Preview
Alejandro P. Gutierrez, SBN 107688
1
HATHAWAY, PERRETT, WEBSTER,
2 POWERS, CHRISMAN & GUTIERREZ
A Professional Corporation
3 5450 Telegraph Road, Suite 200
4 Ventura, CA 93006-3577
Telephone: (805) 644-7111
5 Facsimile: (805) 644-8269 FIILED/ENDUHSI
6 MAR 2 9 2019
Attomeys for Plaintiffs JOHN BOUDREAU,
7 individually, and on behalf of the Proposed Class
By; A. Macias_ .—
Deputy Clerk
8 Keith Jacoby
Bradley Schwan
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LITTLER MENDELSON, P.C.
10 2049 Century Park East
5"^ Floor
11 Los Angeles, CA 90067-3107
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Attomeys for Defendants,
13 PRIMERITUS FINANCIAL SERVICES, INC.
and CHRIS McGINNESS
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15 SUPERIOR COURT OF THE STATE OF CALIFORNIA
16 COUNTY OF SACRAMENTO (UNLIMITED-COMPLEX)
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18 JOHN BOUDREAU, an individual, on behalf CASENO.: 34-2018-00247272
19 of himself and all other similarly situated. Assigned to Dept. 14
20 Plaintiffs, STIPULATION AND [PROPOSED]
ORDER REGARDING L E A V E TO FILE
21 FIRST AMENDED COMPLAINT
vs.
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PRIMERITUS FINANCIAL SERVICES,
23 INC., a Delaware corporation; CHRIS
McGINNESS, an individual; and DOES 1
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through 10, inclusive.
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Defendants.
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STIPULATION AND [PROPOSED] ORDER
Respectfully submitted,
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2 DATED: March 15, 2019 HATHAWAY, PERRETT, WEBSTER,
POWERSrGHRISMAN & GUTIERREZ, APC
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By:
5 Alejandro P. Gutierrez
Brett B. McMurdo
6 Attomeys for Plaintiff, John Boudreau,
7 individually and on behalf of the Proposed Class
8 DATED: March ,2019 LITTLER MENDELSON, P.C.
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10 By:
Keith Jacoby
11 Bradley Schwan
Attomeys for Defendants Primeritus Financial
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Services, Inc. and Chris McGinness
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STIPULATION AND [PROPOSED] ORDER
Respectfully submitted,
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2 DATED: March 15, 2019 HATHAWAY, PERRETT, WEBSTER,
POWERiJreKRISMAN & GUTIERREZ, APC
3
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5 Alejandro P. Gutierrez
Brett B. McMurdo
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Attomeys for Plaintiff, John Boudreau,
7 individually and on behalf of the Proposed Class
8 DATED: Marc 2019 LITTLER MENDELSON, P.C.
9
10 By:
Jacoby
11 Schwan
12
"Attorneys for Defendants Primeritus Financial
Services, Inc. and Chris McGinness
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STIPULATION AND (PROPOSED] ORDER
1 Plaintiff JOHN BOUDREAU, an individual, on behalf of himself and all others similarly
2 sitiiated ("Plaintiff) and Defendants PRIMERITUS FINANCIAL SERVICES, INC., a Delaware
3 corporation, and CHRIS McGINNESS, an individual ("Defendants") (collectively, the "Parties"),
4
through their respective counsel, hereby agree and stipulate to the following:
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WHEREAS, on December 27, 2018, Plaintiff filed the initial complaint in this action;
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WHEREAS, Defendants filed its Answer to the complaint on or about Febmary 8, 2019;
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WHEREAS, Plaintiff now desires to file a First Amended Complaint in this action;
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WHEREAS, at various times in or about March 2019, Plaintiff contacted Defendants'
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counsel to meet and confer regarding Plaintiffs anticipated filing of the First Amended Complaint to
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include a Private Attomeys General Act (PAGA);
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WHEREAS, Plaintiffhas a right to file an amended complaint under Califomia Labor Code
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section 2699.3(a)(2)(C) to include a PAGA cause of action;
14 WHEREAS, after the Parties' meet and confer efforts, and to avoid motion practice, the
15 parties, through counsel, have stipulated to the filing of a First Amended Complaint; and;
16 WHEREAS, pursuant to Code of Civil Procedure Section 473, Plaintiff may file an amended
17 complaint with the opposing party's written consent or the Court's leave;
18 NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED between the
19 Parties that the Court may enter an order granting Plaintiff leave to file the First Amended Complaint
20 attached hereto as EXHIBIT A, as follows:
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Plaintiffs proposed First Amended Complaint shall be deemed filed and served upon the date
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of the Court granting the order; and
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Defendant shall have 30 days from the date the Court grants the Order to file an answer to
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otherwise respond to the First Amended Complaint.
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STIPULATION AND [PROPOSED] ORDER
PROOF OF SERVICE
1
2 1 am employed in the County of Ventura, State of Califomia. 1 am over the age of eighteen
years and not a party to the within action. My business address is 5450 Telegraph Road, Suite 200,
3 Venttira, CA 93003.
4
On the date below, I caused to be served a tme and correct copy of the foregoing document
5 described as STIPULATION AND PROPOSED ORDER RE LEAVE TO FILE FIRST AMENDED
COMPLAINT on the interested parties in this action as follows:
6
7 Keith A. Jacoby Attorneys for Defendants, Primeritus
Bradley E. Schwan
8 Littler Mendelson, PC Financial Services and Chris
2049 Century Park East, 5"^ Floor McGinness
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Los Angeles, CA 90067-3107
10 Tel: (310) 553-0308 / Fax: (310) 553-5583
kjacoby@littler.com/bschwan@littler.com
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Nathaniel H. Jenkins
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Littler Mendelson, PC
13 500 Capitol Mall, Suite 2000
Sacramento, CA 95814
14 Tel: (916) 830-7200 / Fax: (916) 561-0828
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njenkins@littler.com
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[X] BY M A I L : By placing a tme copy thereof enclosed in a sealed envelope addressed to the
17 addressee(s) listed above. I am "readily familiar" with the firm's practice of collection and
processing correspondence for mailing. Under that practice, it would be deposited with the U.3.
18 Postal Service on that same date with postage thereon fully prepaid at Ventura, Califomia, in the
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ordinary course of business. I am aware that on motion of the party served, service is presumec
invalid if postal cancellation date or postage meter date is more than one day after date of
20 deposit for mailing in affidavit.
21 ELECTRONIC MAIL: from
[X] _@hathawaylawfirm.com and addressed to the above liste d
22 parties.
23 [ ] BY OVERNIGHT DELIVERY: By sending a tme copy thereof by ovemight delivery servic^
to the addressee(s) listed above. The envelope was deposited in or with a facility regularly
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maintained by the overnight carrier with delivery fees paid or provided for.
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[X] (State) I declare under penalty of perjury under the laws of the State of Califomia that the
26 foregoing is tme and correct.
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Executed on March 15, 2019 at Ventura, Califomia.
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Edna Byerly
STIPULATION AND [PROPOSED] ORDER
EXHIBIT A
1 HATHAWAY, PERRETT, WEBSTER,
POWERS, CHRISMAN & GUTIERREZ, APC
2 Alejandro P. Gutierrez: SBN 107688
3. aguti errez@hathawayl awfi rm. com
5450 Telegraph Road, Suite 200
4 Venttira, CA 93003
Tel: (805) 644-7111; Fax: (805) 644-8296
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Attomeys for Plaintiff, JOHN BOUDREAU,
6 individually, and on behalf of the Proposed Class
7
8
SUPERIOR COURT OF THE STATE OF CALIFORNIA
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10 FOR THE COUNTY OF SACRAMENTO (UNLIMITED-COMPLEX)
11 JOHN BOUDREAU, an individual, on behalf CASE NO.: 34-2018-00247272
12 of himself and all others similarly situated. Assigned to: Dept. 14
Plaintiffs, CLASS-ACTION FIRST AMENDED
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COMPLAINT FOR:
14 vs.
1. Failure to Pay Minimum Wages in
15 PRIMERITUS FINANCIAL SERVICES, Violation ofLabor Code §§ 1194 and
INC., a Delaware corporation; CHRIS 226.2;
16 McGINNESS, an individual; and DOES 1 2. Failure to Timely Pay Wages in Violation
through 10, inclusive.
17 ofLabor Code §§ 201, 202 and 203;
Defendants 3. Failure to Authorize and Pemiit Rest
18 Periods in Violation of Labor Code
§ 226.7;
19 4. Failure to Provide Meal Periods and Pay
20 Meal Premiums in Violation of Labor
Code § 226.7;
21 5. Failure to Provide Accurate Itemized
Wage Statements in Violation of Labor
22 Code §§ 226 and 226.2; and
23 6. Violation of The Unfair Competition Law
Business & Professions Code §17200, et
24 seq.
7. For Civil Penalties Under the Private
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Attomey Generals Act of 2004 (Labor
26 Code § 2699 et seq.)
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FIRST AMENDED COMPLAINT - COMPLEX
1 Plaintiff John Boudreau ("Boudreau" or "Plaintiff), by and through his attomeys, brings this
2 action on behalf of himself and all other similarly situated non-exempt employees who are or were
3 employed in Califomia by Defendant PRIMERITUS FINANCIAL SERVICES, INC., a Delaware
4 corporation ("Primeritus" or "Defendanf); CHRIS McGINNESS, an individual; and DOES 1 through
5 10, inclusive (collectively, "Defendants") within the four-year period prior to the filing of this action.
6 Plaintiff hereby alleges, on information and belief, except for information based on personal
7 knowledge, which allegations are likely to have evidentiary support after ftirther investigation and
8 discovery, as follows:
9 NATURE OF ACTION
10 1. This Califomia-based class action is brought on behalf of Plaintiff and the Class of
11 Primeritus Investigators because of Defendants' systematic mistreatment of its employees in violation
12 of Califomia's wage and hour laws. Primeritus Financial Services, Inc., one of the largest repossession
13 management and skipttaceservices nationwide, profits off the backs of its non-exempt workforce by
14 routinely failing to pay minimum wages and mandated rest and meal break compensation.
15 2. Plaintiff is informed, believes, and based thereon alleges that Defendants, jointly and
16 severally, have acted intentionally and with deliberate indifference and conscious disregard to the
17 rights of all Investigators employed by Defendants in Califomia by failing to (1) pay minimum wages
18 in violation of Labor Code §§ 226.2 and 1194; (2) timely pay all wages and penalties owed post-
19 employee termination or resignation pursuant to Labor Code §§ 201, 202 and 203; (3) authorize and
20 permit rest periods in violation ofLabor Code §§ 226.7 and IWC Wage Order 4-2001; (4) provide
21 meal periods in violation ofLabor Code §§ 226.7 and 512 and IWC Wage Order 4-2001; (5) provide
22 accurate wage statements in violation of Labor Code §226; and by (6) violating of the Unfair
23 Competition Law ("UCL") pursuant to Business & Professions Code §17200, et seq., with
24 Defendants' actions subject to civil penalties under the Private Attomey Generals Act of 2004 (Labor
25 Code § 2699 et seq.).
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FIRST AMENDED COMPLAINT- COMPLEX
1 JURISDICTION AND VENUE
2 3. This class action is within the court's jurisdiction under Califomia Labor Code §§ 201,
3 202, 203, 226, 226.2, 226.7, 510, 512, and 1194, IWC Wage Order 4-2001 and the Califomia Unfair
4 Competition law (the "UCL"), Business and Professions Code § 17200, et seq.
4. Plaintiffis a citizen of Califomia because his domicile is in Califomia.
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5. Defendant Chris McGinness is a citizen of Califomia because his domicile is in
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Califomia.
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6. On information and belief, Defendant Primeritus is a Delaware corporation with its
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headquarters located in Nashville, Tennessee. Primeritus Financial Services, Inc. maintains an office
9 in El Dorado Hills, Califomia where it employs over 50 employees. Primeritus Financial Services,
^0 Inc.'s in-state activities are substantial, continuous and systematic and gaveriseto the liabilities sued
11 upon herein. This court has jurisdiction over Defendants because they conduct substantial business
12 in Califomia and have intentionally availed themselves of the laws and markets of Califomia through
23 the operation of their business in Califomia. Defendant Primeritus' contacts with the state are of such
a character that the maintenance of an action does not offend traditional notions of fair play and
substantial justice. International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945).
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7. The classes of persons whom Plaintiff seeks to represent are non-exempt employees
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who were and/or are employed by Defendant Primeritus in Califomia and, based on information and
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belief, more than ninety percent of the proposed class members are citizens of Califomia. The principal
18 injuries resulting from the alleged conduct of Defendants were and are incurring in Califomia.
^9 Plaintiffs are unaware of another class action with the same factual allegations against Defendants on
20 behalf of the same or other similarly-situated persons having been filed during the 4-year period
21 preceding the filing of this Complaint.
22 8. Venue is proper in this Court pursuant to Code of Civil Procedure §§395 and 395.5
23 because a significant portion ofthe conduct that gives rise to Defendants' liability, as alleged herein,
24 occurred in Sacramento County. Plaintiff was at all times a resident of Sacramento County,
25 Califomia, and was a victim of Defendants' wrongful acts and practices complained of herein.
2g Additionally, Defendants' conduct substantial business in Sacramento County.
9. Plaintiff is over eighteen years of age and at all relevant times is and was a resident of
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Sacramento County, Califomia. Mr. Boudreau, an Investigator providing skip tracing services for
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Defendants in the repossession process, has been a dedicated non-exempt employee of Primeritus (and
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FIRST AMENDED COMPLAINT- COMPLEX
1 its predecessor entities) in its El Dorado Hills, Califomia facilities since January 2010. Mr. Boudreau
2 has at all relevant times been paid an hourly base rate of $8.00, plus compensation on a "piece rate"
3 or "per task" basis for work performed during a pay period.
^ 10. During the Class Period, Defendants failed to compensate Plaintiff and the Class at the
minimum wage for all hours worked, including nonproductive work such as meetings, training and
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administrative tasks.
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11. During the Class Period, Defendants failed to pay Plaintiff and the Class all wages due
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and owing upon termination or resignation.
8 12. During the Class Period, Defendants knowingly and intentionally failed to compensate
9 Plaintiff and the Class for waiting time penalties of up to 30 days of pay for Plaintiff and the Class
10 Members at their regular rate of pay.
11 13. During the Class Period, Defendants failed to provide and/or effectively precluded
22 Plaintiff Boudreau and other similarly situated Class Members from taking and/or receiving daily
13 duty-free paid rest breaks.
24 14. Despite having denied Plaintiff Boudreau lawfully required paid rest periods,
15 Defendants failed to compensate Mr. Boudreau and other similarly situated employees for all premium
Ig wages for the non-compliant rest periods as set forth in the Labor Code.
17 15. Defendants knowingly and intentionally failed to compensate Plaintiff and the Class
Jg one additional hour of pay at the employees' regular rate of compensation for each work day that a
J9 complizint meal period was not provided.
20 16. Defendants knowingly and intentionally failed to provide Plaintiff Boudreau with
21 accurate, itemized wage statements, as required by Labor Code §§ 226 and 226.2. Among other
22 violations. Defendants are aware that the records provided to Mr. Boudreau failed to reflect rest break
23 periods that were not paid in compliance with Califomia Labor Code § 226.2 and the premium wages
24 owed for such, and the records provided to Mr. Boudreau failed to reflect the correct premium wages
25 owed for non-compliant meal breaks. Because Defendants failed to accurately report Plaintiff
25 Boudreau's rest and meal period premium wages, they violated Labor Code § 226 by failing to
27 accurately report gross and net wages eamed and total hours worked by Mr. Boudreau. Because of
2g the inaccurate wage statements, Mr. Boudreau has been harmed because his wages owed were not
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FIRST AMENDED COMPLAINT- COMPLEX
1 properly calculated and he was not made aware of what his tme wages were and how they were
2 calculated.
3 17. Because of Defendants' wage and hour violations. Plaintiff Boudreau has suffered
4 damages, and he therefore brings this class action to enforce compliance of the Labor Code and
5 recover wages, restitution, civil penalties, and attomeys' fees and costs.
6 18. Plaintiff Boudreau was, and is, a victim of Defendants' policies and/or practices
7 complained of herein, lost money and/or property, and has been deprived of therightsguaranteed to
8 him by Califomia Labor Code §§ 201,202, 203,226, 226.2,226.7, 512, 516, 558, and 1194; Cahfomia
9 Business and Professions Code § 17200, et seq., and Wage Order 4-2001, which sets employment
10 standards for professional, technical, clerical, mechanical and similar occupations.
11 Defendants
12 19. Plaintiff is informed, believes and thereon alleges that, at alltimespertinent hereto,
13 Defendant Primeritus Financial Services, Inc. is a Delaware corporation with its headquarters located
14 in Nashville, Tennessee. Primeritus Financial Services, Inc. operates an office in El Dorado Hills,
15 Califomia. At all times mentioned herein. Plaintiff and members of the putative class were employees
16 of Primeritus Financial Services, Inc. working as Investigators in the repossession process.
17 20. Plaintiff is informed, believes and thereon alleges that, at all times pertinent hereto,
18 Defendant Chris McGinness was the Vice President and General Manager of Operations at the
19 Primeritus location in El Dorado Hills, Califomia where Plaintiff and those similarly situated were
20 employed. Plaintiff is fiirther informed, believes and thereon alleges that, at all times pertinent hereto,
21 Chris McGinness was a citizen of the fomm state of Califomia.
22 21. Plaintiff is informed, believes and thereon alleges that, at all times pertinent
23 hereto. Defendants Primeritus, Chris McGinness, and Does 1 through 10, were the oWner(s),
24 director(s), officer(s), or managing agent(s) acting on behalf of employer, Primeritus, and who, in said
25 respective capacities and positions, are liable for the claims alleged herein pursuant to Labor Code §
26 558.1 in that they were and are an "other person" acting on behalf of Primeritus, who violated, or
27 caused to be violated, certain Labor Code sections stated herein.
28 22. Based on information and belief. Defendants had the authority to, directiy or indirectly,
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FIRST AMENDED COMPLAINT- COMPLEX
1 or through an agent or other person, employ or exercise control over Plaintiffs and the Classes' wages,
2 hours, and working conditions.
3 23. Based on information and belief, Defendants had knowledge of the wage-and-hour
4 violations alleged herein and each Defendant had the power to prevent the violations from occurring.
5 Having knowledge of the wage-and-hour violations set forth in this Complaint, Defendants could have
6 but failed to prevent the violations from occurring.
7 24. At all relevant times, Defendants did, and still do, transact and conduct business in the
8 State of Califomia, including, but not limited to, the County of Sacramento and with the jurisdiction
9 ofthis Court.
10 25. At all times mentioned in the causes of action alleged herein, each Defendant was an
11 agent and/or employee of each other Defendant. In doing the things alleged in the causes of action
12 stated herein, each Defendant was acting within the course and scope of this agency or emplojmient
13 and was acting with the consent, permission, and authorization of each of the remaining Defendants.
14 All actions of each defendant, as alleged in the causes of action stated herein, were ratified and
15 approved by every other defendant or its officers or managing agents.
16 26. Plaintiff does not know the tme names and capacities of Defendants DOES 1 through
17 10, inclusive, and therefore sues them by these fictitious names. Plaintiff will amend this Complaint
18 to include their names and capacities once they are known. Plaintiff is informed and believes, and on
19 that basis alleges, that each of the Defendants designated as a DOE is legally responsible in some
20 manner for the occurrences alleged in this Complaint, and unlawfully caused the injuries and damages
21 to Plaintiff and the Class as alleged in this Complaint.
22 PRIMERITUS' UNLAWFUL CONDUCT
23 Background
24 27. Primeritus is a national provider of repossession management and skip tracing services.
25 Primeritus operates a facility in El Dorado Hills, Califomia, and employs in excess of 50 members of
26 the Class at its Califomia facility.
27 28. The non-exempt hourly employee positions that constitute the Class include
28 Investigators who perform skip searches in the repossession process. As described in more
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FIRST AMENDED COMPLAINT- COMPLEX
1 particularity in paragraphs 50 through 52 below, the Class includes all hourly Califomia Employees,
2 meaning all non-exempt current and former employees of Primeritus who were employed as
3 Investigators by Primeritus in Califomia during the Class Period.
4 Failure to Pay Minimum Wages
5 29. Wage Order No. 4-2001, commonly known as Wage Order No. 4, provides that "Every
6 employer shall pay to each employee, on the established payday for the period, not less than the
7 applicable minimum wage for all hours worked in the payroll period, whether the remuneration is
8 measured by time, piece, commission, or otherwise." (Cal. Code Regs., tit. 8, § 11040, subd. (4)(B).
9 "Hours worked" is defined in subdivision 2(K) of the wage order as "the time during which an
10 employee is subject to the control of an employer, and includes all the time the employee is suffered
11 or permitted to work, whether or not required to do so." (Cal.Code Regs., tit. 8, § 11040, subd. (2)(K).
12 Thus, the obligation to pay minimum wages attaches to each and every separate hour worked during
13 the payroll period.
14 30. Further, Labor Code §226.2 applies to employees, such as Plaintiff and members of
15 the Class herein, who are compensated on a piece-rate basis for any work performed during a pay
16 period. Section 226.2 requires that piece-rate iemployees shall be compensated for rest periods and
17 other nonproductive time separately from any piece-rate compensation.
18 31. Pursuant to Labor Code § 226.2, piece-rate employees shall be compensated for rest
19 periods at a regular hourly rate that is no less than the higher of (i) an average hourly rate determined
20 by dividing the total compensation for the workweek, exclusive of compensation for rest and recovery
21 periods and any premium compensation for overtime, by the total hours worked during the workweek,
22 exclusive of rest and recovery periods; (ii) the minimum wage.
23 32. Defendants required Plaintiff and the Class to routinely work non-productive time,
24 including requiring Plaintiff and the Class to attend training and meetings. During the Class Period,
25 Defendants failed to separately pay Plaintiff and the Class Members compensation for nonproductive
26 time separate from piece-rate compensation at rates at or in excess of the applicable minimum wage,
27 in violation of Califomia Labor Code §§226.2 and 1194.
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FIRST AMENDED COMPLAINT- COMPLEX
1 Failure to Timely Pay Wages
2 33. Labor Code §201 provides, in relevant part, "If an employer discharges an employee,
3 the wages eamed and unpaid at the time of discharge are due and payable immediately." Lab. Code §
4 201 (a). Defendants did not pay immediately all wages eamed and unpaid upon employee termination.
5 Defendants have refiised and continue to refuse to pay said wages.
6 34. Labor Code §202 provides, in relevant part, "If an employee not having a written
7 contract for a definite period quits his or her employment, his or her wages shall become due and
8 payable not later than 72 hours thereafter, unless the employee has given 72 hours previous notice of
9 his or her intention to quit, in which case the employee has given 72 hours previous notice of his or
10 her intention to quit, in which case the employee is entitled to his or her wages at the time of quitting."
11 Lab. Code 202(a). Defendants did not pay immediately all wages eamed and unpaid to Plaintiff and
12 the Class Members upon resignation by the employees. Defendants have refiised and continue to
13 refiise to pay said wages.
14 35. Pursuant to Labor Code §203, Defendants have willfully failed to pay without
15 abatement or reduction, in accordance with Labor Code § 202 all wages of Plaintiff and the Class as
16 herein alleged. Plaintiff and the Class Members seek wages and waiting-time penalties pursuant to
17 Labor Code § 203. These penalties consist of up to 30 days of pay for Plaintiff and the Class Members
18 at their regular rate of pay. Defendants have refiised and continue to refuse to pay said penalties.
19 Rest Break Violations
20 36. Labor Code § 226.7 provides that employers cannot require employees to work during
21 breaks mandated by an order of the Industrial Welfare Commission. The IWC, in tum, has mandated
22 in Section 12(A) of the Wage Orders, including Wage Order 4-2001, that every employer shall
23 authorize and permit all employees to take rest periods at the rate of ten minutes per four hours worked
24 in the middle of each work period.
25 37. During the Class Period, Defendants failed to authorize and permit Plaintiff and
26 members of the Class with compliant rest periods as mandated by IWC Wage Order 4-2001.
27 38. Further, during the Class Period, Defendants failed to pay rest breaks in compliance
28 with Labor Code § 226.2.
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FIRST AMENDED COMPLAINT- COMPLEX
1 39. Both Labor Code Section 226.7 and IWC Wage Order 4-2001 require that i f an
2 employer fails to provide an employee a rest period in accordance with a state law or order of the
3 IWC, the employer shall pay the employee one additional hour of pay at the employee's regular rate
4 of compensation for each workday that the rest period is not provided. Section 226.7's "regular rate"
5 of compensation is not limited to Plaintiffs and the Class Members' base rate of compensation, but
6 includes other forms of qualifying compensation, such as their piece-rate pay. Alvarado v. Dart
1 Container Corp. of Cal., (2018) 4 Cal.5"' 542, 554, 562.
8 40. During the Class Period, Defendants failed to provide Plaintiff and the Class Members
9 the additional hour of pay at their regular rate of pay as required under Labor Code §§ 226.7 and 512.
10 Meal Break Premium Violations
11 41. Section 512 of the Labor Code requires that an employer may not employ an employee
12 for a work period of more than five hours per day without providing the employee with a meal period
13 of not less than 30 minutes and for a work period of more than 10 hours with a second meal period of
14 not less than 30 minutes.
15 42. Section 226.7 of the Labor Code mandates that i f an employer fails to provide an
16 employee with a compliant meal period, it shall pay the employee one additional hour of pay at the
17 employee's regular rate of compensation for each workday that the meal period is not provided.
18 43. Section 226.7's "regular rate" of compensation is not limited to Plaintiffs and the
19 Class Members' base rate of compensation, but includes other forms of qualifying compensation, such
20 as their piece-rate pay. Alvarado v. Dart Container Corp. of Cal., (2018) 4 Cal.5th 542, 554, 562.
21 44. During the Class Period, Defendants failed to compensate Plaintiff and the Class for
22 premiums wages owed for non-compliant meal breaks as set forth in Labor Code § 226.7. Specifically,
23 Defendants failed to pay Plaintiff and the Class one additional hour of pay at the employees' "regular
24 rate" of compensation for each workday a compliant meal break was not provided.
25 ///
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FIRST AMENDED COMPLAINT- COMPLEX
1 Wage Statement Violations
2 45. Defendants knowingly and intentionally failed to provide Plaintiff and the Class with
3 accurate, itemized wage statements, as required by Labor Code §§ 226 and 226.2. Because
4 Defendants failed to accurately report Plaintiffs and the Class's correct compensation for non-
5 productive time and rest and meal period premium wages, they violated Labor Code § 226, by failing
6 to accurately report gross and net wages eamed and total hours worked by Plaintiffs and the Class.
7 Because of the inaccurate wage statements, Plaintiffs and the Class have been harmed because their
8 wages owed were not properly calculated and they were never made aware of what their tme wages
9 were and how they were calculated.
10 46. Common evidence exists to prove Defendants' Labor Code violations; for example,
11 the Class' wage statements and time detail records (showing daily clock in and clock out times).
12 47. Because of Defendants' wage and hour violations. Plaintiffs and the Class have
13 suffered damages, and therefore bring this class action to enforce compliance of the Labor Code and
14 applicable IWC Wage Order, and to recover wages, restitution, civil penalties, and attomeys' fees and
15 costs.
16 CLASS ACTION ALLEGATIONS
17 48. Plaintiff realleges and incorporates herein by reference each allegation in the preceding
18 and subsequent paragraphs.
19 49. Plaintiff brings this action on behalf of himself and all other similarly situated persons
20 as a class action pursuant to Califomia Code of Civil Procedure §382.
21 50. As used herein, the following terms have the meanings set forth below:
22 i . "Califomia Employees" means all Non-Exempt current and former
23 employees of Primeritus who were employed by Primeritus in Califomia during the Class
24 Period who held the position of Investigator.
25 i i . "Non-Exempt" means employees that are not exempt from Califomia
26 wage and hour laws pursuant to Labor Code §515(a); 8 Cal. C. Regs. §11010, et seq.
21 iii. "Class Period" means the period within the four years prior to the
28 filing of this Complaint up through the date of final disposition of this action.
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FIRST AMENDED COMPLAINT- COMPLEX
1 iv. The "Class" means all "Califomia Employees."
2 51. Excluded from the Class are custodial employees, Defendants, their officers and
3 directors, families and legal representatives, heirs, successors, or assigns and any entity in which
4 Defendants have a controlling interest, and any Judge assigned to this case and their immediate
5 families.
6 52. The "Class" is comprised of the following Sub-Classes:
7 (a) Unpaid Minimum Wages Sub-Class: Those members of the
8 Class who eamed wages and/or compensation associated with their
9 employment with Defendants;
10 (b) Failure to Timely Pay Wages Sub-Class: Those members of the
11 Class who resigned or were terminated from employment and were
12 not timely paid wages upon resignation/termination;
13 (c) Rest Period Sub-Class: Those members of the Class who,
14 associated with their employment with Defendants, worked at least
15 4 hours a day or major fraction thereof and/or those members of the
16 putative Class who worked in excess of 6 hours a day;
17 (d) Meal Period Sub-Class: Those members of the Class who,
18 associated with their employment with Defendants, worked a period
19 of more than five hours and did not voluntarily waive their right to
20 meal periods; and
21 (e) Wage-Statement Sub-Class: Those members of the Class to
22 whom Defendants provided a wage statement at anytimeduring the
23 period of one year prior to the filing of the action, up to and
24 including the present.
25 53. Plaintiff reserves the right pursuant to state law, to amend or modify the respective
26 definitions of the Class and/or Sub-Classes to provide greater specificity and/or ftirther division into
27 subclasses or limitation to particular issues.
28
11
FIRST AMENDED COMPLAINT- COMPLEX
1 54. Plaintiff is informed, believes, and thereon alleges that the number of members of the
2 Class is in excess of fifty (50). Consequently, the Class is so numerous that joinder of all members
3 individually would be impractical.
4 55. Plaintiff is a member of the Non-Exempt employees comprising the Class and was
5 employed with Defendants at the Primeritus Califomia facility during the Class Period.
6 56. Plaintiffhas no conflicts of interest with is fellow members of the Class and have been
7 able, and will continue to be able, to fairly and adequately protect the interests of all members of the
8 putative Class.
9 57. Plaintiff is informed, believes and thereon alleges that Defendants' unlawful
10 employment policies and practices raise questions of fact common to the members of the Class,
11 including, whether Defendants:
12
13 (a) Failed to pay Plaintiff and members of the Class all of their eamed
14 wages and compensation, including applicable minimum wages;
15 (b) Failed to timely pay Plaintiff and members of the Class wages upon
16 resignation or termination;
17 (c) Failed to pay Plaintiff and members of the Class waiting-time
18 penalties pursuant to Labor Code §203, which consist of up to 30 days of
19 pay for Plaintiff and the Class Members at their regular rate of pay;
20 (d) Failed to provide Plaintiff and members of the Class compliant rest
21 breaks pursuant to the applicable laws;
22 (e) Failed to pay Plaintiff and members of the Class one hour of pay at
23 their regular rate of compensation for each non-compliant rest period;
24 (f) Failed to separately compensate Plaintiff and members of the Class
25 for rest periods and other nonproductive time at a regular hourly rate that
26 is no less than the higher of: (i) An average hourly rate determined by
27 dividing the total compensation for the workweek, exclusive of
28 compensation for rest and recover periods and any premium
12
FIRST AMENDED COMPLAINT- COMPLEX
1 compensation for overtime, by the total hours worked during the
2 workweek, exclusive of rest and recovery periods; and (ii) The applicable
3 minimum wage;
4 (g) Failed to provide Plaintiff and members of the Class compliant meal
5 periods in accordance with the applicable laws;
6 (h) Failed to pay Plaintiff and members of the Class one hour of pay at
7 their regular rate of compensation for each meal break which is not
8 provided; and
9 (i) Failed to ftimish to Plaintiff and members of the Class accurate,
10 itemized wage statements compliant with Labor Code §§ 226 and 226.2.
11 58. Plaintiff is informed, believes and thereon alleges that Defendants' unlawfiil
12 employment policies and practices raise numerous questions of law common to the members of the
13 Class, including, without limitation.
14 (a) Defendants' legal obligation to pay all members of the Class for rest
15 and recovery periods and other non-productive tinie separate from any piece-
16 rate compensation pursuant to Labor Code §226.2;
17 (b) Defendants' legal obligation to pay all members of the Class waiting
18 ^ time penalties pursuant to Labor Code § 203;
19 (c) Defendants' legal obligation to provide all members of the Class with
20 timely final wage payments upon employee resignation or termination
21 pursuant to Labor Code §§201 and 202;
22 (d) Defendants' legal obligation to provide members of the Class with
23 compliant paid rest periods pursuant to Labor Code § 226.7 and IWC Wage
24 Order 4-2001;
25 (e) Defendants' legal obligation to compensate members of the Class one
26 additional hour of pay at the employee's regular rate of compensation for each
27 workday that a compliant rest break is not provided pursuant to Labor Code §
28 226.7;
13
FIRST AMENDED COMPLAINT- COMPLEX
1 (f) Defendants' legal obligation to provide compliant meal periods under
2 Labor Code § 512 and IWC Wage Order 4-2001;
3 (g) Defendants' legal obligation to compensate members of the Class one
4 additional hour of pay at the employee's regular rate of compensation for each
5 workday that a compliant meal break is not provided pursuant to Labor Code §
6 226.7;
7 (h) Whether Defendants' wage statements were compliant with Labor Code
8 §§ 226 and 226.2 as to Plaintiff and members of the Class;
9 (i) What remedies, including restitution, compensatory damages, statutory
10 and civil penalties, additional wages and disgorgement of revenue, are
11 available under Califomia law to members of the Class who were not paid all
12 eamed wages, compensation and benefits; were not timely paid all eamed
13 minimum, regular and overtime wages, compensation and benefits; were not
14 timely paid waiting time penalties; and were not properly compensated for
15 meal and rest periods.
16 (j) The Class members' entitlement to be compensated for rest and
17 recovery periods and other nonproductive time at a regular hourly rate that is
18 no less than the higher o f (i) An average hourly rate determined by dividing
19 the total compensation for the workweek, exclusive of compensation for rest
20 and recovery periods and any premium compensation for overtime, by the total
21 hours worked during the workweek, exclusive of rest and recovery periods; (ii)
22 The applicable minimum wage;
23 (k) The Class members' entitlement to one hour of pay at the members'
24 regular rate of compensation for each meal period that Defendants did not
25 permit the Class members to take; and
26 (1) The requirements for a wage statement to be compliant with Labor Code
27 §§ 226.2 and 226.
28
14
FIRST AMENDED COMPLAINT- COMPLEX
1 59. Plaintiff is informed, believes and thereon alleges that his claims are typical of the
2 claims of the members of the Class because they encompass the same unlawfiil policies and practices
3 of Defendants; they arise out of the same alleged course of conduct by Defendants; are based upon
4 the same legal theories as the claims of the Class; and the legal issues raised under the Califomia state
5 laws as a result of Defendants' conduct apply equally to Plaintiffs and members of the Class
6 60. Plaintiff is informed, believes and thereon alleges that all members of the Class are
7 similarly situated in that, throughout their employment, they were subject to Defendants' violations
8 of Califomia labor law, including that Defendants maintained uniform policies and practices whereby
9 Defendants regularly and systematically:
10 (a) Failed to pay Plaintiff and members of the Class minimum wages and
11 compensation;
12 (b) Failed to timely pay wages due to Plaintiff and Class members upon
13 employee resignation or termination;
14 (c) Failed to pay waiting-time penalties to Plaintiff and Class members
15 pursuant to Labor Code §203, which consist bf up to 30 days of pay for Plaintiff
16 and the Class Members at their regular rate of pay;
17 (d) Failed to authorize and permit Plaintiff and Class Members to take
18 compliant rest periods;
19 (e) Failed to pay Plaintiff and members of the Class one hour of pay at their
20 regular rate of compensation for each workday a rest period was not provided;
21 (f) Failed to provide Plaintiff and members of the Class compliant meal
22 periods;
23 (g) Failed to pay Plaintiff and members of the Class one hour of pay at their
24 regular rate of compensation for each workday that a meal period was not
25 provided; and
26 (h) Failed to furnish to Plaintiff and members of the Class Labor Code §§226
27 and 226.2 compliant wage statements.
28
15
FIRST AMENDED COMPLAINT- COMPLEX
1 Such uniform policies and practices have affected each member of the Class, including
2 Plaintiff, in a similar fashion.
3 61. Plaintiff is informed, believes and thereon alleges that the prosecution of separate
4 actions by or against individual members of the Class would create a risk of substantial prejudice
5 because separate actions could result in the imposition of incompatible standards of conduct on the
6 party opposing class certification through inconsistent judgments or varying adjudications.
7 62. The questions of law and fact common to the members of the Class predominate over
8 any questions affecting only individual members, and a class action is superior to other available
9 methods for the fair and efficient adjudication of the controversy in that members of the Class have
10 little or no interest in individually controlling the prosecution of separate actions. The putative Class
11 member's individual claims are of a magnitude which make pursuit thereof, on an individual basis,
12 economically unfeasible and dissuade prosecution of such meritorious claims as the economic benefit
13 is far outweighed by the justified concem for retaliatory conduct on the part of Defendants and/or
14 concem for impaired fiiture job prospects as a result of the perceived stigma associated with having
15 advanced litigation against one's previous employer.
16 63. Plaintiff is informed, believes and thereon alleges that it is desirable to concentrate the
17 litigation of the claims in this court because all or substantially all of multiple employment activities
18 for which Plaintiffs and the Class members' claims arise took place within the venue of the above-
19 entitled court and Defendants otherwise conduct business in this jurisdiction.
20 64. Plaintiff is informed, believes and thereon alleges that this action is manageable as a
21 class action because, compared with any other method, such as consolidation of individual actions, a
22 class action is fairer and more efficient, avoids the potential for inconsistent findings of fact and/or
23 application of law, and would not pr
Preview
Alejandro P. Gutierrez, SBN 107688 1 HATHAWAY, PERRETT, WEBSTER, 2 POWERS, CHRISMAN & GUTIERREZ A Professional Corporation 3 5450 Telegraph Road, Suite 200 4 Ventura, CA 93006-3577 Telephone: (805) 644-7111 5 Facsimile: (805) 644-8269 FIILED/ENDUHSI 6 MAR 2 9 2019 Attomeys for Plaintiffs JOHN BOUDREAU, 7 individually, and on behalf of the Proposed Class By; A. Macias_ .— Deputy Clerk 8 Keith Jacoby Bradley Schwan 9 LITTLER MENDELSON, P.C. 10 2049 Century Park East 5"^ Floor 11 Los Angeles, CA 90067-3107 12 Attomeys for Defendants, 13 PRIMERITUS FINANCIAL SERVICES, INC. and CHRIS McGINNESS 14 15 SUPERIOR COURT OF THE STATE OF CALIFORNIA 16 COUNTY OF SACRAMENTO (UNLIMITED-COMPLEX) 17 18 JOHN BOUDREAU, an individual, on behalf CASENO.: 34-2018-00247272 19 of himself and all other similarly situated. Assigned to Dept. 14 20 Plaintiffs, STIPULATION AND [PROPOSED] ORDER REGARDING L E A V E TO FILE 21 FIRST AMENDED COMPLAINT vs. 22 PRIMERITUS FINANCIAL SERVICES, 23 INC., a Delaware corporation; CHRIS McGINNESS, an individual; and DOES 1 24 through 10, inclusive. 25 Defendants. 26 27 28 -1 STIPULATION AND [PROPOSED] ORDER Respectfully submitted, 1 2 DATED: March 15, 2019 HATHAWAY, PERRETT, WEBSTER, POWERSrGHRISMAN & GUTIERREZ, APC 3 4 By: 5 Alejandro P. Gutierrez Brett B. McMurdo 6 Attomeys for Plaintiff, John Boudreau, 7 individually and on behalf of the Proposed Class 8 DATED: March ,2019 LITTLER MENDELSON, P.C. 9 10 By: Keith Jacoby 11 Bradley Schwan Attomeys for Defendants Primeritus Financial 12 Services, Inc. and Chris McGinness 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 STIPULATION AND [PROPOSED] ORDER Respectfully submitted, 1 2 DATED: March 15, 2019 HATHAWAY, PERRETT, WEBSTER, POWERiJreKRISMAN & GUTIERREZ, APC 3 4 5 Alejandro P. Gutierrez Brett B. McMurdo 6 Attomeys for Plaintiff, John Boudreau, 7 individually and on behalf of the Proposed Class 8 DATED: Marc 2019 LITTLER MENDELSON, P.C. 9 10 By: Jacoby 11 Schwan 12 "Attorneys for Defendants Primeritus Financial Services, Inc. and Chris McGinness 13 [PDF is same as original] 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3 STIPULATION AND (PROPOSED] ORDER 1 Plaintiff JOHN BOUDREAU, an individual, on behalf of himself and all others similarly 2 sitiiated ("Plaintiff) and Defendants PRIMERITUS FINANCIAL SERVICES, INC., a Delaware 3 corporation, and CHRIS McGINNESS, an individual ("Defendants") (collectively, the "Parties"), 4 through their respective counsel, hereby agree and stipulate to the following: 5 WHEREAS, on December 27, 2018, Plaintiff filed the initial complaint in this action; 6 WHEREAS, Defendants filed its Answer to the complaint on or about Febmary 8, 2019; 7 WHEREAS, Plaintiff now desires to file a First Amended Complaint in this action; 8 WHEREAS, at various times in or about March 2019, Plaintiff contacted Defendants' 9 counsel to meet and confer regarding Plaintiffs anticipated filing of the First Amended Complaint to 10 include a Private Attomeys General Act (PAGA); 11 WHEREAS, Plaintiffhas a right to file an amended complaint under Califomia Labor Code 12 13 section 2699.3(a)(2)(C) to include a PAGA cause of action; 14 WHEREAS, after the Parties' meet and confer efforts, and to avoid motion practice, the 15 parties, through counsel, have stipulated to the filing of a First Amended Complaint; and; 16 WHEREAS, pursuant to Code of Civil Procedure Section 473, Plaintiff may file an amended 17 complaint with the opposing party's written consent or the Court's leave; 18 NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED between the 19 Parties that the Court may enter an order granting Plaintiff leave to file the First Amended Complaint 20 attached hereto as EXHIBIT A, as follows: 21 Plaintiffs proposed First Amended Complaint shall be deemed filed and served upon the date 22 of the Court granting the order; and 23 Defendant shall have 30 days from the date the Court grants the Order to file an answer to 24 otherwise respond to the First Amended Complaint. 25 /// 26 /// 27 28 -2- STIPULATION AND [PROPOSED] ORDER PROOF OF SERVICE 1 2 1 am employed in the County of Ventura, State of Califomia. 1 am over the age of eighteen years and not a party to the within action. My business address is 5450 Telegraph Road, Suite 200, 3 Venttira, CA 93003. 4 On the date below, I caused to be served a tme and correct copy of the foregoing document 5 described as STIPULATION AND PROPOSED ORDER RE LEAVE TO FILE FIRST AMENDED COMPLAINT on the interested parties in this action as follows: 6 7 Keith A. Jacoby Attorneys for Defendants, Primeritus Bradley E. Schwan 8 Littler Mendelson, PC Financial Services and Chris 2049 Century Park East, 5"^ Floor McGinness 9 Los Angeles, CA 90067-3107 10 Tel: (310) 553-0308 / Fax: (310) 553-5583 kjacoby@littler.com/bschwan@littler.com 11 Nathaniel H. Jenkins 12 Littler Mendelson, PC 13 500 Capitol Mall, Suite 2000 Sacramento, CA 95814 14 Tel: (916) 830-7200 / Fax: (916) 561-0828 15 njenkins@littler.com 16 [X] BY M A I L : By placing a tme copy thereof enclosed in a sealed envelope addressed to the 17 addressee(s) listed above. I am "readily familiar" with the firm's practice of collection and processing correspondence for mailing. Under that practice, it would be deposited with the U.3. 18 Postal Service on that same date with postage thereon fully prepaid at Ventura, Califomia, in the 19 ordinary course of business. I am aware that on motion of the party served, service is presumec invalid if postal cancellation date or postage meter date is more than one day after date of 20 deposit for mailing in affidavit. 21 ELECTRONIC MAIL: from [X] _@hathawaylawfirm.com and addressed to the above liste d 22 parties. 23 [ ] BY OVERNIGHT DELIVERY: By sending a tme copy thereof by ovemight delivery servic^ to the addressee(s) listed above. The envelope was deposited in or with a facility regularly 24 maintained by the overnight carrier with delivery fees paid or provided for. 25 [X] (State) I declare under penalty of perjury under the laws of the State of Califomia that the 26 foregoing is tme and correct. 27 Executed on March 15, 2019 at Ventura, Califomia. 28 Edna Byerly STIPULATION AND [PROPOSED] ORDER EXHIBIT A 1 HATHAWAY, PERRETT, WEBSTER, POWERS, CHRISMAN & GUTIERREZ, APC 2 Alejandro P. Gutierrez: SBN 107688 3. aguti errez@hathawayl awfi rm. com 5450 Telegraph Road, Suite 200 4 Venttira, CA 93003 Tel: (805) 644-7111; Fax: (805) 644-8296 5 Attomeys for Plaintiff, JOHN BOUDREAU, 6 individually, and on behalf of the Proposed Class 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 10 FOR THE COUNTY OF SACRAMENTO (UNLIMITED-COMPLEX) 11 JOHN BOUDREAU, an individual, on behalf CASE NO.: 34-2018-00247272 12 of himself and all others similarly situated. Assigned to: Dept. 14 Plaintiffs, CLASS-ACTION FIRST AMENDED 13 COMPLAINT FOR: 14 vs. 1. Failure to Pay Minimum Wages in 15 PRIMERITUS FINANCIAL SERVICES, Violation ofLabor Code §§ 1194 and INC., a Delaware corporation; CHRIS 226.2; 16 McGINNESS, an individual; and DOES 1 2. Failure to Timely Pay Wages in Violation through 10, inclusive. 17 ofLabor Code §§ 201, 202 and 203; Defendants 3. Failure to Authorize and Pemiit Rest 18 Periods in Violation of Labor Code § 226.7; 19 4. Failure to Provide Meal Periods and Pay 20 Meal Premiums in Violation of Labor Code § 226.7; 21 5. Failure to Provide Accurate Itemized Wage Statements in Violation of Labor 22 Code §§ 226 and 226.2; and 23 6. Violation of The Unfair Competition Law Business & Professions Code §17200, et 24 seq. 7. For Civil Penalties Under the Private 25 Attomey Generals Act of 2004 (Labor 26 Code § 2699 et seq.) 27 28 •1- FIRST AMENDED COMPLAINT - COMPLEX 1 Plaintiff John Boudreau ("Boudreau" or "Plaintiff), by and through his attomeys, brings this 2 action on behalf of himself and all other similarly situated non-exempt employees who are or were 3 employed in Califomia by Defendant PRIMERITUS FINANCIAL SERVICES, INC., a Delaware 4 corporation ("Primeritus" or "Defendanf); CHRIS McGINNESS, an individual; and DOES 1 through 5 10, inclusive (collectively, "Defendants") within the four-year period prior to the filing of this action. 6 Plaintiff hereby alleges, on information and belief, except for information based on personal 7 knowledge, which allegations are likely to have evidentiary support after ftirther investigation and 8 discovery, as follows: 9 NATURE OF ACTION 10 1. This Califomia-based class action is brought on behalf of Plaintiff and the Class of 11 Primeritus Investigators because of Defendants' systematic mistreatment of its employees in violation 12 of Califomia's wage and hour laws. Primeritus Financial Services, Inc., one of the largest repossession 13 management and skipttaceservices nationwide, profits off the backs of its non-exempt workforce by 14 routinely failing to pay minimum wages and mandated rest and meal break compensation. 15 2. Plaintiff is informed, believes, and based thereon alleges that Defendants, jointly and 16 severally, have acted intentionally and with deliberate indifference and conscious disregard to the 17 rights of all Investigators employed by Defendants in Califomia by failing to (1) pay minimum wages 18 in violation of Labor Code §§ 226.2 and 1194; (2) timely pay all wages and penalties owed post- 19 employee termination or resignation pursuant to Labor Code §§ 201, 202 and 203; (3) authorize and 20 permit rest periods in violation ofLabor Code §§ 226.7 and IWC Wage Order 4-2001; (4) provide 21 meal periods in violation ofLabor Code §§ 226.7 and 512 and IWC Wage Order 4-2001; (5) provide 22 accurate wage statements in violation of Labor Code §226; and by (6) violating of the Unfair 23 Competition Law ("UCL") pursuant to Business & Professions Code §17200, et seq., with 24 Defendants' actions subject to civil penalties under the Private Attomey Generals Act of 2004 (Labor 25 Code § 2699 et seq.). 26 27 /// 28 /// 2 FIRST AMENDED COMPLAINT- COMPLEX 1 JURISDICTION AND VENUE 2 3. This class action is within the court's jurisdiction under Califomia Labor Code §§ 201, 3 202, 203, 226, 226.2, 226.7, 510, 512, and 1194, IWC Wage Order 4-2001 and the Califomia Unfair 4 Competition law (the "UCL"), Business and Professions Code § 17200, et seq. 4. Plaintiffis a citizen of Califomia because his domicile is in Califomia. 5 5. Defendant Chris McGinness is a citizen of Califomia because his domicile is in 6 Califomia. 7 6. On information and belief, Defendant Primeritus is a Delaware corporation with its 8 headquarters located in Nashville, Tennessee. Primeritus Financial Services, Inc. maintains an office 9 in El Dorado Hills, Califomia where it employs over 50 employees. Primeritus Financial Services, ^0 Inc.'s in-state activities are substantial, continuous and systematic and gaveriseto the liabilities sued 11 upon herein. This court has jurisdiction over Defendants because they conduct substantial business 12 in Califomia and have intentionally availed themselves of the laws and markets of Califomia through 23 the operation of their business in Califomia. Defendant Primeritus' contacts with the state are of such a character that the maintenance of an action does not offend traditional notions of fair play and substantial justice. International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). 15 7. The classes of persons whom Plaintiff seeks to represent are non-exempt employees 16 who were and/or are employed by Defendant Primeritus in Califomia and, based on information and 17 belief, more than ninety percent of the proposed class members are citizens of Califomia. The principal 18 injuries resulting from the alleged conduct of Defendants were and are incurring in Califomia. ^9 Plaintiffs are unaware of another class action with the same factual allegations against Defendants on 20 behalf of the same or other similarly-situated persons having been filed during the 4-year period 21 preceding the filing of this Complaint. 22 8. Venue is proper in this Court pursuant to Code of Civil Procedure §§395 and 395.5 23 because a significant portion ofthe conduct that gives rise to Defendants' liability, as alleged herein, 24 occurred in Sacramento County. Plaintiff was at all times a resident of Sacramento County, 25 Califomia, and was a victim of Defendants' wrongful acts and practices complained of herein. 2g Additionally, Defendants' conduct substantial business in Sacramento County. 9. Plaintiff is over eighteen years of age and at all relevant times is and was a resident of 27 Sacramento County, Califomia. Mr. Boudreau, an Investigator providing skip tracing services for 28 Defendants in the repossession process, has been a dedicated non-exempt employee of Primeritus (and 3 FIRST AMENDED COMPLAINT- COMPLEX 1 its predecessor entities) in its El Dorado Hills, Califomia facilities since January 2010. Mr. Boudreau 2 has at all relevant times been paid an hourly base rate of $8.00, plus compensation on a "piece rate" 3 or "per task" basis for work performed during a pay period. ^ 10. During the Class Period, Defendants failed to compensate Plaintiff and the Class at the minimum wage for all hours worked, including nonproductive work such as meetings, training and 5 administrative tasks. 6 11. During the Class Period, Defendants failed to pay Plaintiff and the Class all wages due 7 and owing upon termination or resignation. 8 12. During the Class Period, Defendants knowingly and intentionally failed to compensate 9 Plaintiff and the Class for waiting time penalties of up to 30 days of pay for Plaintiff and the Class 10 Members at their regular rate of pay. 11 13. During the Class Period, Defendants failed to provide and/or effectively precluded 22 Plaintiff Boudreau and other similarly situated Class Members from taking and/or receiving daily 13 duty-free paid rest breaks. 24 14. Despite having denied Plaintiff Boudreau lawfully required paid rest periods, 15 Defendants failed to compensate Mr. Boudreau and other similarly situated employees for all premium Ig wages for the non-compliant rest periods as set forth in the Labor Code. 17 15. Defendants knowingly and intentionally failed to compensate Plaintiff and the Class Jg one additional hour of pay at the employees' regular rate of compensation for each work day that a J9 complizint meal period was not provided. 20 16. Defendants knowingly and intentionally failed to provide Plaintiff Boudreau with 21 accurate, itemized wage statements, as required by Labor Code §§ 226 and 226.2. Among other 22 violations. Defendants are aware that the records provided to Mr. Boudreau failed to reflect rest break 23 periods that were not paid in compliance with Califomia Labor Code § 226.2 and the premium wages 24 owed for such, and the records provided to Mr. Boudreau failed to reflect the correct premium wages 25 owed for non-compliant meal breaks. Because Defendants failed to accurately report Plaintiff 25 Boudreau's rest and meal period premium wages, they violated Labor Code § 226 by failing to 27 accurately report gross and net wages eamed and total hours worked by Mr. Boudreau. Because of 2g the inaccurate wage statements, Mr. Boudreau has been harmed because his wages owed were not 4 FIRST AMENDED COMPLAINT- COMPLEX 1 properly calculated and he was not made aware of what his tme wages were and how they were 2 calculated. 3 17. Because of Defendants' wage and hour violations. Plaintiff Boudreau has suffered 4 damages, and he therefore brings this class action to enforce compliance of the Labor Code and 5 recover wages, restitution, civil penalties, and attomeys' fees and costs. 6 18. Plaintiff Boudreau was, and is, a victim of Defendants' policies and/or practices 7 complained of herein, lost money and/or property, and has been deprived of therightsguaranteed to 8 him by Califomia Labor Code §§ 201,202, 203,226, 226.2,226.7, 512, 516, 558, and 1194; Cahfomia 9 Business and Professions Code § 17200, et seq., and Wage Order 4-2001, which sets employment 10 standards for professional, technical, clerical, mechanical and similar occupations. 11 Defendants 12 19. Plaintiff is informed, believes and thereon alleges that, at alltimespertinent hereto, 13 Defendant Primeritus Financial Services, Inc. is a Delaware corporation with its headquarters located 14 in Nashville, Tennessee. Primeritus Financial Services, Inc. operates an office in El Dorado Hills, 15 Califomia. At all times mentioned herein. Plaintiff and members of the putative class were employees 16 of Primeritus Financial Services, Inc. working as Investigators in the repossession process. 17 20. Plaintiff is informed, believes and thereon alleges that, at all times pertinent hereto, 18 Defendant Chris McGinness was the Vice President and General Manager of Operations at the 19 Primeritus location in El Dorado Hills, Califomia where Plaintiff and those similarly situated were 20 employed. Plaintiff is fiirther informed, believes and thereon alleges that, at all times pertinent hereto, 21 Chris McGinness was a citizen of the fomm state of Califomia. 22 21. Plaintiff is informed, believes and thereon alleges that, at all times pertinent 23 hereto. Defendants Primeritus, Chris McGinness, and Does 1 through 10, were the oWner(s), 24 director(s), officer(s), or managing agent(s) acting on behalf of employer, Primeritus, and who, in said 25 respective capacities and positions, are liable for the claims alleged herein pursuant to Labor Code § 26 558.1 in that they were and are an "other person" acting on behalf of Primeritus, who violated, or 27 caused to be violated, certain Labor Code sections stated herein. 28 22. Based on information and belief. Defendants had the authority to, directiy or indirectly, 5 FIRST AMENDED COMPLAINT- COMPLEX 1 or through an agent or other person, employ or exercise control over Plaintiffs and the Classes' wages, 2 hours, and working conditions. 3 23. Based on information and belief, Defendants had knowledge of the wage-and-hour 4 violations alleged herein and each Defendant had the power to prevent the violations from occurring. 5 Having knowledge of the wage-and-hour violations set forth in this Complaint, Defendants could have 6 but failed to prevent the violations from occurring. 7 24. At all relevant times, Defendants did, and still do, transact and conduct business in the 8 State of Califomia, including, but not limited to, the County of Sacramento and with the jurisdiction 9 ofthis Court. 10 25. At all times mentioned in the causes of action alleged herein, each Defendant was an 11 agent and/or employee of each other Defendant. In doing the things alleged in the causes of action 12 stated herein, each Defendant was acting within the course and scope of this agency or emplojmient 13 and was acting with the consent, permission, and authorization of each of the remaining Defendants. 14 All actions of each defendant, as alleged in the causes of action stated herein, were ratified and 15 approved by every other defendant or its officers or managing agents. 16 26. Plaintiff does not know the tme names and capacities of Defendants DOES 1 through 17 10, inclusive, and therefore sues them by these fictitious names. Plaintiff will amend this Complaint 18 to include their names and capacities once they are known. Plaintiff is informed and believes, and on 19 that basis alleges, that each of the Defendants designated as a DOE is legally responsible in some 20 manner for the occurrences alleged in this Complaint, and unlawfully caused the injuries and damages 21 to Plaintiff and the Class as alleged in this Complaint. 22 PRIMERITUS' UNLAWFUL CONDUCT 23 Background 24 27. Primeritus is a national provider of repossession management and skip tracing services. 25 Primeritus operates a facility in El Dorado Hills, Califomia, and employs in excess of 50 members of 26 the Class at its Califomia facility. 27 28. The non-exempt hourly employee positions that constitute the Class include 28 Investigators who perform skip searches in the repossession process. As described in more 6 FIRST AMENDED COMPLAINT- COMPLEX 1 particularity in paragraphs 50 through 52 below, the Class includes all hourly Califomia Employees, 2 meaning all non-exempt current and former employees of Primeritus who were employed as 3 Investigators by Primeritus in Califomia during the Class Period. 4 Failure to Pay Minimum Wages 5 29. Wage Order No. 4-2001, commonly known as Wage Order No. 4, provides that "Every 6 employer shall pay to each employee, on the established payday for the period, not less than the 7 applicable minimum wage for all hours worked in the payroll period, whether the remuneration is 8 measured by time, piece, commission, or otherwise." (Cal. Code Regs., tit. 8, § 11040, subd. (4)(B). 9 "Hours worked" is defined in subdivision 2(K) of the wage order as "the time during which an 10 employee is subject to the control of an employer, and includes all the time the employee is suffered 11 or permitted to work, whether or not required to do so." (Cal.Code Regs., tit. 8, § 11040, subd. (2)(K). 12 Thus, the obligation to pay minimum wages attaches to each and every separate hour worked during 13 the payroll period. 14 30. Further, Labor Code §226.2 applies to employees, such as Plaintiff and members of 15 the Class herein, who are compensated on a piece-rate basis for any work performed during a pay 16 period. Section 226.2 requires that piece-rate iemployees shall be compensated for rest periods and 17 other nonproductive time separately from any piece-rate compensation. 18 31. Pursuant to Labor Code § 226.2, piece-rate employees shall be compensated for rest 19 periods at a regular hourly rate that is no less than the higher of (i) an average hourly rate determined 20 by dividing the total compensation for the workweek, exclusive of compensation for rest and recovery 21 periods and any premium compensation for overtime, by the total hours worked during the workweek, 22 exclusive of rest and recovery periods; (ii) the minimum wage. 23 32. Defendants required Plaintiff and the Class to routinely work non-productive time, 24 including requiring Plaintiff and the Class to attend training and meetings. During the Class Period, 25 Defendants failed to separately pay Plaintiff and the Class Members compensation for nonproductive 26 time separate from piece-rate compensation at rates at or in excess of the applicable minimum wage, 27 in violation of Califomia Labor Code §§226.2 and 1194. 28 7 FIRST AMENDED COMPLAINT- COMPLEX 1 Failure to Timely Pay Wages 2 33. Labor Code §201 provides, in relevant part, "If an employer discharges an employee, 3 the wages eamed and unpaid at the time of discharge are due and payable immediately." Lab. Code § 4 201 (a). Defendants did not pay immediately all wages eamed and unpaid upon employee termination. 5 Defendants have refiised and continue to refuse to pay said wages. 6 34. Labor Code §202 provides, in relevant part, "If an employee not having a written 7 contract for a definite period quits his or her employment, his or her wages shall become due and 8 payable not later than 72 hours thereafter, unless the employee has given 72 hours previous notice of 9 his or her intention to quit, in which case the employee has given 72 hours previous notice of his or 10 her intention to quit, in which case the employee is entitled to his or her wages at the time of quitting." 11 Lab. Code 202(a). Defendants did not pay immediately all wages eamed and unpaid to Plaintiff and 12 the Class Members upon resignation by the employees. Defendants have refiised and continue to 13 refiise to pay said wages. 14 35. Pursuant to Labor Code §203, Defendants have willfully failed to pay without 15 abatement or reduction, in accordance with Labor Code § 202 all wages of Plaintiff and the Class as 16 herein alleged. Plaintiff and the Class Members seek wages and waiting-time penalties pursuant to 17 Labor Code § 203. These penalties consist of up to 30 days of pay for Plaintiff and the Class Members 18 at their regular rate of pay. Defendants have refiised and continue to refuse to pay said penalties. 19 Rest Break Violations 20 36. Labor Code § 226.7 provides that employers cannot require employees to work during 21 breaks mandated by an order of the Industrial Welfare Commission. The IWC, in tum, has mandated 22 in Section 12(A) of the Wage Orders, including Wage Order 4-2001, that every employer shall 23 authorize and permit all employees to take rest periods at the rate of ten minutes per four hours worked 24 in the middle of each work period. 25 37. During the Class Period, Defendants failed to authorize and permit Plaintiff and 26 members of the Class with compliant rest periods as mandated by IWC Wage Order 4-2001. 27 38. Further, during the Class Period, Defendants failed to pay rest breaks in compliance 28 with Labor Code § 226.2. 8 FIRST AMENDED COMPLAINT- COMPLEX 1 39. Both Labor Code Section 226.7 and IWC Wage Order 4-2001 require that i f an 2 employer fails to provide an employee a rest period in accordance with a state law or order of the 3 IWC, the employer shall pay the employee one additional hour of pay at the employee's regular rate 4 of compensation for each workday that the rest period is not provided. Section 226.7's "regular rate" 5 of compensation is not limited to Plaintiffs and the Class Members' base rate of compensation, but 6 includes other forms of qualifying compensation, such as their piece-rate pay. Alvarado v. Dart 1 Container Corp. of Cal., (2018) 4 Cal.5"' 542, 554, 562. 8 40. During the Class Period, Defendants failed to provide Plaintiff and the Class Members 9 the additional hour of pay at their regular rate of pay as required under Labor Code §§ 226.7 and 512. 10 Meal Break Premium Violations 11 41. Section 512 of the Labor Code requires that an employer may not employ an employee 12 for a work period of more than five hours per day without providing the employee with a meal period 13 of not less than 30 minutes and for a work period of more than 10 hours with a second meal period of 14 not less than 30 minutes. 15 42. Section 226.7 of the Labor Code mandates that i f an employer fails to provide an 16 employee with a compliant meal period, it shall pay the employee one additional hour of pay at the 17 employee's regular rate of compensation for each workday that the meal period is not provided. 18 43. Section 226.7's "regular rate" of compensation is not limited to Plaintiffs and the 19 Class Members' base rate of compensation, but includes other forms of qualifying compensation, such 20 as their piece-rate pay. Alvarado v. Dart Container Corp. of Cal., (2018) 4 Cal.5th 542, 554, 562. 21 44. During the Class Period, Defendants failed to compensate Plaintiff and the Class for 22 premiums wages owed for non-compliant meal breaks as set forth in Labor Code § 226.7. Specifically, 23 Defendants failed to pay Plaintiff and the Class one additional hour of pay at the employees' "regular 24 rate" of compensation for each workday a compliant meal break was not provided. 25 /// 26 /// 27 28 9 FIRST AMENDED COMPLAINT- COMPLEX 1 Wage Statement Violations 2 45. Defendants knowingly and intentionally failed to provide Plaintiff and the Class with 3 accurate, itemized wage statements, as required by Labor Code §§ 226 and 226.2. Because 4 Defendants failed to accurately report Plaintiffs and the Class's correct compensation for non- 5 productive time and rest and meal period premium wages, they violated Labor Code § 226, by failing 6 to accurately report gross and net wages eamed and total hours worked by Plaintiffs and the Class. 7 Because of the inaccurate wage statements, Plaintiffs and the Class have been harmed because their 8 wages owed were not properly calculated and they were never made aware of what their tme wages 9 were and how they were calculated. 10 46. Common evidence exists to prove Defendants' Labor Code violations; for example, 11 the Class' wage statements and time detail records (showing daily clock in and clock out times). 12 47. Because of Defendants' wage and hour violations. Plaintiffs and the Class have 13 suffered damages, and therefore bring this class action to enforce compliance of the Labor Code and 14 applicable IWC Wage Order, and to recover wages, restitution, civil penalties, and attomeys' fees and 15 costs. 16 CLASS ACTION ALLEGATIONS 17 48. Plaintiff realleges and incorporates herein by reference each allegation in the preceding 18 and subsequent paragraphs. 19 49. Plaintiff brings this action on behalf of himself and all other similarly situated persons 20 as a class action pursuant to Califomia Code of Civil Procedure §382. 21 50. As used herein, the following terms have the meanings set forth below: 22 i . "Califomia Employees" means all Non-Exempt current and former 23 employees of Primeritus who were employed by Primeritus in Califomia during the Class 24 Period who held the position of Investigator. 25 i i . "Non-Exempt" means employees that are not exempt from Califomia 26 wage and hour laws pursuant to Labor Code §515(a); 8 Cal. C. Regs. §11010, et seq. 21 iii. "Class Period" means the period within the four years prior to the 28 filing of this Complaint up through the date of final disposition of this action. 10 FIRST AMENDED COMPLAINT- COMPLEX 1 iv. The "Class" means all "Califomia Employees." 2 51. Excluded from the Class are custodial employees, Defendants, their officers and 3 directors, families and legal representatives, heirs, successors, or assigns and any entity in which 4 Defendants have a controlling interest, and any Judge assigned to this case and their immediate 5 families. 6 52. The "Class" is comprised of the following Sub-Classes: 7 (a) Unpaid Minimum Wages Sub-Class: Those members of the 8 Class who eamed wages and/or compensation associated with their 9 employment with Defendants; 10 (b) Failure to Timely Pay Wages Sub-Class: Those members of the 11 Class who resigned or were terminated from employment and were 12 not timely paid wages upon resignation/termination; 13 (c) Rest Period Sub-Class: Those members of the Class who, 14 associated with their employment with Defendants, worked at least 15 4 hours a day or major fraction thereof and/or those members of the 16 putative Class who worked in excess of 6 hours a day; 17 (d) Meal Period Sub-Class: Those members of the Class who, 18 associated with their employment with Defendants, worked a period 19 of more than five hours and did not voluntarily waive their right to 20 meal periods; and 21 (e) Wage-Statement Sub-Class: Those members of the Class to 22 whom Defendants provided a wage statement at anytimeduring the 23 period of one year prior to the filing of the action, up to and 24 including the present. 25 53. Plaintiff reserves the right pursuant to state law, to amend or modify the respective 26 definitions of the Class and/or Sub-Classes to provide greater specificity and/or ftirther division into 27 subclasses or limitation to particular issues. 28 11 FIRST AMENDED COMPLAINT- COMPLEX 1 54. Plaintiff is informed, believes, and thereon alleges that the number of members of the 2 Class is in excess of fifty (50). Consequently, the Class is so numerous that joinder of all members 3 individually would be impractical. 4 55. Plaintiff is a member of the Non-Exempt employees comprising the Class and was 5 employed with Defendants at the Primeritus Califomia facility during the Class Period. 6 56. Plaintiffhas no conflicts of interest with is fellow members of the Class and have been 7 able, and will continue to be able, to fairly and adequately protect the interests of all members of the 8 putative Class. 9 57. Plaintiff is informed, believes and thereon alleges that Defendants' unlawful 10 employment policies and practices raise questions of fact common to the members of the Class, 11 including, whether Defendants: 12 13 (a) Failed to pay Plaintiff and members of the Class all of their eamed 14 wages and compensation, including applicable minimum wages; 15 (b) Failed to timely pay Plaintiff and members of the Class wages upon 16 resignation or termination; 17 (c) Failed to pay Plaintiff and members of the Class waiting-time 18 penalties pursuant to Labor Code §203, which consist of up to 30 days of 19 pay for Plaintiff and the Class Members at their regular rate of pay; 20 (d) Failed to provide Plaintiff and members of the Class compliant rest 21 breaks pursuant to the applicable laws; 22 (e) Failed to pay Plaintiff and members of the Class one hour of pay at 23 their regular rate of compensation for each non-compliant rest period; 24 (f) Failed to separately compensate Plaintiff and members of the Class 25 for rest periods and other nonproductive time at a regular hourly rate that 26 is no less than the higher of: (i) An average hourly rate determined by 27 dividing the total compensation for the workweek, exclusive of 28 compensation for rest and recover periods and any premium 12 FIRST AMENDED COMPLAINT- COMPLEX 1 compensation for overtime, by the total hours worked during the 2 workweek, exclusive of rest and recovery periods; and (ii) The applicable 3 minimum wage; 4 (g) Failed to provide Plaintiff and members of the Class compliant meal 5 periods in accordance with the applicable laws; 6 (h) Failed to pay Plaintiff and members of the Class one hour of pay at 7 their regular rate of compensation for each meal break which is not 8 provided; and 9 (i) Failed to ftimish to Plaintiff and members of the Class accurate, 10 itemized wage statements compliant with Labor Code §§ 226 and 226.2. 11 58. Plaintiff is informed, believes and thereon alleges that Defendants' unlawfiil 12 employment policies and practices raise numerous questions of law common to the members of the 13 Class, including, without limitation. 14 (a) Defendants' legal obligation to pay all members of the Class for rest 15 and recovery periods and other non-productive tinie separate from any piece- 16 rate compensation pursuant to Labor Code §226.2; 17 (b) Defendants' legal obligation to pay all members of the Class waiting 18 ^ time penalties pursuant to Labor Code § 203; 19 (c) Defendants' legal obligation to provide all members of the Class with 20 timely final wage payments upon employee resignation or termination 21 pursuant to Labor Code §§201 and 202; 22 (d) Defendants' legal obligation to provide members of the Class with 23 compliant paid rest periods pursuant to Labor Code § 226.7 and IWC Wage 24 Order 4-2001; 25 (e) Defendants' legal obligation to compensate members of the Class one 26 additional hour of pay at the employee's regular rate of compensation for each 27 workday that a compliant rest break is not provided pursuant to Labor Code § 28 226.7; 13 FIRST AMENDED COMPLAINT- COMPLEX 1 (f) Defendants' legal obligation to provide compliant meal periods under 2 Labor Code § 512 and IWC Wage Order 4-2001; 3 (g) Defendants' legal obligation to compensate members of the Class one 4 additional hour of pay at the employee's regular rate of compensation for each 5 workday that a compliant meal break is not provided pursuant to Labor Code § 6 226.7; 7 (h) Whether Defendants' wage statements were compliant with Labor Code 8 §§ 226 and 226.2 as to Plaintiff and members of the Class; 9 (i) What remedies, including restitution, compensatory damages, statutory 10 and civil penalties, additional wages and disgorgement of revenue, are 11 available under Califomia law to members of the Class who were not paid all 12 eamed wages, compensation and benefits; were not timely paid all eamed 13 minimum, regular and overtime wages, compensation and benefits; were not 14 timely paid waiting time penalties; and were not properly compensated for 15 meal and rest periods. 16 (j) The Class members' entitlement to be compensated for rest and 17 recovery periods and other nonproductive time at a regular hourly rate that is 18 no less than the higher o f (i) An average hourly rate determined by dividing 19 the total compensation for the workweek, exclusive of compensation for rest 20 and recovery periods and any premium compensation for overtime, by the total 21 hours worked during the workweek, exclusive of rest and recovery periods; (ii) 22 The applicable minimum wage; 23 (k) The Class members' entitlement to one hour of pay at the members' 24 regular rate of compensation for each meal period that Defendants did not 25 permit the Class members to take; and 26 (1) The requirements for a wage statement to be compliant with Labor Code 27 §§ 226.2 and 226. 28 14 FIRST AMENDED COMPLAINT- COMPLEX 1 59. Plaintiff is informed, believes and thereon alleges that his claims are typical of the 2 claims of the members of the Class because they encompass the same unlawfiil policies and practices 3 of Defendants; they arise out of the same alleged course of conduct by Defendants; are based upon 4 the same legal theories as the claims of the Class; and the legal issues raised under the Califomia state 5 laws as a result of Defendants' conduct apply equally to Plaintiffs and members of the Class 6 60. Plaintiff is informed, believes and thereon alleges that all members of the Class are 7 similarly situated in that, throughout their employment, they were subject to Defendants' violations 8 of Califomia labor law, including that Defendants maintained uniform policies and practices whereby 9 Defendants regularly and systematically: 10 (a) Failed to pay Plaintiff and members of the Class minimum wages and 11 compensation; 12 (b) Failed to timely pay wages due to Plaintiff and Class members upon 13 employee resignation or termination; 14 (c) Failed to pay waiting-time penalties to Plaintiff and Class members 15 pursuant to Labor Code §203, which consist bf up to 30 days of pay for Plaintiff 16 and the Class Members at their regular rate of pay; 17 (d) Failed to authorize and permit Plaintiff and Class Members to take 18 compliant rest periods; 19 (e) Failed to pay Plaintiff and members of the Class one hour of pay at their 20 regular rate of compensation for each workday a rest period was not provided; 21 (f) Failed to provide Plaintiff and members of the Class compliant meal 22 periods; 23 (g) Failed to pay Plaintiff and members of the Class one hour of pay at their 24 regular rate of compensation for each workday that a meal period was not 25 provided; and 26 (h) Failed to furnish to Plaintiff and members of the Class Labor Code §§226 27 and 226.2 compliant wage statements. 28 15 FIRST AMENDED COMPLAINT- COMPLEX 1 Such uniform policies and practices have affected each member of the Class, including 2 Plaintiff, in a similar fashion. 3 61. Plaintiff is informed, believes and thereon alleges that the prosecution of separate 4 actions by or against individual members of the Class would create a risk of substantial prejudice 5 because separate actions could result in the imposition of incompatible standards of conduct on the 6 party opposing class certification through inconsistent judgments or varying adjudications. 7 62. The questions of law and fact common to the members of the Class predominate over 8 any questions affecting only individual members, and a class action is superior to other available 9 methods for the fair and efficient adjudication of the controversy in that members of the Class have 10 little or no interest in individually controlling the prosecution of separate actions. The putative Class 11 member's individual claims are of a magnitude which make pursuit thereof, on an individual basis, 12 economically unfeasible and dissuade prosecution of such meritorious claims as the economic benefit 13 is far outweighed by the justified concem for retaliatory conduct on the part of Defendants and/or 14 concem for impaired fiiture job prospects as a result of the perceived stigma associated with having 15 advanced litigation against one's previous employer. 16 63. Plaintiff is informed, believes and thereon alleges that it is desirable to concentrate the 17 litigation of the claims in this court because all or substantially all of multiple employment activities 18 for which Plaintiffs and the Class members' claims arise took place within the venue of the above- 19 entitled court and Defendants otherwise conduct business in this jurisdiction. 20 64. Plaintiff is informed, believes and thereon alleges that this action is manageable as a 21 class action because, compared with any other method, such as consolidation of individual actions, a 22 class action is fairer and more efficient, avoids the potential for inconsistent findings of fact and/or 23 application of law, and would not pr