Preview
Raul Aceves and Francisco Alcazar
behalf of on behalf of all
Failures to Pay Minimum and Overtime
Wages & Penalties Lab. Code
Legacy Partners, Inc. Failure to Maintain Accurate and
corporation; and Does 1 through 50, Complete Employment records (Cal. Lab.
Failure to Provide Accurate, Itemized
Waiting Time Penalties Cal. Lab. Code
Plaintiff Raul Aceves and Francisco Alcazar the Class Representative their
behalf and on behalf of all others similarly situated (collectively Plaintiffs Class
Members through their attorneys, The Ottinger Firm, P.C., hereby allege as follows:
INTRODUCTION
Plaintiffs bring this class action pursuant to Code of Civil Procedure § 382, on
behalf all of Defendant Legacy Partners’ Maintenance Supervisors, ainten nce
echnicians, and all other similarly situated employees currently and formerly employed by
Defendant Legacy Partners, Inc., who were subject to Defendants’ Call ” (“Class
Members” from the date four years prior to the filing of this Complaint through the date of trial
in this action. wide relief sought by Plaintiffs is set forth herein and below
Defendants violate California law by maintaining policies and practices that
systematically fail to provide employees with the protections of California’s Labor Code. Due to
Defendants policies and practices, Defendant violated numerous provisions of the
California Labor Code, including failing to compensate Class Members for all hours worked, and
failing to furnish timely statements accurately showing, among other things, the total hours Class
Members worked during each pay period. Plaintiffs also allege that these acts, which violate the
California Labor Code, constitute unlawful and unfair business practices in violation of the
California Unfair Competition Laws.
Plaintiffs therefor bring this action pursuant to lifornia
202, 203, 226, 510, 512, 1174, 1174.5, 1194, 1194.2, 1198, and California Wage Order 5
(8 Cal. Code Reg., §11010), seeking unpaid regular and overtime wages, payment of all wages
earned, penalties, other equitable relief, and reasonable attorneys fees and costs.
COMPLAINT
Plaintiff , pursuant to Business & Professions Code §§ 172 et seq., also seek restitution and
disgorgement of all wages owed Plaintiffs by Defendants from: (1) its failure to pay hourly
and overtime wages and ) its failure to pay all wages earned.
PARTIES
Plaintiffs
Plaintiff Raul Aceves is a resident of Milpitas, California, in Santa Clara County.
He worked for Defendants as a Maintenance Supervisor and as a Maintenance Technician
performing non exempt work for Defendant , for approximately sixteen years. At all relevant
times, Plaintiff Aceves met the definition of “employee” of the Corporate Defendants under all
applicable statutes. Plaintiff Aceves is subject to Title VIII of the California Code of
Regulations, § 11010, and related Industrial Welfare Commission (“IWC”) Wage Order 5
Plaintiff Aceves never hired or fired other employees Defendant
Plaintiff Francisco Alcazar is a resident of Santa Clara, California, in Santa Clara
County. He has worked for Defendants as a Maintenance Technician, performing non exempt
work for Defendant , for approximately 12 years. At all relevant times, Plaintiff met the
definition of “employee” of the Corporate Defendants under all applicable statutes. Plaintiff
Alcazar is subject to Title VIII of the California Code of Regulations, § 11010, and related IWC
Wage Order 5 2001. Plaintiff Alcazar never hired or fired other employees of Defendant
Class Representative Aceves and Alcazar will adequately represent the interests
of Class Members and will vigorously participate in this matter as a class action when certified.
The Class Representatives have further secured counsel who are highly experienced in class
action litigation who will likewise adequately represent Plaintiffs and Class Members.
COMPLAINT
The proposed Class is defined as all Defendants’ employees who were subject to
Defendants’ Call Policy which required them to remain on call well after Plaintiffs had
worked eight hours any given day to respond to service calls during non working times, and
otherwise restricted their free movement and required them to work outside of unpaid working
hours, and who were not paid for such time at either their regular rate of pay, or if applicable,
their overtime rate of pay.
The lass includes a subclass of those people who have terminated employment
with Defendants without having been paid for the aforementioned on duty time and who are
therefore entitled to waiting penalties under the California Labor Code
Defendant
On information and belief, Plaintiffs allege Defendant Legacy Partners, Inc. is
incorporated under the laws of the State of Delaware with a principle place of business and
principal office in California located in San Mateo County, located at 4000 E. 3rd Ave., Ste 600
in Foster City, CA 94404.
Defendant Legacy Partners, Inc. is privately held real estate firm that owns,
develops and manages apartments and multifamily communities throughout California. At all
levant times herein, Defendant Legacy Partners, Inc. met the definition of “employer” under all
applicable statutes.
Defendants are engaged in the ownership, management, and operation of Legacy
Partners, Inc. Plaintiffs are informed and believe, and thereon allege that, during the liability
period, Defendants employed Plaintiffs as Maintenance Supervisors, Maintenance Technicians,
and other similarly situated positions within Santa Clara County and throughout California.
COMPLAINT
Plaintiffs are further informed and believe that Defendants directly exercised control over the
wages, hours, and working conditions of the Plaintiffs.
The true names and capacities, whether individual, corporate, associate, or
otherwise, of Defendants sued herein as Does 1 through 50, inclusive, are currently unknown to
Plaintiffs who therefore sue Defendants by such fictitious names under Code of Civil Procedure
474. Plaintiffs are informed and believe, and based thereon allege, that each of the Defendants
designated herein as a Doe is legally responsible in some manner for the unlawful acts referred to
herein. Plaintiffs will seek leave of Court to amend this Complaint to reflect the true names and
capacities of the Defendants designated hereafter as Does when such entities become known.
Plaintiffs are informed and believe and based thereon allege that each Defendant
acted in all respects pertinent to this action as the agent of the other Defendants, carried out a
joint scheme, business plan, or policy in all respects pertinent thereto, and the acts of each
Defendant are legally attributable to the other Defendants.
JURISDICTION AND VENUE
Plaintiffs are informed and believe, and thereon allege that Defendant Legacy
Partners, Inc., was, at all relevant times, operating within the S e of California, and thus
subject to the jurisdiction of California courts by reason of personal jurisdiction as a citizen of
the state transacting and conducting business in the State of California, and is thus subject to the
jurisdiction of all laws, regulations, and court decisions rendered by the State of California.
Jurisdiction is conferred on this Court because Defendant, named herein, is a
citizen of the State of California. Jurisdiction is conferred on this Court as to all causes of action
because they arise under California statutory and/or common law. Jurisdiction is proper in this
Court because alleged damages exceed $25,000.00.
COMPLAINT
Venue is proper in this Court because Defendant Legacy Partners, Inc. conducts
business in this County and because a substantial part of the events and omissions giving rise to
tiff claims occurred in this County.
GENERAL FACTUAL ALLEGATIONS
Defendants develops and manages apartments and multifamily communities in
Santa Clara County and throughout California.
At all relevant times herein, Plaintiff Aceves and Alcazar spent the vast majority
of their working hours performing non exempt work for Defendant At all times relevant herein,
Plaintiffs ere entitled to overtime premium pay for all overtime hours worked.
Defendants assign Plaintiffs to specific job site where they are required to remain
on call subject to Defendants’ Call Policy for two weeks at a time. Such Call Policy
required all Maintenance Supervisors, Maintenance Technicians, and all other similarly situated
employees to adhere to the following requirements after scheduled working hours
The on call page is never to be turned off. It shall be on 24 hours a day, 7 days a
week.
The service technicians shall respond immediately to any pages on the on
pager regardless of time of day or week.
All pages shall be responded to immediately.
All persons on call shall stay in a minute vicinity of the community.
Employees on call shall not report to work under the influence of drugs or
alcohol.
All persons on call shall wear a [sic] LPR uniform or a [sic] LPR picture ID
card.
COMPLAINT
All after hour service call shall require the service technician to fill out a service
request completely. Specify all work performed and any information or
instructions needed to follow up to complete the task. All blanks on the service
request are to be filled in and shall be left on the manager’ desk or dropped in the
night drop slot.
Because of Defendants’ Call Policy Plaintiffs are required to remain tied to
the assigned job site for the entirety of their assignment period, 24 hours a day
although they are only generally paid for 40 hours per week. During these two week
assignments Defendants prohibit Plaintiffs from traveling more than “twenty minutes away”
from whatever job site they are assigned to so that they can respond to maintenance calls and
other calls the Company deems emergencies. Plaintiffs receive these multiple times a
week, which they must respond to within approximately 30 minutes. Responding to these calls
is a non delegable task that each Plaintiff must handle himself or herself. Defendants have told
Class Members that failure to respond to a service call is grounds for disciplinary action.
Plaintiffs work overtime and regularly work half days on Saturdays.
Throughout Plaintiffs and Class Members’ employment, Defendants did not
compensate Plaintiffs or Class Members for time they were subject to and restricted greatly by
the Call Policy despite the fact that Plaintiffs and Class Members were under the complete
control of Defendants during such hours
Throughout Plaintiffs and Class Members’ employment, Defendants paid
Plaintiffs and Class Members only straight time for overtime hours worked, and never paid
Plaintiffs or Class Members any premium overtime pay for overtime hours worked
COMPLAINT
Defendants have violated numerous provisions of the California Labor Code and
continue to violate them. The violations include failure to pay minimum and overtime wages,
failure to maintain accurate and complete employment records, failure to provide accurate,
itemized wage statements, failure to pay timely wages, in addition to engaging in unfair
competition
CLASS ACTION ALLEGATIONS
Plaintiffs incorporate all of the preceding paragraphs of this Complaint as if fully
set forth herein.
Class Members: Plaintiffs bring this action on behalf of themselves and all others
similarly situated pursuant to Code of Civil Procedure § 382 on behalf of the following class
and subclasses
Call Class All persons presently or formerly engaged as Maintenance
Supervisors, Maintenance Technicians, and all other similarly situated positions
ho were subject to Defendants’ Call Policy for Defendants in the State of
California during the period beginning four years before the filing of this action
d ending when final judgment is entered ( Class Members
Wage Statement Subclass All members of the Call Class who have been
employed by Defendants during the period beginning one year before the filing
of this action and ending when final judgment is entered
Former Employee Subclass All members of the Call Class who have
voluntarily or involuntarily separated from Defendants’ employment during the
period beginning three years before the filing of this action and ending when
final judgment is entered.
COMPLAINT
Class Members, like individual Plaintiffs, meet the definition of employees of
the Defendants under all applicable statutes. Class Members are subject to Title VIII of th
California Code of Regulations, § 11010, and related Industrial Welfare Commission ( IWC
Wage Order 5
This action has been brought and may properly be maintained as a class action
under the provisions of § 382 of the Code of Civil Procedure because there is a well defined
community of interest in the litigation and the proposed class is easily ascertainable.
Reservations of Rights Pursuant to Rule of Court 3.765(b), Plaintiffs reserve
the right to amend or modify the class definition with greater specificity, by further division
into subclasses, and/or by limitation to particular issues.
Numerosity intiffs are informed and believe and thereon allege that Class
Members are so numerous that the individual joinder of each Class Member is impractical. On
information and belief, Defendants employs hundreds of Maintenance Supervisors,
Maintenance Technicians, and other similarly situated persons throughout California. Plaintiffs
are informed, believe, and thereon allege that the actual number of Class Members exceeds
the minimum number required for numerosity purposes under Code of Civil Procedure §
Predominant Common Questions Plaintiffs are informed, believe, and thereon
allege that common questions of law and fact exist as to all Class Members and predominate
over any questions that only affect individual Class Members. These questions include, but are
not limited to:
Whether members of the Call Class have properly been compensated for
hours worked as that term is defined in Section H of the applicable Wage Order?
COMPLAINT
Whether members of the Call Class are entitled to relief in the form of
compensation and penalties for violations of the California Labor Code as set
forth hereinafter?
Whether, by failing to pay wages to Wage Statement Subclass members,
Defendants have failed to provide them with written wage statements that
accurately reflect their gross and net wages earned?
Whether, by failing to pay premium wages to the Former Employee Subclass
Defendants are liable to them for waiting time penalties under Labor Code
Whether Class Members are entitled to damages, penalties, interest, and
attorneys fees and costs, as provided by the Labor Code and Wage Order 5
?
Typicality: Plaintiffs are informed, believe, and thereon allege that their claims
are typical of Class Membe claims in that Defendants have policies and practices that violate
the Labor Code, the IWC Wage Order, and Business and Professions Code as alleged herein
that enable them to seek the same relief as they are under the same theories of recovery.
Adequacy of Representation Plaintiffs will fairly and adequately represent and
protect the interests of Class Members in that they have no interests that are adverse to Class
Members and are represented by counsel experienced in employment and wage and hour clas
action litigation.
Superiority A class action is superior to other available means for fair and
efficient adjudication of Class Members claims and offers significant benefits to the parties and
the court. A class action will allow a number of similarly situated persons to simultaneously
COMPLAINT
and efficiently prosecute their common claims in a single forum without the unnecessary
duplication of effort and expense that numerous individual actions would entail. e monetary
amounts due to many Class Members are likely to be relatively small, thus making it difficult, if
not impossible, for individual Class Members to seek and obtain relief. Moreover, a class
action will serve important public interests by enabling the no waivable statutory rights of
Class Members to be effectively asserted, and fundamental public policies to be vindicated, in
one proceeding. A class action will also provide a means for vindicating the rights of current
employees who are less likely to come forward to assert those rights based on fears of employer
reprisal. Finally, a class action will prevent the potential for inconsistent or contradictory
judgments inherent in individual litigation and address the problems inherent in random and
fragmentary enforcement.
CAUSE OF ACTI
Failure to Pay Wages & Penalties
Cal. Lab. Code §§
(By All Plaintiffs Against All Defendants)
Plaintiffs incorporate each of the preceding paragraphs of this Complaint by
reference as if fully set forth herein.
At all relevant times, Plaintiffs have been exempt employee of Defendants
entitled to the full protections of the California Labor Code and of Wage Order 5
Cal. Lab. Code § 1198 makes it unlawful for an employer to employ any person
under conditions of employment that violate Wage Order 5
Section 2(K) of Wage Order 5 defines hours worked the time during
which an employee is subject to the control of the employer, [which] includes all the time the
employee is suffered or permitted to work, whether or not required to do so.
COMPLAINT
Cal. Lab. Code §§ 510 and 1194, and Section 3 of Wage Order 5 , require
employers to pay overtime wages to their non exempt employees at no less than one and one half
times their regular rates of pay for all hours worked in excess of eight hours in one workday,
hours worked in excess of forty hours in one workweek, and for the first eight hours worked on a
enth consecutive workday.
Cal. Lab. Code §§ 510 and 1194, and Section 3 of Wage Order 5 , also
require employers to pay overtime wages to their non exempt employees at no less than two
times their regular rates of pay for all hours worked in excess of twelve hours in one workday,
and for all hours worked in excess of eight hours on a seventh consecutive workday.
During the Class Period, Plaintiffs were required to remain on call after working
eight hours per day or 40 hours a per week in order to respond to service calls and other
emergency calls
Under Defendants’ Call Policy, Plaintiffs must remain close to their worksite
and must respond immediately to service calls. Defendants have told Class Members that failure
to respond to a service call is grounds for disciplinary action. Class Members are paid or should
be paid on an hourly basis. Each Class Member is entitled to but was not paid for “hours
worked” as that term is defined in Section H of Wage Order 5 .
Cal. Lab. Code § 1194 states: Not withstanding 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 unpai
balance of the full amount of this minimum wage or overtime compensation including interest
thereon, reasonable attorney’s fees, and costs of suit.
COMPLAINT
Plaintiffs are entitled to recover unpaid wages and other compensation and
damages for time Plaintiffs were subject to the control of Defendants under its Call Policy
for which they were not compensated.
Pursuant to Cal. Lab. Code §§ 1194(a) and 1194.2(a) Plaintiffs to recover
earned and unpaid overtime wages, interest thereon, as well as awards of reasonable costs and
attorneys fees, as well as liquidated damages all in amounts subject to proof
SECOND CAUSE OF ACTION
Failure to Maintain Accurate Employment Records
(Cal. Lab. Code § 1174
(By All Plaintiffs Against All Defendants)
Plaintiffs incorporate each of the preceding paragraphs of this Complaint by
reference as if fully set forth herein.
Cal. Lab. Code § 1174(d) requires an employer to keep at a central location in
California or at the plant or establishment at which employees are employed, payroll records
showing the hours worked daily by, and the wages paid to, each employee, and the number of
piece rate units earned by and any applicable piece rate paid to each employee. Plaintiff are
informed and believe that Defendants willfully failed to make and keep such records for
Plaintiffs
Wage Order 5 2001, paragraph (7)(A) requires that every employer keep accurate
employee information, including time records showing when each employee begins and ends
each work period, and applicable rates of pay. Plaintiffs are informed and believe that
Defendants failed to make and keep such records for Plaintiffs
Plaintiffs are informed and believe that Defendants’ failure to keep payroll
records and accurate employee information, as described above, violated Cal. Lab. Code §
(d) and Wage Order 5 (7)(A). Plaintiffs are entitled to penalties of $100 for the initial
COMPLAINT
violation and $200 for each subsequent violation for every pay period during which these
records and information were not kept by Defendant.
Plaintiffs are informed and believe that Defendants’ failure to keep and maintain
records and information, as described above, was willful, and Plaintiffs are entitled to a civil
penalty of $500, pursuant to Cal. Lab. Code § 1174.5
THIRD CAUSE OF ACTION
Failure to Provide Accurate, Itemized Wage Statements
(Cal. Lab. Code § 226)
(By Plaintiffs and the Wage Statement Subclass, Against All Defendants)
Plaintiffs incorporate all of the preceding paragraphs of this Complaint as if fully
set forth herein.
Pursuant to Labor Code § 226(a), Defendants have been obliged to provide
Plaintiffs and Wage Statement Subclass members, either semimonthly or at the time of each
payment of wages, accurate itemized statement showing, among other things, the gross and net
wages earned by each class member.
By failing to pay minimum, overtime, and/or premium wages to Plaintiffs as set
forth above, Defendants have furnished them with written wage statements that do not
accurately reflect, among other things, their amounts of gross and net wages earned, and number
of hours worked at each applicable wage rate.
aintiffs are informed, believe, and thereon allege that by failing to pay
premium wages to Wage Statement Subclass members as set forth above, Defendants have
also furnished them with written wage statements that do not accurately reflect, among other
things, their amounts of gross and net wages earned, and number of hours worked at each
applicable wage rate.
Plaintiffs are informed, believe, and thereon allege that Defendants’ failures to
provide them and Wage Statement Subclass members with accurate wage statements have
been knowing and intentional, in that Defendants have, at all relevant times, had the ability to
COMPLAINT
provide them with accurate wage statements but, instead, have knowingly and intentionally
provided them with inaccurate wage statements as a result of not keeping accurate records of all
their hours worked, their meal period start and stop times, and amounts of wages earned.
Plaintiffs are informed, believe, and thereon allege that Wage Statement
Subclass members have suffered injuries due to Defendants’ failures to provide them with
accurate written wage statements in that, among other things, their legal rights to receive
accurate wage statements have been violated, they have been misled about the amounts of
wages they have earned, they have been prevented from immediately challenging allegedly
unlawful pay practices, they have needed or will need to reconstruct time and pay records and
perform mathematical computations to determine the amounts of wages they have earned,
and/or have had inaccurate information about their wages and deductions submitted to
government agencies.
Pursuant to Labor Code § 226(e), Plaintiffs, on behalf of themselves and the
Wage Statement Subclass seek to recover the greater of actual damages or $50 for the initial
y period in which a § 226(a) violation occurred, the greater of actual damages or $100 for
each violation of § 226(a) in a subsequent pay period, up to the greater of actual damages or an
aggregate $4,000 penalty per class member, as well as awards of reasonable attorneys’ fees and
costs, all in amounts subject to proof.
FOURTH CAUSE OF ACTION
Waiting enalties
(Cal. Labor Code
(By Plaintiff Aceves and the Former Employee Subclass, Against All Defendants)
Plaintiff Aceve incorporate all of the preceding paragraphs of this Complaint as
if fully set forth herein.
Labor Code § 201 provides that all of the earned and unpaid wages of an
employee who is discharged become due and payable immediately at the time of discharge.
COMPLAINT
abor Code § 202 provides that all of the earned and unpaid wages of an
employee who quits become due and payable at the time of quitting if the employee gives at
least 72 hours’ notice before quitting, or within 72 hours of quitting if the employee gives l
than 72 hours’ notice before quitting.
Labor Code § 203 provides that the wages of a terminated employee will
continue as a penalty for up to thirty calendar days if the employer willfully fails to timely pay
any earned and unpaid wages to the employee in the times set forth in Labor Code §§
By failing to pay Plaintiff Aceves and Former Employee Subclass members
earned premium wages, minimum wages, and/or overtime wages, Defendants failed to timely
pay him and Former Employee Subclass members all earned and unpaid wages in violation of
Labor Code §
Plaintiff Aceves informed, believe , and thereon allege that, by failing to pay
Former Employee Subclass members earned premium wages, minimum wages, and/or
overtime wages, Defendants have failed to timely pay them all earned and unpaid wages in
violation of Labor Code § 201 or §
Plaintiff Aceves is informed believes and thereon allege that, at all relevant
times, Defendant failures to pay them and Former Employee Subclas members earned and
unpaid wages in violation of Labor Code §§ 202 have been willful in that Defendants have
had the ability to fully comply with the requirements set forth in those statutes, but have
deliberately chosen to maintain policies and practices with respect to payroll that are
incompatible with those requirements.
Pursuant to Labor Code § Plaintiff Aceves, on behalf of himself and the
Former Employee Subclass, seek up to thirty days of wages as waiting time penalties in
amounts subject to proof.
Pursuant to Code of Civil Procedure § 1021.5, the substantial benefit doctrine,
and/or the common fund doctrine, Plaintiff Aceves, on behalf of himself and the Former
COMPLAINT
Employee Subclass seek awards of reasonable attorneys’ fees and costs in amounts subject to
proof.
FIFTH CAUSE OF ACTION
Unfair ompetition & Business Practices
(Cal. Bus. & Prof. Code et seq
(By All Plaintiffs Against All Defendants)
Plaintiffs incorporate each of the preceding paragraphs of this Complaint by
reference as if fully set forth herein
A violation of Cal. Bus. & Prof. Code may be predicated on the
violation of any state or federal law. Defendants’ activities, as alleged herein, are violations of
California law, and constitute unlawful business acts and practices in violation of Cal. Bus. &
Prof. Code et seq. California has an important public policy of protecting the welfare
of employees, and thus provides that statutorily guaranteed wages be paid for all hours.
Defendants’ willful actions have denied Plaintiffs the legally mandated minimum wages for all
hours worked, have been, and continue to be, unfair, unlawful, and harmful to Plaintiffs and the
general public Over and above these violations, Defendants have failed to provide accurate,
ges statements. Plaintiffs seek to enforce important rights affecting the public
interest within the meaning of Cal. Civ. Proc. Code
Through these unlawful actions Defendants are able to unjustly keep and
appropriate for itself significant amounts of money that otherwise should have been paid to
Plaintiffs Defendants’ actions left unrectified will aggregate to the impunity employers enjoy
and which California s labor laws are meant to redress, undermining the rights of workers and
the desired balance in labor relations in this S
COMPLAINT
PRAYER FOR RELIEF
WHEREFORE, Plaintiff , on behalf of themselves and all others similarly situated, pray
for relief and judgment against Defendant as follows:
A declaratory judgment that the actions, conduct, and practices of Defendants
complained of herein violated the laws of the United States and the State of California;
An injunction and order permanently restraining Defendants from engaging in
such unlawful conduct;
An order that the action be certified as a class action;
An order that the named Plaintiff herein be appointed class representative
An order that counsel for Plaintiff be appointed class counsel;
An award of damages in an amount to be determined at trial, plus prejudgment
interest, to compensate Plaintiffs and Class Members for all monetary and/or economic
hardship, including, but not limited to, the loss of past and future income, wages, compensation,
and other benefits of employment;
An award of damages in an amount to be determined at trial, plus prejudgment
interest, to compensate Plaintiffs and Class Members for all non monetary and compensatory
harm;
An award of damages for any and all other monetary and/or non monetary losses
suffered by Plaintiffs and Class Members in an amount to be determined at trial, plus
prejudgment interest;
For reasonable attorney’s fees and costs under the California Labor Code
including expert witness fees, pursuant to California CCP §1021.5 and other laws herein
For costs of suit herein incurred; and
For such other and further relief as the Court deems just and proper.
COMPLAINT
JURY DEMAND
Plaintiffs hereby demand a jury trial on all issues of fact and damages stated herein.
Dated: October 24, 2018 Respectfully submitted,
Ashley N. Pellouchoud (SBN 286049)
THE OTTINGER FIRM, P.C.
535 Mission Street
San Francisco, CA 94105
ashley@ottingerlaw.com
Tel: 415
Fax: 212
COMPLAINT
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Raul Aceves and Francisco Alcazar behalf of on behalf of all Failures to Pay Minimum and Overtime Wages & Penalties Lab. Code Legacy Partners, Inc. Failure to Maintain Accurate and corporation; and Does 1 through 50, Complete Employment records (Cal. Lab. Failure to Provide Accurate, Itemized Waiting Time Penalties Cal. Lab. Code Plaintiff Raul Aceves and Francisco Alcazar the Class Representative their behalf and on behalf of all others similarly situated (collectively Plaintiffs Class Members through their attorneys, The Ottinger Firm, P.C., hereby allege as follows: INTRODUCTION Plaintiffs bring this class action pursuant to Code of Civil Procedure § 382, on behalf all of Defendant Legacy Partners’ Maintenance Supervisors, ainten nce echnicians, and all other similarly situated employees currently and formerly employed by Defendant Legacy Partners, Inc., who were subject to Defendants’ Call ” (“Class Members” from the date four years prior to the filing of this Complaint through the date of trial in this action. wide relief sought by Plaintiffs is set forth herein and below Defendants violate California law by maintaining policies and practices that systematically fail to provide employees with the protections of California’s Labor Code. Due to Defendants policies and practices, Defendant violated numerous provisions of the California Labor Code, including failing to compensate Class Members for all hours worked, and failing to furnish timely statements accurately showing, among other things, the total hours Class Members worked during each pay period. Plaintiffs also allege that these acts, which violate the California Labor Code, constitute unlawful and unfair business practices in violation of the California Unfair Competition Laws. Plaintiffs therefor bring this action pursuant to lifornia 202, 203, 226, 510, 512, 1174, 1174.5, 1194, 1194.2, 1198, and California Wage Order 5 (8 Cal. Code Reg., §11010), seeking unpaid regular and overtime wages, payment of all wages earned, penalties, other equitable relief, and reasonable attorneys fees and costs. COMPLAINT Plaintiff , pursuant to Business & Professions Code §§ 172 et seq., also seek restitution and disgorgement of all wages owed Plaintiffs by Defendants from: (1) its failure to pay hourly and overtime wages and ) its failure to pay all wages earned. PARTIES Plaintiffs Plaintiff Raul Aceves is a resident of Milpitas, California, in Santa Clara County. He worked for Defendants as a Maintenance Supervisor and as a Maintenance Technician performing non exempt work for Defendant , for approximately sixteen years. At all relevant times, Plaintiff Aceves met the definition of “employee” of the Corporate Defendants under all applicable statutes. Plaintiff Aceves is subject to Title VIII of the California Code of Regulations, § 11010, and related Industrial Welfare Commission (“IWC”) Wage Order 5 Plaintiff Aceves never hired or fired other employees Defendant Plaintiff Francisco Alcazar is a resident of Santa Clara, California, in Santa Clara County. He has worked for Defendants as a Maintenance Technician, performing non exempt work for Defendant , for approximately 12 years. At all relevant times, Plaintiff met the definition of “employee” of the Corporate Defendants under all applicable statutes. Plaintiff Alcazar is subject to Title VIII of the California Code of Regulations, § 11010, and related IWC Wage Order 5 2001. Plaintiff Alcazar never hired or fired other employees of Defendant Class Representative Aceves and Alcazar will adequately represent the interests of Class Members and will vigorously participate in this matter as a class action when certified. The Class Representatives have further secured counsel who are highly experienced in class action litigation who will likewise adequately represent Plaintiffs and Class Members. COMPLAINT The proposed Class is defined as all Defendants’ employees who were subject to Defendants’ Call Policy which required them to remain on call well after Plaintiffs had worked eight hours any given day to respond to service calls during non working times, and otherwise restricted their free movement and required them to work outside of unpaid working hours, and who were not paid for such time at either their regular rate of pay, or if applicable, their overtime rate of pay. The lass includes a subclass of those people who have terminated employment with Defendants without having been paid for the aforementioned on duty time and who are therefore entitled to waiting penalties under the California Labor Code Defendant On information and belief, Plaintiffs allege Defendant Legacy Partners, Inc. is incorporated under the laws of the State of Delaware with a principle place of business and principal office in California located in San Mateo County, located at 4000 E. 3rd Ave., Ste 600 in Foster City, CA 94404. Defendant Legacy Partners, Inc. is privately held real estate firm that owns, develops and manages apartments and multifamily communities throughout California. At all levant times herein, Defendant Legacy Partners, Inc. met the definition of “employer” under all applicable statutes. Defendants are engaged in the ownership, management, and operation of Legacy Partners, Inc. Plaintiffs are informed and believe, and thereon allege that, during the liability period, Defendants employed Plaintiffs as Maintenance Supervisors, Maintenance Technicians, and other similarly situated positions within Santa Clara County and throughout California. COMPLAINT Plaintiffs are further informed and believe that Defendants directly exercised control over the wages, hours, and working conditions of the Plaintiffs. The true names and capacities, whether individual, corporate, associate, or otherwise, of Defendants sued herein as Does 1 through 50, inclusive, are currently unknown to Plaintiffs who therefore sue Defendants by such fictitious names under Code of Civil Procedure 474. Plaintiffs are informed and believe, and based thereon allege, that each of the Defendants designated herein as a Doe is legally responsible in some manner for the unlawful acts referred to herein. Plaintiffs will seek leave of Court to amend this Complaint to reflect the true names and capacities of the Defendants designated hereafter as Does when such entities become known. Plaintiffs are informed and believe and based thereon allege that each Defendant acted in all respects pertinent to this action as the agent of the other Defendants, carried out a joint scheme, business plan, or policy in all respects pertinent thereto, and the acts of each Defendant are legally attributable to the other Defendants. JURISDICTION AND VENUE Plaintiffs are informed and believe, and thereon allege that Defendant Legacy Partners, Inc., was, at all relevant times, operating within the S e of California, and thus subject to the jurisdiction of California courts by reason of personal jurisdiction as a citizen of the state transacting and conducting business in the State of California, and is thus subject to the jurisdiction of all laws, regulations, and court decisions rendered by the State of California. Jurisdiction is conferred on this Court because Defendant, named herein, is a citizen of the State of California. Jurisdiction is conferred on this Court as to all causes of action because they arise under California statutory and/or common law. Jurisdiction is proper in this Court because alleged damages exceed $25,000.00. COMPLAINT Venue is proper in this Court because Defendant Legacy Partners, Inc. conducts business in this County and because a substantial part of the events and omissions giving rise to tiff claims occurred in this County. GENERAL FACTUAL ALLEGATIONS Defendants develops and manages apartments and multifamily communities in Santa Clara County and throughout California. At all relevant times herein, Plaintiff Aceves and Alcazar spent the vast majority of their working hours performing non exempt work for Defendant At all times relevant herein, Plaintiffs ere entitled to overtime premium pay for all overtime hours worked. Defendants assign Plaintiffs to specific job site where they are required to remain on call subject to Defendants’ Call Policy for two weeks at a time. Such Call Policy required all Maintenance Supervisors, Maintenance Technicians, and all other similarly situated employees to adhere to the following requirements after scheduled working hours The on call page is never to be turned off. It shall be on 24 hours a day, 7 days a week. The service technicians shall respond immediately to any pages on the on pager regardless of time of day or week. All pages shall be responded to immediately. All persons on call shall stay in a minute vicinity of the community. Employees on call shall not report to work under the influence of drugs or alcohol. All persons on call shall wear a [sic] LPR uniform or a [sic] LPR picture ID card. COMPLAINT All after hour service call shall require the service technician to fill out a service request completely. Specify all work performed and any information or instructions needed to follow up to complete the task. All blanks on the service request are to be filled in and shall be left on the manager’ desk or dropped in the night drop slot. Because of Defendants’ Call Policy Plaintiffs are required to remain tied to the assigned job site for the entirety of their assignment period, 24 hours a day although they are only generally paid for 40 hours per week. During these two week assignments Defendants prohibit Plaintiffs from traveling more than “twenty minutes away” from whatever job site they are assigned to so that they can respond to maintenance calls and other calls the Company deems emergencies. Plaintiffs receive these multiple times a week, which they must respond to within approximately 30 minutes. Responding to these calls is a non delegable task that each Plaintiff must handle himself or herself. Defendants have told Class Members that failure to respond to a service call is grounds for disciplinary action. Plaintiffs work overtime and regularly work half days on Saturdays. Throughout Plaintiffs and Class Members’ employment, Defendants did not compensate Plaintiffs or Class Members for time they were subject to and restricted greatly by the Call Policy despite the fact that Plaintiffs and Class Members were under the complete control of Defendants during such hours Throughout Plaintiffs and Class Members’ employment, Defendants paid Plaintiffs and Class Members only straight time for overtime hours worked, and never paid Plaintiffs or Class Members any premium overtime pay for overtime hours worked COMPLAINT Defendants have violated numerous provisions of the California Labor Code and continue to violate them. The violations include failure to pay minimum and overtime wages, failure to maintain accurate and complete employment records, failure to provide accurate, itemized wage statements, failure to pay timely wages, in addition to engaging in unfair competition CLASS ACTION ALLEGATIONS Plaintiffs incorporate all of the preceding paragraphs of this Complaint as if fully set forth herein. Class Members: Plaintiffs bring this action on behalf of themselves and all others similarly situated pursuant to Code of Civil Procedure § 382 on behalf of the following class and subclasses Call Class All persons presently or formerly engaged as Maintenance Supervisors, Maintenance Technicians, and all other similarly situated positions ho were subject to Defendants’ Call Policy for Defendants in the State of California during the period beginning four years before the filing of this action d ending when final judgment is entered ( Class Members Wage Statement Subclass All members of the Call Class who have been employed by Defendants during the period beginning one year before the filing of this action and ending when final judgment is entered Former Employee Subclass All members of the Call Class who have voluntarily or involuntarily separated from Defendants’ employment during the period beginning three years before the filing of this action and ending when final judgment is entered. COMPLAINT Class Members, like individual Plaintiffs, meet the definition of employees of the Defendants under all applicable statutes. Class Members are subject to Title VIII of th California Code of Regulations, § 11010, and related Industrial Welfare Commission ( IWC Wage Order 5 This action has been brought and may properly be maintained as a class action under the provisions of § 382 of the Code of Civil Procedure because there is a well defined community of interest in the litigation and the proposed class is easily ascertainable. Reservations of Rights Pursuant to Rule of Court 3.765(b), Plaintiffs reserve the right to amend or modify the class definition with greater specificity, by further division into subclasses, and/or by limitation to particular issues. Numerosity intiffs are informed and believe and thereon allege that Class Members are so numerous that the individual joinder of each Class Member is impractical. On information and belief, Defendants employs hundreds of Maintenance Supervisors, Maintenance Technicians, and other similarly situated persons throughout California. Plaintiffs are informed, believe, and thereon allege that the actual number of Class Members exceeds the minimum number required for numerosity purposes under Code of Civil Procedure § Predominant Common Questions Plaintiffs are informed, believe, and thereon allege that common questions of law and fact exist as to all Class Members and predominate over any questions that only affect individual Class Members. These questions include, but are not limited to: Whether members of the Call Class have properly been compensated for hours worked as that term is defined in Section H of the applicable Wage Order? COMPLAINT Whether members of the Call Class are entitled to relief in the form of compensation and penalties for violations of the California Labor Code as set forth hereinafter? Whether, by failing to pay wages to Wage Statement Subclass members, Defendants have failed to provide them with written wage statements that accurately reflect their gross and net wages earned? Whether, by failing to pay premium wages to the Former Employee Subclass Defendants are liable to them for waiting time penalties under Labor Code Whether Class Members are entitled to damages, penalties, interest, and attorneys fees and costs, as provided by the Labor Code and Wage Order 5 ? Typicality: Plaintiffs are informed, believe, and thereon allege that their claims are typical of Class Membe claims in that Defendants have policies and practices that violate the Labor Code, the IWC Wage Order, and Business and Professions Code as alleged herein that enable them to seek the same relief as they are under the same theories of recovery. Adequacy of Representation Plaintiffs will fairly and adequately represent and protect the interests of Class Members in that they have no interests that are adverse to Class Members and are represented by counsel experienced in employment and wage and hour clas action litigation. Superiority A class action is superior to other available means for fair and efficient adjudication of Class Members claims and offers significant benefits to the parties and the court. A class action will allow a number of similarly situated persons to simultaneously COMPLAINT and efficiently prosecute their common claims in a single forum without the unnecessary duplication of effort and expense that numerous individual actions would entail. e monetary amounts due to many Class Members are likely to be relatively small, thus making it difficult, if not impossible, for individual Class Members to seek and obtain relief. Moreover, a class action will serve important public interests by enabling the no waivable statutory rights of Class Members to be effectively asserted, and fundamental public policies to be vindicated, in one proceeding. A class action will also provide a means for vindicating the rights of current employees who are less likely to come forward to assert those rights based on fears of employer reprisal. Finally, a class action will prevent the potential for inconsistent or contradictory judgments inherent in individual litigation and address the problems inherent in random and fragmentary enforcement. CAUSE OF ACTI Failure to Pay Wages & Penalties Cal. Lab. Code §§ (By All Plaintiffs Against All Defendants) Plaintiffs incorporate each of the preceding paragraphs of this Complaint by reference as if fully set forth herein. At all relevant times, Plaintiffs have been exempt employee of Defendants entitled to the full protections of the California Labor Code and of Wage Order 5 Cal. Lab. Code § 1198 makes it unlawful for an employer to employ any person under conditions of employment that violate Wage Order 5 Section 2(K) of Wage Order 5 defines hours worked the time during which an employee is subject to the control of the employer, [which] includes all the time the employee is suffered or permitted to work, whether or not required to do so. COMPLAINT Cal. Lab. Code §§ 510 and 1194, and Section 3 of Wage Order 5 , require employers to pay overtime wages to their non exempt employees at no less than one and one half times their regular rates of pay for all hours worked in excess of eight hours in one workday, hours worked in excess of forty hours in one workweek, and for the first eight hours worked on a enth consecutive workday. Cal. Lab. Code §§ 510 and 1194, and Section 3 of Wage Order 5 , also require employers to pay overtime wages to their non exempt employees at no less than two times their regular rates of pay for all hours worked in excess of twelve hours in one workday, and for all hours worked in excess of eight hours on a seventh consecutive workday. During the Class Period, Plaintiffs were required to remain on call after working eight hours per day or 40 hours a per week in order to respond to service calls and other emergency calls Under Defendants’ Call Policy, Plaintiffs must remain close to their worksite and must respond immediately to service calls. Defendants have told Class Members that failure to respond to a service call is grounds for disciplinary action. Class Members are paid or should be paid on an hourly basis. Each Class Member is entitled to but was not paid for “hours worked” as that term is defined in Section H of Wage Order 5 . Cal. Lab. Code § 1194 states: Not withstanding 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 unpai balance of the full amount of this minimum wage or overtime compensation including interest thereon, reasonable attorney’s fees, and costs of suit. COMPLAINT Plaintiffs are entitled to recover unpaid wages and other compensation and damages for time Plaintiffs were subject to the control of Defendants under its Call Policy for which they were not compensated. Pursuant to Cal. Lab. Code §§ 1194(a) and 1194.2(a) Plaintiffs to recover earned and unpaid overtime wages, interest thereon, as well as awards of reasonable costs and attorneys fees, as well as liquidated damages all in amounts subject to proof SECOND CAUSE OF ACTION Failure to Maintain Accurate Employment Records (Cal. Lab. Code § 1174 (By All Plaintiffs Against All Defendants) Plaintiffs incorporate each of the preceding paragraphs of this Complaint by reference as if fully set forth herein. Cal. Lab. Code § 1174(d) requires an employer to keep at a central location in California or at the plant or establishment at which employees are employed, payroll records showing the hours worked daily by, and the wages paid to, each employee, and the number of piece rate units earned by and any applicable piece rate paid to each employee. Plaintiff are informed and believe that Defendants willfully failed to make and keep such records for Plaintiffs Wage Order 5 2001, paragraph (7)(A) requires that every employer keep accurate employee information, including time records showing when each employee begins and ends each work period, and applicable rates of pay. Plaintiffs are informed and believe that Defendants failed to make and keep such records for Plaintiffs Plaintiffs are informed and believe that Defendants’ failure to keep payroll records and accurate employee information, as described above, violated Cal. Lab. Code § (d) and Wage Order 5 (7)(A). Plaintiffs are entitled to penalties of $100 for the initial COMPLAINT violation and $200 for each subsequent violation for every pay period during which these records and information were not kept by Defendant. Plaintiffs are informed and believe that Defendants’ failure to keep and maintain records and information, as described above, was willful, and Plaintiffs are entitled to a civil penalty of $500, pursuant to Cal. Lab. Code § 1174.5 THIRD CAUSE OF ACTION Failure to Provide Accurate, Itemized Wage Statements (Cal. Lab. Code § 226) (By Plaintiffs and the Wage Statement Subclass, Against All Defendants) Plaintiffs incorporate all of the preceding paragraphs of this Complaint as if fully set forth herein. Pursuant to Labor Code § 226(a), Defendants have been obliged to provide Plaintiffs and Wage Statement Subclass members, either semimonthly or at the time of each payment of wages, accurate itemized statement showing, among other things, the gross and net wages earned by each class member. By failing to pay minimum, overtime, and/or premium wages to Plaintiffs as set forth above, Defendants have furnished them with written wage statements that do not accurately reflect, among other things, their amounts of gross and net wages earned, and number of hours worked at each applicable wage rate. aintiffs are informed, believe, and thereon allege that by failing to pay premium wages to Wage Statement Subclass members as set forth above, Defendants have also furnished them with written wage statements that do not accurately reflect, among other things, their amounts of gross and net wages earned, and number of hours worked at each applicable wage rate. Plaintiffs are informed, believe, and thereon allege that Defendants’ failures to provide them and Wage Statement Subclass members with accurate wage statements have been knowing and intentional, in that Defendants have, at all relevant times, had the ability to COMPLAINT provide them with accurate wage statements but, instead, have knowingly and intentionally provided them with inaccurate wage statements as a result of not keeping accurate records of all their hours worked, their meal period start and stop times, and amounts of wages earned. Plaintiffs are informed, believe, and thereon allege that Wage Statement Subclass members have suffered injuries due to Defendants’ failures to provide them with accurate written wage statements in that, among other things, their legal rights to receive accurate wage statements have been violated, they have been misled about the amounts of wages they have earned, they have been prevented from immediately challenging allegedly unlawful pay practices, they have needed or will need to reconstruct time and pay records and perform mathematical computations to determine the amounts of wages they have earned, and/or have had inaccurate information about their wages and deductions submitted to government agencies. Pursuant to Labor Code § 226(e), Plaintiffs, on behalf of themselves and the Wage Statement Subclass seek to recover the greater of actual damages or $50 for the initial y period in which a § 226(a) violation occurred, the greater of actual damages or $100 for each violation of § 226(a) in a subsequent pay period, up to the greater of actual damages or an aggregate $4,000 penalty per class member, as well as awards of reasonable attorneys’ fees and costs, all in amounts subject to proof. FOURTH CAUSE OF ACTION Waiting enalties (Cal. Labor Code (By Plaintiff Aceves and the Former Employee Subclass, Against All Defendants) Plaintiff Aceve incorporate all of the preceding paragraphs of this Complaint as if fully set forth herein. Labor Code § 201 provides that all of the earned and unpaid wages of an employee who is discharged become due and payable immediately at the time of discharge. COMPLAINT abor Code § 202 provides that all of the earned and unpaid wages of an employee who quits become due and payable at the time of quitting if the employee gives at least 72 hours’ notice before quitting, or within 72 hours of quitting if the employee gives l than 72 hours’ notice before quitting. Labor Code § 203 provides that the wages of a terminated employee will continue as a penalty for up to thirty calendar days if the employer willfully fails to timely pay any earned and unpaid wages to the employee in the times set forth in Labor Code §§ By failing to pay Plaintiff Aceves and Former Employee Subclass members earned premium wages, minimum wages, and/or overtime wages, Defendants failed to timely pay him and Former Employee Subclass members all earned and unpaid wages in violation of Labor Code § Plaintiff Aceves informed, believe , and thereon allege that, by failing to pay Former Employee Subclass members earned premium wages, minimum wages, and/or overtime wages, Defendants have failed to timely pay them all earned and unpaid wages in violation of Labor Code § 201 or § Plaintiff Aceves is informed believes and thereon allege that, at all relevant times, Defendant failures to pay them and Former Employee Subclas members earned and unpaid wages in violation of Labor Code §§ 202 have been willful in that Defendants have had the ability to fully comply with the requirements set forth in those statutes, but have deliberately chosen to maintain policies and practices with respect to payroll that are incompatible with those requirements. Pursuant to Labor Code § Plaintiff Aceves, on behalf of himself and the Former Employee Subclass, seek up to thirty days of wages as waiting time penalties in amounts subject to proof. Pursuant to Code of Civil Procedure § 1021.5, the substantial benefit doctrine, and/or the common fund doctrine, Plaintiff Aceves, on behalf of himself and the Former COMPLAINT Employee Subclass seek awards of reasonable attorneys’ fees and costs in amounts subject to proof. FIFTH CAUSE OF ACTION Unfair ompetition & Business Practices (Cal. Bus. & Prof. Code et seq (By All Plaintiffs Against All Defendants) Plaintiffs incorporate each of the preceding paragraphs of this Complaint by reference as if fully set forth herein A violation of Cal. Bus. & Prof. Code may be predicated on the violation of any state or federal law. Defendants’ activities, as alleged herein, are violations of California law, and constitute unlawful business acts and practices in violation of Cal. Bus. & Prof. Code et seq. California has an important public policy of protecting the welfare of employees, and thus provides that statutorily guaranteed wages be paid for all hours. Defendants’ willful actions have denied Plaintiffs the legally mandated minimum wages for all hours worked, have been, and continue to be, unfair, unlawful, and harmful to Plaintiffs and the general public Over and above these violations, Defendants have failed to provide accurate, ges statements. Plaintiffs seek to enforce important rights affecting the public interest within the meaning of Cal. Civ. Proc. Code Through these unlawful actions Defendants are able to unjustly keep and appropriate for itself significant amounts of money that otherwise should have been paid to Plaintiffs Defendants’ actions left unrectified will aggregate to the impunity employers enjoy and which California s labor laws are meant to redress, undermining the rights of workers and the desired balance in labor relations in this S COMPLAINT PRAYER FOR RELIEF WHEREFORE, Plaintiff , on behalf of themselves and all others similarly situated, pray for relief and judgment against Defendant as follows: A declaratory judgment that the actions, conduct, and practices of Defendants complained of herein violated the laws of the United States and the State of California; An injunction and order permanently restraining Defendants from engaging in such unlawful conduct; An order that the action be certified as a class action; An order that the named Plaintiff herein be appointed class representative An order that counsel for Plaintiff be appointed class counsel; An award of damages in an amount to be determined at trial, plus prejudgment interest, to compensate Plaintiffs and Class Members for all monetary and/or economic hardship, including, but not limited to, the loss of past and future income, wages, compensation, and other benefits of employment; An award of damages in an amount to be determined at trial, plus prejudgment interest, to compensate Plaintiffs and Class Members for all non monetary and compensatory harm; An award of damages for any and all other monetary and/or non monetary losses suffered by Plaintiffs and Class Members in an amount to be determined at trial, plus prejudgment interest; For reasonable attorney’s fees and costs under the California Labor Code including expert witness fees, pursuant to California CCP §1021.5 and other laws herein For costs of suit herein incurred; and For such other and further relief as the Court deems just and proper. COMPLAINT JURY DEMAND Plaintiffs hereby demand a jury trial on all issues of fact and damages stated herein. Dated: October 24, 2018 Respectfully submitted, Ashley N. Pellouchoud (SBN 286049) THE OTTINGER FIRM, P.C. 535 Mission Street San Francisco, CA 94105 ashley@ottingerlaw.com Tel: 415 Fax: 212 COMPLAINT