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1 EMPLOYMENT LAWYERS GROUP
KARL GERBER, SBN: 166003
2 ANN GULESER, SBN: 210790
3 13418 Ventura Boulevard,
Sherman Oaks, California 91423
4 Telephone: 818 783 7300
Facsimile: 818 995 7159
5
Attorneys for Plaintiff
6 PASCUAL GONZALEZ
7
8 SUPERIOR COURT FOR THE STATE OF CALIFORNIA
9 COUNTY OF KERN
10 PASCUAL GONZALEZ, an individual, ) CASE NO.: BCV23101062
11 )
) FIRST AMENDED COMPLAINT FOR
12 Plaintiff, ) DAMAGES AND DEMAND FOR JURY
) TRIAL EXCEPT FOR THE TWELFTH
13 vs. ) AND THE THIRTEENTH CAUSES OF
) ACTION BASED UPON:
14
)
15 RIDE FREIGHT TRANSPORT; RAUL ) 1. MINIMUM WAGE VIOLATIONS;
FERNANDEZ, an individual; and DOES 1 ) 2. OVERTIME AND DOUBLE TIME
16 through 100 inclusive, ) VIOLATIONS;
) 3. COMMON COUNT FOR WORK
17 ) AND LABOR PERFORMED
Defendants. ) (QUANTUM MERIUT);
18
) 4. CALIFORNIA LABOR CODE §
19 ) 226 PENALTIES;
) 5. CALIFORNIA LABOR CODE
20 ) §201 & 203 PENALTIES;
) 6. VIOLATION OF LABOR CODE §
21 ) 558;
) 7. CALIFORNIA LABOR CODE
22
) SECTION 2802 VIOLATIONS;
23 ) 8. REPORTING TIME PAY
) VIOLATIONS;
24 ) 9. VIOLATION OF LABOR CODE §
) 1102.5(b) AND (c);
25 ) 10. WRONGFUL TERMINATION IN
26 ) VIOLATION OF PUBLIC
) POLICY;
27 ) 11. INTENTIONAL INFLICTION OF
) EMOTIONAL DISTRESS;
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1
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FIRST AMENDED COMPLAINT
1 ) 12. BUSINESS & PROFESSIONS
) CODE § 17200 VIOLATIONS;
2 ) 13. CALIFORNIA LABOR CODE
3 ) SECTION 2699, 2699.3 PAGA
_____________________________________ ) PENALTIES
4
5 Plaintiff, PASCUAL GONZALEZ, complains as follows:
6
GENERAL ALLEGATIONS
7
(AGAINST ALL NAMED DEFENDANTS)
8
9 1. Plaintiff, PASCUAL GONZALEZ (“Plaintiff”), is and was at all relevant times a resident
10 of the County of Kern, State of California, over the age of 18.
11 2. Plaintiff is informed and believes that at all times herein mentioned, Defendant, RIDE
FREIGHT TRANSPORT (“RFT”) is and was a California corporation employing Plaintiff
12
remotely at his residence at 2706 Anza Street, Bakersfield, CA 93305.
13
3. At all times herein mentioned, Plaintiff is informed and believes that Defendant, RAUL
14
FERNANDEZ, is and was an individual residing in the County of Fresno, State of California,
15 and was the manager, dispatcher of Plaintiff and the owner and the chief executive officer of
16 RTF.
17 4. Plaintiff is ignorant of the true names and capacities, whether individual, corporate, or
associate, of those defendants fictitiously sued as DOES 1 through 100 inclusive and so Plaintiff
18
sues them by these fictitious names. Plaintiff is informed and believes that each of the DOE
19
defendants, numbers 1 through 100, reside in the State of California and are in some manner
20
responsible for the conduct alleged herein. Upon discovering the true names and capacities of
21 these fictitiously named Defendants, Plaintiff will amend this complaint to show the true names
22 and capacities of these fictitiously named defendants.
23 5. From about March 2020 Plaintiff started to work at RFT as a truck driver until his
termination on or about November 18, 2022.
24
6. Throughout his employment, Defendant did not give Plaintiff any wage statements,
25
paystubs, 1099, or a W2. Defendant did not provide Plaintiff with any pay check stubs showing
26
his pay rate, overtime, deductions, or hours worked. Defendant did not deduct taxes from
27
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FIRST AMENDED COMPLAINT
1 Plaintiff’s pay. Plaintiff was paid weekly, based on a daily pay which came approximately to
2 $43.75 per hour.
3 7. Throughout his employment, Defendant paid Plaintiff his pay late.
8. Throughout his employment, Plaintiff was subject to the on-call policies of Defendant
4
wherein Plaintiff had to answer the phone when called by Defendant and drive to the warehouse
5
to obtain empty containers in order to make deliveries. Defendant did not pay Plaintiff for the
6 time he had to wait to be called into work.
7 9. Throughout his employment, Defendant did not pay Plaintiff for the time he drove to the
8 warehouse to wait for an empty container, pick it up and return it to Bakersfield which would
9 take between 2-5 hours. Defendant failed to pay Plaintiff reporting time pay.
10. Throughout his employment, Defendant forced Plaintiff to work with less than 10 hours
10
of rest time between 11-14 hour driving shifts which is illegal. Plaintiff worked 12-16 hours a
11
day, 7 days a week, which did not permit for 10 hours of rest after 11-14 hours of driving.
12 11. Throughout his employment, Defendant did not pay Plaintiff for the non-driving work he
13 performed for Defendant. Defendant paid Plaintiff by the load for driving time only. With
14 respect to time Plaintiff worked waiting for loads at ports, Defendant’s manager/dispatcher and
15 owner Raul Fernandez promised he would only pay Plaintiff $25/hour after the second hour. The
first two hours would be free work. Plaintiff worked more than 3 hours at ports waiting for his
16
loads. Defendant paid Plaintiff nothing for this work.
17
12. Starting in September 2020, Plaintiff complained to his manager/dispatcher and the
18
owner of the company Raul Fernandez at least once a month that the conditions at work were
19 unsafe because Raul Fernandez was forcing Plaintiff to drive without adequate sleep time and
20 not paying him for work performed waiting for loads at the ports.
21 13. On or about November 11, 2022, Plaintiff complained to his manager Raul Fernandez
that he no longer wanted to work without adequate rest and was physically unable to pick up a
22
double shift that Fernandez asked him to pick up without adequate rest. Plaintiff said someone
23
could get hurt if he had an accident because of fatigue. On or about November 14, 2022, Raul
24
Fernandez told Plaintiff he should be patient and that he would better orchestrate his schedule,
25 and loads. On or about November 18, 2022, Defendant fired Plaintiff. Plaintiff refused to drive
26 in unsafe and illegal conditions and refused to work for free. Defendant fired Plaintiff in
27 retaliation for complaining.
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3
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FIRST AMENDED COMPLAINT
1 14. Defendant instructed Plaintiff to take Defendant’s truck to be serviced and did not
2 reimburse Plaintiff for the Uber fees he spent to return home. Plaintiff used his cell phone for
3 work and Defendant did not reimburse him for cell phone usage. Plaintiff had to buy protective
gear such as gloves, vest, boots, log books, tools for work for which he was not reimbursed.
4
15. All of the foregoing and following actions taken toward Plaintiff that are alleged in this
5
complaint were carried out in the course and scope of employment by managerial employees and
6 agents of each other acting in a deliberate, cold, callous, malicious, oppressive, and intentional
7 manner in order to injure and damage Plaintiff, and those acts that were carried out by non-
8 managerial agents were ratified by managerial agents by the managerial agents’ knowledge and
9 approval.
10
FIRST CAUSE OF ACTION
11
MINIMUM WAGE VIOLATIONS
12 (AGAINST DEFENDANT RFT, AND DOE DEFENDANTS)
13
14 16. Plaintiff realleges the information set forth in Paragraphs 1-15 of the general allegations,
15 and incorporates these paragraphs into this cause of action as if they were fully alleged herein.
17. Plaintiff was not paid minimum wages because he was not paid for working off the clock
16
in ports waiting for loads, driving to the warehouse to pick up empty containers, doing
17
inspections of his vehicle before starting to drive, and working on call off the clock waiting to be
18
called into work. California Labor Code §1194 was violated by not paying Plaintiff minimum
19 wage to perform off the clock work.
20 18. Plaintiff prays for relief under California Labor Code §§1194 and 1194.2 including
21 liquidated damages to pay Plaintiff minimum wage for all hours on call and worked, attorney
fees, and costs. Plaintiffs also pray for California Labor Code §1197.1 civil penalties of $250.00
22
per pay period when was not paid minimum wage for each hour worked.
23
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FIRST AMENDED COMPLAINT
1 SECOND CAUSE OF ACTION
2 OVERTIME AND DOUBLE TIME VIOLATIONS
3 (AGAINST DEFENDANT RFT, AND DOE DEFENDANTS)
4
19. Plaintiff realleges the information set forth in Paragraphs 1-15 of the general allegations,
5
Paragraphs 16-19 of the First Cause of Action, and incorporates these paragraphs into this cause
6
of action as if they were fully alleged herein.
7 20. Plaintiff worked more hours off the clock after and before his drive time and worked
8 through his meal breaks for which he was paid nothing. Plaintiff was not paid minimum wages
9 because he was not paid for driving to the warehouse to pick up empty containers, doing
inspections of his vehicle before starting to drive, taking the truck to be serviced, and working
10
on call off the clock. Because those hours were not accounted for in Plaintiff’s pay, Plaintiff was
11
not paid for overtime hours he worked. The money Plaintiff was paid per day simply did not
12
account for overtime and double time based upon Plaintiff’s regular hourly rate. Based upon
13 what he was paid Plaintiff was not paid overtime and/or double time wages at the proper rate.
14 Accordingly, California Labor Code §§510 and 1194 require Plaintiff to receive overtime and
15 double time pay for the overtime and double time hours worked.
16 21. Plaintiff’s daily totals for hours worked would have to increase to include unpaid
overtime and/or double for work off the clock. Accordingly, California Labor Code §§510 and
17
1194 require Plaintiff to receive overtime and double time for hours worked past hours of
18
driving.
19 22. Plaintiff prays for relief under California Labor Code §1194 including unpaid overtime,
20 double time, attorney fees, and costs.
21
22 THIRD CAUSE OF ACTION
COMMON COUNT FOR WORK AND LABOR PERFORMED (QUANTUM MERIUT)
23
(AGAINST DEFENDANT RFT AND ALL DOE DEFENDANTS)
24
25 23. Plaintiff realleges the information set forth in Paragraphs 1-15 of the general allegations,
26 Paragraphs 16-19 of the First Cause of Action, Paragraphs 20-22 of the Second Cause of Action,
27 and incorporates those paragraphs as though fully stated in this cause of action.
28
5
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FIRST AMENDED COMPLAINT
1 24. Plaintiff was not fully paid for all of Plaintiff’s efforts at Defendant. These efforts include
2 having to work off the clock, working regular time, overtime and double time without pay.
3 Defendant did not pay Plaintiff wages for each hour he worked. The wages Plaintiff was paid did
not pay for work off the clock not driving, overtime, and double time. Because Plaintiff was not
4
paid any wages for working unpaid hours, Plaintiff was paid did not cover minimum wages,
5
overtime and double time. Because Plaintiff was instructed to work when he was not driving, off
6 the clock, the money Plaintiff was paid did not cover Plaintiff’s minimum wages, overtime and
7 double time.
8 25. Plaintiff prays for the appropriate wages he was not paid for every hour worked. Plaintiff
9 was not paid for working overtime hours. Plaintiff prays to be compensated for the reasonable
value of his services for the work and labor he performed at the proper overtime and double time
10
rates.
11
12
FOURTH CAUSE OF ACTION
13 CALIFORNIA LABOR CODE §226 PENALTIES
14 (AGAINST DEFENDANT RFT, AND DOE DEFENDANTS)
15
16 26. Plaintiff realleges the information set forth in Paragraphs 1-15 of the general allegations,
Paragraphs 16-19 of the First Cause of Action, Paragraphs 20-22 of the Second Cause of Action,
17
Paragraphs 23-25 of the Third Cause of Action, and incorporates these paragraphs into this
18
cause of action as if they were fully alleged herein.
19
27. Defendant RFT violated California Labor Code § 226.7 because Defendant did not
20 provide Plaintiff any paychecks at all. Accordingly, Sections 226(a)(1) (2) and (5) were violated
21 because no pay stubs were provided to Plaintiff at all throughout his employment. Pay stubs
22 should have showed gross and net wages earned, hours worked, deductions, overtime and
double time hours. Since paystubs were not issued, Defendant failed to account for all hours
23
worked, and overtime hours worked due to off-the-clock overtime and double time work,
24
violating California Labor Code § 226 (a)(2). Pay checks stubs should have been issued to
25
reflect the regular hours and the of overtime hours worked, the rate of pay, and deductions.
26 28. Plaintiff prays for statutory California Labor Code § 226(e) damages of $50.00 for the
27 first violation and $100.00 for each subsequent violation.
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FIRST AMENDED COMPLAINT
1 29. Plaintiff prays for injunctive relief under California Labor Code § 226(h) as well as
2 attorney fees and costs in doing so.
3 30. Plaintiff prays for attorney fees and costs under California Labor Code § 226(e), and (h).
under California Labor Code §218.5 and interest under 218.6.
4
5
FIFTH CAUSE OF ACTION
6
CALIFORNIA LABOR CODE §201 AND 203 PENALTIES
7 (AGAINST DEFENDANT RFT, AND DOE DEFENDANTS)
8
9 31. Plaintiff realleges the information set forth in Paragraphs 1-15 of the general allegations,
Paragraphs 16-19 of the First Cause of Action, Paragraphs 20-22 of the Second Cause of Action,
10
Paragraphs 23-25 of the Third Cause of Action, Paragraphs 26-30 of the Fourth Cause of Action,
11
and incorporates these paragraphs into this cause of action as if they were fully alleged herein.
12
32. Plaintiff, was terminated on or about November 18, 2022. Plaintiff was owed minimum
13 wages, overtime wages, as described in general allegations and Causes of Action One through
14 Four. Plaintiff prays for California Labor Code §203 penalties due to violations of California
15 Labor Code §201 because Plaintiff was not paid for all wages at the time of his termination.
16 33. Plaintiff prays for California Labor Code §203 penalties as well as attorney fees and costs
under California Labor Code §218.5 and interest under California Labor Code §218.6.
17
18
SIXTH CAUSE OF ACTION
19 VIOLATION OF LABOR CODE §558
20 (AGAINST DEFENDANTS RFT, RAUL FERNANDEZ, AND DOE DEFENDANTS)
21
22 34. Plaintiff realleges the information set forth in Paragraphs 1-15 of the general allegations,
Paragraphs 16-19 of the First Cause of Action, Paragraphs 20-22 of the Second Cause of Action,
23
Paragraphs 23-25 of the Third Cause of Action, Paragraphs 26-30 of the Fourth Cause of Action,
24
Paragraphs 31-33 of the Fifth Cause of Action, and incorporates these paragraphs into this cause
25 of action as if they were fully alleged herein.
26 35. This cause of action is against Defendants RFT, and RAUL FERNANDEZ for violating
27 California Labor Code §558(a), which states that any employer or other person acting on behalf
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FIRST AMENDED COMPLAINT
1 of an employer who violates, or causes to be violated, §§510, 512, 516, of the California Labor
2 Code, or any provision regulating hours and days of work in any order of the Industrial Welfare
3 Commission shall be subject to a civil penalty as follows: (1) For any initial violation, fifty
dollars ($50) for each underpaid employee for each pay period for which the employee was
4
underpaid in addition to an amount sufficient to recover underpaid wages. (2) For each
5
subsequent violation, one hundred dollars ($100) for each underpaid employee for each pay
6 period for which the employee was underpaid in addition to an amount sufficient to recover
7 underpaid wages. (3) Wages recovered pursuant to this §shall be paid to the affected employee.
8 36. Plaintiff alleges that Defendants violated and/or caused to be violated, California Labor
9 Code §558(a) because they violated the statutes enumerated in Causes of Action One through
Five by failing to pay Plaintiff wages for off the clock work, along with his overtime wages and
10
all related penalties and interest, Defendants violated §558 under which additional penalties are
11
due. Plaintiff therefore prays for penalties of $50.00 for the first pay period violation and
12 $100.00 for each subsequent violation for each for each pay period thereafter for which Plaintiff
13 was underpaid in addition to an amount sufficient to recover underpaid wages.
14 37. Under this cause of action, Plaintiff prays for all penalties, and pay otherwise due his
15 under the statutes, regulations, and wage orders alleged in this cause of action along with any
allowable interest and penalties, which will equal an amount known to Plaintiff once he has
16
obtained all of his payroll records from Defendants.
17
18
SEVENTH CAUSE OF ACTION
19 CALIFORNIA LABOR CODE SECTION 2802 VIOLATIONS
20 (AGAINST DEFENDANT PREMIER AND ALL DOE DEFENDANTS)
21
38. Plaintiff realleges the information set forth in Paragraphs 1-15 of the general allegations,
22
Paragraphs 16-19 of the First Cause of Action, Paragraphs 20-22 of the Second Cause of Action,
23
Paragraphs 23-25 of the Third Cause of Action, Paragraphs 26-30 of the Fourth Cause of Action,
24
Paragraphs 31-33 of the Fifth Cause of Action, Paragraphs 34-37 of the Sixth Cause of Action
25 and incorporates those paragraphs as though fully stated in this cause of action.
26 39. Defendant violated the California Labor Code Section 2802 which requires an employer
27 to indemnify his employee for all necessary expenditures or losses incurred by the employee in
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FIRST AMENDED COMPLAINT
1 direct consequence of his obedience to the directions of the employer. All awards made by a
2 court or by the Division of Labor Standards Enforcement for reimbursement of necessary
3 expenditures under this section shall carry interest at the same rate as judgments in civil actions.
Interest shall accrue from the date on which the employee incurred the necessary expenditure or
4
loss. For purposes of this section, the term "necessary expenditures or losses" shall include all
5
reasonable costs, including, but not limited to, attorney's fees incurred by the employee enforcing
6 the rights granted by this section.
7 40. As described in Paragraph 12 Defendant instructed Plaintiff to take Defendant’s truck to
8 be serviced and did not reimburse Plaintiff for the Uber fees, he spend to return home. Plaintiff
9 used his cell phone for work and Defendant did not reimburse him for cell phone usage. Plaintiff
had to buy protective gear such as gloves, vest, boots, log books, tools for work for which he was
10
not reimbursed.
11
41. Plaintiff prays for reimbursement for cellular phone bills, and mileage for at least 80-120
12 miles a day at the IRS rate for mileage for the period of time he was employed by Defendant.
13 42. Plaintiff prays for attorney fees and costs under California Labor Code Section 2802c for
14 the purpose of enforcing his rights in this Claim under California Labor Code Section 2802.
15
EIGHTH CAUSE OF ACTION
16
REPORTING TIME PAY VIOLATIONS
17
(AGAINST DEFENDANT RFT, AND DOE DEFENDANTS)
18
19 43. Plaintiff realleges the information set forth in Paragraphs 1-15 of the general allegations,
20 Paragraphs 16-19 of the First Cause of Action, Paragraphs 20-22 of the Second Cause of Action,
21 Paragraphs 23-25 of the Third Cause of Action, Paragraphs 26-30 of the Fourth Cause of Action,
22 Paragraphs 31-33 of the Fifth Cause of Action, Paragraphs 34-37 of the Sixth Cause of Action,
Paragraphs 38-42 of the Seventh Cause of Action and incorporates those paragraphs as though
23
fully stated in this cause of action.
24
44. According to the Industrial Welfare Commission Order No. 9-2001, each workday an
25 employee is required to report for work and does report, but is not put to work or is furnished
26 less than half said employee’s usual or scheduled day’s work, the employee shall be paid for half
27 the usual or scheduled day’s work, but in no event for less than two (2) hours nor more than four
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FIRST AMENDED COMPLAINT
1 (4) hours, at the employee’s regular rate of pay, which shall not be less than the minimum wage.
2 If an employee is required to report for work a second time in any one workday and is furnished
3 less than two (2) hours of work on the second reporting, said employee shall be paid for two (2)
hours at the employee’s regular rate of pay, which shall not be less than the minimum wage.
4
45. Plaintiff pleads for the reporting time pay for each time he was called to work but worked
5
less than half the usual scheduled day’s work.
6 46. Plaintiff pleads for attorney fees and costs under California Labor Code §218.5 and
7 interest under California Labor Code §218.6.
8
9 NINTH CAUSE OF ACTION
VIOLATION OF LABOR CODE §1102.5(b) AND (c)
10
(AGAINST DEFENDANT RFT, AND DOE DEFENDANTS)
11
12
47. Plaintiff realleges the information set forth in Paragraphs 1-15 of the general allegations,
13 Paragraphs 16-19 of the First Cause of Action, Paragraphs 20-22 of the Second Cause of Action,
14 Paragraphs 23-25 of the Third Cause of Action, Paragraphs 26-30 of the Fourth Cause of Action,
15 Paragraphs 31-33 of the Fifth Cause of Action, Paragraphs 34-37 of the Sixth Cause of Action,
16 Paragraphs 38-42 of the Seventh Cause of Action, Paragraphs 43-46 of the Eighth Cause of
Action, and incorporates these paragraphs into this cause of action as if they were fully alleged
17
herein.
18
48. This cause of action is under the Labor Code §1102.5(b) which states that an employer,
19 or any person acting on behalf of the employer, shall not retaliate against an employee for
20 disclosing information of a violation of law to a person with authority over the employee or
21 another employee who has the authority to investigate, discover, or correct the violation or
22 noncompliance, or if the employee has reasonable cause to believe that the information discloses
a violation of state or federal statute, or a violation of or noncompliance with a local, state, or
23
federal rule or regulation, regardless of whether disclosing the information is part of the
24
employee's job duties. Defendant retaliated against Plaintiff by wrongfully terminating Plaintiff
25 for complaining that he was being forced to drive in unsafe and unhealthy work conditions by
26 not having legally allotted rest time between 11-14 hour driving shifts, and by having to work
27 off the clock without pay.
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FIRST AMENDED COMPLAINT
1 49. This cause of action is under the Labor Code §1102.5(c) which states that an employer,
2 or any person acting on behalf of the employer, shall not retaliate against an employee for
3 refusing to participate in an activity that would result in a violation of state or federal statute, or
a violation of or noncompliance with a local, state, or federal rule or regulation. This statute was
4
violated when Plaintiff was retaliated against. Defendant retaliated against Plaintiff by
5
wrongfully terminating Plaintiff for complaining that he was being forced to drive in unsafe and
6 unhealthy work conditions by not having legally allotted rest time between 11-14 hour driving
7 shifts, and by having to work off the clock without pay.
8 50. Plaintiff alleges that Defendant RFT’s actions set forth in this cause of action, Paragraphs
9 5-14, and Causes of Action 1-8, violate the following statutes:
a. 49 CFR 395.3(a)(1) which states a driver may not start a driving shift without
10
first taking 10 consecutive hours off duty;
11
b. 49 CFR 395.3(a)(2) which states a driver may not drive after a period of 14
12 consecutive hours after coming on-duty following 10 consecutive hours off-
13 duty;
14 c. 49 CFR 395.1(g)(1)(iii)(B) which states the 14-hour driving window for
15 purposes of § 395.3(a)(2) does not include qualifying rest periods under
paragraph (g)(1)(ii) of this section;
16
d. 49 CFR 395.3(a)(3)(i) which states a driver may drive a total of 11 hours
17
during the period specified in paragraph (a)(2) of this section;
18
e. 49 CFR 395.3(a)(3)(ii) which states drivers must take a 30-minute break when
19 they have driven for a period of 8 cumulative hours without at least a 30-
20 minute interruption;
21 f. 49 CFR 395.3(a)(3)(ii) which states driving is not permitted if more than 8
hours of driving time have passed without at least a consecutive 30-minute
22
interruption in driving status. A consecutive 30-minute interruption of driving
23
status may be satisfied either by off-duty, sleeper berth or on-duty not driving
24
time or by a combination of off-duty, sleeper berth and on-duty not driving
25 time;
26 g. 49 CFR 395.1(e)(2)(iv) which states a truck driver does not drive: (A) After
27 the 14th hour after coming on duty on 5 days of any period of 7 consecutive
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FIRST AMENDED COMPLAINT
1 days; and (B) After the 16th hour after coming on duty on 2 days of any
2 period of 7 consecutive days;
3 h. California Labor Code § 226.8 LC prohibits employers from knowingly and
voluntarily misclassifying employees as independent contractors. Each
4
violation carries a civil penalty of $5,000 to $25,000 depending on the case;
5
i. California Labor Code § 2810.5 which states at the time of hiring, an
6 employer shall provide to each employee a written notice, containing the rate
7 of pay including any rates for overtime, as applicable, allowances, if any, the
8 regular payday designated by the employer the name of the employer, the
9 physical address of the employer’s main office, the telephone number of the
employer, the name, address, and telephone number of the employer’s
10
workers’ compensation insurance carrier, that the employee may accrue and
11
use sick leave, has a right to request and use accrued paid sick leave, may not
12 be terminated or retaliated against for using or requesting the use of accrued
13 paid sick leave, and has the right to file a complaint against an employer who
14 retaliates;
15 j. California Labor Code § 2775 which prohibits misclassification of employees
as independent contractors when they were not free from the control and
16
direction of the employer in connection with the performance of the work,
17
performed work within the usual course of the employer’s business, and the
18
employee was not engaged in an independently established trade, occupation,
19 or business of the same nature as that involved in the work performed;
20 k. California Labor Code §226 thereby creating California Labor Code §226.3,
21 226.4, and 226.6 violations;
l. Plaintiff’s complaints, and the issues he raised, were complaints about
22
violations of public policies relating to the prompt payment of wages
23
including California Labor Code §§222-224 and California Code of Civil
24
Procedure §487.020 as Phillips v. Gemini Moving Specialists, 63 Cal.App.4th
25 563, 570, 74 Cal.Rptr.2d 29, 33 (2nd App. Dist. 1998) held, and which Gould
26 v. Maryland Sound Industries, 31 Cal.App.4th 1147, 37 Cal.Rptr.2d 718 and
27 Gantt v. Sentry Ins., 1 Cal.App.4th 1083, 1095, 4 Cal.Rptr.2d 874 (1992) held
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FIRST AMENDED COMPLAINT
1 California courts have long recognized that wage and hour laws concern the
2 health and safety of workers and the general public health and general welfare
3 of society. Also see Smith v. Rae-Venter Law Group, 29 Cal.4th 345, 127
Cal.Rptr.2d 516, 527 (2002) holding the prompt payment of wages due is a
4
fundamental public policy of the state of California while citing to Gould and
5
Pressler v. Donald L. Bren Co., 32 Cal.3d 831, 837, 187 Cal.Rptr. 449 (1982);
6 m. California Labor Code § 1194 and California Labor Code §510 which requires
7 the Plaintiff to receive overtime and double time wages;
8 n. California Labor Code §510 which states eight hours of labor constitutes a
9 day’s work. Any work in excess of eight hours in one workday and any work
in excess of 40 hours in any one workweek and the first eight hours worked
10
on the seventh day of work in any one workweek shall be compensated at the
11
rate of no less than one and one-half times the regular rate of pay for an
12 employee. Any work in excess of 12 hours in one day shall be compensated at
13 the rate of no less than twice the regular rate of pay for an employee.
14 o. California Labor Code §204 which states all wages earned by any person in
15 any employment are due and payable twice during each calendar month, on
days designated in advance by the employer as the regular paydays.
16
p. California Labor Code §210 which states every person who fails to pay the
17
wages of each employee shall be subject to a penalty as follows: (1) For any
18
initial violation, one hundred dollars ($100) for each failure to pay each
19 employee. (2) For each subsequent violation, or any willful or intentional
20 violation, two hundred dollars ($200) for each failure to pay each employee,
21 plus 25 percent of the amount unlawfully withheld.
q. California Labor Code §215 which states any person, or the agent, manager,
22
superintendent or officer thereof, who violates any provision of §204, 205, 207,
23
208 is guilty of a misdemeanor. Any failure to keep posted any notice required
24
by §207 is prima facie evidence of a violation of these sections.
25 r. California Labor Code §216 which states in addition to any other penalty
26 imposed by this article, any person, or an agent, manager, superintendent, or
27 officer thereof is guilty of a misdemeanor, who: (a) Having the ability to pay,
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FIRST AMENDED COMPLAINT
1 willfully refuses to pay wages due and payable after demand has been made.
2 (b) Falsely denies the amount or validity thereof, or that the same is due, with
3 intent to secure for himself, his employer or other person, any discount upon
such indebtedness, or with intent to annoy, harass, oppress, hinder, delay, or
4
defraud, the person to whom such indebtedness is due.
5
s. California Labor Code §1197.1 which states any employer or other person
6 acting either individually or as an officer, agent, or employee of another
7 person, who pays or causes to be paid to any employee a wage less than the
8 minimum fixed by an applicable state or local law, or by an order of the
9 commission, shall be subject to a civil penalty, restitution of wages, liquidated
damages payable to the employee, and any applicable penalties imposed
10
pursuant to §203 as follows: (1) For any initial violation that is intentionally
11
committed, one hundred dollars ($100) for each underpaid employee for each
12 pay period for which the employee is underpaid. This amount shall be in
13 addition to an amount sufficient to recover underpaid wages, liquidated
14 damages pursuant to §1194.2, and any applicable penalties imposed pursuant
15 to §203. (2) For each subsequent violation for the same specific offense, two
hundred fifty dollars ($250) for each underpaid employee for each pay period
16
for which the employee is underpaid regardless of whether the initial violation
17
is intentionally committed. This amount shall be in addition to an amount
18
sufficient to recover underpaid wages, liquidated damages pursuant to
19 §1194.2, and any applicable penalties imposed pursuant to §203. (3) Wages,
20 liquidated damages, and any applicable penalties imposed pursuant to §203,
21 recovered pursuant to this §shall be paid to the affected employee.
t. California Labor Code §226 which states an employer, semimonthly or at the
22
time of each payment of wages, shall furnish to his or his employee, either as
23
a detachable part of the check, draft, or voucher paying the employee’s wages,
24
or separately if wages are paid by personal check or cash, an accurate itemized
25 statement in writing showing (1) gross wages earned, (2) total hours worked
26 by the employee, except as provided in subdivision (j), (3) the number of
27 piece-rate units earned and any applicable piece rate if the employee is paid
28
14
____________________________________________________________________________
FIRST AMENDED COMPLAINT
1 on a piece-rate basis, (4) all deductions, provided that all deductions made on
2 written orders of the employee may be aggregated and shown as one item, (5)
3 net wages earned, (6) the inclusive dates of the period for which the employee
is paid, (7) the name of the employee and only the last four digits of his or his
4
social security number or an employee identification number other than a
5
social security number, (8) the name and address of the legal entity that is the
6 employer and, (9) all applicable hourly rates in effect during the pay period
7 and the corresponding number of hours worked at each hourly rate by the
8 employee;
9 u. Labor Code §1102.5(b) which prohibits an employer, or any person acting on
behalf of the employer, from retaliating against an employee for disclosing
10
information, or because the employer believes that the employee disclosed or
11
may disclose information, to a person with authority over the employee or
12 another employee who has the authority to investigate, discover, or correct the
13 violation or noncompliance, or if the employee has reasonable cause to believe
14 that the information discloses a violation of state or federal statute, or a
15 violation of or noncompliance with a local, state, or federal rule or regulation,
regardless of whether disclosing the information is part of the employee's job
16
duties;
17
v. Labor Code §1102.5(c) which prohibits an employer, or any person acting on
18
behalf of the employer from retaliating against an employee for refusing to
19 participate in an activity that would result in a violation of state or federal
20 statute, or a violation of or noncompliance with a local, state, or federal rule or
21 regulation;
w. Labor Code § 1103, which makes it a misdemeanor if an employer violates this
22
chapter of the Labor Code;
23
x. California Business and Professions Code §17200 as well as the other
24
provisions in that related section by engaging in unlawful, unfair or fraudulent
25 business act or practice in Paragraphs 5-11, 14 and the Causes of Action 1-6, 8;
26 y. All other state and federal statutes, regulations, administrative orders, and
27 ordinances which effect society at large, and which discovery will reveal were
28
15
____________________________________________________________________________
FIRST AMENDED COMPLAINT
1 violated by all named and DOE Defendants by retaliating against and
2 terminating Plaintiff.
3 51. As a direct, foreseeable, and proximate result of the conduct complained of in this cause
of action, Plaintiff has suffered, and continue to suffer emotional distress, substantial losses in
4
salary, bonuses, job benefits, and other employment benefits Plaintiffs would have received
5
from the named Defendant, all to Plaintiff’s damage in a sum within the jurisdiction of this
6 Court, to be ascertained according to proof.
7 52. As a further direct and proximate result of the named corporate Defendant’s unlawful
8 discrimination, Plaintiff has suffered, and continue to suffer, emotional distress and severe
9 mental anguish, humiliation, nervousness, tension, anxiety, and depression, in a sum within the
jurisdiction of this Court, to be ascertained according to proof.
10
53. As a direct, foreseeable, and proximate result of said Defendant’s actions, and each of its
11
actions as alleged in this cause of action, which were intentional, malicious, oppressive, and
12 made in a bad faith manner in an attempt to vex, injure, annoy, and/or willfully and consciously
13 disregard Plaintiff’s rights by taking the actions alleged in this cause of action, Plaintiff prays for
14 punitive damages against said Defendant in a sum within the jurisdiction of this court, to be
15 ascertained, according to proof, in a sufficiently large amount to punish said Defendant, deter
future conduct by said Defendant and others behaving like it, and to make an example of said
16
Defendant.
17
54. Plaintiff prays for all recoverable penalties, including the up to $10,000 penalty allowed
18
under Labor Code § 1102.5(f) and its enhanced burden of proof.
19 55. Plaintiff prays for attorney fees for pursuing this cause of action per Labor Code
20 §1102.5(j).
21
22 TENTH CAUSE OF ACTION
WRONGFUL TERMINATION IN VIOLATION OF PUBLIC POLICY
23
(AGAINST DEFENDANT RFT, AND DOE DEFENDANTS)
24
25
56. Plaintiff realleges the information set forth in Paragraphs 1-15 of the general allegations,
26
Paragraphs 16-19 of the First Cause of Action, Paragraphs 20-22 of the Second Cause of Action,
27 Paragraphs 23-25 of the Third Cause of Action, Paragraphs 26-30 of the Fourth Cause of Action,
28
16
____________________________________________________________________________
FIRST AMENDED COMPLAINT
1 Paragraphs 31-33 of the Fifth Cause of Action, Paragraphs 34-37 of the Sixth Cause of Action,
2 Paragraphs 38-42 of the Seventh Cause of Action, Paragraphs 43-46 of the Eighth Cause of
3 Action, Paragraphs 47-55 of the Ninth Cause of Action, and incorporates these paragraphs into
this cause of action as if they were fully alleged herein.
4
57. Under California law, no employee, whether they are an at-will employee, or an
5
employee under a written or other employment contract, can be terminated for a reason that is in
6 violation of a fundamental public policy. In recent years, the California court has interpreted a
7 fundamental public policy to be any articulable constitutional, statutory, or regulatory provision
8 that is concerned with a matter effecting society at large rather than a purely personal or
9 proprietary interest of the employee or the employer. Moreover, the public policy must be
fundamental, substantial, and well established at the time of discharge.
10
58. Plaintiff alleges that Defendant wrongfully terminated Plaintiff by retaliating against him
11
for complaining that he was being forced to drive in unsafe and unhealthy work conditions by
12 not having legally allotted rest time between 11-14 hour driving shifts, and by having to work
13 off the clock without pay.
14 59. Plaintiff alleges that Defendant RFT’s actions set forth in this cause of action, Paragraphs
15 5-14, and Causes of Action 1-9, violate the following statutes:
a. 49 CFR 395.3(a)(1) which states a driver may not start a driving shift without
16
first taking 10 consecutive hours off duty;
17
b. 49 CFR 395.3(a)(2) which states a driver may not drive after a period of 14
18
consecutive hours after coming on-duty following 10 consecutive hours off-
19 duty;
20 c. 49 CFR 395.1(g)(1)(iii)(B) which states the 14-hour driving window for
21 purposes of § 395.3(a)(2) does not include qualifying rest periods under
paragraph (g)(1)(ii) of this section;
22
d. 49 CFR 395.3(a)(3)(i) which states a driver may drive a total of 11 hours
23
during the period specified in paragraph (a)(2) of this section;
24
e. 49 CFR 395.3(a)(3)(ii) which states drivers must take a 30-minute break when
25 they have driven for a period of 8 cumulative hours without at least a 30-
26 minute interruption;
27 f. 49 CFR 395.3(a)(3)(ii) which states driving is not permitted if more than 8
28
17
____________________________________________________________________________
FIRST AMENDED COMPLAINT
1 hours of driving time have passed without at least a consecutive 30-minute
2 interruption in driving status. A consecutive 30-minute interruption of driving
3 status may be satisfied either by off-duty, sleeper berth or on-duty not driving
time or by a combination of off-duty, sleeper berth and on-duty not driving
4
time;
5
g. 49 CFR 395.1(e)(2)(iv) which states a truck driver does not drive: (A) After
6 the 14th hour after coming on duty on 5 days of any period of 7 consecutive
7 days; and (B) After the 16th hour after coming on duty on 2 days of any
8 period of 7 consecutive days;
9 h. 49 CFR 395.8(a)(1) which states a motor carrier subject to the requirements of
this part must require each driver used by the motor carrier to record the
10
driver's duty status for each 24-hour period using the method prescribed in
11
paragraphs (a)(1)(i) through (iv) of this section, as applicable.
12 i. California Labor Code § 226.8 LC prohibits employers from knowingly and
13 voluntarily misclassifying employees as independent contractors. Each
14 violation carries a civil penalty of $5,000 to $25,000 depending on the case;
15 j. California Labor Code § 2810.5 which states at the time of hiring, an
employer shall provide to each employee a written notice, containing the rate
16
of pay including any rates for overtime, as applicable, allowances, if any, the
17
regular payday designated by the employer the name of the employer, the
18
physical address of the employer’s main office, the telephone number of the
19 employer, the name, address, and telephone number of the employer’s
20 workers’ compensation insurance carrier, that the employee may accrue and
21 use sick leave, has a right to request and use accrued paid sick leave, may not
be terminated or retaliated against for using or requesting the use of accrued
22
paid sick leave, and has the right to file a complaint against an employer who
23
retaliates;
24
k. California Labor Code § 2775 which prohibits misclassification of employees
25 as independent contractors when they were not free from th
Preview
1 EMPLOYMENT LAWYERS GROUP KARL GERBER, SBN: 166003 2 ANN GULESER, SBN: 210790 3 13418 Ventura Boulevard, Sherman Oaks, California 91423 4 Telephone: 818 783 7300 Facsimile: 818 995 7159 5 Attorneys for Plaintiff 6 PASCUAL GONZALEZ 7 8 SUPERIOR COURT FOR THE STATE OF CALIFORNIA 9 COUNTY OF KERN 10 PASCUAL GONZALEZ, an individual, ) CASE NO.: BCV23101062 11 ) ) FIRST AMENDED COMPLAINT FOR 12 Plaintiff, ) DAMAGES AND DEMAND FOR JURY ) TRIAL EXCEPT FOR THE TWELFTH 13 vs. ) AND THE THIRTEENTH CAUSES OF ) ACTION BASED UPON: 14 ) 15 RIDE FREIGHT TRANSPORT; RAUL ) 1. MINIMUM WAGE VIOLATIONS; FERNANDEZ, an individual; and DOES 1 ) 2. OVERTIME AND DOUBLE TIME 16 through 100 inclusive, ) VIOLATIONS; ) 3. COMMON COUNT FOR WORK 17 ) AND LABOR PERFORMED Defendants. ) (QUANTUM MERIUT); 18 ) 4. CALIFORNIA LABOR CODE § 19 ) 226 PENALTIES; ) 5. CALIFORNIA LABOR CODE 20 ) §201 & 203 PENALTIES; ) 6. VIOLATION OF LABOR CODE § 21 ) 558; ) 7. CALIFORNIA LABOR CODE 22 ) SECTION 2802 VIOLATIONS; 23 ) 8. REPORTING TIME PAY ) VIOLATIONS; 24 ) 9. VIOLATION OF LABOR CODE § ) 1102.5(b) AND (c); 25 ) 10. WRONGFUL TERMINATION IN 26 ) VIOLATION OF PUBLIC ) POLICY; 27 ) 11. INTENTIONAL INFLICTION OF ) EMOTIONAL DISTRESS; 28 1 ____________________________________________________________________________ FIRST AMENDED COMPLAINT 1 ) 12. BUSINESS & PROFESSIONS ) CODE § 17200 VIOLATIONS; 2 ) 13. CALIFORNIA LABOR CODE 3 ) SECTION 2699, 2699.3 PAGA _____________________________________ ) PENALTIES 4 5 Plaintiff, PASCUAL GONZALEZ, complains as follows: 6 GENERAL ALLEGATIONS 7 (AGAINST ALL NAMED DEFENDANTS) 8 9 1. Plaintiff, PASCUAL GONZALEZ (“Plaintiff”), is and was at all relevant times a resident 10 of the County of Kern, State of California, over the age of 18. 11 2. Plaintiff is informed and believes that at all times herein mentioned, Defendant, RIDE FREIGHT TRANSPORT (“RFT”) is and was a California corporation employing Plaintiff 12 remotely at his residence at 2706 Anza Street, Bakersfield, CA 93305. 13 3. At all times herein mentioned, Plaintiff is informed and believes that Defendant, RAUL 14 FERNANDEZ, is and was an individual residing in the County of Fresno, State of California, 15 and was the manager, dispatcher of Plaintiff and the owner and the chief executive officer of 16 RTF. 17 4. Plaintiff is ignorant of the true names and capacities, whether individual, corporate, or associate, of those defendants fictitiously sued as DOES 1 through 100 inclusive and so Plaintiff 18 sues them by these fictitious names. Plaintiff is informed and believes that each of the DOE 19 defendants, numbers 1 through 100, reside in the State of California and are in some manner 20 responsible for the conduct alleged herein. Upon discovering the true names and capacities of 21 these fictitiously named Defendants, Plaintiff will amend this complaint to show the true names 22 and capacities of these fictitiously named defendants. 23 5. From about March 2020 Plaintiff started to work at RFT as a truck driver until his termination on or about November 18, 2022. 24 6. Throughout his employment, Defendant did not give Plaintiff any wage statements, 25 paystubs, 1099, or a W2. Defendant did not provide Plaintiff with any pay check stubs showing 26 his pay rate, overtime, deductions, or hours worked. Defendant did not deduct taxes from 27 28 2 ____________________________________________________________________________ FIRST AMENDED COMPLAINT 1 Plaintiff’s pay. Plaintiff was paid weekly, based on a daily pay which came approximately to 2 $43.75 per hour. 3 7. Throughout his employment, Defendant paid Plaintiff his pay late. 8. Throughout his employment, Plaintiff was subject to the on-call policies of Defendant 4 wherein Plaintiff had to answer the phone when called by Defendant and drive to the warehouse 5 to obtain empty containers in order to make deliveries. Defendant did not pay Plaintiff for the 6 time he had to wait to be called into work. 7 9. Throughout his employment, Defendant did not pay Plaintiff for the time he drove to the 8 warehouse to wait for an empty container, pick it up and return it to Bakersfield which would 9 take between 2-5 hours. Defendant failed to pay Plaintiff reporting time pay. 10. Throughout his employment, Defendant forced Plaintiff to work with less than 10 hours 10 of rest time between 11-14 hour driving shifts which is illegal. Plaintiff worked 12-16 hours a 11 day, 7 days a week, which did not permit for 10 hours of rest after 11-14 hours of driving. 12 11. Throughout his employment, Defendant did not pay Plaintiff for the non-driving work he 13 performed for Defendant. Defendant paid Plaintiff by the load for driving time only. With 14 respect to time Plaintiff worked waiting for loads at ports, Defendant’s manager/dispatcher and 15 owner Raul Fernandez promised he would only pay Plaintiff $25/hour after the second hour. The first two hours would be free work. Plaintiff worked more than 3 hours at ports waiting for his 16 loads. Defendant paid Plaintiff nothing for this work. 17 12. Starting in September 2020, Plaintiff complained to his manager/dispatcher and the 18 owner of the company Raul Fernandez at least once a month that the conditions at work were 19 unsafe because Raul Fernandez was forcing Plaintiff to drive without adequate sleep time and 20 not paying him for work performed waiting for loads at the ports. 21 13. On or about November 11, 2022, Plaintiff complained to his manager Raul Fernandez that he no longer wanted to work without adequate rest and was physically unable to pick up a 22 double shift that Fernandez asked him to pick up without adequate rest. Plaintiff said someone 23 could get hurt if he had an accident because of fatigue. On or about November 14, 2022, Raul 24 Fernandez told Plaintiff he should be patient and that he would better orchestrate his schedule, 25 and loads. On or about November 18, 2022, Defendant fired Plaintiff. Plaintiff refused to drive 26 in unsafe and illegal conditions and refused to work for free. Defendant fired Plaintiff in 27 retaliation for complaining. 28 3 ____________________________________________________________________________ FIRST AMENDED COMPLAINT 1 14. Defendant instructed Plaintiff to take Defendant’s truck to be serviced and did not 2 reimburse Plaintiff for the Uber fees he spent to return home. Plaintiff used his cell phone for 3 work and Defendant did not reimburse him for cell phone usage. Plaintiff had to buy protective gear such as gloves, vest, boots, log books, tools for work for which he was not reimbursed. 4 15. All of the foregoing and following actions taken toward Plaintiff that are alleged in this 5 complaint were carried out in the course and scope of employment by managerial employees and 6 agents of each other acting in a deliberate, cold, callous, malicious, oppressive, and intentional 7 manner in order to injure and damage Plaintiff, and those acts that were carried out by non- 8 managerial agents were ratified by managerial agents by the managerial agents’ knowledge and 9 approval. 10 FIRST CAUSE OF ACTION 11 MINIMUM WAGE VIOLATIONS 12 (AGAINST DEFENDANT RFT, AND DOE DEFENDANTS) 13 14 16. Plaintiff realleges the information set forth in Paragraphs 1-15 of the general allegations, 15 and incorporates these paragraphs into this cause of action as if they were fully alleged herein. 17. Plaintiff was not paid minimum wages because he was not paid for working off the clock 16 in ports waiting for loads, driving to the warehouse to pick up empty containers, doing 17 inspections of his vehicle before starting to drive, and working on call off the clock waiting to be 18 called into work. California Labor Code §1194 was violated by not paying Plaintiff minimum 19 wage to perform off the clock work. 20 18. Plaintiff prays for relief under California Labor Code §§1194 and 1194.2 including 21 liquidated damages to pay Plaintiff minimum wage for all hours on call and worked, attorney fees, and costs. Plaintiffs also pray for California Labor Code §1197.1 civil penalties of $250.00 22 per pay period when was not paid minimum wage for each hour worked. 23 \\ 24 \\ 25 \\ 26 \\ 27 \\\ 28 4 ____________________________________________________________________________ FIRST AMENDED COMPLAINT 1 SECOND CAUSE OF ACTION 2 OVERTIME AND DOUBLE TIME VIOLATIONS 3 (AGAINST DEFENDANT RFT, AND DOE DEFENDANTS) 4 19. Plaintiff realleges the information set forth in Paragraphs 1-15 of the general allegations, 5 Paragraphs 16-19 of the First Cause of Action, and incorporates these paragraphs into this cause 6 of action as if they were fully alleged herein. 7 20. Plaintiff worked more hours off the clock after and before his drive time and worked 8 through his meal breaks for which he was paid nothing. Plaintiff was not paid minimum wages 9 because he was not paid for driving to the warehouse to pick up empty containers, doing inspections of his vehicle before starting to drive, taking the truck to be serviced, and working 10 on call off the clock. Because those hours were not accounted for in Plaintiff’s pay, Plaintiff was 11 not paid for overtime hours he worked. The money Plaintiff was paid per day simply did not 12 account for overtime and double time based upon Plaintiff’s regular hourly rate. Based upon 13 what he was paid Plaintiff was not paid overtime and/or double time wages at the proper rate. 14 Accordingly, California Labor Code §§510 and 1194 require Plaintiff to receive overtime and 15 double time pay for the overtime and double time hours worked. 16 21. Plaintiff’s daily totals for hours worked would have to increase to include unpaid overtime and/or double for work off the clock. Accordingly, California Labor Code §§510 and 17 1194 require Plaintiff to receive overtime and double time for hours worked past hours of 18 driving. 19 22. Plaintiff prays for relief under California Labor Code §1194 including unpaid overtime, 20 double time, attorney fees, and costs. 21 22 THIRD CAUSE OF ACTION COMMON COUNT FOR WORK AND LABOR PERFORMED (QUANTUM MERIUT) 23 (AGAINST DEFENDANT RFT AND ALL DOE DEFENDANTS) 24 25 23. Plaintiff realleges the information set forth in Paragraphs 1-15 of the general allegations, 26 Paragraphs 16-19 of the First Cause of Action, Paragraphs 20-22 of the Second Cause of Action, 27 and incorporates those paragraphs as though fully stated in this cause of action. 28 5 ____________________________________________________________________________ FIRST AMENDED COMPLAINT 1 24. Plaintiff was not fully paid for all of Plaintiff’s efforts at Defendant. These efforts include 2 having to work off the clock, working regular time, overtime and double time without pay. 3 Defendant did not pay Plaintiff wages for each hour he worked. The wages Plaintiff was paid did not pay for work off the clock not driving, overtime, and double time. Because Plaintiff was not 4 paid any wages for working unpaid hours, Plaintiff was paid did not cover minimum wages, 5 overtime and double time. Because Plaintiff was instructed to work when he was not driving, off 6 the clock, the money Plaintiff was paid did not cover Plaintiff’s minimum wages, overtime and 7 double time. 8 25. Plaintiff prays for the appropriate wages he was not paid for every hour worked. Plaintiff 9 was not paid for working overtime hours. Plaintiff prays to be compensated for the reasonable value of his services for the work and labor he performed at the proper overtime and double time 10 rates. 11 12 FOURTH CAUSE OF ACTION 13 CALIFORNIA LABOR CODE §226 PENALTIES 14 (AGAINST DEFENDANT RFT, AND DOE DEFENDANTS) 15 16 26. Plaintiff realleges the information set forth in Paragraphs 1-15 of the general allegations, Paragraphs 16-19 of the First Cause of Action, Paragraphs 20-22 of the Second Cause of Action, 17 Paragraphs 23-25 of the Third Cause of Action, and incorporates these paragraphs into this 18 cause of action as if they were fully alleged herein. 19 27. Defendant RFT violated California Labor Code § 226.7 because Defendant did not 20 provide Plaintiff any paychecks at all. Accordingly, Sections 226(a)(1) (2) and (5) were violated 21 because no pay stubs were provided to Plaintiff at all throughout his employment. Pay stubs 22 should have showed gross and net wages earned, hours worked, deductions, overtime and double time hours. Since paystubs were not issued, Defendant failed to account for all hours 23 worked, and overtime hours worked due to off-the-clock overtime and double time work, 24 violating California Labor Code § 226 (a)(2). Pay checks stubs should have been issued to 25 reflect the regular hours and the of overtime hours worked, the rate of pay, and deductions. 26 28. Plaintiff prays for statutory California Labor Code § 226(e) damages of $50.00 for the 27 first violation and $100.00 for each subsequent violation. 28 6 ____________________________________________________________________________ FIRST AMENDED COMPLAINT 1 29. Plaintiff prays for injunctive relief under California Labor Code § 226(h) as well as 2 attorney fees and costs in doing so. 3 30. Plaintiff prays for attorney fees and costs under California Labor Code § 226(e), and (h). under California Labor Code §218.5 and interest under 218.6. 4 5 FIFTH CAUSE OF ACTION 6 CALIFORNIA LABOR CODE §201 AND 203 PENALTIES 7 (AGAINST DEFENDANT RFT, AND DOE DEFENDANTS) 8 9 31. Plaintiff realleges the information set forth in Paragraphs 1-15 of the general allegations, Paragraphs 16-19 of the First Cause of Action, Paragraphs 20-22 of the Second Cause of Action, 10 Paragraphs 23-25 of the Third Cause of Action, Paragraphs 26-30 of the Fourth Cause of Action, 11 and incorporates these paragraphs into this cause of action as if they were fully alleged herein. 12 32. Plaintiff, was terminated on or about November 18, 2022. Plaintiff was owed minimum 13 wages, overtime wages, as described in general allegations and Causes of Action One through 14 Four. Plaintiff prays for California Labor Code §203 penalties due to violations of California 15 Labor Code §201 because Plaintiff was not paid for all wages at the time of his termination. 16 33. Plaintiff prays for California Labor Code §203 penalties as well as attorney fees and costs under California Labor Code §218.5 and interest under California Labor Code §218.6. 17 18 SIXTH CAUSE OF ACTION 19 VIOLATION OF LABOR CODE §558 20 (AGAINST DEFENDANTS RFT, RAUL FERNANDEZ, AND DOE DEFENDANTS) 21 22 34. Plaintiff realleges the information set forth in Paragraphs 1-15 of the general allegations, Paragraphs 16-19 of the First Cause of Action, Paragraphs 20-22 of the Second Cause of Action, 23 Paragraphs 23-25 of the Third Cause of Action, Paragraphs 26-30 of the Fourth Cause of Action, 24 Paragraphs 31-33 of the Fifth Cause of Action, and incorporates these paragraphs into this cause 25 of action as if they were fully alleged herein. 26 35. This cause of action is against Defendants RFT, and RAUL FERNANDEZ for violating 27 California Labor Code §558(a), which states that any employer or other person acting on behalf 28 7 ____________________________________________________________________________ FIRST AMENDED COMPLAINT 1 of an employer who violates, or causes to be violated, §§510, 512, 516, of the California Labor 2 Code, or any provision regulating hours and days of work in any order of the Industrial Welfare 3 Commission shall be subject to a civil penalty as follows: (1) For any initial violation, fifty dollars ($50) for each underpaid employee for each pay period for which the employee was 4 underpaid in addition to an amount sufficient to recover underpaid wages. (2) For each 5 subsequent violation, one hundred dollars ($100) for each underpaid employee for each pay 6 period for which the employee was underpaid in addition to an amount sufficient to recover 7 underpaid wages. (3) Wages recovered pursuant to this §shall be paid to the affected employee. 8 36. Plaintiff alleges that Defendants violated and/or caused to be violated, California Labor 9 Code §558(a) because they violated the statutes enumerated in Causes of Action One through Five by failing to pay Plaintiff wages for off the clock work, along with his overtime wages and 10 all related penalties and interest, Defendants violated §558 under which additional penalties are 11 due. Plaintiff therefore prays for penalties of $50.00 for the first pay period violation and 12 $100.00 for each subsequent violation for each for each pay period thereafter for which Plaintiff 13 was underpaid in addition to an amount sufficient to recover underpaid wages. 14 37. Under this cause of action, Plaintiff prays for all penalties, and pay otherwise due his 15 under the statutes, regulations, and wage orders alleged in this cause of action along with any allowable interest and penalties, which will equal an amount known to Plaintiff once he has 16 obtained all of his payroll records from Defendants. 17 18 SEVENTH CAUSE OF ACTION 19 CALIFORNIA LABOR CODE SECTION 2802 VIOLATIONS 20 (AGAINST DEFENDANT PREMIER AND ALL DOE DEFENDANTS) 21 38. Plaintiff realleges the information set forth in Paragraphs 1-15 of the general allegations, 22 Paragraphs 16-19 of the First Cause of Action, Paragraphs 20-22 of the Second Cause of Action, 23 Paragraphs 23-25 of the Third Cause of Action, Paragraphs 26-30 of the Fourth Cause of Action, 24 Paragraphs 31-33 of the Fifth Cause of Action, Paragraphs 34-37 of the Sixth Cause of Action 25 and incorporates those paragraphs as though fully stated in this cause of action. 26 39. Defendant violated the California Labor Code Section 2802 which requires an employer 27 to indemnify his employee for all necessary expenditures or losses incurred by the employee in 28 8 ____________________________________________________________________________ FIRST AMENDED COMPLAINT 1 direct consequence of his obedience to the directions of the employer. All awards made by a 2 court or by the Division of Labor Standards Enforcement for reimbursement of necessary 3 expenditures under this section shall carry interest at the same rate as judgments in civil actions. Interest shall accrue from the date on which the employee incurred the necessary expenditure or 4 loss. For purposes of this section, the term "necessary expenditures or losses" shall include all 5 reasonable costs, including, but not limited to, attorney's fees incurred by the employee enforcing 6 the rights granted by this section. 7 40. As described in Paragraph 12 Defendant instructed Plaintiff to take Defendant’s truck to 8 be serviced and did not reimburse Plaintiff for the Uber fees, he spend to return home. Plaintiff 9 used his cell phone for work and Defendant did not reimburse him for cell phone usage. Plaintiff had to buy protective gear such as gloves, vest, boots, log books, tools for work for which he was 10 not reimbursed. 11 41. Plaintiff prays for reimbursement for cellular phone bills, and mileage for at least 80-120 12 miles a day at the IRS rate for mileage for the period of time he was employed by Defendant. 13 42. Plaintiff prays for attorney fees and costs under California Labor Code Section 2802c for 14 the purpose of enforcing his rights in this Claim under California Labor Code Section 2802. 15 EIGHTH CAUSE OF ACTION 16 REPORTING TIME PAY VIOLATIONS 17 (AGAINST DEFENDANT RFT, AND DOE DEFENDANTS) 18 19 43. Plaintiff realleges the information set forth in Paragraphs 1-15 of the general allegations, 20 Paragraphs 16-19 of the First Cause of Action, Paragraphs 20-22 of the Second Cause of Action, 21 Paragraphs 23-25 of the Third Cause of Action, Paragraphs 26-30 of the Fourth Cause of Action, 22 Paragraphs 31-33 of the Fifth Cause of Action, Paragraphs 34-37 of the Sixth Cause of Action, Paragraphs 38-42 of the Seventh Cause of Action and incorporates those paragraphs as though 23 fully stated in this cause of action. 24 44. According to the Industrial Welfare Commission Order No. 9-2001, each workday an 25 employee is required to report for work and does report, but is not put to work or is furnished 26 less than half said employee’s usual or scheduled day’s work, the employee shall be paid for half 27 the usual or scheduled day’s work, but in no event for less than two (2) hours nor more than four 28 9 ____________________________________________________________________________ FIRST AMENDED COMPLAINT 1 (4) hours, at the employee’s regular rate of pay, which shall not be less than the minimum wage. 2 If an employee is required to report for work a second time in any one workday and is furnished 3 less than two (2) hours of work on the second reporting, said employee shall be paid for two (2) hours at the employee’s regular rate of pay, which shall not be less than the minimum wage. 4 45. Plaintiff pleads for the reporting time pay for each time he was called to work but worked 5 less than half the usual scheduled day’s work. 6 46. Plaintiff pleads for attorney fees and costs under California Labor Code §218.5 and 7 interest under California Labor Code §218.6. 8 9 NINTH CAUSE OF ACTION VIOLATION OF LABOR CODE §1102.5(b) AND (c) 10 (AGAINST DEFENDANT RFT, AND DOE DEFENDANTS) 11 12 47. Plaintiff realleges the information set forth in Paragraphs 1-15 of the general allegations, 13 Paragraphs 16-19 of the First Cause of Action, Paragraphs 20-22 of the Second Cause of Action, 14 Paragraphs 23-25 of the Third Cause of Action, Paragraphs 26-30 of the Fourth Cause of Action, 15 Paragraphs 31-33 of the Fifth Cause of Action, Paragraphs 34-37 of the Sixth Cause of Action, 16 Paragraphs 38-42 of the Seventh Cause of Action, Paragraphs 43-46 of the Eighth Cause of Action, and incorporates these paragraphs into this cause of action as if they were fully alleged 17 herein. 18 48. This cause of action is under the Labor Code §1102.5(b) which states that an employer, 19 or any person acting on behalf of the employer, shall not retaliate against an employee for 20 disclosing information of a violation of law to a person with authority over the employee or 21 another employee who has the authority to investigate, discover, or correct the violation or 22 noncompliance, or if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or 23 federal rule or regulation, regardless of whether disclosing the information is part of the 24 employee's job duties. Defendant retaliated against Plaintiff by wrongfully terminating Plaintiff 25 for complaining that he was being forced to drive in unsafe and unhealthy work conditions by 26 not having legally allotted rest time between 11-14 hour driving shifts, and by having to work 27 off the clock without pay. 28 10 ____________________________________________________________________________ FIRST AMENDED COMPLAINT 1 49. This cause of action is under the Labor Code §1102.5(c) which states that an employer, 2 or any person acting on behalf of the employer, shall not retaliate against an employee for 3 refusing to participate in an activity that would result in a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation. This statute was 4 violated when Plaintiff was retaliated against. Defendant retaliated against Plaintiff by 5 wrongfully terminating Plaintiff for complaining that he was being forced to drive in unsafe and 6 unhealthy work conditions by not having legally allotted rest time between 11-14 hour driving 7 shifts, and by having to work off the clock without pay. 8 50. Plaintiff alleges that Defendant RFT’s actions set forth in this cause of action, Paragraphs 9 5-14, and Causes of Action 1-8, violate the following statutes: a. 49 CFR 395.3(a)(1) which states a driver may not start a driving shift without 10 first taking 10 consecutive hours off duty; 11 b. 49 CFR 395.3(a)(2) which states a driver may not drive after a period of 14 12 consecutive hours after coming on-duty following 10 consecutive hours off- 13 duty; 14 c. 49 CFR 395.1(g)(1)(iii)(B) which states the 14-hour driving window for 15 purposes of § 395.3(a)(2) does not include qualifying rest periods under paragraph (g)(1)(ii) of this section; 16 d. 49 CFR 395.3(a)(3)(i) which states a driver may drive a total of 11 hours 17 during the period specified in paragraph (a)(2) of this section; 18 e. 49 CFR 395.3(a)(3)(ii) which states drivers must take a 30-minute break when 19 they have driven for a period of 8 cumulative hours without at least a 30- 20 minute interruption; 21 f. 49 CFR 395.3(a)(3)(ii) which states driving is not permitted if more than 8 hours of driving time have passed without at least a consecutive 30-minute 22 interruption in driving status. A consecutive 30-minute interruption of driving 23 status may be satisfied either by off-duty, sleeper berth or on-duty not driving 24 time or by a combination of off-duty, sleeper berth and on-duty not driving 25 time; 26 g. 49 CFR 395.1(e)(2)(iv) which states a truck driver does not drive: (A) After 27 the 14th hour after coming on duty on 5 days of any period of 7 consecutive 28 11 ____________________________________________________________________________ FIRST AMENDED COMPLAINT 1 days; and (B) After the 16th hour after coming on duty on 2 days of any 2 period of 7 consecutive days; 3 h. California Labor Code § 226.8 LC prohibits employers from knowingly and voluntarily misclassifying employees as independent contractors. Each 4 violation carries a civil penalty of $5,000 to $25,000 depending on the case; 5 i. California Labor Code § 2810.5 which states at the time of hiring, an 6 employer shall provide to each employee a written notice, containing the rate 7 of pay including any rates for overtime, as applicable, allowances, if any, the 8 regular payday designated by the employer the name of the employer, the 9 physical address of the employer’s main office, the telephone number of the employer, the name, address, and telephone number of the employer’s 10 workers’ compensation insurance carrier, that the employee may accrue and 11 use sick leave, has a right to request and use accrued paid sick leave, may not 12 be terminated or retaliated against for using or requesting the use of accrued 13 paid sick leave, and has the right to file a complaint against an employer who 14 retaliates; 15 j. California Labor Code § 2775 which prohibits misclassification of employees as independent contractors when they were not free from the control and 16 direction of the employer in connection with the performance of the work, 17 performed work within the usual course of the employer’s business, and the 18 employee was not engaged in an independently established trade, occupation, 19 or business of the same nature as that involved in the work performed; 20 k. California Labor Code §226 thereby creating California Labor Code §226.3, 21 226.4, and 226.6 violations; l. Plaintiff’s complaints, and the issues he raised, were complaints about 22 violations of public policies relating to the prompt payment of wages 23 including California Labor Code §§222-224 and California Code of Civil 24 Procedure §487.020 as Phillips v. Gemini Moving Specialists, 63 Cal.App.4th 25 563, 570, 74 Cal.Rptr.2d 29, 33 (2nd App. Dist. 1998) held, and which Gould 26 v. Maryland Sound Industries, 31 Cal.App.4th 1147, 37 Cal.Rptr.2d 718 and 27 Gantt v. Sentry Ins., 1 Cal.App.4th 1083, 1095, 4 Cal.Rptr.2d 874 (1992) held 28 12 ____________________________________________________________________________ FIRST AMENDED COMPLAINT 1 California courts have long recognized that wage and hour laws concern the 2 health and safety of workers and the general public health and general welfare 3 of society. Also see Smith v. Rae-Venter Law Group, 29 Cal.4th 345, 127 Cal.Rptr.2d 516, 527 (2002) holding the prompt payment of wages due is a 4 fundamental public policy of the state of California while citing to Gould and 5 Pressler v. Donald L. Bren Co., 32 Cal.3d 831, 837, 187 Cal.Rptr. 449 (1982); 6 m. California Labor Code § 1194 and California Labor Code §510 which requires 7 the Plaintiff to receive overtime and double time wages; 8 n. California Labor Code §510 which states eight hours of labor constitutes a 9 day’s work. Any work in excess of eight hours in one workday and any work in excess of 40 hours in any one workweek and the first eight hours worked 10 on the seventh day of work in any one workweek shall be compensated at the 11 rate of no less than one and one-half times the regular rate of pay for an 12 employee. Any work in excess of 12 hours in one day shall be compensated at 13 the rate of no less than twice the regular rate of pay for an employee. 14 o. California Labor Code §204 which states all wages earned by any person in 15 any employment are due and payable twice during each calendar month, on days designated in advance by the employer as the regular paydays. 16 p. California Labor Code §210 which states every person who fails to pay the 17 wages of each employee shall be subject to a penalty as follows: (1) For any 18 initial violation, one hundred dollars ($100) for each failure to pay each 19 employee. (2) For each subsequent violation, or any willful or intentional 20 violation, two hundred dollars ($200) for each failure to pay each employee, 21 plus 25 percent of the amount unlawfully withheld. q. California Labor Code §215 which states any person, or the agent, manager, 22 superintendent or officer thereof, who violates any provision of §204, 205, 207, 23 208 is guilty of a misdemeanor. Any failure to keep posted any notice required 24 by §207 is prima facie evidence of a violation of these sections. 25 r. California Labor Code §216 which states in addition to any other penalty 26 imposed by this article, any person, or an agent, manager, superintendent, or 27 officer thereof is guilty of a misdemeanor, who: (a) Having the ability to pay, 28 13 ____________________________________________________________________________ FIRST AMENDED COMPLAINT 1 willfully refuses to pay wages due and payable after demand has been made. 2 (b) Falsely denies the amount or validity thereof, or that the same is due, with 3 intent to secure for himself, his employer or other person, any discount upon such indebtedness, or with intent to annoy, harass, oppress, hinder, delay, or 4 defraud, the person to whom such indebtedness is due. 5 s. California Labor Code §1197.1 which states any employer or other person 6 acting either individually or as an officer, agent, or employee of another 7 person, who pays or causes to be paid to any employee a wage less than the 8 minimum fixed by an applicable state or local law, or by an order of the 9 commission, shall be subject to a civil penalty, restitution of wages, liquidated damages payable to the employee, and any applicable penalties imposed 10 pursuant to §203 as follows: (1) For any initial violation that is intentionally 11 committed, one hundred dollars ($100) for each underpaid employee for each 12 pay period for which the employee is underpaid. This amount shall be in 13 addition to an amount sufficient to recover underpaid wages, liquidated 14 damages pursuant to §1194.2, and any applicable penalties imposed pursuant 15 to §203. (2) For each subsequent violation for the same specific offense, two hundred fifty dollars ($250) for each underpaid employee for each pay period 16 for which the employee is underpaid regardless of whether the initial violation 17 is intentionally committed. This amount shall be in addition to an amount 18 sufficient to recover underpaid wages, liquidated damages pursuant to 19 §1194.2, and any applicable penalties imposed pursuant to §203. (3) Wages, 20 liquidated damages, and any applicable penalties imposed pursuant to §203, 21 recovered pursuant to this §shall be paid to the affected employee. t. California Labor Code §226 which states an employer, semimonthly or at the 22 time of each payment of wages, shall furnish to his or his employee, either as 23 a detachable part of the check, draft, or voucher paying the employee’s wages, 24 or separately if wages are paid by personal check or cash, an accurate itemized 25 statement in writing showing (1) gross wages earned, (2) total hours worked 26 by the employee, except as provided in subdivision (j), (3) the number of 27 piece-rate units earned and any applicable piece rate if the employee is paid 28 14 ____________________________________________________________________________ FIRST AMENDED COMPLAINT 1 on a piece-rate basis, (4) all deductions, provided that all deductions made on 2 written orders of the employee may be aggregated and shown as one item, (5) 3 net wages earned, (6) the inclusive dates of the period for which the employee is paid, (7) the name of the employee and only the last four digits of his or his 4 social security number or an employee identification number other than a 5 social security number, (8) the name and address of the legal entity that is the 6 employer and, (9) all applicable hourly rates in effect during the pay period 7 and the corresponding number of hours worked at each hourly rate by the 8 employee; 9 u. Labor Code §1102.5(b) which prohibits an employer, or any person acting on behalf of the employer, from retaliating against an employee for disclosing 10 information, or because the employer believes that the employee disclosed or 11 may disclose information, to a person with authority over the employee or 12 another employee who has the authority to investigate, discover, or correct the 13 violation or noncompliance, or if the employee has reasonable cause to believe 14 that the information discloses a violation of state or federal statute, or a 15 violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee's job 16 duties; 17 v. Labor Code §1102.5(c) which prohibits an employer, or any person acting on 18 behalf of the employer from retaliating against an employee for refusing to 19 participate in an activity that would result in a violation of state or federal 20 statute, or a violation of or noncompliance with a local, state, or federal rule or 21 regulation; w. Labor Code § 1103, which makes it a misdemeanor if an employer violates this 22 chapter of the Labor Code; 23 x. California Business and Professions Code §17200 as well as the other 24 provisions in that related section by engaging in unlawful, unfair or fraudulent 25 business act or practice in Paragraphs 5-11, 14 and the Causes of Action 1-6, 8; 26 y. All other state and federal statutes, regulations, administrative orders, and 27 ordinances which effect society at large, and which discovery will reveal were 28 15 ____________________________________________________________________________ FIRST AMENDED COMPLAINT 1 violated by all named and DOE Defendants by retaliating against and 2 terminating Plaintiff. 3 51. As a direct, foreseeable, and proximate result of the conduct complained of in this cause of action, Plaintiff has suffered, and continue to suffer emotional distress, substantial losses in 4 salary, bonuses, job benefits, and other employment benefits Plaintiffs would have received 5 from the named Defendant, all to Plaintiff’s damage in a sum within the jurisdiction of this 6 Court, to be ascertained according to proof. 7 52. As a further direct and proximate result of the named corporate Defendant’s unlawful 8 discrimination, Plaintiff has suffered, and continue to suffer, emotional distress and severe 9 mental anguish, humiliation, nervousness, tension, anxiety, and depression, in a sum within the jurisdiction of this Court, to be ascertained according to proof. 10 53. As a direct, foreseeable, and proximate result of said Defendant’s actions, and each of its 11 actions as alleged in this cause of action, which were intentional, malicious, oppressive, and 12 made in a bad faith manner in an attempt to vex, injure, annoy, and/or willfully and consciously 13 disregard Plaintiff’s rights by taking the actions alleged in this cause of action, Plaintiff prays for 14 punitive damages against said Defendant in a sum within the jurisdiction of this court, to be 15 ascertained, according to proof, in a sufficiently large amount to punish said Defendant, deter future conduct by said Defendant and others behaving like it, and to make an example of said 16 Defendant. 17 54. Plaintiff prays for all recoverable penalties, including the up to $10,000 penalty allowed 18 under Labor Code § 1102.5(f) and its enhanced burden of proof. 19 55. Plaintiff prays for attorney fees for pursuing this cause of action per Labor Code 20 §1102.5(j). 21 22 TENTH CAUSE OF ACTION WRONGFUL TERMINATION IN VIOLATION OF PUBLIC POLICY 23 (AGAINST DEFENDANT RFT, AND DOE DEFENDANTS) 24 25 56. Plaintiff realleges the information set forth in Paragraphs 1-15 of the general allegations, 26 Paragraphs 16-19 of the First Cause of Action, Paragraphs 20-22 of the Second Cause of Action, 27 Paragraphs 23-25 of the Third Cause of Action, Paragraphs 26-30 of the Fourth Cause of Action, 28 16 ____________________________________________________________________________ FIRST AMENDED COMPLAINT 1 Paragraphs 31-33 of the Fifth Cause of Action, Paragraphs 34-37 of the Sixth Cause of Action, 2 Paragraphs 38-42 of the Seventh Cause of Action, Paragraphs 43-46 of the Eighth Cause of 3 Action, Paragraphs 47-55 of the Ninth Cause of Action, and incorporates these paragraphs into this cause of action as if they were fully alleged herein. 4 57. Under California law, no employee, whether they are an at-will employee, or an 5 employee under a written or other employment contract, can be terminated for a reason that is in 6 violation of a fundamental public policy. In recent years, the California court has interpreted a 7 fundamental public policy to be any articulable constitutional, statutory, or regulatory provision 8 that is concerned with a matter effecting society at large rather than a purely personal or 9 proprietary interest of the employee or the employer. Moreover, the public policy must be fundamental, substantial, and well established at the time of discharge. 10 58. Plaintiff alleges that Defendant wrongfully terminated Plaintiff by retaliating against him 11 for complaining that he was being forced to drive in unsafe and unhealthy work conditions by 12 not having legally allotted rest time between 11-14 hour driving shifts, and by having to work 13 off the clock without pay. 14 59. Plaintiff alleges that Defendant RFT’s actions set forth in this cause of action, Paragraphs 15 5-14, and Causes of Action 1-9, violate the following statutes: a. 49 CFR 395.3(a)(1) which states a driver may not start a driving shift without 16 first taking 10 consecutive hours off duty; 17 b. 49 CFR 395.3(a)(2) which states a driver may not drive after a period of 14 18 consecutive hours after coming on-duty following 10 consecutive hours off- 19 duty; 20 c. 49 CFR 395.1(g)(1)(iii)(B) which states the 14-hour driving window for 21 purposes of § 395.3(a)(2) does not include qualifying rest periods under paragraph (g)(1)(ii) of this section; 22 d. 49 CFR 395.3(a)(3)(i) which states a driver may drive a total of 11 hours 23 during the period specified in paragraph (a)(2) of this section; 24 e. 49 CFR 395.3(a)(3)(ii) which states drivers must take a 30-minute break when 25 they have driven for a period of 8 cumulative hours without at least a 30- 26 minute interruption; 27 f. 49 CFR 395.3(a)(3)(ii) which states driving is not permitted if more than 8 28 17 ____________________________________________________________________________ FIRST AMENDED COMPLAINT 1 hours of driving time have passed without at least a consecutive 30-minute 2 interruption in driving status. A consecutive 30-minute interruption of driving 3 status may be satisfied either by off-duty, sleeper berth or on-duty not driving time or by a combination of off-duty, sleeper berth and on-duty not driving 4 time; 5 g. 49 CFR 395.1(e)(2)(iv) which states a truck driver does not drive: (A) After 6 the 14th hour after coming on duty on 5 days of any period of 7 consecutive 7 days; and (B) After the 16th hour after coming on duty on 2 days of any 8 period of 7 consecutive days; 9 h. 49 CFR 395.8(a)(1) which states a motor carrier subject to the requirements of this part must require each driver used by the motor carrier to record the 10 driver's duty status for each 24-hour period using the method prescribed in 11 paragraphs (a)(1)(i) through (iv) of this section, as applicable. 12 i. California Labor Code § 226.8 LC prohibits employers from knowingly and 13 voluntarily misclassifying employees as independent contractors. Each 14 violation carries a civil penalty of $5,000 to $25,000 depending on the case; 15 j. California Labor Code § 2810.5 which states at the time of hiring, an employer shall provide to each employee a written notice, containing the rate 16 of pay including any rates for overtime, as applicable, allowances, if any, the 17 regular payday designated by the employer the name of the employer, the 18 physical address of the employer’s main office, the telephone number of the 19 employer, the name, address, and telephone number of the employer’s 20 workers’ compensation insurance carrier, that the employee may accrue and 21 use sick leave, has a right to request and use accrued paid sick leave, may not be terminated or retaliated against for using or requesting the use of accrued 22 paid sick leave, and has the right to file a complaint against an employer who 23 retaliates; 24 k. California Labor Code § 2775 which prohibits misclassification of employees 25 as independent contractors when they were not free from th