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SHEA & McINTYRE, A.C.
2166 The Alameda
San Jose, CA.95126
1408] 298-6611 Telephooe
[608] 275-0814 Facsinule
JOHN F. McINTYRE, JR., ESQ., SB No. 172128
KEVIN R. ELLIOTT, ESQ., SB No. 276295
SHEA & McINTYRE, A.P.C.
2166 The Alameda
San Jose, CA 95126-1144
(408) 298-6611
(408) 275-0814 Facsimile
kelliott@sheamcintyre.com
Attorneys for Plaintiff,
MARCO ANTONIO MUNOZ
FILED
DEC 28 20MT
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA.
IN AND FOR THE COUNTY OF SANTA CLARA - UNLIMITED JURISDICTION
MARCO ANTONIO MUNOZ,
Plaintiff,
ve
ZAFIRIS INVESTMENTS, INC., a California
Corporation, GEORGE ZAFIRIS, an individual;
AND DOES 1 to 25, INCLUSIVE,
Defendants.
Bi
ee
a
|
]
PARTIES
nor 17CV3 21174
COMPLAINT FOR:
1. FAILURE TO PAY OVERTIME
WAGES IN VIOLATION OF
LABOR CODE § 510
2. FOR LIQUIDATED DAMAGES
UNDER LABOR CODE § 1194.2
3. FAILURE TO PROVIDE
ACCURATE WAGE
STATEMENTS IN VIOLATION OF
LABOR CODE § 226
WAITING TIME PENALTIES
FAILURE TO PROVIDE MEAL
PERIODS AND REST BREAKS IN
VIOLATION OF LABOR CODE §
226.7 AND IWC WAGE ORDER 5-
6. UNLAWFUL, UNFAIR, AND
FRAUDULENT BUSINESS
PRACTICES IN VIOLATION OF
B&P Code §§ 17200 AND 17203,
ET. SEQ.
vs
1. Plaintiff MARCO ANTONIO MUNOZ (“Plaintiff”) is an individual who was
employed by Defendants from January 1, 2017 through late July 2017.
2. Defendant ZAFIRIS INVESTMENTS, INC., a California Corporation (“the
Company” or collectively with Zafiris and Does 1-25 “Defendants”) based upon Plaintiff's
COMPLAINTSo oO I KR OH BR OW ON
‘SHEA & MCINTYRE, AP.C,
2166 The Alera
‘San Jose, CA 95126
[408] 298-6611 Telephone
908} 275-0814 Facsinile
information and belief, is a business duly authorized to conduct business in the State of
California and its principal place of business is located in the County of Santa Clara.
3. Defendant GEORGE ZAFIRIS, an individual (“Zafiris” or collectively with the
Company, and Does 1-25 “Defendants”) based upon information and belief, is an individual who
resides in the State of California.
4. Defendants Does | through 25 are sued herein under fictitious names pursuant to
California Code of Civil Procedure Section 474; these defendants are in some way liable for the
damages sustained by Plaintiff; Plaintiff does not at this time know the true names or capacities
of said defendants, but pray that the same may be inserted herein when ascertained. ~
5. Plaintiff is informed and believes, and based thereon alleges, that Defendants, and
each of them, are, at all relevant times were, the agent and employee of every other Defendant,
and in committing substantially all of the acts herein alleged, were in the scope of their authority
as such agents and employees, with the permission and consent of every other Defendant.
6. Plaintiff is informed and believe and alleges thereon that at all times mentioned
herein, the Company is owned and operated by Zafiris who is a director and officer of the
Company. Pursuant to California Labor Code section 558.1 as an owner, director, and/or officer
of the Company, Zafiris is personally liable for some or all of the claims alleged herein.
7. Plaintiffs are informed and believe and allege thereon that Zafiris is the alter ego
of the Company, such that a unity of interest exists between Zafiris and the Company, so that
there is no distinction between Zafiris and the Company, as a matter of law and thereon alleges
that Zafiris and the Company do not operate or observe corporate formalities, and that Zafiris and
the Company commingle assets and liabilities. As hereinafter alleged, Plaintiff claims that
recognizing the separate legal distinction between Zafiris and the Company under the facts and
circumstances would be inequitable and would promote fraud and injustice.
JURISDICTION AND VENUE
8. Defendants’ actions were committed within the State of California.
9, Venue of this action is proper in the County of Santa Clara, which is the county
where Defendants are located.
2
COMPLAINTCoe IY DA BP WwW YD
10
SHEA & MeINTYRE, A P.C.
2166 The Alameda
San Jose, CA 95126
[408] 294-6611 Teleptone
[a0] 275-0814 Facsimite
GENERAL FACTUAL ALLEGATIONS
10. Plaintiff was employed by Defendants at their restaurant located in San Jose,
California from January 1, 2017 through late July 2017. Defendants the Company, Zafiris, and
Does 1 through 25, and each of them were Plaintiff’s employer pursuant to the California Labor
Code and other applicable laws.
11. Defendants agreed to compensate Plaintiff at a salaried rate of $62,400 per year
plus $6,000 per year in bonus payments.
12. Plaintiff was improperly classified by Defendants as "exempt" from the overtime
rules under the California Labor Code.
13. Plaintiff regularly worked for Defendants more than eight (8) hours in a single day
and more than forty (40) hours per week.
14. Plaintiffs usual work schedule while employed by Defendants was six (6) days
per week and about nine (9) hours per day on average.
15. From January 1, 2017 through late July 2017, Plaintiff worked approximately 407
hours of uncompensated overtime while employed by Defendants.
16. Plaintiff was not paid overtime wages to which he is entitled because he was
improperly classified by Defendants. ,
17. Plaintiff did not fit within any exempt category recognized under California law.
18. Plaintiff spent more than fifty (50) percent of his time while employed by
Defendants engaged in non-exempt tasks.
FIRST CAUSE OF ACTION
FAILURE TO PAY OVERTIME WAGES IN VIOLATION OF
LABOR CODE § 510 and the [WC WAGE ORDERS
(Against All Defendants)
19. Plaintiff incorporates by reference all of the foregoing paragraphs as though set
forth fully herein.
20. Labor Code § 510 and the IWC Wage Orders provide that any work in excess of
eight hours in one workday and any work in excess of 40 hours in any one workweek and the
first eight hours worked on the seventh day of work in any one workweek shall be compensated
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COMPLAINT—
oO & A DA FF YN
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(608) 298-6611 Telephone
[408] 275-0814 Facsine
at the rate of one and one-half times the regular rate of pay for an employee.
21. Defendants failed to pay Plaintiff premium overtime wages, despite the fact that
he regularly worked more than eight hours in one workday and/or forty hours in one workweek.
22. Pursuant to Labor Code §1194, Plaintiff is entitled to receive all premium
overtime wages, including interest thereon at the legal rate, unlawfully withheld by Defendants.
23. Asadirect and proximate result of Defendants' conduct, Plaintiff has suffered
damages in an amount to be proven at trial, but in no event less than $18,355.00. Plaintiff is also
entitled to liquidated damages pursuant to Labor Code § 1194.2, in addition to interest, expenses,
attomeys' fees, and costs of suit.
SECOND CAUSE OF ACTION
FOR LIQUIDATED DAMAGES UNDER LABOR CODE § 1194.2
(Against All Defendants)
24. Plaintiff incorporates by reference all of the foregoing paragraphs as though set
forth fully herein.
25. Plaintiff was not paid minimum wages for all hours worked, specifically for the
hours he worked past 8 hours in a day and/or past 40 hours in a week. Therefore Plaintiff is
entitled to liquidated damages, pursuant to Labor Code § 1194.2(a), in an amount to be proven at
trial, but in no event less than $4,273.50, in addition to interest, expenses, attorneys’ fees, and
costs of suit.
THIRD CAUSE OF ACTION
FAILURE TO PROVIDE ACCURATE WAGE
STATEMENTS IN VIOLATION OF LABOR CODE § 226
(Against All Defendants)
26. Plaintiff incorporates by reference all of the foregoing paragraphs as though set
forth fully herein.
27. Labor Code § 226(a) provides that every employer shall, semimonthly or at the
time of each payment of wages, provide each employees with a written, itemized statement
showing, inter alia, the gross wages earned, the total hours worked by the employee, and the
applicable hourly rate in effect during the pay period and the corresponding number of hours
earned at each hourly rate.
4
COMPLAINT —<“Cs_“CS~<‘<‘<;7 3}PTStStC
Preview
oD em IY DH BR WN = F WwW NH 15 SHEA & McINTYRE, A.C. 2166 The Alameda San Jose, CA.95126 1408] 298-6611 Telephooe [608] 275-0814 Facsinule JOHN F. McINTYRE, JR., ESQ., SB No. 172128 KEVIN R. ELLIOTT, ESQ., SB No. 276295 SHEA & McINTYRE, A.P.C. 2166 The Alameda San Jose, CA 95126-1144 (408) 298-6611 (408) 275-0814 Facsimile kelliott@sheamcintyre.com Attorneys for Plaintiff, MARCO ANTONIO MUNOZ FILED DEC 28 20MT IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA. IN AND FOR THE COUNTY OF SANTA CLARA - UNLIMITED JURISDICTION MARCO ANTONIO MUNOZ, Plaintiff, ve ZAFIRIS INVESTMENTS, INC., a California Corporation, GEORGE ZAFIRIS, an individual; AND DOES 1 to 25, INCLUSIVE, Defendants. Bi ee a | ] PARTIES nor 17CV3 21174 COMPLAINT FOR: 1. FAILURE TO PAY OVERTIME WAGES IN VIOLATION OF LABOR CODE § 510 2. FOR LIQUIDATED DAMAGES UNDER LABOR CODE § 1194.2 3. FAILURE TO PROVIDE ACCURATE WAGE STATEMENTS IN VIOLATION OF LABOR CODE § 226 WAITING TIME PENALTIES FAILURE TO PROVIDE MEAL PERIODS AND REST BREAKS IN VIOLATION OF LABOR CODE § 226.7 AND IWC WAGE ORDER 5- 6. UNLAWFUL, UNFAIR, AND FRAUDULENT BUSINESS PRACTICES IN VIOLATION OF B&P Code §§ 17200 AND 17203, ET. SEQ. vs 1. Plaintiff MARCO ANTONIO MUNOZ (“Plaintiff”) is an individual who was employed by Defendants from January 1, 2017 through late July 2017. 2. Defendant ZAFIRIS INVESTMENTS, INC., a California Corporation (“the Company” or collectively with Zafiris and Does 1-25 “Defendants”) based upon Plaintiff's COMPLAINTSo oO I KR OH BR OW ON ‘SHEA & MCINTYRE, AP.C, 2166 The Alera ‘San Jose, CA 95126 [408] 298-6611 Telephone 908} 275-0814 Facsinile information and belief, is a business duly authorized to conduct business in the State of California and its principal place of business is located in the County of Santa Clara. 3. Defendant GEORGE ZAFIRIS, an individual (“Zafiris” or collectively with the Company, and Does 1-25 “Defendants”) based upon information and belief, is an individual who resides in the State of California. 4. Defendants Does | through 25 are sued herein under fictitious names pursuant to California Code of Civil Procedure Section 474; these defendants are in some way liable for the damages sustained by Plaintiff; Plaintiff does not at this time know the true names or capacities of said defendants, but pray that the same may be inserted herein when ascertained. ~ 5. Plaintiff is informed and believes, and based thereon alleges, that Defendants, and each of them, are, at all relevant times were, the agent and employee of every other Defendant, and in committing substantially all of the acts herein alleged, were in the scope of their authority as such agents and employees, with the permission and consent of every other Defendant. 6. Plaintiff is informed and believe and alleges thereon that at all times mentioned herein, the Company is owned and operated by Zafiris who is a director and officer of the Company. Pursuant to California Labor Code section 558.1 as an owner, director, and/or officer of the Company, Zafiris is personally liable for some or all of the claims alleged herein. 7. Plaintiffs are informed and believe and allege thereon that Zafiris is the alter ego of the Company, such that a unity of interest exists between Zafiris and the Company, so that there is no distinction between Zafiris and the Company, as a matter of law and thereon alleges that Zafiris and the Company do not operate or observe corporate formalities, and that Zafiris and the Company commingle assets and liabilities. As hereinafter alleged, Plaintiff claims that recognizing the separate legal distinction between Zafiris and the Company under the facts and circumstances would be inequitable and would promote fraud and injustice. JURISDICTION AND VENUE 8. Defendants’ actions were committed within the State of California. 9, Venue of this action is proper in the County of Santa Clara, which is the county where Defendants are located. 2 COMPLAINTCoe IY DA BP WwW YD 10 SHEA & MeINTYRE, A P.C. 2166 The Alameda San Jose, CA 95126 [408] 294-6611 Teleptone [a0] 275-0814 Facsimite GENERAL FACTUAL ALLEGATIONS 10. Plaintiff was employed by Defendants at their restaurant located in San Jose, California from January 1, 2017 through late July 2017. Defendants the Company, Zafiris, and Does 1 through 25, and each of them were Plaintiff’s employer pursuant to the California Labor Code and other applicable laws. 11. Defendants agreed to compensate Plaintiff at a salaried rate of $62,400 per year plus $6,000 per year in bonus payments. 12. Plaintiff was improperly classified by Defendants as "exempt" from the overtime rules under the California Labor Code. 13. Plaintiff regularly worked for Defendants more than eight (8) hours in a single day and more than forty (40) hours per week. 14. Plaintiffs usual work schedule while employed by Defendants was six (6) days per week and about nine (9) hours per day on average. 15. From January 1, 2017 through late July 2017, Plaintiff worked approximately 407 hours of uncompensated overtime while employed by Defendants. 16. Plaintiff was not paid overtime wages to which he is entitled because he was improperly classified by Defendants. , 17. Plaintiff did not fit within any exempt category recognized under California law. 18. Plaintiff spent more than fifty (50) percent of his time while employed by Defendants engaged in non-exempt tasks. FIRST CAUSE OF ACTION FAILURE TO PAY OVERTIME WAGES IN VIOLATION OF LABOR CODE § 510 and the [WC WAGE ORDERS (Against All Defendants) 19. Plaintiff incorporates by reference all of the foregoing paragraphs as though set forth fully herein. 20. Labor Code § 510 and the IWC Wage Orders provide that any work in excess of eight hours in one workday and any work in excess of 40 hours in any one workweek and the first eight hours worked on the seventh day of work in any one workweek shall be compensated 3 COMPLAINT— oO & A DA FF YN 11 (608) 298-6611 Telephone [408] 275-0814 Facsine at the rate of one and one-half times the regular rate of pay for an employee. 21. Defendants failed to pay Plaintiff premium overtime wages, despite the fact that he regularly worked more than eight hours in one workday and/or forty hours in one workweek. 22. Pursuant to Labor Code §1194, Plaintiff is entitled to receive all premium overtime wages, including interest thereon at the legal rate, unlawfully withheld by Defendants. 23. Asadirect and proximate result of Defendants' conduct, Plaintiff has suffered damages in an amount to be proven at trial, but in no event less than $18,355.00. Plaintiff is also entitled to liquidated damages pursuant to Labor Code § 1194.2, in addition to interest, expenses, attomeys' fees, and costs of suit. SECOND CAUSE OF ACTION FOR LIQUIDATED DAMAGES UNDER LABOR CODE § 1194.2 (Against All Defendants) 24. Plaintiff incorporates by reference all of the foregoing paragraphs as though set forth fully herein. 25. Plaintiff was not paid minimum wages for all hours worked, specifically for the hours he worked past 8 hours in a day and/or past 40 hours in a week. Therefore Plaintiff is entitled to liquidated damages, pursuant to Labor Code § 1194.2(a), in an amount to be proven at trial, but in no event less than $4,273.50, in addition to interest, expenses, attorneys’ fees, and costs of suit. THIRD CAUSE OF ACTION FAILURE TO PROVIDE ACCURATE WAGE STATEMENTS IN VIOLATION OF LABOR CODE § 226 (Against All Defendants) 26. Plaintiff incorporates by reference all of the foregoing paragraphs as though set forth fully herein. 27. Labor Code § 226(a) provides that every employer shall, semimonthly or at the time of each payment of wages, provide each employees with a written, itemized statement showing, inter alia, the gross wages earned, the total hours worked by the employee, and the applicable hourly rate in effect during the pay period and the corresponding number of hours earned at each hourly rate. 4 COMPLAINT —<“Cs_“CS~<‘<‘<;7 3}PTStStC