Preview
1 Kane Moon (SBN 249834)
E-mail: kmoon@moonlawgroup.com
2 Daniel J. Park (SBN 274973)
E-mail: dpark@moonlawgroup.com
3 Michael Citrin (SBN 335033)
E-mail: mcitrin@moonlawgroup.com
4 MOON LAW GROUP, PC
1055 W. Seventh St., Suite 1880
5 Los Angeles, California 90017
Telephone: (213) 232-3128
6 Facsimile: (213) 232-3125
7 Attorneys for Plaintiff Marco Negrete Hernandez
8
SUPERIOR COURT OF THE STATE OF CALIFORNIA
9
FOR THE COUNTY OF NAPA
10
11 MARCO NEGRETE HERNANDEZ, Case No.:
individually, and on behalf of all others similarly
12 situated, CLASS ACTION COMPLAINT:
13 Plaintiff, 1. Failure to Pay Minimum Wages [Cal. Lab.
Code §§ 204, 1194, 1194.2, and 1197];
14 2. Failure to Pay Overtime Compensation
vs. [Cal. Lab. Code §§ 1194 and 1198];
15 3. Failure to Provide Meal Periods [Cal. Lab.
Code §§ 226.7, 512];
16 WESTLAKE ROYAL STONE, LLC; 4. Failure to Authorize and Permit Rest
WESTLAKE MANAGEMENT SERVICES, Breaks [Cal. Lab. Code §§ 226.7];
17 INC.; and DOES 1 through 10, inclusive, 5. Failure to Indemnify Necessary Business
Expenses [Cal. Lab. Code § 2802];
18 Defendants 6. Failure to Timely Pay Final Wages at
Termination [Cal. Lab. Code §§ 201-203];
19 7. Failure to Provide Accurate Itemized
Wage Statements [Cal. Lab. Code § 226];
20 and
8. Unfair Business Practices [Cal. Bus. &
21 Prof. Code §§ 17200, et seq.].
22 DEMAND FOR JURY TRIAL
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24
25
26
27
28
CLASS ACTION COMPLAINT
1 TABLE OF CONTENTS
2 INTRODUCTION & PRELIMINARY STATEMENT .............................................................. 1
3 THE PARTIES .......................................................................................................................... 3
4 A. Plaintiff.......................................................................................................................... 3
5 B. Defendants..................................................................................................................... 3
6 ALLEGATIONS COMMON TO ALL CAUSES OF ACTION ................................................ 4
7 CLASS ACTION ALLEGATIONS ........................................................................................... 7
8 FIRST CAUSE OF ACTION ................................................................................................... 11
9 SECOND CAUSE OF ACTION .............................................................................................. 13
10 THIRD CAUSE OF ACTION ................................................................................................. 14
11 FOURTH CAUSE OF ACTION .............................................................................................. 15
12 FIFTH CAUSE OF ACTION................................................................................................... 16
13 SIXTH CAUSE OF ACTION .................................................................................................. 16
14 SEVENTH CAUSE OF ACTION ............................................................................................ 17
15 EIGHTH CAUSE OF ACTION ............................................................................................... 19
16 PRAYER FOR RELIEF ........................................................................................................... 22
17 DEMAND FOR JURY TRIAL ................................................................................................ 25
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i
CLASS ACTION COMPLAINT
1 Plaintiff Marco Negrete Hernandez (“Plaintiff”), based upon facts that either have
2 evidentiary support or are likely to have evidentiary support after a reasonable opportunity for
3 further investigation and discovery, alleges as follows:
4 INTRODUCTION & PRELIMINARY STATEMENT
5 1. Plaintiff brings this action against Defendants Westlake Royal Stone, LLC,
6 Westlake Management Services, Inc., and Does 1 through 10 (collectively referred to as
7 “Defendants”) for California Labor Code violations and unfair business practices stemming from
8 Defendants’ failure to pay minimum wages, failure to pay overtime wages, failure to provide
9 meal periods, failure to authorize and permit rest periods, failure to maintain accurate records of
10 hours worked and meal periods, failure to timely pay all wages to terminated employees, failure
11 to indemnify necessary business expenses, and failure to furnish accurate wage statements.
12 2. Plaintiff brings the First through Eighth Causes of Action individually and as a
13 class action on behalf of himself and certain current and former employees of Defendants
14 (hereinafter collectively referred to as the “Class” or “Class Members” and defined more fully
15 below). The Class consists of Plaintiff and all other persons who have been employed by any
16 Defendants in California as an hourly-paid, non-exempt employeeduring the statute of limitations
17 period applicable to the claims pleaded here.
18 3. Defendants own/owned and operate/operated an industry, business, and
19 establishment within the State of California, including Napa County. As such, and based upon all
20 the facts and circumstances incident to Defendants’ business in California, Defendants are
21 subject to the California Labor Code, Wage Orders issued by the Industrial Welfare Commission
22 (“IWC”), and the California Business & Professions Code.
23 4. Despite these requirements, throughout the statutory period Defendants
24 maintained a systematic, company-wide policy and practice of:
25 (a) Failing to pay employees for all hours worked, including all minimum
26 wages, and overtime wages in compliance with the California Labor Code
27 and IWC Wage Orders;
28
1
CLASS ACTION COMPLAINT
1 (b) Failing to provide employees with timely and duty-free meal periods in
2 compliance with the California Labor Code and IWC Wage Orders, failing
3 to maintain accurate records of all meal periods taken or missed, and
4 failing to pay an additional hour’s pay for each workday a meal period
5 violation occurred;
6 (c) Failing to authorize and permit employees to take timely and duty-free rest
7 periods in compliance with the California Labor Code and IWC Wage
8 Orders, and failing to pay an additional hour’s pay for each workday a rest
9 period violation occurred;
10 (d) Failing to indemnify employees for necessary business expenses incurred;
11 (e) Willfully failing to pay employees all minimum wages, overtime wages,
12 meal period premium wages, and rest period premium wages due within
13 the time period specified by California law when employment terminates;
14 and
15 (f) Failing to maintain accurate records of the hours that employees worked.
16 (g) Failing to provide employees with accurate, itemized wage statements
17 containing all the information required by the California Labor Code and
18 IWC Wage Orders.
19 5. On information and belief, Defendants, and each of them were on actual and
20 constructive notice of the improprieties alleged herein and intentionally refused to rectify their
21 unlawful policies. Defendants’ violations, as alleged above, during all relevant times herein were
22 willful and deliberate.
23 6. At all relevant times, Defendants were and are legally responsible for all of the
24 unlawful conduct, policies, practices, acts and omissions as described in each and all of the
25 foregoing paragraphs as the employer of Plaintiff and the Class. Further, Defendants are
26 responsible for each of the unlawful acts or omissions complained of herein under the doctrine of
27 “respondeat superior”.
28
2
CLASS ACTION COMPLAINT
1 THE PARTIES
2 A. Plaintiff
3 7. Plaintiff is a California resident that worked for Defendants in the County of
4 Napa, State of California, as a painter from approximately October 2021 to April 2023.
5 8. Plaintiff reserves the right to seek leave to amend this complaint to add new
6 plaintiffs, if necessary, in order to establish suitable representative(s) pursuant to La Sala v.
7 American Savings and Loan Association (1971) 5 Cal.3d 864, 872, and other applicable law.
8 B. Defendants
9 9. Plaintiff is informed and believes, and based upon that information and belief
10 alleges, that Defendants are:
11 (a) Business entities with their principal places of business in Napa,
12 California.
13 (b) Business entities conducting business in numerous counties throughout the
14 State of California, including in Napa County;
15 (c) The former employers of Plaintiff, and the current and/or former employers
16 of the putative Class. Defendants suffered and permitted Plaintiff and the
17 Class to work, and/or controlled their wages, hours, or working conditions;
18 and
19 (d) At all times mentioned herein, Defendants are and were the joint employers
20 of Plaintiff and the Class.
21 10. Plaintiff does not currently know the true names or capacities of the persons or
22 entities sued herein as Does 1-10, inclusive, and therefore sues said Defendants by such fictitious
23 names. Each of the Doe Defendants was in some manner legally responsible for the damages
24 suffered by Plaintiff and the Class as alleged herein. Plaintiff will amend this complaint to set
25 forth the true names and capacities of these Defendants when they have been ascertained,
26 together with appropriate charging allegations, as may be necessary.
27 11. At all times mentioned herein, the Defendants named as Does 1-10, inclusive, and
28 each of them, were residents of, doing business in, availed themselves of the jurisdiction of,
3
CLASS ACTION COMPLAINT
1 and/or injured a significant number of the Plaintiff and the Class in the State of California.
2 12. Plaintiff is informed and believes and thereon alleges that at all relevant times
3 each Defendant, directly or indirectly, or through agents or other persons, employed Plaintiff and
4 the other employees described in the class definitions below, and exercised control over their
5 wages, hours, and working conditions. Plaintiff is informed and believes and thereon alleges
6 that, at all relevant times, each Defendant was the principal, agent, partner, joint venturer, officer,
7 director, controlling shareholder, subsidiary, affiliate, parent corporation, successor in interest
8 and/or predecessor in interest of some or all of the other Defendants, and was engaged with some
9 or all of the other Defendants in a joint enterprise for profit, and bore such other relationship s to
10 some or all of the other Defendants so as to be liable for their conduct with respect to the matters
11 alleged below. Plaintiff is informed and believes and thereon alleges that each Defendant acted
12 pursuant to and within the scope of the relationships alleged above, that each Defendant knew or
13 should have known about, and authorized, ratified, adopted, approved, controlled, aided and
14 abetted the conduct of all other Defendants.
15 ALLEGATIONS COMMON TO ALL CAUSES OF ACTION
16 13. Plaintiff is a California resident who worked for Defendants in the County of
17 Napa, State of California, as a painter during the statutory period. During the statutory period,
18 Defendants classified Plaintiff as non-exempt from California’s overtime requirements, and paid
19 Plaintiff an hourly wage.
20 14. Throughout the statutory period, Defendants failed to pay Plaintiff for all hours
21 worked (including minimum wages and overtime wages), failed to provide Plaintiff with
22 uninterrupted meal periods, failed to authorize and permit Plaintiff to take uninterrupted rest
23 periods, failed to indemnify Plaintiff for necessary business expenses, failed to timely pay all
24 final wages to Plaintiff when Defendants terminated Plaintiff’s employment, and failed to furnish
25 accurate wage statements to Plaintiff. As discussed below, Plaintiff’s experience working for
26 Defendants was typical and illustrative.
27 15. Throughout the statutory period, Defendants maintained a policy and practice of
28 not paying Plaintiff and the Class for all hours worked, including all overtime wages. Plaintiff
4
CLASS ACTION COMPLAINT
1 and the Class were required to work “off the clock” and uncompensated. For example, Plaintiff
2 and the Class were required to wait in line in order to clock into work and when returning from
3 meal breaks, off the clock and uncompensated. Also, during certain time periods, Plaintiff and
4 the Class were required to undergo temperature checks before clocking into work, including
5 waiting in line for these screenings, leading to additional off the clock time, uncompensated.
6 Also prior to clocking into work, Plaintiff and the Class were required to donn and doff, such as
7 putting on overalls, off the clock and uncompensated. Also, Plaintiff and the Class were
8 sometimes required to perform work duties prior to clocking into work, such as carrying paint
9 and preparing for the day’s work. After clocking out of work, Plaintiff and the Class were
10 sometimes required to undergo a security check, such as security looking through bags and
11 belongings, off the clock and uncompensated. Also throughout the statutory period, Plaintiff and
12 the Class received non-discretionary bonuses, shift differentials, and other remuneration.
13 However, Defendants failed to include all remuneration when calculating the correct overtime
14 rate of pay, meal break premium rate of pay, and sick day rate of pay, leading to underpayment.
15 16. Throughout the statutory period, Defendants have wrongfully failed to provide
16 Plaintiff and the Class with legally compliant meal periods. Defendants sometimes, but not
17 always, required Plaintiff and the Class to work in excess of five consecutive hours a day without
18 providing 30-minute, continuous and uninterrupted, duty-free meal period for every five hours of
19 work, or without compensating Plaintiff and the Class for meal periods that were not provided by
20 the end of the fifth hour of work or tenth hour of work. Defendants also did not adequately
21 inform Plaintiff and the Class of their right to take a meal period by the end of the fifth hour of
22 work, or, for shifts greater than 10 hours, by the end of the tenth hour of work. Accordingly,
23 Defendants’ policy and practice was to not provide meal periods to Plaintiff and the Class in
24 compliance with California law.
25 17. Throughout the statutory period, Defendants have wrongfully failed to authorize
26 and permit Plaintiff and the Class to take timely and duty-free rest periods. Defendants
27 sometimes, but not always, required Plaintiff and the Class to work in excess of four consecutive
28 hours a day without Defendants authorizing and permitting them to take a 10-minute, continuous
5
CLASS ACTION COMPLAINT
1 and uninterrupted, rest period for every four hours of work (or major fraction of four hours), or
2 without compensating Plaintiff and the Class for rest periods that were not authorized or
3 permitted. Defendants also did not adequately inform Plaintiff and the Class of their right to take
4 a rest period. Moreover, Defendants did not have adequate policies or practices permitting or
5 authorizing rest periods for Plaintiff and the Class, nor did Defendants have adequate policies or
6 practices regarding the timing of rest periods. Defendants also did not have adequate policies or
7 practices to verify whether Plaintiff and the Class were taking their required rest periods.
8 Further, Defendants did not maintain accurate records of employee work periods, and therefore
9 Defendants cannot demonstrate that Plaintiff and the Class took rest periods during the middle of
10 each work period. Accordingly, Defendants’ policy and practice was to not authorize and permit
11 Plaintiff and the Class to take rest periods in compliance with California law.
12 18. Throughout the statutory period, Defendants wrongfully required Plaintiff and the
13 Class to pay expenses that they incurred in direct discharge of their duties for Defendants without
14 reimbursement, such as the purchase of certain equipment/tools, facemasks, and the occasional
15 use of personal cellular telephones for work purposes.
16 19. Throughout the statutory period, Defendants failed to furnish Plaintiff and the
17 Class with accurate, itemized wage statements showing all applicable hourly rates, and all gross
18 and net wages earned (including correct hours worked, correct wages earned for hours worked,
19 correct overtime hours worked, correct wages for meal periods that were not provided in
20 accordance with California law, correct wages for rest periods that were not authorized and
21 permitted to take in accordance with California law, and Defendant’s address). Further, the wage
22 statements do not show Defendant’s address as required by California law. As a result of these
23 violations of California Labor Code § 226(a), the Plaintiff and the Class suffered injury because,
24 among other things:
25 (a) the violations led them to believe that they were not entitled to be paid
26 minimum wages, overtime wages, meal period premium wages, and rest
27 period premium wages to which they were entitled, even though they were
28 entitled;
6
CLASS ACTION COMPLAINT
1 (b) the violations led them to believe that they had been paid the minimum,
2 overtime, meal period premium, and rest period premium wages, even
3 though they had not been;
4 (c) the violations led them to believe they were not entitled to be paid
5 minimum, overtime, meal period premium, and rest period premium wages
6 at the correct California rate even though they were;
7 (d) the violations led them to believe they had been paid minimum, overtime,
8 meal period premium, and rest period premium wages at the correct
9 California rate even though they had not been;
10 (e) the violations hindered them from determining the amounts of minimum,
11 overtime, meal period premium, and rest period premium owed to them;
12 (f) in connection with their employment before and during this action, and in
13 connection with prosecuting this action, the violations caused them to have
14 to perform mathematical computations to determine the amounts of wages
15 owed to them, computations they would not have to make if the wage
16 statements contained the required accurate information;
17 (g) by understating the wages truly due them, the violations caused them to
18 lose entitlement and/or accrual of the full amount of Social Security,
19 disability, unemployment, and other governmental benefits;
20 (h) the wage statements inaccurately understated the wages, hours, and wages
21 rates to which Plaintiff and the Class were entitled, and Plaintiff and the
22 Class were paid less than the wages and wage rates to which they were
23 entitled.
24 Thus, Plaintiff and the Class are owed the amounts provided for in California Labor Code §
25 226(e), including actual damages.
26 CLASS ACTION ALLEGATIONS
27 20. Plaintiff brings certain claims individually, as well as on behalf of each and all
28 other persons similarly situated, and thus, seek class certification under California Code of Civil
7
CLASS ACTION COMPLAINT
1 Procedure § 382.
2 21. All claims alleged herein arise under California law for which Plaintiff seeks relief
3 authorized by California law.
4 22. The proposed Class consists of and is defined as:
5 All persons who worked for any Defendant in California as an hourly, non-
exempt employee at any time during the period beginning four years before the
6
filing of the initial complaint in this action and ending when notice to the Class
7 is sent.
8
23. At all material times, Plaintiff was a member of the Class.
9
24. Plaintiff undertakes this concerted activity to improve the wages and working
10
conditions of all Class Members.
11
25. There is a well-defined community of interest in the litigation and the Class is
12
readily ascertainable:
13
(a) Numerosity: The members of the Class (and each subclass, if any) are so
14
numerous that joinder of all members would be unfeasible and impractical.
15
The membership of the entire Class is unknown to Plaintiff at this time,
16
however, the Class is estimated to be greater than 100 individuals and the
17
identity of such membership is readily ascertainable by inspection of
18
Defendants’ records.
19
(b) Typicality: Plaintiff is qualified to, and will, fairly and adequately protect
20
the interests of each Class Member with whom there is a shared, well-
21
defined community of interest, and Plaintiff’s claims (or defenses, if any)
22
are typical of all Class Members’ claims as demonstrated herein.
23
(c) Adequacy: Plaintiff is qualified to, and will, fairly and adequately protect
24
the interests of each Class Member with whom there is a shared, well-
25
defined community of interest and typicality of claims, as demonstrated
26
herein. Plaintiff has no conflicts with or interests antagonistic to any Class
27
Member. Plaintiff’s attorneys, the proposed class counsel, are versed in
28
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CLASS ACTION COMPLAINT
1 the rules governing class action discovery, certification, and settlement.
2 Plaintiff has incurred, and throughout the duration of this action, will
3 continue to incur costs and attorneys’ fees that have been, are, and will be
4 necessarily expended for the prosecution of this action for the substantial
5 benefit of each class member.
6 (d) Superiority: A Class Action is superior to other available methods for the
7 fair and efficient adjudication of the controversy, including consideration
8 of:
9 1) The interests of the members of the Class in individually
10 controlling the prosecution or defense of separate actions;
11 2) The extent and nature of any litigation concerning the controversy
12 already commenced by or against members of the Class;
13 3) The desirability or undesirability of concentrating the litigation of
14 the claims in the particular forum; and
15 4) The difficulties likely to be encountered in the management of a
16 class action.
17 (e) Public Policy Considerations: The public policy of the State of California
18 is to resolve the California Labor Code claims of many employees through
19 a class action. Indeed, current employees are often afraid to assert their
20 rights out of fear of direct or indirect retaliation. Former employees are
21 also fearful of bringing actions because they believe their former
22 employers might damage their future endeavors through negative
23 references and/or other means. Class actions provide the class members
24 who are not named in the complaint with a type of anonymity that allows
25 for the vindication of their rights at the same time as their privacy is
26 protected.
27 26. There are common questions of law and fact as to the Class (and each subclass, if
28 any) that predominate over questions affecting only individual members, including without
9
CLASS ACTION COMPLAINT
1 limitation, whether, as alleged herein, Defendants have:
2 (a) Failed to pay Class Members for all hours worked, including minimum
3 wages, and overtime wages;
4 (b) Failed to provide meal periods and pay meal period premium wages to
5 Class Members;
6 (c) Failed to authorize and permit rest periods and pay rest period premium
7 wages to Class Members;
8 (d) Failed to promptly pay all wages due to Class Members upon their
9 discharge or resignation;
10 (e) Failed to maintain accurate records of all hours Class Members worked,
11 and all meal periods Class Members took or missed;
12 (f) Failed to reimburse Class Members for all necessary business expenses;
13 and
14 (g) Violated California Business & Professions Code §§ 17200 et. seq. as a
15 result of their illegal conduct as described above.
16 27. This Court should permit this action to be maintained as a class action pursuant to
17 California Code of Civil Procedure § 382 because:
18 (a) The questions of law and fact common to the Class predominate over any
19 question affecting only individual members;
20 (b) A class action is superior to any other available method for the fair and
21 efficient adjudication of the claims of the members of the Class;
22 (c) The members of the Class are so numerous that it is impractical to bring all
23 members of the class before the Court;
24 (d) Plaintiff, and the other members of the Class, will not be able to obtain
25 effective and economic legal redress unless the action is maintained as a
26 class action;
27 (e) There is a community of interest in obtaining appropriate legal and
28 equitable relief for the statutory violations, and in obtaining adequate
10
CLASS ACTION COMPLAINT
1 compensation for the damages and injuries for which Defendants are
2 responsible in an amount sufficient to adequately compensate the members
3 of the Class for the injuries sustained;
4 (f) Without class certification, the prosecution of separate actions by
5 individual members of the class would create a risk of:
6 1) Inconsistent or varying adjudications with respect to individual
7 members of the Class which would establish incompatible standards
8 of conduct for Defendants; and/or
9 2) Adjudications with respect to the individual members which would,
10 as a practical matter, be dispositive of the interests of other
11 members not parties to the adjudications, or would substantially
12 impair or impede their ability to protect their interests, including but
13 not limited to the potential for exhausting the funds available from
14 those parties who are, or may be, responsible Defendants; and,
15 (g) Defendants have acted or refused to act on grounds generally applicable to
16 the Class, thereby making final injunctive relief appropriate with respect to
17 the class as a whole.
18 28. Plaintiff contemplates the eventual issuance of notice to the proposed members of
19 the Class that would set forth the subject and nature of the instant action. The Defendants’ own
20 business records may be utilized for assistance in the preparation and issuance of the
21 contemplated notices. To the extent that any further notices may be required, Plaintiff would
22 contemplate the use of additional techniques and forms commonly used in class actions, such as
23 published notice, e-mail notice, website notice, first-class mail, or combinations thereof, or by
24 other methods suitable to the Class and deemed necessary and/or appropriate by the Court.
25 FIRST CAUSE OF ACTION
26 (Against all Defendants for Failure to Pay Minimum Wages for All Hours Worked)
27 29. Plaintiff incorporates by reference and re-alleges as if fully stated herein
28 paragraphs 1 through 19 in this Complaint.
11
CLASS ACTION COMPLAINT
1 30. “Hours worked” is the time during which an employee is subject to the control of
2 an employer, and includes all the time the employee is suffered or permitted to work, whether or
3 not required to do so.
4 31. At all relevant times herein mentioned, Defendants knowingly failed to pay to
5 Plaintiff and the Class compensation for all hours they worked. By their failure to pay
6 compensation for each hour worked as alleged above, Defendants willfully violated the
7 provisions of Section 1194 of the California Labor Code, and any additional applicable Wage
8 Orders, which require such compensation to non-exempt employees.
9 32. Accordingly, Plaintiff and the Class are entitled to recover minimum wages for all
10 non-overtime hours worked for Defendants.
11 33. By and through the conduct described above, Plaintiff and the Class have been
12 deprived of their rights to be paid wages earned by virtue of their employment with Defendants.
13 34. By virtue of the Defendants’ unlawful failure to pay additional compensation to
14 Plaintiff and the Class for their non-overtime hours worked without pay, Plaintiff and the Class
15 suffered, and will continue to suffer, damages in amounts which are presently unknown to
16 Plaintiff and the Class, but which exceed the jurisdictional minimum of this Court, and which
17 will be ascertained according to proof at trial.
18 35. By failing to keep adequate time records required by California Labor Code §
19 1174(d), Defendants have made it difficult to calculate the full extent of minimum wage
20 compensation due Plaintiff and the Class.
21 36. Pursuant to California Labor Code section 1194.2, Plaintiff and the Class are
22 entitled to recover liquidated damages (double damages) for Defendants’ failure to pay minimum
23 wages.
24 37. California Labor Code section 204 requires employers to provide employees with
25 all wages due and payable twice a month. Throughout the statute of limitations period applicable
26 to this cause of action, Plaintiff and the Class were entitled to be paid twice a month at rates
27 required by law, including minimum wages. However, during all such times, Defendants
28
12
CLASS ACTION COMPLAINT
1 systematically failed and refused to pay Plaintiff and the Class all such wages due, and failed to
2 pay those wages twice a month.
3 38. Plaintiff and the Class are also entitled to seek recovery of all unpaid minimum
4 wages, interest, and reasonable attorneys’ fees and costs pursuant to California Labor Code §§
5 218.5, 218.6, and 1194(a).
6 SECOND CAUSE OF ACTION
7 (Against all Defendants for Failure to Pay Overtime Wages)
8 39. Plaintiff incorporates by reference and re-alleges as if fully stated herein
9 paragraphs 1 through 19 in this Complaint.
10 40. California Labor Code § 510 provides that employees in California shall not be
11 employed more than eight (8) hours in any workday or forty (40) hours in a workweek unless
12 they receive additional compensation beyond their regular wages in amounts specified by law.
13 41. California Labor Code §§ 1194 and 1198 provide that employees in California
14 shall not be employed more than eight hours in any workday unless they receive additional
15 compensation beyond their regular wages in amounts specified by law. Additionally, California
16 Labor Code § 1198 states that the employment of an employee for longer hours than those fixed
17 by the Industrial Welfare Commission is unlawful.
18 42. At all times relevant hereto, Plaintiff and the Class have worked more than eight
19 hours in a workday, as employees of Defendants.
20 43. At all times relevant hereto, Defendants failed to pay Plaintiff and the Class
21 overtime compensation for the hours they have worked in excess of the maximum hours
22 permissible by law as required by California Labor Code § 510 and 1198. Plaintiff and the Class
23 are regularly required to work overtime hours.
24 44. By virtue of Defendants’ unlawful failure to pay additional premium rate
25 compensation to the Plaintiff and the Class for their overtime hours worked, Plaintiff and the
26 Class have suffered, and will continue to suffer, damages in amounts which are presently
27 unknown to them but which exceed the jurisdictional minimum of this Court and which will be
28 ascertained according to proof at trial.
13
CLASS ACTION COMPLAINT
1 45. By failing to keep adequate time records required by Labor Code § 1174(d),
2 Defendants have made it difficult to calculate the full extent of overtime compensation due to
3 Plaintiff and the Class.
4 46. Plaintiff and the Class also request recovery of overtime compensation according
5 to proof, interest, attorneys’ fees and costs pursuant to California Labor Code § 1194(a), as well
6 as the assessment of any statutory penalties against Defendants, in a sum as provided by the
7 California Labor Code and/or other statutes.
8 47. California Labor Code § 204 requires employers to provide employees with all
9 wages due and payable twice a month. The Wage Orders also provide that every employer shall
10 pay to each employee, on the established payday for the period involved, overtime wages for all
11 overtime hours worked in the payroll period. Defendants failed to provide Plaintiff and the Class
12 with all compensation due, in violation of California Labor Code § 204.
13 THIRD CAUSE OF ACTION
14 (Against All Defendants for Failure to Provide Meal Periods)
15 48. Plaintiff incorporates by reference and re-alleges as if fully stated herein
16 paragraphs 1 through 19 in this Complaint.
17 49. Under California law, Defendants have an affirmative obligation to relieve the
18 Plaintiff and the Class of all duty in order to take their first daily meal periods no later than the
19 start of Plaintiff and the Class’s sixth hour of work in a workday, and to take their second meal
20 periods no later than the start of the eleventh hour of work in the workday. Section 512 of the
21 California Labor Code, and Section 11 of the applicable Wage Orders require that an employer
22 provide unpaid meal periods of at least 30 minutes for each five-hour period worked. It is a
23 violation of Section 226.7 of the California Labor Code for an employer to require any employee
24 to work during any meal period mandated under any Wage Order.
25 50. Despite these legal requirements, Defendants regularly failed to provide Plaintiff
26 and the Class with both meal periods as required by California law. By their failure to permit
27 and authorize Plaintiff and the Class to take all meal periods as alleged above (or due to the fact
28 that Defendants made it impossible or impracticable to take these uninterrupted meal periods),
14
CLASS ACTION COMPLAINT
1 Defendants willfully violated the provisions of Section 226.7 of the California Labor Code and
2 the applicable Wage Orders.
3 51. Under California law, Plaintiff and the Class are entitled to be paid one hour of
4 additional wages for each workday he or she was not provided with all required meal period(s),
5 plus interest thereon.
6 FOURTH CAUSE OF ACTION
7 (Against All Defendants for Failure to Authorize and Permit Rest Periods)
8 52. Plaintiff incorporates by reference and re-alleges as if fully stated herein
9 paragraphs 1 through 19 in this Complaint.
10 53. Defendants are required by California law to authorize and permit breaks of 10
11 uninterrupted minutes for each four hours of work or major fraction of four hours (i.e. more than
12 two hours). Section 512 of the California Labor Code, the applicable Wage Orders require that
13 the employer permit and authorize all employees to take paid rest periods of 10 minutes each for
14 each 4-hour period worked. Thus, for example, if an employee’s work time is 6 hours and ten
15 minutes, the employee is entitled to two rest breaks. Each failure to authorize rest breaks as so
16 required is itself a violation of California’s rest break laws. It is a violation of Section 226.7 of
17 the California Labor Code for an employer to require any employee to work during any rest
18 period mandated under any Wage Order.
19 54. Despite these legal requirements, Defendants failed to authorize Plaintiff and the
20 Class to take rest breaks, regardless of whether employees worked more than 4 hours in a
21 workday. By their failure to permit and authorize Plaintiff and the Class to take rest periods as
22 alleged above (or due to the fact that Defendants made it impossible or impracticable to take
23 these uninterrupted rest periods), Defendants willfully violated the provisions of Section 226.7 of
24 the California Labor Code and the applicable Wage Orders.
25 55. Under California law, Plaintiff and the Class are entitled to be paid one hour of
26 premium wages rate for each workday he or she was not provided with all required rest break(s),
27 plus interest thereon.
28
15
CLASS ACTION COMPLAINT
1
2 FIFTH CAUSE OF ACTION
3 (Against All Defendants for Failure to Indemnify Necessary Business Expenses)
4 56. Plaintiff incorporates by reference and re-alleges as if fully stated herein
5 paragraphs 1 through 19 in this Complaint.
6 57. Defendants violated Labor Code section 2802 and the IWC Wage Orders, by
7 failing to pay and indemnify the Plaintiff and the Class for their necessary expenditures and
8 losses incurred in direct consequence of the discharge of their duties or of their obedience to
9 directions of Defendants.
10 58. As a result, Plaintiff and the Class were damaged at least in the amounts of the
11 expenses they paid, or which were deducted by Defendants from their wages.
12 59. Plaintiff and the class they represent are entitled to attorney’s fees, expenses, and
13 costs of suit pursuant to Labor Code section 2802(c) and interest pursuant to Labor Code section
14 2802(b).
15
16
17 SIXTH CAUSE OF ACTION
18 (Against all Defendants for Failure to Pay Wages of Discharged Employees – Waiting Time
19 Penalties)
20 60. Plaintiff incorporates by reference and re-alleges as if fully stated herein
21 paragraphs 1 through 19 in this Complaint.
22 61. At all times herein set forth, California Labor Code §§ 201 and 202 provide that if
23 an employer discharges an employee, the wages earned and unpaid at the time of discharge are
24 due and payable immediately, and that if an employee voluntarily leaves his or her employment,
25 his or her wages shall become due and payable not later than seventy-two (72) hours thereafter,
26 unless the employee has given seventy-two (72) hours previous notice of his or her intention to
27 quit, in which case the employee is entitled to his or her wages at the time of quitting.
28
16
CLASS ACTION COMPLAINT
1 62. Within the applicable statute of limitations, the employment of Plaintiff and many
2 other members of the Class ended, i.e. was terminated by quitting or discharge, and the
3 employment of others will be. However, during the relevant time period, Defendants failed, and
4 continue to fail to pay terminated Class Members, without abatement, all wages required to be
5 paid by California Labor Code sections 201 and 202 either at the time of discharge, or within
6 seventy-two (72) hours of their leaving Defendants’ employ.
7 63. Defendants’ failure to pay Plaintiff and those Class members who are no longer
8 employed by Defendants their wages earned and unpaid at the time of discharge, or within
9 seventy-two (72) hours of their leaving Defendants’ employ, is in violation of California Labor
10 Code §§ 201 and 202.
11 64. California Labor Code § 203 provides that if an employer willfully fails to pay
12 wages owed, in accordance with sections 201 and 202, then the wages of the employee shall
13 continue as a penalty wage from the due date, and at the same rate until paid or until an action is
14 commenced; but the wages shall not continue for more than thirty (30) days.
15 65. Plaintiff and the Class are entitled to recover from Defendants their additionally
16 accruing wages for each day they were not paid, at their regular hourly rate of pay, up to 30 days
17 maximum pursuant to California Labor Code § 203.
18 66. Pursuant to California Labor Code §§ 218.5, 218.6 and 1194, Plaintiff and the
19 Class are also entitled to an award of reasonable attorneys’ fees, interest, expenses, and costs
20 incurred in this action.
21 SEVENTH CAUSE OF ACTION
22 (Against all Defendants for Failure to Provide and Maintain Accurate and
23 Compliant Wage Records)
24 67. Plaintiff incorporates by reference and re-alleges as if fully stated herein
25 paragraphs 1 through 19 in this Complaint.
26 68. At all material times set forth herein, California Labor Code § 226(a) provides that
27 every employer shall furnish each of his or her employees an accurate itemized wage statement
28 in writing showing nine pieces of information, including: (1) gross wages earned, (2) total hours
17
CLASS ACTION COMPLAINT
1 worked by the employee, (3) the number of piece-rate units earned and any applicable piece rate
2 if the employee is paid on a piece-rate basis, (4) all deductions, provided that all deductions made
3 on written orders of the employee may be aggregated and shown as one item, (5) net wages
4 earned, (6) the inclusive dates of the period for which the employee is paid, (7) the name of the
5 employee and the last four digits of his or her social security number or an employee
6 identification number other than a social security number, (8) the name and address of the legal
7 entity that is the employer, and (9) all applicable hourly rates in effect during the pay period and
8 the corresponding number of hours worked at each hourly rate by the employee.
9 69. Defendants have intentionally and willfully failed to provide employees with
10 complete and accurate wage statements. The deficiencies include, among other things, the
11 failure to correctly identify the gross wages earned by Plaintiff and the Class, the failure to list
12 the true “total hours worked by the employee,” and the failure to list the true net wages earned.
13 70. As a result of Defendants’ violation of California Labor Code § 226(a), Plaintiff
14 and the Class have suffered injury and damage to their statutorily-protected rights.
15 71. Specifically, Plaintiff and the members of the Class have been injured by
16 Defendants’ intentional violation of California
Preview
1 Kane Moon (SBN 249834) E-mail: kmoon@moonlawgroup.com 2 Daniel J. Park (SBN 274973) E-mail: dpark@moonlawgroup.com 3 Michael Citrin (SBN 335033) E-mail: mcitrin@moonlawgroup.com 4 MOON LAW GROUP, PC 1055 W. Seventh St., Suite 1880 5 Los Angeles, California 90017 Telephone: (213) 232-3128 6 Facsimile: (213) 232-3125 7 Attorneys for Plaintiff Marco Negrete Hernandez 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF NAPA 10 11 MARCO NEGRETE HERNANDEZ, Case No.: individually, and on behalf of all others similarly 12 situated, CLASS ACTION COMPLAINT: 13 Plaintiff, 1. Failure to Pay Minimum Wages [Cal. Lab. Code §§ 204, 1194, 1194.2, and 1197]; 14 2. Failure to Pay Overtime Compensation vs. [Cal. Lab. Code §§ 1194 and 1198]; 15 3. Failure to Provide Meal Periods [Cal. Lab. Code §§ 226.7, 512]; 16 WESTLAKE ROYAL STONE, LLC; 4. Failure to Authorize and Permit Rest WESTLAKE MANAGEMENT SERVICES, Breaks [Cal. Lab. Code §§ 226.7]; 17 INC.; and DOES 1 through 10, inclusive, 5. Failure to Indemnify Necessary Business Expenses [Cal. Lab. Code § 2802]; 18 Defendants 6. Failure to Timely Pay Final Wages at Termination [Cal. Lab. Code §§ 201-203]; 19 7. Failure to Provide Accurate Itemized Wage Statements [Cal. Lab. Code § 226]; 20 and 8. Unfair Business Practices [Cal. Bus. & 21 Prof. Code §§ 17200, et seq.]. 22 DEMAND FOR JURY TRIAL 23 24 25 26 27 28 CLASS ACTION COMPLAINT 1 TABLE OF CONTENTS 2 INTRODUCTION & PRELIMINARY STATEMENT .............................................................. 1 3 THE PARTIES .......................................................................................................................... 3 4 A. Plaintiff.......................................................................................................................... 3 5 B. Defendants..................................................................................................................... 3 6 ALLEGATIONS COMMON TO ALL CAUSES OF ACTION ................................................ 4 7 CLASS ACTION ALLEGATIONS ........................................................................................... 7 8 FIRST CAUSE OF ACTION ................................................................................................... 11 9 SECOND CAUSE OF ACTION .............................................................................................. 13 10 THIRD CAUSE OF ACTION ................................................................................................. 14 11 FOURTH CAUSE OF ACTION .............................................................................................. 15 12 FIFTH CAUSE OF ACTION................................................................................................... 16 13 SIXTH CAUSE OF ACTION .................................................................................................. 16 14 SEVENTH CAUSE OF ACTION ............................................................................................ 17 15 EIGHTH CAUSE OF ACTION ............................................................................................... 19 16 PRAYER FOR RELIEF ........................................................................................................... 22 17 DEMAND FOR JURY TRIAL ................................................................................................ 25 18 19 20 21 22 23 24 25 26 27 28 i CLASS ACTION COMPLAINT 1 Plaintiff Marco Negrete Hernandez (“Plaintiff”), based upon facts that either have 2 evidentiary support or are likely to have evidentiary support after a reasonable opportunity for 3 further investigation and discovery, alleges as follows: 4 INTRODUCTION & PRELIMINARY STATEMENT 5 1. Plaintiff brings this action against Defendants Westlake Royal Stone, LLC, 6 Westlake Management Services, Inc., and Does 1 through 10 (collectively referred to as 7 “Defendants”) for California Labor Code violations and unfair business practices stemming from 8 Defendants’ failure to pay minimum wages, failure to pay overtime wages, failure to provide 9 meal periods, failure to authorize and permit rest periods, failure to maintain accurate records of 10 hours worked and meal periods, failure to timely pay all wages to terminated employees, failure 11 to indemnify necessary business expenses, and failure to furnish accurate wage statements. 12 2. Plaintiff brings the First through Eighth Causes of Action individually and as a 13 class action on behalf of himself and certain current and former employees of Defendants 14 (hereinafter collectively referred to as the “Class” or “Class Members” and defined more fully 15 below). The Class consists of Plaintiff and all other persons who have been employed by any 16 Defendants in California as an hourly-paid, non-exempt employeeduring the statute of limitations 17 period applicable to the claims pleaded here. 18 3. Defendants own/owned and operate/operated an industry, business, and 19 establishment within the State of California, including Napa County. As such, and based upon all 20 the facts and circumstances incident to Defendants’ business in California, Defendants are 21 subject to the California Labor Code, Wage Orders issued by the Industrial Welfare Commission 22 (“IWC”), and the California Business & Professions Code. 23 4. Despite these requirements, throughout the statutory period Defendants 24 maintained a systematic, company-wide policy and practice of: 25 (a) Failing to pay employees for all hours worked, including all minimum 26 wages, and overtime wages in compliance with the California Labor Code 27 and IWC Wage Orders; 28 1 CLASS ACTION COMPLAINT 1 (b) Failing to provide employees with timely and duty-free meal periods in 2 compliance with the California Labor Code and IWC Wage Orders, failing 3 to maintain accurate records of all meal periods taken or missed, and 4 failing to pay an additional hour’s pay for each workday a meal period 5 violation occurred; 6 (c) Failing to authorize and permit employees to take timely and duty-free rest 7 periods in compliance with the California Labor Code and IWC Wage 8 Orders, and failing to pay an additional hour’s pay for each workday a rest 9 period violation occurred; 10 (d) Failing to indemnify employees for necessary business expenses incurred; 11 (e) Willfully failing to pay employees all minimum wages, overtime wages, 12 meal period premium wages, and rest period premium wages due within 13 the time period specified by California law when employment terminates; 14 and 15 (f) Failing to maintain accurate records of the hours that employees worked. 16 (g) Failing to provide employees with accurate, itemized wage statements 17 containing all the information required by the California Labor Code and 18 IWC Wage Orders. 19 5. On information and belief, Defendants, and each of them were on actual and 20 constructive notice of the improprieties alleged herein and intentionally refused to rectify their 21 unlawful policies. Defendants’ violations, as alleged above, during all relevant times herein were 22 willful and deliberate. 23 6. At all relevant times, Defendants were and are legally responsible for all of the 24 unlawful conduct, policies, practices, acts and omissions as described in each and all of the 25 foregoing paragraphs as the employer of Plaintiff and the Class. Further, Defendants are 26 responsible for each of the unlawful acts or omissions complained of herein under the doctrine of 27 “respondeat superior”. 28 2 CLASS ACTION COMPLAINT 1 THE PARTIES 2 A. Plaintiff 3 7. Plaintiff is a California resident that worked for Defendants in the County of 4 Napa, State of California, as a painter from approximately October 2021 to April 2023. 5 8. Plaintiff reserves the right to seek leave to amend this complaint to add new 6 plaintiffs, if necessary, in order to establish suitable representative(s) pursuant to La Sala v. 7 American Savings and Loan Association (1971) 5 Cal.3d 864, 872, and other applicable law. 8 B. Defendants 9 9. Plaintiff is informed and believes, and based upon that information and belief 10 alleges, that Defendants are: 11 (a) Business entities with their principal places of business in Napa, 12 California. 13 (b) Business entities conducting business in numerous counties throughout the 14 State of California, including in Napa County; 15 (c) The former employers of Plaintiff, and the current and/or former employers 16 of the putative Class. Defendants suffered and permitted Plaintiff and the 17 Class to work, and/or controlled their wages, hours, or working conditions; 18 and 19 (d) At all times mentioned herein, Defendants are and were the joint employers 20 of Plaintiff and the Class. 21 10. Plaintiff does not currently know the true names or capacities of the persons or 22 entities sued herein as Does 1-10, inclusive, and therefore sues said Defendants by such fictitious 23 names. Each of the Doe Defendants was in some manner legally responsible for the damages 24 suffered by Plaintiff and the Class as alleged herein. Plaintiff will amend this complaint to set 25 forth the true names and capacities of these Defendants when they have been ascertained, 26 together with appropriate charging allegations, as may be necessary. 27 11. At all times mentioned herein, the Defendants named as Does 1-10, inclusive, and 28 each of them, were residents of, doing business in, availed themselves of the jurisdiction of, 3 CLASS ACTION COMPLAINT 1 and/or injured a significant number of the Plaintiff and the Class in the State of California. 2 12. Plaintiff is informed and believes and thereon alleges that at all relevant times 3 each Defendant, directly or indirectly, or through agents or other persons, employed Plaintiff and 4 the other employees described in the class definitions below, and exercised control over their 5 wages, hours, and working conditions. Plaintiff is informed and believes and thereon alleges 6 that, at all relevant times, each Defendant was the principal, agent, partner, joint venturer, officer, 7 director, controlling shareholder, subsidiary, affiliate, parent corporation, successor in interest 8 and/or predecessor in interest of some or all of the other Defendants, and was engaged with some 9 or all of the other Defendants in a joint enterprise for profit, and bore such other relationship s to 10 some or all of the other Defendants so as to be liable for their conduct with respect to the matters 11 alleged below. Plaintiff is informed and believes and thereon alleges that each Defendant acted 12 pursuant to and within the scope of the relationships alleged above, that each Defendant knew or 13 should have known about, and authorized, ratified, adopted, approved, controlled, aided and 14 abetted the conduct of all other Defendants. 15 ALLEGATIONS COMMON TO ALL CAUSES OF ACTION 16 13. Plaintiff is a California resident who worked for Defendants in the County of 17 Napa, State of California, as a painter during the statutory period. During the statutory period, 18 Defendants classified Plaintiff as non-exempt from California’s overtime requirements, and paid 19 Plaintiff an hourly wage. 20 14. Throughout the statutory period, Defendants failed to pay Plaintiff for all hours 21 worked (including minimum wages and overtime wages), failed to provide Plaintiff with 22 uninterrupted meal periods, failed to authorize and permit Plaintiff to take uninterrupted rest 23 periods, failed to indemnify Plaintiff for necessary business expenses, failed to timely pay all 24 final wages to Plaintiff when Defendants terminated Plaintiff’s employment, and failed to furnish 25 accurate wage statements to Plaintiff. As discussed below, Plaintiff’s experience working for 26 Defendants was typical and illustrative. 27 15. Throughout the statutory period, Defendants maintained a policy and practice of 28 not paying Plaintiff and the Class for all hours worked, including all overtime wages. Plaintiff 4 CLASS ACTION COMPLAINT 1 and the Class were required to work “off the clock” and uncompensated. For example, Plaintiff 2 and the Class were required to wait in line in order to clock into work and when returning from 3 meal breaks, off the clock and uncompensated. Also, during certain time periods, Plaintiff and 4 the Class were required to undergo temperature checks before clocking into work, including 5 waiting in line for these screenings, leading to additional off the clock time, uncompensated. 6 Also prior to clocking into work, Plaintiff and the Class were required to donn and doff, such as 7 putting on overalls, off the clock and uncompensated. Also, Plaintiff and the Class were 8 sometimes required to perform work duties prior to clocking into work, such as carrying paint 9 and preparing for the day’s work. After clocking out of work, Plaintiff and the Class were 10 sometimes required to undergo a security check, such as security looking through bags and 11 belongings, off the clock and uncompensated. Also throughout the statutory period, Plaintiff and 12 the Class received non-discretionary bonuses, shift differentials, and other remuneration. 13 However, Defendants failed to include all remuneration when calculating the correct overtime 14 rate of pay, meal break premium rate of pay, and sick day rate of pay, leading to underpayment. 15 16. Throughout the statutory period, Defendants have wrongfully failed to provide 16 Plaintiff and the Class with legally compliant meal periods. Defendants sometimes, but not 17 always, required Plaintiff and the Class to work in excess of five consecutive hours a day without 18 providing 30-minute, continuous and uninterrupted, duty-free meal period for every five hours of 19 work, or without compensating Plaintiff and the Class for meal periods that were not provided by 20 the end of the fifth hour of work or tenth hour of work. Defendants also did not adequately 21 inform Plaintiff and the Class of their right to take a meal period by the end of the fifth hour of 22 work, or, for shifts greater than 10 hours, by the end of the tenth hour of work. Accordingly, 23 Defendants’ policy and practice was to not provide meal periods to Plaintiff and the Class in 24 compliance with California law. 25 17. Throughout the statutory period, Defendants have wrongfully failed to authorize 26 and permit Plaintiff and the Class to take timely and duty-free rest periods. Defendants 27 sometimes, but not always, required Plaintiff and the Class to work in excess of four consecutive 28 hours a day without Defendants authorizing and permitting them to take a 10-minute, continuous 5 CLASS ACTION COMPLAINT 1 and uninterrupted, rest period for every four hours of work (or major fraction of four hours), or 2 without compensating Plaintiff and the Class for rest periods that were not authorized or 3 permitted. Defendants also did not adequately inform Plaintiff and the Class of their right to take 4 a rest period. Moreover, Defendants did not have adequate policies or practices permitting or 5 authorizing rest periods for Plaintiff and the Class, nor did Defendants have adequate policies or 6 practices regarding the timing of rest periods. Defendants also did not have adequate policies or 7 practices to verify whether Plaintiff and the Class were taking their required rest periods. 8 Further, Defendants did not maintain accurate records of employee work periods, and therefore 9 Defendants cannot demonstrate that Plaintiff and the Class took rest periods during the middle of 10 each work period. Accordingly, Defendants’ policy and practice was to not authorize and permit 11 Plaintiff and the Class to take rest periods in compliance with California law. 12 18. Throughout the statutory period, Defendants wrongfully required Plaintiff and the 13 Class to pay expenses that they incurred in direct discharge of their duties for Defendants without 14 reimbursement, such as the purchase of certain equipment/tools, facemasks, and the occasional 15 use of personal cellular telephones for work purposes. 16 19. Throughout the statutory period, Defendants failed to furnish Plaintiff and the 17 Class with accurate, itemized wage statements showing all applicable hourly rates, and all gross 18 and net wages earned (including correct hours worked, correct wages earned for hours worked, 19 correct overtime hours worked, correct wages for meal periods that were not provided in 20 accordance with California law, correct wages for rest periods that were not authorized and 21 permitted to take in accordance with California law, and Defendant’s address). Further, the wage 22 statements do not show Defendant’s address as required by California law. As a result of these 23 violations of California Labor Code § 226(a), the Plaintiff and the Class suffered injury because, 24 among other things: 25 (a) the violations led them to believe that they were not entitled to be paid 26 minimum wages, overtime wages, meal period premium wages, and rest 27 period premium wages to which they were entitled, even though they were 28 entitled; 6 CLASS ACTION COMPLAINT 1 (b) the violations led them to believe that they had been paid the minimum, 2 overtime, meal period premium, and rest period premium wages, even 3 though they had not been; 4 (c) the violations led them to believe they were not entitled to be paid 5 minimum, overtime, meal period premium, and rest period premium wages 6 at the correct California rate even though they were; 7 (d) the violations led them to believe they had been paid minimum, overtime, 8 meal period premium, and rest period premium wages at the correct 9 California rate even though they had not been; 10 (e) the violations hindered them from determining the amounts of minimum, 11 overtime, meal period premium, and rest period premium owed to them; 12 (f) in connection with their employment before and during this action, and in 13 connection with prosecuting this action, the violations caused them to have 14 to perform mathematical computations to determine the amounts of wages 15 owed to them, computations they would not have to make if the wage 16 statements contained the required accurate information; 17 (g) by understating the wages truly due them, the violations caused them to 18 lose entitlement and/or accrual of the full amount of Social Security, 19 disability, unemployment, and other governmental benefits; 20 (h) the wage statements inaccurately understated the wages, hours, and wages 21 rates to which Plaintiff and the Class were entitled, and Plaintiff and the 22 Class were paid less than the wages and wage rates to which they were 23 entitled. 24 Thus, Plaintiff and the Class are owed the amounts provided for in California Labor Code § 25 226(e), including actual damages. 26 CLASS ACTION ALLEGATIONS 27 20. Plaintiff brings certain claims individually, as well as on behalf of each and all 28 other persons similarly situated, and thus, seek class certification under California Code of Civil 7 CLASS ACTION COMPLAINT 1 Procedure § 382. 2 21. All claims alleged herein arise under California law for which Plaintiff seeks relief 3 authorized by California law. 4 22. The proposed Class consists of and is defined as: 5 All persons who worked for any Defendant in California as an hourly, non- exempt employee at any time during the period beginning four years before the 6 filing of the initial complaint in this action and ending when notice to the Class 7 is sent. 8 23. At all material times, Plaintiff was a member of the Class. 9 24. Plaintiff undertakes this concerted activity to improve the wages and working 10 conditions of all Class Members. 11 25. There is a well-defined community of interest in the litigation and the Class is 12 readily ascertainable: 13 (a) Numerosity: The members of the Class (and each subclass, if any) are so 14 numerous that joinder of all members would be unfeasible and impractical. 15 The membership of the entire Class is unknown to Plaintiff at this time, 16 however, the Class is estimated to be greater than 100 individuals and the 17 identity of such membership is readily ascertainable by inspection of 18 Defendants’ records. 19 (b) Typicality: Plaintiff is qualified to, and will, fairly and adequately protect 20 the interests of each Class Member with whom there is a shared, well- 21 defined community of interest, and Plaintiff’s claims (or defenses, if any) 22 are typical of all Class Members’ claims as demonstrated herein. 23 (c) Adequacy: Plaintiff is qualified to, and will, fairly and adequately protect 24 the interests of each Class Member with whom there is a shared, well- 25 defined community of interest and typicality of claims, as demonstrated 26 herein. Plaintiff has no conflicts with or interests antagonistic to any Class 27 Member. Plaintiff’s attorneys, the proposed class counsel, are versed in 28 8 CLASS ACTION COMPLAINT 1 the rules governing class action discovery, certification, and settlement. 2 Plaintiff has incurred, and throughout the duration of this action, will 3 continue to incur costs and attorneys’ fees that have been, are, and will be 4 necessarily expended for the prosecution of this action for the substantial 5 benefit of each class member. 6 (d) Superiority: A Class Action is superior to other available methods for the 7 fair and efficient adjudication of the controversy, including consideration 8 of: 9 1) The interests of the members of the Class in individually 10 controlling the prosecution or defense of separate actions; 11 2) The extent and nature of any litigation concerning the controversy 12 already commenced by or against members of the Class; 13 3) The desirability or undesirability of concentrating the litigation of 14 the claims in the particular forum; and 15 4) The difficulties likely to be encountered in the management of a 16 class action. 17 (e) Public Policy Considerations: The public policy of the State of California 18 is to resolve the California Labor Code claims of many employees through 19 a class action. Indeed, current employees are often afraid to assert their 20 rights out of fear of direct or indirect retaliation. Former employees are 21 also fearful of bringing actions because they believe their former 22 employers might damage their future endeavors through negative 23 references and/or other means. Class actions provide the class members 24 who are not named in the complaint with a type of anonymity that allows 25 for the vindication of their rights at the same time as their privacy is 26 protected. 27 26. There are common questions of law and fact as to the Class (and each subclass, if 28 any) that predominate over questions affecting only individual members, including without 9 CLASS ACTION COMPLAINT 1 limitation, whether, as alleged herein, Defendants have: 2 (a) Failed to pay Class Members for all hours worked, including minimum 3 wages, and overtime wages; 4 (b) Failed to provide meal periods and pay meal period premium wages to 5 Class Members; 6 (c) Failed to authorize and permit rest periods and pay rest period premium 7 wages to Class Members; 8 (d) Failed to promptly pay all wages due to Class Members upon their 9 discharge or resignation; 10 (e) Failed to maintain accurate records of all hours Class Members worked, 11 and all meal periods Class Members took or missed; 12 (f) Failed to reimburse Class Members for all necessary business expenses; 13 and 14 (g) Violated California Business & Professions Code §§ 17200 et. seq. as a 15 result of their illegal conduct as described above. 16 27. This Court should permit this action to be maintained as a class action pursuant to 17 California Code of Civil Procedure § 382 because: 18 (a) The questions of law and fact common to the Class predominate over any 19 question affecting only individual members; 20 (b) A class action is superior to any other available method for the fair and 21 efficient adjudication of the claims of the members of the Class; 22 (c) The members of the Class are so numerous that it is impractical to bring all 23 members of the class before the Court; 24 (d) Plaintiff, and the other members of the Class, will not be able to obtain 25 effective and economic legal redress unless the action is maintained as a 26 class action; 27 (e) There is a community of interest in obtaining appropriate legal and 28 equitable relief for the statutory violations, and in obtaining adequate 10 CLASS ACTION COMPLAINT 1 compensation for the damages and injuries for which Defendants are 2 responsible in an amount sufficient to adequately compensate the members 3 of the Class for the injuries sustained; 4 (f) Without class certification, the prosecution of separate actions by 5 individual members of the class would create a risk of: 6 1) Inconsistent or varying adjudications with respect to individual 7 members of the Class which would establish incompatible standards 8 of conduct for Defendants; and/or 9 2) Adjudications with respect to the individual members which would, 10 as a practical matter, be dispositive of the interests of other 11 members not parties to the adjudications, or would substantially 12 impair or impede their ability to protect their interests, including but 13 not limited to the potential for exhausting the funds available from 14 those parties who are, or may be, responsible Defendants; and, 15 (g) Defendants have acted or refused to act on grounds generally applicable to 16 the Class, thereby making final injunctive relief appropriate with respect to 17 the class as a whole. 18 28. Plaintiff contemplates the eventual issuance of notice to the proposed members of 19 the Class that would set forth the subject and nature of the instant action. The Defendants’ own 20 business records may be utilized for assistance in the preparation and issuance of the 21 contemplated notices. To the extent that any further notices may be required, Plaintiff would 22 contemplate the use of additional techniques and forms commonly used in class actions, such as 23 published notice, e-mail notice, website notice, first-class mail, or combinations thereof, or by 24 other methods suitable to the Class and deemed necessary and/or appropriate by the Court. 25 FIRST CAUSE OF ACTION 26 (Against all Defendants for Failure to Pay Minimum Wages for All Hours Worked) 27 29. Plaintiff incorporates by reference and re-alleges as if fully stated herein 28 paragraphs 1 through 19 in this Complaint. 11 CLASS ACTION COMPLAINT 1 30. “Hours worked” is the time during which an employee is subject to the control of 2 an employer, and includes all the time the employee is suffered or permitted to work, whether or 3 not required to do so. 4 31. At all relevant times herein mentioned, Defendants knowingly failed to pay to 5 Plaintiff and the Class compensation for all hours they worked. By their failure to pay 6 compensation for each hour worked as alleged above, Defendants willfully violated the 7 provisions of Section 1194 of the California Labor Code, and any additional applicable Wage 8 Orders, which require such compensation to non-exempt employees. 9 32. Accordingly, Plaintiff and the Class are entitled to recover minimum wages for all 10 non-overtime hours worked for Defendants. 11 33. By and through the conduct described above, Plaintiff and the Class have been 12 deprived of their rights to be paid wages earned by virtue of their employment with Defendants. 13 34. By virtue of the Defendants’ unlawful failure to pay additional compensation to 14 Plaintiff and the Class for their non-overtime hours worked without pay, Plaintiff and the Class 15 suffered, and will continue to suffer, damages in amounts which are presently unknown to 16 Plaintiff and the Class, but which exceed the jurisdictional minimum of this Court, and which 17 will be ascertained according to proof at trial. 18 35. By failing to keep adequate time records required by California Labor Code § 19 1174(d), Defendants have made it difficult to calculate the full extent of minimum wage 20 compensation due Plaintiff and the Class. 21 36. Pursuant to California Labor Code section 1194.2, Plaintiff and the Class are 22 entitled to recover liquidated damages (double damages) for Defendants’ failure to pay minimum 23 wages. 24 37. California Labor Code section 204 requires employers to provide employees with 25 all wages due and payable twice a month. Throughout the statute of limitations period applicable 26 to this cause of action, Plaintiff and the Class were entitled to be paid twice a month at rates 27 required by law, including minimum wages. However, during all such times, Defendants 28 12 CLASS ACTION COMPLAINT 1 systematically failed and refused to pay Plaintiff and the Class all such wages due, and failed to 2 pay those wages twice a month. 3 38. Plaintiff and the Class are also entitled to seek recovery of all unpaid minimum 4 wages, interest, and reasonable attorneys’ fees and costs pursuant to California Labor Code §§ 5 218.5, 218.6, and 1194(a). 6 SECOND CAUSE OF ACTION 7 (Against all Defendants for Failure to Pay Overtime Wages) 8 39. Plaintiff incorporates by reference and re-alleges as if fully stated herein 9 paragraphs 1 through 19 in this Complaint. 10 40. California Labor Code § 510 provides that employees in California shall not be 11 employed more than eight (8) hours in any workday or forty (40) hours in a workweek unless 12 they receive additional compensation beyond their regular wages in amounts specified by law. 13 41. California Labor Code §§ 1194 and 1198 provide that employees in California 14 shall not be employed more than eight hours in any workday unless they receive additional 15 compensation beyond their regular wages in amounts specified by law. Additionally, California 16 Labor Code § 1198 states that the employment of an employee for longer hours than those fixed 17 by the Industrial Welfare Commission is unlawful. 18 42. At all times relevant hereto, Plaintiff and the Class have worked more than eight 19 hours in a workday, as employees of Defendants. 20 43. At all times relevant hereto, Defendants failed to pay Plaintiff and the Class 21 overtime compensation for the hours they have worked in excess of the maximum hours 22 permissible by law as required by California Labor Code § 510 and 1198. Plaintiff and the Class 23 are regularly required to work overtime hours. 24 44. By virtue of Defendants’ unlawful failure to pay additional premium rate 25 compensation to the Plaintiff and the Class for their overtime hours worked, Plaintiff and the 26 Class have suffered, and will continue to suffer, damages in amounts which are presently 27 unknown to them but which exceed the jurisdictional minimum of this Court and which will be 28 ascertained according to proof at trial. 13 CLASS ACTION COMPLAINT 1 45. By failing to keep adequate time records required by Labor Code § 1174(d), 2 Defendants have made it difficult to calculate the full extent of overtime compensation due to 3 Plaintiff and the Class. 4 46. Plaintiff and the Class also request recovery of overtime compensation according 5 to proof, interest, attorneys’ fees and costs pursuant to California Labor Code § 1194(a), as well 6 as the assessment of any statutory penalties against Defendants, in a sum as provided by the 7 California Labor Code and/or other statutes. 8 47. California Labor Code § 204 requires employers to provide employees with all 9 wages due and payable twice a month. The Wage Orders also provide that every employer shall 10 pay to each employee, on the established payday for the period involved, overtime wages for all 11 overtime hours worked in the payroll period. Defendants failed to provide Plaintiff and the Class 12 with all compensation due, in violation of California Labor Code § 204. 13 THIRD CAUSE OF ACTION 14 (Against All Defendants for Failure to Provide Meal Periods) 15 48. Plaintiff incorporates by reference and re-alleges as if fully stated herein 16 paragraphs 1 through 19 in this Complaint. 17 49. Under California law, Defendants have an affirmative obligation to relieve the 18 Plaintiff and the Class of all duty in order to take their first daily meal periods no later than the 19 start of Plaintiff and the Class’s sixth hour of work in a workday, and to take their second meal 20 periods no later than the start of the eleventh hour of work in the workday. Section 512 of the 21 California Labor Code, and Section 11 of the applicable Wage Orders require that an employer 22 provide unpaid meal periods of at least 30 minutes for each five-hour period worked. It is a 23 violation of Section 226.7 of the California Labor Code for an employer to require any employee 24 to work during any meal period mandated under any Wage Order. 25 50. Despite these legal requirements, Defendants regularly failed to provide Plaintiff 26 and the Class with both meal periods as required by California law. By their failure to permit 27 and authorize Plaintiff and the Class to take all meal periods as alleged above (or due to the fact 28 that Defendants made it impossible or impracticable to take these uninterrupted meal periods), 14 CLASS ACTION COMPLAINT 1 Defendants willfully violated the provisions of Section 226.7 of the California Labor Code and 2 the applicable Wage Orders. 3 51. Under California law, Plaintiff and the Class are entitled to be paid one hour of 4 additional wages for each workday he or she was not provided with all required meal period(s), 5 plus interest thereon. 6 FOURTH CAUSE OF ACTION 7 (Against All Defendants for Failure to Authorize and Permit Rest Periods) 8 52. Plaintiff incorporates by reference and re-alleges as if fully stated herein 9 paragraphs 1 through 19 in this Complaint. 10 53. Defendants are required by California law to authorize and permit breaks of 10 11 uninterrupted minutes for each four hours of work or major fraction of four hours (i.e. more than 12 two hours). Section 512 of the California Labor Code, the applicable Wage Orders require that 13 the employer permit and authorize all employees to take paid rest periods of 10 minutes each for 14 each 4-hour period worked. Thus, for example, if an employee’s work time is 6 hours and ten 15 minutes, the employee is entitled to two rest breaks. Each failure to authorize rest breaks as so 16 required is itself a violation of California’s rest break laws. It is a violation of Section 226.7 of 17 the California Labor Code for an employer to require any employee to work during any rest 18 period mandated under any Wage Order. 19 54. Despite these legal requirements, Defendants failed to authorize Plaintiff and the 20 Class to take rest breaks, regardless of whether employees worked more than 4 hours in a 21 workday. By their failure to permit and authorize Plaintiff and the Class to take rest periods as 22 alleged above (or due to the fact that Defendants made it impossible or impracticable to take 23 these uninterrupted rest periods), Defendants willfully violated the provisions of Section 226.7 of 24 the California Labor Code and the applicable Wage Orders. 25 55. Under California law, Plaintiff and the Class are entitled to be paid one hour of 26 premium wages rate for each workday he or she was not provided with all required rest break(s), 27 plus interest thereon. 28 15 CLASS ACTION COMPLAINT 1 2 FIFTH CAUSE OF ACTION 3 (Against All Defendants for Failure to Indemnify Necessary Business Expenses) 4 56. Plaintiff incorporates by reference and re-alleges as if fully stated herein 5 paragraphs 1 through 19 in this Complaint. 6 57. Defendants violated Labor Code section 2802 and the IWC Wage Orders, by 7 failing to pay and indemnify the Plaintiff and the Class for their necessary expenditures and 8 losses incurred in direct consequence of the discharge of their duties or of their obedience to 9 directions of Defendants. 10 58. As a result, Plaintiff and the Class were damaged at least in the amounts of the 11 expenses they paid, or which were deducted by Defendants from their wages. 12 59. Plaintiff and the class they represent are entitled to attorney’s fees, expenses, and 13 costs of suit pursuant to Labor Code section 2802(c) and interest pursuant to Labor Code section 14 2802(b). 15 16 17 SIXTH CAUSE OF ACTION 18 (Against all Defendants for Failure to Pay Wages of Discharged Employees – Waiting Time 19 Penalties) 20 60. Plaintiff incorporates by reference and re-alleges as if fully stated herein 21 paragraphs 1 through 19 in this Complaint. 22 61. At all times herein set forth, California Labor Code §§ 201 and 202 provide that if 23 an employer discharges an employee, the wages earned and unpaid at the time of discharge are 24 due and payable immediately, and that if an employee voluntarily leaves his or her employment, 25 his or her wages shall become due and payable not later than seventy-two (72) hours thereafter, 26 unless the employee has given seventy-two (72) hours previous notice of his or her intention to 27 quit, in which case the employee is entitled to his or her wages at the time of quitting. 28 16 CLASS ACTION COMPLAINT 1 62. Within the applicable statute of limitations, the employment of Plaintiff and many 2 other members of the Class ended, i.e. was terminated by quitting or discharge, and the 3 employment of others will be. However, during the relevant time period, Defendants failed, and 4 continue to fail to pay terminated Class Members, without abatement, all wages required to be 5 paid by California Labor Code sections 201 and 202 either at the time of discharge, or within 6 seventy-two (72) hours of their leaving Defendants’ employ. 7 63. Defendants’ failure to pay Plaintiff and those Class members who are no longer 8 employed by Defendants their wages earned and unpaid at the time of discharge, or within 9 seventy-two (72) hours of their leaving Defendants’ employ, is in violation of California Labor 10 Code §§ 201 and 202. 11 64. California Labor Code § 203 provides that if an employer willfully fails to pay 12 wages owed, in accordance with sections 201 and 202, then the wages of the employee shall 13 continue as a penalty wage from the due date, and at the same rate until paid or until an action is 14 commenced; but the wages shall not continue for more than thirty (30) days. 15 65. Plaintiff and the Class are entitled to recover from Defendants their additionally 16 accruing wages for each day they were not paid, at their regular hourly rate of pay, up to 30 days 17 maximum pursuant to California Labor Code § 203. 18 66. Pursuant to California Labor Code §§ 218.5, 218.6 and 1194, Plaintiff and the 19 Class are also entitled to an award of reasonable attorneys’ fees, interest, expenses, and costs 20 incurred in this action. 21 SEVENTH CAUSE OF ACTION 22 (Against all Defendants for Failure to Provide and Maintain Accurate and 23 Compliant Wage Records) 24 67. Plaintiff incorporates by reference and re-alleges as if fully stated herein 25 paragraphs 1 through 19 in this Complaint. 26 68. At all material times set forth herein, California Labor Code § 226(a) provides that 27 every employer shall furnish each of his or her employees an accurate itemized wage statement 28 in writing showing nine pieces of information, including: (1) gross wages earned, (2) total hours 17 CLASS ACTION COMPLAINT 1 worked by the employee, (3) the number of piece-rate units earned and any applicable piece rate 2 if the employee is paid on a piece-rate basis, (4) all deductions, provided that all deductions made 3 on written orders of the employee may be aggregated and shown as one item, (5) net wages 4 earned, (6) the inclusive dates of the period for which the employee is paid, (7) the name of the 5 employee and the last four digits of his or her social security number or an employee 6 identification number other than a social security number, (8) the name and address of the legal 7 entity that is the employer, and (9) all applicable hourly rates in effect during the pay period and 8 the corresponding number of hours worked at each hourly rate by the employee. 9 69. Defendants have intentionally and willfully failed to provide employees with 10 complete and accurate wage statements. The deficiencies include, among other things, the 11 failure to correctly identify the gross wages earned by Plaintiff and the Class, the failure to list 12 the true “total hours worked by the employee,” and the failure to list the true net wages earned. 13 70. As a result of Defendants’ violation of California Labor Code § 226(a), Plaintiff 14 and the Class have suffered injury and damage to their statutorily-protected rights. 15 71. Specifically, Plaintiff and the members of the Class have been injured by 16 Defendants’ intentional violation of California