Preview
1 PATRICIA A. SAVAGE, SBN 236235
E. RYAN LAMB, SBN 266850
2 SAVAGE & LAMB, PC
3
1550 Humboldt Road, Suite 4 FILED/ENDOBSED
Chico, CA 95928
4 Telephone: (530) 592-3861
Fax: (530) 592-3865
5
Attomeys for Plaintiff, Deputy Clerk
6 JAY ROBINSON and
7 HUGO PINEDA, individually and on
behalf of all others similarly situated
8
k SUPERIOR COURT OF THE STATE OF CALIFORNIA
no
COUNTY OF SACRAMENTO
-11
JAY ROBINSON and Case No. 34-2019-00262942
12
HUGO PINEDA, individually and on behalf of
13 all others similarly situated. CLASS ACTION
14 Plaintiffs, SECOND AMENDED COMPLAINT FOR
DAMAGES
15 V.
16 L Violation of the Private Attorney
ASOMEO ENVIRONMENTAL General Act
17 RESTORATION INDUSTRY, LLC, a 2. Failure to Pay Overtime
Califomia Corporation and 3. Failure to Pay Minimum Wages
18 PHILLIPS & JORDAN INC. a North Carolina 4. Failure to Provide Meal Periods or
Corporation and Premium Pay
19 DOES 1-10, 5. Failure to Provide Rest Periods or
20 Premium Pay
Defendants. 6. Failure to Pay Final Wages
21 7. Failure to Furnish Accurate Wage
Statements
22 8. Failure to Pay Reimbursement
Expenses
23
9. Violation of Labor Code Section 558
24 10. Failure to Keep Accurate Time
Records
25 11. Violation of Labor Code 970
12. Unfair Competition
26
27 DEMAND FOR JURY TRIAL
28
SECOND AMENDED COMPLAINT FOR DAMAGES
1 Plaintiffs JAY ROBINSON and HUGO PINEDA, individually and on behalf of all others
2 similarly situated, complains and allege as follows:
3 I. INTRODUCTION
4 1. This case arises out of unlawful wage payment and employment practices by the
5 Defendants. The Plaintiffs bring this action individually and on behalf of similarly situated persons who
6 on and after four (4) years prior to the filing of this action through the date of trial (Class Period), were
7 deprived of wages and not provided lawful meal and rest periods (Plaintiff Class Members).
8 2. As used herein, the term "Plaintiffs" refers to JAY ROBINSON AND HUGO PINEDA
9 who are the named Plaintiff Class representative; the term "Plaintiff Class" includes the Plaintiffs and all
10 Plaintiff Class Members; the term "Class Members" includes all Plaintiffs and Plaintiff Class Members.
11 3. The Plaintiffs seek compensation due the class Members during the "Class Period" which
12 is defined as four years prior to the filing of this action through the trial date, based upon information
'l3 and belief that the Defendants are continuing, and will continue, their unlawful practices as described
14 herein.
15 H. PARTIES AND JURISDICTION
16 4. Plaintiff JAY ROBINSON (hereinafter "ROBINSON") was at all relevant times herein,
17 an employee of Defendants ASOMEO ENVIRONMENTAL RESTORATION INDUSTRY LLC
18 (hereinafter "AERI") and PHILLIPS & JORDAN, ESfC. (hereinafter "PHILLIPS & JORDAN") and is
19 otherwise eligible to bring this action. Plaintiff ROBINSON was employed by Defendants to perform
20 services as an hourly employee in approximately December of 2018, and continuing thereafter through
21 part of February, 2019. Plaintiff received training and instruction from both AERI and PHILLIPS &
22 JORDAN vfith respect to the work performed in regards to his employment. Plaintiff ROBINSON'S
23 claims are common to those of the Class Members.
24 5. Plaintiff HUGO PINEDA (hereinafter "PINEDA") was at all relevant times herein an
25 employee of Defendants AERI and PHILLIPS & JORDAN, INC. and is otherwise eligible to bring this
26 action. PlaintiflF PINEDA was employed by the Defendants to perform services as an hourly employee
27 commencing in about December of 2018 and continuing thereafter until the end of January, 2019.
28 Plaintiff PINEDA'S claims are common to those of the Class Members.
SECOND AMENDED COMPLAINT FOR DAMAGES
1 6. Plaintiffs are informed and believe and thereon allege that Defendant ASOMEO
2 ENVIRONMENTAL RESTORATION INDUSTRY LLC ("AERI") is a Califomia Limited Liability
3 Corporation with its primary place of business in the County of Sutter, and was the employer of the
4 Plaintiff and the Members of Plaintiff Class during the Class Period.
5 7. Plaintiffs are informed and believe and thereon allege that Defendant PHILLIPS &
6 JORDAN INC. (hereinafter "PHILLIPS & JORDAN"), is a North Carolina Corporation who operates
7 their business and provides services in Califomia through their Regional Office located in Sacramento
8 County. Hereinafter, collectively, PHILLIPS & JORDAN and AERI will be referred to as
9 "Defendants."
10 8. Plaintiffs are informed and believe and thereon allege that, at all times relevant.
"11 Defendant PHILLIPS & JORDAN was the "direct contractor," and at all times relevant. Defendant
12 AERI was the "subcontractor" and that both Defendants were contracted to perform restoration and
13 clean-up services in relation to the "Camp Fire" of November 8, 2018, and both Defendants trained,
14 directed and supervised Plaintiffs and Plaintiff Class Members in their performance of duties in relation
15 to the restoration services for the Camp Fire.
16 9. Plaintiffs are informed and believe and thereon allege that PHILLIPS & JORDAN was
17 their employer because PHILLIPS & JORDAN provided them with identification badges displaying the
18 PHILLIPS & JORDAN logo, because Plaintiffs were provided training from PHILLIPS & JORDAN,
19 because Plaintiffs were provided equipment and trucks to use with the PHILLIPS & JORDAN name on
20 them, and because PHILLIPS & JORDAN had direct oversight and supervision of Plaintiffs' and
21 Plaintiff Class Members' work performance.
22 10. Plaintiffs are informed and believe and thereon allege that AERI was their employer
23 because AERI's name was on their pay stubs, because AERI provided Plaintiffs with training, and
24 because AERI had oversight and supervision of Plaintiffs' and Plaintiff Class Members' work
25 performance.
26 11. Plaintiffs are informed and believe and thereon allege that Plaintiffs were under the
27 direction, control and employment of both Defendant AERI and Defendant PHILLIPS & JORDAN as
28
SECOND AMENDED COMPLAINT FOR DAMAGES
1 joint employers. Plaintiffs further allege that both AERI and PHILLIPS & JORDAN, as joint employers,
2 exercised considerable control over the stmcture and conditions of Plaintiffs' employment.
3 12. Pursuant to Code of Civil Procedure §§ 395(a) and 395.5, venue and jurisdiction are
4 proper because the Defendant PHILLIPS & JORDAN transacts business in the County of Sacramento,
5 operates their Regional Office in the County of Sacramento and entered into a contract with Defendant
6 AERI in the County of Sacramento for the restoration and clean-up associated with the Camp Fire.
7 Furthermore, the non-payment of wages as alleged herein had a direct effect on employees of the
8 Defendants in the State of Califomia, and in particular, within the County of Sacramento. The monetary
9 claims of the Plaintiffs are within the jurisdiction of this court.
10 13. Plaintiffs are informed and believe and thereon allege that the number of class Members
11 is over thirty (30), therefore the monetary claims of the Plaintiffs and Class Members exceed the
12 jurisdictional minimum of this Court.
"13 14. Each of the Plaintiff Class Members are identifiable, similarly situated persons and were
14 employed by the Defendants during the Class Period in the State of California. Plaintiffs reserve the
15 right to seek additional amendment of this Complaint to add as named Plaintiffs, some or all of the
16 persons who are Members of the Plaintiff Class.
17 15. Defendants DOES 1 through 10, are owners, operators, managers, subsidiaries of or
18 owned entities of Defendants, and each of them, or persons otherwise responsible for paying the wages
19 and penialties alleged herein, who were conducting business in the State of Califomia and employing'
20 employees in the State of Califomia. Plaintiffs are ignorant of the true names, capacities, relationships
21 and extent of participation in the conduct herein alleged, of the Defendants sued herein as DOES 1
22 through 10, inclusive, and therefore sues these Defendants by suchfictitiousnames.
23 16. At all times relevant, each and every Defendant was an agent and/or employee of each
24 and every other Defendant. In doing the things alleged in the causes of action stated herein, each and
25 every Defendant was acting within the course and scope of this agency or employment, and was acting
26 with the consent, permission, and authorization of each remaining Defendant. All actions of each
27 Defendant as alleged herein were ratified and approved by every other Defendant or their officers or
28
SECOND AMENDED COMPLAINT FOR DAMAGES
1 managing agents. Plaintiff will amend this complaint to allege the tme names and capacities of the DOE
2 Defendants when ascertained.
3 m . EXHAUSTION OF ADMINISTRATIVE REMEDIES
4 17. Plaintiffs have sought permission pursuant to Labor Code § 2698 et seq. to pursue to the
5 claims set forth in this Complaint against Defendants as Private Attomey General on behalf of
6 themselves and Plaintiff class members. Pursuant to Califomia Labor Code § 2699.3, Plaintiffs timely
7 filed their notice with the Labor Workforce and Development Agency ("LWDA") via online submission
8 on approximately March 28, 2019, and served notice of Defendants by Certified mail prior to filing this
9 action.
10 18. Plaintiffs have waited 65 days and have not received notice from the LWDA of its intent
il to pursue Plaintiffs' claims. Plaintiffs have received authorization from the LWDA to pursue the claims
12 set forth in this Complaint against Defendants as Private Attomey Generals on behalf of themselves and
13 others similarly situated employees based on the LWDA'S failure to provide notice of its intent to
14 pursue these claims and based on Defendants' failure to cure.
15
16 IV. GENERAL ALLEGATIONS
17 19. During all, or a portion of the Class Period, the Plaintiffs and each Member of the
18 Plaintiff Class was employed by Defendants, and each of them, in the State of Califomia. During their
19 employment. Plaintiffs and Plaintiff Class Members were employees covered under one or more
20 regulations or Industrial Welfare Commission (IWC) Wage Orders, including but not limited to Wage
21 Order 16-2001.
22 V. CLASS ACTION ALLEGATIONS
23 20. Plaintiffs brings this action on behalf of themselves and all other similarly situated
24 persons, as a class action pursuant to Califomia Code of Civil Procedure §382. The Plaintiff Class is
25 composed of and defined as follows:
26 Plaintiff Class;
27 21. All persons who at any time within four (4) years prior to the filing of this action through
28 the date of trial in this lawsuit, who were employed by the Defendants in an hourly position.
SECOND AMENDED COMPLAINT FOR DAMAGES
1 22. Plaintiff reserves therightto establish additional subclasses as appropriate.
2 23. This action has been brought and may be maintained as a class action pursuant to Code of
3 Civil Procedure §382 because there is a well-defined community of interest in the litigation and the class
4 is readily ascertainable:
5 (a) Numerosity: The Members of the class are so numerous that joinder of all Members
6 would be unfeasible and impractical. The Membership of the entire class is unknown to Plaintiffs at this
7 time; however, the class is estimated to be greater than thirty (30) individuals and the identity of such
8 Membership is readily ascertainable by inspection of Defendants' employment records. While the exact
9 number of class Members is unknown to the Plaintiffs at this time, the Plaintiffs are informed and
10 believe there are over thirty (30) class Members.
11 (b) Typicality: Plaintiffs' claims are typical of the class Members and Plaintiffs share a
12 well-defined community of interest as demonstrated herein. Plaintiffs and all Class Members sustained
13 injuries and damages arising out of Defendants' common course of conduct in violation of the law as
14 alleged herein.
15 (c) Adequacy: Plaintiffs' are qualified to, and will, fairly and adequately, protect the
16 interests of each class Member with whom they share a well-defined community of interest and
17 typicality of claims. Plaintiffs' attomeys, the proposed class counsel, are well-versed in the mles
18 goveming class action discovery, certification, and settlement. Plaintiff and counsel have incurred, and
19 throughout the duration of this action will continue to incur costs and attorney's fees that have been, are,
20 and will be necessarily expended for the prosecution of this action for the substantial benefit for each
21 class Member.
22 (d) Superiority: A class action is superior to other available means of fair and efficient
23 adjudication of the claims of the class Members, since joinder of all Class Members is impractical.
24 Class action treatment will allow a large number of similarly situated persons to prosecute their common
25 claims in a single fomm, simultaneously, efficiently, and without the unnecessary duplication of effort
26 and expense that numerous individual actions would cause to such Plaintiffs or to the court system.
27 Further, the damages of many individual Class Members may be relatively small, and the burden and
28 expenses of individual litigation would make it difficult or impossible for individual Members of the
SECOND AMENDED COMPLAINT FOR DAMAGES
1 class to seek and obtain relief, while a class action will serve an important public interest. Further,
2 individual litigation would present the potential for inconsistent or contradictory judgments.
3 (e) Commonality: Common questions of law and fact exist as to the Plaintiffs and Class
4 Members that predominate over any questions, which affect only individual Members of the class.
5 These common questions include, but are not limited to:
6 (1) Whether Defendants paid Plaintiffs and Class Members overtime wages
7 for all overtime hours worked during their employment with Defendants;
8 (2) Whether Defendants provided Plaintiffs and Class Members with a 30-
9 minute unintermpted meal period within thefirstfivehours of work, and/or whether Defendants
10 provided Plaintiffs and Class Members with a second 30-minute unintermpted meal period on shift
Tl longer than 10 hours, as required by Califomia law;
12 (3) Whether Defendants provided Plaintiffs and Class Members with a 10-
13 minute rest period for every four hours worked, as required by Califomia law;
14 (4) Whether Defendants provided Plaintiffs and Class Members with one hour
15 of premium wages when statutory meal periods were not provided, as required by Califomia law;
16 (5) Whether Defendants provided Plaintiffs and Class Members with one hour
17 of premium wages when statutory rest periods were not provided, as required by Califomia law;
18 (6) Whether Defendants provided Plaintiffs and Class Members all monies
19 owed upon the separation of their employment within the time period required by California Law;
20 (7) Whether Defendants provided Plaintiff and Class Members reimbursement
21 for all necessary business-related expenses made during their employment with Defendants;
22 (8) The effect upon and the extent of any injuries sustained by the Plaintiffs
23 and Class Members and the appropriate type and/or measure of damages;
24 (9) The appropriateness and nature of relief to the Plaintiffs and Class
25 Members;
26 (10) The appropriate nature of class-wide equitable relief; and
27 (11) The extent of liability of each Defendant, including DOE Defendants, to
28 the Plaintiffs and each Class Member.
SECOND AMENDED COMPLAINT FOR DAMAGES
1 24. Plaintiff ROBINSON and PINEDA are unaware of any difficulties that are likely to be
2 encountered in the management of this action that would preclude its maintenance as a class action.
3 VI. VIOLATIONS ALLEGED
4 FIRST CAUSE OF ACTION
5 VIOLATION OF THE PRIVATE ATTORNEYS GENERAL ACT
6 (By Plaintiffs on behalf of the State of California and Aggrieved Employees against All
7 Defendants)
8 25. The allegations set forth in this Complaint are hereby realleged and incorporated by
9 reference.
'lO 26. Defendants' violation of Califomia wage and hour laws enable Plaintiffs to recover civil
il penalties as aggrieved employees and on behalf of all others similarly situated to class members.
12 27. Plaintiffs have alleged to the LWDA that Defendants have violated the following
\'3 provisions of the California Labor Code in their dealings with Plaintiffs and other similarly situated
14 current and former employees:
15 • Violation of Labor Code §§ 1194 and 510 (failure to pay overtime and minimum wages);
16 • Violation of Labor Code § 226.7 (failure to provide meal periods or premium wages in lieu
17 thereof);
18 • Violation of Labor Code § 226.7 (failure to provide rest breaks or premium wages in lieu
19 thereof);
20 • Violation of Labor Code §§ 201-203 (failure to pay final wages);
21 • Violation of Labor Code §§ 226 and 226.3 (failure to provide accurate wage statements);
22 • Violation of Labor Code § 2802 (failure to pay reimbursement for business expenses);
23 • Violation of Labor Code § 558 (violations of the provision of any Industrial Welfare
24 Commission Order);
25 • Violation of Labor Code § 1174 (failure to keep accuratetimerecords);
26 • Violation of Labor Code § 970 (fraudulent inducement)
27
28
SECOND AMENDED COMPLAINT FOR DAMAGES
1 28. Plaintiffs have complied with the procedural requirements specified in Labor code §
2 2699. As a result. Plaintiffs have exhausted all administrative procedures required of them under Labor
3 Code §§ 2698, 2699, and 2699.3, and are justified as a matter of right in bringing forward this cause of
4 action.
5 29. Plaintiffs seek civil penalties against Defendant pursuant to Labor Code § 2699(f)(2) to
6 the extent there is no enumerated penalty provision for the specific sections cited above.
7 30. Plaintiffs seek these civil penalties on behalf of themselves and all other former and
8 current aggrieved employees from Defendants pursuant to Labor Code §§ 2699(a) and 2699.3.
9 31. Pursuant to Labor Code §2699(i), PLAINTIFFS should be awarded twenty-five percent
10 (25%) of all penalties due under Califomia law, interest, attomeys' fees and costs. The LWDA should be
il awarded seventy-five percent (75%) of the penalties due and awarded.
12 Wherefore, Plaintiffs request relief as hereinafter prayed for.
1"3 SECOND CAUSE OF ACTION
14 VIOLATION OF LABOR CODE §§ 1194 and 510
15 FAILURE TO PAY OVERTIME WAGES
16 (Plaintiffs against All Defendants)
17 32. The allegations set forth in this Complaint are hereby realleged and incorporated by
18 reference.
19 33. At all times relevant to this action, Industrial Welfare Commission Order No. 16-2001,
20 and Labor Code § 510 applied to Plaintiffs' and other similarly employees' employment by Defendants,
21 and provided that ahy work performed by an employee in excess of eight hours in a work day or forty
22 hours in a workweek be compensated at one-and-one-half times the employee's regular rate of pay.
23 34. Plaintiffs and Plaintiff class members routinely worked over eight hours in a day and over
24 forty hours in a workweek.
25 35. Defendants, and each of them, failed to lawfully compensate Plaintiffs and Plaintiff class
26 members for the hours worked in excess of eight hours in a day or forty hours in a workweek.
27
28
SECOND AMENDED COMPLAINT FOR DAMAGES
1 36. Plaintiffs and Plaintiff class members are entitied to recover their unpaid overtime wages
2 and all penalties arising therefrom. Additionally, Plaintiffs' are entitied to attomeys' fees, interest and
3 costs pursuant to Labor Code § 1194.
4 Wherefore, Plaintiffs request relief as hereinafter prayed for.
5 THIRD CAUSE OF ACTION
6 VIOLATION OF LABOR CODE § 1194 and IWC Order No. 16-2001
7 FAILURE TO PAY MINIMUM WAGES
8 (Plaintiffs against All Defendants)
9 37. The allegations set forth in this Complaint are hereby realleged and incorporated by
10 reference.
11 38. At all times relevant to this action. Industrial Welfare Commission Order No. 16-2001
12 and Labor Code § 1194 applied to Plaintiffs' and Plaintiff class members' employment by Defendants
13 and required that Califomia employees to receive the minimum wage for all hours worked at the rate of
14 $11.00 an hour in December 2018, and $12.00 an hour beginning January 1, 2019.
15 39. Defendants, and each of them, failed to pay minimum wages to Plaintiffs and Plaintiff
16 class members for all hours worked during their employment with Defendants. Defendants' acts were
17 intentional and in complete disregard for Plaintiffs' and Plaintiff class members' rights under Califomia
18 law.
19 40. As a direct and proximate result of the acts or omissions of Defendants, Plaintiffs and
20 class members, have been deprived of minimum wages due in an amount to be determined at trial, and
21 therefore. Plaintiffs are entitied to liquidated damages pursuant to Labor Code §§ 1194 and 1194.2.
22 Wherefore, Plaintiffs request relief as hereinafter prayed for.
23 FOURTH CAUSE OF ACTION
24 VIOLATION OF LABOR CODE SECTIONS 512, 226.7 AND IWC WAGE ORDER 16-2001
25 FAILURE TO PROVIDE MEAL PERIODS OR PREMIUM PAY IN LIEU THEREOF
26 (Plaintiffs against All Defendants)
27 41. The allegations set forth in this Complaint are hereby realleged and incorporated by
28 reference.
10
SECOND AMENDED COMPLAINT FOR DAMAGES
1 42. At all times relevant. Wage Order 16-2001, and Labor Code §§512 and 226.7 were in
2 full force and effect requiring employers in Califomia to provide employees with a meal period of not
3 less than thirty (30) minutes before their fifth hour of work for a work period of more than five hours. If
4 an employer fails to provide an employee a meal period in accordance with the Labor Code or the
5 goveming Wage Order, the employer shall pay the employee one (1) hour of pay at the employee's
6 regular rate of compensation for each work day that the meal period is not provided.
7 43. Defendants, and each of them, routinely failed to provide Plaintiffs and class members
8 with a thirty-minute meal period before their fifth hour of work. Defendants routinely required Plaintiffs
9 and Plaintiff class members to work through their lunch or required Plaintiffs and Plaintiff class
10 members to work without taking a lunch.
11 44. Defendants, and each of them, failed to pay Plaintiffs and Plaintiff class members one
12 hour of premium pay for the days that they were not provided an opportunity to take a thirty-minute
1"3 meal break before their fifth hour.
14 Wherefore, Plaintiffs request relief as hereinafter prayed for.
15 FIFTH CAUSE OF ACTION
16 VIOLATION OF LABOR CODE SECTION 226.7 AND IWC WAGE ORDER 16-2001
17 FAILURE TO PROVIDE REST PERIODS OR PREMIUM PAY IN LIEU THEREOF
18 (Plaintiffs against All Defendants)
19 45. The allegations set forth in this Complaint are hereby realleged and incorporated by
20 reference.
21 46. At all times relevant. Industrial Welfare Commission Order No 16-2001 and Labor Code
22 § 226.7 were in full force and effect requiring employers in Califomia to provide employees with a ten-
23 minute rest period for every four hours worked, or a major fraction thereof. If an employer fails to
24 provide an employee a rest period in accordance with California law or applicable Wage Order, the
25 employer shall pay the employee one (1) hour of pay the employee's regular rate of compensation for
26 each workday that a rest period is not provided.
27 47. Defendants, and each of them, routinely failed to provide Plaintiffs and Plaintiff class
28 members with a ten-minute rest period for every four hours worked. Defendants routinely required
11
SECOND AMENDED COMPLAINT FOR DAMAGES
1 Plaintiffs and Plaintiff class members to work through their rest breaks or required Plaintiffs and
2 Plaintiff class members to work without taking a rest break.
3 48. Defendants, and each of them, failed to pay Plaintiffs and Plaintiff class members one
4 hour of premium pay for the days that they were not provided a ten-minute rest period for every four
5 hours they worked.
6 Wherefore, Plaintiffs request relief as hereinafter prayed for.
7 SIXTH CAUSE OF ACTION
8 VIOLATION OF LABOR CODE §§ 201, 202, AND 203
9 FAILURE TO PAY FINAL WAGES
10 (Plaintiffs against All Defendants)
•11 49. The allegations set forth in this Complaint are hereby realleged and incorporated by
12 reference.
1*3 50. Califomia Labor Code § 201 requires an employer who discharges an employee to pay all
14 compensation due and owing to that employee immediately upon discharge.
15 51. Califomia Labor Code § 202 requires an employer to pay all compensation due and
16 owing to an employee who quits within 72 hours of that employee quitting, unless the employee
17 provides at least 72 hours-notice of quitting, in which case all compensation is due at the end of the
18 employee's final day of work.
19 52. Califomia Labor Code § 203 provides that if an employer willfully fails to pay
20 compensation promptiy upon discharge, as required by § 201 or § 202, then the employer is liable for
21 waiting time penalties in the form on continue compensation of up to 30 work days.
22 53. Defendants, and each of them, willfully failed and refused to timely pay compensation
23 and wages, including overtime compensation that issue and owing to Plaintiffs and Plaintiff class
24 members upon their termination of employment with Defendants. As a result. Defendants, and each of
25 them, are liable to PiaintifFs and Plaintiff class members, for waiting time penalties, together with
26 interest thereon and reasonable attomey's fees and costs, under Califomia Labor Code § 203.
27 Wherefore, Plaintiffs request relief as hereinafter prayed for.
28
12
SECOND AMENDED COMPLAINT FOR DAMAGES
1 SEVENTH CAUSE OF ACTION
2 VIOLATION OF LABOR CODE 226
3 FAILURE TO FURNISH ACCURATE WAGE STATEMENTS
4 (Plaintiffs against All Defendants)
5 54. The allegations set forth in this Complaint are hereby realleged and incorporated by
6 reference.
7 55. Califomia Labor Code § 226(a) requires employers semi-monthly or at thetimeof each
8 payment of wages to fumish each employee with a statement itemizing, among other things, gross
9 wages eamed, and all deductions. Cal. Labor Code § 226(b) provides that if an employer knowingly and
10 intentionally fails to provide a statement itemizing, among other things, gross wages eamed and accurate
11 deductions, then the employee is entitied to recover the greater of all actual damages or fifty dollars
12 ($50) for the initial violation and one hundred dollars ($100) for each subsequent violation, up to four
13 thousand dollars ($4000).
14 56. Defendants and each of them, knowingly and intentionally failed to fumish to Plaintiffs
15 and Plaintiff class member itemized wage statements depicting their actual gross wages in part due to
16 Defendants' failure to accurately record Plaintiffs' and Plaintiff class members' overtime and
17 Defendants' failure to record and pay premium wages for missed meal period.
18 57. Defendants, and each of them, are liable to Plaintiffs and Plaintiff class members for the
19 amounts provided by Cal. Labor Code § 226(e)(1) and for penalties and attomeys' fees.
20 Wherefore, Plaintiffs request relief as hereinafter prayed for.
21 EIGHTH CAUSE OF ACTION
22 VIOLATION OF LABOR CODE 2802
23 FAILURE TO PAY REIMBURSEMENT EXPENSES
24 (Plaintiffs against All Defendants)
25 58. The allegations set forth in this Complaint are hereby realleged and incorporated by
26 reference.
27 59. At all times relevant to this action. Labor Code § 2802 requires that an employer shall
28 indemnify his or her employee "for all necessary expenditures or losses incurred by the employee in
13
SECOND AMENDED COMPLAINT FOR DAMAGES
1 direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of
2 the employer."
3 60. At all times herein mentioned Defendants, and each of them, were the employers of
4 Plaintiffs and Plaintiff class members. During the course of their employment with Defendants,
5 Plaintiffs and Plaintiff class members were required to use their personal cell phones for work purposes,
6 they were required to pay for their travel expenses, they were required to pay for their training, and
7 PiaintifFs and others similarly situated employees were required to pay for their tools to perform services
8 for the benefit of the Defendants.
9 61. As an actual and proximate result of the aforementioned violation. Plaintiffs and Plaintiff
10 class members have been damaged in an amount according to proof, but in an amount in excess, of the
11 jurisdiction of this Court. Plaintiffs and Plaintiff class members are entitied to the losses they incurred
12 for the benefit of the Defendants during their employment with Defendants.
13 Wherefore, PiaintifFs request relief as hereinafter prayed for.
14 NINTH CAUSE OF ACTION
15 VIOLATION OF LABOR CODE 558
16 CFVIL PENALTIES FOR VIOLATION OF CALIFORNIA LABOR CODE WAGE AND HOUR
17 PROVISIONS AND PROVISIONS OF INDUSTRIAL WELFARE COMMISSION
18 (Plaintiffs against All Defendants)
19 62. The allegations of this Complaint are hereby realleged and incorporated by reference.
20 63. Defendants, and each of them, have violated various provisions of the Labor Code and
21 IWC Wage Order 16-2001 as set forth above. In doing so. Defendants, and each of them are subjected to
22 civil penalties as follows: (1) For any initial violation, fifty dollars ($50) for each underpaid employee
23 for each pay period for which the employee was underpaid in addition to an amount sufficient to recover
24 underpaid wages; (2) For each subsequent violation, one hundred dollars ($100) for each underpaid
25 employee for each pay period for which the employee was underpaid in addition to an amount sufficient
26 to recover underpaid wages; (3) Wages recovered pursuant to this section shall be paid to the affected
27 employee.
28 Wherefore, PiaintifFs request relief as hereinafter prayed for.
14
SECOND AMENDED COMPLAINT FOR DAMAGES
1 TENTH CAUSE OF ACTION
2 VIOLATION OF LABOR CODE §§ 247 AND 247.5
3 FAILURE TO POST NOTICE OF SICK LEAVE AND FAILURE TO KEEP ACCURATE
4 RECORDS OF PAH) SICK LEAVE
5 (Plaintiffs against All Defendants)
6 64. The allegations set forth in this Complaint are hereby realleged and incorporated by
7 reference.
8 65. Labor Code § 247 provides that an employer must display a poster in a conspicuous place
9 containing information including: (1) An employee is entitied to accme, request, and use paid sick days;
'lO (2) The amount of sick days provided for by this article; (3) The terms of use of paid sick days; (4) That
U retaliation or discrimination against an employee who requests paid sick days or uses paid sick days, or
12 both, is prohibited and that an employee has the right under this article to file a complaint with the Labor
13 Commissioner against an employer who retaliates or discriminates against the employee.
14 66. An employer who willfully violates the posting requirement of this section is subject to a
15 civil penalty of not more than one hundred dollars ($100) per each offense!
16 67. Defendants, and each of them, willfully failed the posting requirements of Labor Code §
17 247, and therefore, are subjected to civil penalties of $100 for each offense.
18 68. Labor Code § 247.5 provides that an employer shall keep for at least three years records
19 documenting the hours worked and paid sick days accmed and used by an employee. I f an employer
20 does not maintain adequate records pursuant to this section, it shall be presumed that the employee is
21 entitled to the maximum number of hours accmable under this article, unless the employer can show
22 otherwise by clear and convincing evidence.
23 69. Defendants, and each of them, have failed to keep accurate records of all paid sick days
24 accmed by PiaintifFs and Plaintiff class members. As a result of Defendants conduct, PiaintifFs and
25 Plaintiff class members have suffered harm in an amount in excess of the jurisdictional minimum of this
26 Court.
27 Wherefore, Plaintiffs request relief as in hereinafter prayed for.
28
15
SECOND AMENDED COMPLAINT FOR DAMAGES
1 ELEVENTH CAUSE OF ACTION
2 VIOLATION OF LABOR CODE § 970
3 SOLICITATION OF EMPLOYEES BY MISREPRESENTATION
4 (Plaintiffs against All Defendants)
5 70. The allegations set forth in this Complaint are hereby realleged and incorporated by
6 reference.
7 71. Califomia Labor Code § 970 provides that no person, or agent or officer thereof, directiy
8 or indirectiy, shall influence, persuade, or engage any person to change from one place to another in this
9 State or from any place outside to any place within the State, of from any place within the State to
10 outside, for the purpose of working in any branch of labor, through or by means of knowingly false
il representations, whether spoken, written, or advertised in printed form, conceming either (a) The kind,
12 character, or existence of such work; (b) The length oftimesuch work will last, or the compensation
13 therefor; (c) The sanitary or housing conditions relating to or surrounding the work; (d) The existence or
14 nonexistence of any strike, lockout, or other labor dispute affecting it and pending between the proposed
15 employer and the persons then or last engaged in the performance of the labor for which the employee is
16 sought.
17 72. Defendants, and each of them, v^dllfully made misrepresentations to the PiaintifFs and
18 Plaintiff class members regarding the kind, character, and existence of work, the length oftimethe work
19 will last, the compensations of the work, and the housing conditions relating to employment, including
20 but not limited to promises to provide and pay for certified training. Defendants further promised to pay
21 to PiaintifFs and those similarly situated per diem pay to cover food and lodging costs for their
22 relocation. PiaintifFs and Plaintiff class members reasonable relied on Defendants' misrepresentations to
23 their detriment.
24 73. As a direct and proximate result of Defendants' conduct, PiaintifFs and Plaintiff class
25 members have suffered harm in an amount in excess of the jurisdictional minimum of this Court.
26 74. The above described actions were perpetrated and/or ratified by a managing agent or
27 officer of Defendants. These acts were done with malice, fraud, oppression, and in reckless disregard of
28 Plaintiffs'rightsand therightsof those similarly situated. Further, said actions were despicable in
16
SECOND AMENDED COMPLAINT FOR DAMAGES
1 character and warrant the imposition of punitive damages in a sum sufficient to punish and deter
2 Defendants' future conduct.
3 Wherefore, Plaintiffs request relief as hereinafter prayed for.
4 TWELFTH CAUSE OF ACTION
5 VIOLATION OF BUSINESS AND PROFESSIONS CODE § 17200, et seq.
6 UNFAIR COMPETITION ACT
7 (Plaintiffs against All Defendants)
8 75. The allegations set forth in this Complaint are hereby realleged and incorporated by
9 reference.
10 76. Defendants' conduct, as alleged herein, has been and continues to be unfair, unlawful,
11 and harmful to Plaintiffs and Plaintiff class members. Defendants' activities, as alleged herein, are
12 violations of Califomia law and constitute unlawful business acts and practices in violation of Califomia
13 Business and Professions Code §§ 17200 et seq.
14 77. A violation of Cal. Bus. Prof code § 17200 may be predicated on the violation of any
15 state or federal law. In this case, Defendants had a policy and practice of failing to pay Plaintiffs and
16 Plaintiff class members all overtime hours worked, for missed rest and meal periods, for reimbursement
17 pay, and their final wages, which violates several Califomia Labor Code Sections and Industrial
18 Commission Welfare Wage Order provisions.
19 78. Plaintiffs and Plaintiff class members have been personally injured by Defendants
20 unlawful and unfair business practices including but not limited to sufferingfinancialloss. PiaintifFs and
21 Plaintiff class members are entitled to restitution of the wages withheld and retained by Defendants
22 during the defined period.
23 79. Further, the PiaintifFs and Plaintiff class members request the violations of the
24 Defendants alleged herein be enjoined, and other equitable relief as this court deems proper.
25 Wherefore, Plaintiffs request relief as hereinafter prayed for.
26
27
28
17
SECOND AMENDED COMPLAINT FOR DAMAGES
1 V. PRAYER FOR R E L I E F
2 WHEREFORE, PlaintifF(s) demand judgment against Defendants and any other Defendants who
3 may later be added as follows:
4 AS TO THE FIRST CAUSE OF ACTION
5 80. Penalties according to the following schedule: For any initial violation, one hundred
6 dollars ($100) for each aggrieved employee per pay period; For any subsequent violation, two hundred
7 dollars ($200) for each aggrieved employee per pay period; or otherwise enumerated for specific Labor
8 Code sections;
9 81. Reasonable Attomeys' Fees and costs pursuant to Labor Code Section 2699;
10 82. Wages as proved at trial;
H 83. For prejudgment interest on all amounts claimed;
12 84. Injunctive and Declaratory Relief;
13 85. For such other and further relief as this Court may deem just and proper;
14 AS TO THE REMAINING CAUSES OF ACTION
15 86. For an Order certifying this action as a class action;
16 87. Compensatory Damages, including general and special damages, including but not
17 limited to wages;
18 88. For liquidated damages in the amount equal to the unpaid minimum wage and interest
19 thereon, from at least four (4) years prior to the filing of this action, according to proof;
20 89. For double damages pursuant to Labor Code Section 972;
21 90. For Attomeys' Fees and costs pursuant to all applicable statutes or legal principles;
22 91. For punitive damages;
23 92. For prejudgment interest on all amounts claimed;
24 93. For such other and further relief as the Court may deem just and proper.
25 Date:^MafglT 1^2020 ^ ^ V A G F ^ A M R PC
26 Scph
27
A T O C I O . . SAVAGE,
28 attomey for Plaintiff
18
SECOND AMENDED COMPLAINT FOR DAMAGES
Preview
1 PATRICIA A. SAVAGE, SBN 236235 E. RYAN LAMB, SBN 266850 2 SAVAGE & LAMB, PC 3 1550 Humboldt Road, Suite 4 FILED/ENDOBSED Chico, CA 95928 4 Telephone: (530) 592-3861 Fax: (530) 592-3865 5 Attomeys for Plaintiff, Deputy Clerk 6 JAY ROBINSON and 7 HUGO PINEDA, individually and on behalf of all others similarly situated 8 k SUPERIOR COURT OF THE STATE OF CALIFORNIA no COUNTY OF SACRAMENTO -11 JAY ROBINSON and Case No. 34-2019-00262942 12 HUGO PINEDA, individually and on behalf of 13 all others similarly situated. CLASS ACTION 14 Plaintiffs, SECOND AMENDED COMPLAINT FOR DAMAGES 15 V. 16 L Violation of the Private Attorney ASOMEO ENVIRONMENTAL General Act 17 RESTORATION INDUSTRY, LLC, a 2. Failure to Pay Overtime Califomia Corporation and 3. Failure to Pay Minimum Wages 18 PHILLIPS & JORDAN INC. a North Carolina 4. Failure to Provide Meal Periods or Corporation and Premium Pay 19 DOES 1-10, 5. Failure to Provide Rest Periods or 20 Premium Pay Defendants. 6. Failure to Pay Final Wages 21 7. Failure to Furnish Accurate Wage Statements 22 8. Failure to Pay Reimbursement Expenses 23 9. Violation of Labor Code Section 558 24 10. Failure to Keep Accurate Time Records 25 11. Violation of Labor Code 970 12. Unfair Competition 26 27 DEMAND FOR JURY TRIAL 28 SECOND AMENDED COMPLAINT FOR DAMAGES 1 Plaintiffs JAY ROBINSON and HUGO PINEDA, individually and on behalf of all others 2 similarly situated, complains and allege as follows: 3 I. INTRODUCTION 4 1. This case arises out of unlawful wage payment and employment practices by the 5 Defendants. The Plaintiffs bring this action individually and on behalf of similarly situated persons who 6 on and after four (4) years prior to the filing of this action through the date of trial (Class Period), were 7 deprived of wages and not provided lawful meal and rest periods (Plaintiff Class Members). 8 2. As used herein, the term "Plaintiffs" refers to JAY ROBINSON AND HUGO PINEDA 9 who are the named Plaintiff Class representative; the term "Plaintiff Class" includes the Plaintiffs and all 10 Plaintiff Class Members; the term "Class Members" includes all Plaintiffs and Plaintiff Class Members. 11 3. The Plaintiffs seek compensation due the class Members during the "Class Period" which 12 is defined as four years prior to the filing of this action through the trial date, based upon information 'l3 and belief that the Defendants are continuing, and will continue, their unlawful practices as described 14 herein. 15 H. PARTIES AND JURISDICTION 16 4. Plaintiff JAY ROBINSON (hereinafter "ROBINSON") was at all relevant times herein, 17 an employee of Defendants ASOMEO ENVIRONMENTAL RESTORATION INDUSTRY LLC 18 (hereinafter "AERI") and PHILLIPS & JORDAN, ESfC. (hereinafter "PHILLIPS & JORDAN") and is 19 otherwise eligible to bring this action. Plaintiff ROBINSON was employed by Defendants to perform 20 services as an hourly employee in approximately December of 2018, and continuing thereafter through 21 part of February, 2019. Plaintiff received training and instruction from both AERI and PHILLIPS & 22 JORDAN vfith respect to the work performed in regards to his employment. Plaintiff ROBINSON'S 23 claims are common to those of the Class Members. 24 5. Plaintiff HUGO PINEDA (hereinafter "PINEDA") was at all relevant times herein an 25 employee of Defendants AERI and PHILLIPS & JORDAN, INC. and is otherwise eligible to bring this 26 action. PlaintiflF PINEDA was employed by the Defendants to perform services as an hourly employee 27 commencing in about December of 2018 and continuing thereafter until the end of January, 2019. 28 Plaintiff PINEDA'S claims are common to those of the Class Members. SECOND AMENDED COMPLAINT FOR DAMAGES 1 6. Plaintiffs are informed and believe and thereon allege that Defendant ASOMEO 2 ENVIRONMENTAL RESTORATION INDUSTRY LLC ("AERI") is a Califomia Limited Liability 3 Corporation with its primary place of business in the County of Sutter, and was the employer of the 4 Plaintiff and the Members of Plaintiff Class during the Class Period. 5 7. Plaintiffs are informed and believe and thereon allege that Defendant PHILLIPS & 6 JORDAN INC. (hereinafter "PHILLIPS & JORDAN"), is a North Carolina Corporation who operates 7 their business and provides services in Califomia through their Regional Office located in Sacramento 8 County. Hereinafter, collectively, PHILLIPS & JORDAN and AERI will be referred to as 9 "Defendants." 10 8. Plaintiffs are informed and believe and thereon allege that, at all times relevant. "11 Defendant PHILLIPS & JORDAN was the "direct contractor," and at all times relevant. Defendant 12 AERI was the "subcontractor" and that both Defendants were contracted to perform restoration and 13 clean-up services in relation to the "Camp Fire" of November 8, 2018, and both Defendants trained, 14 directed and supervised Plaintiffs and Plaintiff Class Members in their performance of duties in relation 15 to the restoration services for the Camp Fire. 16 9. Plaintiffs are informed and believe and thereon allege that PHILLIPS & JORDAN was 17 their employer because PHILLIPS & JORDAN provided them with identification badges displaying the 18 PHILLIPS & JORDAN logo, because Plaintiffs were provided training from PHILLIPS & JORDAN, 19 because Plaintiffs were provided equipment and trucks to use with the PHILLIPS & JORDAN name on 20 them, and because PHILLIPS & JORDAN had direct oversight and supervision of Plaintiffs' and 21 Plaintiff Class Members' work performance. 22 10. Plaintiffs are informed and believe and thereon allege that AERI was their employer 23 because AERI's name was on their pay stubs, because AERI provided Plaintiffs with training, and 24 because AERI had oversight and supervision of Plaintiffs' and Plaintiff Class Members' work 25 performance. 26 11. Plaintiffs are informed and believe and thereon allege that Plaintiffs were under the 27 direction, control and employment of both Defendant AERI and Defendant PHILLIPS & JORDAN as 28 SECOND AMENDED COMPLAINT FOR DAMAGES 1 joint employers. Plaintiffs further allege that both AERI and PHILLIPS & JORDAN, as joint employers, 2 exercised considerable control over the stmcture and conditions of Plaintiffs' employment. 3 12. Pursuant to Code of Civil Procedure §§ 395(a) and 395.5, venue and jurisdiction are 4 proper because the Defendant PHILLIPS & JORDAN transacts business in the County of Sacramento, 5 operates their Regional Office in the County of Sacramento and entered into a contract with Defendant 6 AERI in the County of Sacramento for the restoration and clean-up associated with the Camp Fire. 7 Furthermore, the non-payment of wages as alleged herein had a direct effect on employees of the 8 Defendants in the State of Califomia, and in particular, within the County of Sacramento. The monetary 9 claims of the Plaintiffs are within the jurisdiction of this court. 10 13. Plaintiffs are informed and believe and thereon allege that the number of class Members 11 is over thirty (30), therefore the monetary claims of the Plaintiffs and Class Members exceed the 12 jurisdictional minimum of this Court. "13 14. Each of the Plaintiff Class Members are identifiable, similarly situated persons and were 14 employed by the Defendants during the Class Period in the State of California. Plaintiffs reserve the 15 right to seek additional amendment of this Complaint to add as named Plaintiffs, some or all of the 16 persons who are Members of the Plaintiff Class. 17 15. Defendants DOES 1 through 10, are owners, operators, managers, subsidiaries of or 18 owned entities of Defendants, and each of them, or persons otherwise responsible for paying the wages 19 and penialties alleged herein, who were conducting business in the State of Califomia and employing' 20 employees in the State of Califomia. Plaintiffs are ignorant of the true names, capacities, relationships 21 and extent of participation in the conduct herein alleged, of the Defendants sued herein as DOES 1 22 through 10, inclusive, and therefore sues these Defendants by suchfictitiousnames. 23 16. At all times relevant, each and every Defendant was an agent and/or employee of each 24 and every other Defendant. In doing the things alleged in the causes of action stated herein, each and 25 every Defendant was acting within the course and scope of this agency or employment, and was acting 26 with the consent, permission, and authorization of each remaining Defendant. All actions of each 27 Defendant as alleged herein were ratified and approved by every other Defendant or their officers or 28 SECOND AMENDED COMPLAINT FOR DAMAGES 1 managing agents. Plaintiff will amend this complaint to allege the tme names and capacities of the DOE 2 Defendants when ascertained. 3 m . EXHAUSTION OF ADMINISTRATIVE REMEDIES 4 17. Plaintiffs have sought permission pursuant to Labor Code § 2698 et seq. to pursue to the 5 claims set forth in this Complaint against Defendants as Private Attomey General on behalf of 6 themselves and Plaintiff class members. Pursuant to Califomia Labor Code § 2699.3, Plaintiffs timely 7 filed their notice with the Labor Workforce and Development Agency ("LWDA") via online submission 8 on approximately March 28, 2019, and served notice of Defendants by Certified mail prior to filing this 9 action. 10 18. Plaintiffs have waited 65 days and have not received notice from the LWDA of its intent il to pursue Plaintiffs' claims. Plaintiffs have received authorization from the LWDA to pursue the claims 12 set forth in this Complaint against Defendants as Private Attomey Generals on behalf of themselves and 13 others similarly situated employees based on the LWDA'S failure to provide notice of its intent to 14 pursue these claims and based on Defendants' failure to cure. 15 16 IV. GENERAL ALLEGATIONS 17 19. During all, or a portion of the Class Period, the Plaintiffs and each Member of the 18 Plaintiff Class was employed by Defendants, and each of them, in the State of Califomia. During their 19 employment. Plaintiffs and Plaintiff Class Members were employees covered under one or more 20 regulations or Industrial Welfare Commission (IWC) Wage Orders, including but not limited to Wage 21 Order 16-2001. 22 V. CLASS ACTION ALLEGATIONS 23 20. Plaintiffs brings this action on behalf of themselves and all other similarly situated 24 persons, as a class action pursuant to Califomia Code of Civil Procedure §382. The Plaintiff Class is 25 composed of and defined as follows: 26 Plaintiff Class; 27 21. All persons who at any time within four (4) years prior to the filing of this action through 28 the date of trial in this lawsuit, who were employed by the Defendants in an hourly position. SECOND AMENDED COMPLAINT FOR DAMAGES 1 22. Plaintiff reserves therightto establish additional subclasses as appropriate. 2 23. This action has been brought and may be maintained as a class action pursuant to Code of 3 Civil Procedure §382 because there is a well-defined community of interest in the litigation and the class 4 is readily ascertainable: 5 (a) Numerosity: The Members of the class are so numerous that joinder of all Members 6 would be unfeasible and impractical. The Membership of the entire class is unknown to Plaintiffs at this 7 time; however, the class is estimated to be greater than thirty (30) individuals and the identity of such 8 Membership is readily ascertainable by inspection of Defendants' employment records. While the exact 9 number of class Members is unknown to the Plaintiffs at this time, the Plaintiffs are informed and 10 believe there are over thirty (30) class Members. 11 (b) Typicality: Plaintiffs' claims are typical of the class Members and Plaintiffs share a 12 well-defined community of interest as demonstrated herein. Plaintiffs and all Class Members sustained 13 injuries and damages arising out of Defendants' common course of conduct in violation of the law as 14 alleged herein. 15 (c) Adequacy: Plaintiffs' are qualified to, and will, fairly and adequately, protect the 16 interests of each class Member with whom they share a well-defined community of interest and 17 typicality of claims. Plaintiffs' attomeys, the proposed class counsel, are well-versed in the mles 18 goveming class action discovery, certification, and settlement. Plaintiff and counsel have incurred, and 19 throughout the duration of this action will continue to incur costs and attorney's fees that have been, are, 20 and will be necessarily expended for the prosecution of this action for the substantial benefit for each 21 class Member. 22 (d) Superiority: A class action is superior to other available means of fair and efficient 23 adjudication of the claims of the class Members, since joinder of all Class Members is impractical. 24 Class action treatment will allow a large number of similarly situated persons to prosecute their common 25 claims in a single fomm, simultaneously, efficiently, and without the unnecessary duplication of effort 26 and expense that numerous individual actions would cause to such Plaintiffs or to the court system. 27 Further, the damages of many individual Class Members may be relatively small, and the burden and 28 expenses of individual litigation would make it difficult or impossible for individual Members of the SECOND AMENDED COMPLAINT FOR DAMAGES 1 class to seek and obtain relief, while a class action will serve an important public interest. Further, 2 individual litigation would present the potential for inconsistent or contradictory judgments. 3 (e) Commonality: Common questions of law and fact exist as to the Plaintiffs and Class 4 Members that predominate over any questions, which affect only individual Members of the class. 5 These common questions include, but are not limited to: 6 (1) Whether Defendants paid Plaintiffs and Class Members overtime wages 7 for all overtime hours worked during their employment with Defendants; 8 (2) Whether Defendants provided Plaintiffs and Class Members with a 30- 9 minute unintermpted meal period within thefirstfivehours of work, and/or whether Defendants 10 provided Plaintiffs and Class Members with a second 30-minute unintermpted meal period on shift Tl longer than 10 hours, as required by Califomia law; 12 (3) Whether Defendants provided Plaintiffs and Class Members with a 10- 13 minute rest period for every four hours worked, as required by Califomia law; 14 (4) Whether Defendants provided Plaintiffs and Class Members with one hour 15 of premium wages when statutory meal periods were not provided, as required by Califomia law; 16 (5) Whether Defendants provided Plaintiffs and Class Members with one hour 17 of premium wages when statutory rest periods were not provided, as required by Califomia law; 18 (6) Whether Defendants provided Plaintiffs and Class Members all monies 19 owed upon the separation of their employment within the time period required by California Law; 20 (7) Whether Defendants provided Plaintiff and Class Members reimbursement 21 for all necessary business-related expenses made during their employment with Defendants; 22 (8) The effect upon and the extent of any injuries sustained by the Plaintiffs 23 and Class Members and the appropriate type and/or measure of damages; 24 (9) The appropriateness and nature of relief to the Plaintiffs and Class 25 Members; 26 (10) The appropriate nature of class-wide equitable relief; and 27 (11) The extent of liability of each Defendant, including DOE Defendants, to 28 the Plaintiffs and each Class Member. SECOND AMENDED COMPLAINT FOR DAMAGES 1 24. Plaintiff ROBINSON and PINEDA are unaware of any difficulties that are likely to be 2 encountered in the management of this action that would preclude its maintenance as a class action. 3 VI. VIOLATIONS ALLEGED 4 FIRST CAUSE OF ACTION 5 VIOLATION OF THE PRIVATE ATTORNEYS GENERAL ACT 6 (By Plaintiffs on behalf of the State of California and Aggrieved Employees against All 7 Defendants) 8 25. The allegations set forth in this Complaint are hereby realleged and incorporated by 9 reference. 'lO 26. Defendants' violation of Califomia wage and hour laws enable Plaintiffs to recover civil il penalties as aggrieved employees and on behalf of all others similarly situated to class members. 12 27. Plaintiffs have alleged to the LWDA that Defendants have violated the following \'3 provisions of the California Labor Code in their dealings with Plaintiffs and other similarly situated 14 current and former employees: 15 • Violation of Labor Code §§ 1194 and 510 (failure to pay overtime and minimum wages); 16 • Violation of Labor Code § 226.7 (failure to provide meal periods or premium wages in lieu 17 thereof); 18 • Violation of Labor Code § 226.7 (failure to provide rest breaks or premium wages in lieu 19 thereof); 20 • Violation of Labor Code §§ 201-203 (failure to pay final wages); 21 • Violation of Labor Code §§ 226 and 226.3 (failure to provide accurate wage statements); 22 • Violation of Labor Code § 2802 (failure to pay reimbursement for business expenses); 23 • Violation of Labor Code § 558 (violations of the provision of any Industrial Welfare 24 Commission Order); 25 • Violation of Labor Code § 1174 (failure to keep accuratetimerecords); 26 • Violation of Labor Code § 970 (fraudulent inducement) 27 28 SECOND AMENDED COMPLAINT FOR DAMAGES 1 28. Plaintiffs have complied with the procedural requirements specified in Labor code § 2 2699. As a result. Plaintiffs have exhausted all administrative procedures required of them under Labor 3 Code §§ 2698, 2699, and 2699.3, and are justified as a matter of right in bringing forward this cause of 4 action. 5 29. Plaintiffs seek civil penalties against Defendant pursuant to Labor Code § 2699(f)(2) to 6 the extent there is no enumerated penalty provision for the specific sections cited above. 7 30. Plaintiffs seek these civil penalties on behalf of themselves and all other former and 8 current aggrieved employees from Defendants pursuant to Labor Code §§ 2699(a) and 2699.3. 9 31. Pursuant to Labor Code §2699(i), PLAINTIFFS should be awarded twenty-five percent 10 (25%) of all penalties due under Califomia law, interest, attomeys' fees and costs. The LWDA should be il awarded seventy-five percent (75%) of the penalties due and awarded. 12 Wherefore, Plaintiffs request relief as hereinafter prayed for. 1"3 SECOND CAUSE OF ACTION 14 VIOLATION OF LABOR CODE §§ 1194 and 510 15 FAILURE TO PAY OVERTIME WAGES 16 (Plaintiffs against All Defendants) 17 32. The allegations set forth in this Complaint are hereby realleged and incorporated by 18 reference. 19 33. At all times relevant to this action, Industrial Welfare Commission Order No. 16-2001, 20 and Labor Code § 510 applied to Plaintiffs' and other similarly employees' employment by Defendants, 21 and provided that ahy work performed by an employee in excess of eight hours in a work day or forty 22 hours in a workweek be compensated at one-and-one-half times the employee's regular rate of pay. 23 34. Plaintiffs and Plaintiff class members routinely worked over eight hours in a day and over 24 forty hours in a workweek. 25 35. Defendants, and each of them, failed to lawfully compensate Plaintiffs and Plaintiff class 26 members for the hours worked in excess of eight hours in a day or forty hours in a workweek. 27 28 SECOND AMENDED COMPLAINT FOR DAMAGES 1 36. Plaintiffs and Plaintiff class members are entitied to recover their unpaid overtime wages 2 and all penalties arising therefrom. Additionally, Plaintiffs' are entitied to attomeys' fees, interest and 3 costs pursuant to Labor Code § 1194. 4 Wherefore, Plaintiffs request relief as hereinafter prayed for. 5 THIRD CAUSE OF ACTION 6 VIOLATION OF LABOR CODE § 1194 and IWC Order No. 16-2001 7 FAILURE TO PAY MINIMUM WAGES 8 (Plaintiffs against All Defendants) 9 37. The allegations set forth in this Complaint are hereby realleged and incorporated by 10 reference. 11 38. At all times relevant to this action. Industrial Welfare Commission Order No. 16-2001 12 and Labor Code § 1194 applied to Plaintiffs' and Plaintiff class members' employment by Defendants 13 and required that Califomia employees to receive the minimum wage for all hours worked at the rate of 14 $11.00 an hour in December 2018, and $12.00 an hour beginning January 1, 2019. 15 39. Defendants, and each of them, failed to pay minimum wages to Plaintiffs and Plaintiff 16 class members for all hours worked during their employment with Defendants. Defendants' acts were 17 intentional and in complete disregard for Plaintiffs' and Plaintiff class members' rights under Califomia 18 law. 19 40. As a direct and proximate result of the acts or omissions of Defendants, Plaintiffs and 20 class members, have been deprived of minimum wages due in an amount to be determined at trial, and 21 therefore. Plaintiffs are entitied to liquidated damages pursuant to Labor Code §§ 1194 and 1194.2. 22 Wherefore, Plaintiffs request relief as hereinafter prayed for. 23 FOURTH CAUSE OF ACTION 24 VIOLATION OF LABOR CODE SECTIONS 512, 226.7 AND IWC WAGE ORDER 16-2001 25 FAILURE TO PROVIDE MEAL PERIODS OR PREMIUM PAY IN LIEU THEREOF 26 (Plaintiffs against All Defendants) 27 41. The allegations set forth in this Complaint are hereby realleged and incorporated by 28 reference. 10 SECOND AMENDED COMPLAINT FOR DAMAGES 1 42. At all times relevant. Wage Order 16-2001, and Labor Code §§512 and 226.7 were in 2 full force and effect requiring employers in Califomia to provide employees with a meal period of not 3 less than thirty (30) minutes before their fifth hour of work for a work period of more than five hours. If 4 an employer fails to provide an employee a meal period in accordance with the Labor Code or the 5 goveming Wage Order, the employer shall pay the employee one (1) hour of pay at the employee's 6 regular rate of compensation for each work day that the meal period is not provided. 7 43. Defendants, and each of them, routinely failed to provide Plaintiffs and class members 8 with a thirty-minute meal period before their fifth hour of work. Defendants routinely required Plaintiffs 9 and Plaintiff class members to work through their lunch or required Plaintiffs and Plaintiff class 10 members to work without taking a lunch. 11 44. Defendants, and each of them, failed to pay Plaintiffs and Plaintiff class members one 12 hour of premium pay for the days that they were not provided an opportunity to take a thirty-minute 1"3 meal break before their fifth hour. 14 Wherefore, Plaintiffs request relief as hereinafter prayed for. 15 FIFTH CAUSE OF ACTION 16 VIOLATION OF LABOR CODE SECTION 226.7 AND IWC WAGE ORDER 16-2001 17 FAILURE TO PROVIDE REST PERIODS OR PREMIUM PAY IN LIEU THEREOF 18 (Plaintiffs against All Defendants) 19 45. The allegations set forth in this Complaint are hereby realleged and incorporated by 20 reference. 21 46. At all times relevant. Industrial Welfare Commission Order No 16-2001 and Labor Code 22 § 226.7 were in full force and effect requiring employers in Califomia to provide employees with a ten- 23 minute rest period for every four hours worked, or a major fraction thereof. If an employer fails to 24 provide an employee a rest period in accordance with California law or applicable Wage Order, the 25 employer shall pay the employee one (1) hour of pay the employee's regular rate of compensation for 26 each workday that a rest period is not provided. 27 47. Defendants, and each of them, routinely failed to provide Plaintiffs and Plaintiff class 28 members with a ten-minute rest period for every four hours worked. Defendants routinely required 11 SECOND AMENDED COMPLAINT FOR DAMAGES 1 Plaintiffs and Plaintiff class members to work through their rest breaks or required Plaintiffs and 2 Plaintiff class members to work without taking a rest break. 3 48. Defendants, and each of them, failed to pay Plaintiffs and Plaintiff class members one 4 hour of premium pay for the days that they were not provided a ten-minute rest period for every four 5 hours they worked. 6 Wherefore, Plaintiffs request relief as hereinafter prayed for. 7 SIXTH CAUSE OF ACTION 8 VIOLATION OF LABOR CODE §§ 201, 202, AND 203 9 FAILURE TO PAY FINAL WAGES 10 (Plaintiffs against All Defendants) •11 49. The allegations set forth in this Complaint are hereby realleged and incorporated by 12 reference. 1*3 50. Califomia Labor Code § 201 requires an employer who discharges an employee to pay all 14 compensation due and owing to that employee immediately upon discharge. 15 51. Califomia Labor Code § 202 requires an employer to pay all compensation due and 16 owing to an employee who quits within 72 hours of that employee quitting, unless the employee 17 provides at least 72 hours-notice of quitting, in which case all compensation is due at the end of the 18 employee's final day of work. 19 52. Califomia Labor Code § 203 provides that if an employer willfully fails to pay 20 compensation promptiy upon discharge, as required by § 201 or § 202, then the employer is liable for 21 waiting time penalties in the form on continue compensation of up to 30 work days. 22 53. Defendants, and each of them, willfully failed and refused to timely pay compensation 23 and wages, including overtime compensation that issue and owing to Plaintiffs and Plaintiff class 24 members upon their termination of employment with Defendants. As a result. Defendants, and each of 25 them, are liable to PiaintifFs and Plaintiff class members, for waiting time penalties, together with 26 interest thereon and reasonable attomey's fees and costs, under Califomia Labor Code § 203. 27 Wherefore, Plaintiffs request relief as hereinafter prayed for. 28 12 SECOND AMENDED COMPLAINT FOR DAMAGES 1 SEVENTH CAUSE OF ACTION 2 VIOLATION OF LABOR CODE 226 3 FAILURE TO FURNISH ACCURATE WAGE STATEMENTS 4 (Plaintiffs against All Defendants) 5 54. The allegations set forth in this Complaint are hereby realleged and incorporated by 6 reference. 7 55. Califomia Labor Code § 226(a) requires employers semi-monthly or at thetimeof each 8 payment of wages to fumish each employee with a statement itemizing, among other things, gross 9 wages eamed, and all deductions. Cal. Labor Code § 226(b) provides that if an employer knowingly and 10 intentionally fails to provide a statement itemizing, among other things, gross wages eamed and accurate 11 deductions, then the employee is entitied to recover the greater of all actual damages or fifty dollars 12 ($50) for the initial violation and one hundred dollars ($100) for each subsequent violation, up to four 13 thousand dollars ($4000). 14 56. Defendants and each of them, knowingly and intentionally failed to fumish to Plaintiffs 15 and Plaintiff class member itemized wage statements depicting their actual gross wages in part due to 16 Defendants' failure to accurately record Plaintiffs' and Plaintiff class members' overtime and 17 Defendants' failure to record and pay premium wages for missed meal period. 18 57. Defendants, and each of them, are liable to Plaintiffs and Plaintiff class members for the 19 amounts provided by Cal. Labor Code § 226(e)(1) and for penalties and attomeys' fees. 20 Wherefore, Plaintiffs request relief as hereinafter prayed for. 21 EIGHTH CAUSE OF ACTION 22 VIOLATION OF LABOR CODE 2802 23 FAILURE TO PAY REIMBURSEMENT EXPENSES 24 (Plaintiffs against All Defendants) 25 58. The allegations set forth in this Complaint are hereby realleged and incorporated by 26 reference. 27 59. At all times relevant to this action. Labor Code § 2802 requires that an employer shall 28 indemnify his or her employee "for all necessary expenditures or losses incurred by the employee in 13 SECOND AMENDED COMPLAINT FOR DAMAGES 1 direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of 2 the employer." 3 60. At all times herein mentioned Defendants, and each of them, were the employers of 4 Plaintiffs and Plaintiff class members. During the course of their employment with Defendants, 5 Plaintiffs and Plaintiff class members were required to use their personal cell phones for work purposes, 6 they were required to pay for their travel expenses, they were required to pay for their training, and 7 PiaintifFs and others similarly situated employees were required to pay for their tools to perform services 8 for the benefit of the Defendants. 9 61. As an actual and proximate result of the aforementioned violation. Plaintiffs and Plaintiff 10 class members have been damaged in an amount according to proof, but in an amount in excess, of the 11 jurisdiction of this Court. Plaintiffs and Plaintiff class members are entitied to the losses they incurred 12 for the benefit of the Defendants during their employment with Defendants. 13 Wherefore, PiaintifFs request relief as hereinafter prayed for. 14 NINTH CAUSE OF ACTION 15 VIOLATION OF LABOR CODE 558 16 CFVIL PENALTIES FOR VIOLATION OF CALIFORNIA LABOR CODE WAGE AND HOUR 17 PROVISIONS AND PROVISIONS OF INDUSTRIAL WELFARE COMMISSION 18 (Plaintiffs against All Defendants) 19 62. The allegations of this Complaint are hereby realleged and incorporated by reference. 20 63. Defendants, and each of them, have violated various provisions of the Labor Code and 21 IWC Wage Order 16-2001 as set forth above. In doing so. Defendants, and each of them are subjected to 22 civil penalties as follows: (1) For any initial violation, fifty dollars ($50) for each underpaid employee 23 for each pay period for which the employee was underpaid in addition to an amount sufficient to recover 24 underpaid wages; (2) For each subsequent violation, one hundred dollars ($100) for each underpaid 25 employee for each pay period for which the employee was underpaid in addition to an amount sufficient 26 to recover underpaid wages; (3) Wages recovered pursuant to this section shall be paid to the affected 27 employee. 28 Wherefore, PiaintifFs request relief as hereinafter prayed for. 14 SECOND AMENDED COMPLAINT FOR DAMAGES 1 TENTH CAUSE OF ACTION 2 VIOLATION OF LABOR CODE §§ 247 AND 247.5 3 FAILURE TO POST NOTICE OF SICK LEAVE AND FAILURE TO KEEP ACCURATE 4 RECORDS OF PAH) SICK LEAVE 5 (Plaintiffs against All Defendants) 6 64. The allegations set forth in this Complaint are hereby realleged and incorporated by 7 reference. 8 65. Labor Code § 247 provides that an employer must display a poster in a conspicuous place 9 containing information including: (1) An employee is entitied to accme, request, and use paid sick days; 'lO (2) The amount of sick days provided for by this article; (3) The terms of use of paid sick days; (4) That U retaliation or discrimination against an employee who requests paid sick days or uses paid sick days, or 12 both, is prohibited and that an employee has the right under this article to file a complaint with the Labor 13 Commissioner against an employer who retaliates or discriminates against the employee. 14 66. An employer who willfully violates the posting requirement of this section is subject to a 15 civil penalty of not more than one hundred dollars ($100) per each offense! 16 67. Defendants, and each of them, willfully failed the posting requirements of Labor Code § 17 247, and therefore, are subjected to civil penalties of $100 for each offense. 18 68. Labor Code § 247.5 provides that an employer shall keep for at least three years records 19 documenting the hours worked and paid sick days accmed and used by an employee. I f an employer 20 does not maintain adequate records pursuant to this section, it shall be presumed that the employee is 21 entitled to the maximum number of hours accmable under this article, unless the employer can show 22 otherwise by clear and convincing evidence. 23 69. Defendants, and each of them, have failed to keep accurate records of all paid sick days 24 accmed by PiaintifFs and Plaintiff class members. As a result of Defendants conduct, PiaintifFs and 25 Plaintiff class members have suffered harm in an amount in excess of the jurisdictional minimum of this 26 Court. 27 Wherefore, Plaintiffs request relief as in hereinafter prayed for. 28 15 SECOND AMENDED COMPLAINT FOR DAMAGES 1 ELEVENTH CAUSE OF ACTION 2 VIOLATION OF LABOR CODE § 970 3 SOLICITATION OF EMPLOYEES BY MISREPRESENTATION 4 (Plaintiffs against All Defendants) 5 70. The allegations set forth in this Complaint are hereby realleged and incorporated by 6 reference. 7 71. Califomia Labor Code § 970 provides that no person, or agent or officer thereof, directiy 8 or indirectiy, shall influence, persuade, or engage any person to change from one place to another in this 9 State or from any place outside to any place within the State, of from any place within the State to 10 outside, for the purpose of working in any branch of labor, through or by means of knowingly false il representations, whether spoken, written, or advertised in printed form, conceming either (a) The kind, 12 character, or existence of such work; (b) The length oftimesuch work will last, or the compensation 13 therefor; (c) The sanitary or housing conditions relating to or surrounding the work; (d) The existence or 14 nonexistence of any strike, lockout, or other labor dispute affecting it and pending between the proposed 15 employer and the persons then or last engaged in the performance of the labor for which the employee is 16 sought. 17 72. Defendants, and each of them, v^dllfully made misrepresentations to the PiaintifFs and 18 Plaintiff class members regarding the kind, character, and existence of work, the length oftimethe work 19 will last, the compensations of the work, and the housing conditions relating to employment, including 20 but not limited to promises to provide and pay for certified training. Defendants further promised to pay 21 to PiaintifFs and those similarly situated per diem pay to cover food and lodging costs for their 22 relocation. PiaintifFs and Plaintiff class members reasonable relied on Defendants' misrepresentations to 23 their detriment. 24 73. As a direct and proximate result of Defendants' conduct, PiaintifFs and Plaintiff class 25 members have suffered harm in an amount in excess of the jurisdictional minimum of this Court. 26 74. The above described actions were perpetrated and/or ratified by a managing agent or 27 officer of Defendants. These acts were done with malice, fraud, oppression, and in reckless disregard of 28 Plaintiffs'rightsand therightsof those similarly situated. Further, said actions were despicable in 16 SECOND AMENDED COMPLAINT FOR DAMAGES 1 character and warrant the imposition of punitive damages in a sum sufficient to punish and deter 2 Defendants' future conduct. 3 Wherefore, Plaintiffs request relief as hereinafter prayed for. 4 TWELFTH CAUSE OF ACTION 5 VIOLATION OF BUSINESS AND PROFESSIONS CODE § 17200, et seq. 6 UNFAIR COMPETITION ACT 7 (Plaintiffs against All Defendants) 8 75. The allegations set forth in this Complaint are hereby realleged and incorporated by 9 reference. 10 76. Defendants' conduct, as alleged herein, has been and continues to be unfair, unlawful, 11 and harmful to Plaintiffs and Plaintiff class members. Defendants' activities, as alleged herein, are 12 violations of Califomia law and constitute unlawful business acts and practices in violation of Califomia 13 Business and Professions Code §§ 17200 et seq. 14 77. A violation of Cal. Bus. Prof code § 17200 may be predicated on the violation of any 15 state or federal law. In this case, Defendants had a policy and practice of failing to pay Plaintiffs and 16 Plaintiff class members all overtime hours worked, for missed rest and meal periods, for reimbursement 17 pay, and their final wages, which violates several Califomia Labor Code Sections and Industrial 18 Commission Welfare Wage Order provisions. 19 78. Plaintiffs and Plaintiff class members have been personally injured by Defendants 20 unlawful and unfair business practices including but not limited to sufferingfinancialloss. PiaintifFs and 21 Plaintiff class members are entitled to restitution of the wages withheld and retained by Defendants 22 during the defined period. 23 79. Further, the PiaintifFs and Plaintiff class members request the violations of the 24 Defendants alleged herein be enjoined, and other equitable relief as this court deems proper. 25 Wherefore, Plaintiffs request relief as hereinafter prayed for. 26 27 28 17 SECOND AMENDED COMPLAINT FOR DAMAGES 1 V. PRAYER FOR R E L I E F 2 WHEREFORE, PlaintifF(s) demand judgment against Defendants and any other Defendants who 3 may later be added as follows: 4 AS TO THE FIRST CAUSE OF ACTION 5 80. Penalties according to the following schedule: For any initial violation, one hundred 6 dollars ($100) for each aggrieved employee per pay period; For any subsequent violation, two hundred 7 dollars ($200) for each aggrieved employee per pay period; or otherwise enumerated for specific Labor 8 Code sections; 9 81. Reasonable Attomeys' Fees and costs pursuant to Labor Code Section 2699; 10 82. Wages as proved at trial; H 83. For prejudgment interest on all amounts claimed; 12 84. Injunctive and Declaratory Relief; 13 85. For such other and further relief as this Court may deem just and proper; 14 AS TO THE REMAINING CAUSES OF ACTION 15 86. For an Order certifying this action as a class action; 16 87. Compensatory Damages, including general and special damages, including but not 17 limited to wages; 18 88. For liquidated damages in the amount equal to the unpaid minimum wage and interest 19 thereon, from at least four (4) years prior to the filing of this action, according to proof; 20 89. For double damages pursuant to Labor Code Section 972; 21 90. For Attomeys' Fees and costs pursuant to all applicable statutes or legal principles; 22 91. For punitive damages; 23 92. For prejudgment interest on all amounts claimed; 24 93. For such other and further relief as the Court may deem just and proper. 25 Date:^MafglT 1^2020 ^ ^ V A G F ^ A M R PC 26 Scph 27 A T O C I O . . SAVAGE, 28 attomey for Plaintiff 18 SECOND AMENDED COMPLAINT FOR DAMAGES