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1 Vanessa Franco Chavez, SBN 266724
Anna M. Burnbaum, SBN 349542
2 KLEIN, DENATALE, GOLDNER,
COOPER, ROSENLIEB & KIMBALL, LLP
3 10000 Stockdale Highway, Suite 200
Bakersfield, CA 93311
4 Telephone: 661-395-1000
Facsimile: 661-326-0418
5 Email: vchavez@kleinlaw.com
aburnbaum@kleinlaw.com
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Attorneys for Defendant, Feghali Foods, Inc.
7
Norman B. Blumenthal (State Bar #068687)
8 Kyle R. Nordrehaug (State Bar #205975)
Aparajit Bhowmik (State Bar #248066)
9 Nicholas J. De Blouw (State Bar #280922)
Sergio Julian Puche (State Bar #289437)
10 BLUMENTHAL NORDREHAUG BHOWMIK DE BLOUW LLP
2255 Calle Clara
11 La Jolla, CA
Telephone: (858) 551-1223
12 Facsimile: (858) 551-1232
13 Attorneys for Plaintiff, Isaac Rodriguez
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15 SUPERIOR COURT OF THE STATE OF CALIFORNIA
16 COUNTY OF KERN
17
ISAAC RODRIGUEZ, on behalf of the State of Case No. BCV-23-100142
18 California, as a private attorney general,
JOINT STIPULATION FOR LEAVE
19 Plaintiff, TO FILE FIRST AMENDED CLASS
AND REPRESENTATIVE ACTION
20 v. COMPLAINT; [PROPOSED] ORDER
21 FEGHALI FOODS, a Corporation; and DOES 1 Judge: Hon. T. Mark Smith
through 50, inclusive Complaint Filed: 1/17/2023
22 Department: T-2
Defendant. Trial Date: Not set
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25 TO THE COURT AND ALL INTERESTED PARTIES:
26 Plaintiff, Isaac Rodriguez (“Rodriguez”) and Defendant Feghali Food Stroes, Inc.
27 (“Defendant”) (collectively, known as the “Parties”), by and through their respective counsel,
28 hereby stipulate and agree to the following:
STIPULATION FOR LEAVE TO FILE FAC
1 WHEREAS, on January 17, 2023, Rodriguez filed a wage-and-hour class action lawsuit
2 against Defendant in the Superior Court of California, County of Kern, alleging nine (9) causes of
3 action (Case No. BCV-23-100130) (“Rodriguez Class Action”);
4 WHEREAS, on January 17, 2023, Rodriguez also filed the instant PAGA Representative
5 Action complaint, seeking penalties under Labor Code section 2698, et seq. (Private Attorney
6 General Act of 2004 (“PAGA”)) (Case No. BCV-23-100142) (“Rodriguez PAGA Action”);
7 WHEREAS, in March 2023, Rodriguez’s counsel indicated they represented additional
8 employees, Maria B. Alvarez, Kate Lopez, Gilberto Serrato Moreno, and Cecilio Guzman
9 Viveros (collectively, the “Additional Employees”).
10 WHEREAS, on March 21, 2023, Rodriguez submitted a Request for Dismissal of the
11 Rodriguez Class Action;
12 WHEREAS, on May 9, 2023, the Court entered the parties’ Stipulation for Order of
13 Arbitration and Stay ordering the parties to arbitration;
14 WHEREAS, on February 16, 2024, the Parties participated in mediation before Tagore
15 Subramaniam where the parties reached a settlement of the Plaintiff’s class and PAGA claims,
16 subject to Court approval; and
17 WHEREAS, since the Parties have successfully negotiated a settlement, for the sole
18 purpose of effectuating the terms of the Class Action and PAGA Settlement reached by the
19 Parties, the Parties now seek leave to file a First Amended Class and Representative Action
20 Complaint (“FAC”), a copy which is attached hereto as Exhibit “A”, which include: (1) all of the
21 class claims that were previously alleged but were dismissed without prejudice to effectuate the
22 terms of the Class Action and PAGA settlement reached by the Parties, and (2) the adding the
23 Additional Employees.
24 WHEREAS, for settlement purposes only, Defendants consent to allow Plaintiff to file the
25 proposed FAC attached hereto as Exhibit “A”.
26 WHEREAS, the Parties agree the First Amended Class and Representative Action
27 Complaint shall not be deemed “an amended pleading, motion, order or other paper from which it
28 may first be ascertained that the case is one which is or has become removable” within the meaning
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2024.04.01_Stip for Leave to File FAC (FINAL) STIPULATION FOR LEAVE TO FILE FAC
1 of 28 U.S.C. 1446(b)(3). To that end, Defendants will not attempt to remove the First Amended
2 Class and Representative Action Complaint matter to Federal Court.
3 IT IS HEREBY STIPULATED AND AGREED BY THE PARTIES HERETO,
4 THROUGH THEIR RESPECTIVE COUNSEL, AS FOLLOWS:
5 1. For the sole purpose of effectuating the Class Action and PAGA Settlement and
6 consistent with the terms thereof, Plaintiffs may file the attached First Amended Class and
7 Representative Action Complaint (“FAC”), a copy of which is attached as Exhibit “A”.
8 2. Plaintiff shall file the FAC within ten (10) days of this order;
9 3. Pursuant to the settlement, the Parties additionally request that Defendant need not
10 file responsive pleading to the First Amended Class and Representative Action Complaint unless
11 the Court does not approve the parties’ settlement, in which case the parties will meet and confer
12 to set a deadline for Defendant to file a responsive pleading.
13 4. The Defendant’s stipulation that Plaintiffs be permitted to file the First Amended
14 Class and Representative Action Complaint shall not constitute an admission of any of the
15 allegation set forth in the proposed First Amended Complaint or any prior versions of the
16 Complaint.
17 5. By signing this Stipulation, Defendant shall not be deemed to have waived any
18 affirmative defenses or any other legal or factual position in connection with any of Plaintiffs’
19 claims or the filing of the First Amended Class and Representative Action Complaint. In the
20 event the parties’ settlement is not approved by the Court, Defendant shall maintain any rights to
21 challenge any of Plaintiffs’ pleadings, challenge Plaintiffs’ ability to assert the claims set forth in
22 the First Amended Class and Representative Action Complaint (individually or on a
23 representative basis), and file a demurrer, motion to strike, motion to dismiss, motion for
24 judgment on the pleadings, motion for summary judgment or adjudication, or any other response.
25 6. In the event that the Parties’ class and PAGA agreement is not finally approved by
26 the Court or the settlement is terminated or otherwise rendered null and void, then certification of
27 the Class shall be automatically vacated, shall be void ab initio, of no force or effect, and shall not
28 constitute evidence or a binding determination that the requirements for certification of a class for
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2024.04.01_Stip for Leave to File FAC (FINAL) STIPULATION FOR LEAVE TO FILE FAC
1 trial purposes in this Action or in any other action which have been, are or can be, satisfied.
2 Further, if the Parties’ class and PAGA agreement is not finally approved or if it is terminated for
3 any reason, Plaintiffs agree that they will promptly dismiss all the class and individual wage
4 claims in the amended complaint without prejudice and agree to stay the remaining representative
5 PAGA action pending arbitration of Plaintiffs’ respective individual claims. Plaintiffs agree that
6 this the Parties’ settlement shall not constitute, in this or any other proceeding, an admission of
7 any kind by Defendant, that Defendant waived the right to compel arbitration.
8
Dated: April 3, 2024 KLEIN, DENATALE, GOLDNER
9 COOPER, ROSENLIEB & KIMBALL, LLP
10
By: ___________________________________
11 VANESSA FRANCO CHAVEZ
Attorneys for Defendant Feghali Foods
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2
Dated: April _____, 2024 BLUMENTHAL NORDREHAUG
14 BHOWMIK DE BLOUW LLP
15
By: ___________________________________
16 SERGIO J. PUCHE
Attorneys for Plaintiff, Isaac Rodriguez
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2024.04.01_Stip for Leave to File FAC (FINAL) STIPULATION FOR LEAVE TO FILE FAC
1 [PROPOSED] ORDER
2 Good cause having been shown, the foregoing stipulation is hereby APPROVED and IT IS
3 HEREBY ORDERED that:
4 1. Plaintiffs are granted leave to file the First Amended Class and Representative
5 Action Complaint in the form attached as Exhibit A for the sole purpose of allowing the Parties to
6 proceed with the settlement process, including seeking the Court’s preliminary approval of the class
7 and PAGA action settlement.
8 2. Plaintiffs shall file the First Amended Class and Representative Action Complaint
9 within 10 days of this order.
10 3. Defendant need not file a responsive pleading to the First Amended Class and
11 Representative Action Complaint unless the Court does not approve the parties’ settlement, in
12 which case the parties will meet and confer to set a deadline for Defendant to file a responsive
13 pleading.
14 4. Defendant’s stipulation that Plaintiffs be permitted to file the First Amended Class
15 and Representative Action Complaint shall not constitute an admission of any of the allegations set
16 forth in the First Amended Class and Representative Action Complaint or any prior versions of the
17 Complaint.
18 5. By signing this Stipulation, Defendant shall not be deemed to have waived any
19 affirmative defenses or any other legal or factual position in connection with any of Plaintiffs’
20 claims or the filing of the First Amended Class and Representative Action Complaint. In the event
21 the parties’ settlement is not approved by the Court, Defendant shall maintain any rights to
22 challenge any of Plaintiffs’ pleadings, challenge Plaintiffs’ ability to assert the claims set forth in
23 the First Amended Class and Representative Action Complaint (individually or on a representative
24 basis), and file a demurrer, motion to strike, motion to dismiss, motion for judgment on the
25 pleadings, motion for summary judgment or adjudication, or any other response.
26 IT IS SO ORDERED:
27 Dated: ____________________ ___________________________________
T. MARK SMITH
28 JUDGE OF THE SUPERIOR COURT
5
2024.04.01_Stip for Leave to File FAC (FINAL) STIPULATION FOR LEAVE TO FILE FAC
EXHIBIT A
1 BLUMENTHAL NORDREHAUG BHOWMIK DE BLOUW LLP
Norman B. Blumenthal (State Bar #068687)
2 Kyle R. Nordrehaug (State Bar #205975)
Aparajit Bhowmik (State Bar #248066)
Nicholas J. De Blouw (State Bar #280922)
3 2255 Calle Clara
La Jolla, CA 92037
4 Telephone: (858)551-1223
Facsimile: (858) 551-1232
5 Website: www.bamlawca.com
6 Attorneys for Plaintiff
7 SUPERIOR COURT OF THE STATE OF CALIFORNIA
8 IN AND FOR THE COUNTY OF KERN
9 ISAAC RODRIGUEZ, MARIA ALVAREZ, CECILIO Case No. BCV-23-100130
GUZMAN VIVEROS, KATE LOPEZ and
10 GILBERTO SERRATO MORENO, individuals, on FIRST AMENDED CLASS AND
behalf of themselves and on behalf of all persons REPRESENTATIVE ACTION COMPLAINT
similarly situated, FOR:
11
1. UNFAIR COMPETITION IN VIOLATION OF
12 Plaintiffs, CAL. BUS. & PROF. CODE §§ 17200, et seq.;
2. FAILURE TO PAY MINIMUM WAGES IN
13 vs. VIOLATION OF CAL. LAB. CODE §§ 1194, 1197 &
1197.1;
FEGHALI FOODS, a Corporation; and DOES 1 3. FAILURE TO PAY OVERTIME WAGES IN
14 through 50, inclusive, VIOLATION OF CAL. LAB. CODE § 510;
4. FAILURE TO PROVIDE REQUIRED MEAL
15 PERIODS IN VIOLATION OF CAL. LAB. CODE §§
226.7 & 512 AND THE APPLICABLE IWC WAGE
16 Defendants. ORDER;
5. FAILURE TO PROVIDE REQUIRED REST
17 PERIODS IN VIOLATION OF CAL. LAB. CODE §§
226.7 & 512 AND THE APPLICABLE IWC WAGE
ORDER;
18 6. FAILURE TO PROVIDE ACCURATE
ITEMIZED STATEMENTS IN VIOLATION OF
19 CAL. LAB. CODE § 226;
7. FAILURE TO REIMBURSE EMPLOYEES FOR
20 REQUIRED EXPENSES IN VIOLATION OF CAL.
LAB. CODE § 2802;
8. FAILURE TO PROVIDE WAGES WHEN DUE IN
21 VIOLATION OF CAL. LAB. CODE §§ 201, 202
AND 203;
22 9. FAILURE TO PAY SICK PAY WAGES IN
VIOLATION OF CAL. LAB CODE §§201-204, 233,
23 246; and
10. CIVIL PENALTIES PURSUANT TO LABOR
CODE § 2699, et seq. FOR VIOLATIONS OF
24 LABOR CODE §§ 201, 202, 203, 204 et seq., 210,
218, 221, 226(a), 226.7, 227.3, 510, 512, 558(a)(1)(2),
25 1194, 1197, 1197.1, 1198, 2802, CALIFORNIA
CODE OF REGULATIONS, TITLE 8, SECTION
26 11040, SUBDIVISION 5(A)-(B), AND THE
APPLICABLE WAGE ORDER(s).
27 DEMAND FOR A JURY TRIAL
28
1
FIRST AMENDED CLASS AND REPRESENTATIVE ACTION COMPLAINT
1 Plaintiffs Isaac Rodriguez, Maria Alvarez, Cecilio Guzman Viveros, Kate Lopez and Gilberto
2 Serrato Moreno (collectively “PLAINTIFFS”), Individuals, on behalf of themselves and all other similarly
3 situated current and former employees allege on information and belief, except for their own acts and
4 knowledge which are based on personal knowledge, the following.
5 THE PARTIES
6 1. Defendant Feghali Foods (“DEFENDANT”) is a corporation that at all relevant times
7 mentioned herein conducted and continues to conduct substantial business in the state of California.
8 2. DEFENDANT owns and operates Little Caesars Pizza restaurants across California.
9 3. Plaintiff Isaac Rodriguez was employed by DEFENDANT in California from July of 2021
10 to February 2022. Plaintiff Rodriguez was then re-hired in April of 2022 and let go again on October 5,
11 2022. Plaintiff Maria Alvarez has been employed with DEFENDANT in California since July 17, 2022.
12 Plaintiff Cecilio Guzman Viveros was employed by DEFENDANT in California from April 4, 2022 through
13 March of 2023. Plaintiff Kate Lopez was employed by DEFENDANT in California from January of 2022
14 through October 13, 2023. Plaintiff Gilberto Serrato Moreno was employed by DEFENDANT in California
15 from April 2022 through February of 2023. PLAINTIFFS were at all times classified by DEFENDANT
16 as a non-exempt employee, paid on an hourly basis, and entitled to the legally required meal and rest
17 periods and payment of minimum and overtime wages due for all time worked.
18 4. PLAINTIFFS bring this Class Action on behalf of themselves and a California class, defined
19 as all individuals who are or previously were employed by DEFENDANT in California, including all
20 individuals who are or previously were employed by Defendant who were classified as non-exempt in the
21 State of California (the “CALIFORNIA CLASS”) from February 16, 2020 to a date to be ordered by the
22 Court (the “CALIFORNIA CLASS PERIOD”). The amount in controversy for the aggregate claim of
23 CALIFORNIA CLASS Members is under five million dollars ($5,000,000.00).
24 5. PLAINTIFFS bring this Class Action on behalf of themselves and a CALIFORNIA CLASS
25 in order to fully compensate the CALIFORNIA CLASS for their losses incurred during the CALIFORNIA
26 CLASS PERIOD caused by DEFENDANT’s policy and practice which failed to lawfully compensate these
27 employees. DEFENDANT’s policy and practice alleged herein was an unlawful, unfair and deceptive
28 business practice whereby DEFENDANT retained and continues to retain wages due PLAINTIFFS and the
2
FIRST AMENDED CLASS AND REPRESENTATIVE ACTION COMPLAINT
1 other members of the CALIFORNIA CLASS. PLAINTIFFS and the other members of the CALIFORNIA
2 CLASS seek an injunction enjoining such conduct by DEFENDANT in the future, relief for the named
3 PLAINTIFFS and the other members of the CALIFORNIA CLASS who have been economically injured
4 by DEFENDANT’s past and current unlawful conduct, and all other appropriate legal and equitable relief.
5 6. The true names and capacities, whether individual, corporate, subsidiary, partnership,
6 associate or otherwise of defendants DOES 1 through 50, inclusive, are presently unknown to PLAINTIFFS
7 who therefore sue these Defendants by such fictitious names pursuant to Cal. Civ. Proc. Code § 474.
8 PLAINTIFFS will seek leave to amend this Complaint to allege the true names and capacities of Does 1
9 through 50, inclusive, when they are ascertained. PLAINTIFFS are informed and believes, and based upon
10 that information and belief alleges, that the Defendants named in this Complaint, including DOES 1 through
11 50, inclusive, are responsible in some manner for one or more of the events and happenings that proximately
12 caused the injuries and damages hereinafter alleged.
13 7. The agents, servants and/or employees of the Defendants and each of them acting on behalf
14 of the Defendants acted within the course and scope of his, her or its authority as the agent, servant and/or
15 employee of the Defendants, and personally participated in the conduct alleged herein on behalf of the
16 Defendants with respect to the conduct alleged herein. Consequently, the acts of each Defendant are legally
17 attributable to the other Defendants and all Defendants are jointly and severally liable to PLAINTIFFS and
18 the other members of the CALIFORNIA CLASS, for the loss sustained as a proximate result of the conduct
19 of the Defendants’ agents, servants and/or employees.
20 THE CONDUCT
21 8. Pursuant to the Industrial Welfare Commission Wage Orders, DEFENDANT was required
22 to pay PLAINTIFFS and CALIFORNIA CLASS Members for all their time worked, meaning the time
23 during which an employee is subject to the control of an employer, including all the time the employee is
24 suffered or permitted to work. DEFENDANT requires PLAINTIFFS and CALIFORNIA CLASS Members
25 to work without paying them for all the time they are under DEFENDANT’s control. Among other things,
26 DEFENDANT requires PLAINTIFFS to work while clocked out during what is supposed to be
27 PLAINTIFF’s off-duty meal break. PLAINTIFFS was from time to time interrupted by work assignments
28 while clocked out for what should have been PLAINTIFF’s off-duty meal break. DEFENDANT, as a matter
3
FIRST AMENDED CLASS AND REPRESENTATIVE ACTION COMPLAINT
1 of established company policy and procedure, administers a uniform practice of rounding the actual time
2 worked and recorded by PLAINTIFFS and CALIFORNIA CLASS Members, always to the benefit of
3 DEFENDANT, so that during the course of their employment, PLAINTIFFS and CALIFORNIA CLASS
4 Members are paid less than they would have been paid had they been paid for actual recorded time rather
5 than “rounded” time. Additionally, DEFENDANT engages in the practice of requiring PLAINTIFFS and
6 CALIFORNIA CLASS Members to perform work off the clocking that DEFENDANT, as a condition of
7 employment, required these employees to submit to mandatory temperature checks and symptom
8 questionnaires for COVID-19 screening prior to clocking into DEFENDANT’s timekeeping system for the
9 workday. As a result, PLAINTIFFS and other CALIFORNIA CLASS Members forfeit minimum wage,
10 overtime wage compensation, and off-duty meal breaks by working without their time being correctly
11 recorded and without compensation at the applicable rates. DEFENDANT’s policy and practice not to pay
12 PLAINTIFFS and other CALIFORNIA CLASS Members for all time worked, is evidenced by
13 DEFENDANT’s business records.
14 9. State and federal law provides that employees must be paid overtime and meal and rest
15 break premiums at one-and-one-half times their “regular rate of pay.” PLAINTIFFS and other
16 CALIFORNIA CLASS Members are compensated at an hourly rate plus incentive pay that is tied to specific
17 elements of an employee’s performance.
18 10. The second component of PLAINTIFF’s and other CALIFORNIA CLASS Members’
19 compensation is DEFENDANT’s non-discretionary incentive program that paid PLAINTIFFS and other
20 CALIFORNIA CLASS Members incentive wages based on their performance for DEFENDANT. The non-
21 discretionary incentive program provided all employees paid on an hourly basis with incentive
22 compensation when the employees met the various performance goals set by DEFENDANT. However,
23 when calculating the regular rate of pay in order to pay overtime and meal and rest break premiums to
24 PLAINTIFFS and other CALIFORNIA CLASS Members, DEFENDANT failed to include the incentive
25 compensation as part of the employees’ “regular rate of pay” for purposes of calculating overtime pay and
26 meal and rest break premium pay. Management and supervisors described the incentive program to
27 potential and new employees as part of the compensation package. As a matter of law, the incentive
28 compensation received by PLAINTIFFS and other CALIFORNIA CLASS Members must be included in
4
FIRST AMENDED CLASS AND REPRESENTATIVE ACTION COMPLAINT
1 the “regular rate of pay.” The failure to do so has resulted in a underpayment of overtime compensation
2 and meal and rest break premiums to PLAINTIFFS and other CALIFORNIA CLASS Members by
3 DEFENDANT.
4 11. As a result of their rigorous work schedules, PLAINTIFFS and other CALIFORNIA CLASS
5 Members were from time to time unable to take thirty (30) minute off duty meal breaks and were not fully
6 relieved of duty for their meal periods. PLAINTIFFS and other CALIFORNIA CLASS Members were
7 required from time to time to perform work as ordered by DEFENDANT for more than five (5) hours
8 during some shifts without receiving a meal break. Further, DEFENDANT from time to time failed to
9 provide PLAINTIFFS and CALIFORNIA CLASS Members with a second off-duty meal period for some
10 workdays in which these employees were required by DEFENDANT to work ten (10) hours of work.
11 DEFENDANT also engaged in the practice of rounding the meal period times to avoid paying penalties to
12 PLAINTIFFS and other CALIFORNIA CLASS Members. PLAINTIFFS and other members of the
13 CALIFORNIA CLASS therefore forfeit meal breaks without additional compensation and in accordance
14 with DEFENDANT’s corporate policy and practice.
15 12. During the CALIFORNIA CLASS PERIOD, PLAINTIFFS and other CALIFORNIA
16 CLASS Members were also required from time to time to work in excess of four (4) hours without being
17 provided ten (10) minute rest periods. Further, these employees were denied their first rest periods of at
18 least ten (10) minutes for some shifts worked of at least two (2) to four (4) hours from time to time, a first
19 and second rest period of at least ten (10) minutes for some shifts worked of between six (6) and eight (8)
20 hours from time to time, and a first, second and third rest period of at least ten (10) minutes for some shifts
21 worked of ten (10) hours or more from time to time. PLAINTIFFS and other CALIFORNIA CLASS
22 Members were also not provided with one hour wages in lieu thereof. Additionally, the applicable
23 California Wage Order requires employers to provide employees with off-duty rest periods, which the
24 California Supreme Court defined as time during which an employee is relieved from all work related duties
25 and free from employer control. In so doing, the Court held that the requirement under California law that
26 employers authorize and permit all employees to take rest period means that employers must relieve
27 employees of all duties and relinquish control over how employees spend their time which includes control
28 over the locations where employees may take their rest period. Employers cannot impose controls that
5
FIRST AMENDED CLASS AND REPRESENTATIVE ACTION COMPLAINT
1 prohibit an employee from taking a brief walk - five minutes out, five minutes back. Here, DEFENDANT’s
2 policy restricted PLAINTIFFS and other CALIFORNIA CLASS Members from unconstrained walks and
3 is unlawful based on DEFENDANT’s rule which states PLAINTIFFS and other CALIFORNIA CLASS
4 Members cannot leave the work premises during their rest period.
5 13. During the CALIFORNIA CLASS PERIOD, DEFENDANT failed to accurately record and
6 pay PLAINTIFFS and other CALIFORNIA CLASS Members for the actual amount of time these
7 employees worked. Pursuant to the Industrial Welfare Commission Wage Orders, DEFENDANT was
8 required to pay PLAINTIFFS and other CALIFORNIA CLASS Members for all time worked, meaning the
9 time during which an employee was subject to the control of an employer, including all the time the
10 employee was permitted or suffered to permit this work. DEFENDANT required these employees to work
11 off the clock without paying them for all the time they were under DEFENDANT’s control. As such,
12 DEFENDANT knew or should have known that PLAINTIFFS and the other members of the CALIFORNIA
13 CLASS were under compensated for all time worked. As a result, PLAINTIFFS and other CALIFORNIA
14 CLASS Members forfeited time worked by working without their time being accurately recorded and
15 without compensation at the applicable minimum wage and overtime wage rates. To the extent that the
16 time worked off the clock does not qualify for overtime premium payment, DEFENDANT fails to pay
17 minimum wages for the time worked off-the-clock in violation of Cal. Lab. Code §§ 1194, 1197, and
18 1197.1.
19 14. From time to time, DEFENDANT also failed to provide PLAINTIFFS and the other
20 members of the CALIFORNIA CLASS with complete and accurate wage statements which failed to show,
21 among other things, the correct gross and net wages earned. Cal. Lab. Code § 226 provides that every
22 employer shall furnish each of his or her employees with an accurate itemized wage statement in writing
23 showing, among other things, gross wages earned and all applicable hourly rates in effect during the pay
24 period and the corresponding amount of time worked at each hourly rate. PLAINTIFFS and CALIFORNIA
25 CLASS Members were paid on an hourly basis. As such, the wage statements should reflect all applicable
26 hourly rates during the pay period and the total hours worked, and the applicable pay period in which the
27 wages were earned pursuant to California Labor Code Section 226(a). The wage statements DEFENDANT
28 provided to PLAINTIFFS and other CALIFORNIA CLASS Members failed to identify such information.
6
FIRST AMENDED CLASS AND REPRESENTATIVE ACTION COMPLAINT
1 More specifically, the wage statements failed to identify the accurate total hours worked each pay period.
2 When the hours shown on the wage statements were added up, they did not equal the actual total hours
3 worked during the pay period in violation of Cal. Lab. Code 226(a)(2). Aside, from the violations listed
4 above in this paragraph, DEFENDANT failed to issue to PLAINTIFFS an itemized wage statement that lists
5 all the requirements under California Labor Code 226 et seq. As a result, DEFENDANT from time to time
6 provided PLAINTIFFS and the other members of the CALIFORNIA CLASS with wage statements which
7 violated Cal. Lab. Code § 226.
8 15. Cal. Lab. Code § 204(d) provides, the requirements of this section shall be deemed satisfied
9 by the payment of wages for weekly, biweekly, or semimonthly payroll if the wages are paid not more than
10 seven (7) calendar days following the close of the payroll period. Cal. Lab. Code § 210 provides:
11 [I]n addition to, and entirely independent and apart from, any other penalty provided in this article,
every person who fails to pay the wages of each employee as provided in Sections. . . .204. . .shall be
12 subject to a civil penalty as follows: (1) For any initial violation, one hundred dollars ($100) for each failure
to pay each employee; (2) For each subsequent violation, or any willful or intentional violation, two
13 hundred dollars ($200) for each failure to pay each employee, plus 25 percent of the amount unlawfully
withheld.
14
16. DEFENDANT from time to time failed to pay PLAINTIFFS and members of the
15
CALIFORNIA LABOR SUB-CLASS Members within seven (7) days of the close of the payroll period in
16
accordance with Cal. Lab. Code § 204(d), including but not limited to for the “Hourly” regular wage
17
payments.
18
17. DEFENDANT underpaid sick pay wages to PLAINTIFFS and other CALIFORNIA CLASS
19
Members by failing to pay such wages at the regular rate of pay in violation of Cal. Lab. Code Section 246.
20
Specifically, PLAINTIFFS and other non-exempt employees earn non-discretionary remuneration. Rather
21
than pay sick pay at the regular rate of pay, DEFENDANT underpaid sick pay to PLAINTIFFS and other
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CALIFORNIA CLASS Members at their base rates of pay.
23
18. Cal. Lab. Code Section 246(l)(2) requires that paid sick time for nonexempt employees be
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calculated by dividing the employee’s total wages, not including overtime premium pay, by the employee’s
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total hours worked in the full pay periods of the prior 90 days of employment.
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19. DEFENDANT violated Cal. Lab. Code Section 246 by failing to pay sick pay at the regular
27
rate of pay. PLAINTIFFS and CALIFORNIA CLASS Members routinely earned non-discretionary
28
incentive wages which increased their regular rate of pay. However, when sick pay was paid, it was paid
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FIRST AMENDED CLASS AND REPRESENTATIVE ACTION COMPLAINT
1 at the base rate of pay for PLAINTIFFS and members of the CALIFORNIA CLASS, as opposed to the
2 correct, higher regular rate of pay, as required under Cal. Lab. Code Section 246.
3 20. As a pattern and practice, DEFENDANT regularly failed to pay PLAINTIFFS and other
4 members of the CALIFORNIA CLASS their correct wages and accordingly owe waiting time penalties
5 pursuant to Cal. Lab. Code Section 203. Further, PLAINTIFFS are informed and believe and based thereon
6 allege that such failure to pay sick pay at regular rate was willful, such that PLAINTIFFS and members of
7 the CALIFORNIA CLASS whose employment has separated are entitled to waiting time penalties pursuant
8 to Cal. Lab. Code Sections 201-203.
9 21. Pursuant to Cal. Lab. Code Section 221, “It shall be unlawful for any employer to collect
10 or receive from an employee any part of wages theretofore paid by said employer to said employee.”
11 DEFENDANT failed to pay all compensation due to PLAINTIFFS and other CALIFORNIA LABOR SUB-
12 CLASS Members, made unlawful deductions from compensation payable to PLAINTIFFS and
13 CALIFORNIA LABOR SUB-CLASS Members, failed to disclose all aspects of the deductions from
14 compensation payable to PLAINTIFFS and CALIFORNIA LABOR SUB-CLASS Members, and thereby
15 failed to pay these employees all wages due at each applicable pay period and upon termination.
16 PLAINTIFFS and members of the CALIFORNIA LABOR SUB-CLASS seek recovery of all illegal
17 deductions from wages according to proof, related penalties, interest, attorney fees and costs.
18 22. DEFENDANT intentionally and knowingly failed to reimburse and indemnify
19 PLAINTIFFS and the other CALIFORNIA CLASS Members for required business expenses incurred by
20 the PLAINTIFFS and other CALIFORNIA CLASS Members in direct consequence of discharging their
21 duties on behalf of DEFENDANT. Under California Labor Code Section 2802, employers are required to
22 indemnify employees for all expenses incurred in the course and scope of their employment. Cal. Lab.
23 Code § 2802 expressly states that "an employer shall indemnify his or her employee for all necessary
24 expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties,
25 or of his or her obedience to the directions of the employer, even though unlawful, unless the employee, at
26 the time of obeying the directions, believed them to be unlawful."
27 23. In the course of their employment PLAINTIFFS and other CALIFORNIA CLASS Members
28 as a business expense, were required by DEFENDANT to use their own personal cellular phones as a result
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FIRST AMENDED CLASS AND REPRESENTATIVE ACTION COMPLAINT
1 of and in furtherance of their job duties as employees for DEFENDANT but are not reimbursed or
2 indemnified by DEFENDANT for the cost associated with the use of their personal cellular phones for
3 DEFENDANT’s benefit. Specifically, PLAINTIFFS and other CALIFORNIA CLASS Members were
4 required by DEFENDANT to use their personal cellular phones. As a result, in the course of their
5 employment with DEFENDANT, PLAINTIFFS and other members of the CALIFORNIA CLASS incurred
6 unreimbursed business expenses which included, but were not limited to, costs related to the use of their
7 personal cellular phones all on behalf of and for the benefit of DEFENDANT.
8 24. Specifically as to PLAINTIFFS, DEFENDANT failed to provide all the legally required off-
9 duty meal and rest breaks to PLAINTIFFS as required by the applicable Wage Order and Labor Code and
10 failed to pay PLAINTIFFS all minimum and overtime wages due to PLAINTIFF. DEFENDANT did not
11 have a policy or practice which provided timely off-duty meal and rest breaks to PLAINTIFFS and also
12 failed to compensate PLAINTIFFS for PLAINTIFF’s missed meal and rest breaks. The nature of the work
13 performed by the PLAINTIFFS did not prevent PLAINTIFFS from being relieved of all of PLAINTIFF’s
14 duties for the legally required off-duty meal periods. As a result, DEFENDANT’s failure to provide
15 PLAINTIFFS with the legally required meal periods is evidenced by DEFENDANT’s business records.
16 The amount in controversy for PLAINTIFFS individually do not exceed the sum or value of $75,000.
17
JURISDICTION AND VENUE
18
25. This Court has jurisdiction over this Action pursuant to California Code of Civil Procedure,
19
Section 410.10 and California Business & Professions Code, Section 17203. This action is brought as a
20
Class Action on behalf of PLAINTIFFS and similarly situated employees of DEFENDANT pursuant to Cal.
21
Code of Civ. Proc. § 382.
22
26. Venue is proper in this Court pursuant to California Code of Civil Procedure, Sections 395
23
and 395.5, because PLAINTIFFS worked in this County for DEFENDANT and DEFENDANT (i) currently
24
maintains and at all relevant times maintained offices and facilities in this County and/or conducts
25
substantial business in this County, and (ii) committed the wrongful conduct herein alleged in this County
26
against members of the CALIFORNIA CLASS.
27
///
28
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9
FIRST AMENDED CLASS AND REPRESENTATIVE ACTION COMPLAINT
1 THE CALIFORNIA CLASS
2 27. PLAINTIFFS bring the First Cause of Action for Unfair, Unlawful and Deceptive Business
3 Practices pursuant to Cal. Bus. & Prof. Code §§ 17200, et seq. (the "UCL") as a Class Action, pursuant to
4 Cal. Code of Civ. Proc. § 382, on behalf of a California class, defined as all individuals who are or
5 previously were employed by DEFENDANT in California, including any employees staffed with
6 DEFENDANT by a third party, and classified as non-exempt employees (the “CALIFORNIA CLASS”)
7 at any time during the period beginning February 16, 2020 to a date to be ordered by the Court (the
8 “CALIFORNIA CLASS PERIOD”). The amount in controversy for the aggregate claim of CALIFORNIA
9 CLASS Members is under five million dollars ($5,000,000.00).
10 28. To the extent equitable tolling operates to toll claims by the CALIFORNIA CLASS against
11 DEFENDANT, the CALIFORNIA CLASS PERIOD should be adjusted accordingly.
12 29. DEFENDANT, as a matter of company policy, practice and procedure, and in violation of
13 the applicable Labor Code, Industrial Welfare Commission (“IWC”) Wage Order requirements, and the
14 applicable provisions of California law, intentionally, knowingly, and wilfully, engaged in a practice
15 whereby DEFENDANT failed to record all meal and rest breaks missed by PLAINTIFFS and other
16 CALIFORNIA CLASS Members, even though DEFENDANT enjoyed the benefit of this work, required
17 employees to perform this work and permits or suffers to permit this work.
18 30. DEFENDANT has the legal burden to establish that each and every CALIFORNIA CLASS
19 Member was paid accurately for all meal and rest breaks missed as required by California laws. The
20 DEFENDANT, however, as a matter of policy and procedure failed to have in place during the
21 CALIFORNIA CLASS PERIOD and still fails to have in place a policy or practice to ensure that each and
22 every CALIFORNIA CLASS Member is paid as required by law. This common business practice is
23 applicable to each and every CALIFORNIA CLASS Member can be adjudicated on a class-wide basis as
24 unlawful, unfair, and/or deceptive under Cal. Business & Professions Code §§ 17200, et seq. (the “UCL”)
25 as causation, damages, and reliance are not elements of this claim.
26 31. The CALIFORNIA CLASS, is so numerous that joinder of all CALIFORNIA CLASS
27 Members is impracticable.
28 32. DEFENDANT violated the rights of the CALIFORNIA CLASS under California law by:
10
FIRST AMENDED CLASS AND REPRESENTATIVE ACTION COMPLAINT
1 (a) Committing an act of unfair competition in violation of , Cal. Bus. & Prof. Code
2 §§ 17200, et seq. (the "UCL"), by unlawfully, unfairly and/or deceptively having
3 in place company policies, practices and procedures that failed to record and pay
4 PLAINTIFFS and the other members of the CALIFORNIA CLASS for all time
5 worked, including minimum wages owed and overtime wages owed for work
6 performed by these employees; and,
7 (b) Committing an act of unfair competition in violation of the UCL, by failing to
8 provide the PLAINTIFFS and the other members of the CALIFORNIA CLASS
9 with the legally required meal and rest periods.
10 33. This Class Action meets the statutory prerequisites for the maintenance of a Class Action
11 as set forth in Cal. Code of Civ. Proc. § 382, in that:
12 (a) The persons who comprise the CALIFORNIA CLASS are so numerous that the
13 joinder of all such persons is impracticable and the disposition of their claims as a
14 class will benefit the parties and the Court;
15 (b) Nearly all factual, legal, statutory, declaratory and injunctive relief issues that are
16 raised in this Complaint are common to the CALIFORNIA CLASS will apply to
17 every member of the CALIFORNIA CLASS;
18 (c) The claims of the representative PLAINTIFFS are typical of the claims of each
19 member of the CALIFORNIA CLASS. PLAINTIFFS, like all the other members
20 of the CALIFORNIA CLASS, was classified as a non-exempt employee paid on an
21 hourly basis who was subjected to the DEFENDANT’s deceptive practice and
22 policy which failed to provide the legally required meal and rest periods to the
23 CALIFORNIA CLASS and thereby underpaid compensation to PLAINTIFFS and
24 CALIFORNIA CLASS. PLAINTIFFS sustained economic injury as a result of
25 DEFENDANT’s employment practices. PLAINTIFFS and the members of the
26 CALIFORNIA CLASS were and are similarly or identically harmed by the same
27 unlawful, deceptive and unfair misconduct engaged in by DEFENDANT; and,
28
11
FIRST AMENDED CLASS AND REPRESENTATIVE ACTION COMPLAINT
1 (d) The representative PLAINTIFFS will fairly and adequately represent and protect
2 the interest of the CALIFORNIA CLASS, and has retained counsel who are
3 competent and experienced in Class Action litigation. There are no material
4 conflicts between the claims of the representative PLAINTIFFS and the members
5 of the CALIFORNIA CLASS that would make class certification inappropriate.
6 Counsel for the CALIFORNIA CLASS will vigorously assert the claims of all
7 CALIFORNIA CLASS Members.
8 34. In addition to meeting the statutory prerequisites to a Class Action, this action is properly
9 maintained as a Class Action pursuant to Cal. Code of Civ. Proc. § 382, in that:
10 (a) Without class certification and determination of declaratory, injunctive, statutory
11 and other legal questions within the class format, prosecution of separate actions
12 by individual members of the CALIFORNIA CLASS will create the risk of:
13 1) Inconsistent or varying adjudications with respect to individual members
14 of the CALIFORNIA CLASS which would establish incompatible
15 standards of conduct for the parties opposing the CALIFORNIA CLASS;
16 and/or,
17 2) Adjudication with respect to individual members of the CALIFORNIA
18 CLASS which would as a practical matter be dispositive of interests of the
19 other members not party to the adjudication or substantially impair or
20 impede their ability to protect their interests.
21 (b) The parties opposing the CALIFORNIA CLASS have acted or refused to act on
22 grounds generally applicable to the CALIFORNIA CLASS, making appropriate
23 class-wide relief with respect to the CALIFORNIA CLASS as a whole in that
24 DEFENDANT failed to pay all wages due to members of the CALIFORNIA
25 CLASS as required by law;
26 1) With respect to the First Cause of Action, the final relief on behalf of the
27 CALIFORNIA CLASS sought does not relate exclusively to restitution
28 because through this claim PLAINTIFFS seeks declaratory relief holding
12
FIRST AMENDED CLASS AND REPRESENTATIVE ACTION COMPLAINT
1 that the DEFENDANT’s policy and practices constitute unfair competition,
2 along with declaratory relief, injunctive relief, and incidental equitable
3 relief as may be necessary to prevent and remedy the conduct declared to
4 constitute unfair competition;
5 (c) Common questions of law and fact exist as to the members of the CALIFORNIA
6 CLASS, with respect to the practices and violations of California law as listed
7 above, and predominate over any question affecting only individual CALIFORNIA
8 CLASS Members, and a Class Action is superior to other available methods for the
9 fair and efficient adjudication of the controversy, including consideration of:
10 1) The interests of the members of the CALIFORNIA CLASS in individually
11 controlling the prosecution or defense of separate actions in that the
12 substantial expense of individual actions will be avoided to recover the
13 relatively small amount of economic losses sustained by the individual
14 CALIFORNIA CLASS Members when compared to the substantial
15 expense and burden of individual prosecution of this litigation;
16 2) Class certification will obviate the need for unduly duplicative litigation
17 that would create the risk of:
18 A. Inconsistent or varying adjudications with respect to individual
19 m
Preview
1 Vanessa Franco Chavez, SBN 266724 Anna M. Burnbaum, SBN 349542 2 KLEIN, DENATALE, GOLDNER, COOPER, ROSENLIEB & KIMBALL, LLP 3 10000 Stockdale Highway, Suite 200 Bakersfield, CA 93311 4 Telephone: 661-395-1000 Facsimile: 661-326-0418 5 Email: vchavez@kleinlaw.com aburnbaum@kleinlaw.com 6 Attorneys for Defendant, Feghali Foods, Inc. 7 Norman B. Blumenthal (State Bar #068687) 8 Kyle R. Nordrehaug (State Bar #205975) Aparajit Bhowmik (State Bar #248066) 9 Nicholas J. De Blouw (State Bar #280922) Sergio Julian Puche (State Bar #289437) 10 BLUMENTHAL NORDREHAUG BHOWMIK DE BLOUW LLP 2255 Calle Clara 11 La Jolla, CA Telephone: (858) 551-1223 12 Facsimile: (858) 551-1232 13 Attorneys for Plaintiff, Isaac Rodriguez 14 15 SUPERIOR COURT OF THE STATE OF CALIFORNIA 16 COUNTY OF KERN 17 ISAAC RODRIGUEZ, on behalf of the State of Case No. BCV-23-100142 18 California, as a private attorney general, JOINT STIPULATION FOR LEAVE 19 Plaintiff, TO FILE FIRST AMENDED CLASS AND REPRESENTATIVE ACTION 20 v. COMPLAINT; [PROPOSED] ORDER 21 FEGHALI FOODS, a Corporation; and DOES 1 Judge: Hon. T. Mark Smith through 50, inclusive Complaint Filed: 1/17/2023 22 Department: T-2 Defendant. Trial Date: Not set 23 24 25 TO THE COURT AND ALL INTERESTED PARTIES: 26 Plaintiff, Isaac Rodriguez (“Rodriguez”) and Defendant Feghali Food Stroes, Inc. 27 (“Defendant”) (collectively, known as the “Parties”), by and through their respective counsel, 28 hereby stipulate and agree to the following: STIPULATION FOR LEAVE TO FILE FAC 1 WHEREAS, on January 17, 2023, Rodriguez filed a wage-and-hour class action lawsuit 2 against Defendant in the Superior Court of California, County of Kern, alleging nine (9) causes of 3 action (Case No. BCV-23-100130) (“Rodriguez Class Action”); 4 WHEREAS, on January 17, 2023, Rodriguez also filed the instant PAGA Representative 5 Action complaint, seeking penalties under Labor Code section 2698, et seq. (Private Attorney 6 General Act of 2004 (“PAGA”)) (Case No. BCV-23-100142) (“Rodriguez PAGA Action”); 7 WHEREAS, in March 2023, Rodriguez’s counsel indicated they represented additional 8 employees, Maria B. Alvarez, Kate Lopez, Gilberto Serrato Moreno, and Cecilio Guzman 9 Viveros (collectively, the “Additional Employees”). 10 WHEREAS, on March 21, 2023, Rodriguez submitted a Request for Dismissal of the 11 Rodriguez Class Action; 12 WHEREAS, on May 9, 2023, the Court entered the parties’ Stipulation for Order of 13 Arbitration and Stay ordering the parties to arbitration; 14 WHEREAS, on February 16, 2024, the Parties participated in mediation before Tagore 15 Subramaniam where the parties reached a settlement of the Plaintiff’s class and PAGA claims, 16 subject to Court approval; and 17 WHEREAS, since the Parties have successfully negotiated a settlement, for the sole 18 purpose of effectuating the terms of the Class Action and PAGA Settlement reached by the 19 Parties, the Parties now seek leave to file a First Amended Class and Representative Action 20 Complaint (“FAC”), a copy which is attached hereto as Exhibit “A”, which include: (1) all of the 21 class claims that were previously alleged but were dismissed without prejudice to effectuate the 22 terms of the Class Action and PAGA settlement reached by the Parties, and (2) the adding the 23 Additional Employees. 24 WHEREAS, for settlement purposes only, Defendants consent to allow Plaintiff to file the 25 proposed FAC attached hereto as Exhibit “A”. 26 WHEREAS, the Parties agree the First Amended Class and Representative Action 27 Complaint shall not be deemed “an amended pleading, motion, order or other paper from which it 28 may first be ascertained that the case is one which is or has become removable” within the meaning 2 2024.04.01_Stip for Leave to File FAC (FINAL) STIPULATION FOR LEAVE TO FILE FAC 1 of 28 U.S.C. 1446(b)(3). To that end, Defendants will not attempt to remove the First Amended 2 Class and Representative Action Complaint matter to Federal Court. 3 IT IS HEREBY STIPULATED AND AGREED BY THE PARTIES HERETO, 4 THROUGH THEIR RESPECTIVE COUNSEL, AS FOLLOWS: 5 1. For the sole purpose of effectuating the Class Action and PAGA Settlement and 6 consistent with the terms thereof, Plaintiffs may file the attached First Amended Class and 7 Representative Action Complaint (“FAC”), a copy of which is attached as Exhibit “A”. 8 2. Plaintiff shall file the FAC within ten (10) days of this order; 9 3. Pursuant to the settlement, the Parties additionally request that Defendant need not 10 file responsive pleading to the First Amended Class and Representative Action Complaint unless 11 the Court does not approve the parties’ settlement, in which case the parties will meet and confer 12 to set a deadline for Defendant to file a responsive pleading. 13 4. The Defendant’s stipulation that Plaintiffs be permitted to file the First Amended 14 Class and Representative Action Complaint shall not constitute an admission of any of the 15 allegation set forth in the proposed First Amended Complaint or any prior versions of the 16 Complaint. 17 5. By signing this Stipulation, Defendant shall not be deemed to have waived any 18 affirmative defenses or any other legal or factual position in connection with any of Plaintiffs’ 19 claims or the filing of the First Amended Class and Representative Action Complaint. In the 20 event the parties’ settlement is not approved by the Court, Defendant shall maintain any rights to 21 challenge any of Plaintiffs’ pleadings, challenge Plaintiffs’ ability to assert the claims set forth in 22 the First Amended Class and Representative Action Complaint (individually or on a 23 representative basis), and file a demurrer, motion to strike, motion to dismiss, motion for 24 judgment on the pleadings, motion for summary judgment or adjudication, or any other response. 25 6. In the event that the Parties’ class and PAGA agreement is not finally approved by 26 the Court or the settlement is terminated or otherwise rendered null and void, then certification of 27 the Class shall be automatically vacated, shall be void ab initio, of no force or effect, and shall not 28 constitute evidence or a binding determination that the requirements for certification of a class for 3 2024.04.01_Stip for Leave to File FAC (FINAL) STIPULATION FOR LEAVE TO FILE FAC 1 trial purposes in this Action or in any other action which have been, are or can be, satisfied. 2 Further, if the Parties’ class and PAGA agreement is not finally approved or if it is terminated for 3 any reason, Plaintiffs agree that they will promptly dismiss all the class and individual wage 4 claims in the amended complaint without prejudice and agree to stay the remaining representative 5 PAGA action pending arbitration of Plaintiffs’ respective individual claims. Plaintiffs agree that 6 this the Parties’ settlement shall not constitute, in this or any other proceeding, an admission of 7 any kind by Defendant, that Defendant waived the right to compel arbitration. 8 Dated: April 3, 2024 KLEIN, DENATALE, GOLDNER 9 COOPER, ROSENLIEB & KIMBALL, LLP 10 By: ___________________________________ 11 VANESSA FRANCO CHAVEZ Attorneys for Defendant Feghali Foods 12 13 2 Dated: April _____, 2024 BLUMENTHAL NORDREHAUG 14 BHOWMIK DE BLOUW LLP 15 By: ___________________________________ 16 SERGIO J. PUCHE Attorneys for Plaintiff, Isaac Rodriguez 17 18 19 20 21 22 23 24 25 26 27 28 4 2024.04.01_Stip for Leave to File FAC (FINAL) STIPULATION FOR LEAVE TO FILE FAC 1 [PROPOSED] ORDER 2 Good cause having been shown, the foregoing stipulation is hereby APPROVED and IT IS 3 HEREBY ORDERED that: 4 1. Plaintiffs are granted leave to file the First Amended Class and Representative 5 Action Complaint in the form attached as Exhibit A for the sole purpose of allowing the Parties to 6 proceed with the settlement process, including seeking the Court’s preliminary approval of the class 7 and PAGA action settlement. 8 2. Plaintiffs shall file the First Amended Class and Representative Action Complaint 9 within 10 days of this order. 10 3. Defendant need not file a responsive pleading to the First Amended Class and 11 Representative Action Complaint unless the Court does not approve the parties’ settlement, in 12 which case the parties will meet and confer to set a deadline for Defendant to file a responsive 13 pleading. 14 4. Defendant’s stipulation that Plaintiffs be permitted to file the First Amended Class 15 and Representative Action Complaint shall not constitute an admission of any of the allegations set 16 forth in the First Amended Class and Representative Action Complaint or any prior versions of the 17 Complaint. 18 5. By signing this Stipulation, Defendant shall not be deemed to have waived any 19 affirmative defenses or any other legal or factual position in connection with any of Plaintiffs’ 20 claims or the filing of the First Amended Class and Representative Action Complaint. In the event 21 the parties’ settlement is not approved by the Court, Defendant shall maintain any rights to 22 challenge any of Plaintiffs’ pleadings, challenge Plaintiffs’ ability to assert the claims set forth in 23 the First Amended Class and Representative Action Complaint (individually or on a representative 24 basis), and file a demurrer, motion to strike, motion to dismiss, motion for judgment on the 25 pleadings, motion for summary judgment or adjudication, or any other response. 26 IT IS SO ORDERED: 27 Dated: ____________________ ___________________________________ T. MARK SMITH 28 JUDGE OF THE SUPERIOR COURT 5 2024.04.01_Stip for Leave to File FAC (FINAL) STIPULATION FOR LEAVE TO FILE FAC EXHIBIT A 1 BLUMENTHAL NORDREHAUG BHOWMIK DE BLOUW LLP Norman B. Blumenthal (State Bar #068687) 2 Kyle R. Nordrehaug (State Bar #205975) Aparajit Bhowmik (State Bar #248066) Nicholas J. De Blouw (State Bar #280922) 3 2255 Calle Clara La Jolla, CA 92037 4 Telephone: (858)551-1223 Facsimile: (858) 551-1232 5 Website: www.bamlawca.com 6 Attorneys for Plaintiff 7 SUPERIOR COURT OF THE STATE OF CALIFORNIA 8 IN AND FOR THE COUNTY OF KERN 9 ISAAC RODRIGUEZ, MARIA ALVAREZ, CECILIO Case No. BCV-23-100130 GUZMAN VIVEROS, KATE LOPEZ and 10 GILBERTO SERRATO MORENO, individuals, on FIRST AMENDED CLASS AND behalf of themselves and on behalf of all persons REPRESENTATIVE ACTION COMPLAINT similarly situated, FOR: 11 1. UNFAIR COMPETITION IN VIOLATION OF 12 Plaintiffs, CAL. BUS. & PROF. CODE §§ 17200, et seq.; 2. FAILURE TO PAY MINIMUM WAGES IN 13 vs. VIOLATION OF CAL. LAB. CODE §§ 1194, 1197 & 1197.1; FEGHALI FOODS, a Corporation; and DOES 1 3. FAILURE TO PAY OVERTIME WAGES IN 14 through 50, inclusive, VIOLATION OF CAL. LAB. CODE § 510; 4. FAILURE TO PROVIDE REQUIRED MEAL 15 PERIODS IN VIOLATION OF CAL. LAB. CODE §§ 226.7 & 512 AND THE APPLICABLE IWC WAGE 16 Defendants. ORDER; 5. FAILURE TO PROVIDE REQUIRED REST 17 PERIODS IN VIOLATION OF CAL. LAB. CODE §§ 226.7 & 512 AND THE APPLICABLE IWC WAGE ORDER; 18 6. FAILURE TO PROVIDE ACCURATE ITEMIZED STATEMENTS IN VIOLATION OF 19 CAL. LAB. CODE § 226; 7. FAILURE TO REIMBURSE EMPLOYEES FOR 20 REQUIRED EXPENSES IN VIOLATION OF CAL. LAB. CODE § 2802; 8. FAILURE TO PROVIDE WAGES WHEN DUE IN 21 VIOLATION OF CAL. LAB. CODE §§ 201, 202 AND 203; 22 9. FAILURE TO PAY SICK PAY WAGES IN VIOLATION OF CAL. LAB CODE §§201-204, 233, 23 246; and 10. CIVIL PENALTIES PURSUANT TO LABOR CODE § 2699, et seq. FOR VIOLATIONS OF 24 LABOR CODE §§ 201, 202, 203, 204 et seq., 210, 218, 221, 226(a), 226.7, 227.3, 510, 512, 558(a)(1)(2), 25 1194, 1197, 1197.1, 1198, 2802, CALIFORNIA CODE OF REGULATIONS, TITLE 8, SECTION 26 11040, SUBDIVISION 5(A)-(B), AND THE APPLICABLE WAGE ORDER(s). 27 DEMAND FOR A JURY TRIAL 28 1 FIRST AMENDED CLASS AND REPRESENTATIVE ACTION COMPLAINT 1 Plaintiffs Isaac Rodriguez, Maria Alvarez, Cecilio Guzman Viveros, Kate Lopez and Gilberto 2 Serrato Moreno (collectively “PLAINTIFFS”), Individuals, on behalf of themselves and all other similarly 3 situated current and former employees allege on information and belief, except for their own acts and 4 knowledge which are based on personal knowledge, the following. 5 THE PARTIES 6 1. Defendant Feghali Foods (“DEFENDANT”) is a corporation that at all relevant times 7 mentioned herein conducted and continues to conduct substantial business in the state of California. 8 2. DEFENDANT owns and operates Little Caesars Pizza restaurants across California. 9 3. Plaintiff Isaac Rodriguez was employed by DEFENDANT in California from July of 2021 10 to February 2022. Plaintiff Rodriguez was then re-hired in April of 2022 and let go again on October 5, 11 2022. Plaintiff Maria Alvarez has been employed with DEFENDANT in California since July 17, 2022. 12 Plaintiff Cecilio Guzman Viveros was employed by DEFENDANT in California from April 4, 2022 through 13 March of 2023. Plaintiff Kate Lopez was employed by DEFENDANT in California from January of 2022 14 through October 13, 2023. Plaintiff Gilberto Serrato Moreno was employed by DEFENDANT in California 15 from April 2022 through February of 2023. PLAINTIFFS were at all times classified by DEFENDANT 16 as a non-exempt employee, paid on an hourly basis, and entitled to the legally required meal and rest 17 periods and payment of minimum and overtime wages due for all time worked. 18 4. PLAINTIFFS bring this Class Action on behalf of themselves and a California class, defined 19 as all individuals who are or previously were employed by DEFENDANT in California, including all 20 individuals who are or previously were employed by Defendant who were classified as non-exempt in the 21 State of California (the “CALIFORNIA CLASS”) from February 16, 2020 to a date to be ordered by the 22 Court (the “CALIFORNIA CLASS PERIOD”). The amount in controversy for the aggregate claim of 23 CALIFORNIA CLASS Members is under five million dollars ($5,000,000.00). 24 5. PLAINTIFFS bring this Class Action on behalf of themselves and a CALIFORNIA CLASS 25 in order to fully compensate the CALIFORNIA CLASS for their losses incurred during the CALIFORNIA 26 CLASS PERIOD caused by DEFENDANT’s policy and practice which failed to lawfully compensate these 27 employees. DEFENDANT’s policy and practice alleged herein was an unlawful, unfair and deceptive 28 business practice whereby DEFENDANT retained and continues to retain wages due PLAINTIFFS and the 2 FIRST AMENDED CLASS AND REPRESENTATIVE ACTION COMPLAINT 1 other members of the CALIFORNIA CLASS. PLAINTIFFS and the other members of the CALIFORNIA 2 CLASS seek an injunction enjoining such conduct by DEFENDANT in the future, relief for the named 3 PLAINTIFFS and the other members of the CALIFORNIA CLASS who have been economically injured 4 by DEFENDANT’s past and current unlawful conduct, and all other appropriate legal and equitable relief. 5 6. The true names and capacities, whether individual, corporate, subsidiary, partnership, 6 associate or otherwise of defendants DOES 1 through 50, inclusive, are presently unknown to PLAINTIFFS 7 who therefore sue these Defendants by such fictitious names pursuant to Cal. Civ. Proc. Code § 474. 8 PLAINTIFFS will seek leave to amend this Complaint to allege the true names and capacities of Does 1 9 through 50, inclusive, when they are ascertained. PLAINTIFFS are informed and believes, and based upon 10 that information and belief alleges, that the Defendants named in this Complaint, including DOES 1 through 11 50, inclusive, are responsible in some manner for one or more of the events and happenings that proximately 12 caused the injuries and damages hereinafter alleged. 13 7. The agents, servants and/or employees of the Defendants and each of them acting on behalf 14 of the Defendants acted within the course and scope of his, her or its authority as the agent, servant and/or 15 employee of the Defendants, and personally participated in the conduct alleged herein on behalf of the 16 Defendants with respect to the conduct alleged herein. Consequently, the acts of each Defendant are legally 17 attributable to the other Defendants and all Defendants are jointly and severally liable to PLAINTIFFS and 18 the other members of the CALIFORNIA CLASS, for the loss sustained as a proximate result of the conduct 19 of the Defendants’ agents, servants and/or employees. 20 THE CONDUCT 21 8. Pursuant to the Industrial Welfare Commission Wage Orders, DEFENDANT was required 22 to pay PLAINTIFFS and CALIFORNIA CLASS Members for all their time worked, meaning the time 23 during which an employee is subject to the control of an employer, including all the time the employee is 24 suffered or permitted to work. DEFENDANT requires PLAINTIFFS and CALIFORNIA CLASS Members 25 to work without paying them for all the time they are under DEFENDANT’s control. Among other things, 26 DEFENDANT requires PLAINTIFFS to work while clocked out during what is supposed to be 27 PLAINTIFF’s off-duty meal break. PLAINTIFFS was from time to time interrupted by work assignments 28 while clocked out for what should have been PLAINTIFF’s off-duty meal break. DEFENDANT, as a matter 3 FIRST AMENDED CLASS AND REPRESENTATIVE ACTION COMPLAINT 1 of established company policy and procedure, administers a uniform practice of rounding the actual time 2 worked and recorded by PLAINTIFFS and CALIFORNIA CLASS Members, always to the benefit of 3 DEFENDANT, so that during the course of their employment, PLAINTIFFS and CALIFORNIA CLASS 4 Members are paid less than they would have been paid had they been paid for actual recorded time rather 5 than “rounded” time. Additionally, DEFENDANT engages in the practice of requiring PLAINTIFFS and 6 CALIFORNIA CLASS Members to perform work off the clocking that DEFENDANT, as a condition of 7 employment, required these employees to submit to mandatory temperature checks and symptom 8 questionnaires for COVID-19 screening prior to clocking into DEFENDANT’s timekeeping system for the 9 workday. As a result, PLAINTIFFS and other CALIFORNIA CLASS Members forfeit minimum wage, 10 overtime wage compensation, and off-duty meal breaks by working without their time being correctly 11 recorded and without compensation at the applicable rates. DEFENDANT’s policy and practice not to pay 12 PLAINTIFFS and other CALIFORNIA CLASS Members for all time worked, is evidenced by 13 DEFENDANT’s business records. 14 9. State and federal law provides that employees must be paid overtime and meal and rest 15 break premiums at one-and-one-half times their “regular rate of pay.” PLAINTIFFS and other 16 CALIFORNIA CLASS Members are compensated at an hourly rate plus incentive pay that is tied to specific 17 elements of an employee’s performance. 18 10. The second component of PLAINTIFF’s and other CALIFORNIA CLASS Members’ 19 compensation is DEFENDANT’s non-discretionary incentive program that paid PLAINTIFFS and other 20 CALIFORNIA CLASS Members incentive wages based on their performance for DEFENDANT. The non- 21 discretionary incentive program provided all employees paid on an hourly basis with incentive 22 compensation when the employees met the various performance goals set by DEFENDANT. However, 23 when calculating the regular rate of pay in order to pay overtime and meal and rest break premiums to 24 PLAINTIFFS and other CALIFORNIA CLASS Members, DEFENDANT failed to include the incentive 25 compensation as part of the employees’ “regular rate of pay” for purposes of calculating overtime pay and 26 meal and rest break premium pay. Management and supervisors described the incentive program to 27 potential and new employees as part of the compensation package. As a matter of law, the incentive 28 compensation received by PLAINTIFFS and other CALIFORNIA CLASS Members must be included in 4 FIRST AMENDED CLASS AND REPRESENTATIVE ACTION COMPLAINT 1 the “regular rate of pay.” The failure to do so has resulted in a underpayment of overtime compensation 2 and meal and rest break premiums to PLAINTIFFS and other CALIFORNIA CLASS Members by 3 DEFENDANT. 4 11. As a result of their rigorous work schedules, PLAINTIFFS and other CALIFORNIA CLASS 5 Members were from time to time unable to take thirty (30) minute off duty meal breaks and were not fully 6 relieved of duty for their meal periods. PLAINTIFFS and other CALIFORNIA CLASS Members were 7 required from time to time to perform work as ordered by DEFENDANT for more than five (5) hours 8 during some shifts without receiving a meal break. Further, DEFENDANT from time to time failed to 9 provide PLAINTIFFS and CALIFORNIA CLASS Members with a second off-duty meal period for some 10 workdays in which these employees were required by DEFENDANT to work ten (10) hours of work. 11 DEFENDANT also engaged in the practice of rounding the meal period times to avoid paying penalties to 12 PLAINTIFFS and other CALIFORNIA CLASS Members. PLAINTIFFS and other members of the 13 CALIFORNIA CLASS therefore forfeit meal breaks without additional compensation and in accordance 14 with DEFENDANT’s corporate policy and practice. 15 12. During the CALIFORNIA CLASS PERIOD, PLAINTIFFS and other CALIFORNIA 16 CLASS Members were also required from time to time to work in excess of four (4) hours without being 17 provided ten (10) minute rest periods. Further, these employees were denied their first rest periods of at 18 least ten (10) minutes for some shifts worked of at least two (2) to four (4) hours from time to time, a first 19 and second rest period of at least ten (10) minutes for some shifts worked of between six (6) and eight (8) 20 hours from time to time, and a first, second and third rest period of at least ten (10) minutes for some shifts 21 worked of ten (10) hours or more from time to time. PLAINTIFFS and other CALIFORNIA CLASS 22 Members were also not provided with one hour wages in lieu thereof. Additionally, the applicable 23 California Wage Order requires employers to provide employees with off-duty rest periods, which the 24 California Supreme Court defined as time during which an employee is relieved from all work related duties 25 and free from employer control. In so doing, the Court held that the requirement under California law that 26 employers authorize and permit all employees to take rest period means that employers must relieve 27 employees of all duties and relinquish control over how employees spend their time which includes control 28 over the locations where employees may take their rest period. Employers cannot impose controls that 5 FIRST AMENDED CLASS AND REPRESENTATIVE ACTION COMPLAINT 1 prohibit an employee from taking a brief walk - five minutes out, five minutes back. Here, DEFENDANT’s 2 policy restricted PLAINTIFFS and other CALIFORNIA CLASS Members from unconstrained walks and 3 is unlawful based on DEFENDANT’s rule which states PLAINTIFFS and other CALIFORNIA CLASS 4 Members cannot leave the work premises during their rest period. 5 13. During the CALIFORNIA CLASS PERIOD, DEFENDANT failed to accurately record and 6 pay PLAINTIFFS and other CALIFORNIA CLASS Members for the actual amount of time these 7 employees worked. Pursuant to the Industrial Welfare Commission Wage Orders, DEFENDANT was 8 required to pay PLAINTIFFS and other CALIFORNIA CLASS Members for all time worked, meaning the 9 time during which an employee was subject to the control of an employer, including all the time the 10 employee was permitted or suffered to permit this work. DEFENDANT required these employees to work 11 off the clock without paying them for all the time they were under DEFENDANT’s control. As such, 12 DEFENDANT knew or should have known that PLAINTIFFS and the other members of the CALIFORNIA 13 CLASS were under compensated for all time worked. As a result, PLAINTIFFS and other CALIFORNIA 14 CLASS Members forfeited time worked by working without their time being accurately recorded and 15 without compensation at the applicable minimum wage and overtime wage rates. To the extent that the 16 time worked off the clock does not qualify for overtime premium payment, DEFENDANT fails to pay 17 minimum wages for the time worked off-the-clock in violation of Cal. Lab. Code §§ 1194, 1197, and 18 1197.1. 19 14. From time to time, DEFENDANT also failed to provide PLAINTIFFS and the other 20 members of the CALIFORNIA CLASS with complete and accurate wage statements which failed to show, 21 among other things, the correct gross and net wages earned. Cal. Lab. Code § 226 provides that every 22 employer shall furnish each of his or her employees with an accurate itemized wage statement in writing 23 showing, among other things, gross wages earned and all applicable hourly rates in effect during the pay 24 period and the corresponding amount of time worked at each hourly rate. PLAINTIFFS and CALIFORNIA 25 CLASS Members were paid on an hourly basis. As such, the wage statements should reflect all applicable 26 hourly rates during the pay period and the total hours worked, and the applicable pay period in which the 27 wages were earned pursuant to California Labor Code Section 226(a). The wage statements DEFENDANT 28 provided to PLAINTIFFS and other CALIFORNIA CLASS Members failed to identify such information. 6 FIRST AMENDED CLASS AND REPRESENTATIVE ACTION COMPLAINT 1 More specifically, the wage statements failed to identify the accurate total hours worked each pay period. 2 When the hours shown on the wage statements were added up, they did not equal the actual total hours 3 worked during the pay period in violation of Cal. Lab. Code 226(a)(2). Aside, from the violations listed 4 above in this paragraph, DEFENDANT failed to issue to PLAINTIFFS an itemized wage statement that lists 5 all the requirements under California Labor Code 226 et seq. As a result, DEFENDANT from time to time 6 provided PLAINTIFFS and the other members of the CALIFORNIA CLASS with wage statements which 7 violated Cal. Lab. Code § 226. 8 15. Cal. Lab. Code § 204(d) provides, the requirements of this section shall be deemed satisfied 9 by the payment of wages for weekly, biweekly, or semimonthly payroll if the wages are paid not more than 10 seven (7) calendar days following the close of the payroll period. Cal. Lab. Code § 210 provides: 11 [I]n addition to, and entirely independent and apart from, any other penalty provided in this article, every person who fails to pay the wages of each employee as provided in Sections. . . .204. . .shall be 12 subject to a civil penalty as follows: (1) For any initial violation, one hundred dollars ($100) for each failure to pay each employee; (2) For each subsequent violation, or any willful or intentional violation, two 13 hundred dollars ($200) for each failure to pay each employee, plus 25 percent of the amount unlawfully withheld. 14 16. DEFENDANT from time to time failed to pay PLAINTIFFS and members of the 15 CALIFORNIA LABOR SUB-CLASS Members within seven (7) days of the close of the payroll period in 16 accordance with Cal. Lab. Code § 204(d), including but not limited to for the “Hourly” regular wage 17 payments. 18 17. DEFENDANT underpaid sick pay wages to PLAINTIFFS and other CALIFORNIA CLASS 19 Members by failing to pay such wages at the regular rate of pay in violation of Cal. Lab. Code Section 246. 20 Specifically, PLAINTIFFS and other non-exempt employees earn non-discretionary remuneration. Rather 21 than pay sick pay at the regular rate of pay, DEFENDANT underpaid sick pay to PLAINTIFFS and other 22 CALIFORNIA CLASS Members at their base rates of pay. 23 18. Cal. Lab. Code Section 246(l)(2) requires that paid sick time for nonexempt employees be 24 calculated by dividing the employee’s total wages, not including overtime premium pay, by the employee’s 25 total hours worked in the full pay periods of the prior 90 days of employment. 26 19. DEFENDANT violated Cal. Lab. Code Section 246 by failing to pay sick pay at the regular 27 rate of pay. PLAINTIFFS and CALIFORNIA CLASS Members routinely earned non-discretionary 28 incentive wages which increased their regular rate of pay. However, when sick pay was paid, it was paid 7 FIRST AMENDED CLASS AND REPRESENTATIVE ACTION COMPLAINT 1 at the base rate of pay for PLAINTIFFS and members of the CALIFORNIA CLASS, as opposed to the 2 correct, higher regular rate of pay, as required under Cal. Lab. Code Section 246. 3 20. As a pattern and practice, DEFENDANT regularly failed to pay PLAINTIFFS and other 4 members of the CALIFORNIA CLASS their correct wages and accordingly owe waiting time penalties 5 pursuant to Cal. Lab. Code Section 203. Further, PLAINTIFFS are informed and believe and based thereon 6 allege that such failure to pay sick pay at regular rate was willful, such that PLAINTIFFS and members of 7 the CALIFORNIA CLASS whose employment has separated are entitled to waiting time penalties pursuant 8 to Cal. Lab. Code Sections 201-203. 9 21. Pursuant to Cal. Lab. Code Section 221, “It shall be unlawful for any employer to collect 10 or receive from an employee any part of wages theretofore paid by said employer to said employee.” 11 DEFENDANT failed to pay all compensation due to PLAINTIFFS and other CALIFORNIA LABOR SUB- 12 CLASS Members, made unlawful deductions from compensation payable to PLAINTIFFS and 13 CALIFORNIA LABOR SUB-CLASS Members, failed to disclose all aspects of the deductions from 14 compensation payable to PLAINTIFFS and CALIFORNIA LABOR SUB-CLASS Members, and thereby 15 failed to pay these employees all wages due at each applicable pay period and upon termination. 16 PLAINTIFFS and members of the CALIFORNIA LABOR SUB-CLASS seek recovery of all illegal 17 deductions from wages according to proof, related penalties, interest, attorney fees and costs. 18 22. DEFENDANT intentionally and knowingly failed to reimburse and indemnify 19 PLAINTIFFS and the other CALIFORNIA CLASS Members for required business expenses incurred by 20 the PLAINTIFFS and other CALIFORNIA CLASS Members in direct consequence of discharging their 21 duties on behalf of DEFENDANT. Under California Labor Code Section 2802, employers are required to 22 indemnify employees for all expenses incurred in the course and scope of their employment. Cal. Lab. 23 Code § 2802 expressly states that "an employer shall indemnify his or her employee for all necessary 24 expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties, 25 or of his or her obedience to the directions of the employer, even though unlawful, unless the employee, at 26 the time of obeying the directions, believed them to be unlawful." 27 23. In the course of their employment PLAINTIFFS and other CALIFORNIA CLASS Members 28 as a business expense, were required by DEFENDANT to use their own personal cellular phones as a result 8 FIRST AMENDED CLASS AND REPRESENTATIVE ACTION COMPLAINT 1 of and in furtherance of their job duties as employees for DEFENDANT but are not reimbursed or 2 indemnified by DEFENDANT for the cost associated with the use of their personal cellular phones for 3 DEFENDANT’s benefit. Specifically, PLAINTIFFS and other CALIFORNIA CLASS Members were 4 required by DEFENDANT to use their personal cellular phones. As a result, in the course of their 5 employment with DEFENDANT, PLAINTIFFS and other members of the CALIFORNIA CLASS incurred 6 unreimbursed business expenses which included, but were not limited to, costs related to the use of their 7 personal cellular phones all on behalf of and for the benefit of DEFENDANT. 8 24. Specifically as to PLAINTIFFS, DEFENDANT failed to provide all the legally required off- 9 duty meal and rest breaks to PLAINTIFFS as required by the applicable Wage Order and Labor Code and 10 failed to pay PLAINTIFFS all minimum and overtime wages due to PLAINTIFF. DEFENDANT did not 11 have a policy or practice which provided timely off-duty meal and rest breaks to PLAINTIFFS and also 12 failed to compensate PLAINTIFFS for PLAINTIFF’s missed meal and rest breaks. The nature of the work 13 performed by the PLAINTIFFS did not prevent PLAINTIFFS from being relieved of all of PLAINTIFF’s 14 duties for the legally required off-duty meal periods. As a result, DEFENDANT’s failure to provide 15 PLAINTIFFS with the legally required meal periods is evidenced by DEFENDANT’s business records. 16 The amount in controversy for PLAINTIFFS individually do not exceed the sum or value of $75,000. 17 JURISDICTION AND VENUE 18 25. This Court has jurisdiction over this Action pursuant to California Code of Civil Procedure, 19 Section 410.10 and California Business & Professions Code, Section 17203. This action is brought as a 20 Class Action on behalf of PLAINTIFFS and similarly situated employees of DEFENDANT pursuant to Cal. 21 Code of Civ. Proc. § 382. 22 26. Venue is proper in this Court pursuant to California Code of Civil Procedure, Sections 395 23 and 395.5, because PLAINTIFFS worked in this County for DEFENDANT and DEFENDANT (i) currently 24 maintains and at all relevant times maintained offices and facilities in this County and/or conducts 25 substantial business in this County, and (ii) committed the wrongful conduct herein alleged in this County 26 against members of the CALIFORNIA CLASS. 27 /// 28 /// 9 FIRST AMENDED CLASS AND REPRESENTATIVE ACTION COMPLAINT 1 THE CALIFORNIA CLASS 2 27. PLAINTIFFS bring the First Cause of Action for Unfair, Unlawful and Deceptive Business 3 Practices pursuant to Cal. Bus. & Prof. Code §§ 17200, et seq. (the "UCL") as a Class Action, pursuant to 4 Cal. Code of Civ. Proc. § 382, on behalf of a California class, defined as all individuals who are or 5 previously were employed by DEFENDANT in California, including any employees staffed with 6 DEFENDANT by a third party, and classified as non-exempt employees (the “CALIFORNIA CLASS”) 7 at any time during the period beginning February 16, 2020 to a date to be ordered by the Court (the 8 “CALIFORNIA CLASS PERIOD”). The amount in controversy for the aggregate claim of CALIFORNIA 9 CLASS Members is under five million dollars ($5,000,000.00). 10 28. To the extent equitable tolling operates to toll claims by the CALIFORNIA CLASS against 11 DEFENDANT, the CALIFORNIA CLASS PERIOD should be adjusted accordingly. 12 29. DEFENDANT, as a matter of company policy, practice and procedure, and in violation of 13 the applicable Labor Code, Industrial Welfare Commission (“IWC”) Wage Order requirements, and the 14 applicable provisions of California law, intentionally, knowingly, and wilfully, engaged in a practice 15 whereby DEFENDANT failed to record all meal and rest breaks missed by PLAINTIFFS and other 16 CALIFORNIA CLASS Members, even though DEFENDANT enjoyed the benefit of this work, required 17 employees to perform this work and permits or suffers to permit this work. 18 30. DEFENDANT has the legal burden to establish that each and every CALIFORNIA CLASS 19 Member was paid accurately for all meal and rest breaks missed as required by California laws. The 20 DEFENDANT, however, as a matter of policy and procedure failed to have in place during the 21 CALIFORNIA CLASS PERIOD and still fails to have in place a policy or practice to ensure that each and 22 every CALIFORNIA CLASS Member is paid as required by law. This common business practice is 23 applicable to each and every CALIFORNIA CLASS Member can be adjudicated on a class-wide basis as 24 unlawful, unfair, and/or deceptive under Cal. Business & Professions Code §§ 17200, et seq. (the “UCL”) 25 as causation, damages, and reliance are not elements of this claim. 26 31. The CALIFORNIA CLASS, is so numerous that joinder of all CALIFORNIA CLASS 27 Members is impracticable. 28 32. DEFENDANT violated the rights of the CALIFORNIA CLASS under California law by: 10 FIRST AMENDED CLASS AND REPRESENTATIVE ACTION COMPLAINT 1 (a) Committing an act of unfair competition in violation of , Cal. Bus. & Prof. Code 2 §§ 17200, et seq. (the "UCL"), by unlawfully, unfairly and/or deceptively having 3 in place company policies, practices and procedures that failed to record and pay 4 PLAINTIFFS and the other members of the CALIFORNIA CLASS for all time 5 worked, including minimum wages owed and overtime wages owed for work 6 performed by these employees; and, 7 (b) Committing an act of unfair competition in violation of the UCL, by failing to 8 provide the PLAINTIFFS and the other members of the CALIFORNIA CLASS 9 with the legally required meal and rest periods. 10 33. This Class Action meets the statutory prerequisites for the maintenance of a Class Action 11 as set forth in Cal. Code of Civ. Proc. § 382, in that: 12 (a) The persons who comprise the CALIFORNIA CLASS are so numerous that the 13 joinder of all such persons is impracticable and the disposition of their claims as a 14 class will benefit the parties and the Court; 15 (b) Nearly all factual, legal, statutory, declaratory and injunctive relief issues that are 16 raised in this Complaint are common to the CALIFORNIA CLASS will apply to 17 every member of the CALIFORNIA CLASS; 18 (c) The claims of the representative PLAINTIFFS are typical of the claims of each 19 member of the CALIFORNIA CLASS. PLAINTIFFS, like all the other members 20 of the CALIFORNIA CLASS, was classified as a non-exempt employee paid on an 21 hourly basis who was subjected to the DEFENDANT’s deceptive practice and 22 policy which failed to provide the legally required meal and rest periods to the 23 CALIFORNIA CLASS and thereby underpaid compensation to PLAINTIFFS and 24 CALIFORNIA CLASS. PLAINTIFFS sustained economic injury as a result of 25 DEFENDANT’s employment practices. PLAINTIFFS and the members of the 26 CALIFORNIA CLASS were and are similarly or identically harmed by the same 27 unlawful, deceptive and unfair misconduct engaged in by DEFENDANT; and, 28 11 FIRST AMENDED CLASS AND REPRESENTATIVE ACTION COMPLAINT 1 (d) The representative PLAINTIFFS will fairly and adequately represent and protect 2 the interest of the CALIFORNIA CLASS, and has retained counsel who are 3 competent and experienced in Class Action litigation. There are no material 4 conflicts between the claims of the representative PLAINTIFFS and the members 5 of the CALIFORNIA CLASS that would make class certification inappropriate. 6 Counsel for the CALIFORNIA CLASS will vigorously assert the claims of all 7 CALIFORNIA CLASS Members. 8 34. In addition to meeting the statutory prerequisites to a Class Action, this action is properly 9 maintained as a Class Action pursuant to Cal. Code of Civ. Proc. § 382, in that: 10 (a) Without class certification and determination of declaratory, injunctive, statutory 11 and other legal questions within the class format, prosecution of separate actions 12 by individual members of the CALIFORNIA CLASS will create the risk of: 13 1) Inconsistent or varying adjudications with respect to individual members 14 of the CALIFORNIA CLASS which would establish incompatible 15 standards of conduct for the parties opposing the CALIFORNIA CLASS; 16 and/or, 17 2) Adjudication with respect to individual members of the CALIFORNIA 18 CLASS which would as a practical matter be dispositive of interests of the 19 other members not party to the adjudication or substantially impair or 20 impede their ability to protect their interests. 21 (b) The parties opposing the CALIFORNIA CLASS have acted or refused to act on 22 grounds generally applicable to the CALIFORNIA CLASS, making appropriate 23 class-wide relief with respect to the CALIFORNIA CLASS as a whole in that 24 DEFENDANT failed to pay all wages due to members of the CALIFORNIA 25 CLASS as required by law; 26 1) With respect to the First Cause of Action, the final relief on behalf of the 27 CALIFORNIA CLASS sought does not relate exclusively to restitution 28 because through this claim PLAINTIFFS seeks declaratory relief holding 12 FIRST AMENDED CLASS AND REPRESENTATIVE ACTION COMPLAINT 1 that the DEFENDANT’s policy and practices constitute unfair competition, 2 along with declaratory relief, injunctive relief, and incidental equitable 3 relief as may be necessary to prevent and remedy the conduct declared to 4 constitute unfair competition; 5 (c) Common questions of law and fact exist as to the members of the CALIFORNIA 6 CLASS, with respect to the practices and violations of California law as listed 7 above, and predominate over any question affecting only individual CALIFORNIA 8 CLASS Members, and a Class Action is superior to other available methods for the 9 fair and efficient adjudication of the controversy, including consideration of: 10 1) The interests of the members of the CALIFORNIA CLASS in individually 11 controlling the prosecution or defense of separate actions in that the 12 substantial expense of individual actions will be avoided to recover the 13 relatively small amount of economic losses sustained by the individual 14 CALIFORNIA CLASS Members when compared to the substantial 15 expense and burden of individual prosecution of this litigation; 16 2) Class certification will obviate the need for unduly duplicative litigation 17 that would create the risk of: 18 A. Inconsistent or varying adjudications with respect to individual 19 m