Preview
Electronically FILED by
Superior Court of California,
County of Los Angeles
David Alami (State Bar No. 314628) 7/05/2024 5:09 PM
david@torusllp.com David W. Slayton,
Executive Officer/Clerk of Court,
Daniel J. Hyun (State Bar No. 309184) By S. Ruiz, Deputy Clerk
daniel@torusllp.com
TORUS LLP
2 Park Plaza, Suite 1260
Irvine, California 92614
Telephone: (949) 590-4122
Facsimile: (949) 528-2596
Attorneys for Plaintiff JESUS SIERRA
GANDARILLA
SUPERIOR COURT OF CALIFORNIA
COUNTY OF LOS ANGELES
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JESUS SIERRA GANDARILLA, individually Case No. 245T C¥Y167F2
and on behalf
of other aggrieved employees and
the State of California, INDIVIDUAL AND REPRESENTATIVE
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ACTION COMPLAINT FOR:
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Plaintiff,
1 Failure to Pay All Wages;
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VS. 2 Failure to Provide Meal Periods or
Compensation;
LARGO CONCRETE, INC.; and DOES 1 Failure to Permit Rest Periods or Provide
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through 50, inclusive, Compensation;
Failure to Provide Accurate Itemized
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Defendants. Wage Statements;
Waiting Time Penalties;
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Failure to Reimburse Business Expenses;
Violation of the Unfair Competition Law: .3]
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and
Violation of the Private Attorneys
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General Act of 2004
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DEMAND FOR JURY TRIAL
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COMPLAINT
Plaintiff JESUS SIERRA GANDARILLA (‘Plaintiff’), individually and on behalf of other
aggrieved employees and the State of California, hereby brings this Complaint (“Complaint”) against
Defendants LARGO CONCRETE, Inc. and DOES 1 through 50, inclusive (collectively
“Defendants”), and alleges as follows:
INTRODUCTION
1 Plaintiff brings this individual action brought on behalf of himself against Defendants
during the Liability Period defined as four (4) years and 178 days prior to the filing of this action
through the date of resolution, inclusive of any period of time in which the applicable statutes of
limitation were tolled between April 6, 2020 and October 1, 2020, pursuant to the California Rules of
10 Court, Appendix I, Emergency Rule 9. Plaintiff, individually, seeks on behalf of himself, inter alia,
11 unpaid wages, meal and rest period premiums, reimbursements, statutory penalties, attorneys’ fees,
12 costs, interest, and treble damages for the following alleged violations by Defendants: (1) failure to
13 pay all wages; (2) failure to provide meal periods; (3) failure to provide rest periods; (4) failure to
14 provide accurate itemized wage statements; (5) failure to timely pay all wages due upon separation of
15 employment; (6) failure to reimburse business expenses; and (7) unfair business practices.
16 2. Plaintiff also brings this representative action pursuant to the Private Attorneys General
17 Act of 2004, Labor Code Sections 2698, et seq. (“PAGA”), on behalf of himself and all current and
18 former employees of Defendants employed in California during the PAGA Period (collectively the
19 “Aggrieved Employees”). The term PAGA Period is defined as one (1) year prior to the submission
20 of Plaintiff's notice of Labor Code violations to the Labor and Workforce Development Agency
21 (“LWDA”) and certified mail to Defendants until resolution.
22 3 Plaintiff's representative PAGA action is brought under, inter alia, the California
23 Industrial Welfare Commission (“IWC”) Wage Orders and applicable provisions of the California
24 Code of Regulations, California Code of Civil Procedure Section 1021.5, and California Labor Code
25 Sections 201, 202, 203, 204, 206, 210, 221, 223, 226, 226.3, 226.7, 227.3, 233, 234, 246, 510, 511,
26 512, 558, 558.1, 1171, 1174, 1174, 1174.5, 1811, 1815, 1194, 1194.2, 1197, 1197.1, 1197.5, 1198,
27 1199, 1199.5, 2800 and 2802. Plaintiff brings this representative action seeking monetary relief against
28 Defendants on behalf of himself and other Aggrieved Employees to recover, among other things,
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COMPLAINT
penalties, attorneys’ fees, and costs pursuant to Labor Code Sections 2698, et seq.
4 Plaintiff is informed and believes, and thereon alleges, that LARGO CONCRETE,
INC. is a California corporation and structural concrete and general contractor.
5 Plaintiff and the Aggrieved Employees were employed by Defendants and performed
work for Defendants throughout California.
6 Through this action, Plaintiff is alleging that Defendants have engaged in a systematic
pattern of wage and hour violations under the California Labor Code (“Labor Code”).
JURISDICTION AND VENUE
7 This Court has jurisdiction over all causes of action asserted herein pursuant to the
10 California Constitution, Article VI, Section 10, which grants the Superior Court original jurisdiction
11 in all cases except those given to other trial courts. All claims alleged herein arise under California
12 law for which Plaintiff seeks relief authorized by California law. Further, this is a representative
13 PAGA action and the monetary damages, restitution, penalties, and other amounts sought by Plaintiff
14 exceeds the minimal jurisdictional limits of the Superior Court and will be established according to
15 proof at trial.
16 8 This Court has jurisdiction over all Defendants because each Defendant is a citizen of
17 California, a corporation or association organized under the laws of the State of California, an
18 association authorized to do business in California and registered with the California Secretary of
19 State, does sufficient business in California, has sufficient minimum contacts with California, and/or
20 intentionally avails itself of the laws and markets of California through the promotion, sale, marketing
21 and distribution of its products and/or services in California to render the exercise of jurisdiction by
22 the California courts permissible. In addition, PAGA penalties cannot be aggregated to meet the
23 jurisdictional threshold for diversity jurisdiction in federal court.
24 9. Venue in Los Angeles County is proper under California Business & Professions Code
25 Section 17203 and California Code of Civil Procedure Section 395.5 because a substantial part of
26 Defendants’ unlawful conduct, acts, and omissions alleged herein occurred in this County, Defendants
27 had and have ongoing projects in this County, Defendants conduct substantial business in this County,
28 Defendants’ liability arose in this County, and/or Defendants reside, transact business, maintain
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COMPLAINT
offices, and/or have an agent or agents in this county. The relief requested is within the jurisdiction
of this Court.
PARTIES
10. Plaintiffis a California citizen and resides in California. Defendants employed Plaintiff
as a non-exempt employee during the Liability Period and his employment with Defendants ended
within one (1) year of the filing of this action. Plaintiff's
job duties included, but were not limited to,
building walls, planning and preparing flooring, and other construction duties.
ll. Plaintiff is informed, believes and thereon alleges that, at all relevant times Defendant
LARGO CONCRETE, INC. (“LARGO”) was and is a structural concrete and general contractor.
10 LARGO is and was a California corporation. Plaintiff is informed, believes, and thereon alleges that
11 LARGO employs 100 or more non-exempt employees at a single location and/or 300 or more non-
12 exempt employees at multiple locations during the relevant liability periods. Plaintiff is informed,
13 believes and thereon alleges that LARGO operates in California with locations in Los Angeles, Orange
14 County, San Luis Obispo, Campbell and San Diego, California. Plaintiff is further informed, believes
15 and thereon alleges that, at all relevant times, LARGO regularly conducted and conducts business
16 within the State of California and derives substantial revenues from services performed in California.
17 Plaintiff is informed, believes and thereon alleges that, at all relevant times, LARGO was and is an
18 employer subject to California state wage and hour laws.
19 12. Plaintiff is informed, believes and thereon alleges that, at all relevant times that
20 Defendants operated a single enterprise and demonstrated a unity of interest and ownership.
21 13. Defendants continue to employ non-exempt employees within California.
22 14. Plaintiff is unaware of the true names and capacities of those Defendants identified as
23 DOES | through 50. Therefore, Plaintiff identifies those Defendants fictitiously. Plaintiff is informed
24 and believes, and thereon alleges that at all relevant times each DOE Defendant was a parent, sister,
25 or related corporate entity of Defendants, or an owner, employee or agent of Defendants, and each
26 related entity, and was acting with the knowledge and authorization of each of the other Defendants.
27 Plaintiff will seek to amend this Complaint to allege the true names and capacities of each DOE
28 Defendant when their names have been ascertained and identified. Plaintiffis informed and believes,
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COMPLAINT
and thereon alleges that each of the Defendants sued as DOES 1 through 50 participated in, received
the benefit of, or was in some way responsible for one or more of the wrongful acts and omissions and
some portion of the damages alleged herein.
15. Plaintiff is informed and believes, and thereon alleges that at all times material hereto,
each Defendant acted in all respects pertinent to this action as the agent of the other Defendant, carried
out a joint scheme, business plan or policy in all respects pertinent hereto, and the acts of each
Defendant are legally attributable to the other Defendant. Furthermore, Defendants in all respects
acted as the employer and/or joint employer of Plaintiff and the Aggrieved Employees.
16. Plaintiff is informed and believes, and thereon alleges that Defendants, each and all of
10 them, at all times material hereto, were the joint employers, parent companies, successor companies,
11 predecessors in interest, affiliates, agents, employees, servants, joint venturers, directors, fiduciaries,
12 representatives, and/or co-conspirators of each of the remaining Defendants. Defendants, unless
13 otherwise alleged, at all times material hereto, performed all acts and omissions alleged herein within
14 the course and scope of said relationship(s), and are a proximate cause of Plaintiff's damages as herein
15 alleged.
16 17. Plaintiff is informed and believes, and thereon alleges, that there exists a unity of
17 interest in ownership between Defendants and DOES | through 50, inclusive, such that any
18 individuality and separateness between the individual and the corporation does not exist, as
19 Defendants, and DOES 1 through 50, inclusive, are alter egos, in that: (1) Defendants are and at all
20 times mentioned herein were mere shells, instrumentalities and conduits through which DOES 1
21 through 50, inclusive, carried out their business in the business name, exercising complete control and
22 dominance over such business; (2) that Defendants were conceived, intended and used by DOES 1
23 through 50, inclusive, as devices to avoid individual liability and in place of Defendants, and DOES 1
24 through 50, inclusive, and were without the financial solvency and responsibility required by law; and
25 (3) that all of the assets of the Defendants have been transferred to DOES 1 through 50, inclusive, or
26 some other individual or entity which he or she owns or controls, with the intent to hinder, delay or
27 defraud creditors of Defendants, leaving Defendants with no assets. Further, Plaintiff is informed and
28 believes, and thereon alleges, that there exists a principal-agency relationship between and among
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COMPLAINT
Defendants.
18. At all relevant times herein, Defendants were agents of each other and acting within
the course and scope of their agency.
GENERAL ALLEGATIONS
19. At all relevant times herein, Defendants employed Plaintiff and other persons as non-
exempt employees.
20. Plaintiff is informed and believes, and thereon alleges, that Defendants knew or should
have known that they imposed systematic quota and production demands on Plaintiff and Class
Members which violated the rights of employees pursuant to Labor Code Sections 2100 et. seq.
10 Defendants had a duty to ensure its production demands did not interfere with Plaintiff and Class
11 Members right to lawful meal periods, rest periods, bathroom breaks, and/or expose them to safety
12 hazards. Defendants willfully, knowingly, and intentionally failed to establish quotas that did not harm
13 Plaintiff and Class Members all in order to increase Defendants’ profits without concern for employee
14 safety or compliance with the Labor Code and IWC Wage Orders.
15 21. Plaintiff is informed and believes, and thereon alleges, that at all times mentioned
16 herein, Defendants were advised by skilled lawyers, employees and other professionals who were
17 knowledgeable about California wage and hour law, employment and personnel practices, and the
18 requirements of California.
19 22. Through this action, Plaintiff alleges Defendants have consistently maintained and
20 enforced against Plaintiff and Aggrieved Employees unlawful employment practices and policies
21 which violate the California Labor Code and IWC Wage Orders.
22 23. Plaintiffis informed and believes, and thereon alleges, that Defendants knew or should
23 have known they had a duty to compensate Plaintiff and Aggrieved Employees, and Defendants had
24 the financial ability to pay such compensation but willfully, knowingly and intentionally failed to do
25 so all in order to increase Defendants’ profits.
26 24. Plaintiffis informed and believes, and thereon alleges, that Defendants knew or should
27 have known that Plaintiff and Aggrieved Employees were entitled to receive at least minimum, straight
28 time, and overtime wages, and that they were not receiving minimum, straight time, and overtime
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COMPLAINT
wages, including prevailing wages, for all work that was required to be performed. During the Liability
Period, Plaintiff and other Aggrieved Employees regularly worked more than eight (8), 10 hours per
workday, and/or over 40 hours per workweek. In violation of the Labor Code, Defendants simply
failed to pay all wages to Plaintiff and Aggrieved Employees. In addition, Defendants failed to pay for
off-the-clock work. For example, Defendants required off-the-clock work such as communicating with
Plaintiff and/or Aggrieved Employees and donning and doffing activities. Defendants prohibited
Plaintiff and Aggrieved Employees from clocking in until near the beginning of their scheduled start
time despite being subject to Defendants’ control. Further, Defendants failed to accurately calculate
the regular rate of pay by, among other things, failing to include a remuneration when calculating the
10 rate of pay for overtime, double time, meal and rest period premiums, vacation pay, and sick pay.
11 25. On public works projects, Defendants also failed to compensate Plaintiff and/or
12 Aggrieved Employees at the prevailing wage rate classification for the type of work performed by
13 Plaintiff and/or the Aggrieved Employee on that project.
14 26. Plaintiffis informed and believes, and thereon alleges, that Defendants knew or should
15 have known that Plaintiff and Aggrieved Employees were entitled to receive a timely, off-duty,
16 uninterrupted 30-minute meal period for every five (5) hours of work, or payment of one (1) additional
17 hour of pay at their regular rate of pay when they did not receive a compliant meal period. In violation
18 of the Labor Code and IWC Wage Orders, Plaintiff and Aggrieved Employees did not receive
19 compliant meal periods due to Defendants’ work demands, understaffing, policies, and practices. In
20 addition, Plaintiffs and Aggrieved Employees’ meal periods were regularly taken after the fifth hour
21 of work due to understaffing and Defendants unlawful policies and practices. As such, meal periods
22 were also regularly missed due to Defendants’ understaffing and heavy. Defendants also failed to
23 provide second meal periods when Plaintiff and Aggrieved Employees worked over 10 hours per
24 workday. Defendants also failed to pay Plaintiff and Aggrieved Employees one (1) additional hour of
25 pay at their regular rate of pay when Plaintiff and Aggrieved Employees did not receive a compliant
26 meal period.
27 27. Plaintiffis informed and believes, and thereon alleges, that Defendants knew or should
28 have known that Plaintiff and Aggrieved Employees were entitled to receive a 10-minute, off-duty,
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COMPLAINT
uninterrupted rest period for every four (4) hours worked, or major fraction thereof, or payment of one
additional hour of pay at their regular rate of pay when they were not permitted to take a compliant
rest period. In violation of the Labor Code and IWC Wage Orders, Plaintiff
and Aggrieved Employees
were not permitted to take compliant rest breaks due to Defendants’ work demands, understaffing,
policies, and practices as explained above. Specifically, Defendants failed to provide first rest breaks
on many occasions, failed to provide second rest breaks when Plaintiff and Aggrieved Employees
worked in excess of six (6) hours per workday and failed to provide third rest breaks when they worked
over 10 hours per workday. Despite these violations, Defendants failed to pay Plaintiff and Aggrieved
Employees one additional hour of pay at their regular rate of pay when they did not receive a compliant
10 rest break.
11 28. Defendants also did not implement a compliant recovery period policy or practice.
12 Specifically, access to shade and recovery periods were not provided to Plaintiff and/or other
13 Aggrieved Employees who performed work outdoors for Defendants during hot days, especially
14 during summer.
15 29. Plaintiffis informed and believes, and thereon alleges, that Defendants knew or should
16 have known that Plaintiff and Aggrieved Employees were entitled to reimbursements for their
17 necessary work-related business expenses. In violation of the Labor Code and IWC Wage Orders,
18 Defendants required Plaintiff and Aggrieved Employees to use their personal cell phones to discuss
19 work related matters with Defendants representatives without reimbursement. In addition, Defendants
20 required Plaintiff and Aggrieved Employees to purchase and maintain their own safety gear and tools
21 to perform their job duties without reimbursement.
22 30. Plaintiffis informed and believes, and thereon alleges, that Defendants knew or should
23 have known that Plaintiff and Aggrieved Employees who separated from their employment with
24 Defendants during the statutory period were entitled to timely payment of all wages due. In violation
25 of the Labor Code, Plaintiff and Waiting Time Aggrieved Employees did not receive payment of all
26 wages owed upon separation within the permissible time period due to, inter alia, Defendants’ failure
27 to pay all wages, meal and rest period premiums, and reimburse expenses to Plaintiff and Aggrieved
28 Employees.
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COMPLAINT
31. Plaintiffis informed and believes, and thereon alleges that Defendants knew or should
have known that Plaintiff and Aggrieved Employees were entitled to receive complete and accurate
wage statements. In violation of the Labor Code and IWC Wage Orders, Plaintiff and Aggrieved
Employees were not furnished with complete and accurate wage statements that show all of the
information required by Labor Code section 226, including, but not limited to, the gross and net wages
earned, reimbursements, the total hours worked, all applicable hourly rates in effect during the pay
period, and the corresponding number of hours worked at each hourly rate.
32. Plaintiffis informed and believes, and thereon alleges, that Defendants knew or should
have known that Defendants were required to keep accurate records of the hours worked by Plaintiff
10 and Aggrieved Employees. In violation of the California Labor Code, Defendants failed to maintain
11 accurate records ofhours worked by Plaintiff
and Aggrieved Employees due to the unlawful practices
12 mentioned above.
13 33. Plaintiff is informed and believes, and thereon alleges that Defendants’ actions as
14 described throughout this Complaint were willful.
15 FIRST CAUSE OF ACTION
16 FAILURE TO PAY ALL WAGES
17 (AGAINST ALL DEFENDANTS)
18 34. Plaintiff hereby re-alleges and incorporates by reference all paragraphs above as though
19 fully set forth herein.
20 35. Atall times herein relevant, Defendants had a duty to comply with Labor Code Sections
21 204, 206, 510, 1182.12, 1194, 1194.2, 1197, 1198, 1811, 1815, the applicable IWC Wage Orders, and
22 all applicable local minimum wage ordinances in effect throughout California.
23 36. Labor Code Section 204 and the IWC Wage Orders require timely payment of all
24 wages owed on regularly scheduled paydays at least twice during each calendar month, on days
25 designated in advance by the employer as the regular paydays. All wages in earned in excess of the
26 normal work period must be paid no later than the payday for the next regular payroll period.
27 37. Labor Code Section 206 provides that in case of a dispute over wages, the employer
28 shall pay, without condition and promptly under the Labor Code all wages conceded due, leaving to
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COMPLAINT
the employee all remedies he/she is otherwise entitled to as to any balance claimed.
38. The IWC Wage Orders define “hours worked” as “the time during which an employee
is subject to the control of an employer and includes all time the employee is suffered or permitted to
work, whether or not required to do so.”
39. Labor Code Section 510 and the IWC Wage Orders require that employers pay
employees for all overtime hours at a rate of one and one-half times the employee’s regular rate of pay
for hours worked in excess of eight (8) hours in one (1) workday, 40 hours in one (1) workweek, and
after the first eight hours on the seventh consecutive workday in one (1) workweek. Labor Code
Section 510 and the IWC Wage Orders further require that employers pay employees double their
10 regular rate of pay for hours work in excess of 12 hours in a workday and after eight hours on the
11 seventh consecutive workday in one (1) workweek. Labor Code Section 510 requires payment of
12 overtime wages at one and one half times the “regular rate of pay,” which includes all forms of
13 renumeration earned by the employee.
14 40. Labor Code Section 1182.12 sets forth the minimum hourly wage that must be paid to
15 all employees in California for all hours worked. Local minimum wage ordinances, may provide for
16 higher minimum wage rates that must be paid to employees for all hours worked in those locales where
17 each local ordinance is in effect. Labor Code Section 1197 affirms that it is unlawful to pay less than
18 the state or local minimum wage, whichever is higher, for any hour of work.
19 41. Labor Code Section 1194 requires that employers pay employees at least the legal
20 minimum wage rate for all hours worked, notwithstanding any agreement to work for a lesser wage.
21 Labor Code Section 1194 further authorizes any employee receiving less than the legal minimum wage
22 applicable to the employee to recover in a civil action the unpaid balance of the full amount of wages,
23 along with interest thereon, reasonable attorneys’ fees and costs of suit.
24 42. Labor Code Section 1194.2 authorizes the recovery of liquidated damages in an amount
25 equal to the wages unlawfully unpaid and interest thereon for unpaid wage violations.
26 43. Labor Code Section 1198 prohibits employers from employing for longer hours or less
27 favorable conditions than those set forth in the Labor Code, IWC Wage Orders, or as otherwise set by
28 the Labor Commissioner.
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44. Labor Code Section 1811 provides: “The time of service of any workman employed
upon public work is limited and restricted to 8 hours during any one calendar day, and 40 hours during
any one calendar week, except as hereinafter provided for under Section 1815.”
45. Labor Code Section 1815 provides in relevant part: “work performed by employees of
contractors in excess of 8 hours per day, and 40 hours during any one week, shall be permitted upon
public work upon compensation for all hours worked in excess of 8 hours per day at not less than 1
1/2 times the basic rate of pay.”
46. During the Liability Period, Defendants failed to pay Plaintiff all wages due, including
minimum, regular, and overtime wages, prevailing wages, and failed to compensate off-the-clock
10 work, among other things.
11 47. In violation of California law, Defendants have knowingly and willfully refused to
12 perform their obligations and compensate Plaintiff
for all wages earned as alleged above.
13 48. Defendants’ failure to pay Plaintiff all earned minimum, regular, overtime and
14 prevailing wages in accordance with Labor Code Sections 204, 206, 510, 1182.12, 1194, 1194.2, 1197,
15 and 1198, the applicable IWC Wage Orders, and all applicable local minimum wage ordinances in
16 effect throughout California, Plaintiffis entitled to recover the full amount of unpaid wages, liquidated
17 damages, prejudgment interest, and statutory penalties, along with attorneys’ fees and costs in amounts
18 that will be established at trial.
19 49. Plaintiff is informed, believes, and thereon alleges that Defendants, through their
20 conduct described herein, have committed an “intentional theft of wages in an amount greater than
21 nine hundred fifty dollars ($950) from any one employee, or two thousand three hundred fifty dollars
22 ($2,350) in the aggregate from two or more employees...in any consecutive 12-month period” within
23 the meaning of California Penal Code section 487m. Specifically, Defendants have intentionally
24 deprived Plaintiff
of wages, as defined in Labor Code section 200, gratuities, as defined in Labor Code
25 section 350, benefits, or other compensation, by unlawful means, with the knowledge that the wages,
26 gratuities, benefits, or other compensation is due to Plaintiff under the law. Plaintiff is thus entitled to
27 recover from Defendants treble damages and costs, including reasonable attorneys’ fees, pursuant to
28 California Penal Code section 496(c).
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COMPLAINT
SECOND CAUSE OF ACTION
MEAL PERIOD VIOLATIONS
(AGAINST ALL DEFENDANTS)
50. Plaintiff hereby re-alleges and incorporates by reference all paragraphs above as though
fully set forth herein.
51. At all relevant times, Defendants had a duty to comply with Labor Code Sections 226.7
and 512, and the applicable IWC Wage Orders.
52. Labor Code Section 512 and the IWC Wage Orders prohibit an employer from
employing any person for a work period of more than five (5) hours per day without providing the
10 employee with a meal period of not less than 30 minutes (commencing before the employee’s fifth
11 hour of work), except that if the total work period per day is no more than six (6) hours, the meal
12 period may be waived by mutual consent of the employer and employee. A second meal period of not
13 less than 30 minutes is required if an employee works more than 10 hours per day and must begin
14 before the employee’s tenth hour of work, except if the total hours worked is no more than 12 hours,
15 the second meal period may be waived by mutual consent of the employer and employee, but only if
16 the first meal period was not waived. An employer must relieve an employee of all duties during meal
17 periods.
18 53. The applicable IWC Wage Orders state that “[u]nless the employee is relieved of all
19 duty during a 30-minute meal period, the meal period shall be considered an ‘on duty’ meal period
20 and counted as time worked.”
21 54. Labor Code Section 226.7(b) and the IWC Wage Orders prohibit an employer from
22 requiring any employee to work during a meal period mandated by any California statute, regulation,
23 standard or order. If an employer fails to provide an employee with a meal period in accordance with
24 state law, Labor Code Section 226.7(c) and the IWC Wage Orders require that the employer pay the
25 employee one (1) additional hour of pay at the employee’s regular rate of compensation for each
26 workday that the meal period is noncompliant.
27 55. During the Liability Period, Plaintiff did not receive compliant meal periods for
28 working more than five (5) hours and/or 10 hours per workday. Specifically, first and second meal
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periods were late, interrupted, rounded, auto-deducted, on-duty, short, missed, and/or restricted to the
worksite.
56. During the Liability Period, Defendants failed to pay Plaintiff meal period premiums
for noncompliant meal periods pursuant to Labor Code Section 226.7(b) and the applicable IWC Wage
Order.
57. As a result of Defendants’ failure to provide compliant meal periods and pay meal
period premiums to Plaintiff in accordance with the IWC Wage Orders and Labor Code Sections 226.7
and 512, Plaintiff suffered and continue to suffer a loss of wages and compensation.
58. Because Plaintiff were and/or are entitled to such meal periods or “premium pay” in
10 lieu thereof, they are entitled to such payment per shift in an amount according to proof. To the extent
11 such unpaid premiums are deemed unpaid wages, Plaintiff will also seek pre- and post-judgment
12 interest as provided by law at 10% per annum, in an amount according to proof.
13 59. Plaintiff is informed, believes, and thereon alleges that Defendants, through their
14 conduct described herein, have committed an “intentional theft of wages in an amount greater than
15 nine hundred fifty dollars ($950) from any one employee, or two thousand three hundred fifty dollars
16 ($2,350) in the aggregate from two or more employees...in any consecutive 12-month period” within
17 the meaning of California Penal Code section 487m. Specifically, Defendants have intentionally
18 deprived Plaintiff
of wages, as defined in Labor Code section 200, gratuities, as defined in Labor Code
19 section 350, benefits, or other compensation, by unlawful means, with the knowledge that the wages,
20 gratuities, benefits, or other compensation is due to Plaintiff under the law. Plaintiff is thus entitled to
21 recover from Defendants treble damages and costs, including reasonable attorneys’ fees, pursuant to
22 California Penal Code section 496(c).
23 60. Also, pursuant to Code of Civil Procedure Section 1021.5, Plaintiff will seek attorneys’
24 fees and costs from Defendants in an amount subject to proof and approved by the Court.
25 THIRD CAUSE OF ACTION
26 REST PERIOD VIOLATIONS
27 (AGAINST ALL DEFENDANTS)
28 61 Plaintiff hereby re-alleges and incorporates by reference all paragraphs above as though
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fully set forth herein.
62. At all relevant times, Defendants had a duty to comply with Labor Code Section 226.7
and the applicable IWC Wage Orders.
63. The IWC Wage Orders require employers to authorize and permit all employees to take
10-minute duty-free rest periods for each four (4) hours worked, or major faction thereof.
64. If an employer fails to provide an employee with a rest period in accordance with
California law, Labor Code Section 226.7(c) and the IWC Wage Orders require that the employer pay
the employee one (1) additional hour of pay at the employee’s regular rate of compensation for each
workday that the rest period is noncompliant.
10 65. During the Liability Period, Defendants did not implement a compliant rest break
11 policy and/or practice. Consequently, Plaintiff did not receive a 10 minute rest period for every four
12 (4) hours worked or major fraction thereof because rest breaks were interrupted, missed, on-duty, late,
13 shortened, and/or restricted to the worksite.
14 66. During the Liability Period, Defendants failed to pay Plaintiff rest period premiums for
15 noncompliant rest periods pursuant to Labor Code Section 226.7(b) and the applicable IWC Wage
16 Order.
17 67. As a result of Defendants’ failure to provide compliant rest periods and pay rest period
18 premiums to Plaintiff in accordance with the IWC Wage Orders and Labor Code Sections 226.7 and
19 516, Plaintiff suffered and continue to suffer a loss of wages and compensation.
20 68. Because Plaintiff were and/or are entitled to such rest periods or “premium pay” in lieu
21 thereof, they are entitled to such payment per shift in an amount according to proof. To the extent such
22 unpaid premiums are deemed unpaid wages, Plaintiff will also seek pre- and post-judgment interest as
23 provided by law at 10% per annum, in an amount according to proof.
24 69. Plaintiff is informed, believes, and thereon alleges that Defendants, through their
25 conduct described herein, have committed an “intentional theft of wages in an amount greater than
26 nine hundred fifty dollars ($950) from any one employee, or two thousand three hundred fifty dollars
27 ($2,350) in the aggregate from two or more employees...in any consecutive 12-month period” within
28 the meaning of California Penal Code section 487m. Specifically, Defendants have intentionally
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COMPLAINT
deprived Plaintiff
of wages, as defined in Labor Code section 200, gratuities, as defined in Labor Code
section 350, benefits, or other compensation, by unlawful means, with the knowledge that the wages,
gratuities, benefits, or other compensation is due to Plaintiff under the law. Plaintiff is thus entitled to
recover from Defendants treble damages and costs, including reasonable attorneys’ fees, pursuant to
California Penal Code section 496(c).
70. Also, pursuant to Code of Civil Procedure Section 1021.5, Plaintiff will seek attorneys’
fees and costs from Defendants in an amount subject to proof and approved by the Court.
FOURTH CAUSE OF ACTION
FAILURE TO PROVIDE ACCURATE ITEMIZED WAGE STATEMENTS
10 (AGAINST ALL DEFENDANTS)
11 71. Plaintiff hereby re-alleges and incorporates by reference all paragraphs above as though
12 fully set forth herein.
13 72. At all relevant times, Defendants had a duty to comply with Labor Code Section 226.
14 73. Labor Code Section 226(a) requires that, semimonthly or at the time of each payment
15 of wages, employers must furnish each employee with an accurate itemized wage statement in writing
16 that accurately shows (1) gross wages earned, (2) total number of hours worked, (3) the number of any
17 piece-rate units earned and all applicable piece rates, (4) all deductions made from wages, (5) net
18 wages earned, (6) the inclusive dates of the pay period, (7) the name and last four digits or employment
19 identification number of the employee, (8) the name and address of the legal entity that is the
20 employer, and (9) all applicable hourly rates in effect and the corresponding number of hours worked
21 at each hourly rate.
22 74. Labor Code Section 226(e)(1) authorizes an employee suffering injury as a result of a
23 knowing and intentional failure by an employer to provide an accurate itemized wage statement to
24 recover the greater of all actual damages or $50 for the initial pay violation and $100 for each violation
25 in a subsequent pay period, not to exceed an aggregate penalty of $4,000 per employee, in addition to
26 an award of costs and attorneys’ fees.
27 75. During the Liability Period, Defendants have knowingly and intentionally failed to
28 comply with Labor Code Section 226(a) on wage statements that were provided to Plaintiff. The
-15-
COMPLAINT
deficiencies include, among other things, Defendants’ failure to correctly state the gross and net wages
earned, the total hours worked, all applicable hourly rates in effect during the pay period, and the
corresponding number of hours worked at each hourly rate.
76. As a result of Defendants’ violation of California Labor Code Section 226(a), Plaintiff
has suffered injury and damage to their statutorily protected rights. Specifically, Plaintiff has been
injured by Defendants’ intentional violation of California Labor Code Section 226(a) because they
were denied both their legal right to receive, and their protected interest in receiving, accurate itemized
wage statements under California Labor Code Section 226(a). Plaintiff has had to file this lawsuit in
order to determine the extent of the underpayment of wages, thereby causing Plaintiff to incur expenses
10 and lost time. Plaintiff would not have had to engage in these efforts and incur these costs had
11 Defendants provided the accurate wages earned and number of hours worked at each corresponding
12 pay rate. This has also delayed Plaintiff's ability to demand and recover the underpayment of wages
13 from Defendants.
14 77. Defendants’ violations of California Labor Code Section 226(a) prevented Plaintiff
15 from knowing, understanding and disputing the wages paid to them, and resulted in an unjustified
16 economic enrichment to Defendants. As a result of Defendants’ knowing and intentional failure to
17 comply with California Labor Code Section 226(a), Plaintiff has suffered an injury, and the exact
18 amount of damages and/or penalties is all in an amount to be shown according to proofat trial.
19 78. Plaintiffis also entitled to injunctive relief under California Labor Code Section 226(h),
20 compelling Defendants to comply with California Labor Code Section 226, and seek the recovery of
21 attorneys’ fees and costs incurred in obtaining this injunctive relief.
22 FIFTH CAUSE OF ACTION
23 WAITING TIME PENALTIES
24 (AGAINST ALL DEFENDANTS)
25 79. Plaintiff hereby re-alleges and incorporates by reference all paragraphs above as though
26 fully set forth herein.
27 80. At all relevant times, Defendants had a duty to comply with Labor Code Sections 201,
28 202, and 203. Defendants failed to comply with these final paycheck requirements with respect to
-16-
COMPLAINT
Plaintiff.
81. Labor Code Section 201 requires that if an employer discharges an employee, the
wages earned and unpaid at the time of discharge are due and payable immediately.
82. Labor Code Section 202 requires that if “an employee not having a written contract for
a definite period” quits, the employee’s wages shall become due and payable no later than 72 hours
thereafter, unless the employee has given 72 hours previous notice of his or her intention to quit, in
which case the employee is entitled to his or her wages at the time of quitting.
83. Labor Code Section 203 provides that if an employer willfully fails to pay, without
abatement or reduction, any wages of an employee who is discharged or quits, the wages of the
10 employee shall continue as a penalty from the due date thereof at the same rate until paid or until an
11 action therefor is commenced, but that the wages shall not continue for more than 30 days per
12 employee.
13 84. During the Liability Period, Defendants willfully failed to pay Plaintiff all his earned
14 wages upon termination including, but not limited to, minimum, regular, and overtime compensation,
15 premium compensation, and/or reimbursements either at the time of discharge or within 72 hours of
16 leaving Defendants’ employ.
17 85. As a result of Defendants’ failure to timely pay all wages owed to Plaintiff in
18 accordance with Labor Code Sections 201, 202 and 203, Plaintiff is entitled to recover waiting time
19 penalties, prejudgment interest, attorneys’ fees, and costs in amounts that will be established at trial.
20 SIXTH CAUSE OF ACTION
21 FAILURE TO REIMBURSE BUSINESS EXPENSES
22 (AGAINST ALL DEFENDANTS)
23 86. Plaintiff hereby re-alleges and incorporates by reference all paragraphs above as though
24 fully set forth herein.
25 87. At all relevant times, Defendants had a duty to comply with Labor Code Sections 2800
26 and 2802. Defendants failed to comply with these indemnification and reimbursement requirements
27 with respect to Plaintiff.
28 88. Labor Code Section 2800 requires employers to indemnify employees for losses caused
-17-
COMPLAINT
by the employer’s want of ordinary care. To the extent Defendants claim that Plaintiff failed to request,
demand, notify or otherwise seek reimbursement for their expenses and losses, Defendants were
obligated to nevertheless indemnify Plaintiff
due to their own negligence.
89. Labor Code Section 2802(a) requires that employers indemnify and reimburse
employees for all business expenses, which are defined as all necessary expenditures or losses incurred
by the employee in direct consequence of the discharge of the employee’s duties or otherwise incurred
based on the employee’s obedience to the employer’s directions. Labor Code Section 2802(b)
authorizes employees to recover in a court action interest which shall accrue from the date on which
the employee incurred the necessary expenditure or loss. Labor Code Section 2802(c) authorizes
10 employees, who to enforce their right to reimbursements under Labor Code Section 2802, to also
11 recover attorneys’ fees and costs.
12 90. During the Liability Period, Defendants required Plaintiff
to, inter alia, use, purchase
13 and maintain their own safety gear and tools, and cell phones for work related purposes without
14 reimbursement in violation of Labor Code Sections 2800 and 2802.
15 91. As a result of Defendants’ failure to indemnify and reimburse Plaintiff for all business
16 and work-related costs, expenditures, losses and e
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805 WOOSTER, LLC., A CALIFORNIA LIMITED LIABILITY COMPANY VS BRETT HYMAN, AN INDIVIDUAL
Jul 26, 2024 |
23STCV27912
Case Number:
23STCV27912
Hearing Date:
July 26, 2024
Dept:
50
Superior Court of California
County of Los Angeles
Department 50
805 WOOSTER, LLC
,
Plaintiff,
vs.
BRETT HYMAN
,
et al
.,
Defendants.
Case No.:
23STCV27912
Hearing Date:
July 26, 2024
Hearing Time:
10:00 a.m.
[TENTATIVE] ORDER RE:
MOTION TO BE RELIEVED AS COUNSEL
Carlos A. LLoreda, Jr. of The Law Office of Carlos A. LLoreda, Jr.
(Counsel) moves to be relieved as counsel of record for Defendant
Brett Hyman.
While Counsel has provided sufficient reason for withdrawal, Items 5, 6, and 7 of the proposed order
(Form MC-053)
are blank.
If Counsel provides the Court with a revised order prior to the hearing, the Court will grant the motion.¿
Counsel is ordered to give notice of this order.¿
DATED:
July 26, 2024
________________________________
Hon. Teresa A. Beaudet
Judge, Los Angeles Superior Court
Ruling
MARTIN HUTTO VS CITY OF TORRANCE, A MUNICIPAL CORPORATION, ET AL.
Jul 26, 2024 |
23TRCV01212
Case Number:
23TRCV01212
Hearing Date:
July 26, 2024
Dept:
B
Superior Court of
California
County
of Los Angeles
Southwest District
Torrance Dept. B
MARTIN HUTTO,
Plaintiff,
Case No.:
23TRCV01212
vs.
[TENTATIVE] RULING
CITY OF TORRANCE,
Defendant.
Hearing Date:
July 26, 2024
Moving Parties:
Defendant City of Torrance
Responding Party:
Plaintiff Martin Hutto
(1)
Motion to Compel Further Responses to Special Interrogatories, Set One
(2)
Motion to Compel Further Responses to Requests for Production of Documents, Set One
The Court considered the moving, opposition, and reply papers.
RULING
The motions are GRANTED.
Plaintiff Martin Hutto is ordered to serve further responses to defendants Special Interrogatories, Set One, Nos. 47, 49, 54, 56, 58, 60, 62, 64, 67, 73, 84, 86, and 90 and to defendants Request for Production of Documents, Nos. 1-2, 5-7, 14-25, 27-37, 39-40, 42-43, 45-49, 51-53, 58, and 60 within twenty days.
BACKGROUND
On April 19, 2023, plaintiff Martin Hutto filed a complaint against City of Torrance and Torrance Police Department for (1) violation of POBRA, (2) declaratory relief, and (3) Labor Code §1102.5.
On April 25, 2023, the court (Judge Frank) issued a TRO on April 25, 2023.
On September 15, 2023, the court issued a preliminary injunction.
LEGAL AUTHORITY
45-Day Rule
:
This motion must be served within 45 days after service of the response in question (extended if served by mail, overnight delivery, or fax; see CCP §1013); otherwise, the demanding party waives the right to compel any further response to the CCP §2031.010 demand.
CCP §§2031.310(c), 2016.050; see
Sperber v. Robinson
(1994) 26 Cal. App. 4th 736, 745.
The 45-day time limit is mandatory and jurisdictional.
Sexton v. Superior Court
(1997) 58 Cal. App. 4th 1403, 1410.
The parties, however, can also agree in writing on a specific later date by which to file the motion to compel.
CCP §2031.310(c).
Meet-and-Confer Requirement
:
The motion to compel further responses must be accompanied by a declaration showing a reasonable and good faith attempt to resolve the issues outside of court (so-called meet and confer).
CCP §§2016.040, 2031.310(b)(2).
Separate Statement
:
Any motion involving the content of a discovery request or the responses to such a request shall be accompanied by a separate statement.
This includes a motion to compel further responses to demand for inspection of documents or tangible things.
CRC Rule 3.1020(a)(3).
Interrogatories
CCP §2030.300 states:
(a) On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply:
(1) An answer to a particular interrogatory is evasive or incomplete. . . . (3) An objection to an interrogatory is without merit or too general.
(b) A motion under subdivision (a) shall be accompanied by a meet and confer declaration under Section 2016.040. (c) Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the propounding party and the responding party have agreed in writing, the propounding party waives any right to compel a further response to the interrogatories. . . .
CCP §2030.220 states:
(a) Each answer in a response to interrogatories shall be as complete and straightforward as the information reasonably available to the responding party permits.
(b) If an interrogatory cannot be answered completely, it shall be answered to the extent possible.
(c) If the responding party does not have personal knowledge sufficient to respond fully to an interrogatory, that party shall so state, but shall make a reasonable and good faith effort to obtain the information by inquiry to other natural persons or organizations, except where the information is equally available to the propounding party.
CCP §2030.230 states:
If the answer to an interrogatory would necessitate the preparation or the making of a compilation, abstract, audit, or summary of or from the documents of the party to whom the interrogatory is directed, and if the burden or expense of preparing or making it would be substantially the same for the party propounding the interrogatory as for the responding party, it is a sufficient answer to that interrogatory to refer to this section and to specify the writings from which the answer may be derived or ascertained. . . .
CCP §2030.010(b) provides:
An interrogatory may relate to whether another party is making a certain contention, or to the facts, witnesses, and writings on which a contention is based.
An interrogatory is not objectionable because an answer to it involves an opinion or contention that relates to fact or the application of law to fact, or would be based on
information obtained or legal theories developed in anticipation of litigation or in preparation for
trial.
Request for Production of Documents
On receipt of a response to an inspection demand, the demanding party may move for an order compelling further responses to the demand if the demanding party deems that any of the following apply:
(1) a statement of compliance with the demand is incomplete; (2) a representation of inability to comply is inadequate, incomplete, or evasive; or (3) an objection in the response is without merit or too general.
CCP § 2031.310(a).
A statement of compliance shall state that the production, inspection, and related activity demanded will be allowed either in whole or in part, and that all documents or things in the demanded category that are in the possession, custody, or control of that party and to which no objection is being made will be included in the production.
CCP § 2031.220.
A representation of inability to comply with [a] particular demand for inspection . . . shall affirm that a diligent search and reasonable inquiry has been made in an effort to comply with that demand.
This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party.
This statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.
CCP § 2031.230.
A motion to compel further response to requests for production shall set forth specific facts showing good cause justifying the discovery sought by the inspection demand.
CCP § 2031.310(b)(1).
To establish good cause, the burden is on the moving party to show both:
[1]
Relevance to the subject matter
(e.g., how the information in the documents would tend to prove or disprove some issue in the case);
and
[2]
Specific facts justifying discovery
(e.g., why such information is necessary for trial preparation or to prevent surprise at trial).
The fact that there is
no alternative source
for the information sought is an important factor in establishing good cause for inspection.
But it is
not
essential in every case.
Weil & Brown,
Civil Procedure Before Trial
, 8:1495.6 (citations omitted).
Declarations are generally used to show the requisite good cause for an order to compel inspection.
The declarations must contain specific facts rather than mere conclusions.
Id.
at 8:1495.7 (citation omitted).
The declarations may be on information and belief, if necessary.
However, in such cases, the specific facts supporting such information and belief (the sources of the information) must also be alleged.
Id.
at 8:1495.8 (citation omitted).
Most declarations are made by the attorney for the moving party, who is usually more familiar with the relevancy and specific facts constituting good cause for inspection.
Id.
at 8:1495.9.
If good cause is shown by the moving party, the burden is then on the responding party to justify any objections made to document disclosure (the same as on motions to compel answers to interrogatories or deposition questions. . . ).
Id.
at 8:1496 (citation omitted).
DISCUSSION
Defendant City of Torrance requests that the Court compel plaintiff to respond further to Special Interrogatories, Set One, Nos. 47, 49, 54, 56, 58, 60, 62, 64, 67, 73, 84, 86, and 90 and Request for Production of Documents, Set One, Nos. 1-2, 5-7, 14-25, 27-37, 39-40, 42-43, 45-49, 51-53, 58, and 60.
The Court notes only the requests that remain at issue based on the reply.
In the reply, the City withdrew its motion as to Special Interrogatories, Nos. 1-46, 48, 50-53, 55, 57, 59-59, 61, 63, 65-66, 68-72, 74, 83, 85, 87-89, and 91-102 and Requests for Production of Documents, Nos. 3-4, 8-13, 26, 38, 41, 44, 50, and 54-57 based on plaintiff providing supplemental responses.
On December 19, 2023, defendant served its discovery requests.
On February 12, 2024, plaintiff served responses and objections.
On July 1, 2024, pursuant to joint stipulation and order, the hearing on the motions was continued to allow the parties to reach a stipulation regarding the discovery and use in the litigation of plaintiffs confidential police officer personnel records and information, and protective order, without the need for a noticed Pitchess motion.
The complaint alleges that that plaintiff was investigated and given educational reminders in connection with two arrests he made.
Plaintiff apprehended suspects in a catalytic converter theft on May 17, 2021 and commented to one of the arrestees, Welcome to Torrance.
Plaintiff was investigated for the comment and invoked his rights under the Public Safety Officers Procedural Bill of Rights Act (POBRA) and/or the Meyers-Milias Brown Act, including use of a representative of his choice.
Defendants ultimately concluded the investigation and gave plaintiff an educational reminder for misconduct based on the Welcome to Torrance comment.
Plaintiff arrested a suspect who was disturbing the peace on March 4, 2022.
During the arrest,
plaintiff used force against the suspect, who ultimately stabbed plaintiffs partner in the clavicle
area with a pen and struck plaintiff in the head.
Plaintiff was administratively investigated for his use of force during the arrest.
Defendant ultimately concluded that plaintiff should be given an educational reminder to be more thorough in his reports of use of force.
Plaintiff filed a personnel complaint against Chief Hart for inappropriate comments and social media posts on November 2, 2022.
Plaintiff alleges Torrance Police Department revived the Internal Affairs investigation against him after his complaint.
Plaintiff alleges defendants violated his rights under POBRA, including by failing to provide proper notice of the nature of the investigations, subjecting plaintiff to punitive action and/or threatening him with punitive action for exercising his rights under POBRA and placing comments adverse to his interest in his personnel file. Plaintiff also alleges that defendants committed whistleblower retaliation in response to his complaints about Chief Harts inappropriate comments and social media posts.
Special interrogatories
Defendant contends that Special Interrogatories, Nos. 47, 49, 54, 56, 58, 60, 62, 64, 67, 73, 84, 86, and 90 remain at issue because they do not implicate confidential peace officer personnel information and that plaintiffs Pitchess objections are without merit.
Defendant also argues that plaintiffs response to Nos. 60, 62, 64, 73, 84, 86, and 90 directing defendant to other documents is improper under CCP §2030.230 because the interrogatories do not necessitate the preparation or the making of a compilation, abstract, audit, or summary of or from.
In the opposition, plaintiff contends that the discovery requests were improperly served because they were sent via email although the parties had not stipulated to email service.
Plaintiff also argues that the motion was filed untimely on April 2, 2024.
In reply, defendant contends that its discovery requests were properly electronically served pursuant to CRC Rule 2.251(c).
Moreover, defendant argues, the motion was timely filed on April 2, 2024 because April 1 was a court holiday.
The Court finds that the request was properly served and that the motion was timely filed. The Court also finds that plaintiffs objections lack merit, including based on Pitchess.
The remaining special interrogatories at issue do not implicate Pitchess for the reasons argued by defendant.
Further, plaintiffs responses under CCP §2030.230 are improper.
The motion is thus GRANTED.
Requests for production of documents
Defendant asserts that Request for Production of Documents, Set One, Nos. 1-2, 5-7, 14-25, 27-37, 39-40, 42-43, 45-49, 51-53, 58, and 60 remain at issue.
Defendant argues that as to the remaining requests, plaintiff has failed to state whether plaintiff possesses additional documents that do not constitute protected police officer personnel records and information and has failed to produce any such non-Pitchess record documents, in compliance with CCP §2031.240.
Under CCP §2031.240, (a) If only part of an item or category of item in a demand for inspection, copying, testing, or sampling is objectionable, the response shall contain a statement of compliance, or a representation of inability to comply with respect to the remainder of that item or category.
Defendant argues that even if Pitchess applies to any responsive peace officer personnel records, plaintiff still has the ability to either identify and produce any non-personnel records and information, or state he cannot comply because he has no records.
Further, defendant asserts, the City is entitled to obtain documents within plaintiffs possession, custody, or control, irrespective of whether the City may already possess or have access to them, citing to CCP §2031.010.
Defendant further argues that plaintiffs objections that certain defined terms (communication, relate, and refer) are overly broad and ambiguous are without merit because none of the Citys requests utilize the defined term communication and only Request Nos. 54-60 include refer or relate, and such requests are limited in scope.
In opposition, plaintiff argues that a Pitchess motion was and is required as the requests seek personnel files.
Plaintiff also argues that the requests were improperly served via email and that the motion was untimely filed.
The Court finds that the requests were properly served, and the motion was timely filed.
The Court also finds that plaintiffs responses do not comply with CCP §2031.240 and that plaintiffs objections lack merit as to non-Pitchess documents.
The motion is GRANTED.
Sanctions
Under CCP § 2023.030(a), [t]he court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorneys fees, incurred by anyone as a result of that conduct. . . . If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.
Under CCP § 2023.010, an example of the misuse of the discovery process is (d) Failing to respond or to submit to an authorized method of discovery.
Sanctions are mandatory in connection with motions to compel further responses against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.
CCP § §2030.300(d), 2031.310(h).
Cal. Rules of Court, Rule 3.1348(a) states:
The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.
The Court denies each partys request for sanctions.
ORDER
The motions are GRANTED.
Plaintiff Martin Hutto is ordered to serve further responses to defendants Special Interrogatories, Set One, Nos. 47, 49, 54, 56, 58, 60, 62, 64, 67, 73, 84, 86, and 90 and to defendants Request for Production of Documents, Nos. 1-2, 5-7, 14-25, 27-37, 39-40, 42-43, 45-49, 51-53, 58, and 60 within twenty days.
Defendant is ordered to give notice of ruling.
Ruling
DAVIS TIVAS, ET AL. VS FRANK RODRIGUEZ GARCIA
Case Number:
21STCV05696
Hearing Date:
July 29, 2024
Dept:
29
Motions to Compel the Deposition of Plaintiffs filed by Defendant Frank Rodriguez Garcia.
Tentative
The motions are denied without prejudice.
Background
On February 16, 2021, Davis Tivas and Santos Tivas (collectively Plaintiffs) filed a complaint against Frank Rodriguez Garcia (Defendant) for negligence arising out of an automobile accident occurring on February 15, 2019.
On March 29, 2023, Defendant filed his answer.
On June 26, 2024, Defendant filed these motions to compel the deposition of Plaintiffs. Defendant also seeks sanctions.
No opposition has been filed.
Legal Standard
Any party may obtain discovery & by taking in California the oral deposition of any person, including any party to the action. (Code Civ. Proc., § 2025.010.) Code of Civil Procedure sections 2025.210 through 2025.280 provide the requirements for (among other things) what must be included in a deposition notice, when and where depositions may be taken, and how and when the notice must be served.
The service of a deposition notice & is effective to require any deponent who is a party to the action or an officer, director, managing agent, or employee of a party to attend and to testify, as well as to produce any document, electronically stored information, or tangible thing for inspection and copying. (
Id.
, § 2025.280, subd. (a).)
Section 2025.410, subdivision (a), requires any party to serve a written objection at least three days before the deposition if the party contends that a deposition notice does not comply with the provisions of sections 2025.210 through 2025.280.
Section 2025.450, subdivision (a), provides:
If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for¿inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponents attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.
Any such motion to compel must show good cause for the production of documents and, when a deponent has failed to appear, the motion must be accompanied by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance. (
Id.
, subd. (b).)
When a motion to compel is granted, the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (
Id.
, § 2025.450, subd. (g)(1).)
Discussion
Defendant served Plaintiffs with notices of their depositions, with both scheduled for June 18, 2024. (Holly Decls., ¶ 3 & Exhs. A.)
Defendant reached out prior to the deposition to confirm, but Plaintiff did not serve any objection and did not appear. (Id., ¶¶ 4-6.)
Defendant now moves for an order compelling Plaintiffs to attend their depositions. Defendant is certainly entitled to take Plaintiffs deposition under the Civil Discovery act, but to obtain a court order compelling the depositions, Defendant must comply with all statutory requirements. Here, Defendant has not done so. Specifically, Defendant presents no evidence that, following the nonappearances, he reached out to Plaintiff to inquire about the nonappearance. (Code Civ. Proc., § 2025.450, subd. (b).)
Accordingly, the motion is denied without prejudice.
Conclusion
The Court DENIES Defendants motion to compel the deposition of Plaintiffs without prejudice.
Moving party to give notice.
Ruling
WILLIAM FARMER, ET AL. VS LISA THELMA LONG
Jul 26, 2024 |
19BBCV00384
Case Number:
19BBCV00384
Hearing Date:
July 26, 2024
Dept:
NCB
Superior Court of California
County of Los Angeles
North Central
District
Department B
william farmer
,
et al.
,
Plaintiffs,
v.
lisa thelma long,
Defendant.
Case No.:
19BBCV00384
Hearing Date:
July 26, 2024
[
TENTATIVE] order RE:
motion for an order assigning defendants interest in earnings
BACKGROUND
A.
Allegations
Plaintiffs William Farmer and Jennifer Farmer (Plaintiffs) allege that on April 4, 2018, they entered into a written Promissory Note agreement with Defendant Lisa Thelma Long (Defendant).
Plaintiffs allege that on April 20, 2018, Defendant failed to repay the loan.
Plaintiffs allege that they suffered $50,000 plus interest at the legal rate of $10% since April 4, 2018.
The complaint, filed May 9, 2019, alleges causes of action for: (1) breach of contract; (2) common counts; and (3) fraud.
B.
Relevant Background
On September 10, 2019, the default of Defendant was entered.
On August 11, 2020, default judgment was entered against Defendant in the amount of $109,073.00.
On August 13, 2020, Plaintiffs filed a writ of execution (money judgment) for the amount of $109,157.76, which was returned and filed on August 14, 2020.
On January 7, 2021, Plaintiffs filed a writ of execution (money judgment) for the amount of $113,008.64.
On March 30, 2021, Plaintiffs filed an Abstract of Judgment.
On June 4, 2024, Plaintiffs filed a writ of execution (money judgment) for the amount of $150,267.46.
C.
Motion on Calendar
On June 21, 2024, Plaintiff filed a motion for an order assigning Defendants interest in earnings.
The Court is not in receipt of an opposition brief.
LEGAL STANDARD
CCP § 695.010(a) states:
Except as otherwise provided by law, all property of the judgment debtor is subject to enforcement of a money judgment.
CCP § 708.510 provides in relevant part:
(a) Except as otherwise provided by law, upon application of the judgment creditor on noticed motion, the court may order the
judgment debtor to assign to the judgment creditor
or to a receiver appointed pursuant to Article 7 (commencing with Section 708.610) all or part of a right to payment due or to become due, whether or not the right is conditioned on future developments, including but not limited to the following types of payments:
(1) Wages due from the federal government that are not subject to withholding under an earnings withholding order.
(2) Rents.
(3) Commissions.
(4) Royalties.
(5) Payments due from a patent or copyright.
(6) Insurance policy loan value.
(b) The
notice
of the motion shall be served on the judgment debtor. Service shall be made personally or by mail.
(c) Subject to subdivisions (d), (e), and (f), in determining whether to order an assignment or the amount of an assignment pursuant to subdivision (a), the court may take into consideratio
n all relevant factors
, including the following:
(1) The reasonable requirements of a judgment debtor who is a natural person and of persons supported in whole or in part by the judgment debtor.
(2) Payments the judgment debtor is required to make or that are deducted in satisfaction of other judgments and wage assignments
, including earnings assignment orders for support
.
(3) The amount remaining due on the money judgment.
(4) The amount being or to be received in satisfaction of the right to payment that may be assigned.
(d) A right to payment may be assigned pursuant to this article
only to the extent necessary to satisfy the money judgment.
(CCP § 708.510(a)-(d).)
When an application is made pursuant to Section 708.510 or thereafter, the judgment creditor may apply to the court for an order restraining the judgment debtor from assigning or otherwise disposing of the right to payment that is sought to be assigned. The application shall be made on noticed motion if the court so directs or a court rule so requires. Otherwise, it may be made ex parte.
(CCP § 708.520(a).)
The court may issue an order pursuant to this section upon a showing of need for the order. The court, in its discretion, may require the judgment creditor to provide an undertaking.
(CCP § 708.520(b).)
The court may modify or vacate the order at any time with or without a hearing on such terms as are just.
(CCP § 708.520(c).)
DISCUSSION
Plaintiffs/Judgment Creditors move for an assignment order against Defendant, assigning
Defendants interest in any earnings for acting and/or directing in any performance, whether television, movies, commercials, plays, or other forms of media and all payment thereunder, to Plaintiffs to the extent necessary to pay the judgment in full, including interest thereon.
Plaintiffs also seek an order restraining Defendant, any agent, employee, or attorney of Defendant, whether alone or in concert, from encumbering, assigning, disposing or spending her interest in the right to be assigned listed above.
In support of the motion, Plaintiffs provide the declaration of counsel Derek L. Tabone. Mr. Tabone states that nothing has been collected on the default judgment entered on August 14, 2020.
(Tabone Decl., ¶¶4-5.)
He states that the most recent writ of execution issued on June 4, 2024 is for the amount
of $150,267.46.
(
Id.
, ¶6.)
Counsel states that Defendant is, among other things, an actress who does work in commercials, movies, and television shows and her IMDB website shows that she has worked in multiple movies or television shows every year, as well as doing voice overs in over 170 commercials.
(
Id.
, ¶¶7-8, Ex. C.)
The website states that Defendant has 3 theatrical agents: Stewart Talent, Elev8, and Taylor Talent Services.
(
Id.
, ¶9.)
Plaintiffs seek an order assigning all of Defendants right to payment for her movie, television, and commercial work until Defendants judgment has been paid.
(
Id.
, ¶10.)
The Court considers the factors under CCP § 708.510(c).
First, Defendant is a natural person.
There is no information on whether she is supporting any other persons. As the motion is unopposed, Defendant has not provided any statements that she is supporting any other persons.
Second, it does not appear that Defendant has made any effort to make payments towards the judgment.
According to Mr. Tabone (Plaintiffs counsel), the judgment is still unpaid.
Plaintiffs have not indicated whether there are any other assignment orders or wage assignments, etc. and Defendant has not filed an opposition to provide such information.
Third, Plaintiffs argue that Defendant owes $150,267.46, based on the June 4, 2024 writ of execution.
Fourth, Plaintiffs seek an assignment of Defendants right to payment for her movie, television, and commercial work until Defendants judgment has been paid.
The approximate amount of how much Defendant is paid for her acting work is not provided.
Since the judgment has not been satisfied and the motion is not opposed, there are grounds to issue an assignment order pursuant to CCP § 708.510.
The Court hereby grants Plaintiffs request for assignment orders.
CONCLUSION AND ORDER
Plaintiffs William Farmer and Jennifer Farmers
motion for an order assigning
Defendant Lisa Thelma Longs interest in her earnings from her
movie, television, and commercial work is granted.
Defendant, as well as
any agent, employee, or attorney of Defendant, whether alone or in concert, shall be restrained from encumbering, assigning, disposing or spending her interest in the aforementioned earnings.
Plaintiffs shall give notice of this order.
DATED: July 26, 2024
___________________________
John Kralik
Judge of the Superior Court
Ruling
DAVID ODAY, ET AL. VS 118 WADSWORTH AVENUE HOMEOWNERS ASSOCIATION, ET AL.
Jul 29, 2024 |
23STCV24766
Case Number:
23STCV24766
Hearing Date:
July 29, 2024
Dept:
47
Tentative Ruling
Judge Theresa M. Traber, Department 47
HEARING DATE:
July 29, 2024
TRIAL DATE:
NOT SET
CASE:
David Oday, et al. v. 118 Wadsworth Avenue Homeowners Association, et al.
CASE NO.:
23STCV24766
MOTION TO DISSOLVE PRELIMINARY INJUNCTION
MOVING PARTY
: Defendant 118 Wadsworth Avenue Homeowners Association
RESPONDING PARTY(S)
: Plaintiffs David Oday and Lakota Patrick Ford
CASE HISTORY
:
·
10/11/23: Complaint filed.
·
01/10/24: First Amended Complaint filed.
·
03/01/24: Cross-Complaint filed.
STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:
This is a breach of contract and habitability defect action. Plaintiffs allege that Defendants refused to replace the roof of Plaintiffs condominium, causing extensive water damage and mold throughout the unit. Plaintiffs allege that Defendants improperly issued special assessments in violation of the operative covenants, conditions, and restrictions on the property, and retaliated against Plaintiffs for raising these issues.
Defendant 118 Wadsworth Avenue Homeowners Association moves to dissolve the preliminary injunction entered on February 22, 2024 because of Plaintiffs failure to post the bond required.
TENTATIVE RULING:
Defendants Motion to Dissolve Preliminary Injunction is DENIED, as Plaintiff David Oday has served and filed an agreement authorizing the deposit to be applied to enforce the liability of the principal, pursuant to Code of Civil Procedure section 995.710(c).
DISCUSSION:
Defendant 118 Wadsworth Avenue Homeowners Association moves to dissolve the preliminary injunction entered on February 22, 2024 because of Plaintiffs failure to post the bond required.
Legal Standard
Code of Civil Procedure section 533 states:
In any action, the court may on notice modify or dissolve an injunction or temporary restraining order upon a showing that there has been a material change in the facts upon which the injunction or temporary restraining order was granted, that the law upon which the injunction or temporary restraining order was granted has changed, or that the ends of justice would be served by the modification or dissolution of the injunction or temporary restraining order.
(Code Civ. Proc. § 533.) Modification of a preliminary injunction rests in the sound discretion of the trial court upon a consideration of all the particular circumstances of each individual case. (
Union Interchange, Inc. v. Savage
(1959) 52 Cal.2d 601, 606.) The party seeking modification has the burden of proving that the request is justified. (See
Loeffler v. Medina
(2009) 174 Cal.App.4th 1495, 1504.)
Analysis
Defendant 118 Wadsworth Avenue Homeowners Association moves to dissolve the preliminary injunction entered on February 22, 2024 on the grounds that Plaintiffs failed to post the undertaking of $70,416.09 ordered by the Court. (See February 22, 2024 Minute Order.)
Plaintiffs, in opposition, state that payment in the amount specified by the Courts order was deposited with the Court on June 26, 2024, with notice given to Defendant the next day. (Declaration of Scott J. Kalter ISO Opp. Exhs. 1-2.) In reply, Defendant contends that Plaintiffs deposit of the funds to the Court is effective as a posting of a bond under Code of Civil Procedure section 995.710, but only if the deposit is accompanied by an agreement executed by the principal authorizing the officer to collect, sell, or otherwise apply the deposit to enforce the liability of the principal on the deposit. (Code Civ. Proc. § 995.710(c).) Defendant contends that Plaintiffs have not executed such an agreement, and, therefore, that the injunction should be dissolved.
The Court concurs with Defendant that an authorization to dispose of the funds to satisfy liability is required for Plaintiffs deposit to be considered posting of the bond under section 995.710. In response to the Courts prior tentative ruling, Plaintiff David Patrick Oday has submitted an agreement authorizing the deposit to be applied to enforce the liability of the principal, pursuant to Code of Civil Procedure section 995.710(c). Accordingly, the Court will deny the motion to dissolve the preliminary injunction.
CONCLUSION
:
Accordingly, Defendants Motion to Dissolve Preliminary Injunction is DENIED given that Plaintiff David Patrick Oday has served and filed an agreement authorizing the deposit to be applied to enforce the liability of the principal, pursuant to Code of Civil Procedure section 995.710(c).
Moving party to give notice.
IT IS SO ORDERED.
Dated: July 29, 2024 ___________________________________
Theresa M. Traber
Judge of the Superior Court
Any party may submit on the tentative ruling by contacting the courtroom via email at
Smcdept47@lacourt.org
by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.
Ruling
SIRANUSH AKLYAN, ET AL. VS STATE OF CALIFORNIA, ET AL.
Jul 26, 2024 |
23BBCV01986
Case Number:
23BBCV01986
Hearing Date:
July 26, 2024
Dept:
NCB
Superior Court of California
County of Los Angeles
North Central
District
Department B
siranush aklyan
,
et al.
,
Plaintiffs,
v.
state of california,
et al.
,
Defendants.
Case No.:
23BBCV01986
Hearing Date:
July 26, 2024
[
TENTATIVE] order RE:
motion to strike
BACKGROUND
A.
Allegations
Plaintiffs Siranush Aklyan, Aper G. Agakhanian, Grigor Choginyan, and Lena Ananyan (Plaintiffs) allege that on February 25, 2023 at approximately 1:30 a.m., Siranush Aklyan was operating her vehicle in the number 1 of 5 lanes on the I-5 northbound freeway.
Aper G. Agakhanian, Grigor Choginyan, and Lena Ananyan were passengers int the vehicle.
Plaintiffs allege that they became trapped underwater following a heavy rainfall on the Golden State I-5 freeway.
Plaintiffs allege that a vehicle
maneuvering the number two (2) lane initiated the passage adjacent to their vehicle, precipitating the generation of a wave, thereby inducing a hydrodynamic disturbance. This perturbation induced an unintended rotational motion of the Plaintiffs' vehicle in a counter-directional manner, leading to its eventual submersion. In a bid to evacuate the vehicle, the Plaintiffs made several unsuccessful attempts to unlatch the doors due to the exerted hydrostatic pressure, rendering them inoperable. Subsequently, the Plaintiffs successfully extricated themselves from the vehicle by manipulating one of the windows and effecting their exit through said window.
(Compl., ¶7.)
Plaintiffs allege that the roadway was dangerous for drivers as the surface had insufficient traction and friction, had improper grooving and treatment of the pavement, used improper materials in the design/construction/maintenance/repair of the roadway, etc.
Plaintiffs allege that Defendants State of California and Caltrans District 7 owned, occupied, leased, used, regulated, controlled, managed, maintained, operated, supervised, repaired, and possessed the portion of the freeway at issue.
The complaint, filed August 25, 2023, alleges causes of action for: (1) statutory liability/dangerous condition of public property; and (2) negligence.
B.
Motion on Calendar
On June 14, 2024, Defendant the People of the State of California, acting by and through the Department of Transportation (Defendant) (erroneously named as State of California and Caltrans District 7) filed a motion to strike portions of the complaint.
On July 15, 2024, Plaintiffs filed an opposition brief.
On July 24, 2024, Defendant filed a reply brief.
DISCUSSION
Defendant moves to strike portions of the complaint at paragraph 24 (page 9, line 5).
The specific language includes references to Government Code, §§ 815.2(a), 820(a), and 840.2.
They argue that they do not dispute that Plaintiffs properly plead a cause of action for dangerous condition of public property, but that the allegations for vicarious liability and negligence by referencing the aforementioned sections is improper.
(Reply at p.5.)
First, Defendant argues that sections 815.2(a) and 820(a) regarding vicarious liability are improper.
Government Code, § 815.2(a) states:
A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative.
Government Code, § 820(a) states:
Except as otherwise provided by statute (including Section 820.2), a public employee is liable for injury caused by his act or omission to the same extent as a private person.
Defendant argues that Plaintiffs have not specifically identified any employee of Defendant for which Defendant could be vicariously liable and that, even if Plaintiffs were able to identify employees, its employees are immune such that Defendant cannot be vicariously liable.
Defendant cites to
Yee v. Superior Court
(2019) 31 Cal.App.5th 26, 40:
A public entity cannot be held vicariously liable for actions of its employees that are actually acts of the entity itself, albeit performed by necessity by employees or agents. Vicarious liability depends on the employee being independently liable for the act, the entity becoming liable because the employee's act was taken within the scope of his or her employment.
(
Yee
, supra, 31 Cal.App.5th at 40.)
Defendant argues that a claim for dangerous condition of public property can only lie pursuant to Government Code, §§ 830 to 835.4.
Second,
Defendant argues that section 840.2 for direct employee liability does not govern dangerous conditions of public property actions.
Government Code, § 840.2 states:
An employee of a public entity is liable for injury caused by a dangerous condition of public property if the plaintiff establishes that the property of the public entity was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either:
(a) The dangerous condition was directly attributable wholly or in substantial part to a negligent or wrongful act of the employee and the employee had the authority and the funds and other means immediately available to take alternative action which would not have created the dangerous condition; or
(b) The employee had the authority and it was his responsibility to take adequate measures to protect against the dangerous condition at the expense of the public entity and the funds and other means for doing so were immediately available to him, and he had actual or constructive notice of the dangerous condition under Section 840.4 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.
(Govt Code, § 840.2.)
Again, Defendant argues that Plaintiffs have not identified any specific individual against whom a section 840.2 claim could be brought.
Plaintiffs argue that they are not required to plead the name of the specific individuals prior to undergoing discovery.
Plaintiffs rely on
C.A. v. William S. Hart Union High School Dist.
(2012) 53 Cal.4th 861, 872, wherein
the California Supreme Court stated:
The complaint, it is true, does not identify by name or position the District's employees, administrators and/or agents who allegedly failed to properly hire, train and supervise Hubbell. But the District cites no statute or decision requiring a plaintiff to specify
at the pleading stage
which of the defendant's employees committed the negligent acts or omissions for which a public entity is allegedly liable under section 815.2. To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff's proof need not be alleged. [Citation.]
(
C.A.
, supra, 53 Cal.4th at 872; see
Perez v. City of Huntington Park
(1992) 7 Cal.App.4th 817, 820821 [
The plaintiff may be unable to identify which employee committed the wrongful act, but this is not fatal to the employer's liability, if the evidence establishes that some employee in the scope of employment committed the wrongful act.].)
Although the complaint does not name specific individuals who were employed by Defendant, the complaint alleges that Defendant and Does 1-100 knew of the dangerous and defective conditions of the roadway, knew that the plan or design of the roadway had become dangerous due to the change in the conditions of the roadway, failed to warn drivers or take other actions, etc.
(Compl., ¶¶14-19.)
Plaintiffs allege that the dangerous conditions and acts/omissions of Defendant and Does 1-100 and their management, administrators, designers, planners, engineers, maintenance personnel, inspectors, and/or other employees, staff, agents, or contractors were done within the course and scope of their duties.
(
Id.
, ¶21.)
At this time, the Court will not preemptively strike references to section 815.2(a) and 820 for vicarious liability as there may be a basis for independent liability against Defendants employee(s) and their actions that were undertaken during the scope of their employment.
The Court finds that the allegations are sufficiently particular for the cause of action to go forward.
Similarly, section 840.2 is for direct liability against an employee of a public entity for a dangerous condition of public property.
Whether Plaintiff is able to discover the names of such employees later, amend the Doe designations, and prove this will have to be determined beyond the pleading stage.
As currently alleged, Plaintiffs have alleged sufficient facts against Defendant and specifically alleged the code sections that are at issue in this action; the identity of the particular individuals employed by Defendant is better left to be determined during the discovery process.
Finally, Defendant argues that public employees are immune from discretionary acts under Government Code, § 820.2, such that it cannot be vicariously liable for the actions or inactions of its employees.
Section 820.2 states:
Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.
While such an exception may exist, at this time, the Court will not prematurely determine if the exception applies to the facts of this case based on the pleadings alone.
Again, this is better addressed upon the consideration of evidence at the motion for summary judgment or trial stage.
The motion to strike is overruled.
CONCLUSION AND ORDER
Defendant the People of the State of California, acting by and through the Department of Transportations motion to strike is overruled.
Defendant is ordered to answer.
Defendant shall give notice of this order.
DATED: July 26, 2024
___________________________
John Kralik
Judge of the Superior Court
Ruling
24SMCP00171
Jul 25, 2024 |
24SMCP00171
Case Number:
24SMCP00171
Hearing Date:
July 25, 2024
Dept:
207 TENTATIVE RULING
DEPARTMENT
207
HEARING DATE
June 13, 2024, continued to July 25, 2024
CASE NUMBER
24SMCP00171
MOTION
Motion to Compel Arbitration
MOVING
PARTY
Petitioner Wasser, Cooper & Mandles P.C.
OPPOSING PARTY
(none)
BACKGROUND
Petitioner Wasser, Cooperman & Mandles P.C. (Petitioner) moves to compel Respondent Shazeen Shah (Respondent) to arbitration regarding a dispute over legal fees incurred in connection with Petitioners provision of legal services to Respondent in the matter, Marriage of Shah/Aschinger.
(Verified Petition at ¶ 1; Ex. A.)
The petition is unopposed.
MOTION TO COMPEL ARBITRATION LEGAL STANDARDS
[T]he advantages of arbitration include a presumptively less costly, more expeditious manner of resolving disputes.
It follows a party to a valid arbitration agreement has a contractual right to have its dispute with another party to the contract resolved quickly and inexpensively.
(
Henry v. Alcove Investment, Inc
. (1991) 233 Cal.App.3d 94, 99100 [cleaned up].)
Thus, on petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party to the agreement refuses to arbitrate that controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists.
(Code Civ. Proc., § 1281.2; see also
EFund Capital Partners v. Pless
(2007) 150 Cal.App.4th 1311, 1320 [the language in section 1281.2 compelling arbitration is mandatory].)
The right to compel arbitration exists unless the court finds that the right has been waived by a partys conduct, other grounds exist for revocation of the agreement, or where a pending court action arising out of the same transaction creates the possibility of conflicting rulings on a common issue of law or fact.
(Code Civ. Proc., § 1281.2, subds. (a)-(c).)
On a petition to compel arbitration, the trial court must first determine whether an agreement to arbitrate the controversy exists.
Because the existence of the agreement is a statutory prerequisite to granting the petition, the petitioner bears the burden of proving its existence by a preponderance of the evidence.
The party seeking arbitration can meet its initial burden by attaching to the petition a copy of the arbitration agreement purporting to bear the respondent's signature.
(
Bannister v. Marinidence Opco, LLC
(2021) 64 Cal.App.5th 541, 543-544 [cleaned up].)
The party seeking to compel arbitration must also plead and prove a prior demand for arbitration and a refusal to arbitrate under the agreement.
(
Mansouri v. Superior Court
(2010) 181 Cal.App.4th 633, 640-641.)
And while the moving party on a motion to compel arbitration bears the burden of proving the existence of a valid arbitration agreement by a preponderance of the evidence, [a] party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense. The trial court sits as the trier of fact, weighing all the affidavits, declarations, and other documentary evidence, and any oral testimony the court may receive at its discretion, to reach a final determination.
(
Ruiz v. Moss Bros. Auto Group, Inc.
(2014) 232 Cal.App.4th 836, 842 [cleaned up]; see also
Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC
(2012) 55 Cal.4th 223, 236 [The party seeking arbitration bears the burden of proving the existence of an arbitration agreement, and the party opposing arbitration bears the burden of proving any defense, such as unconscionability].)
ANALYSIS
As a threshold matter, [a] petition to compel arbitration is in essence a suit in equity to compel specific performance of a contract.
(
Frog Creek Partners, LLC v. Vance Brown, Inc.
(2012) 206 Cal.App.4th 515, 532.)
As such, a courts personal jurisdiction over the respondent requires compliance with the same service rules that apply for service of a summons and complaint in any other lawsuit.
(
Frey & Hogan Corp. v. Superior Court in and for City and County of San Francisco
(1936) 5 Cal.2d. 401, 403-404.)
Moreover, due process requires that a respondent be given written notice of the moving and supporting papers at least sixteen court days before the hearing.
(Code Civ. Proc., § 1005, subd. (b).)
Here, there is no proof of service indicating that the original Petition to Compel arbitration was ever served on Respondent in a manner that would give the Court personal jurisdiction to hear the matter.
Further, there is no proof of service indicating that the notice of the hearing was ever served on Respondent.
The Court continued the hearing to allow Petitioner to file a proof of service, but no proof of service has yet been filed.
The Court acknowledges that a Notice of Continuance was filed on June 14, 2024, but no proof of service attached to that notice.
CONCLUSION AND ORDER
Because the Court finds no proof of service demonstrating that Respondent was notified about this lawsuit or was given proper notice of the hearing, the Court denies without prejudice the Petition to Compel Arbitration.
Further, the Court continues that Case Management Conference to January 23, 2025 at 8:30 A.M. in Department 207.
Petitioner shall provide notice of the Courts order and file the notice with a proof of service forthwith.
DATED:
July 25, 2024
___________________________
Michael E. Whitaker
Judge of the Superior Court
Ruling
JERRY JAMGOTCHIAN, ET AL. VS COASTAL LAUNDROMAT, INC., ET AL.
Aug 01, 2024 |
23STCV31285
Case Number:
23STCV31285
Hearing Date:
August 1, 2024
Dept:
20
Tentative Ruling
Judge Kevin C. Brazile
Department 20
Hearing Date:
August 1, 2024
Case Name:
Jamgotchian, et al. v. Coastal Laundromat, Inc., et al.
Case No.:
23STCV31285
Matter:
Anti-SLAPP Motion
Moving Party:
Defendants Coastal, Bruce Nye, and Sonja Nye
Responding Party:
Unopposed
Notice:
OK
Ruling:
The Anti-SLAPP Motion is granted.
Coastal to give notice.
If counsel do not submit on the tentative, they are strongly
encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.
In case no. BC674357, on February 7, 2023, a jury entered verdicts in favor of Plaintiffs DONE! Ventures, LLC (Done!) and Coastal Laundromat, Inc. (Coastal), and against Defendants Jerry Jamgotchian, El Segundo Plaza Associates L.P. (ESPA), and Theta Holding IV, Inc. (Theta) for Plaintiffs claims for interference with contract, negligent interference with prospective economic advantage, and breach of contract.
On May 8, 2023, the Court entered a judgment on the verdict.
On July 12, 2023, the Court ruled on a motion for new trial/JNOV, stating that the amount of punitive damages awarded by the jury was improper and that Coastal was either to stipulate to $525,000 or else the Court would grant a new trial only as to the amount of punitive damages. Coastal stipulated to taking less punitive damages.
On September 5, 2023, the Court ruled on Coastals motion for attorneys fees and prejudgment interest. Prejudgment interest was rejected, but the Court awarded
$357,673 in fees.
On February 6, 2024, the Court entered a final ruling denying Defendants motion to tax costs with respect to Done!. That ruling also rejected prejudgment interest for Done!.
On February 27, 2024, the Court entered an amended judgment, which reduced the amount of punitive damages to be obtained by Done! and indicated the amount of fees, costs, and prejudgment interest to be awarded as discussed above.
On March 27, 2024, the Court denied Defendants request to amend the February 27, 2024, judgment as follows: (1) amend title of the Courts February 27, 2024, judgment to read Final Judgment and not its current incorrect and misleading title, Amended Judgment, (2) Amend the date of the Courts award of post-judgment interest from May 8, 2023 (date of the Courts interim, non-final jury verdict judgment) to the date of final judgment, or February 27, 2024 (the date the Court signed final judgment in this case, erroneously entitled Amended Judgment, as above), as the May 8, 2023 interim judgment is void and no longer has any force and effect by operation of law. The Court also denied Defendants request to quash all outstanding levies issued under the Courts interim - and now void and unenforceable - May 8, 2023 jury verdict judgment.
On December 12, 2023, Jamgotchian, ESPA, and Theta filed the instant case, case no. 23STCV31285, against Coastal, Bruce Nye, and Sonja Nye for (1) slander of title, (2) quiet title, (3) defamation, (4) libel per se, (5) intentional interference with contractual relations, and (6) negligent interference with contractual relations. Essentially, Jamgotchian and his entities have now elevated their contentions about a premature judgment to separate lawsuits. The basis for all of their claims is that the judgment lien from BC674357 was invalid and premature, which has been rejected by the Court multiple times.
On February 27, 2024, Jamgotchian, ESPA, and Theta filed case no. 24STCV05004 against Done! for (1) slander of title, (2) quiet title, (3) defamation, (4) libel per se, (5) intentional interference with contractual relations, and (6) negligent interference with contractual relations.
On June 14, 2024, the Court related case nos. BC674357, 23STCV31285, and 24STCV05004.
Coastal and the Nyes now assert an Anti-SLAPP Motion or Special Motion to Strike the entirety of the Complaint pursuant to Code Civ. Proc. § 425.16.
Jamgotchian and his entities did not file an opposition.
Code of Civil Procedure section 425.16 sets forth the procedure governing anti-SLAPP motions. In pertinent part, the statute states, A cause of action against a person arising from any act of that person in furtherance of the persons right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim. (Code Civ. Proc. § 425.16(b)(1).) The purpose of the statute is to identify and dispose of lawsuits brought to chill the valid exercise of a litigants constitutional right of petition or free speech. (Code Civ. Proc. § 425.16(a);
Sylmar Air Conditioning v. Pueblo Contracting Services, Inc.
(2004) 122 Cal.App.4th 1049, 1055-1056.)
Courts employ a two-step process to evaluate anti-SLAPP motions. (
Equilon Enterprises v. Consumer Cause, Inc.
(2002) 29 Cal.4th 53, 61.) To invoke the protections of the statute, the defendant must first show that the challenged lawsuit arises from protected activity, such as an act in furtherance of the right of petition or free speech. (
Ibid
.) From this fact, courts presume the purpose of the action was to chill the defendants exercise of First Amendment rights. It is then up to the plaintiff to rebut the presumption by showing a reasonable probability of success on the merits. (
Ibid
.) In determining whether the plaintiff has carried this burden, the trial court considers the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based. (Code Civ. Proc. § 425.16(b)(2); see
Soukup v. Law Offices of Herbert Hafif
(2006) 39 Cal.4th 260, 291 (
Soukup
).)
Protected Activity
To meet their burden for the first prong of the anti-SLAPP analysis, Defendants must demonstrate that the Complaints causes of action arise from protected activity. That is, it must be that defendants conduct by which plaintiff claims to have been injured falls within one of the four categories described in subdivision (e) . . . the act underlying the plaintiffs cause or the at which forms the basis for the plaintiffs cause of action must itself have been an act in furtherance of the right of petition or free speech. (
Equilon Enterprises v. Consumer Cause, Inc.
(2002) 29 Cal.4th 53, 63 (internal citations omitted).)
An act in furtherance of a persons right of petition or free speech under the United States or California Constitution in connection with a public issue includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest. (Code Civ. Proc. § 425.16(e).)
Here, all causes of action are premised on the enforcement proceedings in BC674357. Indeed, the Complaint states: Defendants actions in failing and refusing to withdraw, vacate and/or remove their premature and void Judgment Lien and Abstract(s) of Judgment are, were and continue to be made in bad faith and with specific malicious intention to harm and injure Plaintiffs, as they are knowingly made and maintained without any basis in law and in knowing violation of the Courts September 8, 2023 Minute Order. To date, Defendants have failed and refused to remove their premature and void Judgment Lien and/or Abstract(s) of Judgment and therefore is/are baseless, wrongful and financially damaging to Plaintiffs, and each of them. (Compl. ¶¶ 21-22.)
The actions taken to enforce the judgment in BC674357, particularly the filing of abstracts of judgment, are protected activity within the meaning of Code Civ. Proc. § 425.16(e)(1)-(2). (See, e.g.,
O'Neil-Rosales v. Citibank (S. Dakota) N.A.
(2017) 11 Cal.App.5th Supp. 1, 6. [
privileged or not, defendants acts of obtaining an abstract of judgment and recording it as a real property lien fell within the categories of section 425.16, subdivision (e).
Rusheen v. Cohen
,
supra
, 37 Cal.4th at p. 1056, 39 Cal.Rptr.3d 516, 128 P.3d 713 [ Any act includes communicative conduct such as the filing, funding, and prosecution of a civil action].)].)
Furthermore, the equitable claims at issue essentially challenge the force and effect of the judgment in BC674357, and this undoubtedly relates to protected petitioning activity. (See, e.g.,
Weeden v. Hoffman
(2021) 70 Cal.App.5th 269, 28687 [paragraphs 33, 38, and 45 set forth what Hoffman is alleged to have done that gives rise to the quiet title, cancellation of instrument, and slander of title causes of action; each of those paragraphs complains about Hoffman's recording of the 2018 Abstract of Judgment . . . . Hoffman has demonstrated that the conduct about which the Weedens complain . . . is Hoffman's conduct in obtaining and recording the 2018 Abstract of Judgment, which the Weedens concede is protected activity under Code of Civil Procedure section 425.16, subdivision (e)(2).].)
The Court concludes that Defendants have carried their burden to show that the Complaint arises from protected activity under CCP § 425.16(e)(1)-(2).
Minimal Merit
On the second component of the analysis, courts employ a summary-judgment-like procedure, accepting as true the evidence favorable to the plaintiff and evaluating the defendants evidence only to determine whether the defendant has defeated the plaintiffs evidence as a matter of law. (
Gerbosi v. Gaims, Weil, West & Epstein, LLP
(2011) 193 Cal.App.4th 435, 444.) In other words, the Court does not assess credibility, and the plaintiff is not required to meet the preponderance of the evidence standard. The Court accepts as true the evidence favorable to the plaintiff, who need only establish that his or her claim has minimal merit to avoid being stricken as a SLAPP. (
Soukup
, supra, 39 Cal.4th at p. 291.)
Here, the subject causes of action are premised on the assertion that the judgment lien arising from BC674357 was invalid because it was based on a premature judgment. This has been rejected at least a half-dozen times in BC674357. Jamgotchian and his entities are well aware of this Courts reasoning and can refer to the rulings in BC674357, all of which are incorporated herein by reference. Based on these rulings, the Court concludes that there is no possibility of Jamgotchian and his entities prevailing herein and that there are no triable issues of fact.
Thus, the Anti-SLAPP Motion is granted. The entirety of the Complaint is stricken.
The Request for Judicial Notice is granted.
Coastal to give notice.
If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.
Document
VALARIE ZAYAS VS CITY OF LOS ANGELES, ET AL.
Feb 03, 2023 |
Kerry R. Bensinger
|
Premise Liability (e.g., dangerous conditions of property, slip/trip and fall, dog attack, etc.) (General Jurisdiction) |
Premise Liability (e.g., dangerous conditions of property, slip/trip and fall, dog attack, etc.) (General Jurisdiction) |
23STCV02454
Preview
Electronically FILED by Superior Court of California, County of Los Angeles David Alami (State Bar No. 314628) 7/05/2024 5:09 PM david@torusllp.com David W. Slayton, Executive Officer/Clerk of Court, Daniel J. Hyun (State Bar No. 309184) By S. Ruiz, Deputy Clerk daniel@torusllp.com TORUS LLP 2 Park Plaza, Suite 1260 Irvine, California 92614 Telephone: (949) 590-4122 Facsimile: (949) 528-2596 Attorneys for Plaintiff JESUS SIERRA GANDARILLA SUPERIOR COURT OF CALIFORNIA COUNTY OF LOS ANGELES 10 JESUS SIERRA GANDARILLA, individually Case No. 245T C¥Y167F2 and on behalf of other aggrieved employees and the State of California, INDIVIDUAL AND REPRESENTATIVE 11 ACTION COMPLAINT FOR: 12 Plaintiff, 1 Failure to Pay All Wages; 13 VS. 2 Failure to Provide Meal Periods or Compensation; LARGO CONCRETE, INC.; and DOES 1 Failure to Permit Rest Periods or Provide 14 through 50, inclusive, Compensation; Failure to Provide Accurate Itemized 15 Defendants. Wage Statements; Waiting Time Penalties; 16 Failure to Reimburse Business Expenses; Violation of the Unfair Competition Law: .3] 17 and Violation of the Private Attorneys 18 General Act of 2004 19 DEMAND FOR JURY TRIAL 20 21 22 23 24 25 26 27 28 -l- COMPLAINT Plaintiff JESUS SIERRA GANDARILLA (‘Plaintiff’), individually and on behalf of other aggrieved employees and the State of California, hereby brings this Complaint (“Complaint”) against Defendants LARGO CONCRETE, Inc. and DOES 1 through 50, inclusive (collectively “Defendants”), and alleges as follows: INTRODUCTION 1 Plaintiff brings this individual action brought on behalf of himself against Defendants during the Liability Period defined as four (4) years and 178 days prior to the filing of this action through the date of resolution, inclusive of any period of time in which the applicable statutes of limitation were tolled between April 6, 2020 and October 1, 2020, pursuant to the California Rules of 10 Court, Appendix I, Emergency Rule 9. Plaintiff, individually, seeks on behalf of himself, inter alia, 11 unpaid wages, meal and rest period premiums, reimbursements, statutory penalties, attorneys’ fees, 12 costs, interest, and treble damages for the following alleged violations by Defendants: (1) failure to 13 pay all wages; (2) failure to provide meal periods; (3) failure to provide rest periods; (4) failure to 14 provide accurate itemized wage statements; (5) failure to timely pay all wages due upon separation of 15 employment; (6) failure to reimburse business expenses; and (7) unfair business practices. 16 2. Plaintiff also brings this representative action pursuant to the Private Attorneys General 17 Act of 2004, Labor Code Sections 2698, et seq. (“PAGA”), on behalf of himself and all current and 18 former employees of Defendants employed in California during the PAGA Period (collectively the 19 “Aggrieved Employees”). The term PAGA Period is defined as one (1) year prior to the submission 20 of Plaintiff's notice of Labor Code violations to the Labor and Workforce Development Agency 21 (“LWDA”) and certified mail to Defendants until resolution. 22 3 Plaintiff's representative PAGA action is brought under, inter alia, the California 23 Industrial Welfare Commission (“IWC”) Wage Orders and applicable provisions of the California 24 Code of Regulations, California Code of Civil Procedure Section 1021.5, and California Labor Code 25 Sections 201, 202, 203, 204, 206, 210, 221, 223, 226, 226.3, 226.7, 227.3, 233, 234, 246, 510, 511, 26 512, 558, 558.1, 1171, 1174, 1174, 1174.5, 1811, 1815, 1194, 1194.2, 1197, 1197.1, 1197.5, 1198, 27 1199, 1199.5, 2800 and 2802. Plaintiff brings this representative action seeking monetary relief against 28 Defendants on behalf of himself and other Aggrieved Employees to recover, among other things, -2- COMPLAINT penalties, attorneys’ fees, and costs pursuant to Labor Code Sections 2698, et seq. 4 Plaintiff is informed and believes, and thereon alleges, that LARGO CONCRETE, INC. is a California corporation and structural concrete and general contractor. 5 Plaintiff and the Aggrieved Employees were employed by Defendants and performed work for Defendants throughout California. 6 Through this action, Plaintiff is alleging that Defendants have engaged in a systematic pattern of wage and hour violations under the California Labor Code (“Labor Code”). JURISDICTION AND VENUE 7 This Court has jurisdiction over all causes of action asserted herein pursuant to the 10 California Constitution, Article VI, Section 10, which grants the Superior Court original jurisdiction 11 in all cases except those given to other trial courts. All claims alleged herein arise under California 12 law for which Plaintiff seeks relief authorized by California law. Further, this is a representative 13 PAGA action and the monetary damages, restitution, penalties, and other amounts sought by Plaintiff 14 exceeds the minimal jurisdictional limits of the Superior Court and will be established according to 15 proof at trial. 16 8 This Court has jurisdiction over all Defendants because each Defendant is a citizen of 17 California, a corporation or association organized under the laws of the State of California, an 18 association authorized to do business in California and registered with the California Secretary of 19 State, does sufficient business in California, has sufficient minimum contacts with California, and/or 20 intentionally avails itself of the laws and markets of California through the promotion, sale, marketing 21 and distribution of its products and/or services in California to render the exercise of jurisdiction by 22 the California courts permissible. In addition, PAGA penalties cannot be aggregated to meet the 23 jurisdictional threshold for diversity jurisdiction in federal court. 24 9. Venue in Los Angeles County is proper under California Business & Professions Code 25 Section 17203 and California Code of Civil Procedure Section 395.5 because a substantial part of 26 Defendants’ unlawful conduct, acts, and omissions alleged herein occurred in this County, Defendants 27 had and have ongoing projects in this County, Defendants conduct substantial business in this County, 28 Defendants’ liability arose in this County, and/or Defendants reside, transact business, maintain -3- COMPLAINT offices, and/or have an agent or agents in this county. The relief requested is within the jurisdiction of this Court. PARTIES 10. Plaintiffis a California citizen and resides in California. Defendants employed Plaintiff as a non-exempt employee during the Liability Period and his employment with Defendants ended within one (1) year of the filing of this action. Plaintiff's job duties included, but were not limited to, building walls, planning and preparing flooring, and other construction duties. ll. Plaintiff is informed, believes and thereon alleges that, at all relevant times Defendant LARGO CONCRETE, INC. (“LARGO”) was and is a structural concrete and general contractor. 10 LARGO is and was a California corporation. Plaintiff is informed, believes, and thereon alleges that 11 LARGO employs 100 or more non-exempt employees at a single location and/or 300 or more non- 12 exempt employees at multiple locations during the relevant liability periods. Plaintiff is informed, 13 believes and thereon alleges that LARGO operates in California with locations in Los Angeles, Orange 14 County, San Luis Obispo, Campbell and San Diego, California. Plaintiff is further informed, believes 15 and thereon alleges that, at all relevant times, LARGO regularly conducted and conducts business 16 within the State of California and derives substantial revenues from services performed in California. 17 Plaintiff is informed, believes and thereon alleges that, at all relevant times, LARGO was and is an 18 employer subject to California state wage and hour laws. 19 12. Plaintiff is informed, believes and thereon alleges that, at all relevant times that 20 Defendants operated a single enterprise and demonstrated a unity of interest and ownership. 21 13. Defendants continue to employ non-exempt employees within California. 22 14. Plaintiff is unaware of the true names and capacities of those Defendants identified as 23 DOES | through 50. Therefore, Plaintiff identifies those Defendants fictitiously. Plaintiff is informed 24 and believes, and thereon alleges that at all relevant times each DOE Defendant was a parent, sister, 25 or related corporate entity of Defendants, or an owner, employee or agent of Defendants, and each 26 related entity, and was acting with the knowledge and authorization of each of the other Defendants. 27 Plaintiff will seek to amend this Complaint to allege the true names and capacities of each DOE 28 Defendant when their names have been ascertained and identified. Plaintiffis informed and believes, -4- COMPLAINT and thereon alleges that each of the Defendants sued as DOES 1 through 50 participated in, received the benefit of, or was in some way responsible for one or more of the wrongful acts and omissions and some portion of the damages alleged herein. 15. Plaintiff is informed and believes, and thereon alleges that at all times material hereto, each Defendant acted in all respects pertinent to this action as the agent of the other Defendant, carried out a joint scheme, business plan or policy in all respects pertinent hereto, and the acts of each Defendant are legally attributable to the other Defendant. Furthermore, Defendants in all respects acted as the employer and/or joint employer of Plaintiff and the Aggrieved Employees. 16. Plaintiff is informed and believes, and thereon alleges that Defendants, each and all of 10 them, at all times material hereto, were the joint employers, parent companies, successor companies, 11 predecessors in interest, affiliates, agents, employees, servants, joint venturers, directors, fiduciaries, 12 representatives, and/or co-conspirators of each of the remaining Defendants. Defendants, unless 13 otherwise alleged, at all times material hereto, performed all acts and omissions alleged herein within 14 the course and scope of said relationship(s), and are a proximate cause of Plaintiff's damages as herein 15 alleged. 16 17. Plaintiff is informed and believes, and thereon alleges, that there exists a unity of 17 interest in ownership between Defendants and DOES | through 50, inclusive, such that any 18 individuality and separateness between the individual and the corporation does not exist, as 19 Defendants, and DOES 1 through 50, inclusive, are alter egos, in that: (1) Defendants are and at all 20 times mentioned herein were mere shells, instrumentalities and conduits through which DOES 1 21 through 50, inclusive, carried out their business in the business name, exercising complete control and 22 dominance over such business; (2) that Defendants were conceived, intended and used by DOES 1 23 through 50, inclusive, as devices to avoid individual liability and in place of Defendants, and DOES 1 24 through 50, inclusive, and were without the financial solvency and responsibility required by law; and 25 (3) that all of the assets of the Defendants have been transferred to DOES 1 through 50, inclusive, or 26 some other individual or entity which he or she owns or controls, with the intent to hinder, delay or 27 defraud creditors of Defendants, leaving Defendants with no assets. Further, Plaintiff is informed and 28 believes, and thereon alleges, that there exists a principal-agency relationship between and among 5. COMPLAINT Defendants. 18. At all relevant times herein, Defendants were agents of each other and acting within the course and scope of their agency. GENERAL ALLEGATIONS 19. At all relevant times herein, Defendants employed Plaintiff and other persons as non- exempt employees. 20. Plaintiff is informed and believes, and thereon alleges, that Defendants knew or should have known that they imposed systematic quota and production demands on Plaintiff and Class Members which violated the rights of employees pursuant to Labor Code Sections 2100 et. seq. 10 Defendants had a duty to ensure its production demands did not interfere with Plaintiff and Class 11 Members right to lawful meal periods, rest periods, bathroom breaks, and/or expose them to safety 12 hazards. Defendants willfully, knowingly, and intentionally failed to establish quotas that did not harm 13 Plaintiff and Class Members all in order to increase Defendants’ profits without concern for employee 14 safety or compliance with the Labor Code and IWC Wage Orders. 15 21. Plaintiff is informed and believes, and thereon alleges, that at all times mentioned 16 herein, Defendants were advised by skilled lawyers, employees and other professionals who were 17 knowledgeable about California wage and hour law, employment and personnel practices, and the 18 requirements of California. 19 22. Through this action, Plaintiff alleges Defendants have consistently maintained and 20 enforced against Plaintiff and Aggrieved Employees unlawful employment practices and policies 21 which violate the California Labor Code and IWC Wage Orders. 22 23. Plaintiffis informed and believes, and thereon alleges, that Defendants knew or should 23 have known they had a duty to compensate Plaintiff and Aggrieved Employees, and Defendants had 24 the financial ability to pay such compensation but willfully, knowingly and intentionally failed to do 25 so all in order to increase Defendants’ profits. 26 24. Plaintiffis informed and believes, and thereon alleges, that Defendants knew or should 27 have known that Plaintiff and Aggrieved Employees were entitled to receive at least minimum, straight 28 time, and overtime wages, and that they were not receiving minimum, straight time, and overtime -6- COMPLAINT wages, including prevailing wages, for all work that was required to be performed. During the Liability Period, Plaintiff and other Aggrieved Employees regularly worked more than eight (8), 10 hours per workday, and/or over 40 hours per workweek. In violation of the Labor Code, Defendants simply failed to pay all wages to Plaintiff and Aggrieved Employees. In addition, Defendants failed to pay for off-the-clock work. For example, Defendants required off-the-clock work such as communicating with Plaintiff and/or Aggrieved Employees and donning and doffing activities. Defendants prohibited Plaintiff and Aggrieved Employees from clocking in until near the beginning of their scheduled start time despite being subject to Defendants’ control. Further, Defendants failed to accurately calculate the regular rate of pay by, among other things, failing to include a remuneration when calculating the 10 rate of pay for overtime, double time, meal and rest period premiums, vacation pay, and sick pay. 11 25. On public works projects, Defendants also failed to compensate Plaintiff and/or 12 Aggrieved Employees at the prevailing wage rate classification for the type of work performed by 13 Plaintiff and/or the Aggrieved Employee on that project. 14 26. Plaintiffis informed and believes, and thereon alleges, that Defendants knew or should 15 have known that Plaintiff and Aggrieved Employees were entitled to receive a timely, off-duty, 16 uninterrupted 30-minute meal period for every five (5) hours of work, or payment of one (1) additional 17 hour of pay at their regular rate of pay when they did not receive a compliant meal period. In violation 18 of the Labor Code and IWC Wage Orders, Plaintiff and Aggrieved Employees did not receive 19 compliant meal periods due to Defendants’ work demands, understaffing, policies, and practices. In 20 addition, Plaintiffs and Aggrieved Employees’ meal periods were regularly taken after the fifth hour 21 of work due to understaffing and Defendants unlawful policies and practices. As such, meal periods 22 were also regularly missed due to Defendants’ understaffing and heavy. Defendants also failed to 23 provide second meal periods when Plaintiff and Aggrieved Employees worked over 10 hours per 24 workday. Defendants also failed to pay Plaintiff and Aggrieved Employees one (1) additional hour of 25 pay at their regular rate of pay when Plaintiff and Aggrieved Employees did not receive a compliant 26 meal period. 27 27. Plaintiffis informed and believes, and thereon alleges, that Defendants knew or should 28 have known that Plaintiff and Aggrieved Employees were entitled to receive a 10-minute, off-duty, -7- COMPLAINT uninterrupted rest period for every four (4) hours worked, or major fraction thereof, or payment of one additional hour of pay at their regular rate of pay when they were not permitted to take a compliant rest period. In violation of the Labor Code and IWC Wage Orders, Plaintiff and Aggrieved Employees were not permitted to take compliant rest breaks due to Defendants’ work demands, understaffing, policies, and practices as explained above. Specifically, Defendants failed to provide first rest breaks on many occasions, failed to provide second rest breaks when Plaintiff and Aggrieved Employees worked in excess of six (6) hours per workday and failed to provide third rest breaks when they worked over 10 hours per workday. Despite these violations, Defendants failed to pay Plaintiff and Aggrieved Employees one additional hour of pay at their regular rate of pay when they did not receive a compliant 10 rest break. 11 28. Defendants also did not implement a compliant recovery period policy or practice. 12 Specifically, access to shade and recovery periods were not provided to Plaintiff and/or other 13 Aggrieved Employees who performed work outdoors for Defendants during hot days, especially 14 during summer. 15 29. Plaintiffis informed and believes, and thereon alleges, that Defendants knew or should 16 have known that Plaintiff and Aggrieved Employees were entitled to reimbursements for their 17 necessary work-related business expenses. In violation of the Labor Code and IWC Wage Orders, 18 Defendants required Plaintiff and Aggrieved Employees to use their personal cell phones to discuss 19 work related matters with Defendants representatives without reimbursement. In addition, Defendants 20 required Plaintiff and Aggrieved Employees to purchase and maintain their own safety gear and tools 21 to perform their job duties without reimbursement. 22 30. Plaintiffis informed and believes, and thereon alleges, that Defendants knew or should 23 have known that Plaintiff and Aggrieved Employees who separated from their employment with 24 Defendants during the statutory period were entitled to timely payment of all wages due. In violation 25 of the Labor Code, Plaintiff and Waiting Time Aggrieved Employees did not receive payment of all 26 wages owed upon separation within the permissible time period due to, inter alia, Defendants’ failure 27 to pay all wages, meal and rest period premiums, and reimburse expenses to Plaintiff and Aggrieved 28 Employees. -8- COMPLAINT 31. Plaintiffis informed and believes, and thereon alleges that Defendants knew or should have known that Plaintiff and Aggrieved Employees were entitled to receive complete and accurate wage statements. In violation of the Labor Code and IWC Wage Orders, Plaintiff and Aggrieved Employees were not furnished with complete and accurate wage statements that show all of the information required by Labor Code section 226, including, but not limited to, the gross and net wages earned, reimbursements, the total hours worked, all applicable hourly rates in effect during the pay period, and the corresponding number of hours worked at each hourly rate. 32. Plaintiffis informed and believes, and thereon alleges, that Defendants knew or should have known that Defendants were required to keep accurate records of the hours worked by Plaintiff 10 and Aggrieved Employees. In violation of the California Labor Code, Defendants failed to maintain 11 accurate records ofhours worked by Plaintiff and Aggrieved Employees due to the unlawful practices 12 mentioned above. 13 33. Plaintiff is informed and believes, and thereon alleges that Defendants’ actions as 14 described throughout this Complaint were willful. 15 FIRST CAUSE OF ACTION 16 FAILURE TO PAY ALL WAGES 17 (AGAINST ALL DEFENDANTS) 18 34. Plaintiff hereby re-alleges and incorporates by reference all paragraphs above as though 19 fully set forth herein. 20 35. Atall times herein relevant, Defendants had a duty to comply with Labor Code Sections 21 204, 206, 510, 1182.12, 1194, 1194.2, 1197, 1198, 1811, 1815, the applicable IWC Wage Orders, and 22 all applicable local minimum wage ordinances in effect throughout California. 23 36. Labor Code Section 204 and the IWC Wage Orders require timely payment of all 24 wages owed on regularly scheduled paydays at least twice during each calendar month, on days 25 designated in advance by the employer as the regular paydays. All wages in earned in excess of the 26 normal work period must be paid no later than the payday for the next regular payroll period. 27 37. Labor Code Section 206 provides that in case of a dispute over wages, the employer 28 shall pay, without condition and promptly under the Labor Code all wages conceded due, leaving to -9- COMPLAINT the employee all remedies he/she is otherwise entitled to as to any balance claimed. 38. The IWC Wage Orders define “hours worked” as “the time during which an employee is subject to the control of an employer and includes all time the employee is suffered or permitted to work, whether or not required to do so.” 39. Labor Code Section 510 and the IWC Wage Orders require that employers pay employees for all overtime hours at a rate of one and one-half times the employee’s regular rate of pay for hours worked in excess of eight (8) hours in one (1) workday, 40 hours in one (1) workweek, and after the first eight hours on the seventh consecutive workday in one (1) workweek. Labor Code Section 510 and the IWC Wage Orders further require that employers pay employees double their 10 regular rate of pay for hours work in excess of 12 hours in a workday and after eight hours on the 11 seventh consecutive workday in one (1) workweek. Labor Code Section 510 requires payment of 12 overtime wages at one and one half times the “regular rate of pay,” which includes all forms of 13 renumeration earned by the employee. 14 40. Labor Code Section 1182.12 sets forth the minimum hourly wage that must be paid to 15 all employees in California for all hours worked. Local minimum wage ordinances, may provide for 16 higher minimum wage rates that must be paid to employees for all hours worked in those locales where 17 each local ordinance is in effect. Labor Code Section 1197 affirms that it is unlawful to pay less than 18 the state or local minimum wage, whichever is higher, for any hour of work. 19 41. Labor Code Section 1194 requires that employers pay employees at least the legal 20 minimum wage rate for all hours worked, notwithstanding any agreement to work for a lesser wage. 21 Labor Code Section 1194 further authorizes any employee receiving less than the legal minimum wage 22 applicable to the employee to recover in a civil action the unpaid balance of the full amount of wages, 23 along with interest thereon, reasonable attorneys’ fees and costs of suit. 24 42. Labor Code Section 1194.2 authorizes the recovery of liquidated damages in an amount 25 equal to the wages unlawfully unpaid and interest thereon for unpaid wage violations. 26 43. Labor Code Section 1198 prohibits employers from employing for longer hours or less 27 favorable conditions than those set forth in the Labor Code, IWC Wage Orders, or as otherwise set by 28 the Labor Commissioner. -10- COMPLAINT 44. Labor Code Section 1811 provides: “The time of service of any workman employed upon public work is limited and restricted to 8 hours during any one calendar day, and 40 hours during any one calendar week, except as hereinafter provided for under Section 1815.” 45. Labor Code Section 1815 provides in relevant part: “work performed by employees of contractors in excess of 8 hours per day, and 40 hours during any one week, shall be permitted upon public work upon compensation for all hours worked in excess of 8 hours per day at not less than 1 1/2 times the basic rate of pay.” 46. During the Liability Period, Defendants failed to pay Plaintiff all wages due, including minimum, regular, and overtime wages, prevailing wages, and failed to compensate off-the-clock 10 work, among other things. 11 47. In violation of California law, Defendants have knowingly and willfully refused to 12 perform their obligations and compensate Plaintiff for all wages earned as alleged above. 13 48. Defendants’ failure to pay Plaintiff all earned minimum, regular, overtime and 14 prevailing wages in accordance with Labor Code Sections 204, 206, 510, 1182.12, 1194, 1194.2, 1197, 15 and 1198, the applicable IWC Wage Orders, and all applicable local minimum wage ordinances in 16 effect throughout California, Plaintiffis entitled to recover the full amount of unpaid wages, liquidated 17 damages, prejudgment interest, and statutory penalties, along with attorneys’ fees and costs in amounts 18 that will be established at trial. 19 49. Plaintiff is informed, believes, and thereon alleges that Defendants, through their 20 conduct described herein, have committed an “intentional theft of wages in an amount greater than 21 nine hundred fifty dollars ($950) from any one employee, or two thousand three hundred fifty dollars 22 ($2,350) in the aggregate from two or more employees...in any consecutive 12-month period” within 23 the meaning of California Penal Code section 487m. Specifically, Defendants have intentionally 24 deprived Plaintiff of wages, as defined in Labor Code section 200, gratuities, as defined in Labor Code 25 section 350, benefits, or other compensation, by unlawful means, with the knowledge that the wages, 26 gratuities, benefits, or other compensation is due to Plaintiff under the law. Plaintiff is thus entitled to 27 recover from Defendants treble damages and costs, including reasonable attorneys’ fees, pursuant to 28 California Penal Code section 496(c). -ll- COMPLAINT SECOND CAUSE OF ACTION MEAL PERIOD VIOLATIONS (AGAINST ALL DEFENDANTS) 50. Plaintiff hereby re-alleges and incorporates by reference all paragraphs above as though fully set forth herein. 51. At all relevant times, Defendants had a duty to comply with Labor Code Sections 226.7 and 512, and the applicable IWC Wage Orders. 52. Labor Code Section 512 and the IWC Wage Orders prohibit an employer from employing any person for a work period of more than five (5) hours per day without providing the 10 employee with a meal period of not less than 30 minutes (commencing before the employee’s fifth 11 hour of work), except that if the total work period per day is no more than six (6) hours, the meal 12 period may be waived by mutual consent of the employer and employee. A second meal period of not 13 less than 30 minutes is required if an employee works more than 10 hours per day and must begin 14 before the employee’s tenth hour of work, except if the total hours worked is no more than 12 hours, 15 the second meal period may be waived by mutual consent of the employer and employee, but only if 16 the first meal period was not waived. An employer must relieve an employee of all duties during meal 17 periods. 18 53. The applicable IWC Wage Orders state that “[u]nless the employee is relieved of all 19 duty during a 30-minute meal period, the meal period shall be considered an ‘on duty’ meal period 20 and counted as time worked.” 21 54. Labor Code Section 226.7(b) and the IWC Wage Orders prohibit an employer from 22 requiring any employee to work during a meal period mandated by any California statute, regulation, 23 standard or order. If an employer fails to provide an employee with a meal period in accordance with 24 state law, Labor Code Section 226.7(c) and the IWC Wage Orders require that the employer pay the 25 employee one (1) additional hour of pay at the employee’s regular rate of compensation for each 26 workday that the meal period is noncompliant. 27 55. During the Liability Period, Plaintiff did not receive compliant meal periods for 28 working more than five (5) hours and/or 10 hours per workday. Specifically, first and second meal -12- COMPLAINT periods were late, interrupted, rounded, auto-deducted, on-duty, short, missed, and/or restricted to the worksite. 56. During the Liability Period, Defendants failed to pay Plaintiff meal period premiums for noncompliant meal periods pursuant to Labor Code Section 226.7(b) and the applicable IWC Wage Order. 57. As a result of Defendants’ failure to provide compliant meal periods and pay meal period premiums to Plaintiff in accordance with the IWC Wage Orders and Labor Code Sections 226.7 and 512, Plaintiff suffered and continue to suffer a loss of wages and compensation. 58. Because Plaintiff were and/or are entitled to such meal periods or “premium pay” in 10 lieu thereof, they are entitled to such payment per shift in an amount according to proof. To the extent 11 such unpaid premiums are deemed unpaid wages, Plaintiff will also seek pre- and post-judgment 12 interest as provided by law at 10% per annum, in an amount according to proof. 13 59. Plaintiff is informed, believes, and thereon alleges that Defendants, through their 14 conduct described herein, have committed an “intentional theft of wages in an amount greater than 15 nine hundred fifty dollars ($950) from any one employee, or two thousand three hundred fifty dollars 16 ($2,350) in the aggregate from two or more employees...in any consecutive 12-month period” within 17 the meaning of California Penal Code section 487m. Specifically, Defendants have intentionally 18 deprived Plaintiff of wages, as defined in Labor Code section 200, gratuities, as defined in Labor Code 19 section 350, benefits, or other compensation, by unlawful means, with the knowledge that the wages, 20 gratuities, benefits, or other compensation is due to Plaintiff under the law. Plaintiff is thus entitled to 21 recover from Defendants treble damages and costs, including reasonable attorneys’ fees, pursuant to 22 California Penal Code section 496(c). 23 60. Also, pursuant to Code of Civil Procedure Section 1021.5, Plaintiff will seek attorneys’ 24 fees and costs from Defendants in an amount subject to proof and approved by the Court. 25 THIRD CAUSE OF ACTION 26 REST PERIOD VIOLATIONS 27 (AGAINST ALL DEFENDANTS) 28 61 Plaintiff hereby re-alleges and incorporates by reference all paragraphs above as though -13- COMPLAINT fully set forth herein. 62. At all relevant times, Defendants had a duty to comply with Labor Code Section 226.7 and the applicable IWC Wage Orders. 63. The IWC Wage Orders require employers to authorize and permit all employees to take 10-minute duty-free rest periods for each four (4) hours worked, or major faction thereof. 64. If an employer fails to provide an employee with a rest period in accordance with California law, Labor Code Section 226.7(c) and the IWC Wage Orders require that the employer pay the employee one (1) additional hour of pay at the employee’s regular rate of compensation for each workday that the rest period is noncompliant. 10 65. During the Liability Period, Defendants did not implement a compliant rest break 11 policy and/or practice. Consequently, Plaintiff did not receive a 10 minute rest period for every four 12 (4) hours worked or major fraction thereof because rest breaks were interrupted, missed, on-duty, late, 13 shortened, and/or restricted to the worksite. 14 66. During the Liability Period, Defendants failed to pay Plaintiff rest period premiums for 15 noncompliant rest periods pursuant to Labor Code Section 226.7(b) and the applicable IWC Wage 16 Order. 17 67. As a result of Defendants’ failure to provide compliant rest periods and pay rest period 18 premiums to Plaintiff in accordance with the IWC Wage Orders and Labor Code Sections 226.7 and 19 516, Plaintiff suffered and continue to suffer a loss of wages and compensation. 20 68. Because Plaintiff were and/or are entitled to such rest periods or “premium pay” in lieu 21 thereof, they are entitled to such payment per shift in an amount according to proof. To the extent such 22 unpaid premiums are deemed unpaid wages, Plaintiff will also seek pre- and post-judgment interest as 23 provided by law at 10% per annum, in an amount according to proof. 24 69. Plaintiff is informed, believes, and thereon alleges that Defendants, through their 25 conduct described herein, have committed an “intentional theft of wages in an amount greater than 26 nine hundred fifty dollars ($950) from any one employee, or two thousand three hundred fifty dollars 27 ($2,350) in the aggregate from two or more employees...in any consecutive 12-month period” within 28 the meaning of California Penal Code section 487m. Specifically, Defendants have intentionally -14- COMPLAINT deprived Plaintiff of wages, as defined in Labor Code section 200, gratuities, as defined in Labor Code section 350, benefits, or other compensation, by unlawful means, with the knowledge that the wages, gratuities, benefits, or other compensation is due to Plaintiff under the law. Plaintiff is thus entitled to recover from Defendants treble damages and costs, including reasonable attorneys’ fees, pursuant to California Penal Code section 496(c). 70. Also, pursuant to Code of Civil Procedure Section 1021.5, Plaintiff will seek attorneys’ fees and costs from Defendants in an amount subject to proof and approved by the Court. FOURTH CAUSE OF ACTION FAILURE TO PROVIDE ACCURATE ITEMIZED WAGE STATEMENTS 10 (AGAINST ALL DEFENDANTS) 11 71. Plaintiff hereby re-alleges and incorporates by reference all paragraphs above as though 12 fully set forth herein. 13 72. At all relevant times, Defendants had a duty to comply with Labor Code Section 226. 14 73. Labor Code Section 226(a) requires that, semimonthly or at the time of each payment 15 of wages, employers must furnish each employee with an accurate itemized wage statement in writing 16 that accurately shows (1) gross wages earned, (2) total number of hours worked, (3) the number of any 17 piece-rate units earned and all applicable piece rates, (4) all deductions made from wages, (5) net 18 wages earned, (6) the inclusive dates of the pay period, (7) the name and last four digits or employment 19 identification number of the employee, (8) the name and address of the legal entity that is the 20 employer, and (9) all applicable hourly rates in effect and the corresponding number of hours worked 21 at each hourly rate. 22 74. Labor Code Section 226(e)(1) authorizes an employee suffering injury as a result of a 23 knowing and intentional failure by an employer to provide an accurate itemized wage statement to 24 recover the greater of all actual damages or $50 for the initial pay violation and $100 for each violation 25 in a subsequent pay period, not to exceed an aggregate penalty of $4,000 per employee, in addition to 26 an award of costs and attorneys’ fees. 27 75. During the Liability Period, Defendants have knowingly and intentionally failed to 28 comply with Labor Code Section 226(a) on wage statements that were provided to Plaintiff. The -15- COMPLAINT deficiencies include, among other things, Defendants’ failure to correctly state the gross and net wages earned, the total hours worked, all applicable hourly rates in effect during the pay period, and the corresponding number of hours worked at each hourly rate. 76. As a result of Defendants’ violation of California Labor Code Section 226(a), Plaintiff has suffered injury and damage to their statutorily protected rights. Specifically, Plaintiff has been injured by Defendants’ intentional violation of California Labor Code Section 226(a) because they were denied both their legal right to receive, and their protected interest in receiving, accurate itemized wage statements under California Labor Code Section 226(a). Plaintiff has had to file this lawsuit in order to determine the extent of the underpayment of wages, thereby causing Plaintiff to incur expenses 10 and lost time. Plaintiff would not have had to engage in these efforts and incur these costs had 11 Defendants provided the accurate wages earned and number of hours worked at each corresponding 12 pay rate. This has also delayed Plaintiff's ability to demand and recover the underpayment of wages 13 from Defendants. 14 77. Defendants’ violations of California Labor Code Section 226(a) prevented Plaintiff 15 from knowing, understanding and disputing the wages paid to them, and resulted in an unjustified 16 economic enrichment to Defendants. As a result of Defendants’ knowing and intentional failure to 17 comply with California Labor Code Section 226(a), Plaintiff has suffered an injury, and the exact 18 amount of damages and/or penalties is all in an amount to be shown according to proofat trial. 19 78. Plaintiffis also entitled to injunctive relief under California Labor Code Section 226(h), 20 compelling Defendants to comply with California Labor Code Section 226, and seek the recovery of 21 attorneys’ fees and costs incurred in obtaining this injunctive relief. 22 FIFTH CAUSE OF ACTION 23 WAITING TIME PENALTIES 24 (AGAINST ALL DEFENDANTS) 25 79. Plaintiff hereby re-alleges and incorporates by reference all paragraphs above as though 26 fully set forth herein. 27 80. At all relevant times, Defendants had a duty to comply with Labor Code Sections 201, 28 202, and 203. Defendants failed to comply with these final paycheck requirements with respect to -16- COMPLAINT Plaintiff. 81. Labor Code Section 201 requires that if an employer discharges an employee, the wages earned and unpaid at the time of discharge are due and payable immediately. 82. Labor Code Section 202 requires that if “an employee not having a written contract for a definite period” quits, the employee’s wages shall become due and payable no later than 72 hours thereafter, unless the employee has given 72 hours previous notice of his or her intention to quit, in which case the employee is entitled to his or her wages at the time of quitting. 83. Labor Code Section 203 provides that if an employer willfully fails to pay, without abatement or reduction, any wages of an employee who is discharged or quits, the wages of the 10 employee shall continue as a penalty from the due date thereof at the same rate until paid or until an 11 action therefor is commenced, but that the wages shall not continue for more than 30 days per 12 employee. 13 84. During the Liability Period, Defendants willfully failed to pay Plaintiff all his earned 14 wages upon termination including, but not limited to, minimum, regular, and overtime compensation, 15 premium compensation, and/or reimbursements either at the time of discharge or within 72 hours of 16 leaving Defendants’ employ. 17 85. As a result of Defendants’ failure to timely pay all wages owed to Plaintiff in 18 accordance with Labor Code Sections 201, 202 and 203, Plaintiff is entitled to recover waiting time 19 penalties, prejudgment interest, attorneys’ fees, and costs in amounts that will be established at trial. 20 SIXTH CAUSE OF ACTION 21 FAILURE TO REIMBURSE BUSINESS EXPENSES 22 (AGAINST ALL DEFENDANTS) 23 86. Plaintiff hereby re-alleges and incorporates by reference all paragraphs above as though 24 fully set forth herein. 25 87. At all relevant times, Defendants had a duty to comply with Labor Code Sections 2800 26 and 2802. Defendants failed to comply with these indemnification and reimbursement requirements 27 with respect to Plaintiff. 28 88. Labor Code Section 2800 requires employers to indemnify employees for losses caused -17- COMPLAINT by the employer’s want of ordinary care. To the extent Defendants claim that Plaintiff failed to request, demand, notify or otherwise seek reimbursement for their expenses and losses, Defendants were obligated to nevertheless indemnify Plaintiff due to their own negligence. 89. Labor Code Section 2802(a) requires that employers indemnify and reimburse employees for all business expenses, which are defined as all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of the employee’s duties or otherwise incurred based on the employee’s obedience to the employer’s directions. Labor Code Section 2802(b) authorizes employees to recover in a court action interest which shall accrue from the date on which the employee incurred the necessary expenditure or loss. Labor Code Section 2802(c) authorizes 10 employees, who to enforce their right to reimbursements under Labor Code Section 2802, to also 11 recover attorneys’ fees and costs. 12 90. During the Liability Period, Defendants required Plaintiff to, inter alia, use, purchase 13 and maintain their own safety gear and tools, and cell phones for work related purposes without 14 reimbursement in violation of Labor Code Sections 2800 and 2802. 15 91. As a result of Defendants’ failure to indemnify and reimburse Plaintiff for all business 16 and work-related costs, expenditures, losses and e