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1 KYLE L. SCHRINER (State Bar No. 215853)
SCHRINER LAW FIRM, PC
2 1936 University Ave., Suite 110 ELECTRONICALLY
3 Berkeley, CA 94704 FILED
Superior Court of California,
Telephone: (415) 321-4924 County of San Francisco
4 Email: kyle@schrinerlaw.com 04/21/2023
Clerk of the Court
5 Attorneys for Defendants BY: ERNALYN BURA
THE WHOLE CART, LLC and Deputy Clerk
6 OFF THE GRID SERVICES, LLC
7
8
SUPERIOR COURT OF THE STATE OF CALIFORNIA
9
10 FOR THE COUNTY OF SAN FRANCISCO
11
BRIANA HINOJOSA, an individual, on Case No. CGC-22-603603
12 behalf of themself, and others persons
similarly-situated, INDEX OF EXHIBITS IN SUPPORT OF
13 DEFENDANTS’ MOTION TO STAY THIS
14 Plaintiff, ACTION
15 vs. HEARING
Date: June 2, 2023
16 THE WHOLE CART, LLC, a California Time: 9:00 a.m.
limited liability company; OFF THE GRID Dept.: 304
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SERVICES, LLC, a Delaware limited liability
18 corporation; and DOES 1-20, inclusive, Complaint filed: December 20, 2022
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Defendants.
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EXHIBITS IN SUPPORT OF MOTION TO STAY THIS ACTION; CASE NO. CGC-22-603603
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1 The Whole Cart, LLC and Off The Grid Services, LLC (the “Defendants”) submit this
2 Index of Exhibits in support of their motion to stay this lawsuit.
3 Exhibit Description Page #s
4 1 The complaint in Evans v. Off The Grid Services, LLC and The 3
5 Whole Cart, LLC, Alameda County Superior Court Case No.
6 22CV018144 (the “Alameda Lawsuit”).
7 2 Defendants’ answer to the complaint in the Alameda Lawsuit. 24
8 3 Defendants’ proposed first amended answer in the Alameda 34
9 Lawsuit (and stipulation for leave to file same).
10 4 The complaint herein i.e. in this lawsuit. 50
11 5 Defendants’ answer to the complaint herein. 73
12 6 Notice of related case filed in the Alameda Lawsuit re this lawsuit. 84
13 7 Notice of related case filed herein re the Alameda Lawsuit. 88
14 8 The final amended complaint in Reyes v. The Whole Cart, LLC and 92
15 Off The Grid Services, LLC, San Francisco County Superior Court
16 Case No. CGC-20-584861 (“Reyes”).
17 9 The judgment in Reyes. 122
18 10 Notice of related case filed herein re Reyes. 127
19 11 The final amended complaint in O’Neal-Roberts v. Off The Grid 131
20 Services, LLC and The Whole Cart, LLC, Alameda County
21 Superior Court Case No. RG20075270 (“O’Neal”).
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12 The judgment in O’Neal. 162
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Dated: April 21, 2023 SCHRINER LAW FIRM, PC
25
26 /s/ Kyle L. Schriner
27 Attorneys for Defendants
THE WHOLE CART, LLC and
28 OFF THE GRID SERVICES, LLC
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EXHIBITS IN SUPPORT OF MOTION TO STAY THIS ACTION; CASE NO. CGC-22-603603
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EXHIBIT 1
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EXHIBITS IN SUPPORT OF MOTION TO STAY THIS ACTION; CASE NO. CGC-22-603603
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DAVID G. SPIVAK (SBN 179684)
1
david@spivaklaw.com
2 CAROLINE TAHMASSIAN (SBN 285680)
caroline@spivaklaw.com
3 THE SPIVAK LAW FIRM
8605 Santa Monica Blvd.
4
PMB 42554
5 West Hollywood, CA 90069
Telephone: (213) 725-9094
6 Facsimile: (213) 634-2485
7
Attorneys for Plaintiff(s),
8 KIMBERLY EVANS, and all others similarly situated
(Additional attorneys for Plaintiff(s) on next page)
9
10 SUPERIOR COURT OF THE STATE OF CALIFORNIA
11 FOR THE COUNTY OF ALAMEDA
12 (UNLIMITED JURISDICTION)
13
KIMBERLY EVANS, on behalf of herself and Case No.
14 all others similarly situated, and the general
public, CLASS ACTION
15
16 Plaintiff(s), COMPLAINT FOR:
1. Failure to Provide Rest Breaks (Lab.
17 vs. Code §§ 226.7 and 1198);
2. Failure to Provide Meal Periods (Lab.
18
OFF THE GRID SERVICES, LLC, a California Code §§ 226.7, 512 and 1198);
19 limited liability company; THE WHOLE CART 3. Failure to Indemnify (Lab. Code §§
LLC, a California limited liability company; and 1198 and 2802);
20 DOES 1–50, inclusive, 4. Waiting Time Penalties (Lab.Code §
203); and
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Defendant(s). 5. Unfair Competition (Bus. & Prof. Code
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2 §§ 17200, et seq.
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2 JURY TRIAL DEMANDED
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Mail:
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8605SantaMonicaBl
PMB42554
WestHollywood,CA90069 27
(213)7259094Tel
(213)6342485Fax
SpivakLaw.com 28
Office:
15303VenturaBl
Ste900
ShermanOaks,CA91403
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Evans v. Off The Grid Services, LLC, et al. 4 Class Action Complaint
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ADDITIONAL ATTORNEY(S) FOR PLAINTIFF(S)
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2 WALTER L. HAINES (SBN 71075)
walter@uelglaw.com
3 UNITED EMPLOYEES LAW GROUP
4276 Katella Avenue
4
Suite 301
5 Los Alamitos, CA 90720
Telephone: (562) 256-1047
6 Facsimile: (562) 256-1006
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8605SantaMonicaBl
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(213)7259094Tel
(213)6342485Fax
SpivakLaw.com 28
Office:
15303VenturaBl
Ste900
ShermanOaks,CA91403
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Evans v. Off The Grid Services, LLC, et al. 5 Class Action Complaint
Doc ID: 517b6a19aa359146a654a75780a44e4bf255d2f5
Plaintiff, Kimberly Evans (hereafter “Plaintiff” or “Evans”), on behalf of herself and all
1
2 others similarly situated, complains and alleges as follows:
3
I. INTRODUCTION
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5 1. Plaintiff brings this class action for alleged violations of the California Labor
6 Code, Industrial Welfare Commission Order No. 5-2001 (hereafter “the Wage Order”), and the
7
California Business and Professions Code against Defendants Off The Grid Services, LLC, a
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California limited liability company, The Whole Cart LLC, a California limited liability company,
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and Does 1 through 50, inclusive (collectively “Defendants”).
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11 2. As set forth in more detail below, Plaintiff alleges that Defendants are liable to her
12 and other similarly situated workers for unpaid wages, statutory penalties, interest, and related
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relief. These claims are based on Defendants’ failures to:
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(A) Provide all meal periods;
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(B) Authorize and permit all rest breaks;
17 (C) Pay premium wages for unprovided meal periods;
18 (D) Pay premium wages for unprovided rest breaks;
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(E) Indemnify for necessary work-related expenditures; and
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(F) Timely pay wages upon termination of employment;
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2 Accordingly, Plaintiff now seeks to recover unpaid wages, interest, liquidated damages,
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2 restitution, statutory penalties, attorneys’ fees, costs, and related relief through this class action.
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II. THE PARTIES
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3. Plaintiff Kimberly Evans is a resident of California.
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8605SantaMonicaBl
PMB42554 4. Defendant Off The Grid Services, LLC is a limited liability company organized
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(213)7259094Tel
(213)6342485Fax
SpivakLaw.com 28 and existing under the laws of California and also a citizen of California based on Plaintiff’s
Office:
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Evans v. Off The Grid Services, LLC, et al. 6 Class Action Complaint
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information and belief.
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2 5. Defendant The Whole Cart LLC is a limited liability company organized and
3 existing under the laws of California and also a citizen of California based on Plaintiff’s
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information and belief.
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6. Plaintiff is ignorant of the true names, capacities, relationships, and extents of
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participation in the conduct alleged herein of the Defendants sued as DOES 1-50, inclusive, but
8 is informed and believes and thereon alleges that said Defendants are legally responsible for the
9 wrongful conduct alleged herein and therefore sues these Defendants by such fictitious names.
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Plaintiff will amend the Complaint to allege the true names and capacities of the DOE Defendants
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when ascertained.
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13 7. Plaintiff is informed and believes and thereon alleges that, at all relevant times
14 herein, all Defendants were the agents, employees and/or servants, masters or employers of the
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remaining defendants, and in doing the things hereinafter alleged, were acting or failing to act
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within the course and scope of such agency, employment, direction and control, and with the
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approval and ratification of each of the other Defendants.
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19 8. At all relevant times, in perpetrating the acts and omissions alleged herein,
20 Defendants, and each of them, acted pursuant to and in furtherance of a policy, practice, or a lack
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of a practice which resulted in Defendants not compensating Plaintiff and the other Class
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Members or otherwise complying with their rights in accordance with applicable California labor
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laws as alleged herein.
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2 9. At all relevant times, in perpetrating the acts and omissions alleged herein,
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26 Defendants and each of them acted pursuant to and in furtherance of a policy and/or practice, or
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lack thereof, which resulted in Defendants not paying Plaintiff and other members of the below-
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Office:
15303VenturaBl
Ste900
ShermanOaks,CA91403
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Evans v. Off The Grid Services, LLC, et al. 7 Class Action Complaint
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described class in accordance with applicable laws as alleged herein.
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2 III. CLASS ALLEGATIONS
3 10. This action has been brought and may be maintained as a class action pursuant to
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California Code of Civil Procedure section 382 because there is a well-defined community of
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interest among the persons who comprise the readily ascertainable class defined below and
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because Plaintiff is unaware of any difficulties likely to be encountered in managing this case as
8 a class action.
9 11. Class Definition: The Class is defined as follows: All persons Defendants
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employed in California as hourly and non-exempt, individuals performing work comparable to
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the aforementioned, compensated comparably to the aforementioned, and individuals in similar
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13 positions, at any time during the period beginning four years prior to the filing of this action and
14 ending on the date that final judgment is entered in this action (“Class” or “Class Members”).
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12. Reservation of Rights: Pursuant to Rule of Court 3.765(b), Plaintiff reserves the
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right to amend or modify the class definition with greater specificity, by further division into
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subclasses and/or by limitation to particular issues.
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19 13. Numerosity: The Class Members are so numerous that the individual joinder of
20 each individual Class Member is impractical. While Plaintiff does not currently know the exact
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number of Class Members, Plaintiff is informed and believes that the actual number exceeds the
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minimum required for numerosity under California laws.
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14. Commonality and Predominance: Common questions of law and fact exist as to
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2 all Class Members and predominate over any questions which affect only individual Class
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26 Members. These questions include, but are not limited to:
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Office:
15303VenturaBl
Ste900
ShermanOaks,CA91403
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Evans v. Off The Grid Services, LLC, et al. 8 Class Action Complaint
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A. Whether Defendants failed to provide the Class Members with all meal
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2 periods in compliance with California law;
3 B. Whether Defendants failed to authorize and permit the Class Members to
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take all rest periods in compliance with California law;
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C. Whether Defendants failed to indemnify the Class Members for the
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reasonable expenses they incurred during the course of performing their duties;
8 D. Whether Defendants willfully failed to provide the class with timely final
9 wages;
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E. Whether Defendants engaged in unfair competition within the meaning of
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Business and Professions Code sections 17200, et seq., with respect to the Class; and
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13 F. Whether Class Members are entitled to restitution of money or property
14 that Defendants may have acquired from them through alleged Labor Code violations.
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15. Typicality: Plaintiff’s claims are typical of the other Class Members’ claims.
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Plaintiff is informed and believes and thereon alleges that Defendants have a policy and/or
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practice, or lack thereof, which resulted in Defendants failing to comply with the California Labor
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19 Code, the Wage Order, and the Business and Professions Code.
20 16. Adequacy of Class Representative: Plaintiff is an adequate class representative
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in that she has no interests that are adverse to, or otherwise in conflict with, the interests of absent
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Class Members. Plaintiff is dedicated to vigorously prosecuting this action on behalf of Class
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Members. Plaintiff will fairly and adequately represent and protect the interests of Class
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2 Members.
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26 17. Adequacy of Class Counsel: Plaintiff’s counsel are adequate class counsel in that
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they have no known conflicts of interest with Plaintiff or absent Class Members, are experienced
WestHollywood,CA90069
(213)7259094Tel
(213)6342485Fax
SpivakLaw.com 28
Office:
15303VenturaBl
Ste900
ShermanOaks,CA91403
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Evans v. Off The Grid Services, LLC, et al. 9 Class Action Complaint
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in class action litigation, and are dedicated to vigorously prosecuting this action on behalf of
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2 Plaintiff and absent Class Members.
3 18. Superiority: A class action is vastly superior to other available means for fair and
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efficient adjudication of Class Members’ claims and would be beneficial to the parties and the
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Court. Class action treatment will allow a number of similarly situated persons to simultaneously
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and efficiently prosecute their common claims in a single forum without the unnecessary
8 duplication of effort and expense that numerous individual actions would entail. In addition, the
9 monetary amounts due to many individual Class Members are likely to be relatively small and
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would thus make it difficult, if not impossible, for individual Class Members to both seek and
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obtain relief. Moreover, a class action will serve an important public interest by permitting Class
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13 Members to effectively pursue the recovery of monies owed to them. Further, a class action will
14 prevent the potential for inconsistent or contradictory judgments inherent in individual litigation.
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IV. STATEMENT OF FACTS
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19. The Wage Order applies to “all persons employed in the public housekeeping
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industry whether paid on a time, piece rate, commission, or other basis.” Wage Order, § 1. The
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19 Wage Order defines "Public Housekeeping Industry" to mean
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any industry, business, or establishment which provides meals, housing, or
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maintenance services whether operated as a primary business or when incidental
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2 to other operations in an establishment not covered by an industry order of the
Commission, and includes, but is not limited to the following:
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(1) Restaurants, night clubs, taverns, bars, cocktail lounges, lunch counters,
cafeterias, boarding houses, clubs, and all similar establishments where
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2 food in either sold or liquid form is prepared and served to be consumed
on the premises;
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(2) Catering, banquet, box lunch service, and similar establishments which
prepare food for consumption on or off the premises;
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Evans v. Off The Grid Services, LLC, et al. 10 Class Action Complaint
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(3) Hotels, motels, apartment houses, rooming houses, camps, clubs, trailer
1
parks, office or loft buildings, and similar establishments offering rental
2 of living, business, or commercial quarters;
3 (4) Hospitals, sanitariums, rest homes, child nurseries, child care institutions,
homes for the aged, and similar establishments offering board or lodging
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in addition to medical, surgical, nursing, convalescent, aged, or child care;
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(5) Private schools, colleges, or universities, and similar establishments which
6 provide board or lodging in additional to educational facilities;
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(6) Establishments contracting for development, maintenance or cleaning of
8 grounds; maintenance or cleaning of facilities and/or quarters of
commercial units and living units; and
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10 (7) Establishments providing veterinary or other animal care services.
11 Wage Order, § 2(P). At all relevant times during the applicable limitations period, the Defendants,
12 Evans, and all of the Class Members were covered by the Wage Order because the Defendants
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operated, and Evans, and all of the Class Members, worked for one or more lunch counters.
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Accordingly, Evans and all of the other Class Members are entitled to the protections the Wage
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16 Order provides.
17 20. On approximately June 30, 2020, the Defendants began to employ Evans in
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Hayward in the position of hourly non-exempt truck supervisor. The Defendants continuously
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employed her in that capacity until on or about November 1, 2020 when her employment ended.
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21. At all relevant times, the Defendants issued wages to Evans and all of the other
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2 Class Members on a basis and paid them by the hour. At all relevant times, the Defendants
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2 classified Evans and all of the other Class Members as non-exempt employees entitled to the
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protections of the Labor Code and the Wage Order.
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22. At all relevant times, the Defendants failed to provide Evans and all of the other
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Class Members with all timely 30-minute, off-duty meal periods. The Defendants required Evans
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SpivakLaw.com 28 and The Class Members to travel, prepare and serve food with very little assistance and under
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Evans v. Off The Grid Services, LLC, et al. 11 Class Action Complaint
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tight time schedules that did not permit that to take duty free 30-minute meal periods within the
1
2 first five hours of work. The Defendants also failed to pay premium wages for days on which it
3 failed to provide Evans and all of the other Class Members with meal periods as required by law.
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23. At all relevant times, the Defendants failed to authorize and permit Evans and all
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of the other Class Members to take ten-minute, off-duty, paid rest breaks every four hours worked
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or major portion thereof. The Defendants required Evans and The Class Members to travel,
8 prepare and serve food with very little assistance and under tight time schedules that did not
9 permit that to take timely duty free 10-minute rest periods. The Defendants also failed to pay
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premium wages for days on which they failed to authorize and permit Evans and all of the other
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Class Members to take rest breaks as required by law.
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13 24. At all relevant times, the Defendants required Evans and all of the other Class
14 Members to incur certain business expenses in the course of performing their duties. The
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Defendants required Evans and all of the other Class Members to supply mobile phones to
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perform their job duties. However, the Defendants did not provide these items and did not
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reimburse Evans and the other Class Members for these items. The Defendants required Evans
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19 and The Class Members to use their personal mobile phones to photograph their work and to
20 record their start and stop times.
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25. At all relevant times, the Defendants also failed to timely pay Evans and all of the
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other Class Members all earned wages as described above during and at the conclusion of
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employment.
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2 26. At all relevant times, the Defendants failed to maintain accurate employee records
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26 of Evans and all of the other Class Members.
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Evans v. Off The Grid Services, LLC, et al. 12 Class Action Complaint
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27. For the reasons stated herein, Plaintiff alleges that as a result of Defendants’
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2 unlawful practices and policies, Plaintiff and the Class Members were:
3 A. Not provided with all off duty meal periods;
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B. Not authorized and permitted to take all rest break periods;
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C. Not paid one hour’s pay for each workday in which Defendants failed to
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authorize and permit them to take one or more timely rest periods;
8 D. Not paid one hour’s pay for each workday in which Defendants failed to
9 provide them with one or more timely meal periods;
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E. Not indemnified for all necessary business expenditures incurred during
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the discharge of their duties; and
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13 F. Not timely paid all earned and unpaid wages at the time their employment
14 ended.
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FIRST CAUSE OF ACTION
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FAILURE TO PROVIDE MEAL PERIODS
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Lab. Code §§ 226.7 and 512
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19 (By Plaintiff, on behalf of herself and the Class, against all Defendants)
20 28. Plaintiff incorporates all paragraphs of this complaint as if fully alleged herein.
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29. At all relevant times during the applicable limitations period, Plaintiff and the
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Class Members have been employees of Defendants and entitled to the benefits and protections
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of California Labor Code §§ 226.7, 512 and 1198, and the Wage Order.
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2 30. In relevant part, California Labor Code § 1198 states:
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The maximum hours of work and the standard conditions of labor fixed by the
commission shall be the maximum hours of work and the standard conditions of
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Evans v. Off The Grid Services, LLC, et al. 13 Class Action Complaint
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fixed by the order or under conditions of labor prohibited by the order is unlawful.
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2 31. In relevant part, In relevant part, California Labor Code § 512 states:
3
An employer shall not employ an employee for a work period of
4 more than five hours per day without providing the employee with
a meal period of not less than 30 minutes, except that if the total
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work period per day of the employee is no more than six hours, the
6 meal period may be waived by mutual consent of both the
employer and employee.
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An employer shall not employ an employee for a work period of
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more than 10 hours per day without providing the employee with
9 a second meal period of not less than 30 minutes, except that if the
total hours worked is no more than 12 hours, the second meal
10 period may be waived by mutual consent of the employer and the
employee only if the first meal period was not waived.
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12 32. In relevant part, Section 11 of the Wage Order states:
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Meal Periods
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(A) No employer shall employ any person for a work period of
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more than five (5) hours without a meal period of not less
16 than 30 minutes, except that when a work period of not
more than six (6) hours will complete the day’s work the
17 meal period may be waived by mutual consent of the
employee and the employee. Unless the employee is
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relieved of all duty during a 30 minute meal period, the
19 meal period shall be considered an ‘on duty’ meal period
and counted as time worked. An ‘on duty’ meal period shall
20 be permitted only when the nature of the work prevents an
employee from being relieved of all duty and when by
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written agreement between the parties an on-the-job paid
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2 meal period is agreed to. The written agreement shall state
that the employee may, in writing, revoke the agreement at
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2 any time.
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(B) If an employer fails to provide an employee a meal period
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2 in accordance with the applicable provisions of this Order,
the employer shall pay the employee one (1) hour of pay at
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26 the employee’s regular rate of compensation for each work
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day that the meal period is not provided.
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Evans v. Off The Grid Services, LLC, et al. 14 Class Action Complaint
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33. In relevant part, California Labor Code § 226.7 states:
1
2 (b) An employer shall not require an employee to work during
3 a meal or rest period mandated pursuant to an applicable
statute, or applicable regulation, standard, or order of the
Preview
1 KYLE L. SCHRINER (State Bar No. 215853) SCHRINER LAW FIRM, PC 2 1936 University Ave., Suite 110 ELECTRONICALLY 3 Berkeley, CA 94704 FILED Superior Court of California, Telephone: (415) 321-4924 County of San Francisco 4 Email: kyle@schrinerlaw.com 04/21/2023 Clerk of the Court 5 Attorneys for Defendants BY: ERNALYN BURA THE WHOLE CART, LLC and Deputy Clerk 6 OFF THE GRID SERVICES, LLC 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 10 FOR THE COUNTY OF SAN FRANCISCO 11 BRIANA HINOJOSA, an individual, on Case No. CGC-22-603603 12 behalf of themself, and others persons similarly-situated, INDEX OF EXHIBITS IN SUPPORT OF 13 DEFENDANTS’ MOTION TO STAY THIS 14 Plaintiff, ACTION 15 vs. HEARING Date: June 2, 2023 16 THE WHOLE CART, LLC, a California Time: 9:00 a.m. limited liability company; OFF THE GRID Dept.: 304 17 SERVICES, LLC, a Delaware limited liability 18 corporation; and DOES 1-20, inclusive, Complaint filed: December 20, 2022 19 Defendants. 20 21 22 23 24 25 26 27 28 1 EXHIBITS IN SUPPORT OF MOTION TO STAY THIS ACTION; CASE NO. CGC-22-603603 1 1 The Whole Cart, LLC and Off The Grid Services, LLC (the “Defendants”) submit this 2 Index of Exhibits in support of their motion to stay this lawsuit. 3 Exhibit Description Page #s 4 1 The complaint in Evans v. Off The Grid Services, LLC and The 3 5 Whole Cart, LLC, Alameda County Superior Court Case No. 6 22CV018144 (the “Alameda Lawsuit”). 7 2 Defendants’ answer to the complaint in the Alameda Lawsuit. 24 8 3 Defendants’ proposed first amended answer in the Alameda 34 9 Lawsuit (and stipulation for leave to file same). 10 4 The complaint herein i.e. in this lawsuit. 50 11 5 Defendants’ answer to the complaint herein. 73 12 6 Notice of related case filed in the Alameda Lawsuit re this lawsuit. 84 13 7 Notice of related case filed herein re the Alameda Lawsuit. 88 14 8 The final amended complaint in Reyes v. The Whole Cart, LLC and 92 15 Off The Grid Services, LLC, San Francisco County Superior Court 16 Case No. CGC-20-584861 (“Reyes”). 17 9 The judgment in Reyes. 122 18 10 Notice of related case filed herein re Reyes. 127 19 11 The final amended complaint in O’Neal-Roberts v. Off The Grid 131 20 Services, LLC and The Whole Cart, LLC, Alameda County 21 Superior Court Case No. RG20075270 (“O’Neal”). 22 12 The judgment in O’Neal. 162 23 24 Dated: April 21, 2023 SCHRINER LAW FIRM, PC 25 26 /s/ Kyle L. Schriner 27 Attorneys for Defendants THE WHOLE CART, LLC and 28 OFF THE GRID SERVICES, LLC 2 EXHIBITS IN SUPPORT OF MOTION TO STAY THIS ACTION; CASE NO. CGC-22-603603 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 EXHIBIT 1 25 26 27 28 3 EXHIBITS IN SUPPORT OF MOTION TO STAY THIS ACTION; CASE NO. CGC-22-603603 3 DAVID G. SPIVAK (SBN 179684) 1 david@spivaklaw.com 2 CAROLINE TAHMASSIAN (SBN 285680) caroline@spivaklaw.com 3 THE SPIVAK LAW FIRM 8605 Santa Monica Blvd. 4 PMB 42554 5 West Hollywood, CA 90069 Telephone: (213) 725-9094 6 Facsimile: (213) 634-2485 7 Attorneys for Plaintiff(s), 8 KIMBERLY EVANS, and all others similarly situated (Additional attorneys for Plaintiff(s) on next page) 9 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA 11 FOR THE COUNTY OF ALAMEDA 12 (UNLIMITED JURISDICTION) 13 KIMBERLY EVANS, on behalf of herself and Case No. 14 all others similarly situated, and the general public, CLASS ACTION 15 16 Plaintiff(s), COMPLAINT FOR: 1. Failure to Provide Rest Breaks (Lab. 17 vs. Code §§ 226.7 and 1198); 2. Failure to Provide Meal Periods (Lab. 18 OFF THE GRID SERVICES, LLC, a California Code §§ 226.7, 512 and 1198); 19 limited liability company; THE WHOLE CART 3. Failure to Indemnify (Lab. Code §§ LLC, a California limited liability company; and 1198 and 2802); 20 DOES 1–50, inclusive, 4. Waiting Time Penalties (Lab.Code § 203); and 21 Defendant(s). 5. Unfair Competition (Bus. & Prof. Code 22 2 §§ 17200, et seq. 23 2 JURY TRIAL DEMANDED 24 2 25 2 Mail: 26 8605SantaMonicaBl PMB42554 WestHollywood,CA90069 27 (213)7259094Tel (213)6342485Fax SpivakLaw.com 28 Office: 15303VenturaBl Ste900 ShermanOaks,CA91403 1 Evans v. Off The Grid Services, LLC, et al. 4 Class Action Complaint Doc ID: 517b6a19aa359146a654a75780a44e4bf255d2f5 ADDITIONAL ATTORNEY(S) FOR PLAINTIFF(S) 1 2 WALTER L. HAINES (SBN 71075) walter@uelglaw.com 3 UNITED EMPLOYEES LAW GROUP 4276 Katella Avenue 4 Suite 301 5 Los Alamitos, CA 90720 Telephone: (562) 256-1047 6 Facsimile: (562) 256-1006 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 2 23 2 24 2 25 2 Mail: 26 8605SantaMonicaBl PMB42554 WestHollywood,CA90069 27 (213)7259094Tel (213)6342485Fax SpivakLaw.com 28 Office: 15303VenturaBl Ste900 ShermanOaks,CA91403 2 Evans v. Off The Grid Services, LLC, et al. 5 Class Action Complaint Doc ID: 517b6a19aa359146a654a75780a44e4bf255d2f5 Plaintiff, Kimberly Evans (hereafter “Plaintiff” or “Evans”), on behalf of herself and all 1 2 others similarly situated, complains and alleges as follows: 3 I. INTRODUCTION 4 5 1. Plaintiff brings this class action for alleged violations of the California Labor 6 Code, Industrial Welfare Commission Order No. 5-2001 (hereafter “the Wage Order”), and the 7 California Business and Professions Code against Defendants Off The Grid Services, LLC, a 8 California limited liability company, The Whole Cart LLC, a California limited liability company, 9 and Does 1 through 50, inclusive (collectively “Defendants”). 10 11 2. As set forth in more detail below, Plaintiff alleges that Defendants are liable to her 12 and other similarly situated workers for unpaid wages, statutory penalties, interest, and related 13 relief. These claims are based on Defendants’ failures to: 14 (A) Provide all meal periods; 15 16 (B) Authorize and permit all rest breaks; 17 (C) Pay premium wages for unprovided meal periods; 18 (D) Pay premium wages for unprovided rest breaks; 19 (E) Indemnify for necessary work-related expenditures; and 20 (F) Timely pay wages upon termination of employment; 21 22 2 Accordingly, Plaintiff now seeks to recover unpaid wages, interest, liquidated damages, 23 2 restitution, statutory penalties, attorneys’ fees, costs, and related relief through this class action. 24 2 II. THE PARTIES 25 2 3. Plaintiff Kimberly Evans is a resident of California. Mail: 26 8605SantaMonicaBl PMB42554 4. Defendant Off The Grid Services, LLC is a limited liability company organized WestHollywood,CA90069 27 (213)7259094Tel (213)6342485Fax SpivakLaw.com 28 and existing under the laws of California and also a citizen of California based on Plaintiff’s Office: 15303VenturaBl Ste900 ShermanOaks,CA91403 3 Evans v. Off The Grid Services, LLC, et al. 6 Class Action Complaint Doc ID: 517b6a19aa359146a654a75780a44e4bf255d2f5 information and belief. 1 2 5. Defendant The Whole Cart LLC is a limited liability company organized and 3 existing under the laws of California and also a citizen of California based on Plaintiff’s 4 information and belief. 5 6. Plaintiff is ignorant of the true names, capacities, relationships, and extents of 6 7 participation in the conduct alleged herein of the Defendants sued as DOES 1-50, inclusive, but 8 is informed and believes and thereon alleges that said Defendants are legally responsible for the 9 wrongful conduct alleged herein and therefore sues these Defendants by such fictitious names. 10 Plaintiff will amend the Complaint to allege the true names and capacities of the DOE Defendants 11 when ascertained. 12 13 7. Plaintiff is informed and believes and thereon alleges that, at all relevant times 14 herein, all Defendants were the agents, employees and/or servants, masters or employers of the 15 remaining defendants, and in doing the things hereinafter alleged, were acting or failing to act 16 within the course and scope of such agency, employment, direction and control, and with the 17 approval and ratification of each of the other Defendants. 18 19 8. At all relevant times, in perpetrating the acts and omissions alleged herein, 20 Defendants, and each of them, acted pursuant to and in furtherance of a policy, practice, or a lack 21 of a practice which resulted in Defendants not compensating Plaintiff and the other Class 22 2 Members or otherwise complying with their rights in accordance with applicable California labor 23 2 24 2 laws as alleged herein. 25 2 9. At all relevant times, in perpetrating the acts and omissions alleged herein, Mail: 26 Defendants and each of them acted pursuant to and in furtherance of a policy and/or practice, or 8605SantaMonicaBl PMB42554 27 lack thereof, which resulted in Defendants not paying Plaintiff and other members of the below- WestHollywood,CA90069 (213)7259094Tel (213)6342485Fax SpivakLaw.com 28 Office: 15303VenturaBl Ste900 ShermanOaks,CA91403 4 Evans v. Off The Grid Services, LLC, et al. 7 Class Action Complaint Doc ID: 517b6a19aa359146a654a75780a44e4bf255d2f5 described class in accordance with applicable laws as alleged herein. 1 2 III. CLASS ALLEGATIONS 3 10. This action has been brought and may be maintained as a class action pursuant to 4 California Code of Civil Procedure section 382 because there is a well-defined community of 5 interest among the persons who comprise the readily ascertainable class defined below and 6 7 because Plaintiff is unaware of any difficulties likely to be encountered in managing this case as 8 a class action. 9 11. Class Definition: The Class is defined as follows: All persons Defendants 10 employed in California as hourly and non-exempt, individuals performing work comparable to 11 the aforementioned, compensated comparably to the aforementioned, and individuals in similar 12 13 positions, at any time during the period beginning four years prior to the filing of this action and 14 ending on the date that final judgment is entered in this action (“Class” or “Class Members”). 15 12. Reservation of Rights: Pursuant to Rule of Court 3.765(b), Plaintiff reserves the 16 right to amend or modify the class definition with greater specificity, by further division into 17 subclasses and/or by limitation to particular issues. 18 19 13. Numerosity: The Class Members are so numerous that the individual joinder of 20 each individual Class Member is impractical. While Plaintiff does not currently know the exact 21 number of Class Members, Plaintiff is informed and believes that the actual number exceeds the 22 2 minimum required for numerosity under California laws. 23 2 24 2 14. Commonality and Predominance: Common questions of law and fact exist as to 25 2 all Class Members and predominate over any questions which affect only individual Class Mail: 26 Members. These questions include, but are not limited to: 8605SantaMonicaBl PMB42554 27 /// WestHollywood,CA90069 (213)7259094Tel (213)6342485Fax SpivakLaw.com 28 Office: 15303VenturaBl Ste900 ShermanOaks,CA91403 5 Evans v. Off The Grid Services, LLC, et al. 8 Class Action Complaint Doc ID: 517b6a19aa359146a654a75780a44e4bf255d2f5 A. Whether Defendants failed to provide the Class Members with all meal 1 2 periods in compliance with California law; 3 B. Whether Defendants failed to authorize and permit the Class Members to 4 take all rest periods in compliance with California law; 5 C. Whether Defendants failed to indemnify the Class Members for the 6 7 reasonable expenses they incurred during the course of performing their duties; 8 D. Whether Defendants willfully failed to provide the class with timely final 9 wages; 10 E. Whether Defendants engaged in unfair competition within the meaning of 11 Business and Professions Code sections 17200, et seq., with respect to the Class; and 12 13 F. Whether Class Members are entitled to restitution of money or property 14 that Defendants may have acquired from them through alleged Labor Code violations. 15 15. Typicality: Plaintiff’s claims are typical of the other Class Members’ claims. 16 Plaintiff is informed and believes and thereon alleges that Defendants have a policy and/or 17 practice, or lack thereof, which resulted in Defendants failing to comply with the California Labor 18 19 Code, the Wage Order, and the Business and Professions Code. 20 16. Adequacy of Class Representative: Plaintiff is an adequate class representative 21 in that she has no interests that are adverse to, or otherwise in conflict with, the interests of absent 22 2 Class Members. Plaintiff is dedicated to vigorously prosecuting this action on behalf of Class 23 2 24 2 Members. Plaintiff will fairly and adequately represent and protect the interests of Class 25 2 Members. Mail: 26 17. Adequacy of Class Counsel: Plaintiff’s counsel are adequate class counsel in that 8605SantaMonicaBl PMB42554 27 they have no known conflicts of interest with Plaintiff or absent Class Members, are experienced WestHollywood,CA90069 (213)7259094Tel (213)6342485Fax SpivakLaw.com 28 Office: 15303VenturaBl Ste900 ShermanOaks,CA91403 6 Evans v. Off The Grid Services, LLC, et al. 9 Class Action Complaint Doc ID: 517b6a19aa359146a654a75780a44e4bf255d2f5 in class action litigation, and are dedicated to vigorously prosecuting this action on behalf of 1 2 Plaintiff and absent Class Members. 3 18. Superiority: A class action is vastly superior to other available means for fair and 4 efficient adjudication of Class Members’ claims and would be beneficial to the parties and the 5 Court. Class action treatment will allow a number of similarly situated persons to simultaneously 6 7 and efficiently prosecute their common claims in a single forum without the unnecessary 8 duplication of effort and expense that numerous individual actions would entail. In addition, the 9 monetary amounts due to many individual Class Members are likely to be relatively small and 10 would thus make it difficult, if not impossible, for individual Class Members to both seek and 11 obtain relief. Moreover, a class action will serve an important public interest by permitting Class 12 13 Members to effectively pursue the recovery of monies owed to them. Further, a class action will 14 prevent the potential for inconsistent or contradictory judgments inherent in individual litigation. 15 IV. STATEMENT OF FACTS 16 19. The Wage Order applies to “all persons employed in the public housekeeping 17 industry whether paid on a time, piece rate, commission, or other basis.” Wage Order, § 1. The 18 19 Wage Order defines "Public Housekeeping Industry" to mean 20 any industry, business, or establishment which provides meals, housing, or 21 maintenance services whether operated as a primary business or when incidental 22 2 to other operations in an establishment not covered by an industry order of the Commission, and includes, but is not limited to the following: 23 2 24 2 (1) Restaurants, night clubs, taverns, bars, cocktail lounges, lunch counters, cafeterias, boarding houses, clubs, and all similar establishments where 25 2 food in either sold or liquid form is prepared and served to be consumed on the premises; Mail: 26 8605SantaMonicaBl PMB42554 27 (2) Catering, banquet, box lunch service, and similar establishments which prepare food for consumption on or off the premises; WestHollywood,CA90069 (213)7259094Tel (213)6342485Fax SpivakLaw.com 28 Office: 15303VenturaBl Ste900 ShermanOaks,CA91403 7 Evans v. Off The Grid Services, LLC, et al. 10 Class Action Complaint Doc ID: 517b6a19aa359146a654a75780a44e4bf255d2f5 (3) Hotels, motels, apartment houses, rooming houses, camps, clubs, trailer 1 parks, office or loft buildings, and similar establishments offering rental 2 of living, business, or commercial quarters; 3 (4) Hospitals, sanitariums, rest homes, child nurseries, child care institutions, homes for the aged, and similar establishments offering board or lodging 4 in addition to medical, surgical, nursing, convalescent, aged, or child care; 5 (5) Private schools, colleges, or universities, and similar establishments which 6 provide board or lodging in additional to educational facilities; 7 (6) Establishments contracting for development, maintenance or cleaning of 8 grounds; maintenance or cleaning of facilities and/or quarters of commercial units and living units; and 9 10 (7) Establishments providing veterinary or other animal care services. 11 Wage Order, § 2(P). At all relevant times during the applicable limitations period, the Defendants, 12 Evans, and all of the Class Members were covered by the Wage Order because the Defendants 13 operated, and Evans, and all of the Class Members, worked for one or more lunch counters. 14 Accordingly, Evans and all of the other Class Members are entitled to the protections the Wage 15 16 Order provides. 17 20. On approximately June 30, 2020, the Defendants began to employ Evans in 18 Hayward in the position of hourly non-exempt truck supervisor. The Defendants continuously 19 employed her in that capacity until on or about November 1, 2020 when her employment ended. 20 21. At all relevant times, the Defendants issued wages to Evans and all of the other 21 22 2 Class Members on a basis and paid them by the hour. At all relevant times, the Defendants 23 2 classified Evans and all of the other Class Members as non-exempt employees entitled to the 24 2 protections of the Labor Code and the Wage Order. 25 2 22. At all relevant times, the Defendants failed to provide Evans and all of the other Mail: 26 8605SantaMonicaBl PMB42554 27 Class Members with all timely 30-minute, off-duty meal periods. The Defendants required Evans WestHollywood,CA90069 (213)7259094Tel (213)6342485Fax SpivakLaw.com 28 and The Class Members to travel, prepare and serve food with very little assistance and under Office: 15303VenturaBl Ste900 ShermanOaks,CA91403 8 Evans v. Off The Grid Services, LLC, et al. 11 Class Action Complaint Doc ID: 517b6a19aa359146a654a75780a44e4bf255d2f5 tight time schedules that did not permit that to take duty free 30-minute meal periods within the 1 2 first five hours of work. The Defendants also failed to pay premium wages for days on which it 3 failed to provide Evans and all of the other Class Members with meal periods as required by law. 4 23. At all relevant times, the Defendants failed to authorize and permit Evans and all 5 of the other Class Members to take ten-minute, off-duty, paid rest breaks every four hours worked 6 7 or major portion thereof. The Defendants required Evans and The Class Members to travel, 8 prepare and serve food with very little assistance and under tight time schedules that did not 9 permit that to take timely duty free 10-minute rest periods. The Defendants also failed to pay 10 premium wages for days on which they failed to authorize and permit Evans and all of the other 11 Class Members to take rest breaks as required by law. 12 13 24. At all relevant times, the Defendants required Evans and all of the other Class 14 Members to incur certain business expenses in the course of performing their duties. The 15 Defendants required Evans and all of the other Class Members to supply mobile phones to 16 perform their job duties. However, the Defendants did not provide these items and did not 17 reimburse Evans and the other Class Members for these items. The Defendants required Evans 18 19 and The Class Members to use their personal mobile phones to photograph their work and to 20 record their start and stop times. 21 25. At all relevant times, the Defendants also failed to timely pay Evans and all of the 22 2 other Class Members all earned wages as described above during and at the conclusion of 23 2 24 2 employment. 25 2 26. At all relevant times, the Defendants failed to maintain accurate employee records Mail: 26 of Evans and all of the other Class Members. 8605SantaMonicaBl PMB42554 27 /// WestHollywood,CA90069 (213)7259094Tel (213)6342485Fax SpivakLaw.com 28 Office: 15303VenturaBl Ste900 ShermanOaks,CA91403 9 Evans v. Off The Grid Services, LLC, et al. 12 Class Action Complaint Doc ID: 517b6a19aa359146a654a75780a44e4bf255d2f5 27. For the reasons stated herein, Plaintiff alleges that as a result of Defendants’ 1 2 unlawful practices and policies, Plaintiff and the Class Members were: 3 A. Not provided with all off duty meal periods; 4 B. Not authorized and permitted to take all rest break periods; 5 C. Not paid one hour’s pay for each workday in which Defendants failed to 6 7 authorize and permit them to take one or more timely rest periods; 8 D. Not paid one hour’s pay for each workday in which Defendants failed to 9 provide them with one or more timely meal periods; 10 E. Not indemnified for all necessary business expenditures incurred during 11 the discharge of their duties; and 12 13 F. Not timely paid all earned and unpaid wages at the time their employment 14 ended. 15 FIRST CAUSE OF ACTION 16 FAILURE TO PROVIDE MEAL PERIODS 17 Lab. Code §§ 226.7 and 512 18 19 (By Plaintiff, on behalf of herself and the Class, against all Defendants) 20 28. Plaintiff incorporates all paragraphs of this complaint as if fully alleged herein. 21 29. At all relevant times during the applicable limitations period, Plaintiff and the 22 2 Class Members have been employees of Defendants and entitled to the benefits and protections 23 2 24 2 of California Labor Code §§ 226.7, 512 and 1198, and the Wage Order. 25 2 30. In relevant part, California Labor Code § 1198 states: Mail: 26 8605SantaMonicaBl PMB42554 27 The maximum hours of work and the standard conditions of labor fixed by the commission shall be the maximum hours of work and the standard conditions of WestHollywood,CA90069 (213)7259094Tel (213)6342485Fax SpivakLaw.com 28 labor for employees. The employment of any employee for longer hours than those Office: 15303VenturaBl Ste900 ShermanOaks,CA91403 10 Evans v. Off The Grid Services, LLC, et al. 13 Class Action Complaint Doc ID: 517b6a19aa359146a654a75780a44e4bf255d2f5 fixed by the order or under conditions of labor prohibited by the order is unlawful. 1 2 31. In relevant part, In relevant part, California Labor Code § 512 states: 3 An employer shall not employ an employee for a work period of 4 more than five hours per day without providing the employee with a meal period of not less than 30 minutes, except that if the total 5 work period per day of the employee is no more than six hours, the 6 meal period may be waived by mutual consent of both the employer and employee. 7 An employer shall not employ an employee for a work period of 8 more than 10 hours per day without providing the employee with 9 a second meal period of not less than 30 minutes, except that if the total hours worked is no more than 12 hours, the second meal 10 period may be waived by mutual consent of the employer and the employee only if the first meal period was not waived. 11 12 32. In relevant part, Section 11 of the Wage Order states: 13 Meal Periods 14 (A) No employer shall employ any person for a work period of 15 more than five (5) hours without a meal period of not less 16 than 30 minutes, except that when a work period of not more than six (6) hours will complete the day’s work the 17 meal period may be waived by mutual consent of the employee and the employee. Unless the employee is 18 relieved of all duty during a 30 minute meal period, the 19 meal period shall be considered an ‘on duty’ meal period and counted as time worked. An ‘on duty’ meal period shall 20 be permitted only when the nature of the work prevents an employee from being relieved of all duty and when by 21 written agreement between the parties an on-the-job paid 22 2 meal period is agreed to. The written agreement shall state that the employee may, in writing, revoke the agreement at 23 2 any time. 24 2 (B) If an employer fails to provide an employee a meal period 25 2 in accordance with the applicable provisions of this Order, the employer shall pay the employee one (1) hour of pay at Mail: 26 the employee’s regular rate of compensation for each work 8605SantaMonicaBl PMB42554 27 day that the meal period is not provided. WestHollywood,CA90069 (213)7259094Tel (213)6342485Fax SpivakLaw.com 28 /// Office: 15303VenturaBl Ste900 ShermanOaks,CA91403 11 Evans v. Off The Grid Services, LLC, et al. 14 Class Action Complaint Doc ID: 517b6a19aa359146a654a75780a44e4bf255d2f5 33. In relevant part, California Labor Code § 226.7 states: 1 2 (b) An employer shall not require an employee to work during 3 a meal or rest period mandated pursuant to an applicable statute, or applicable regulation, standard, or order of the