Preview
1
JAMES HAWKINS APLC
2 James R. Hawkins, Esq. (#192925)
Gregory Mauro, Esq. (#222239)
3 Michael Calvo, Esq. (#314986)
Lauren Falk, Esq. (#316893)
4 Ava Issary, Esq. (#342252)
9880 Research Drive, Suite 200
5 Irvine, CA 92618
Tel.: (949) 387-7200
6 Fax: (949) 387-6676
Email: James@jameshawkinsaplc.com
7 Email: Greg@jameshawkinsaplc.com
Email: Michael@jameshawkinsaplc.com
8 Email: Lauren@jameshawkinsaplc.com
Email: Ava@jameshawkinsaplc.com
9
Attorneys for Plaintiff SCOTT BUNDY,
10 Individually and on behalf of all others similarly situated,
11 SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN MATEO
12
13 SCOTT BUNDY, individually and on behalf CASE NO.:
of all others similarly situated, CLASS ACTION COMPLAINT
14 PURSUANT TO CALIFORNIA CODE OF
CIVIL PROCEDURE §382 FOR:
15 Plaintiff., 1. Failure to Pay Timely Wages Required
by Labor Code § 203;
16 v. 2. Issuing Payment of Wages in the Form
of a Non-Labor Code-Compliant
17 Instrument Pursuant to Labor Code 212
KELLY-MOORE PAINT COMPANY, INC.,
and 213
18 a California Corporation; and DOES 1-50, 3. Violation of Business & Professions
inclusive, Code § 17200, et seq.
19 4. Violation of Labor Code § 1400, et seq.
Defendant.
20 DEMAND FOR JURY TRIAL
21
22
23
24
25
26
27
28
CLASS ACTION COMPLAINT
1 Plaintiff SCOTT BUNDY (“Plaintiff”), individually and on behalf of all others similarly
2 situated (hereinafter collectively referred to as the “Class” or “Class Member”), hereby files this
3 Complaint against Defendant KELLY-MOORE PAINT COMPANY, INC., a California
4 Corporation and DOES 1-50, inclusive, (“Defendant”) and alleges on information and belief as
5 follows:
6 I. JURISDICTION AND VENUE
7 1. This class action is brought pursuant to California Code of Civil Procedure § 382.
8 The monetary damages and restitution sought by Plaintiff exceed the minimum jurisdiction limits
9 of the California Superior Court and will be established according to proof at trial.
10 2. This Court has jurisdiction over this action pursuant to the California Constitution
11 Article VI §10, which grants the California Superior Court original jurisdiction in all causes
12 except those given by statute to other courts. The statutes under which this action is brought do
13 not give jurisdiction to any other court.
14 3. This Court has jurisdiction over Defendant because, upon information and belief,
15 each Defendant either has sufficient minimum contacts in California, or otherwise intentionally
16 avails itself of the California market so as to render the exercise of jurisdiction over it by the
17 California Courts consistent with traditional notions of fair play and substantial justice.
18 4. The California Superior Court also has jurisdiction in this matter because the
19 individual claims of the members of the Classes herein are under the seventy-five thousand dollars
20 ($75,000.00) jurisdictional threshold for Federal Court and the aggregate claim, including attorneys’
21 fees, is under the five million dollars ($5,000,000.00) threshold of the Class Action Fairness Act of
22 2005. Further, there is no federal question at issue, as the issues herein are based solely on California
23 statutes and law, including the Labor Code, IWC Wage Orders, CCP, California Civil Code (“CC”)
24 and B&PC.
25 5. Venue is proper in this Court because upon information and belief, one or more of
26 the Defendant, reside, transact business, or have offices in this County and/or the acts or omissions
27 alleged herein took place in this County.
28
-1-
CLASS ACTION COMPLAINT
1 II. PARTIES
2 6. Plaintiff, SCOTT BUNDY, was at all times relevant to this action, a resident of
3 California. Plaintiff was employed by Defendant in September 22, 1994 as a Non-Exempt
4 Employee with the title of Dealer Sales Representative and worked during the liability period for
5 Defendant at Defendant’s paint manufacturing company. Plaintiff worked for Defendants
6 company as a traveling salesperson throughout California, Oregon, and Alaska until Plaintiff’s
7 separation from Defendant’s employ in approximately January 12, 2024. Plaintiff’s duties
8 included, but were not limited to paint sales throughout various states.
9 7. Defendant, KELLY-MOORE PAINT COMPANY, INC., is a California
10 Corporation that operates as a paint manufacturing business involved in the sale of paint and
11 painting equipment. Plaintiff estimates there are in excess of one hundred (100) Non-Exempt
12 Employees who work or have worked for Defendant over the last four years.
13 8. Other than identified herein, Plaintiff is unaware of the true names, capacities,
14 relationships, and extent of participation in the conduct alleged herein, of the Defendant sued as
15 DOES 1 through 50, but is informed and believes and thereon alleges that said Defendant are
16 legally responsible for the wrongful conduct alleged herein and therefore sues these Defendant by
17 such fictitious names. Plaintiff will amend this complaint when their true names and capabilities
18 are ascertained.
19 9. Plaintiff is informed and believes and thereon alleges that each Defendant, directly
20 or indirectly, or through agents or other persons, employed Plaintiff and other members of the
21 Class, and exercised control over their wages, hours, and working conditions. Plaintiff is
22 informed and believes and thereon alleges that each Defendant acted in all respects pertinent to
23 this action as the agent of the other Defendant, carried out a joint scheme, business plan or policy
24 in all respects pertinent hereto, and the acts of each Defendant are legally attributable to the other
25 Defendant.
26 III. CLASS ACTION ALLEGATION
27 10. Plaintiff brings this action individually and on behalf of all others similarly
28 situated as a class action pursuant to Code of Civil Procedure § 382. The members of the Class
-2-
CLASS ACTION COMPLAINT
1 are defined as follows:
2
All persons who have been employed by Defendant as Non-Exempt Employees or
3 equivalent positions, however titled, in the state of California within four (4) years from
the filing of the Complaint in this action until its resolution. (collectively referred to as the
4 “Class” or “Plaintiff’s Class” or “Class Members”).
5 11. Plaintiff also seeks to represent the subclass(es) composed of and defined as
6 follows:
7 Sub-Class 1: All Class Members who have been employed by Defendant at any time
between February 2021 and the present and have separated their employment (hereinafter
8
collectively referred to as the “Waiting Time Penalty Subclass”)
9
Sub-Class 2: All Class Members who were issued payment of wages in the form of a Non-
10 Labor Code compliant instrument. (hereinafter collectively referred to as the “Improper
Instrument of Payment Subclass”).
11
Sub-Class 3: All Class Members who are or were employed by Defendant and subject to
12
Defendant’ Unfair Business Practices (hereinafter collectively referred to as the “Unfair
13 Business Practice Subclass”).
14 Sub-Class 4: All Class Members who were employed by Defendant and subjected to
Defendant’s mass layoff and/or termination and not provided the required notice, in
15 violation of the WARN Act, Labor Code section 1400, et seq (hereinafter collectively
referred to as the “WARN Act Subclass”).
16
17 12. Plaintiff reserves the right under California Rule of Court 3.765(b) and other
18 applicable laws to amend or modify the class definition with respect to issues or in any other
19 ways. Plaintiff is a member of the Class as well as each of the Sub-Classes.
20 13. The term “Class” includes Plaintiff and all members of the Class and each of the
21 Sub-Classes, if applicable. Plaintiff seeks class-wide recovery based on the allegations set forth in
22 this complaint.
23 14. There is a well-defined community of interest in the litigation and the proposed
24 Class is easily ascertainable through the records Defendant are required to keep.
25 15. Numerosity. The members of the Class are so numerous that individual joinder
26 of all of them as Plaintiff is impracticable. While the exact number of the Class members is
27 unknown to Plaintiff at this time, Plaintiff is informed and believes and thereon alleges that there
28 are at least 100 (one hundred) Class members.
-3-
CLASS ACTION COMPLAINT
1 16. Commonality. Common questions of law and fact exist as to all Class members
2 and predominate over any questions that affect only individual members of the Class. These
3 common questions include, but are not limited to:
4 i. Whether Defendant issued pay in a non-Labor Code-compliant instrument,
5 in violation of Labor Code §§ 212 and 213;
6 ii. Whether Plaintiff and Class Members were not paid timely upon separation
7 from their employ with Defendant, pursuant to Labor Code section 203;
8 iii. Whether Defendant violated Business and Professions Code and California
9 Labor Code §§ 201-203, 212, 213, 227.3, 558, 1197.1, 1400, , and applicable IWC Wage Orders
10 which violation constitutes a violation of fundamental public policy;
11 iv. Whether Plaintiff and the Members of the Plaintiff Class are entitled to
12 equitable relief pursuant to Business and Professions Code §17200, et. seq.; and
13 17. Typicality. Plaintiff’s claims herein alleged are typical of those claims which
14 could be alleged by any member of the Class and/or Subclass, and the relief sought is typical of
15 the relief which would be sought by each member of the Class and/or Subclass in separate actions.
16 Plaintiff and all members of the Class and or Subclass sustained injuries and damages arising out
17 of and caused by Defendant’ common course of conduct in violation of California laws,
18 regulations, and statutes as alleged herein.
19 18. Adequacy. Plaintiff is qualified to, and will fairly and adequately protect the
20 interests of each member of the Class and/or Subclass with whom she has a well-defined
21 community of interest and typicality of claims, as demonstrated herein. Plaintiff acknowledges an
22 obligation to make known to the Court any relationships, conflicts, or differences with any
23 member of the Class and/or Subclass. Plaintiff’s attorneys and the proposed Counsel for the Class
24 and Subclass are versed in the rules governing class action discovery, certification, litigation, and
25 settlement and experienced in handling such matters. Other former and current employees of
26 Defendant may also serve as representatives of the Class and Subclass if needed.
27 19. Superiority. A class action is superior to other available means for the fair and
28 efficient adjudication of the claims of the Class and would be beneficial for the parties and the
-4-
CLASS ACTION COMPLAINT
1 court. Class action treatment will allow a large number of similarly situated persons to prosecute
2 their common claims in a single forum, simultaneously, efficiently, and without the unnecessary
3 duplication of effort and expense that numerous individual actions would require. The damages
4 suffered by each Class member are relatively small in the sense pertinent to class action analysis,
5 and the expense and burden of individual litigation would make it extremely difficult or
6 impossible for the individual Class Members to seek and obtain individual relief. A class action
7 will serve an important public interest by permitting such individuals to effectively pursue
8 recovery of the sums owed to them. Further, class litigation prevents the potential for inconsistent
9 or contradictory judgments raised by individual litigation.
10 20. Public Policy Considerations: Employers in the state of California violate
11 employment and labor laws every day. Current employees are often afraid to assert their rights
12 out of fear of direct or indirect retaliation. Former employees are fearful of bringing actions
13 because they believe their former employers may damage their future endeavors through negative
14 references and/or other means. The nature of this action allows for the protection of current and
15 former employees’ rights without fear of retaliation or damage.
16 IV. FACTUAL ALLEGATIONS
17 21. At all times set forth herein, Defendant employed Plaintiff and other persons in the
18 capacity of non-exempt positions, however titled, throughout the state of California.
19 22. Plaintiff is informed and believes Class Members have at all times pertinent hereto
20 been Non-Exempt within the meaning of the California Labor Code and the implementing rules
21 and regulations of the IWC California Wage Orders.
22 23. Defendant continues to employ Non-Exempt Employees, however titled, in
23 California and implement a uniform set of policies and practices to all non-exempt employees, as
24 they were all engaged in the generic job duties related to Defendant’s paint manufacturing
25 business.
26 24. Plaintiff is informed and believes, and thereon alleges, that Defendant are and were
27 advised by skilled lawyers and other professionals, employees, and advisors with knowledge of
28 the requirements of California’s wage and employment laws.
-5-
CLASS ACTION COMPLAINT
1 25. Plaintiff is informed and believes, and thereon alleges, that at all times herein
2 mentioned, Defendant knew that at the time of termination of employment (or within 72 hours
3 thereof for resignations without prior notice as the case may be) they had a duty to accurately
4 compensate Plaintiff and Class Members for all wages owed including vacation pay accrued and
5 earned pursuant to Labor Code 227.3 by Plaintiff and Class Members which Defendant had the
6 financial ability to pay such compensation, but willfully, knowingly, recklessly, and/or
7 intentionally failed to do so in part because of the above-specified violations.
8 26. Plaintiff was terminated by Defendants on January 12, 2024 and received a prepaid
9 MasterCard on January 8, 2024 in lieu of his final paycheck. Further, funds were not added to the
10 prepaid MasterCard until January 9, 2024. The prepaid MasterCard did not include all of
11 Plaintiff’s final wages owed, such as his unused and accrued vacation time as well as his earned
12 commissions. Defendants violated Labor Code section 203 by failing to pay Plaintiff all wages
13 owed upon termination.
14 27. On information and belief, Defendants violated Labor Code sections 212 and 213
15 by issuing payment to Plaintiff and Class Members for their wages in a non-Labor Code-
16 compliant instrument because the prepaid MasterCard Defendants issued as Plaintiff’s final pay
17 was not a Labor Code compliant form of pay.
18 28. Defendants violated California’s WARN Act by failing to provide Plaintiff and
19 Class Members with the required notice prior to a mass layoff and/or termination. Plaintiff was
20 terminated without notice despite the Company’s awareness it was closing its doors.
21 29. Upon information and belief, Defendant knew and or should have known that it is
22 improper to implement policies and commit unlawful acts such as:
23 (a) failing to timely pay wages to Plaintiff and Class Members upon separation from
24 Defendant’s employ;
25 (b) issuing wages through non-Labor Code compliant instruments; and
26 (c) conducting and engaging in unfair business practices.
27 30. In addition to the violations above, and on information and belief, Defendant knew
28 they had a duty to compensate Plaintiff and Class Members for the allegations asserted herein, and
-6-
CLASS ACTION COMPLAINT
1 that Defendant had the financial ability to pay such compensation, but willfully, knowingly,
2 recklessly, and/or intentionally failed to do so.
3 31. Plaintiff and Class Members they seek to represent are covered by, and Defendant
4 are required to comply with, applicable California Labor Codes, Industrial Welfare Commission
5 Occupational Wage Orders (hereinafter “IWC Wage Orders”) and corresponding applicable
6 provisions of California Code of Regulations, Title 8, § 11000 et seq.
7 FIRST CAUSE OF ACTION
8 FAILURE TO PAY TIMELY PAY WAGES
9 (Against All Defendants)
10 32. Plaintiff incorporates and re-alleges each and every allegation contained above as
11 though fully set forth herein.
12 33. California Labor Code §§ 201-202 requires an employer who discharges an
13 employee to pay compensation due and owing to said employee immediately upon discharge and
14 that if an employee voluntarily leaves his or her employment, his or her wages shall become due
15 and payable not later than seventy-two (72) hours thereafter, unless the employee has given
16 seventy-two (72) hours previous notice of his or her intention to quit, in which case the employee
17 is entitled to his or her wages on their last day of work.
18 34. California Labor Code § 203 provides that if an employer willfully fails to pay
19 compensation promptly upon discharge, as required by California Labor Code §§ 201-202, the
20 employer is liable for waiting time penalties in the form of continued compensation for up to thirty
21 (30) work days.
22 35. Labor Code § 227.3 provides that “…whenever a contract of employment or
23 employer policy provides for paid vacations, and an employee is terminated without having taken
24 off his vested vacation time, all vested vacation shall be paid to him as wages at his final rate in
25 accordance with such contract of employment or employer policy respecting eligibility or time
26 served; provided, however, that an employment contract or employer policy shall not provide for
27 forfeiture of vested vacation time upon termination.”
28 36. During the relevant time period, Defendant willfully failed and refused, and
-7-
CLASS ACTION COMPLAINT
1 continue to willfully fail and refuse, to pay Plaintiff and Class Members their wages, earned and
2 unpaid, either at the time of discharge, or within seventy-two (72) hours of their voluntarily
3 leaving Defendant’ employ. These wages include commissions and accrued and earned vacation
4 pay.
5 37. As a result, Defendant are liable to Plaintiff and members of the Non-Exempt Sales
6 Employee class for waiting time penalties pursuant to California Labor Code §203, in an amount
7 according to proof at the time of trial.
8 SECOND CAUSE OF ACTION
9 FAILURE TO ISSUE PAYMENT WITH LABOR CODE COMPLIANT
10 INSTRUMENT
11 (Against All Defendants)
12 38. Plaintiff incorporates and re-alleges each and every allegation contained above as
13 though fully set forth herein.
14 39. California Labor Code § 212 requires California employers to comply with a series
15 of provisions when issuing wages to employees. In short, the provisions of section
16 212(a)(1) forbid an employer from issuing payment of wages in an instrument that is not (1)
17 negotiable, (2) payable in cash, (3) on demand, (4) without discount, (5) at an established place of
18 business in the State, (6) the name and address of which appears on the instrument, and (7) which
19 place of business has been prepared, by the deposit of funds, the establishment of credit, or by
20 some arrangement or understanding, to pay the money called for by the instrument. See People v.
21 Turner, 154 Cal. App. 2d F. Supp. 883, 885-86 (1957).
22 40. Labor Code § 213 prohibits an employer from depositing wages due or to become
23 due or an advance on wages to be earned in an account in any bank, savings and loan association,
24 or credit union of the employee’s choice with a place of business located in this state, provided
25 that the employee has voluntarily authorized that deposit. If an employer discharges an employee
26 or the employee quits, the employer may pay the wages earned and unpaid at the time the
27 employee is discharged or quits by making a deposit authorized pursuant to this subdivision,
28 provided that the employer complies with the provisions of this article relating to the payment of
-8-
CLASS ACTION COMPLAINT
1 wages upon termination or quitting of employment
2 41. Defendants violated Labor Code sections 212 and 213 by issuing payment to
3 Plaintiff and Class Members for their wages in a non-Labor Code-compliant instrument as
4 Defendants issued final pay via prepaid MasterCards.
5 42. As a result of the unlawful acts of Defendant, Plaintiff and Class Members have been
6 deprived of wages to be determined at trial, and are entitled to the recovery of such amounts, plus
7 interest and penalties thereon, attorneys' fees, and costs.
8 THIRD CAUSE OF ACTION
9 VIOLATION OF BUSINESS & PROFESSIONS CODE §§ 17200, et. seq.
10 (Against All Defendants)
11 43. Plaintiff incorporates and re-alleges each and every allegation contained above as
12 though fully set forth herein.
13 44. Defendant’ conduct, as alleged in this complaint, has been, and continues to be,
14 unfair, unlawful, and harmful to Plaintiff and Class Members, Defendant’ competitors, and the
15 general public. Plaintiff seeks to enforce important rights affecting the public interest within the
16 meaning of the California Code of Civil Procedure § 1021.5.
17 45. Defendant’ policies, activities, and actions as alleged herein, are violations of
18 California law and constitute unlawful business acts and practices in violation of California
19 Business and Professions Code §§ 17200, et seq.
20 46. A violation of California Business and Professions Code §§ 17200, et seq., may be
21 predicated on the violation of any state or federal law. Defendant’s policy of failing to accurately
22 to pay all earned commissions and vacation pay, issues wages in the form of non-labor code
23 compliant instruments violates California Labor Code §212, §213, 227.3 § 1194 and applicable
24 IWC Wage Orders and California Code of Regulations.
25 47. Plaintiff and Class Members have been personally aggrieved by Defendant’s
26 unlawful and unfair business acts and practices alleged herein by the loss of money and/or
27 property.
28 48. Pursuant to California Business and Professions Code §§ 17200, et seq., Plaintiff
-9-
CLASS ACTION COMPLAINT
1 and Class Members are entitled to restitution of the wages withheld and retained by Defendant
2 during a period that commences four (4) years prior to the filing of this complaint; an award of
3 attorneys’ fees, interest; and an award of costs.
4 FOURTH CAUSE OF ACTION
5 VIOLATION OF CALIFORNIA WARN ACT §§ 1400, et. seq.
6 (Against All Defendants)
7 49. Plaintiff incorporates and re-alleges each and every allegation contained above as
8 though fully set forth herein.
9 50. Pursuant to the California WARN Act, Labor Code section 1400, et seq.,
10 “employer” is defined as any person or business entity that owns and operates a covered
11 establishment, including any industrial or commercial facility that employs at least 75 persons.
12 Defendants owned and operated a facility that employed more than 75 persons and as such,
13 Defendants fall under the definition of “employer” and are subject to the provisions of the
14 California WARN Act. Pursuant to the California WARN Act, Labor Code section 1400, et seq.,
15 “employee” is defined as any person employed for at least six months of twelve months preceding
16 the date on which notice is required. Plaintiff and other Class Members were employed by
17 Defendants for at least six months of the twelve months preceding the date on which the notice
18 referred to herein was required.
19 51. Pursuant to the California WARN Act, Labor Code section 1400, et seq., “mass
20 layoff” refers to a layoff of at least 50 employees during any 30-day period. Labor Code section
21 1400, et seq., defines “layoff” as “a separation from a position for lack of funds or lack of work.”
22 Plaintiff contends that the mass layoff was the result of lack of funds or lack of work.
23 52. Pursuant to the California WARN Act, Labor Code section 1400, et seq., an
24 employer may not order a mass layoff and/or termination unless the employer gives written notice
25 of at least sixty (60) days to all affected employees and to appropriate governmental officials
26 including the Employment Development Department, the local workforce investment board, and
27 the chief elected official of each city and county government involved. Despite the mandate
28 requiring such notice, Defendants laid off and/or terminated at least 50 of its employees, all
- 10 -
CLASS ACTION COMPLAINT
1 without providing any notices as required under the California WARN Act.
2 53. During their employment with Defendants, Plaintiff performed consistently well
3 and received positive performance reviews from Defendants. Plaintiff was employed by
4 Defendants for nearly three decades, since 1994. Despite this, in January 2024, Defendants
5 ordered the mass layoff/termination. No notice was given to Plaintiff and other Class Members of
6 Defendants.
7 54. Defendants’ failure to provide notice as described herein is unlawful and creates an
8 entitlement to recovery by the Plaintiff and Class Members identified herein, in a civil action, for
9 all damages and/or penalties pursuant to Labor Code section 1402-1403, including interest
10 thereon, penalties, reasonable attorney’s fees, and costs of suit according to the mandate of Labor
11 Code section 1404.
12 55. Defendants violated California’s WARN Act by failing to provide Plaintiff and
13 Class Members with the required notice prior to a mass layoff and/or termination. Plaintiff was
14 terminated without notice despite the Company’s awareness it was closing its doors.
15 PRAYER FOR RELIEF
16 WHEREFORE, Plaintiff prays for judgment against Defendant, as follows:
17 Class Certification
18 1. That this action be certified as a class action;
19 2. That Plaintiff be appointed as the representative of the Class;
20 3. That Plaintiff be appointed as the representative of the Subclass; and
21 4. That counsel for Plaintiff is appointed as counsel for the Class and Subclass.
22 On the First Cause of Action
23 1. For statutory penalties pursuant to Labor Code §203;
24 2. For interest for wages untimely paid; and
25 3. For such other and further relief as the Court deems proper.
26 On the Second Cause of Action
27 1. For statutory penalties pursuant to Labor Code §§ 212 and 213;
28 1. For interest for wages untimely paid;
- 11 -
CLASS ACTION COMPLAINT
1 2. For reasonable attorneys’ fees and costs pursuant to statute; and
2 3. For such other and further relief as the Court deems proper.
3 On the Third Cause of Action
4 1. That Defendants, jointly and/or severally, pay restitution of sums to Plaintiff and
5 Class Members for their past failure to pay all wages due and owing, that were not provided as
6 described herein to Plaintiff and Class Members, over the last four (4) years in an amount
7 according to proof;
8 2. For pre-judgment interest on any unpaid wages due from the day that such amounts
9 were due;
10 3. For reasonable attorneys’ fees that Plaintiff and Class Members are entitled to
11 recover;
12 4. For costs of suit incurred herein; and
13 5. For such other and further relief as the Court deems proper.
14 .
15 On the Fourth Cause of Action
16 1. For statutory penalties pursuant to Labor Code section 1400, et seq.;
17 2. For reasonable attorneys’ fees that Plaintiff and Class Members are entitled to
18 recover;
19 3. For costs of suit incurred herein; and
20 4. For such other and further relief as the Court deems proper.
21 ///
22 ///
23 ///
24 ///
25 ///
26 ///
27 ///
28 ///
- 12 -
CLASS ACTION COMPLAINT
1 DEMAND FOR JURY TRIAL
2 Plaintiff and members of the Class and Subclass request a jury trial in this matter.
3
4
Dated: February 9, 2024 JAMES HAWKINS APLC
5
6
By:
7 JAMES R. HAWKINS, ESQ.
GREGORY MAURO, ESQ.
8 MICHAEL CALVO, ESQ.
LAUREN FALK, ESQ.
9 AVA ISSARY, ESQ.
10 Attorneys for Plaintiff SCOTT BUNDY
individually and on behalf of all others
11 similarly situated.
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
- 13 -
CLASS ACTION COMPLAINT
Preview
1 JAMES HAWKINS APLC 2 James R. Hawkins, Esq. (#192925) Gregory Mauro, Esq. (#222239) 3 Michael Calvo, Esq. (#314986) Lauren Falk, Esq. (#316893) 4 Ava Issary, Esq. (#342252) 9880 Research Drive, Suite 200 5 Irvine, CA 92618 Tel.: (949) 387-7200 6 Fax: (949) 387-6676 Email: James@jameshawkinsaplc.com 7 Email: Greg@jameshawkinsaplc.com Email: Michael@jameshawkinsaplc.com 8 Email: Lauren@jameshawkinsaplc.com Email: Ava@jameshawkinsaplc.com 9 Attorneys for Plaintiff SCOTT BUNDY, 10 Individually and on behalf of all others similarly situated, 11 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN MATEO 12 13 SCOTT BUNDY, individually and on behalf CASE NO.: of all others similarly situated, CLASS ACTION COMPLAINT 14 PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE §382 FOR: 15 Plaintiff., 1. Failure to Pay Timely Wages Required by Labor Code § 203; 16 v. 2. Issuing Payment of Wages in the Form of a Non-Labor Code-Compliant 17 Instrument Pursuant to Labor Code 212 KELLY-MOORE PAINT COMPANY, INC., and 213 18 a California Corporation; and DOES 1-50, 3. Violation of Business & Professions inclusive, Code § 17200, et seq. 19 4. Violation of Labor Code § 1400, et seq. Defendant. 20 DEMAND FOR JURY TRIAL 21 22 23 24 25 26 27 28 CLASS ACTION COMPLAINT 1 Plaintiff SCOTT BUNDY (“Plaintiff”), individually and on behalf of all others similarly 2 situated (hereinafter collectively referred to as the “Class” or “Class Member”), hereby files this 3 Complaint against Defendant KELLY-MOORE PAINT COMPANY, INC., a California 4 Corporation and DOES 1-50, inclusive, (“Defendant”) and alleges on information and belief as 5 follows: 6 I. JURISDICTION AND VENUE 7 1. This class action is brought pursuant to California Code of Civil Procedure § 382. 8 The monetary damages and restitution sought by Plaintiff exceed the minimum jurisdiction limits 9 of the California Superior Court and will be established according to proof at trial. 10 2. This Court has jurisdiction over this action pursuant to the California Constitution 11 Article VI §10, which grants the California Superior Court original jurisdiction in all causes 12 except those given by statute to other courts. The statutes under which this action is brought do 13 not give jurisdiction to any other court. 14 3. This Court has jurisdiction over Defendant because, upon information and belief, 15 each Defendant either has sufficient minimum contacts in California, or otherwise intentionally 16 avails itself of the California market so as to render the exercise of jurisdiction over it by the 17 California Courts consistent with traditional notions of fair play and substantial justice. 18 4. The California Superior Court also has jurisdiction in this matter because the 19 individual claims of the members of the Classes herein are under the seventy-five thousand dollars 20 ($75,000.00) jurisdictional threshold for Federal Court and the aggregate claim, including attorneys’ 21 fees, is under the five million dollars ($5,000,000.00) threshold of the Class Action Fairness Act of 22 2005. Further, there is no federal question at issue, as the issues herein are based solely on California 23 statutes and law, including the Labor Code, IWC Wage Orders, CCP, California Civil Code (“CC”) 24 and B&PC. 25 5. Venue is proper in this Court because upon information and belief, one or more of 26 the Defendant, reside, transact business, or have offices in this County and/or the acts or omissions 27 alleged herein took place in this County. 28 -1- CLASS ACTION COMPLAINT 1 II. PARTIES 2 6. Plaintiff, SCOTT BUNDY, was at all times relevant to this action, a resident of 3 California. Plaintiff was employed by Defendant in September 22, 1994 as a Non-Exempt 4 Employee with the title of Dealer Sales Representative and worked during the liability period for 5 Defendant at Defendant’s paint manufacturing company. Plaintiff worked for Defendants 6 company as a traveling salesperson throughout California, Oregon, and Alaska until Plaintiff’s 7 separation from Defendant’s employ in approximately January 12, 2024. Plaintiff’s duties 8 included, but were not limited to paint sales throughout various states. 9 7. Defendant, KELLY-MOORE PAINT COMPANY, INC., is a California 10 Corporation that operates as a paint manufacturing business involved in the sale of paint and 11 painting equipment. Plaintiff estimates there are in excess of one hundred (100) Non-Exempt 12 Employees who work or have worked for Defendant over the last four years. 13 8. Other than identified herein, Plaintiff is unaware of the true names, capacities, 14 relationships, and extent of participation in the conduct alleged herein, of the Defendant sued as 15 DOES 1 through 50, but is informed and believes and thereon alleges that said Defendant are 16 legally responsible for the wrongful conduct alleged herein and therefore sues these Defendant by 17 such fictitious names. Plaintiff will amend this complaint when their true names and capabilities 18 are ascertained. 19 9. Plaintiff is informed and believes and thereon alleges that each Defendant, directly 20 or indirectly, or through agents or other persons, employed Plaintiff and other members of the 21 Class, and exercised control over their wages, hours, and working conditions. Plaintiff is 22 informed and believes and thereon alleges that each Defendant acted in all respects pertinent to 23 this action as the agent of the other Defendant, carried out a joint scheme, business plan or policy 24 in all respects pertinent hereto, and the acts of each Defendant are legally attributable to the other 25 Defendant. 26 III. CLASS ACTION ALLEGATION 27 10. Plaintiff brings this action individually and on behalf of all others similarly 28 situated as a class action pursuant to Code of Civil Procedure § 382. The members of the Class -2- CLASS ACTION COMPLAINT 1 are defined as follows: 2 All persons who have been employed by Defendant as Non-Exempt Employees or 3 equivalent positions, however titled, in the state of California within four (4) years from the filing of the Complaint in this action until its resolution. (collectively referred to as the 4 “Class” or “Plaintiff’s Class” or “Class Members”). 5 11. Plaintiff also seeks to represent the subclass(es) composed of and defined as 6 follows: 7 Sub-Class 1: All Class Members who have been employed by Defendant at any time between February 2021 and the present and have separated their employment (hereinafter 8 collectively referred to as the “Waiting Time Penalty Subclass”) 9 Sub-Class 2: All Class Members who were issued payment of wages in the form of a Non- 10 Labor Code compliant instrument. (hereinafter collectively referred to as the “Improper Instrument of Payment Subclass”). 11 Sub-Class 3: All Class Members who are or were employed by Defendant and subject to 12 Defendant’ Unfair Business Practices (hereinafter collectively referred to as the “Unfair 13 Business Practice Subclass”). 14 Sub-Class 4: All Class Members who were employed by Defendant and subjected to Defendant’s mass layoff and/or termination and not provided the required notice, in 15 violation of the WARN Act, Labor Code section 1400, et seq (hereinafter collectively referred to as the “WARN Act Subclass”). 16 17 12. Plaintiff reserves the right under California Rule of Court 3.765(b) and other 18 applicable laws to amend or modify the class definition with respect to issues or in any other 19 ways. Plaintiff is a member of the Class as well as each of the Sub-Classes. 20 13. The term “Class” includes Plaintiff and all members of the Class and each of the 21 Sub-Classes, if applicable. Plaintiff seeks class-wide recovery based on the allegations set forth in 22 this complaint. 23 14. There is a well-defined community of interest in the litigation and the proposed 24 Class is easily ascertainable through the records Defendant are required to keep. 25 15. Numerosity. The members of the Class are so numerous that individual joinder 26 of all of them as Plaintiff is impracticable. While the exact number of the Class members is 27 unknown to Plaintiff at this time, Plaintiff is informed and believes and thereon alleges that there 28 are at least 100 (one hundred) Class members. -3- CLASS ACTION COMPLAINT 1 16. Commonality. Common questions of law and fact exist as to all Class members 2 and predominate over any questions that affect only individual members of the Class. These 3 common questions include, but are not limited to: 4 i. Whether Defendant issued pay in a non-Labor Code-compliant instrument, 5 in violation of Labor Code §§ 212 and 213; 6 ii. Whether Plaintiff and Class Members were not paid timely upon separation 7 from their employ with Defendant, pursuant to Labor Code section 203; 8 iii. Whether Defendant violated Business and Professions Code and California 9 Labor Code §§ 201-203, 212, 213, 227.3, 558, 1197.1, 1400, , and applicable IWC Wage Orders 10 which violation constitutes a violation of fundamental public policy; 11 iv. Whether Plaintiff and the Members of the Plaintiff Class are entitled to 12 equitable relief pursuant to Business and Professions Code §17200, et. seq.; and 13 17. Typicality. Plaintiff’s claims herein alleged are typical of those claims which 14 could be alleged by any member of the Class and/or Subclass, and the relief sought is typical of 15 the relief which would be sought by each member of the Class and/or Subclass in separate actions. 16 Plaintiff and all members of the Class and or Subclass sustained injuries and damages arising out 17 of and caused by Defendant’ common course of conduct in violation of California laws, 18 regulations, and statutes as alleged herein. 19 18. Adequacy. Plaintiff is qualified to, and will fairly and adequately protect the 20 interests of each member of the Class and/or Subclass with whom she has a well-defined 21 community of interest and typicality of claims, as demonstrated herein. Plaintiff acknowledges an 22 obligation to make known to the Court any relationships, conflicts, or differences with any 23 member of the Class and/or Subclass. Plaintiff’s attorneys and the proposed Counsel for the Class 24 and Subclass are versed in the rules governing class action discovery, certification, litigation, and 25 settlement and experienced in handling such matters. Other former and current employees of 26 Defendant may also serve as representatives of the Class and Subclass if needed. 27 19. Superiority. A class action is superior to other available means for the fair and 28 efficient adjudication of the claims of the Class and would be beneficial for the parties and the -4- CLASS ACTION COMPLAINT 1 court. Class action treatment will allow a large number of similarly situated persons to prosecute 2 their common claims in a single forum, simultaneously, efficiently, and without the unnecessary 3 duplication of effort and expense that numerous individual actions would require. The damages 4 suffered by each Class member are relatively small in the sense pertinent to class action analysis, 5 and the expense and burden of individual litigation would make it extremely difficult or 6 impossible for the individual Class Members to seek and obtain individual relief. A class action 7 will serve an important public interest by permitting such individuals to effectively pursue 8 recovery of the sums owed to them. Further, class litigation prevents the potential for inconsistent 9 or contradictory judgments raised by individual litigation. 10 20. Public Policy Considerations: Employers in the state of California violate 11 employment and labor laws every day. Current employees are often afraid to assert their rights 12 out of fear of direct or indirect retaliation. Former employees are fearful of bringing actions 13 because they believe their former employers may damage their future endeavors through negative 14 references and/or other means. The nature of this action allows for the protection of current and 15 former employees’ rights without fear of retaliation or damage. 16 IV. FACTUAL ALLEGATIONS 17 21. At all times set forth herein, Defendant employed Plaintiff and other persons in the 18 capacity of non-exempt positions, however titled, throughout the state of California. 19 22. Plaintiff is informed and believes Class Members have at all times pertinent hereto 20 been Non-Exempt within the meaning of the California Labor Code and the implementing rules 21 and regulations of the IWC California Wage Orders. 22 23. Defendant continues to employ Non-Exempt Employees, however titled, in 23 California and implement a uniform set of policies and practices to all non-exempt employees, as 24 they were all engaged in the generic job duties related to Defendant’s paint manufacturing 25 business. 26 24. Plaintiff is informed and believes, and thereon alleges, that Defendant are and were 27 advised by skilled lawyers and other professionals, employees, and advisors with knowledge of 28 the requirements of California’s wage and employment laws. -5- CLASS ACTION COMPLAINT 1 25. Plaintiff is informed and believes, and thereon alleges, that at all times herein 2 mentioned, Defendant knew that at the time of termination of employment (or within 72 hours 3 thereof for resignations without prior notice as the case may be) they had a duty to accurately 4 compensate Plaintiff and Class Members for all wages owed including vacation pay accrued and 5 earned pursuant to Labor Code 227.3 by Plaintiff and Class Members which Defendant had the 6 financial ability to pay such compensation, but willfully, knowingly, recklessly, and/or 7 intentionally failed to do so in part because of the above-specified violations. 8 26. Plaintiff was terminated by Defendants on January 12, 2024 and received a prepaid 9 MasterCard on January 8, 2024 in lieu of his final paycheck. Further, funds were not added to the 10 prepaid MasterCard until January 9, 2024. The prepaid MasterCard did not include all of 11 Plaintiff’s final wages owed, such as his unused and accrued vacation time as well as his earned 12 commissions. Defendants violated Labor Code section 203 by failing to pay Plaintiff all wages 13 owed upon termination. 14 27. On information and belief, Defendants violated Labor Code sections 212 and 213 15 by issuing payment to Plaintiff and Class Members for their wages in a non-Labor Code- 16 compliant instrument because the prepaid MasterCard Defendants issued as Plaintiff’s final pay 17 was not a Labor Code compliant form of pay. 18 28. Defendants violated California’s WARN Act by failing to provide Plaintiff and 19 Class Members with the required notice prior to a mass layoff and/or termination. Plaintiff was 20 terminated without notice despite the Company’s awareness it was closing its doors. 21 29. Upon information and belief, Defendant knew and or should have known that it is 22 improper to implement policies and commit unlawful acts such as: 23 (a) failing to timely pay wages to Plaintiff and Class Members upon separation from 24 Defendant’s employ; 25 (b) issuing wages through non-Labor Code compliant instruments; and 26 (c) conducting and engaging in unfair business practices. 27 30. In addition to the violations above, and on information and belief, Defendant knew 28 they had a duty to compensate Plaintiff and Class Members for the allegations asserted herein, and -6- CLASS ACTION COMPLAINT 1 that Defendant had the financial ability to pay such compensation, but willfully, knowingly, 2 recklessly, and/or intentionally failed to do so. 3 31. Plaintiff and Class Members they seek to represent are covered by, and Defendant 4 are required to comply with, applicable California Labor Codes, Industrial Welfare Commission 5 Occupational Wage Orders (hereinafter “IWC Wage Orders”) and corresponding applicable 6 provisions of California Code of Regulations, Title 8, § 11000 et seq. 7 FIRST CAUSE OF ACTION 8 FAILURE TO PAY TIMELY PAY WAGES 9 (Against All Defendants) 10 32. Plaintiff incorporates and re-alleges each and every allegation contained above as 11 though fully set forth herein. 12 33. California Labor Code §§ 201-202 requires an employer who discharges an 13 employee to pay compensation due and owing to said employee immediately upon discharge and 14 that if an employee voluntarily leaves his or her employment, his or her wages shall become due 15 and payable not later than seventy-two (72) hours thereafter, unless the employee has given 16 seventy-two (72) hours previous notice of his or her intention to quit, in which case the employee 17 is entitled to his or her wages on their last day of work. 18 34. California Labor Code § 203 provides that if an employer willfully fails to pay 19 compensation promptly upon discharge, as required by California Labor Code §§ 201-202, the 20 employer is liable for waiting time penalties in the form of continued compensation for up to thirty 21 (30) work days. 22 35. Labor Code § 227.3 provides that “…whenever a contract of employment or 23 employer policy provides for paid vacations, and an employee is terminated without having taken 24 off his vested vacation time, all vested vacation shall be paid to him as wages at his final rate in 25 accordance with such contract of employment or employer policy respecting eligibility or time 26 served; provided, however, that an employment contract or employer policy shall not provide for 27 forfeiture of vested vacation time upon termination.” 28 36. During the relevant time period, Defendant willfully failed and refused, and -7- CLASS ACTION COMPLAINT 1 continue to willfully fail and refuse, to pay Plaintiff and Class Members their wages, earned and 2 unpaid, either at the time of discharge, or within seventy-two (72) hours of their voluntarily 3 leaving Defendant’ employ. These wages include commissions and accrued and earned vacation 4 pay. 5 37. As a result, Defendant are liable to Plaintiff and members of the Non-Exempt Sales 6 Employee class for waiting time penalties pursuant to California Labor Code §203, in an amount 7 according to proof at the time of trial. 8 SECOND CAUSE OF ACTION 9 FAILURE TO ISSUE PAYMENT WITH LABOR CODE COMPLIANT 10 INSTRUMENT 11 (Against All Defendants) 12 38. Plaintiff incorporates and re-alleges each and every allegation contained above as 13 though fully set forth herein. 14 39. California Labor Code § 212 requires California employers to comply with a series 15 of provisions when issuing wages to employees. In short, the provisions of section 16 212(a)(1) forbid an employer from issuing payment of wages in an instrument that is not (1) 17 negotiable, (2) payable in cash, (3) on demand, (4) without discount, (5) at an established place of 18 business in the State, (6) the name and address of which appears on the instrument, and (7) which 19 place of business has been prepared, by the deposit of funds, the establishment of credit, or by 20 some arrangement or understanding, to pay the money called for by the instrument. See People v. 21 Turner, 154 Cal. App. 2d F. Supp. 883, 885-86 (1957). 22 40. Labor Code § 213 prohibits an employer from depositing wages due or to become 23 due or an advance on wages to be earned in an account in any bank, savings and loan association, 24 or credit union of the employee’s choice with a place of business located in this state, provided 25 that the employee has voluntarily authorized that deposit. If an employer discharges an employee 26 or the employee quits, the employer may pay the wages earned and unpaid at the time the 27 employee is discharged or quits by making a deposit authorized pursuant to this subdivision, 28 provided that the employer complies with the provisions of this article relating to the payment of -8- CLASS ACTION COMPLAINT 1 wages upon termination or quitting of employment 2 41. Defendants violated Labor Code sections 212 and 213 by issuing payment to 3 Plaintiff and Class Members for their wages in a non-Labor Code-compliant instrument as 4 Defendants issued final pay via prepaid MasterCards. 5 42. As a result of the unlawful acts of Defendant, Plaintiff and Class Members have been 6 deprived of wages to be determined at trial, and are entitled to the recovery of such amounts, plus 7 interest and penalties thereon, attorneys' fees, and costs. 8 THIRD CAUSE OF ACTION 9 VIOLATION OF BUSINESS & PROFESSIONS CODE §§ 17200, et. seq. 10 (Against All Defendants) 11 43. Plaintiff incorporates and re-alleges each and every allegation contained above as 12 though fully set forth herein. 13 44. Defendant’ conduct, as alleged in this complaint, has been, and continues to be, 14 unfair, unlawful, and harmful to Plaintiff and Class Members, Defendant’ competitors, and the 15 general public. Plaintiff seeks to enforce important rights affecting the public interest within the 16 meaning of the California Code of Civil Procedure § 1021.5. 17 45. Defendant’ policies, activities, and actions as alleged herein, are violations of 18 California law and constitute unlawful business acts and practices in violation of California 19 Business and Professions Code §§ 17200, et seq. 20 46. A violation of California Business and Professions Code §§ 17200, et seq., may be 21 predicated on the violation of any state or federal law. Defendant’s policy of failing to accurately 22 to pay all earned commissions and vacation pay, issues wages in the form of non-labor code 23 compliant instruments violates California Labor Code §212, §213, 227.3 § 1194 and applicable 24 IWC Wage Orders and California Code of Regulations. 25 47. Plaintiff and Class Members have been personally aggrieved by Defendant’s 26 unlawful and unfair business acts and practices alleged herein by the loss of money and/or 27 property. 28 48. Pursuant to California Business and Professions Code §§ 17200, et seq., Plaintiff -9- CLASS ACTION COMPLAINT 1 and Class Members are entitled to restitution of the wages withheld and retained by Defendant 2 during a period that commences four (4) years prior to the filing of this complaint; an award of 3 attorneys’ fees, interest; and an award of costs. 4 FOURTH CAUSE OF ACTION 5 VIOLATION OF CALIFORNIA WARN ACT §§ 1400, et. seq. 6 (Against All Defendants) 7 49. Plaintiff incorporates and re-alleges each and every allegation contained above as 8 though fully set forth herein. 9 50. Pursuant to the California WARN Act, Labor Code section 1400, et seq., 10 “employer” is defined as any person or business entity that owns and operates a covered 11 establishment, including any industrial or commercial facility that employs at least 75 persons. 12 Defendants owned and operated a facility that employed more than 75 persons and as such, 13 Defendants fall under the definition of “employer” and are subject to the provisions of the 14 California WARN Act. Pursuant to the California WARN Act, Labor Code section 1400, et seq., 15 “employee” is defined as any person employed for at least six months of twelve months preceding 16 the date on which notice is required. Plaintiff and other Class Members were employed by 17 Defendants for at least six months of the twelve months preceding the date on which the notice 18 referred to herein was required. 19 51. Pursuant to the California WARN Act, Labor Code section 1400, et seq., “mass 20 layoff” refers to a layoff of at least 50 employees during any 30-day period. Labor Code section 21 1400, et seq., defines “layoff” as “a separation from a position for lack of funds or lack of work.” 22 Plaintiff contends that the mass layoff was the result of lack of funds or lack of work. 23 52. Pursuant to the California WARN Act, Labor Code section 1400, et seq., an 24 employer may not order a mass layoff and/or termination unless the employer gives written notice 25 of at least sixty (60) days to all affected employees and to appropriate governmental officials 26 including the Employment Development Department, the local workforce investment board, and 27 the chief elected official of each city and county government involved. Despite the mandate 28 requiring such notice, Defendants laid off and/or terminated at least 50 of its employees, all - 10 - CLASS ACTION COMPLAINT 1 without providing any notices as required under the California WARN Act. 2 53. During their employment with Defendants, Plaintiff performed consistently well 3 and received positive performance reviews from Defendants. Plaintiff was employed by 4 Defendants for nearly three decades, since 1994. Despite this, in January 2024, Defendants 5 ordered the mass layoff/termination. No notice was given to Plaintiff and other Class Members of 6 Defendants. 7 54. Defendants’ failure to provide notice as described herein is unlawful and creates an 8 entitlement to recovery by the Plaintiff and Class Members identified herein, in a civil action, for 9 all damages and/or penalties pursuant to Labor Code section 1402-1403, including interest 10 thereon, penalties, reasonable attorney’s fees, and costs of suit according to the mandate of Labor 11 Code section 1404. 12 55. Defendants violated California’s WARN Act by failing to provide Plaintiff and 13 Class Members with the required notice prior to a mass layoff and/or termination. Plaintiff was 14 terminated without notice despite the Company’s awareness it was closing its doors. 15 PRAYER FOR RELIEF 16 WHEREFORE, Plaintiff prays for judgment against Defendant, as follows: 17 Class Certification 18 1. That this action be certified as a class action; 19 2. That Plaintiff be appointed as the representative of the Class; 20 3. That Plaintiff be appointed as the representative of the Subclass; and 21 4. That counsel for Plaintiff is appointed as counsel for the Class and Subclass. 22 On the First Cause of Action 23 1. For statutory penalties pursuant to Labor Code §203; 24 2. For interest for wages untimely paid; and 25 3. For such other and further relief as the Court deems proper. 26 On the Second Cause of Action 27 1. For statutory penalties pursuant to Labor Code §§ 212 and 213; 28 1. For interest for wages untimely paid; - 11 - CLASS ACTION COMPLAINT 1 2. For reasonable attorneys’ fees and costs pursuant to statute; and 2 3. For such other and further relief as the Court deems proper. 3 On the Third Cause of Action 4 1. That Defendants, jointly and/or severally, pay restitution of sums to Plaintiff and 5 Class Members for their past failure to pay all wages due and owing, that were not provided as 6 described herein to Plaintiff and Class Members, over the last four (4) years in an amount 7 according to proof; 8 2. For pre-judgment interest on any unpaid wages due from the day that such amounts 9 were due; 10 3. For reasonable attorneys’ fees that Plaintiff and Class Members are entitled to 11 recover; 12 4. For costs of suit incurred herein; and 13 5. For such other and further relief as the Court deems proper. 14 . 15 On the Fourth Cause of Action 16 1. For statutory penalties pursuant to Labor Code section 1400, et seq.; 17 2. For reasonable attorneys’ fees that Plaintiff and Class Members are entitled to 18 recover; 19 3. For costs of suit incurred herein; and 20 4. For such other and further relief as the Court deems proper. 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// - 12 - CLASS ACTION COMPLAINT 1 DEMAND FOR JURY TRIAL 2 Plaintiff and members of the Class and Subclass request a jury trial in this matter. 3 4 Dated: February 9, 2024 JAMES HAWKINS APLC 5 6 By: 7 JAMES R. HAWKINS, ESQ. GREGORY MAURO, ESQ. 8 MICHAEL CALVO, ESQ. LAUREN FALK, ESQ. 9 AVA ISSARY, ESQ. 10 Attorneys for Plaintiff SCOTT BUNDY individually and on behalf of all others 11 similarly situated. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 13 - CLASS ACTION COMPLAINT