Preview
1
2
3
4
5 Attorney for Plaintiff
6
7
8
9
(UNLIMITED CIVIL)
1
COMPLAINT FOR DAMAGES AND OTHER RELIEF AND DEMAND FOR JURY TRIAL
Plaintiff LUIS FREGOSO informed and believe and thereon alleges:
PARTIES
Plaintiff LUIS FREGOSO PLAINTIFF , an individual, is a competent adult
PLAINTIFF, at all times relevant as alleged herein, was a resident of the County of
Santa Clara and employee of defendants MARISCOS PUERTO VALLARTA, an unknown
business entity, CESAR AGUIRREZ, an individual and DOES 1 through inclusive
(collectively “ ”).
Defendant MARISCOS PUERTO VALLARTA MARISCOS , is and at all relevant
times hereto was, an unknown business entity formed under the laws of the State of California,
with business address of 7121 Monterey Street, Gilroy, California 95020 MARISCOS
manages and operates Mexican restaurant under the name “Mariscos Puerto Vallarta , located
7121 Monterey Street, Gilroy, California 95020
Defendant CESAR AQUIRREZ AGUIRREZ”), is and at all times relevant hereto was,
individual licensed to do business in California. Defendant AGUIRREZ is the owner and
operator of MARISCOS and employed PLAINTIFF during the relevant time period.
PLAINTIFF i informed and believe and thereon alleges there exists, at all times
mentioned herein, ownership interest between all , such any individuality and
separateness among , and each of them, has ceased, and all were joint
employers of PLAINTIFF
PLAINTIFF informed and believe and thereon allege are
corporations, entities, and/or individuals authorized to conduct business, conducting regular and
continuous business transactions, and employing individuals in and existing under the laws of
the State of California. own and operate establishments ithin the State of
California. PLAINTIFF’s work location was primarily restaurant located in the City of Gilroy
Jose 7121 Monterey Street, Gilroy California 95020
PLAINTIFF is ignorant as to the true names and/or capacities of the persons named as
DOES 1 through 20, inclusive, and therefore sue them by such fictitious names. PLAINTIFF
COMPLAINT FOR DAMAGES AND OTHER RELIEF AND DEMAND FOR JURY TRIAL
will amend this Complaint to assert the true names and capacities when ascertained. Except as
otherwise alleged herein, PLAINTIFF is informed and believes, and thereon alleges, each of the
defendants sued as DOES 1 through 20, inclusive, is legally responsible for the damages caused
to PLAINTIFF as alleged herein.
Whenever in this complaint reference is made to any act or omission of
such act or omission shall be deemed the act or omission of each defendant, acting individually,
jointly, and severally.
Whenever in this complaint reference is made to any act or omission of a corporate
defendant, such allegation shall be deemed to mean that corporate defendant, its officers,
directors, agents, employees, and representatives did or authorized such act or omission while
actively engaged in the management, direction and control of the affairs of that corporate
defendant, and while acting within the course and scope of their agency and employment.
Plaintiff is informed and believes and on such information and belief alleges at all times
relevant hereto, there exists, a unity of interest and ownership between DEFENDANTS such
that any individually and separateness between them has ceased. MARISCOS is an alter ego of
defendant AGUIRREZ in that the business entity defendant and at all times mentioned herein
was a mere shell and a sham without capital, assets, stock, or stockholders. While PLAINTIFF
lacks evidentiary support at the present time to support these allegations, PLAINTIFF
informed and believes these alleged facts are likely to have evidentiary support after a
reasonable opportunity for further investigation or discovery.
PLAINTIFF is informed and believes and on such information and belief alleges, at all
times relevant hereto, MARISCOS, was conceived, intended, and used by AGUIRREZ as a
device to avoid individual liability and for the purpose of substituting financially insolvent
companies in the place of AGUIRREZ personally. While PLAINTIFF lacks evidentiary support
at the present time to support these allegations, PLAINTIFF is informed and believes these
alleged facts are likely to have evidentiary support after a reasonable opportunity for further
vestigation and discovery.
COMPLAINT FOR DAMAGES AND OTHER RELIEF AND DEMAND FOR JURY TRIAL
PLAINTIFF is informed and believes and on such information and belief alleges, at all
times relevant hereto, MARISCOS and AGUIRREZ are and at all times herein were, so
inadequately capitalized compared with the business to be done by them and the risks of loss
attendant hereto, their capitalization was illusory. While PLAINTIFF evidentiary support
at the present time to support these allegations, PLAINTIFF informed and believe these
alleged facts are likely to have evidentiary support after a reasonable opportunity for further
investigation or discovery.
PLAINTIFF is informed and believe and on such information and belief allege , at all
times relevant hereto, AGUIRREZ used assets of MARISCOS for his own personal uses,
aused assets of business entity to be transferred to him without adequate consideration, and
withdraw funds from the business entity defendants’ bank accounts for his own personal use.
While PLAINTIFF evidentiary support at the present time to support these allegations,
PLAINTIFF informed and believes these alleged facts are likely to have evidentiary support
after a reasonable opportunity for further investigation or discovery.
PLAINTIFF is informed and believe and on such information and belief allege , at all
times relevant hereto, MARISCOS was a mere shell, instrumentality, and conduit through
which AGUIRREZ carried on their joint venture business in the business entity names exactly
had conducted it previous to any incorporation, exercising complete control and
dominance of such businesses to such an extent any individuality or separateness of
MARISCOS and AGUIRREZ does not exist, and at all times herein mentioned did not exist.
While PLAINTIFF evidentiary support at the present time to support these allegations,
they are informed and believe these alleged facts are likely to have evidentiary support after a
reasonable opportunity for further investigation or discovery.
PLAINTIFF is informed and believe and on such information and belief allege
MARISCOS and at all times herein mentioned controlled, dominated, and operated by
AGUIRREZ his individual business and alter ego, in that the activities and business of
MARISCOS was carried out without the holding of directors and stockholders meetings, no
COMPLAINT FOR DAMAGES AND OTHER RELIEF AND DEMAND FOR JURY TRIAL
records or minutes of any corporate proceedings were maintained, and AGUIRREZ entered into
personal transactions with MARISCOS without the approval of other directors or shareholders.
While PLAINTIFF evidentiary support at the present time to support these allegations, he
informed and believe these alleged facts are likely to have evidentiary support after a
reasonable opportunity for further investigation or discovery.
Adherence to the fiction of this separate existence of MARISCOS an entity distinct
from AGUIRREZ would permit abuse of the corporate privilege and would sanction a fraud in
that AGUIRREZ caused funds to be withdrawn from the funds of the business entity
defendants, distributing such funds to themselves without any consideration to the business
entity defendants, all for the purpose of avoiding and preventing creditors, such as PLAINTIFF
herein, from attaching and executing on the assets of the business entity defendants, and further
AGUIRREZ attempted to, and in fact rendered, MARISCOS insolvent and unable to meet its
obligations. While PLAINTIFF evidentiary support at the present time to support these
allegations, he is informed and believe these alleged facts are likely to have evidentiary support
after a reasonable opportunity for further investigation or discovery.
Adherence to the fiction of this separate existence of MARISCOS as an entity distinct
from AGUIRREZ would further permit abuse of the corporate privilege and would produce an
inequitable result in that PLAINTIFF is informed and believe , and on such information and
belief allege AGUIRREZ has made loans to MARISCOS and MARISCOS has made promises
of repayment to AGUIRREZ and has guaranteed certain of the other’s obligations, hereby
abling MARISCOS to return to active business without adequate financing and without
capital stock, which return to business invited the public generally, and PLAINTIFF in
particular, to deal with MARISCOS to the loss of PLAINTIFF. While PLAINTIFF lacks
evidentiary support at the present time to support these allegations, he is informed and believe
these alleged facts are likely to have evidentiary support after a reasonable opportunity for
further investigation or discovery.
COMPLAINT FOR DAMAGES AND OTHER RELIEF AND DEMAND FOR JURY TRIAL
JURISDICTION AND VENUE
he monetary value of PLAINTIFF’s claims exceeds $25,000.
The amount in controversy herein is within the jurisdiction of this Court.
PLAINTIFF allege on information and belief were and are companies,
entities, and individuals authorized to conduct conducting substantial, systematic, and
continuous business transactions in the County of Santa Clara
The acts, omissions, damages and injury that form the basis of this lawsuit wer
sustained in the County of Santa Clara
FACTUAL ALLEGATIONS
employed PLANTIFF as a exempt server and cook at their
restaurant from approximately March 14, 2014 until approximately February 11, 2018
DEFENDANTS paid PLAINTIFF $400.00 per workweek regardless of hours worked until
approximately September 3, 2017, after which DEFENDANTS paid PLAINTIFF $500.00 per
workweek regardless of all hours worked until separation of employment.
PLAINTIFF’s daily duties included, but were not limited to: memorizing
food menu, reviewing changes to the food menu, processing food orders
preparing food for cooking cleaning DEFENDANTS restaurant, assisting other employees of
in the performance of their duties maintaining a clean workplace maintaining
a presence at restaurant remaining on call between shifts, and other duties as
assigned.
FIRST CAUSE OF ACTION
FAILURE TO PAY ALL WAGES OWED
(Violation of Labor Code Secs. 510, 1194 1198; IWC Wage Orders
Against all Defendants
PLAINTIFF herein incorporate by reference the foregoing paragraphs.
COMPLAINT FOR DAMAGES AND OTHER RELIEF AND DEMAND FOR JURY TRIAL
At all relevant times, were aware of, and under a duty to comply with,
the provisions of the Labor Code including, but not limited to, Labor Code sections 510, 1194,
1197, an
Labor Code Section 510, in pertinent part, provides: “Any work in excess of eight hours
in one workday and any work in excess of 40 hours in any one workweek…shall be
compensated at the rate of no less than one and one half times the regular rate of pay for any
employee…”
Labor Code Section 1194(a), in pertinent part, provides:
Notwithstanding any agreement to work for a lesser wage, any
employee receiving less than the legal minimum wage or the legal
overtime compensation applicable to the employee is entitled to
recover in a civil action the unpaid balance of the full amount of this
minimum wage or overtime compensation, including interest thereon,
reasonable attorney’s fees, and costs of suit.
Labor Code Section 1194.2(a), in pertinent part, provides:
In any action under Section 98, 1193.6, 1194, or 1197.1 to recover wages
because of the payment of a wage less than the minimum wage fixed by an order
of the commission or by statute, an mployee shall be entitled to recover
liquidated damages in an amount equal to the wages unlawfully unpaid and
interest thereon. Nothing in this subdivision shall be construed to authorize the
recovery of liquidated damages for failure to pay overtime compensation. A suit
may be filed for liquidated damages at any time before the expiration of the
statute of limitations on an action for wages from which the liquidated damages
arise
Labor Code Section 1197 provides: “The minimum wage for employees fixed by the
commission is the minimum wage to be paid to employees, and the payment of a less wage than
the minimum so fixed is unlawful.”
Labor Code Section 1198, in pertinent part, provides: “The maximum amount hours of
work and the standard conditions of labor fixed by the commission shall be the maximum hours
of work and the standard conditions of labor for employees. The employment of any employee
for longer hours than those fixed by the order or under conditions of labor prohibited by the
order is unlawful.”
PLAINTIFF often worked more than eight (8) hours in a workday throughout his
employment with PLAINTIFF often worked more than 40 hours in a
COMPLAINT FOR DAMAGES AND OTHER RELIEF AND DEMAND FOR JURY TRIAL
workweek throughout his employment with
During PLAINTIFF’s employment, failed to compensate PLAINTIFF
for all hours worked
required PLAINTIFF o be present and under control
before and after work shift for assignments, instructions, training, and accounting of register
terminals failed to pay PLAINTIFF compensation for time spent receiving
gnments, instructions, training, working, and accounting for register terminal , inclu
applicable overtime premiums DEFENDANTS made unlawful deductions from PLAINTIFF’s
wages where DEFENDANTS suffered losses incurred through no fault of PLAINTIFF.
By failing to pay PLAINTIFF for all hours worked at the appropriate overtime rates,
violated the Labor Code, and the applicable IWC Wage Order as set forth
herein.
As a direct and proximate result of unlawful conduct, as set forth
herein, PLAINTIFF sustained damages, including loss of earnings, in an amount to be
established at trial, and entitled to recover attorneys’ fees and costs of suit.
Wherefore, PLAINTIFF pray for judgment as set forth below.
SECOND CAUSE OF ACTION
FAILURE TO PROVIDE MEAL REST PERIODS
Labor Code Secs. 226.7, 512, 1198; IWC Wage Order
Against all Defendants)
PLAINTIFF herein incorporate by reference the foregoing paragraphs.
Labor Code Section 512(a) and applicable California Wage Orders set forth the
minimum requirements for the provision of meal periods to non exempt employees in
California. The applicable wage order indicates that “[n]o employer shall employ any person for
a work period of more than five (5) hours without a meal period of not less than 30 minutes,
except that when a work period of not more than six (6) hours will complete the day’s work the
meal period may be waived by mutual consent of the employer and the employee.”
COMPLAINT FOR DAMAGES AND OTHER RELIEF AND DEMAND FOR JURY TRIAL
Furthermore, the wage order indicates that “an employer may not employ an employee for a
work period of more than ten (10) hours per day without providing the employee with a second
meal period of not less than 30 minutes, except that if the total hours worked is no more than 12
hours, the second meal period may be waived by mutual consent of the employer and the
employee only if the first meal period was not waived.”
Labor Code Section 512(a) and applicable California Wage Orders set for the minimum
requirements for the provision of rest breaks to non exempt employees in California. The
applicable wage order indicates that “[e]very employer shall authorize and permit all employees
to take rest periods, which insofar as practicable shall be in the middle of each work period. The
authorized rest period time shall be based on the total hours worked daily at the rate of ten
minutes net rest time per four (4) hours or major fraction thereof. However, a rest period need
not be authorized for employees whose total daily work time is less than three and one half (3
1/2) hours. Authorized rest period time shall be counted as hours worked for which there shall
be no deduction from wages.”
Labor Code Section 226.7 provides that no employer shall require any employee to work
during any meal or rest period mandated by an applicable Wage Order. If an employer fails to
provide an employee a meal or rest period in accordance with the applicable provisions of the
wage order, the employer shall pay the employee one (1) hour of pay at the employee’s regular
rate of compensation for each workday that the meal or rest period is not provided.
Pursuant to the above provisions, PLAINTIFF entitled to meal periods in which
relieved of all job duties or compensation at the rate of one (1) hour of pay at the
employee’s regular rate of compensation for each workday the meal period was not provided,
and to a net 10 minute rest period for every four hours worked or major fraction thereof, or
compensation at the rate of one (1) hour of pay at the employee’s regular rate of compensation
for each workday the rest period was not provided.
required PLAINTIFF to work without receiving timely meal periods
and rest breaks to which he was entitled
COMPLAINT FOR DAMAGES AND OTHER RELIEF AND DEMAND FOR JURY TRIAL
required PLAINTIFF work shifts in excess of five (5) hours without an
opportunity for PLAINTIFF to receive meal period as required under the applicable Wage
Order. instruction was to work the shift without a meal period. PLAINTIFF’s
supervisors failed to schedule meal periods for PLAINTIFF failed to schedule
relief for shifts worked by PLAINTIFF and prohibited PLAINTIFF from not performing his job
duties to take meal periods. PLAINTIFF never waived, nor was provided with an opportunity to
take, his meal periods as required by law
required PLAINTIFF work shifts in excess of four (4) hours without
the authorization or permission to take rest period instruction was to work
the shift without a rest period. PLAINTIFF’s supervisors failed to schedule rest periods for
PLAINTIFF failed to schedule additional employees for shifts worked by
PLAINTIFF and prohibited PLAINTIFF from closing business to take rest
periods. PLAINTIFF never waived, nor authorized or permitted to take, his rest periods
required by law
On occasions where required PLAINTIFF to work without receiving
timely meal periods and rest breaks, failed to compensate PLAINTIFF
required by law.
Due to failure to provide timely, off duty meal and rest periods as
required by law, PLAINTIFF entitled to recover unpaid wages, in an amount to be proven at
trial.
Wherefore, PLAINTIFF pray for judgment as set forth below.
THIRD CAUSE OF ACTION
FAILURE TO PAY WAGES ON SEPARATION
Violation of California Labor Code Section
(Against all Defendants)
PLAINTIFF incorporate herein by reference the foregoing paragraphs.
Labor Code Section 203, in pertinent part, provides that:
COMPLAINT FOR DAMAGES AND OTHER RELIEF AND DEMAND FOR JURY TRIAL
If an employer willfully fails to pay, without abatement or reduction, in
accordance with Sections 201, 201.3, 201.5, 202, and 205.5, any wages
of an employee who is discharged or who quits, the wages of the
employee shall continue as a penalty from the due date thereof at the
same rate until paid or until an action therefor is commenced; but the
wages shall not continue for more than 30 days.
failed to pay PLAINTIFF due wages (including minimum wage and
premium overtime and wages for break violations) due upon separation of employment
Said non payment was the direct and proximate result of a willful refusal to do so by
To date, have not paid PLAINTIFF all due wages.
As a direct and proximate result of willful conduct in failing to pay
PLAINTIFF for all hours worked, PLAINTIFF is entitled to recover “waiting time” penalties of
up to 30 days wages pursuant to Labor Code Section 203 in an amount to be established at trial,
together with interest thereon, and attorneys’ fees and costs.
Wherefore, PLAINTIFF pray for judgment as set forth below.
FOURTH CAUSE OF ACTION
FAILURE TO MAINTAIN ACCURATE TIME RECORDS
(Violation of Labor Code Section 1198; IWC Wage Orders)
Against all Defendants)
LAINTIFF corporate herein by reference the foregoing paragraphs.
Labor Code Section 1198, in pertinent part provides: “The maximum hours of work and
the standard conditions of labor fixed by the commission shall be the maximum hours of work
and the standard conditions of labor for employees. The employment of any employee for
longer hours than those fixed by the order or under conditions of labor prohibited by the order is
unlawful.
The applicable wage order, in pertinent part, provides:
(A) Every employer shall keep accurate information with respect to each
employee including the following: 3) Time records showing when the
employee begins and ends each work period. Meal periods, split shift intervals
and total daily hours worked shall also be recorded. Meal periods during which
operations cease and authorized rest periods need not be recorded. (4) Total
wages paid each payroll period, including value of board, lodging, or other
compensation actually furnished to the employee. (5) Total hours worked in the
COMPLAINT FOR DAMAGES AND OTHER RELIEF AND DEMAND FOR JURY TRIAL
payroll period and applicable rates of pay. This information shall be made
readily available to the employee upon reasonable request.
Every employer shall semimonthly or at the time of each payment of
wages furnish each employee, either as a detachable part of the check, draft, or
voucher paying the employee's wages, or separately, an itemized statement in
writing showing: (1) all deductions; (2) the inclusive dates of the period for
which the employee is paid; (3) the name of the employee or the employee's
social security number; and (4) the name of the employer, provided all
deductions made on written orders of the employee may be aggregated and
shown as one item.
All required records shall be in the English language and in ink or other
indelible form, properly dated, showing month, day and year, and shall be kept
on file by the employer for at least three years at the place of employment or at a
central location within the State of California. An employee's records shall be
available for inspection by the employee upon reasonable request.
often failed to maintain accurate time records of all hours worked by
PLAINTIFF, including meal periods.
knew they were required by law to maintain accurate time records of all
hours worked and intentionally failed to maintain them for PLAINTIFF
PLAINTIFF suffered injury from failure to maintain accurate time
records.
PLAINTIFF could not determine the amount of wages earned or whether all wages due
had been paid. PLAINTIFF must therefore go through the difficulty and bear the expense of
reconstructing all time and pay records to make computations to analyze the amounts of wages
due.
Wherefore, PLAINTIFF pray for judgment as set forth below.
FIFTH CAUSE OF ACTION
FAILURE TO VIDE ACCURATE ITEMIZED WAGE STATEMENTS
Labor Code Sec. 226
Against all Defendants)
PLAINTIFF incorporate herein by reference the foregoing paragraphs.
During the relevant time period, up to and including December 31, 2011, Labor Code
Section 226(a) provided:
Every employer shall, semimonthly or at the time of each payment of
wages, furnish each of his or her employees, either as a detachable part
of the check, draft, or voucher paying the employee's wages, or
COMPLAINT FOR DAMAGES AND OTHER RELIEF AND DEMAND FOR JURY TRIAL
separately when wages are paid by personal check or cash, an accurate
itemized statement in writing showing (1) gross wages earned, (2) total
hours worked by the employee, except for any employee whose
compensation is solely based on a salary and who is exempt from
payment of overtime under subdivision (a) of Section 515 or any
applicable order of the Industrial Welfare Commission, (3) the number
of piece rate units earned and any applicable piece rate if the employee
is paid on a piece rate basis, (4) all deductions, provided that all
deductions made on written orders of the employee may be aggregated
and shown as one item, (5) net wages earned, (6) the inclusive dates of
the period for which the employee is paid, (7) the name of the
employee and his or her social security number, except that by January
1, 2008, only the last four digits of his or her social security number or
an employee identification number other than a social security number
may be shown on an itemized statement, (8) the name and address of
the legal entity that is the employer, and (9) all applicable hourly rates
in effect during the pay period and the corresponding number of hours
worked at each hourly rate by the employee. The deductions made from
payment of wages shall be recorded in ink or other indelible form,
properly dated, showing the month, day, and year, and a copy of the
statement and the record of the deductions shall be kept on file by the
employer for at least three years at the place of employment or at a
central location within the State of California.
During the relevant time period, between January 1, 2012 and December 3
Labor Code Section 226(a) provided:
Every employer shall, semimonthly or at the time of each payment of
wages, furnish each of his or her employees, either as a detachable part
of the check, draft, or voucher paying the employee's wages, or
separately when wages are paid by personal check or cash, an accurate
itemized statement in writing showing (1) gross wages earned, (2) total
hours worked by the employee, except for any employee whose
mpensation is solely based on a salary and who is exempt from
payment of overtime under subdivision (a) of Section 515 or any
applicable order of the Industrial Welfare Commission, (3) the number
of piece rate units earned and any applicable piece rate if the employee
is paid on a piece rate basis, (4) all deductions, provided that all
deductions made on written orders of the employee may be aggregated
and shown as one item, (5) net wages earned, (6) the inclusive dates of
the period for which the employee is paid, (7) the name of the
employee and the last four digits of his or her social security number or
an employee identification number other than a social security number,
(8) the name and address of the legal entity that is the employer and, if
the employer is a farm labor contractor, as defined in subdivision (b) of
Section 1682, the name and address of the legal entity that secured the
services of the employer, and (9) all applicable hourly rates in effect
during the pay period and the corresponding number of hours worked
at each hourly rate by the employee. The deductions made from
payments of wages shall be recorded in ink or other indelible form,
properly dated, showing the month, day, and year, and a copy of the
statement and the record of the deductions shall be kept on file by the
employer for at least three years at the place of employment or at a
central location within the State of California.
COMPLAINT FOR DAMAGES AND OTHER RELIEF AND DEMAND FOR JURY TRIAL
During the relevant time period, since and including January 1, 2013, Labor Code
Section 226(a) provided and provides:
Every employer shall, semimonthly or at the time of each payment of
wages, furnish each of his or her employees, either as a detachable part
of the check, draft, or voucher paying the employee's wages, or
separately when wages are paid by personal check or cash, an accurate
itemized statement in writing showing (1) gross wages earned, (2) total
hours worked by the employee, except for any employee whose
compensation is solely based on a salary and who is exempt from
payment of overtime under subdivision (a) of Section 515 or any
applicable order of the Industrial Welfare Commission, (3) the number
of piece rate units earned and any applicable piece rate if the employee
is paid on a piece rate basis, (4) all deductions, provided that all
deductions made on written orders of the employee may be aggregated
and shown as one item, (5) net wages earned, (6) the inclusive dates of
the period for which the employee is paid, (7) the name of the
employee and only the last four digits of his or her social security
number or an employee identification number other than a social
security number, (8) the name and address of the legal entity that is the
employer and, if the employer is a farm labor contractor, as defined in
subdivision (b) of Section 1682, the name and address of the legal
entity that secured the services of the employer, and (9) all applicable
hourly rates in effect during the pay period and the corresponding
number of hours worked at each hourly rate by the employee and,
beginning July 1, 2013, if the employer is a temporary services
employer as defined in Section 201.3, the rate of pay and the total
hours worked for each temporary services assignment. The deductions
made from payment of wages shall be recorded in ink or other indelible
form, properly dated, showing the month, day, and year, and a copy of
the statement and the record of the deductions shall be kept on file by
the employer for at least three years at the place of employment or at a
central location within the State of California. For purposes of this
subdivision, "copy" includes a duplicate of the itemized statement
provided to an employee or a computer generated record that
accurately shows all of the information required by this subdivision.
Moreover, up to and including December 31, 2012, Labor Code Section 226(e)
provided:
An employee suffering injury as a result of a knowing and intentional
failure by an employer to comply with subdivision (a) is entitled to
recover the greater of all actual damages or fifty dollars ($50) for the
initial pay period in which a violation occurs and one hundred dollars
($100) per employee for each violation in a subsequent pay period, not
exceeding an aggregate penalty of four thousand dollars ($4,000), and
is entitled to an award of costs and reasonable attorney’s fees.
During the relevant time period, since and including January 1, 2013, Labor Code
Section 226(e)(1) provided and provides:
COMPLAINT FOR DAMAGES AND OTHER RELIEF AND DEMAND FOR JURY TRIAL
An employee suffering injury as a result of a knowing and intentional
failure by an employer to comply with subdivision (a) is entitled to
recover the greater of all actual damages or fifty dollars ($50) for the
initial pay period in which a violation occurs and one hundred dollars
($100) per employee for each violation in a subsequent pay period, not
to exceed an aggregate penalty of four thousand dollars ($4,000), and is
entitled to an award of costs and reasonable attorney's fees.
Furthermore, during the relevant time period, since and including January 1, 2013,
Labor Code Section 226(e)(2) provided and provides:
(A) An employee is deemed to suffer injury for purposes of this
subdivision if the employer fails to provide a wage statement.
An employee is deemed to suffer injury for purposes of this
subdivision if the employer fails to provide accurate a
complete information as required by any one or more of items
(1) to (9), inclusive, of subdivision (a) and the employee cannot
promptly and easily determine from the wage statement alone
one or more of the following:
(i) The amount of the gross wages or net wages paid to the
employee during the pay period or any of the other
information required to be provided on the itemized
wage statement pursuant to items (2) to (4), inclusive,
(6), and (9) of subdivision (a).
(ii) Which deductions the employer made from gross wages
to determine the net wages paid to the employee during
the pay period. Nothing in this subdivision alters the
ability of the employer to aggregate deductions
consistent with the requirements of item (4) of
subdivision (a).
(iii) The name and address of the employer and, if the
employer is a farm labor contractor, as defined in
subdivision (b) of Section 1682, the name and address of
the legal entity that secured the services of the employer
during the pay period.
(iv) The name of the employee and only the last four digits
of his or her social security number or an employee
identification number other than a social security
number.
knew they were required by law to furnish accurate itemized statements
in writing and intentionally failed to furnish them to PLAINTIFF on the regular paydays.
have failed to provide timely, accurate itemized wage statements to
statements to PLAINTIFF in accordance with Labor Code Section PLAINTIFF
informed and believe and, on that basis, allege e statements provided by
COMPLAINT FOR DAMAGES AND OTHER RELIEF AND DEMAND FOR JURY TRIAL
failed to accurate reflect the lawful hourly rates applicable to, inter alia, training time, work
hours in excess of eight hours in a work day and/or 40 hours in a work , and sick leave
PLAINTIFF suffered injury from failure to provide accurate itemized
statements in writing on the regular paydays. PLAINTIFF could not determine the amount of
wages earned or whether all wages due had been paid. PLAINTIFF must therefore go through
the difficulty and bear the expense of reconstructing all time and pay records to make
computations to analyze the amounts of wages due.
PLAINTIFF to recover actual damages, costs, and attorneys’ fees under these
provisions.
Wherefore, PLAINTIFF pray for judgment as set forth below
SIXTH CAUSE OF ACTION
FAILURE TO PROVIDE SICK LEAVE
(Violation of Labor Code Sections
(Against all Defendants)
PLAINTIFF incorporates herein by reference the foregoing paragraphs.
California Labor Code Section , in pertinent part:
(a) An employee who, on or after July 1, 2015, works in California for the same
employer for 30 or more days within a year from the commencement of employment is
entitled to paid sick days as specified in this section.
An employee shall accrue paid sick days at the rate of not less than one hour per
every 30 hours worked, beginning at the commencement of employment or the
operative date of this article, whichever is later, subject to the use and accrual
limitations set forth in this section.
Accrued paid sick days shall carry over to the following year of employment.
However, an employer may limit an employee’s use of accrued paid sick days to 24
hours or three days in each year of employment, calendar year, or 12 month period.
This section shall be satisfied and no accrual or carryover is required if the full amount
of leave is received at the beginning of each year of employment, calendar year, or 12
month period. The term “full amount of leave” means three days or 24 hours.
(i) An employer shall provide an employee with written notice that sets forth the
amount of paid sick leave available, or paid time off leave an employer provides in lieu
of sick leave, for use on either the employee’s itemized wage statement described in
Section 226 or in a separate writing provided on the designated pay date with the
employee’s payment of wages. If an employer provides unlimited paid sick leave or
COMPLAINT FOR DAMAGES AND OTHER RELIEF AND DEMAND FOR JURY TRIAL
unlimited paid time off to an employee, the employer may satisfy this section by
indicating on the notice or the employee’s itemized wage statement “unlimited.”
An employer shall provide payment for sick leave taken by an employee no later
than the payday for the next regular payroll period after the sick leave was taken.
California Labor Code Section 246.5 states, in pertinent part:
(a) Upon the oral or written request of an employee, an employer shall provide paid sick
days for the following purposes:
Diagnosis, care, or treatment of an existing health condition of, or preventive care
for, an employee or an employee’s family member.
For an employee who is a victim of domestic violence, sexual assault, or stalking, the
purposes described in subdivision (c) of Section 230 and subdivision (a) of Section
An employer shall not require as a condition of using paid sick days that the
employee search for or find a replacement worker to cover the days during which the
employee uses paid sick days.
(c) An employer shall not deny an employee the right to use accrued sick days,
discharge, threaten to discharge, demote, suspend, or in any manner discriminate against
an employee for using accrued sick days, attempting to exercise the right to use accrued
sick days, filing a complaint with the department or alleging a violation of this article,
cooperating in an investigation or prosecution of an alleged violation of this article, or
opposing any policy or practice or act that is prohibited by this article.
There shall be a rebuttable presumption of unlawful retaliation if an employer denies
an employee the right to use accrued sick days, discharges, threatens to discharge,
demotes, suspends, or in any manner discriminates against an employee within 30 days
of any of the following:
(A) The filing of a complaint by the employee with the Labor Commissioner or alleging
a violation of this article.
The cooperation of an employee with an investigation or prosecution of an alleged
violation of this article.
Opposition by the employee to a policy, practice, or act that is prohibited by this
article.
Labor Code Section 247, in pertinent part, provides:
(a) In each workplace of the employer, the employer shall display a poster in a
conspicuous place containing all the information specified in subdivision (b). The Labor
Commissioner shall create a poster containing this information and make it available to
employers.
The poster shall state all of the following:
An employee is entitled to accrue, request, and use paid sick days.
The amount of sick days provided for by this article.
The terms of use of paid sick days.
That retaliation or discrimination against an employee who requests paid sick days or
uses paid sick days, or both, is prohibited and that an employee has the right under this
article to file a complaint with the Labor Commissioner against an employer who
retaliates or discriminates against the employee.
(c) An employer who willfully violates the posting requirements of this section is
subject to a civil penalty of not more than one hundred dollars ($100) per each offense.
Labor Code Section 247.5, in pertinent part, provides:
(a) An employer shall keep for at least three years records documenting the hours
worked and paid sick days accrued and used by an employee, and shall allow the Labor
COMPLAINT FOR DAMAGES AND OTHER RELIEF AND DEMAND FOR JURY TRIAL
Commissioner to access these records pursuant to the requirements set forth in Section
1174. An employer shall make these records available to an employee in the same
manner as described in Section 226. If an employer does not maintain adequate records
pursuant to this section, it shall be presumed that the employee is entitled to the
maximum number of hours accruable under this article, unless the employer can show
otherwise by clear and convincing evidence.
Notwithstanding any other provision of this article, an employer is not obligated to
inquire into or record the purposes for which an employee uses paid leave or paid time
off.
Labor Code Section 248.5, in pertinent part, provides:
If a violation of this article results in other harm to the employee or person, such as
discharge from employment, or otherwise results in a violation of the rights of the
employee or person, the administrative penalty shall include a sum of fifty dollars ($50)
for each day or portion thereof that the violation occurred or continued, not to exceed an
aggregate penalty of four thousand dollars ($4,000).
(e) The Labor Commissioner or the Attorney General may bring a civil action in a court
of competent jurisdiction against the employer or other person violating this article and,
prevailing, shall be entitled to collect legal or equitable relief on behalf of the
aggrieved as may be appropriate to remedy the violation, including reinstatement,
backpay, the payment of sick days unlawfully withheld, the payment of an additional
sum, not to exceed an aggregate penalty of four thousand dollars ($4,000), as liquidated
damages in the amount of fifty dollars ($50) to each employee or person whose rights
under this article were violated for each day or portion thereof that the violation
occurred or continued, plus, if the employer has unlawfully withheld paid sick days to an
employee, the dollar amount of paid sick days withheld from the employee multiplied by
three; or two hundred fifty dollars ($250), whichever amount is greater; and
reinstatement in employment or injunctive relief; and further shall be awarded
reasonable attorney’s fees and costs, provided, however, that any person or entity
enforcing this article on behalf of the public as provided for under applicable state law
shall, upon prevailing, be entitled only to equitable, injunctive, or restitutionary relief,
and reasonable attorney’s fees and costs.
(f) In an administrative or civil action brought under this article, the Labor
Commissioner or court, as the case may be, shall award interest on all amounts due and
unpaid at the rate of interest specified in subdivision (b) of Section 3289 of the Civil
Code.
The remedies, penalties, and procedures provided under this article are cumulative.
During and throughout the course of his employment, DEFENDANTS failed to
provide PLAINTIFF with written notice of available accrued paid sick leave as required by law.
During and throughout the course of his employment, DEFENDANTS failed to
provide PLAINTIFF with paid sick leave as required by law.
PLAINTIFF suffered injury from DEFENDANTS’ failure to provide notice of available
accrued sick leave, pay for days in which he missed work and would have been entitled to paid
sick leave, and days in which he came to work sick due to DEFENDANTS’ failure to provide
paid sick leave as required by law PLAINTIFF could not determine the amount of wages
COMPLAINT FOR DAMAGES AND OTHER RELIEF AND DEMAND FOR JURY TRIAL
earned or whether all wages due had been paid. PLAINTIFF must therefore go through the
difficulty and bear the expense of reconstructing all time and pay records to make computations
to analyze the amounts of wages due.
PLAINTIFF seeks to recover actual damages, costs, and attorneys’ fees under these
provisions.
Wherefore, PLAINTIFF prays for judgment as set forth below
SEVENTH CAUSE OF ACTION
UNFAIR COMPETITION LAW
Business and Professions Code Sec. 17200 et seq.
(Against all Defendants)
PLAINTIFF incorporate herein by reference the foregoing paragraphs.
Business and Professions Code Section 17200, et seq. prohibits unfair competition in the
form of any unlawful, unfair, deceptive, or fraudulent business practices.
Beginning at an exact date unknown to PLAINTIFF, but continuing through his
eparation of employment, committed unlawful acts as defined by Business
and Professions Code Section 17200. DEFENDANTS’s unlawful and unfair business practices
include, but are not necessarily limited to, violations of the requirements of Labor Code sections
et seq. and the applicable Wage Order
The knowing conduct of , as alleged herein, constitutes an unlawful
and/or fraudulent business practice, as set forth in Business and Professions Code Sections
17208. Specifically, conducted business activities while failing to
comply with the legal mandates herein.
knowing failure to adopt policies in accordance with, and/or to adhere
to these laws, all of which are binding upon and burdensome on its competitors, engenders an
unfair competitive advantage for , thereby consti
Preview
1 2 3 4 5 Attorney for Plaintiff 6 7 8 9 (UNLIMITED CIVIL) 1 COMPLAINT FOR DAMAGES AND OTHER RELIEF AND DEMAND FOR JURY TRIAL Plaintiff LUIS FREGOSO informed and believe and thereon alleges: PARTIES Plaintiff LUIS FREGOSO PLAINTIFF , an individual, is a competent adult PLAINTIFF, at all times relevant as alleged herein, was a resident of the County of Santa Clara and employee of defendants MARISCOS PUERTO VALLARTA, an unknown business entity, CESAR AGUIRREZ, an individual and DOES 1 through inclusive (collectively “ ”). Defendant MARISCOS PUERTO VALLARTA MARISCOS , is and at all relevant times hereto was, an unknown business entity formed under the laws of the State of California, with business address of 7121 Monterey Street, Gilroy, California 95020 MARISCOS manages and operates Mexican restaurant under the name “Mariscos Puerto Vallarta , located 7121 Monterey Street, Gilroy, California 95020 Defendant CESAR AQUIRREZ AGUIRREZ”), is and at all times relevant hereto was, individual licensed to do business in California. Defendant AGUIRREZ is the owner and operator of MARISCOS and employed PLAINTIFF during the relevant time period. PLAINTIFF i informed and believe and thereon alleges there exists, at all times mentioned herein, ownership interest between all , such any individuality and separateness among , and each of them, has ceased, and all were joint employers of PLAINTIFF PLAINTIFF informed and believe and thereon allege are corporations, entities, and/or individuals authorized to conduct business, conducting regular and continuous business transactions, and employing individuals in and existing under the laws of the State of California. own and operate establishments ithin the State of California. PLAINTIFF’s work location was primarily restaurant located in the City of Gilroy Jose 7121 Monterey Street, Gilroy California 95020 PLAINTIFF is ignorant as to the true names and/or capacities of the persons named as DOES 1 through 20, inclusive, and therefore sue them by such fictitious names. PLAINTIFF COMPLAINT FOR DAMAGES AND OTHER RELIEF AND DEMAND FOR JURY TRIAL will amend this Complaint to assert the true names and capacities when ascertained. Except as otherwise alleged herein, PLAINTIFF is informed and believes, and thereon alleges, each of the defendants sued as DOES 1 through 20, inclusive, is legally responsible for the damages caused to PLAINTIFF as alleged herein. Whenever in this complaint reference is made to any act or omission of such act or omission shall be deemed the act or omission of each defendant, acting individually, jointly, and severally. Whenever in this complaint reference is made to any act or omission of a corporate defendant, such allegation shall be deemed to mean that corporate defendant, its officers, directors, agents, employees, and representatives did or authorized such act or omission while actively engaged in the management, direction and control of the affairs of that corporate defendant, and while acting within the course and scope of their agency and employment. Plaintiff is informed and believes and on such information and belief alleges at all times relevant hereto, there exists, a unity of interest and ownership between DEFENDANTS such that any individually and separateness between them has ceased. MARISCOS is an alter ego of defendant AGUIRREZ in that the business entity defendant and at all times mentioned herein was a mere shell and a sham without capital, assets, stock, or stockholders. While PLAINTIFF lacks evidentiary support at the present time to support these allegations, PLAINTIFF informed and believes these alleged facts are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery. PLAINTIFF is informed and believes and on such information and belief alleges, at all times relevant hereto, MARISCOS, was conceived, intended, and used by AGUIRREZ as a device to avoid individual liability and for the purpose of substituting financially insolvent companies in the place of AGUIRREZ personally. While PLAINTIFF lacks evidentiary support at the present time to support these allegations, PLAINTIFF is informed and believes these alleged facts are likely to have evidentiary support after a reasonable opportunity for further vestigation and discovery. COMPLAINT FOR DAMAGES AND OTHER RELIEF AND DEMAND FOR JURY TRIAL PLAINTIFF is informed and believes and on such information and belief alleges, at all times relevant hereto, MARISCOS and AGUIRREZ are and at all times herein were, so inadequately capitalized compared with the business to be done by them and the risks of loss attendant hereto, their capitalization was illusory. While PLAINTIFF evidentiary support at the present time to support these allegations, PLAINTIFF informed and believe these alleged facts are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery. PLAINTIFF is informed and believe and on such information and belief allege , at all times relevant hereto, AGUIRREZ used assets of MARISCOS for his own personal uses, aused assets of business entity to be transferred to him without adequate consideration, and withdraw funds from the business entity defendants’ bank accounts for his own personal use. While PLAINTIFF evidentiary support at the present time to support these allegations, PLAINTIFF informed and believes these alleged facts are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery. PLAINTIFF is informed and believe and on such information and belief allege , at all times relevant hereto, MARISCOS was a mere shell, instrumentality, and conduit through which AGUIRREZ carried on their joint venture business in the business entity names exactly had conducted it previous to any incorporation, exercising complete control and dominance of such businesses to such an extent any individuality or separateness of MARISCOS and AGUIRREZ does not exist, and at all times herein mentioned did not exist. While PLAINTIFF evidentiary support at the present time to support these allegations, they are informed and believe these alleged facts are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery. PLAINTIFF is informed and believe and on such information and belief allege MARISCOS and at all times herein mentioned controlled, dominated, and operated by AGUIRREZ his individual business and alter ego, in that the activities and business of MARISCOS was carried out without the holding of directors and stockholders meetings, no COMPLAINT FOR DAMAGES AND OTHER RELIEF AND DEMAND FOR JURY TRIAL records or minutes of any corporate proceedings were maintained, and AGUIRREZ entered into personal transactions with MARISCOS without the approval of other directors or shareholders. While PLAINTIFF evidentiary support at the present time to support these allegations, he informed and believe these alleged facts are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery. Adherence to the fiction of this separate existence of MARISCOS an entity distinct from AGUIRREZ would permit abuse of the corporate privilege and would sanction a fraud in that AGUIRREZ caused funds to be withdrawn from the funds of the business entity defendants, distributing such funds to themselves without any consideration to the business entity defendants, all for the purpose of avoiding and preventing creditors, such as PLAINTIFF herein, from attaching and executing on the assets of the business entity defendants, and further AGUIRREZ attempted to, and in fact rendered, MARISCOS insolvent and unable to meet its obligations. While PLAINTIFF evidentiary support at the present time to support these allegations, he is informed and believe these alleged facts are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery. Adherence to the fiction of this separate existence of MARISCOS as an entity distinct from AGUIRREZ would further permit abuse of the corporate privilege and would produce an inequitable result in that PLAINTIFF is informed and believe , and on such information and belief allege AGUIRREZ has made loans to MARISCOS and MARISCOS has made promises of repayment to AGUIRREZ and has guaranteed certain of the other’s obligations, hereby abling MARISCOS to return to active business without adequate financing and without capital stock, which return to business invited the public generally, and PLAINTIFF in particular, to deal with MARISCOS to the loss of PLAINTIFF. While PLAINTIFF lacks evidentiary support at the present time to support these allegations, he is informed and believe these alleged facts are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery. COMPLAINT FOR DAMAGES AND OTHER RELIEF AND DEMAND FOR JURY TRIAL JURISDICTION AND VENUE he monetary value of PLAINTIFF’s claims exceeds $25,000. The amount in controversy herein is within the jurisdiction of this Court. PLAINTIFF allege on information and belief were and are companies, entities, and individuals authorized to conduct conducting substantial, systematic, and continuous business transactions in the County of Santa Clara The acts, omissions, damages and injury that form the basis of this lawsuit wer sustained in the County of Santa Clara FACTUAL ALLEGATIONS employed PLANTIFF as a exempt server and cook at their restaurant from approximately March 14, 2014 until approximately February 11, 2018 DEFENDANTS paid PLAINTIFF $400.00 per workweek regardless of hours worked until approximately September 3, 2017, after which DEFENDANTS paid PLAINTIFF $500.00 per workweek regardless of all hours worked until separation of employment. PLAINTIFF’s daily duties included, but were not limited to: memorizing food menu, reviewing changes to the food menu, processing food orders preparing food for cooking cleaning DEFENDANTS restaurant, assisting other employees of in the performance of their duties maintaining a clean workplace maintaining a presence at restaurant remaining on call between shifts, and other duties as assigned. FIRST CAUSE OF ACTION FAILURE TO PAY ALL WAGES OWED (Violation of Labor Code Secs. 510, 1194 1198; IWC Wage Orders Against all Defendants PLAINTIFF herein incorporate by reference the foregoing paragraphs. COMPLAINT FOR DAMAGES AND OTHER RELIEF AND DEMAND FOR JURY TRIAL At all relevant times, were aware of, and under a duty to comply with, the provisions of the Labor Code including, but not limited to, Labor Code sections 510, 1194, 1197, an Labor Code Section 510, in pertinent part, provides: “Any work in excess of eight hours in one workday and any work in excess of 40 hours in any one workweek…shall be compensated at the rate of no less than one and one half times the regular rate of pay for any employee…” Labor Code Section 1194(a), in pertinent part, provides: Notwithstanding any agreement to work for a lesser wage, any employee receiving less than the legal minimum wage or the legal overtime compensation applicable to the employee is entitled to recover in a civil action the unpaid balance of the full amount of this minimum wage or overtime compensation, including interest thereon, reasonable attorney’s fees, and costs of suit. Labor Code Section 1194.2(a), in pertinent part, provides: In any action under Section 98, 1193.6, 1194, or 1197.1 to recover wages because of the payment of a wage less than the minimum wage fixed by an order of the commission or by statute, an mployee shall be entitled to recover liquidated damages in an amount equal to the wages unlawfully unpaid and interest thereon. Nothing in this subdivision shall be construed to authorize the recovery of liquidated damages for failure to pay overtime compensation. A suit may be filed for liquidated damages at any time before the expiration of the statute of limitations on an action for wages from which the liquidated damages arise Labor Code Section 1197 provides: “The minimum wage for employees fixed by the commission is the minimum wage to be paid to employees, and the payment of a less wage than the minimum so fixed is unlawful.” Labor Code Section 1198, in pertinent part, provides: “The maximum amount hours of work and the standard conditions of labor fixed by the commission shall be the maximum hours of work and the standard conditions of labor for employees. The employment of any employee for longer hours than those fixed by the order or under conditions of labor prohibited by the order is unlawful.” PLAINTIFF often worked more than eight (8) hours in a workday throughout his employment with PLAINTIFF often worked more than 40 hours in a COMPLAINT FOR DAMAGES AND OTHER RELIEF AND DEMAND FOR JURY TRIAL workweek throughout his employment with During PLAINTIFF’s employment, failed to compensate PLAINTIFF for all hours worked required PLAINTIFF o be present and under control before and after work shift for assignments, instructions, training, and accounting of register terminals failed to pay PLAINTIFF compensation for time spent receiving gnments, instructions, training, working, and accounting for register terminal , inclu applicable overtime premiums DEFENDANTS made unlawful deductions from PLAINTIFF’s wages where DEFENDANTS suffered losses incurred through no fault of PLAINTIFF. By failing to pay PLAINTIFF for all hours worked at the appropriate overtime rates, violated the Labor Code, and the applicable IWC Wage Order as set forth herein. As a direct and proximate result of unlawful conduct, as set forth herein, PLAINTIFF sustained damages, including loss of earnings, in an amount to be established at trial, and entitled to recover attorneys’ fees and costs of suit. Wherefore, PLAINTIFF pray for judgment as set forth below. SECOND CAUSE OF ACTION FAILURE TO PROVIDE MEAL REST PERIODS Labor Code Secs. 226.7, 512, 1198; IWC Wage Order Against all Defendants) PLAINTIFF herein incorporate by reference the foregoing paragraphs. Labor Code Section 512(a) and applicable California Wage Orders set forth the minimum requirements for the provision of meal periods to non exempt employees in California. The applicable wage order indicates that “[n]o employer shall employ any person for a work period of more than five (5) hours without a meal period of not less than 30 minutes, except that when a work period of not more than six (6) hours will complete the day’s work the meal period may be waived by mutual consent of the employer and the employee.” COMPLAINT FOR DAMAGES AND OTHER RELIEF AND DEMAND FOR JURY TRIAL Furthermore, the wage order indicates that “an employer may not employ an employee for a work period of more than ten (10) hours per day without providing the employee with a second meal period of not less than 30 minutes, except that if the total hours worked is no more than 12 hours, the second meal period may be waived by mutual consent of the employer and the employee only if the first meal period was not waived.” Labor Code Section 512(a) and applicable California Wage Orders set for the minimum requirements for the provision of rest breaks to non exempt employees in California. The applicable wage order indicates that “[e]very employer shall authorize and permit all employees to take rest periods, which insofar as practicable shall be in the middle of each work period. The authorized rest period time shall be based on the total hours worked daily at the rate of ten minutes net rest time per four (4) hours or major fraction thereof. However, a rest period need not be authorized for employees whose total daily work time is less than three and one half (3 1/2) hours. Authorized rest period time shall be counted as hours worked for which there shall be no deduction from wages.” Labor Code Section 226.7 provides that no employer shall require any employee to work during any meal or rest period mandated by an applicable Wage Order. If an employer fails to provide an employee a meal or rest period in accordance with the applicable provisions of the wage order, the employer shall pay the employee one (1) hour of pay at the employee’s regular rate of compensation for each workday that the meal or rest period is not provided. Pursuant to the above provisions, PLAINTIFF entitled to meal periods in which relieved of all job duties or compensation at the rate of one (1) hour of pay at the employee’s regular rate of compensation for each workday the meal period was not provided, and to a net 10 minute rest period for every four hours worked or major fraction thereof, or compensation at the rate of one (1) hour of pay at the employee’s regular rate of compensation for each workday the rest period was not provided. required PLAINTIFF to work without receiving timely meal periods and rest breaks to which he was entitled COMPLAINT FOR DAMAGES AND OTHER RELIEF AND DEMAND FOR JURY TRIAL required PLAINTIFF work shifts in excess of five (5) hours without an opportunity for PLAINTIFF to receive meal period as required under the applicable Wage Order. instruction was to work the shift without a meal period. PLAINTIFF’s supervisors failed to schedule meal periods for PLAINTIFF failed to schedule relief for shifts worked by PLAINTIFF and prohibited PLAINTIFF from not performing his job duties to take meal periods. PLAINTIFF never waived, nor was provided with an opportunity to take, his meal periods as required by law required PLAINTIFF work shifts in excess of four (4) hours without the authorization or permission to take rest period instruction was to work the shift without a rest period. PLAINTIFF’s supervisors failed to schedule rest periods for PLAINTIFF failed to schedule additional employees for shifts worked by PLAINTIFF and prohibited PLAINTIFF from closing business to take rest periods. PLAINTIFF never waived, nor authorized or permitted to take, his rest periods required by law On occasions where required PLAINTIFF to work without receiving timely meal periods and rest breaks, failed to compensate PLAINTIFF required by law. Due to failure to provide timely, off duty meal and rest periods as required by law, PLAINTIFF entitled to recover unpaid wages, in an amount to be proven at trial. Wherefore, PLAINTIFF pray for judgment as set forth below. THIRD CAUSE OF ACTION FAILURE TO PAY WAGES ON SEPARATION Violation of California Labor Code Section (Against all Defendants) PLAINTIFF incorporate herein by reference the foregoing paragraphs. Labor Code Section 203, in pertinent part, provides that: COMPLAINT FOR DAMAGES AND OTHER RELIEF AND DEMAND FOR JURY TRIAL If an employer willfully fails to pay, without abatement or reduction, in accordance with Sections 201, 201.3, 201.5, 202, and 205.5, any wages of an employee who is discharged or who quits, the wages of the employee shall continue as a penalty from the due date thereof at the same rate until paid or until an action therefor is commenced; but the wages shall not continue for more than 30 days. failed to pay PLAINTIFF due wages (including minimum wage and premium overtime and wages for break violations) due upon separation of employment Said non payment was the direct and proximate result of a willful refusal to do so by To date, have not paid PLAINTIFF all due wages. As a direct and proximate result of willful conduct in failing to pay PLAINTIFF for all hours worked, PLAINTIFF is entitled to recover “waiting time” penalties of up to 30 days wages pursuant to Labor Code Section 203 in an amount to be established at trial, together with interest thereon, and attorneys’ fees and costs. Wherefore, PLAINTIFF pray for judgment as set forth below. FOURTH CAUSE OF ACTION FAILURE TO MAINTAIN ACCURATE TIME RECORDS (Violation of Labor Code Section 1198; IWC Wage Orders) Against all Defendants) LAINTIFF corporate herein by reference the foregoing paragraphs. Labor Code Section 1198, in pertinent part provides: “The maximum hours of work and the standard conditions of labor fixed by the commission shall be the maximum hours of work and the standard conditions of labor for employees. The employment of any employee for longer hours than those fixed by the order or under conditions of labor prohibited by the order is unlawful. The applicable wage order, in pertinent part, provides: (A) Every employer shall keep accurate information with respect to each employee including the following: 3) Time records showing when the employee begins and ends each work period. Meal periods, split shift intervals and total daily hours worked shall also be recorded. Meal periods during which operations cease and authorized rest periods need not be recorded. (4) Total wages paid each payroll period, including value of board, lodging, or other compensation actually furnished to the employee. (5) Total hours worked in the COMPLAINT FOR DAMAGES AND OTHER RELIEF AND DEMAND FOR JURY TRIAL payroll period and applicable rates of pay. This information shall be made readily available to the employee upon reasonable request. Every employer shall semimonthly or at the time of each payment of wages furnish each employee, either as a detachable part of the check, draft, or voucher paying the employee's wages, or separately, an itemized statement in writing showing: (1) all deductions; (2) the inclusive dates of the period for which the employee is paid; (3) the name of the employee or the employee's social security number; and (4) the name of the employer, provided all deductions made on written orders of the employee may be aggregated and shown as one item. All required records shall be in the English language and in ink or other indelible form, properly dated, showing month, day and year, and shall be kept on file by the employer for at least three years at the place of employment or at a central location within the State of California. An employee's records shall be available for inspection by the employee upon reasonable request. often failed to maintain accurate time records of all hours worked by PLAINTIFF, including meal periods. knew they were required by law to maintain accurate time records of all hours worked and intentionally failed to maintain them for PLAINTIFF PLAINTIFF suffered injury from failure to maintain accurate time records. PLAINTIFF could not determine the amount of wages earned or whether all wages due had been paid. PLAINTIFF must therefore go through the difficulty and bear the expense of reconstructing all time and pay records to make computations to analyze the amounts of wages due. Wherefore, PLAINTIFF pray for judgment as set forth below. FIFTH CAUSE OF ACTION FAILURE TO VIDE ACCURATE ITEMIZED WAGE STATEMENTS Labor Code Sec. 226 Against all Defendants) PLAINTIFF incorporate herein by reference the foregoing paragraphs. During the relevant time period, up to and including December 31, 2011, Labor Code Section 226(a) provided: Every employer shall, semimonthly or at the time of each payment of wages, furnish each of his or her employees, either as a detachable part of the check, draft, or voucher paying the employee's wages, or COMPLAINT FOR DAMAGES AND OTHER RELIEF AND DEMAND FOR JURY TRIAL separately when wages are paid by personal check or cash, an accurate itemized statement in writing showing (1) gross wages earned, (2) total hours worked by the employee, except for any employee whose compensation is solely based on a salary and who is exempt from payment of overtime under subdivision (a) of Section 515 or any applicable order of the Industrial Welfare Commission, (3) the number of piece rate units earned and any applicable piece rate if the employee is paid on a piece rate basis, (4) all deductions, provided that all deductions made on written orders of the employee may be aggregated and shown as one item, (5) net wages earned, (6) the inclusive dates of the period for which the employee is paid, (7) the name of the employee and his or her social security number, except that by January 1, 2008, only the last four digits of his or her social security number or an employee identification number other than a social security number may be shown on an itemized statement, (8) the name and address of the legal entity that is the employer, and (9) all applicable hourly rates in effect during the pay period and the corresponding number of hours worked at each hourly rate by the employee. The deductions made from payment of wages shall be recorded in ink or other indelible form, properly dated, showing the month, day, and year, and a copy of the statement and the record of the deductions shall be kept on file by the employer for at least three years at the place of employment or at a central location within the State of California. During the relevant time period, between January 1, 2012 and December 3 Labor Code Section 226(a) provided: Every employer shall, semimonthly or at the time of each payment of wages, furnish each of his or her employees, either as a detachable part of the check, draft, or voucher paying the employee's wages, or separately when wages are paid by personal check or cash, an accurate itemized statement in writing showing (1) gross wages earned, (2) total hours worked by the employee, except for any employee whose mpensation is solely based on a salary and who is exempt from payment of overtime under subdivision (a) of Section 515 or any applicable order of the Industrial Welfare Commission, (3) the number of piece rate units earned and any applicable piece rate if the employee is paid on a piece rate basis, (4) all deductions, provided that all deductions made on written orders of the employee may be aggregated and shown as one item, (5) net wages earned, (6) the inclusive dates of the period for which the employee is paid, (7) the name of the employee and the last four digits of his or her social security number or an employee identification number other than a social security number, (8) the name and address of the legal entity that is the employer and, if the employer is a farm labor contractor, as defined in subdivision (b) of Section 1682, the name and address of the legal entity that secured the services of the employer, and (9) all applicable hourly rates in effect during the pay period and the corresponding number of hours worked at each hourly rate by the employee. The deductions made from payments of wages shall be recorded in ink or other indelible form, properly dated, showing the month, day, and year, and a copy of the statement and the record of the deductions shall be kept on file by the employer for at least three years at the place of employment or at a central location within the State of California. COMPLAINT FOR DAMAGES AND OTHER RELIEF AND DEMAND FOR JURY TRIAL During the relevant time period, since and including January 1, 2013, Labor Code Section 226(a) provided and provides: Every employer shall, semimonthly or at the time of each payment of wages, furnish each of his or her employees, either as a detachable part of the check, draft, or voucher paying the employee's wages, or separately when wages are paid by personal check or cash, an accurate itemized statement in writing showing (1) gross wages earned, (2) total hours worked by the employee, except for any employee whose compensation is solely based on a salary and who is exempt from payment of overtime under subdivision (a) of Section 515 or any applicable order of the Industrial Welfare Commission, (3) the number of piece rate units earned and any applicable piece rate if the employee is paid on a piece rate basis, (4) all deductions, provided that all deductions made on written orders of the employee may be aggregated and shown as one item, (5) net wages earned, (6) the inclusive dates of the period for which the employee is paid, (7) the name of the employee and only the last four digits of his or her social security number or an employee identification number other than a social security number, (8) the name and address of the legal entity that is the employer and, if the employer is a farm labor contractor, as defined in subdivision (b) of Section 1682, the name and address of the legal entity that secured the services of the employer, and (9) all applicable hourly rates in effect during the pay period and the corresponding number of hours worked at each hourly rate by the employee and, beginning July 1, 2013, if the employer is a temporary services employer as defined in Section 201.3, the rate of pay and the total hours worked for each temporary services assignment. The deductions made from payment of wages shall be recorded in ink or other indelible form, properly dated, showing the month, day, and year, and a copy of the statement and the record of the deductions shall be kept on file by the employer for at least three years at the place of employment or at a central location within the State of California. For purposes of this subdivision, "copy" includes a duplicate of the itemized statement provided to an employee or a computer generated record that accurately shows all of the information required by this subdivision. Moreover, up to and including December 31, 2012, Labor Code Section 226(e) provided: An employee suffering injury as a result of a knowing and intentional failure by an employer to comply with subdivision (a) is entitled to recover the greater of all actual damages or fifty dollars ($50) for the initial pay period in which a violation occurs and one hundred dollars ($100) per employee for each violation in a subsequent pay period, not exceeding an aggregate penalty of four thousand dollars ($4,000), and is entitled to an award of costs and reasonable attorney’s fees. During the relevant time period, since and including January 1, 2013, Labor Code Section 226(e)(1) provided and provides: COMPLAINT FOR DAMAGES AND OTHER RELIEF AND DEMAND FOR JURY TRIAL An employee suffering injury as a result of a knowing and intentional failure by an employer to comply with subdivision (a) is entitled to recover the greater of all actual damages or fifty dollars ($50) for the initial pay period in which a violation occurs and one hundred dollars ($100) per employee for each violation in a subsequent pay period, not to exceed an aggregate penalty of four thousand dollars ($4,000), and is entitled to an award of costs and reasonable attorney's fees. Furthermore, during the relevant time period, since and including January 1, 2013, Labor Code Section 226(e)(2) provided and provides: (A) An employee is deemed to suffer injury for purposes of this subdivision if the employer fails to provide a wage statement. An employee is deemed to suffer injury for purposes of this subdivision if the employer fails to provide accurate a complete information as required by any one or more of items (1) to (9), inclusive, of subdivision (a) and the employee cannot promptly and easily determine from the wage statement alone one or more of the following: (i) The amount of the gross wages or net wages paid to the employee during the pay period or any of the other information required to be provided on the itemized wage statement pursuant to items (2) to (4), inclusive, (6), and (9) of subdivision (a). (ii) Which deductions the employer made from gross wages to determine the net wages paid to the employee during the pay period. Nothing in this subdivision alters the ability of the employer to aggregate deductions consistent with the requirements of item (4) of subdivision (a). (iii) The name and address of the employer and, if the employer is a farm labor contractor, as defined in subdivision (b) of Section 1682, the name and address of the legal entity that secured the services of the employer during the pay period. (iv) The name of the employee and only the last four digits of his or her social security number or an employee identification number other than a social security number. knew they were required by law to furnish accurate itemized statements in writing and intentionally failed to furnish them to PLAINTIFF on the regular paydays. have failed to provide timely, accurate itemized wage statements to statements to PLAINTIFF in accordance with Labor Code Section PLAINTIFF informed and believe and, on that basis, allege e statements provided by COMPLAINT FOR DAMAGES AND OTHER RELIEF AND DEMAND FOR JURY TRIAL failed to accurate reflect the lawful hourly rates applicable to, inter alia, training time, work hours in excess of eight hours in a work day and/or 40 hours in a work , and sick leave PLAINTIFF suffered injury from failure to provide accurate itemized statements in writing on the regular paydays. PLAINTIFF could not determine the amount of wages earned or whether all wages due had been paid. PLAINTIFF must therefore go through the difficulty and bear the expense of reconstructing all time and pay records to make computations to analyze the amounts of wages due. PLAINTIFF to recover actual damages, costs, and attorneys’ fees under these provisions. Wherefore, PLAINTIFF pray for judgment as set forth below SIXTH CAUSE OF ACTION FAILURE TO PROVIDE SICK LEAVE (Violation of Labor Code Sections (Against all Defendants) PLAINTIFF incorporates herein by reference the foregoing paragraphs. California Labor Code Section , in pertinent part: (a) An employee who, on or after July 1, 2015, works in California for the same employer for 30 or more days within a year from the commencement of employment is entitled to paid sick days as specified in this section. An employee shall accrue paid sick days at the rate of not less than one hour per every 30 hours worked, beginning at the commencement of employment or the operative date of this article, whichever is later, subject to the use and accrual limitations set forth in this section. Accrued paid sick days shall carry over to the following year of employment. However, an employer may limit an employee’s use of accrued paid sick days to 24 hours or three days in each year of employment, calendar year, or 12 month period. This section shall be satisfied and no accrual or carryover is required if the full amount of leave is received at the beginning of each year of employment, calendar year, or 12 month period. The term “full amount of leave” means three days or 24 hours. (i) An employer shall provide an employee with written notice that sets forth the amount of paid sick leave available, or paid time off leave an employer provides in lieu of sick leave, for use on either the employee’s itemized wage statement described in Section 226 or in a separate writing provided on the designated pay date with the employee’s payment of wages. If an employer provides unlimited paid sick leave or COMPLAINT FOR DAMAGES AND OTHER RELIEF AND DEMAND FOR JURY TRIAL unlimited paid time off to an employee, the employer may satisfy this section by indicating on the notice or the employee’s itemized wage statement “unlimited.” An employer shall provide payment for sick leave taken by an employee no later than the payday for the next regular payroll period after the sick leave was taken. California Labor Code Section 246.5 states, in pertinent part: (a) Upon the oral or written request of an employee, an employer shall provide paid sick days for the following purposes: Diagnosis, care, or treatment of an existing health condition of, or preventive care for, an employee or an employee’s family member. For an employee who is a victim of domestic violence, sexual assault, or stalking, the purposes described in subdivision (c) of Section 230 and subdivision (a) of Section An employer shall not require as a condition of using paid sick days that the employee search for or find a replacement worker to cover the days during which the employee uses paid sick days. (c) An employer shall not deny an employee the right to use accrued sick days, discharge, threaten to discharge, demote, suspend, or in any manner discriminate against an employee for using accrued sick days, attempting to exercise the right to use accrued sick days, filing a complaint with the department or alleging a violation of this article, cooperating in an investigation or prosecution of an alleged violation of this article, or opposing any policy or practice or act that is prohibited by this article. There shall be a rebuttable presumption of unlawful retaliation if an employer denies an employee the right to use accrued sick days, discharges, threatens to discharge, demotes, suspends, or in any manner discriminates against an employee within 30 days of any of the following: (A) The filing of a complaint by the employee with the Labor Commissioner or alleging a violation of this article. The cooperation of an employee with an investigation or prosecution of an alleged violation of this article. Opposition by the employee to a policy, practice, or act that is prohibited by this article. Labor Code Section 247, in pertinent part, provides: (a) In each workplace of the employer, the employer shall display a poster in a conspicuous place containing all the information specified in subdivision (b). The Labor Commissioner shall create a poster containing this information and make it available to employers. The poster shall state all of the following: An employee is entitled to accrue, request, and use paid sick days. The amount of sick days provided for by this article. The terms of use of paid sick days. That retaliation or discrimination against an employee who requests paid sick days or uses paid sick days, or both, is prohibited and that an employee has the right under this article to file a complaint with the Labor Commissioner against an employer who retaliates or discriminates against the employee. (c) An employer who willfully violates the posting requirements of this section is subject to a civil penalty of not more than one hundred dollars ($100) per each offense. Labor Code Section 247.5, in pertinent part, provides: (a) An employer shall keep for at least three years records documenting the hours worked and paid sick days accrued and used by an employee, and shall allow the Labor COMPLAINT FOR DAMAGES AND OTHER RELIEF AND DEMAND FOR JURY TRIAL Commissioner to access these records pursuant to the requirements set forth in Section 1174. An employer shall make these records available to an employee in the same manner as described in Section 226. If an employer does not maintain adequate records pursuant to this section, it shall be presumed that the employee is entitled to the maximum number of hours accruable under this article, unless the employer can show otherwise by clear and convincing evidence. Notwithstanding any other provision of this article, an employer is not obligated to inquire into or record the purposes for which an employee uses paid leave or paid time off. Labor Code Section 248.5, in pertinent part, provides: If a violation of this article results in other harm to the employee or person, such as discharge from employment, or otherwise results in a violation of the rights of the employee or person, the administrative penalty shall include a sum of fifty dollars ($50) for each day or portion thereof that the violation occurred or continued, not to exceed an aggregate penalty of four thousand dollars ($4,000). (e) The Labor Commissioner or the Attorney General may bring a civil action in a court of competent jurisdiction against the employer or other person violating this article and, prevailing, shall be entitled to collect legal or equitable relief on behalf of the aggrieved as may be appropriate to remedy the violation, including reinstatement, backpay, the payment of sick days unlawfully withheld, the payment of an additional sum, not to exceed an aggregate penalty of four thousand dollars ($4,000), as liquidated damages in the amount of fifty dollars ($50) to each employee or person whose rights under this article were violated for each day or portion thereof that the violation occurred or continued, plus, if the employer has unlawfully withheld paid sick days to an employee, the dollar amount of paid sick days withheld from the employee multiplied by three; or two hundred fifty dollars ($250), whichever amount is greater; and reinstatement in employment or injunctive relief; and further shall be awarded reasonable attorney’s fees and costs, provided, however, that any person or entity enforcing this article on behalf of the public as provided for under applicable state law shall, upon prevailing, be entitled only to equitable, injunctive, or restitutionary relief, and reasonable attorney’s fees and costs. (f) In an administrative or civil action brought under this article, the Labor Commissioner or court, as the case may be, shall award interest on all amounts due and unpaid at the rate of interest specified in subdivision (b) of Section 3289 of the Civil Code. The remedies, penalties, and procedures provided under this article are cumulative. During and throughout the course of his employment, DEFENDANTS failed to provide PLAINTIFF with written notice of available accrued paid sick leave as required by law. During and throughout the course of his employment, DEFENDANTS failed to provide PLAINTIFF with paid sick leave as required by law. PLAINTIFF suffered injury from DEFENDANTS’ failure to provide notice of available accrued sick leave, pay for days in which he missed work and would have been entitled to paid sick leave, and days in which he came to work sick due to DEFENDANTS’ failure to provide paid sick leave as required by law PLAINTIFF could not determine the amount of wages COMPLAINT FOR DAMAGES AND OTHER RELIEF AND DEMAND FOR JURY TRIAL earned or whether all wages due had been paid. PLAINTIFF must therefore go through the difficulty and bear the expense of reconstructing all time and pay records to make computations to analyze the amounts of wages due. PLAINTIFF seeks to recover actual damages, costs, and attorneys’ fees under these provisions. Wherefore, PLAINTIFF prays for judgment as set forth below SEVENTH CAUSE OF ACTION UNFAIR COMPETITION LAW Business and Professions Code Sec. 17200 et seq. (Against all Defendants) PLAINTIFF incorporate herein by reference the foregoing paragraphs. Business and Professions Code Section 17200, et seq. prohibits unfair competition in the form of any unlawful, unfair, deceptive, or fraudulent business practices. Beginning at an exact date unknown to PLAINTIFF, but continuing through his eparation of employment, committed unlawful acts as defined by Business and Professions Code Section 17200. DEFENDANTS’s unlawful and unfair business practices include, but are not necessarily limited to, violations of the requirements of Labor Code sections et seq. and the applicable Wage Order The knowing conduct of , as alleged herein, constitutes an unlawful and/or fraudulent business practice, as set forth in Business and Professions Code Sections 17208. Specifically, conducted business activities while failing to comply with the legal mandates herein. knowing failure to adopt policies in accordance with, and/or to adhere to these laws, all of which are binding upon and burdensome on its competitors, engenders an unfair competitive advantage for , thereby consti