Preview
Amanda M. Karl (SBN 301088)
Facsimile: (510) 350-9701
smt@classlawgroup.com
amk@classlawgroup.com
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA CLARA
Case No. 19-cv-347249
MULAK,
FIRST AMENDED COMPLAINT
Plaintiffs,
Defendant.
FIRST AMENDED COMPLAINTe tutoring services to its
customers.
relief and relief under the Private Attorneys’ General Act of 2
2699.5. The declaratory relief concerns the enforceability of
mandatory arbitration agreement that they were required to sign upon commencing employment as
provisions of the California Labor Code.
PARTIES
Plaintiff Henry Mulak is a resident and citizen of California. He was employed by
as Palo Alto, as far east as Fremont, and as far south as Los Gatos.
employed by Varsity Tutors as a tutor in the greater Los Angele
Defendant Varsity Tutors LLC is a Missouri limited liability company. Varsity Tutors is
Missouri.
herein because they arise
out of an employment relationship between Plaintiffs, who work
employer. Varsity Tutors has sufficient minimum contacts with
business within California so as to render
the exercise of jurisdiction over it by California state courts consistent with traditional notions of fair
Venue is proper in this Court under Code of Civil Procedure §§
the agreement to arbitrate was signed by Mulak, who performed substantial work under that agreement
FIRST AMENDED COMPLAINTFACTUAL ALLEGATIONS
Varsity Tutors provides private tutoring services for homework, exams, and
an online platform, which individual students or their parents
rsity Tutors verifies
potential tutors’ academic background and prior teaching experience and interviews them.
page of Varsity Tutors’ website advertises “personalized tutoring by top Stanford grads and others from
Varsity Tutors required Plaintiffs to agree to the Independent Contractor Agreement
(“the Agreement”) as a condition of their employment. A copy of the Agreement is attached hereto as
S$ a representative
any claim related to their employment on a
representative basis: “Tutor understands and agrees that all claims covered by this Arbitration
Provision that Tutor may have against the Company must be broug
not as a plaintiff or class member in any purported class actio
action proceeding.” This waiver is unenforceable as a matter 0
claims to be exclusively determined by binding arbitration:
Both the Company and Tutor agree that any claim, dispute, and/o
controversy that either Tutor may have against the Company . .
Company may have against Tutor, arising from, related to, or ha
contractor relationship with, providing independent contractor
other association with the Company shall be submitted to and determined
FIRST AMENDED COMPLAINTwith the exception of, among other things, “claims brought under [t]he California Labor Code Private
Attorneys General Act of 2004.”
Plaintiffs now seek declarations from the Court that: (i) the a
State of California as definitively interpreted and set forth i
there was no meeting of the minds or other mutual consent in the parties’ Agreement that would require
Plaintiffs’ representative claims, if any, to be decided in arb
civil claim against Defendant predicated in whole or in part on
illegal provision — must now be
maintained in a court of law rather than in arbitration.
(PAGA) as the representatives of current and former Varsity Tutors employees who are or were
affected by Varsity Tutors’ violations of California’s Labor Co
Varsity Tutors compensates Plaintiffs only for time spent durin
not for time spent traveling to and from tutoring sessions, pre
sessions. Plaintiffs are never paid overtime, even if they wor
Varsity Tutors’ compensation system does not allow for meal and
tutors. Plaintiffs were not compensated when they were unable to take meal and rest breaks.
Plaintiffs frequently drove directly from one client session to
drive a substantial distance. In one instance, Mulak spent two
from a tutoring session in Fremont to another session in San Jose. Plaintiffs were not compensated or
reimbursed for time spent driving or for gas and other expenses
FIRST AMENDED COMPLAINTVarsity Tutors does not provide itemized wage statements listin
its tutors. Tutors are not free from Varsity Tutors’ direction and control in performing the work, and
tutoring is within the usual course of Varsity Tutors’ business
During the time that Plaintiffs worked as tutors for Varsity Tu
received the following: (1) minimum wage for his non-tutoring work hours, including driving time,
lesson planning time, and time spent scheduling and communicati
overtime compensation that accounts for any hours worked in exc
a week; (3) compensation for missed meal or rest breaks; (4) full reimbursement for gas or miles
driven; or (5) itemized wage statements. In addition, Plaintiffs have been misclassified as independent
When Plaintiffs were hired by Defendant, they were required to enter into the
Agreement.
There currently exists an actual and real controversy between P
regarding the legality and enforceability of specific language contained in the Agreement. Clarification
of the parties’ rights and obligations under the Agreement is both necessary and proper at this time so
that Plaintiffs can determine where they can and should maintain the representative claim they are
preparing to commence at this time.
The Agreement between the parties purports to require Plaintiff
California Civil Code § 1667 defines “unlawfulness” as either “
express provision of law; (2) Contrary to the policy of express law, though not expressly prohibited; or
FIRST AMENDED COMPLAINT(3) Otherwise contrary to good morals.”
, 59 Cal. 4th 348, 384 (2014), the
California Supreme Court found that even if class-action waivers in arbitration agreements are
enforceable, where “an employment agreement compels the waiver of representative claims under the
PAGA, it is contrary to public policy and unenforceable as a ma
Plaintiffs now thus seek from the Court declarations that:
Cal. 4th 348 (2014), the representative action waiver in the Agreement’s arbitration provision is
unenforceable, invalid, unconscionable, void, and voidable with respect to any claims under the
California PAGA;
inter alia, the plain language of the Agreement excepting claims under
the California PAGA from the mandatory arbitration provision an
State of California to mandatory arbitration of such claims, there was and is no meeting of the
minds or other evidence of mutual consent that could require Plaintiffs to maintain any
representative PAGA claim they may bring in arbitration.
Plaintiffs may maintain a representative PAGA action in Court.
SECOND CAUSE OF ACTION—PAGA
Violations of Labor Code Private Attorneys General Act
Plaintiffs, aggrieved employees, bring a claim under California
rmer tutors for Varsity Tutors subjected
The California Private Attorneys General Act of 2004 (“PAGA”),
, grants California employees the right to bring a civil action
the Labor Code on behalf of themselves and other current or former employees in order to recover civil
penalties. PAGA is intended to assist in the achievement of maximum compliance with state labor laws
FIRST AMENDED COMPLAINTby empowering aggrieved employees to act as private attorneys g
See Arias v.
PAGA permits an aggrieved employee to collect the civil penalty
normally collectible by the California Labor and Workforce Development Agency. To address
violations for which no penalty has been established, California Labor Code § 2699(f) permits
aggrieved employees to recover a default penalty in the amount of $100 for each aggrieved employee
per pay period for the initial violation, and $200 for each aggrieved employee pay period for each
Plaintiffs seek to collect these civil penalties for the Labor
his case was filed and up to the present:
California Labor Code § 510, a penalty of fifty dollars ($50) for each initial violation for
which an employee was underpaid, as well as a penalty of one hu
for each subsequent violation for which an employee was underpaid, and an amount
to pay overtime, as
California Labor Code § 1197, a penalty of one hundred dollars
intentional initial violation for which an employee was underpa
for which the employee
ntentionally committed,
and a penalty amount sufficient to recover unpaid wages, for Va
pay minimum wage, as alleged herein;
for each aggrieved employee per pay period for the initial viol
each aggrieved employee
FIRST AMENDED COMPLAINTper pay period for each subsequent violation, for failing to provide meal and rest breaks
to service providers employed in California; under California L
violating Labor Code § 512 and IWC Wage Order 4 §§ 11-12, a civ
ages for each employee
for every initial failure to provide meal and rest breaks to service providers employed in
lus the amount sufficient
to recover unpaid wages for each aggrieved employee for every s
amount of one hundred
two hundred dollars ($200) for each aggrieved employee per pay period for each
subsequent violation, for Varsity Tutors’ failure to indemnify
of California Labor Code § 2802, as alleged herein. These expe
other merchandisers’
duties for Varsity Tutors;
ties for violations of
California Labor Code § 226(a), a civil penalty of two hundred
each aggrieved employee for the first violation, and one thousa
each aggrieved employee for each subsequent violation of Labor
Varsity Tutors’ failure to provide timely, accurate, itemized wage statements to tutors
employed in California, as alleged herein;
California Labor Code § 226.8(a), a civil penalty of twenty-fiv
($25,000) for each aggrieved employee, for Varsity Tutors’ intentional misclassification
of employees as independent contractors and Varsity Tutors patt
FIRST AMENDED COMPLAINTfor each aggrieved employee who was required to sign a mandator
agreement containing the same illegal term in violation of Cali
432.5 that Plaintiffs were required to sign upon becoming emplo
that is, the term purporting to waive all rights to pursue any
able as a matter of state
Iskanian
Plaintiffs seek only a single PAGA penalty—calculated based on
paragraph 34(a) through (g) — to be awarded 75% to the LWDA and 25% to the affected employees.
California Labor Code § 2699(g) further provides that any emplo
submitted notice to the Labor and Workforce Development Agency (LWDA) of the specific provisions
The LWDA has not responded to Plaintiff Charles’ PAGA notice. Charles sent this notice to Varsity
Tutors by certified mail. The sixty-five-day time limit for th
Plaintiff has exhausted his administrative remedies. In additi
notice from Varsity Tutors that the violations alleged above ha
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs pray for judgment as follows:
For a declaration that the provisions in the Agreement between
purporting to ban maintenance of representative actions in any forum — civil or arbitral —
was and is void as against public policy and illegal;
meeting of the minds in the
Agreement that would require that Plaintiffs’ representative claims, if any, be heard and
FIRST AMENDED COMPLAINT0 Om YW DH FF WN
Nw NY NY NY NY NK NY KN SY Be Be ee Be Be Be Be
cola AA FF BH fF SO we IY DH BF WN SH ST
iii.
vi.
Dated: May 30, 2019
decided in arbitration rather than in civil court;
For a declaration that Plaintiffs may maintain a representative PAGA action in Court;
For civil penalties under PAGA for Varsity Tutors’ violations of various Labor Code
provisions as to Plaintiffs and other aggrieved tutors in California;
For reasonable costs of suit herein; and attorneys’ fees incurred pursuant to Labor Code
§ 2699(g), CCP § 1021.5, or to the maximum extent available by law; and
For such other and further relief as the Court may deem just and proper.
Steven M. Tindall (SBN 187862)
Amanda M. Karl (SBN 301088)
Jeffrey Kosbie (SBN 305424)
GIBBS LAW GROUP LLP
505 14th Street, Suite 1110
Oakland, CA 94612
Telephone: (510) 350-9700
Facsimile: (510) 350-9701
smt@classlawgroup.com
amk@classlawgroup.com
jbk@classlawgroup.com
Counsel for Plaintiffs
9
FIRST AMENDED COMPLAINTCERTIFICATE OF SERVICE
Tam employed in the county of Alameda, State of California. I am over the age of 18 and not a
On May 30, 2019 I served a copy of the foregoing documents described as follows:
FIRST AMENDED COMPLAINT
818 West 7th Street, Suite 930
X] ~=BY MAIL: by placing the document(s) listed above for collection and mailing following the
firm’s ordinary business practice in a sealed envelope with pos
the United States mail at Oakland, California addressed as set
__] BY EMAIL: by electronically transmitting a PDF version of above listed documents to the
email addresses set forth above on this date.
__] BY HAND DELIVERY: by placing the document(s) listed above
the persons above and providing them to a professional messenge
__] BY FACSIMILE: I caused all pages to be sent to the recipient(s) via facsimile to the office(s) of
the addressee(s) shown above, and the transmission was reported as complete and without error.
I declare under penalty of perjury under the laws of the State
Donic Bryndsee
FIRST AMENDED COMPLAINT
Preview
Amanda M. Karl (SBN 301088) Facsimile: (510) 350-9701 smt@classlawgroup.com amk@classlawgroup.com SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA Case No. 19-cv-347249 MULAK, FIRST AMENDED COMPLAINT Plaintiffs, Defendant. FIRST AMENDED COMPLAINTe tutoring services to its customers. relief and relief under the Private Attorneys’ General Act of 2 2699.5. The declaratory relief concerns the enforceability of mandatory arbitration agreement that they were required to sign upon commencing employment as provisions of the California Labor Code. PARTIES Plaintiff Henry Mulak is a resident and citizen of California. He was employed by as Palo Alto, as far east as Fremont, and as far south as Los Gatos. employed by Varsity Tutors as a tutor in the greater Los Angele Defendant Varsity Tutors LLC is a Missouri limited liability company. Varsity Tutors is Missouri. herein because they arise out of an employment relationship between Plaintiffs, who work employer. Varsity Tutors has sufficient minimum contacts with business within California so as to render the exercise of jurisdiction over it by California state courts consistent with traditional notions of fair Venue is proper in this Court under Code of Civil Procedure §§ the agreement to arbitrate was signed by Mulak, who performed substantial work under that agreement FIRST AMENDED COMPLAINTFACTUAL ALLEGATIONS Varsity Tutors provides private tutoring services for homework, exams, and an online platform, which individual students or their parents rsity Tutors verifies potential tutors’ academic background and prior teaching experience and interviews them. page of Varsity Tutors’ website advertises “personalized tutoring by top Stanford grads and others from Varsity Tutors required Plaintiffs to agree to the Independent Contractor Agreement (“the Agreement”) as a condition of their employment. A copy of the Agreement is attached hereto as S$ a representative any claim related to their employment on a representative basis: “Tutor understands and agrees that all claims covered by this Arbitration Provision that Tutor may have against the Company must be broug not as a plaintiff or class member in any purported class actio action proceeding.” This waiver is unenforceable as a matter 0 claims to be exclusively determined by binding arbitration: Both the Company and Tutor agree that any claim, dispute, and/o controversy that either Tutor may have against the Company . . Company may have against Tutor, arising from, related to, or ha contractor relationship with, providing independent contractor other association with the Company shall be submitted to and determined FIRST AMENDED COMPLAINTwith the exception of, among other things, “claims brought under [t]he California Labor Code Private Attorneys General Act of 2004.” Plaintiffs now seek declarations from the Court that: (i) the a State of California as definitively interpreted and set forth i there was no meeting of the minds or other mutual consent in the parties’ Agreement that would require Plaintiffs’ representative claims, if any, to be decided in arb civil claim against Defendant predicated in whole or in part on illegal provision — must now be maintained in a court of law rather than in arbitration. (PAGA) as the representatives of current and former Varsity Tutors employees who are or were affected by Varsity Tutors’ violations of California’s Labor Co Varsity Tutors compensates Plaintiffs only for time spent durin not for time spent traveling to and from tutoring sessions, pre sessions. Plaintiffs are never paid overtime, even if they wor Varsity Tutors’ compensation system does not allow for meal and tutors. Plaintiffs were not compensated when they were unable to take meal and rest breaks. Plaintiffs frequently drove directly from one client session to drive a substantial distance. In one instance, Mulak spent two from a tutoring session in Fremont to another session in San Jose. Plaintiffs were not compensated or reimbursed for time spent driving or for gas and other expenses FIRST AMENDED COMPLAINTVarsity Tutors does not provide itemized wage statements listin its tutors. Tutors are not free from Varsity Tutors’ direction and control in performing the work, and tutoring is within the usual course of Varsity Tutors’ business During the time that Plaintiffs worked as tutors for Varsity Tu received the following: (1) minimum wage for his non-tutoring work hours, including driving time, lesson planning time, and time spent scheduling and communicati overtime compensation that accounts for any hours worked in exc a week; (3) compensation for missed meal or rest breaks; (4) full reimbursement for gas or miles driven; or (5) itemized wage statements. In addition, Plaintiffs have been misclassified as independent When Plaintiffs were hired by Defendant, they were required to enter into the Agreement. There currently exists an actual and real controversy between P regarding the legality and enforceability of specific language contained in the Agreement. Clarification of the parties’ rights and obligations under the Agreement is both necessary and proper at this time so that Plaintiffs can determine where they can and should maintain the representative claim they are preparing to commence at this time. The Agreement between the parties purports to require Plaintiff California Civil Code § 1667 defines “unlawfulness” as either “ express provision of law; (2) Contrary to the policy of express law, though not expressly prohibited; or FIRST AMENDED COMPLAINT(3) Otherwise contrary to good morals.” , 59 Cal. 4th 348, 384 (2014), the California Supreme Court found that even if class-action waivers in arbitration agreements are enforceable, where “an employment agreement compels the waiver of representative claims under the PAGA, it is contrary to public policy and unenforceable as a ma Plaintiffs now thus seek from the Court declarations that: Cal. 4th 348 (2014), the representative action waiver in the Agreement’s arbitration provision is unenforceable, invalid, unconscionable, void, and voidable with respect to any claims under the California PAGA; inter alia, the plain language of the Agreement excepting claims under the California PAGA from the mandatory arbitration provision an State of California to mandatory arbitration of such claims, there was and is no meeting of the minds or other evidence of mutual consent that could require Plaintiffs to maintain any representative PAGA claim they may bring in arbitration. Plaintiffs may maintain a representative PAGA action in Court. SECOND CAUSE OF ACTION—PAGA Violations of Labor Code Private Attorneys General Act Plaintiffs, aggrieved employees, bring a claim under California rmer tutors for Varsity Tutors subjected The California Private Attorneys General Act of 2004 (“PAGA”), , grants California employees the right to bring a civil action the Labor Code on behalf of themselves and other current or former employees in order to recover civil penalties. PAGA is intended to assist in the achievement of maximum compliance with state labor laws FIRST AMENDED COMPLAINTby empowering aggrieved employees to act as private attorneys g See Arias v. PAGA permits an aggrieved employee to collect the civil penalty normally collectible by the California Labor and Workforce Development Agency. To address violations for which no penalty has been established, California Labor Code § 2699(f) permits aggrieved employees to recover a default penalty in the amount of $100 for each aggrieved employee per pay period for the initial violation, and $200 for each aggrieved employee pay period for each Plaintiffs seek to collect these civil penalties for the Labor his case was filed and up to the present: California Labor Code § 510, a penalty of fifty dollars ($50) for each initial violation for which an employee was underpaid, as well as a penalty of one hu for each subsequent violation for which an employee was underpaid, and an amount to pay overtime, as California Labor Code § 1197, a penalty of one hundred dollars intentional initial violation for which an employee was underpa for which the employee ntentionally committed, and a penalty amount sufficient to recover unpaid wages, for Va pay minimum wage, as alleged herein; for each aggrieved employee per pay period for the initial viol each aggrieved employee FIRST AMENDED COMPLAINTper pay period for each subsequent violation, for failing to provide meal and rest breaks to service providers employed in California; under California L violating Labor Code § 512 and IWC Wage Order 4 §§ 11-12, a civ ages for each employee for every initial failure to provide meal and rest breaks to service providers employed in lus the amount sufficient to recover unpaid wages for each aggrieved employee for every s amount of one hundred two hundred dollars ($200) for each aggrieved employee per pay period for each subsequent violation, for Varsity Tutors’ failure to indemnify of California Labor Code § 2802, as alleged herein. These expe other merchandisers’ duties for Varsity Tutors; ties for violations of California Labor Code § 226(a), a civil penalty of two hundred each aggrieved employee for the first violation, and one thousa each aggrieved employee for each subsequent violation of Labor Varsity Tutors’ failure to provide timely, accurate, itemized wage statements to tutors employed in California, as alleged herein; California Labor Code § 226.8(a), a civil penalty of twenty-fiv ($25,000) for each aggrieved employee, for Varsity Tutors’ intentional misclassification of employees as independent contractors and Varsity Tutors patt FIRST AMENDED COMPLAINTfor each aggrieved employee who was required to sign a mandator agreement containing the same illegal term in violation of Cali 432.5 that Plaintiffs were required to sign upon becoming emplo that is, the term purporting to waive all rights to pursue any able as a matter of state Iskanian Plaintiffs seek only a single PAGA penalty—calculated based on paragraph 34(a) through (g) — to be awarded 75% to the LWDA and 25% to the affected employees. California Labor Code § 2699(g) further provides that any emplo submitted notice to the Labor and Workforce Development Agency (LWDA) of the specific provisions The LWDA has not responded to Plaintiff Charles’ PAGA notice. Charles sent this notice to Varsity Tutors by certified mail. The sixty-five-day time limit for th Plaintiff has exhausted his administrative remedies. In additi notice from Varsity Tutors that the violations alleged above ha PRAYER FOR RELIEF WHEREFORE, Plaintiffs pray for judgment as follows: For a declaration that the provisions in the Agreement between purporting to ban maintenance of representative actions in any forum — civil or arbitral — was and is void as against public policy and illegal; meeting of the minds in the Agreement that would require that Plaintiffs’ representative claims, if any, be heard and FIRST AMENDED COMPLAINT0 Om YW DH FF WN Nw NY NY NY NY NK NY KN SY Be Be ee Be Be Be Be cola AA FF BH fF SO we IY DH BF WN SH ST iii. vi. Dated: May 30, 2019 decided in arbitration rather than in civil court; For a declaration that Plaintiffs may maintain a representative PAGA action in Court; For civil penalties under PAGA for Varsity Tutors’ violations of various Labor Code provisions as to Plaintiffs and other aggrieved tutors in California; For reasonable costs of suit herein; and attorneys’ fees incurred pursuant to Labor Code § 2699(g), CCP § 1021.5, or to the maximum extent available by law; and For such other and further relief as the Court may deem just and proper. Steven M. Tindall (SBN 187862) Amanda M. Karl (SBN 301088) Jeffrey Kosbie (SBN 305424) GIBBS LAW GROUP LLP 505 14th Street, Suite 1110 Oakland, CA 94612 Telephone: (510) 350-9700 Facsimile: (510) 350-9701 smt@classlawgroup.com amk@classlawgroup.com jbk@classlawgroup.com Counsel for Plaintiffs 9 FIRST AMENDED COMPLAINTCERTIFICATE OF SERVICE Tam employed in the county of Alameda, State of California. I am over the age of 18 and not a On May 30, 2019 I served a copy of the foregoing documents described as follows: FIRST AMENDED COMPLAINT 818 West 7th Street, Suite 930 X] ~=BY MAIL: by placing the document(s) listed above for collection and mailing following the firm’s ordinary business practice in a sealed envelope with pos the United States mail at Oakland, California addressed as set __] BY EMAIL: by electronically transmitting a PDF version of above listed documents to the email addresses set forth above on this date. __] BY HAND DELIVERY: by placing the document(s) listed above the persons above and providing them to a professional messenge __] BY FACSIMILE: I caused all pages to be sent to the recipient(s) via facsimile to the office(s) of the addressee(s) shown above, and the transmission was reported as complete and without error. I declare under penalty of perjury under the laws of the State Donic Bryndsee FIRST AMENDED COMPLAINT