this action on behalf of themselves and all other similarly situated
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persons, as a class action pursuant to California Code of Civil Procedure §382. The Plaintiff Class is
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composed of and defined as follows:
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Plaintiff Class:
21. All persons who at any time within four (4) years prior to the filing of this action through
the date oftrial in this lawsuit, who were employed by the Defendants in an hourly position.
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SECOND AMENDED COMPLAINT FOR DAMAGES
22. ‘Plaintiff reserves the right to establish additional subclasses as appropriate.
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23. This action has been brought and may be maintained as a class action pursuant to Code of
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Civil Procedure §382 because there is a well-defined community of interest in the litigation and the class
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is readily ascertainable:
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(a) Numerosity: The Members of the class are so numerous that joinder of all Members
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would be unfeasible and impractical. The Membership of the entire class is unknown to Plaintiffs at this
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time; however, the class is estimated to be greater than thirty (30) individuals and the identity of such
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Membership is readily ascertainable by inspection of Defendants’ employment records. While the exact
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number of class Members is unknown to the Plaintiffs at this time, the Plaintiffs are informed and
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believe there are over thirty (30) class Members.
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(b) Typicality: Plaintiffs’ claims are typical of the class Members and Plaintiffs share a
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well-defined community of interest as demonstrated herein. Plaintiffs and all Class Members sustained
injuries and damages arising out of Defendants’ common course of conduct in violation of the law as
alleged herein.
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(c) Adequacy: Plaintiffs’ are qualified to, and will, fairly and adequately, protect the
interests of each class Member with whom they share a well-defined community of interest and
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typicality of claims. Plaintiffs’ attorneys, the proposed class counsel, are well-versed in the rules
governing class action discovery, certification, and settlement. Plaintiff and counsel have incurred, and
throughout the duration of this action will continue to incur costs and attorney’s fees that have been, are,
and will be necessarily expended for the prosecution of this action for the substantial benefit for each
class Member.
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(d) Superiority: A class action is superior to other available means of fair and efficient
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adjudication of the claims of the class Members, since joinder of all Class Members is impractical.
Class action treatment will allow a large number of similarly situated persons to prosecute their common
claims in a single forum, simultaneously, efficiently, and without the unnecessary duplication of effort
and expense that numerous individual actions would cause to such Plaintiffs or to the court system.
Further, the damages of many individual Class Members may be relatively small, and the burden and
expenses of individual litigation would make it difficult or impossible for individual Members of the
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SECOND AMENDED COMPLAINT FOR DAMAGES
class to seek and obtain relief, while a class action will serve an important public interest. Further,
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individual litigation would present the potential for inconsistent or contradictory judgments.
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(e) Commonality: Common questions of law and fact exist as to the Plaintiffs and Class
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Members that predominate over any questions, which affect only individual Members of the class.
These common questions include, but are not limited to:
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(1) Whether Defendants paid Plaintiffs and Class Members overtime wages
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for all overtime hours worked during their employment with Defendants;
(2) | Whether Defendants provided Plaintiffs and Class Members with a 30-
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minute uninterrupted meal period within the first five hours of work, and/or whether Defendants
provided Plaintiffs and Class Members with a second 30-minute uninterrupted meal period on shift
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longer than 10 hours, as required by California law;
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(3) | Whether Defendants provided Plaintiffs and Class Members with a 10-
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minute rest period for every four hours worked, as related by California law;
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(4) | Whether Defendants provided Plaintiffs and Class Members with one hour
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of premium wages when statutory meal periods were not provided, as required by California law;
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(5) | Whether Defendants provided Plaintiffs and Class Members with one hour
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of premium wages when statutory rest periods were not provided, as required by California law;
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(6) | Whether Defendants provided Plaintiffs and Class Members all monies
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owed upon the separation of their employment within the time period required by California Law;
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(7) | Whether Defendants provided Plaintiff and Class Members reimbursement
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for all necessary business-related expenses made during their employment with Defendants;
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(8) The effect upon and the extent of any injuries sustained by the Plaintiffs
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and Class Members and the appropriate type and/or measure of damages;
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(9) The appropriateness and nature of relief to the Plaintiffs and Class
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Members;
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(10) The appropriate nature of class-wide equitable relief; and
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(11) The extent of liability of each Defendant, including DOE Defendants, to
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the Plaintiffs and each Class Member. |
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SECOND AMENDED COMPLAINT FOR DAMAGES
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24. Plaintiff ROBINSON and PINEDA are unaware of any difficulties that are likely to be
encountered in the management of this action that would preclude its maintenance as a class action.
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VI. LATIONS ALLEGED - .
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FIRST CAUSE OF ACTION
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VIOLATION OF THE PRIVATE ATTORNEYS GENERAL ACT
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(By Plaintiffs on behalf of the State of California and Aggrieved Employees against All
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Defendants)
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25. The allegations set forth in this Complaint are hereby realleged and incorporated by .
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reference.
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26. Defendants’ violation of California wage and hour laws enable Plaintiffs to recover civil
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employer shall pay the employee one (1) hour of pay the employee’s regular rate of compensation for
each workday that a rest period is not provided. .
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47. Defendants, and each of them, routinely failed to provide Plaintiffs and Plaintiff class
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members with a ten-minute rest period for every four hours worked. Defendants routinely required
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SECOND AMENDED COMPLAINT FOR DAMAGES
Plaintiffs and Plaintiff class members to work through their rest breaks or required Plaintiffs and
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Plaintiff class members to work without taking a rest break.
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48. Defendants, and each of them, failed to pay Plaintiffs and Plaintiff class members one
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hour of premium pay for the days that they were not provided a ten-minute rest period for every four
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hours they worked.
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Wherefore, Plaintiffs request relief as hereinafter prayed for.
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TH CAUSE OF ACTION
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VIOLATION OF LABOR CODE §§ 201, 202, AND 203
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FAILURE TO PAY FINAL WAGES
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(Plaintiffs against All Defendants)
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49. __ The allegations set forth in this Complaint are hereby realleged and incorporated by
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reference.
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50. California Labor Code § 201 requires an employer who discharges an employee to pay all
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compensation due and owing to that employee immediately upon discharge.
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51. California Labor Code § 202 requires an employer to pay all compensation due and
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owing to an employee who quits within 72 hours of that employee quitting, unless the employee
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provides at least 72 hours-notice of quitting, in which case all compensation is due at the end of the
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employee’s final day of work.
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52. California Labor Code § 203 provides that if an employer willfully fails to pay
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compensation promptly upon discharge, as required by § 201 or § 202, then the employer is liable for
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waiting time penalties in the form on continue compensation of up to 30 work days.
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53. Defendants, and each of them, willfully failed and refused to timely pay compensation
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and wages, including overtime compensation that issue and owing to Plaintiff's and Plaintiff class
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members upon theif termination of employment with Defendants. As a result, Defendants, and each of
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them, are liable to Plaintiffs and Plaintiff class members, for waiting time penalties, together with
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interest thereon and reasonable attorney’s fees and costs, under California Labor Code § 203.
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Wherefore, Plaintiffs request relief as hereinafter prayed for.
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SECOND AMENDED COMPLAINT FOR DAMAGES
SEVENTH CAUSE OF ACTION
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VIOLATION OF LABOR CODE 226
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FAILURE TO FURNISH ACCURATE WAGE STATEMENTS
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(Plaintiffs against All Defendants)
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54. The allegations set forth in this Complaint are hereby realleged and incorporated by
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reference.
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55. California Labor Code § 226{a) requires employers semi-monthly or at the time of each
payment of wages to furnish each employee with a statement itemizing, among other things, gross
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wages earned, and all deductions. Cal. Labor Code § 226(b) provides that if an employer knowingly and
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intentionally fails to provide a statement itemizing, among other things, gross wages earned and accurate
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deductions, then the employee is entitled to recover the greater of all actual damages or fifty dollars
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($50) for the initial violation and one hundred dollars ($100) for each subsequent violation, up to four
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thousand dollars ($4000).
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56. Defendants and each of them, knowingly and intentionally failed to furnish to Plaintiffs
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and Plaintiff class member itemized wage statements depicting their actual gross wages in part due to
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Defendants’ failure to accurately record Plaintiffs’ and Plaintiff class members’ overtime and
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Defendants’ failure to record and pay premium wages for missed meal period. |
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57. Defendants, and each of them, are liable to Plaintiffs and Plaintiff class members for the
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amounts provided by Cal. Labor Code § 226(e)(1) and for penalties and attorneys’ fees.
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Wherefore, Plaintiffs request relief as hereinafter prayed for.
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| EIGHTH CAUSE OF ACTION
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VIOLATION OF LABOR CODE 2802 4
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FAILURE TO PAY REIMBURSEMENT EXPENSES
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(Plaintiffs against All Defendants)
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58. The allegations set forth in this Complaint are hereby realleged and incorporated by
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reference.
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59. __ Atall times relevant to this action, Labor Code § 2802 requires that an employer shall
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indemnify his or her employee “for all necessary expenditures or losses incurred by the employee in
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SECOND AMENDED COMPLAINT FOR DAMAGES
direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of
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the employer.” .
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60. Atall times herein mentioned Defendants, and each of them, were the employers of
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Plaintiffs and Plaintiff class members. During the course of their employment with Defendants,
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Plaintiffs and Plaintiff class members were required to use their personal cell phones for work purposes,
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they were required to pay for their travel expenses, they were required to pay for their training, and
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Plaintiffs and others similarly situated employees were required to pay for their tools to perform services
for the benefit of the Defendants.
61. ‘Asan actual and proximate result of the aforementioned violation, Plaintiffs and Plaintiff
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class members have been damaged in an amount according to proof, but in an amount in excess, of the
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jurisdiction of this Court. Plaintiffs and Plaintiff class members are entitled to the losses they incurred
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for the benefit of the Defendants during their employment with Defendants.
Wherefore, Plaintiffs request relief as hereinafter prayed for.
NINTH
CAUSEOF ACTION
VIOLATION OF LABOR CODE 558
CIVIL PENALTIES FOR VIOLATION OF CALIFORNIA LABOR CODE WAGE AND HOUR
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PROVISIONS AND PROVISIONS OF INDUSTRIAL WELFARE COMMISSION
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(Plaintiffs against All Defendants)
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62. The allegations of this Complaint are hereby realleged and incorporated by reference.
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63. Defendants, and each of them, have violated various provisions of the Labor Code and
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IWC Wage Order 16-2001 as set forth above. In doing so, Defendants, and each of them are subjected to
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civil penalties as follows: (1) For any initial violation, fifty dollars ($50) for each underpaid employee
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for each pay period for which the employee was underpaid in addition to an amount sufficient to recover
underpaid wages; (2) For each subsequent violation, one hundred dollars ($100) for each underpaid
employee for each pay period for which the employee was underpaid in addition to an amount sufficient _
to recover underpaid wages; (3) Wages recovered pursuant to this section shall be paid to the affected
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employee.
Wherefore, Plaintiffs request relief as hereinafter prayed for.
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SECOND AMENDED COMPLAINT FOR DAMAGES
TENTH CAUSE OF ACTION
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VIOLATION OF LABOR CODE §§ 247 AND 247.5
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FAILURE TO POST NOTICE OF SICK LEAVE AND FAILURE TO KEEP ACCURATE
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RECORDS OF PAID SICK LEAVE
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(Plaintiffs against All Defendants)
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64. The allegations set forth in this Complaint are hereby realleged and incorporated by
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reference. —
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65. Labor Code § 247 provides that an employer must display a poster in a conspicuous place
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containing information including: (1) An employee is entitled to accrue, request, and use paid sick days;
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(2) The amount of sick days provided for by this article; (3) The terms of use of paid sick days; (4) That
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retaliation or discrimination against an employee who requests paid sick days or uses paid sick days, or
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both, is prohibited and that an employee has the right under this article to file a complaint with the Labor
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Commissioner against an employer who retaliates or discriminates against the employee. |
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66. An employer who willfully violates the posting requirement of this section is subject to a
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civil penalty of not more than one hundred dollars ($100) per each offense:
_
67. Defendants, and each of them, willfully failed the posting requirements of Labor Code §
—
247, and therefore, are subjected to civil penalties of $100 for each offense.
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68. Labor Code § 247.5 provides that an employer shall keep for at least three years records
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documenting the hours worked and paid sick days accrued and used by an employee. If an employer
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does not maintain adequate records pursuant to this section, it shall be presumed that the employee is
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entitled to the maximum number of hours accruable under this article, unless the employer can show
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otherwise by clear and convincing evidence.
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69. Defendants, and each of them, have failed to-keep accurate records of all paid sick days
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accrued by Plaintiffs and Plaintiff class members. As a result of Defendants conduct, Plaintiffs and
Plaintiff class members have suffered harm in an amount in excess of the jurisdictional siiniition of this
Court.
Wherefore, Plaintiffs request relief as in hereinafter prayed for.
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SECOND AMENDED COMPLAINT FOR DAMAGES
ELEVENTH CAUSE OF ACTION
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VIOLATION OF LABOR CODE § 970
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SOLICITATION OF EMPLOYEES BY MISREPRESENTATION
(Plaintiffs against All Defendants)
70. The allegations set forth in this Complaint are hereby realleged and incorporated by
reference.
71. California Labor Code § 970 provides that no person, or agent or officer thereof, directly
or indirectly, shall influence, persuade, or engage any person to change from one place to another in this
State or from any place outside to any place within the State, of from any place within the State to
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outside, for the purpose of working in any branch of labor, through or by means of knowingly false
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representations, whether spoken, written, of advertised in printed form, concerning either (a) The kind,
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character, or existence of such work; (b) The length of time such work will last, or the compensation
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therefor; (c) The sanitary or housing conditions relating to or surrounding the work; (d) The existence or
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nonexistence of any strike, lockout, or other labor dispute affecting it and pending between the proposed
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employer and the persons then or last engaged in the performance of the labor for which the employee is
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sought.
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72. Defendants, and each of them, willfully made misrepresentations to the Plaintiffs and
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Plaintiff class members regarding the kind, character, and existence of work, the length of time the work
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will last, the compensations of the work, and the housing conditions relating to employment, including
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but not limited to promises to provide and pay for certified training. Defendants further promised to pay
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to Plaintiffs and those similarly situated per diem pay to cover food and lodging costs for their
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relocation. Plaintiffs and Plaintiff class members reasonable relied on Defendants’ misrepresentations to
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their detriment.
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73. Asadirect and proximate result of Defendants’ conduct, Plaintiffs and Plaintiff class
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members have suffered harm in an amount in excess of the jurisdictional minimum of this Court.
S
74. The above described actions were perpetrated and/or ratified by a managing agent or
an
N
officer of Defendants. These acts were done with malice, fraud, oppression, and in reckless disregard of
8
Plaintiffs’ rights and the rights of those similarly situated. Further, said actions were despicable in
N
eo
16
SECOND AMENDED COMPLAINT FOR DAMAGES
character and warrant the imposition of punitive damages in a sum sufficient to punish and deter
—
Defendants’ future conduct. |
WN
Wherefore, Plaintiffs request relief as hereinafter prayed for.
YW
TWELFTH CAUSE OF ACTION
ON FF
VIOLATION OF BUSINESS AND PROFESSIONS CODE § 17200, et seq.
HW
UNFAIR COMPETITION ACT
BoD
(Plaintiffs against All Defendants)
75. The allegations set forth in this Complaint are hereby realleged and incorporated by
reference. |
oo
76. Defendants’ conduct, as alleged herein, has been and continues to be unfair, unlawful,
_"
and harmful to Plaintiffs and Plaintiff class members. Defendants’ activities, as alleged herein, are
no
violations of California law and constitute unlawful business acts and practices in violation of California
_
Business and Professions Code §§ 17200 et seq.
_
77. A violation of Cal. Bus. Prof. code § 17200 may be predicated on the violation of any
—_
state or federal law. In this case, Defendants had a policy and practice of failing to pay Plaintiffs and
_—
Plaintiff class members all overtime hours worked, for missed rest and meal periods, for reimbursement
—
pay, and their final wages, which violates several California Labor Code Sections and Industrial
—_
Commission Welfare Wage Order provisions. -
—
78. Plaintiffs and Plaintiff class members have been personally injured by Defendants
—
unlawful and unfair business practices including but not limited to suffering financial loss. Plaintiffs and
NO
Plaintiff class members are entitled to restitution of the wages withheld and retained by Defendants
No
during the defined period.
N
79. Further, the Plaintiffs and Plaintiff class members request the violations of the
N
Defendants alleged herein be enjoined, and other equitable relief as this court deems proper.
N
Wherefore, Plaintiffs request relief as hereinafter prayed for.
N
17
SECOND AMENDED COMPLAINT FOR DAMAGES
Y._
PRAYER
FOR RELIEF
—
WHEREFORE, Plaintiff(s) demand judgment against Defendants and any other Defendants who
N
may later be added as follows: .
WY
AS TO THE FIRST CAUSE OF ACTION
on &
80.
Preview
ORIGINAL PATRICIA A. SAVAGE (236235) Fi EN/ENNORSED CRF E. RYAN LAMB (266850) SAVAGE, LAMB, & REIMER, LLP 1550 Humboldt Road, Suite 4 JUN 14 2023 Chico, CA 95928 Phone: 530-809-1851 By: b_Viacduilald Fax: 530-592-3865 Jeputy wterk Email: psavage@slrlawfirm.com Attorneys for Plaintiff, JAY ROBINSON and HUGO PINEDA, individually and on behalf of all others similarly situated BY FAX 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA 11 COUNTY OF SACRAMENTO 12 JAY ROBINSON and Case No. 34-2019-00262942 HUGO PINEDA, individually and on 13 behalf of all others similarly situated, APPENDIX OF EVIDENCE IN SUPPORT OF PLAINTIFF’S MOTION 14 FOR SUMMARY ADJUDICATION Plaintiffs, 15 [Filed concurrently with the Notice of 16 Motion; Separate Statement of Undisputed Facts; Memorandum of Points and 17 Authorities; Proposed Order] 18 Date: August 29, 2023 Time: 9:00 a.m. 19 ASOMEO ENVIRONMENTAL Dept.: 54 RESTORATION INDUSTRY, LLC, a Judge: Hon. Christopher E. Krueger 20 California Corporation and PHILLIPS & JORDAN INC. a North Action Filed: August 16, 2019 21 Carolina Corporation and Trial: No Date Set DOES 1-10, 22 23 Defendants. 24 25 26 27 28 APPENDIX OF EVIDENCE IN SUPPORT OF PLAINTIFF’S MOTION FOR SUMMARY ADJUDICATION -1 APPENDIX OF EVIDENCE 1 — an “Second Amended Class Action Complaint 2 Relevant Portions of the Deposition of Lawrence Kahn 3 AERI Sample Employee Records, Set 1 4 AERI Sample Employee Records, Set 2 5 AERI Sample Employee Records, Set 4 10 11 12 Date: June 12, 2023 SAVAGE, LAMB, & REIMER, LLP 13 14 15 Patricia A. Savage, Esq. E. Ryan Lamb, Esq. 16 Attorneys for Plaintiff Jay Robinson 17 18 19 20 21 22 23 24 25 26 27 28 APPENDIX OF EVIDENCE IN SUPPORT OF PLAINTIFF’S MOTION FOR SUMMARY ADJUDICATION -2 Exhibit 1 PATRICIA A. SAVAGE, SBN 236235 E. RYAN LAMB, SBN 266850 SAVAGE & LAMB, PC 1550, Humboldt Road, Suite 4 Chico, CA 95928 Telephone: (530) 592-3861 Fax: (530) 592-3865 By:___N. Zevaag | Attorneys for Plaintiff, - puty Clerk JAY ROBINSON and HUGO PINEDA, individually and on behalf of ali others similarly situated SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SACRAMENTO JAY ROBINSON and Case No. 34-2019-00262942 HUGO PINEDA, individually and on behalf of all others similarly situated, CLASS ACTION Plaintiffs, SECOND AMENDED COMPLAINT FOR DAMAGES v. 1. Violation of the Private Attorney ASOMEO ENVIRONMENTAL. General Act RESTORATION INDUSTRY, LLC, a 2. Failure to Pay Overtime California Corporation and 3. Failure to Pay Minimum Wages PHILLIPS & JORDAN INC. a North Carolina 4. Failure to Provide Meal Periods or Corporation and Premium Pay DOES 1-10, §. Failure to Provide Rest Periods or Premium Pay Defendants. 6. Failure to Pay Final Wages 7. Failure to Furnish Accurate Wage Statements 8. Failure to Pay Reimbursement Expenses . 9, Violation of Labor Code Section 558 10, Failure to Keep Accurate Time _ Records 11, Violation of Labor Code 970 12. Unfair Competition DEMAND FOR JURY TRIAL SECOND AMENDED COMPLAINT FOR DAMAGES Plaintiffs JAY ROBINSON and HUGO PINEDA, individually and on behalf of all others — — similarly situated, complains and allege as follows: YD L_INTRODUCTION YD 1. This case arises out of unlawful wage payment and employment practices by the kt Defendants. The Plaintiffs bring this action individually and on behalf of similarly situated persons who A on and after four (4) years prior to the filing of this action through the date of trial (Class Period), were WO deprived of wages and not provided lawful meal and rest periods (Plaintiff Class Members). | NH 2. As used herein, the term “Plaintiffs” refers to JAY ROBINSON AND HUGO PINEDA fo who are the named Plaintiff Class representative; the term “Plaintiff Class” includes the Plaintiffs and all o0 Plaintiff Class Members; the term “Class Members” includes all Plaintiffs and Plaintiff Class Members. Ss ee ee eld 3. The Plaintiffs seek compensation due the class Members during the “Class Period” which SawHR = is defined as four years prior to the filing of this action through the trial date, based upon information FB BSE and belief that the Defendants are continuing, and will continue, their unlawful practices as described herein. | . U,_ PARTIES AND JURISDICTION RPRRSB ee 4. Plaintiff JAY ROBINSON (hereinafter “ROBINSON”) was at all relevant times herein, an employee of Defendants ASOMEO ENVIRONMENTAL RESTORATION INDUSTRY LLC (hereinafter “AERI”) and PHILLIPS & JORDAN, INC. (hereinafter “PHILLIPS & JORDAN”) and is ee SESE e otherwise eligible to bring this action. Plaintiff ROBINSON was employed by Defendants to perform wee — as an hourly employee in approximately December of 2018, and continuing thereafter through part of February, 2019. Plaintiff received training and instruction from both AERI and PHILLIPS & A JORDAN with respect to the work performed in regards to his employment. Plaintiff ROBINSON’S SS oS claims are common to those of the Class Members. 5. Plaintiff HUGO PINEDA (hereinafter “PINEDA”) was at all relevant times-herein an employee of Defendants AERI and PHILLIPS & JORDAN, INC. and is otherwise eligible to bring this action. Plaintiff PINEDA was employed by the Defendants to perform services as an hourly employee commencing in about December of 2018 and continuing thereafter until the end of January, 2019. WN SN Plaintiff PINEDA’S claims are common to those of the Class Members. ww 2 SECOND AMENDED COMPLAINT FOR DAMAGES 6. Plaintiffs are informed and believe and thereon allege that Defendant ASOMEO NYS ENVIRONMENTAL RESTORATION INDUSTRY LLC (“AERI”) is a California Limited Liability Corporation with its primary place of business in the County of Sutter, and was the employer of the WY Plaintiff and the Members of Plaintiff Class during the Class Period. SF ZF, Plaintiffs are informed and believe and thereon allege that Defendant PHILLIPS & UW JORDAN INC. (hereinafter “PHILLIPS & JORDAN”), is a North Carolina Corporation who operates An their business and provides services in California through their Regional Office located in Sacramento oN County. Hereinafter, collectively, PHILLIPS & JORDAN and AERI will be referred to as “Defendants.” Oo 8. Plaintiffs are informed and believe and thereon allege that, at all times relevant, OO — Defendant PHILLIPS & JORDAN was the “direct contractor,” and at all times relevant, Defendant —_- ae AERI was the “subcontractor” and that both Defendants were contracted to perform restoration and N clean-up services in relation to the “Camp Fire” of November 8, 2018, and both Defendants trained, wi —_ directed and supervised Plaintiffs and Plaintiff Class Members in their performance of duties in relation —_ > to the restoration services for the Camp Fire. . — wn 9. Plaintiffs are informed and believe and thereon allege that PHILLIPS & JORDAN was an —_ their employer because PHILLIPS & JORDAN provided them with identification badges displaying the — ~s PHILLIPS & JORDAN logo, because Plaintiffs were provided training from PHILLIPS & JORDAN, —_ @ because Plaintiffs were provided equipment and trucks to use with the PHILLIPS & JORDAN name on Oo — them, and because PHILLIPS & JORDAN had direct oversight and supervision of Plaintiffs’ and Co N Plaintiff Class Members’ work performance. le No 10. _ Plaintiffs are informed and believe and thereon allege that AERI was their employer no N because AERI’s name was on their pay stubs, because AERI provided Plaintiffs with training, and no WwW because AERI had oversight and supervision of Plaintiffs’ and Plaintiff Class Members’ work N - performance. | wa N 11. Plaintiffs are informed and believe and thereon allege that Plaintiffs were under the & direction, control and employment of both Defendant AERI and Defendant PHILLIPS & JORDAN as “I N o SECOND AMENDED COMPLAINT FOR DAMAGES joint employers. Plaintiffs further allege that both AERI and PHILLIPS & JORDAN, as joint employers, — exercised considerable control over the structure and conditions of Plaintiffs’ employment. LUN 12. Pursuant to Code of Civil Procedure §§ 395(a) and 395.5, venue and jurisdiction are NAW YO proper because the Defendant PHILLIPS & JORDAN transacts business in the County of Sacramento, SF | operates their Regional Office in the County of Sacramento and entered into a contract with Defendant Ae AERI in the County of Sacramento for the restoration and clean-up associated with the Camp Fire. Furthermore, the non-payment of wages as alleged herein had a direct effect on employees of the Defendants in the State of California, and in particular, within the County of Sacramento. The monetary oe claims of the Plaintiffs are within the jurisdiction of this court. oO 13. Plaintiffs are informed and believe and thereon allege that the number of class Members Ss ee is over thirty (30), therefore the monetary claims of the Plaintiffs and Class Members exceed the = meee jurisdictional minimum of this Court. BEBRT AABRBHR 14. Each of the Plaintiff Class Members are identifiable, similarly situated persons and were employed by the Defendants during the Class Period in the State of California. Plaintiffs reserve the right to seek additional amendment of this Complaint to add as named Plaintiffs, some or all of the persons who are Members of the Plaintiff Class. 15. | Defendants DOES | through 10, are owners, operators, managers, subsidiaries of or owned entities of Defendants, and each of them, or persons otherwise responsible for paying the wages NR BGEae and penalties alleged herein, who were conducting business in the State of California and employing * RRR employees in the State of California. Plaintiffs are ignorant of the true names, capacities, relationships WY and extent of participation in the sdnduee herein alleged, of the Defendants sued herein as DOES 1 KH through 10, inclusive, and therefore sues these Defendants by such fictitious names. NY - 16. Atall times relevant, each and every Defendant was an agent and/or employee of each - NY and every other Defendant. In doing the things alleged in the causes of action stated herein, each and NY every Defendant was acting within the course and scope of this agency or employment, and was acting Yb with the consent, permission, and authorization of each remaining Defendant. All actions of each Defendant as alleged herein were ratified and approved by every other Defendant or their officers or SBS SECOND AMENDED COMPLAINT FOR DAMAGES managing agents. Plaintiff will amend this complaint to allege the true names and capacities of the DOE —s Defendants when ascertained. NY I, EXHAUSTION OF ADMINISTRATIVE REMEDIES WY 17. Plaintiffs have sought permission pursuant to Labor Code § 2698 et seq. to pursue to the ke claims set forth in this Complaint against Defendants as Private Attorney General on behalf of | WU themselves and Plaintiff class members. Pursuant to California Labor Code § 2699.3, Plaintiffs timely NWO filed their notice with the Labor Workforce and Development Agency (“LWDA”) via online submission on approximately March 28, 2019, and served notice of Defendants by Certified mail prior to filing this eo action. oo . 18. Plaintiffs have waited 65 days and have not received notice from the LWDA of its intent i to pursue Plaintiffs’ claims. Plaintiffs have received authorization from the LWDA to pursue the claims set forth in this Complaint against Defendants as Private Attorney Generals on behalf of themselves and —_— others similarly situated employees based on the LWDA’S failure to provide notice of its intent to — pursue these claims and based on Defendants’ failure to cure. _ —_ IV. GENERAL ALLEGATIONS —_ 19. During all, or a portion of the Class Period, the Plaintiffs and each Member of the — Plaintiff Class was employed by Defendants, and each of them, in the State of California. During their — | employment, Plaintiffs and Plaintiff Class Members were employees covered under one or more — regulations or Industrial Welfare Commission (IWC) Wage Orders, including but not limited to Wage wD Order 16-2001. N V._ CLASS ACTION ALLEGATIONS NO 20. Plaintiffs brings this action on behalf of themselves and all other similarly situated N persons, as a class action pursuant to California Code of Civil Procedure §382. The Plaintiff Class is tS composed of and defined as follows: N Plaintiff Class: 21. All persons who at any time within four (4) years prior to the filing of this action through the date oftrial in this lawsuit, who were employed by the Defendants in an hourly position. ‘ 5 SECOND AMENDED COMPLAINT FOR DAMAGES 22. ‘Plaintiff reserves the right to establish additional subclasses as appropriate. —_ 23. This action has been brought and may be maintained as a class action pursuant to Code of WN Civil Procedure §382 because there is a well-defined community of interest in the litigation and the class WY is readily ascertainable: kk (a) Numerosity: The Members of the class are so numerous that joinder of all Members DW would be unfeasible and impractical. The Membership of the entire class is unknown to Plaintiffs at this Wn time; however, the class is estimated to be greater than thirty (30) individuals and the identity of such NI Membership is readily ascertainable by inspection of Defendants’ employment records. While the exact eo number of class Members is unknown to the Plaintiffs at this time, the Plaintiffs are informed and oO believe there are over thirty (30) class Members. STH'CS (b) Typicality: Plaintiffs’ claims are typical of the class Members and Plaintiffs share a SESGe well-defined community of interest as demonstrated herein. Plaintiffs and all Class Members sustained injuries and damages arising out of Defendants’ common course of conduct in violation of the law as alleged herein. emt DADE (c) Adequacy: Plaintiffs’ are qualified to, and will, fairly and adequately, protect the interests of each class Member with whom they share a well-defined community of interest and es X8.RkRRBBRF typicality of claims. Plaintiffs’ attorneys, the proposed class counsel, are well-versed in the rules governing class action discovery, certification, and settlement. Plaintiff and counsel have incurred, and throughout the duration of this action will continue to incur costs and attorney’s fees that have been, are, and will be necessarily expended for the prosecution of this action for the substantial benefit for each class Member. RO (d) Superiority: A class action is superior to other available means of fair and efficient , adjudication of the claims of the class Members, since joinder of all Class Members is impractical. Class action treatment will allow a large number of similarly situated persons to prosecute their common claims in a single forum, simultaneously, efficiently, and without the unnecessary duplication of effort and expense that numerous individual actions would cause to such Plaintiffs or to the court system. Further, the damages of many individual Class Members may be relatively small, and the burden and expenses of individual litigation would make it difficult or impossible for individual Members of the 6 SECOND AMENDED COMPLAINT FOR DAMAGES class to seek and obtain relief, while a class action will serve an important public interest. Further, booed individual litigation would present the potential for inconsistent or contradictory judgments. OD (e) Commonality: Common questions of law and fact exist as to the Plaintiffs and Class eB Ow Members that predominate over any questions, which affect only individual Members of the class. These common questions include, but are not limited to: AD (1) Whether Defendants paid Plaintiffs and Class Members overtime wages ND for all overtime hours worked during their employment with Defendants; (2) | Whether Defendants provided Plaintiffs and Class Members with a 30- oOo minute uninterrupted meal period within the first five hours of work, and/or whether Defendants provided Plaintiffs and Class Members with a second 30-minute uninterrupted meal period on shift a OC longer than 10 hours, as required by California law; —& te (3) | Whether Defendants provided Plaintiffs and Class Members with a 10- ND minute rest period for every four hours worked, as related by California law; WY — (4) | Whether Defendants provided Plaintiffs and Class Members with one hour FF — of premium wages when statutory meal periods were not provided, as required by California law; UR (5) | Whether Defendants provided Plaintiffs and Class Members with one hour DO — of premium wages when statutory rest periods were not provided, as required by California law; KI — (6) | Whether Defendants provided Plaintiffs and Class Members all monies Oe —_ owed upon the separation of their employment within the time period required by California Law; OO _ (7) | Whether Defendants provided Plaintiff and Class Members reimbursement WY CO for all necessary business-related expenses made during their employment with Defendants; S|§ Ny (8) The effect upon and the extent of any injuries sustained by the Plaintiffs NY N and Class Members and the appropriate type and/or measure of damages; wo VN (9) The appropriateness and nature of relief to the Plaintiffs and Class ® Members; WW NN (10) The appropriate nature of class-wide equitable relief; and WD (11) The extent of liability of each Defendant, including DOE Defendants, to nN wv the Plaintiffs and each Class Member. | % SECOND AMENDED COMPLAINT FOR DAMAGES ont 24. Plaintiff ROBINSON and PINEDA are unaware of any difficulties that are likely to be encountered in the management of this action that would preclude its maintenance as a class action. N VI. LATIONS ALLEGED - . w FIRST CAUSE OF ACTION BS VIOLATION OF THE PRIVATE ATTORNEYS GENERAL ACT wa (By Plaintiffs on behalf of the State of California and Aggrieved Employees against All an Defendants) ~ 25. The allegations set forth in this Complaint are hereby realleged and incorporated by . oo reference. Oo 26. Defendants’ violation of California wage and hour laws enable Plaintiffs to recover civil eo @ employer shall pay the employee one (1) hour of pay the employee’s regular rate of compensation for each workday that a rest period is not provided. . R 47. Defendants, and each of them, routinely failed to provide Plaintiffs and Plaintiff class 3 members with a ten-minute rest period for every four hours worked. Defendants routinely required & 11 SECOND AMENDED COMPLAINT FOR DAMAGES Plaintiffs and Plaintiff class members to work through their rest breaks or required Plaintiffs and — Plaintiff class members to work without taking a rest break. WN 48. Defendants, and each of them, failed to pay Plaintiffs and Plaintiff class members one WY hour of premium pay for the days that they were not provided a ten-minute rest period for every four S&S hours they worked. A Wherefore, Plaintiffs request relief as hereinafter prayed for. DO TH CAUSE OF ACTION NH VIOLATION OF LABOR CODE §§ 201, 202, AND 203 eo FAILURE TO PAY FINAL WAGES oOo (Plaintiffs against All Defendants) aes So 49. __ The allegations set forth in this Complaint are hereby realleged and incorporated by ne — | reference. N 50. California Labor Code § 201 requires an employer who discharges an employee to pay all tod — compensation due and owing to that employee immediately upon discharge. > — 51. California Labor Code § 202 requires an employer to pay all compensation due and _ WA owing to an employee who quits within 72 hours of that employee quitting, unless the employee an -_ provides at least 72 hours-notice of quitting, in which case all compensation is due at the end of the _ ~ employee’s final day of work. _ eo 52. California Labor Code § 203 provides that if an employer willfully fails to pay Oo = compensation promptly upon discharge, as required by § 201 or § 202, then the employer is liable for no o waiting time penalties in the form on continue compensation of up to 30 work days. wo — 53. Defendants, and each of them, willfully failed and refused to timely pay compensation 8 and wages, including overtime compensation that issue and owing to Plaintiff's and Plaintiff class N we members upon theif termination of employment with Defendants. As a result, Defendants, and each of N + them, are liable to Plaintiffs and Plaintiff class members, for waiting time penalties, together with iv) YVwN interest thereon and reasonable attorney’s fees and costs, under California Labor Code § 203. an Wherefore, Plaintiffs request relief as hereinafter prayed for. N ~~ N o 12 SECOND AMENDED COMPLAINT FOR DAMAGES SEVENTH CAUSE OF ACTION — VIOLATION OF LABOR CODE 226 NY FAILURE TO FURNISH ACCURATE WAGE STATEMENTS WY (Plaintiffs against All Defendants) PR 54. The allegations set forth in this Complaint are hereby realleged and incorporated by A reference. QAO 55. California Labor Code § 226{a) requires employers semi-monthly or at the time of each payment of wages to furnish each employee with a statement itemizing, among other things, gross ea wages earned, and all deductions. Cal. Labor Code § 226(b) provides that if an employer knowingly and oo intentionally fails to provide a statement itemizing, among other things, gross wages earned and accurate —* & deductions, then the employee is entitled to recover the greater of all actual damages or fifty dollars —~ N*—S ($50) for the initial violation and one hundred dollars ($100) for each subsequent violation, up to four _ thousand dollars ($4000). —_ VW 56. Defendants and each of them, knowingly and intentionally failed to furnish to Plaintiffs wif and Plaintiff class member itemized wage statements depicting their actual gross wages in part due to — Defendants’ failure to accurately record Plaintiffs’ and Plaintiff class members’ overtime and BD —_ Defendants’ failure to record and pay premium wages for missed meal period. | YN —_ 57. Defendants, and each of them, are liable to Plaintiffs and Plaintiff class members for the 0° _ amounts provided by Cal. Labor Code § 226(e)(1) and for penalties and attorneys’ fees. ‘oO — Wherefore, Plaintiffs request relief as hereinafter prayed for. oS nN | EIGHTH CAUSE OF ACTION —- N VIOLATION OF LABOR CODE 2802 4 Nn Nu FAILURE TO PAY REIMBURSEMENT EXPENSES Ww No (Plaintiffs against All Defendants) > no 58. The allegations set forth in this Complaint are hereby realleged and incorporated by Ww 0 reference. nN nN 59. __ Atall times relevant to this action, Labor Code § 2802 requires that an employer shall ns N indemnify his or her employee “for all necessary expenditures or losses incurred by the employee in i) ao 13 SECOND AMENDED COMPLAINT FOR DAMAGES direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of et the employer.” . DY 60. Atall times herein mentioned Defendants, and each of them, were the employers of WD Plaintiffs and Plaintiff class members. During the course of their employment with Defendants, oN eh Plaintiffs and Plaintiff class members were required to use their personal cell phones for work purposes, AH they were required to pay for their travel expenses, they were required to pay for their training, and AD Plaintiffs and others similarly situated employees were required to pay for their tools to perform services for the benefit of the Defendants. 61. ‘Asan actual and proximate result of the aforementioned violation, Plaintiffs and Plaintiff uo class members have been damaged in an amount according to proof, but in an amount in excess, of the OU ESEelOlOlOlUlURESESEllOlUlUaESOlULreS|l lm és jurisdiction of this Court. Plaintiffs and Plaintiff class members are entitled to the losses they incurred rianwekzoes-=2 for the benefit of the Defendants during their employment with Defendants. Wherefore, Plaintiffs request relief as hereinafter prayed for. NINTH CAUSEOF ACTION VIOLATION OF LABOR CODE 558 CIVIL PENALTIES FOR VIOLATION OF CALIFORNIA LABOR CODE WAGE AND HOUR OO eESeFe PROVISIONS AND PROVISIONS OF INDUSTRIAL WELFARE COMMISSION FEF (Plaintiffs against All Defendants) FS Fe 62. The allegations of this Complaint are hereby realleged and incorporated by reference. F§-| 63. Defendants, and each of them, have violated various provisions of the Labor Code and SF NO IWC Wage Order 16-2001 as set forth above. In doing so, Defendants, and each of them are subjected to NO rk civil penalties as follows: (1) For any initial violation, fifty dollars ($50) for each underpaid employee Nn XankRBsp for each pay period for which the employee was underpaid in addition to an amount sufficient to recover underpaid wages; (2) For each subsequent violation, one hundred dollars ($100) for each underpaid employee for each pay period for which the employee was underpaid in addition to an amount sufficient _ to recover underpaid wages; (3) Wages recovered pursuant to this section shall be paid to the affected NO employee. Wherefore, Plaintiffs request relief as hereinafter prayed for. ® 14 SECOND AMENDED COMPLAINT FOR DAMAGES TENTH CAUSE OF ACTION et VIOLATION OF LABOR CODE §§ 247 AND 247.5 FW FAILURE TO POST NOTICE OF SICK LEAVE AND FAILURE TO KEEP ACCURATE W RECORDS OF PAID SICK LEAVE FP (Plaintiffs against All Defendants) we 64. The allegations set forth in this Complaint are hereby realleged and incorporated by AO reference. — NY 65. Labor Code § 247 provides that an employer must display a poster in a conspicuous place oO containing information including: (1) An employee is entitled to accrue, request, and use paid sick days; oO (2) The amount of sick days provided for by this article; (3) The terms of use of paid sick days; (4) That ua* retaliation or discrimination against an employee who requests paid sick days or uses paid sick days, or wet both, is prohibited and that an employee has the right under this article to file a complaint with the Labor — Commissioner against an employer who retaliates or discriminates against the employee. | — 66. An employer who willfully violates the posting requirement of this section is subject to a — civil penalty of not more than one hundred dollars ($100) per each offense: _ 67. Defendants, and each of them, willfully failed the posting requirements of Labor Code § — 247, and therefore, are subjected to civil penalties of $100 for each offense. — 68. Labor Code § 247.5 provides that an employer shall keep for at least three years records — documenting the hours worked and paid sick days accrued and used by an employee. If an employer — does not maintain adequate records pursuant to this section, it shall be presumed that the employee is vw entitled to the maximum number of hours accruable under this article, unless the employer can show N otherwise by clear and convincing evidence. vu 69. Defendants, and each of them, have failed to-keep accurate records of all paid sick days N accrued by Plaintiffs and Plaintiff class members. As a result of Defendants conduct, Plaintiffs and Plaintiff class members have suffered harm in an amount in excess of the jurisdictional siiniition of this Court. Wherefore, Plaintiffs request relief as in hereinafter prayed for. a ‘ 15 SECOND AMENDED COMPLAINT FOR DAMAGES ELEVENTH CAUSE OF ACTION — VIOLATION OF LABOR CODE § 970 Uh U!ULUWNN 7eoaOOONaANeClCU M SOLICITATION OF EMPLOYEES BY MISREPRESENTATION (Plaintiffs against All Defendants) 70. The allegations set forth in this Complaint are hereby realleged and incorporated by reference. 71. California Labor Code § 970 provides that no person, or agent or officer thereof, directly or indirectly, shall influence, persuade, or engage any person to change from one place to another in this State or from any place outside to any place within the State, of from any place within the State to uo outside, for the purpose of working in any branch of labor, through or by means of knowingly false —? oO representations, whether spoken, written, of advertised in printed form, concerning either (a) The kind, mes om NS character, or existence of such work; (b) The length of time such work will last, or the compensation _ therefor; (c) The sanitary or housing conditions relating to or surrounding the work; (d) The existence or Ww nonexistence of any strike, lockout, or other labor dispute affecting it and pending between the proposed — a employer and the persons then or last engaged in the performance of the labor for which the employee is —_ a sought. Nn _ 72. Defendants, and each of them, willfully made misrepresentations to the Plaintiffs and ~ _ Plaintiff class members regarding the kind, character, and existence of work, the length of time the work oo _ will last, the compensations of the work, and the housing conditions relating to employment, including wo _ but not limited to promises to provide and pay for certified training. Defendants further promised to pay i) o to Plaintiffs and those similarly situated per diem pay to cover food and lodging costs for their VN _ relocation. Plaintiffs and Plaintiff class members reasonable relied on Defendants’ misrepresentations to N NM their detriment. be N 73. Asadirect and proximate result of Defendants’ conduct, Plaintiffs and Plaintiff class > Ww members have suffered harm in an amount in excess of the jurisdictional minimum of this Court. S 74. The above described actions were perpetrated and/or ratified by a managing agent or an N officer of Defendants. These acts were done with malice, fraud, oppression, and in reckless disregard of 8 Plaintiffs’ rights and the rights of those similarly situated. Further, said actions were despicable in N eo 16 SECOND AMENDED COMPLAINT FOR DAMAGES character and warrant the imposition of punitive damages in a sum sufficient to punish and deter — Defendants’ future conduct. | WN Wherefore, Plaintiffs request relief as hereinafter prayed for. YW TWELFTH CAUSE OF ACTION ON FF VIOLATION OF BUSINESS AND PROFESSIONS CODE § 17200, et seq. HW UNFAIR COMPETITION ACT BoD (Plaintiffs against All Defendants) 75. The allegations set forth in this Complaint are hereby realleged and incorporated by reference. | oo 76. Defendants’ conduct, as alleged herein, has been and continues to be unfair, unlawful, _" and harmful to Plaintiffs and Plaintiff class members. Defendants’ activities, as alleged herein, are no violations of California law and constitute unlawful business acts and practices in violation of California _ Business and Professions Code §§ 17200 et seq. _ 77. A violation of Cal. Bus. Prof. code § 17200 may be predicated on the violation of any —_ state or federal law. In this case, Defendants had a policy and practice of failing to pay Plaintiffs and _— Plaintiff class members all overtime hours worked, for missed rest and meal periods, for reimbursement — pay, and their final wages, which violates several California Labor Code Sections and Industrial —_ Commission Welfare Wage Order provisions. - — 78. Plaintiffs and Plaintiff class members have been personally injured by Defendants — unlawful and unfair business practices including but not limited to suffering financial loss. Plaintiffs and NO Plaintiff class members are entitled to restitution of the wages withheld and retained by Defendants No during the defined period. N 79. Further, the Plaintiffs and Plaintiff class members request the violations of the N Defendants alleged herein be enjoined, and other equitable relief as this court deems proper. N Wherefore, Plaintiffs request relief as hereinafter prayed for. N 17 SECOND AMENDED COMPLAINT FOR DAMAGES Y._ PRAYER FOR RELIEF — WHEREFORE, Plaintiff(s) demand judgment against Defendants and any other Defendants who N may later be added as follows: . WY AS TO THE FIRST CAUSE OF ACTION on & 80.