Motion-Secondary: SALVATORE MINEO INDIVIDUALLY, AND ON BEHALF OF ALL et al VS. CITY SIGHTSEEING CORPORATION, A DELAWARE et al

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SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO

Document Scanning Lead Sheet
Jun-28-2012 4:03 pm

Case Number: CGC-10-504804
Filing Date: Jun-28-2012 4:02
Filed by: MICHAEL RAYRAY

Juke Box: 001 Image: 03670307
DECLARATION

SALVATORE MINEO INDIVIDUALLY, AND ON BEHALF OF ALL et al VS. CITY
SIGHTSEEING CORPORATION, A DELAWARE et al

001C03670307

Instructions:
Please place this sheet on top of the document to be scanned.JONES BOTHWELL DION & THOMPSON LLP
ELIZABETH THOMPSON (S.B. #112888)
PAUL J. DION (S.B. #088231)

44 Montgomery Street, Suite 610

San Francisco, CA 94104-4608

Telephone: (415) 951-8900

Facsimile: (415) 951-8901

Attorneys for Defendant JUN 2
CitySightseeing Corporation CLERK

BY: ge Fe __
SUPERIOR COURT OF THE STATE OF CALIFORNIA tly Gerk
COUNTY OF SAN FRANCISCO
UNLIMITED JURISDICTION

SALVATORE MINEO, GINA SCHEMBARI, No. CGC-10-504804
PHILLIP THOMAS NAILS, BENJAMIN DUAX
and DAVID HAYWARD, individually and on Action Filed: October 22, 2010
behalf of all others similarly situated,

DECLARATION OF ELIZABETH

Plaintiffs, THOMPSON IN OPPOSITION TO
PLAINTIFFS’ MOTION FOR CLASS
v. CERTIFICATION
CITY SIGHTSEEING CORPORATION, a
Delaware corporation, CITY SIGHTSEEING Date: July 12, 2012
WORLDWIDE and DOES 1 through 500, Time: 9:30 a.m.
inclusive, Department: 302
Defendants. Trial Date: October 1, 2012

AND RELATED CROSS-COMPLAINT.

I, Elizabeth Thompson, declare as follows:

I. Tama partner in the law firm of Jones Bothwell Dion & Thompson LLP, counsel for
defendant CitySightseeing Corporation (“Defendant”) herein. The following facts are personally
known to me unless stated otherwise, and if called as a witness, I would and could competently
testify thereto under oath.

2. Defendant CitySightseeing Corporation (“CitySightseeing” or “Company”) is a tour

bus operator, probably best known for the double-deck buses seen in various parts of the City,

DECLARATION OF ELIZABETH THOMPSON Case No. CGC-10-504804
IN OPPOSITION TO MOTION FOR CLASS CERTIFICATION27
28

3. I took the depositions of each of the named plaintiffs, who demonstrated a failure to
fully understand his or her duties and obligations as a class representative. Gina Schembari, for
example, did not deny during the course of her deposition the statements she made to the effect
that she was inebriated while working for Defendant, and further indicating that she was a regular
user of controlled substances. Moreover Mr. de la Vega, invoked the 5" Amendment right against
self-incrimination during the course of her deposition instructing her not to answer questions that
were directly relevant to her adequacy as class counsel. Ms. Schembari’s credibility and her
ability to recollect events accurately while employed are seriously impaired and she cannot
properly represent the putative class in this action.

4, The second named defendant in this matter was a United Kingdom company, on
which Plaintiffs’ attempted and failed to make service on the company outside of California, even
though service could readily have been completed pursuant to the straightforward provisions of
C.C.P. § 413.10. This apparent lack of understanding of out-of-state service of process rules
resulted in an enormous delay in getting this case at issue. Consistent with this delay, Plaintiffs’
counsel has taken six months, since the U.K. company was dismissed in November 2911 to file
the instant Motion for Class Certification, even though such motions are to be filed as soon as
“practicable”. CRC 3.764(b). Plaintiffs have provided no explanation in their moving papers for
this additional long delay in prosecuting this action.

5. Plaintiffs’ counsel has also demonstrated a marked lack of understanding of certain
legal issues central to this case. The first three versions of the Complaint filed in this case alleged
that: “At all times relevant, Plaintiffs and the Class members were covered by the provisions of
Industrial Wage Commission (“IWC”) Orders, including IWC Orders [sic] 1-2001.” The
provisions of Wage Order (“W.O.”) No. 1 are then quoted at length. Complaint filed 10/22/10, 1]
44-46. However, W.O. 1 applies to the manufacturing industry. The correct Order is W.O. 9,
covering the transportation industry. 8 CCR § 11090. Moreover, Plaintiffs’ counsel apparently
did not realize that certain provisions of W.O. 9 are preempted by federal law as they apply to
commercial drivers,. See 8 CCR § 11090(3)(L). The error was finally recognized earlier this

year, and a Third Amended Complaint was filed on March 3, 2012 alleging a cause of action

DECLARATION OF ELIZABETH THOMPSON Case No. CGC-10-504804
IN OPPOSITION TO MOTION FOR CLASS CERTIFICATION27

28

under the federal Fair Labor Standards Act (“FLSA”). The reference to W.O. 1 was deleted from
the most recent version of the Complaint.

6. Plaintiffs’ counsel has also demonstrated a decided inability to abide by court rules.
For example, in connection with Defendant’s Motions for Leave to File a Cross-Complaint and an
Amended Answer filed on July 27, 2011, Plaintiffs’ counsel failed to provide the Court with a
“Courtesy Copy” of its opposition papers as required by Local Rules 2.6B and 3.7, even though
ordered to do so twice by Judge Georgi. In fact, Defendant’s counsel ultimately undertook to
provide a courtesy copy of Plaintiffs’ Opposition to the Court so that the Motion could be decided.

7. Even with respect to the instant Motion for Class Certification, Plaintiffs’ counsel
appears to be unaware of the operative rules. First, counsel initially set the Motion for hearing on
July 5 without clearing the date with Defendant’s counsel as required by Local Rule 8.2A2a
(“Parties should confer with all other parties before scheduling and noticing a hearing”.) Second,
Plaintiffs’ counsel filed a Memorandum of Points and Authorities in excess of the 20-page limit
specified in CRC 3.764(c)(2). When I asked Plaintiffs’ counsel to withdraw the Motion and re-file
in accordance with the Rules of Court, he refused, instead suggesting an agreement whereby “he
would not object” if Defendant’s opposition papers exceeded the 20-page limit as well. (Exhibits
C&D)

8. Some of Plaintiffs’ counsels’ actions are inexplicable. In connection with the

“,

deposition of Defendant’s “person most knowledgeable”, Andrew Smith, Plaintiffs’ counsel had
noticed the deposition to commence on a particular day and to continue thereafter day-to-day until
completed. Prior to the deposition, Defendant’s counsel requested a change of date which was
denied by Plaintiffs’ counsel. When the deposition was not completed on the first day,
Defendant’s counsel insisted that it continue the next day until completed as set forth in the
deposition Notice and as previously confirmed in writing by Defendant’s counsel. (See Ex. B).
Plaintiffs’ counsel refused and subsequently filed a Motion to compel Smith’s deposition at a later
date. However, after going through the time and effort to file the Motion, Plaintiffs’ counsel failed

to serve on Defendant’s counsel the Order granting the Motion and never even re-convened the

deposition.

DECLARATION OF ELIZABETH THOMPSON Case No. CGC-10-504804
IN OPPOSITION TO MOTION FOR CLASS CERTIFICATION9. Attached hereto as exhibits are true and correct copies the following:

Exhibit A: Defendant’s Responses to First Set of Special Interrogatories of Benjamin
Duax.

Exhibit B: Letter, E. Thompson to A. Ladva, 1/22/12

Exhibit C: Letter, E. Thompson to A. Ladva, 6/25/12

Exhibit D: Email, A. Ladva to E. Thompson, 6/25/12

Deposition of Benjamin Duax

Deposition of Gina Schembari

Deposition of Salvatore Mineo

Deposition of Philip T. Nails

Deposition of David Hayward

Deposition of Andrew Smith

Deposition of Christian Watts

Deposition of Peggy Padua

I declare under penalty of perjury that the foregoing is true and correct. Executed this 28th

date of June 2012 at San Francisco, California.

DECLARATION OF ELIZABETH THOMPSON Case No. CGC-10-504804
IN OPPOSITION TO MOTION FOR CLASS CERTIFICATIONJONES, BOTHWELL DION & THOMPSON LLP
ELIZABETH THOMPSON (S.B. ##112888)
PAUL J. DION (S.B. #088231)

44 Montgomery Street, Suite 610

San Francisco, CA 94104-4608

Telephone: (415) 951-8900

Facsimile: (415) 951-8901

Attorneys for Defendant
CitySightseeing Corporation

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
SALVATORE MINEO, GINA SCHEMBARI, No. CGC-10-504804

PHILLIP THOMAS NAILS, BENJAMIN DUAX
and DAVID HAYWARD, individually and on

behalf of all others similarly situated, DEFENDANT CITYSIGHTSEEING
CORPORATION’S RESPONSES TO
Plaintiff, PLAINTIFF BENJAMIN DUAX’S
SPECIAL INTERROGATORIES (SET
v. ONE)

CITY SIGHTSEEING CORPORATION, a
Delaware corporation, CITY SIGHTSEEING
WORLDWIDE and DOES 1 through 500,
inclusive,

Defendants.

PROPOUNDING PARTY: Plaintiff Benjamin Duax

RESPONDING PARTY: Defendant CitySightseeing Corporation

SET NO.: One
Defendant CitySightseeing Corporation. (“Defendant”) responds as follows to the Special

Interrogatories, Set No. One, served by plaintiff Benjamin Duax (“Plaintiff”):

GENERAL OBJECTIONS

1. Defendant objects to each interrogatory to the extent that it seeks information protected

from discovery by the attorney-client privilege, attorney work-product doctrine or any

other legally recognized privilege. If any information protected from discovery by the

RESPONSETO SPECIAL
INTERROGATORIES (DUAX) -1- Case No. CGC-10-504804attorney-client privilege, attorney work-product doctrine or any other privilege is
inadvertently revealed, it is not intended to and shall not operate as a waiver of those
privileges. Similarly, the voluntary production of information protected by the attorney-
client privilege, attorney work-product doctrine or other privilege is not intended to and
shall not operate as a waiver of those privileges as to any other information or in any other
case or circumstance.

2. Defendant responds to each and every interrogatory subject to these General Objections,
which are incorporated by reference into each of the responses below as though fully set
forth therein. In responding to certain interrogatories, Defendant may restate, for
emphasis, one or more of these General Objections, but failure to do so shall not be
interpreted as a waiver of any of them.

3. Defendant objects to the interrogatories to the extent that they seek information not in the
possession, custody or control of Defendant. Defendant further objects to the
interrogatories to the extent that they seek information in the possession, custody or control
of Plaintiff or which is equally available to Plaintiff.

4. Defendant objects to the interrogatories on the grounds that they violate the restrictions set
forth in Code of Civil Procedure, Section 2030.060(d).

5. Defendant has not completed investigation of the facts relating to this case, has not
completed discovery in this action, and has not completed preparation for trial. The
following responses are given without prejudice to Defendant’s right to produce evidence
of any subsequently discovered information.

SPECIAL INTERROGATORY NO. 1:

IDENTIFY every business establishment YOU owned or operated in California, including
each establishment's name if it differs from YOUR name, and their individual addresses, between

October 22, 2006, and the present date.

ANSWER TO SPECIAL INTERROGATORY NO. 1:

Defendant objects to Special Interrogatory No. 1 on the grounds that the Interrogatory, in

referencing both “ownership” and “operation”, is compound and on the additional grounds that

RESPONSETO SPECIAL
INTERROGATORIES (DUAX) -2- Case No. CGC-10-504804the terms “ownership” and “establishment” are vague and ambiguous. Without waiving the
foregoing objections, Defendant responds as follows. Defendant is a Delaware corporation that
has operated in San Francisco, California from February 1, 2007 to the present under the
business name CitySightseeing San Francisco. For the period from March 2009 to April 28,
2011, Defendant also operated in the San Diego, California area under the business name Vizit
San Diego. For the period from February 1, 2007 to July 2007, Defendant’s address was 165
Jefferson Street, Suite C, San Francisco, California, 94133; for the period from July 2007 to the
present, Defendant’s address has been 2800 Leavenworth Street, Suite 14, San Francisco,
California, 94133. For the period from approximately May 1, 2010 through January 11, 2011,
Defendant was a passive investor in a limited liability company named Hollywood Sightseeing
Tours LLC (“HS”) located at 7119 Santa Monica Bivd., West Hollywood, California.
Defendant was not involved in the operations of HS.
SPECIAL INTERROGATORY NO.2:

State the dates YOU operated each business establishment IDENTIFIED in response to
Special Interrogatory No. 1.
ANSWER TO SPECIAL INTERROGATORY NO. 2:

Defendant objects to Special Interrogatory No. 2 on the grounds that it lacks foundation
and is argumentative and misleading in that Defendant did not operate each entity identified in
response to Special Interrogatory No. 1. Without waiving the foregoing objection, Defendant
responds as follows. See Response to Special Interrogatory No. 1 with respect to
CitySightseeing San Francisco and Vizit San Diego. Defendant did not operate HS.

SPECIAL INTERROGATORY NO. 3:

State the TOTAL NUMBER OF TOUR GUIDES who worked at the business
establishments YOU IDENTIFIED in response to Special Interrogatory No. 1 between October
22, 2006, and the present date. ("TOTAL NUMBER OF TOUR GUIDES" includes TOUR
GUIDES who worked for any length of time, whether as little as one hour or as much as the entire

period.)

RESPONSETO SPECIAL
INTERROGATORIES (DUAX) -3- Case No. CGC-10-50480427

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ANSWER TO SPECIAL INTERROGATORY NO. 3:

Defendant objects to Special Interrogatory No. 3 on the grounds that it lacks foundation
and is argumentative and misleading in that Defendant did not operate each entity identified in
response to Special Interrogatory No. 1. In addition, Defendant objects to Special Interrogatory
No. 3 on the grounds that it is overbroad as to time. Without waiving the foregoing objections,
Defendant responds as follows. For the period from February 2007 though the present,
approximately 40 different individuals for some period of time worked for Defendant either as
employees or independent contractors as (1) tour guides on double deck buses, motor coaches
and school buses in San Francisco (on its various routes locations within San Francisco), Marin
County, Muir Woods and the Wine Country (2) tour guides in San Diego, (3) taste tour guides
or (4) Yosemite bus drivers and guides.

SPECIAL INTERROGATORY NO. 4:

IDENTIFY every current and former TOUR GUIDE who was employed at each
business establishment YOU IDENTIFIED in response to Special Interrogatory No. 1.
ANSWER TO SPECIAL INTERROGATORY NO. 4:

Defendant objects to Special Interrogatory No. 4 on the grounds that it lacks foundation
and is argumentative in that it incorrectly assumes that all the tour guides were Defendant’s
employees and not independent contractors. Without waiving the foregoing objections,
Defendant responds as follows. The identity of the individuals who worked or are working in
the various tour guide positions for Defendant for the period from February 1, 2007 to the
present is set forth in Exhibit A attached hereto.

SPECIAL INTERROGATORY NO. 5:

Describe the job responsibilities of the TOUR GUIDES YOU IDENTIFIED in
response to Special Interrogatory No. 4.

ANSWER TO SPECIAL INTERROGATORY NO. 5:

Defendant objects to Special Interrogatory No. 5 on the grounds that it is overbroad and
vague and ambiguous to the extent it seeks a description of each and every task undertaken by

each and every tour guide in the various tour guide positions maintained by Defendant over a 4+

RESPONSETO SPECIAL
INTERROGATORIES (DUAX) -4- Case No. CGC-10-504804year span alleged in the unverified Complaint on file in this action. Without waiving the
foregoing objections, Defendant responds as follows. The tour guides on double deck buses,
school buses, motor coaches and on foot provide a narrative and entertaining tour of various
lengths of time along certain routes or locations in San Francisco, Marin County, the Wine
Country, the Sierra Foothills, Yosemite National Park and the San Diego areas while interacting
with the driver and maintaining the safety of the passengers. The taste tour guides lead an
approximately four-hour tour of approximately four to six different eateries selected by the tour
guides within the San Francisco downtown, Chinatown and Fisherman’s Wharf areas where the
customers try local foods and drinks. When the buses are stationary, the tour guides are to
provide customer service and solicit sales.

SPECIAL INTERROGATORY NO. 6:

For each TOUR GUIDE IDENTIFIED by YOU in response to Special Interrogatory No. 4,
state the time period that each TOUR GUIDE worked for YOU.
ANSWER TO SPECIAL INTERROGATORY NO. 6:

See Defendant’s Response to Special Interrogatory No. 4 and Exhibit A thereto.
SPECIAL INTERROGATORY NO.7:

Do YOU contend that any of YOUR TOUR GUIDES were exempt from premium
overtime compensation laws and regulations?

ANSWER TO SPECIAL INTERROGATORY NO. 7:

Defendant objects to Special Interrogatory No. 7 on the grounds that the terms “premium
overtime” and “premium overtime compensation laws and regulations” are vague and
ambiguous. Without waiving the foregoing objections, Defendant responds as follows. Yes. The
individuals identified as independent contractors on Exhibit A hereto operated as independent
contractors and were not entitled to overtime pay.

SPECIAL INTERROGATORY NO. 8:

If YOUR answer to Special Interrogatory No. 7 is in the affirmative, IDENTIFY every

current and former TOUR GUIDE YOU contend was or is exempt from premium overtime

compensation laws and regulations.

RESPONSETO SPECIAL
INTERROGATORIES (DUAX) -5- Case No. CGC-10-50480427

28

ANSWER TO SPECIAL INTERROGATORY NO. 8:

See Response to Special Interrogatory No. 7.
SPECIAL INTERROGATORY NO. 9:

If YOUR answer to Special Interrogatory No. 7 is in the affirmative, identify ALL
facts supporting YOUR contention that EACH TOUR GUIDE so IDENTIFIED was or is
exempt from premium overtime compensation laws and regulations.

ANSWER TO SPECIAL INTERROGATORY NO. 9:

See Response to Special Interrogatory No. 7.
SPECIAL INTERROGATORY NO. 10:

IDENTIFY all of YOUR current and former employees who filed one or more complaints
with the California Labor Commissioner alleging wage and hour law violations between October
22, 2004, and the present date.

ANSWER TO SPECIAL INTERROGATORY NO. 10:

Defendant objects to Special Interrogatory No. 10 on the grounds that it is overbroad as
to time. In addition, Defendant objects to Special Interrogatory No. 10 on the grounds that it is
not relevant to the claims at issue in this action and is not reasonably calculated to lead to the
discovery of admissible evidence. Without waiving the foregoing objection, Defendant responds
as follows. None.

SPECIAL INTERROGATORY NO. 11:

IDENTIFY all TOUR GUIDES who were not employed in a position YOU claim was

exempt from premium overtime laws and regulations, who worked more than forty (40) hours
per week on or after October 22, 2006.
ANSWER TO SPECIAL INTERROGATORY NO. 11:

Defendant objects to Special Interrogatory No. 11 on the grounds that it lacks foundation
and is argumentative. Defendant further objects to Special Interrogatory No. 11 on the grounds
that it is overbroad as to time. Defendant also objects to Special Interrogatory No. 11 on the
grounds that it lacks foundation and is argumentative to the extent that it presumes that all tour

guides working for Defendant in the relevant time period were Defendant’s employees rather

RESPONSETO SPECIAL

INTERROGATORIES (DUAX) -6- Case No. CGC-10-50480427

28

than independent contractors who were not entitled to overtime pay. In addition, Defendant
objects to Special Interrogatory No. 11 on the grounds that the terms “premium overtime” and
“premium overtime laws and regulations” are vague and ambiguous. Without waiving the
foregoing objections, Defendant responds as follows. To set forth the identity of, and the
number of hours purportedly worked by, each individual who worked for Defendant as an
employee or independent contractor on any particular day or week over the last 4+ years would
require the review and preparation of a compilation or summary of information set forth on the
timesheets submitted biweekly by each employee or independent contractor throughout the
period of time said individual worked for Defendant. The burden and expense of preparing such
a compilation or summary would be substantially the same for Plaintiff as for Defendant. As
such, pursuant to California Code of Civil Procedure Section 2030.230, Defendant refers
Plaintiff to the timesheets that are stored by Defendant at 2800 Leavenworth Street and 165
Jefferson Street, San Francisco, California. Defendant will make such timesheets available to
Plaintiff at a time and place mutually agreed upon by the parties and subject to a protective
order insuring the confidentiality of the timesheets.

SPECIAL INTERROGATORY NO. 12:

If any of the TOUR GUIDES YOU IDENTIFIED in response to Special Interrogatory No.
11 worked more than forty (40) hours in any one workweek on or after October 22, 2006, and were
not paid premium overtime compensation at a rate at least one and one half times their regular
hourly rate for hours they worked in excess of forty (40) in any week, IDENTIFY those TOUR
GUIDES.
ANSWER TO SPECIAL INTERROGATORY NO. 12:

See Response to Special Interrogatory No. 11.

SPECIAL INTERROGATORY NO. 13:

For each TOUR GUIDE identified in response to Special Interrogatory No. 12, state the
total hours of overtime for which each TOUR GUIDE was not paid premium overtime
wages. (For the purpose of this interrogatory, overtime refers to hours worked in excess of 40

in any one week on or after October 22, 2006.)

RESPONSETO SPECIAL
INTERROGATORIES (DUAX) -7- Case No. CGC-10-504804ANSWER TO SPECIAL INTERROGATORY NO. 13:

See Responses to Special Interrogatory No. 11.
SPECIAL INTERROGATORY NO. 14:

IDENTIFY all TOUR GUIDES who were not employed in a position YOU claim was
exempt from premium overtime laws and regulations who worked more than eight (8) hours in any
day on or after October 22, 2006.

ANSWER TO SPECIAL INTERROGATORY NO. 14:

See Response to Special Interrogatory No. 11.
SPECIAL INTERROGATORY NO. 15:

For each TOUR GUIDE identified in response to Special Interrogatory No. 14, state the
total hours of overtime for which each TOUR GUIDE was not paid premium overtime wages.
(For the purpose of this interrogatory, overtime refers to hours worked in excess eight (8) hours in
any day on or after October 22, 2006.)

ANSWER TO SPECIAL INTERROGATORY NO. 15:

See Response to Special Interrogatory No. 11.

SPECIAL INTERROGATORY NO. 16:

IDENTIFY each business establishment that you operated where PLAINTIFF

worked.

ANSWER TO SPECIAL INTERROGATORY NO. 16:

Defendant objects to Special Interrogatory No. 16 on the grounds that the term
“establishment” is vague and ambiguous. Without waiving the foregoing objections, Defendant
responds as follows. CitySightseeing San Francisco.

SPECIAL INTERROGATORY NO. 17:

IDENTIFY the name, address and telephone number of every TOUR GUIDE, current or
former, who was employed at the same business establishment as PLAINTIFF, at any time on or
after October 22, 2006.

ANSWER TO SPECIAL INTERROGATORY NO. 17:

Defendant objects to Special Interrogatory No. 17 on the grounds that the term

RESPONSETO SPECIAL
INTERROGATORIES (DUAX) -8- Case No. CGC-10-50480410

11

27

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“establishment” is vague and ambiguous. Without waiving the foregoing objections, Defendant
responds as follows. See Response to Special Interrogatory No. 7 and Exhibit A thereto.
SPECIAL INTERROGATORY NO. 18:

If still employed by YOU, state the current job title for each employee IDENTIFIED in
YOUR response to Special Interrogatory No. 17.
ANSWER TO SPECIAL INTERROGATORY NO. 18:

See Response to Special Interrogatory No. 7 and Exhibit A thereto.
SPECIAL INTERROGATORY NO. 19:

Describe how YOUR non-exempt California TOUR GUIDES recorded their work hours on
or after October 22, 2006, or, if they did not record their own hours, how others recorded their
hours, including any clocking in and out process or any other steps to record their work hours.
("Non-exempt California TOUR GUIDES" refers to those TOUR GUIDES who were not exempt
from the laws, rules and regulations governing overtime compensation and meal and rest breaks.)

ANSWER TO SPECIAL INTERROGATORY NO. 19:

Defendant objects to Special Interrogatory No. 19 on the grounds that it is overbroad as
to time. Defendant further objects to Special Interrogatory No. 19 on the grounds that it is
unduly burdensome, oppressive and make-work in that Plaintiff is fully aware of the means that
work time was recorded. Without waiving the foregoing objection, Defendant responds as
follows. All tour bus drivers, tour guides and individuals working at the front customer counter
or in the office, whether as employees of Defendant or as independent contractors, submitted on
a periodic basis a written timesheet that included: (1) the individual’s name; (2) the date of
work; (3) the Shift Start time; (4) the Shift End time; (5) lunch period; (6) the total hours
worked for the pay period; and (7) the individual’s signature. Each timesheet was for a two-
week pay period and included blanks for each day of the two-week period. These timesheets
were submitted with irregular accuracy and punctuality over the period commencing February
2007 and continuing through the relevant time period to the present. After differing levels of
review over the relevant time period by the operations manager, the totals hours submitted by

the individual (or a corrected amount that was determined after review by the operations

RESPONSETO SPECIAL
INTERROGATORIES (DUAX) -9- Case No. CGC-10-504804manager) (not the total daily or weekly hours) was inputted into Defendant’s Quick Books
system. During the relevant time period, the timesheets were initially filed in a filing cabinet in
Defendant’s Leavenworth Street offices and, every 6 to 12 months, were removed to storage
boxes located at 1305 Carol Street, San Francisco, California where they are warehoused to this
date.

SPECIAL INTERROGATORY NO. 20:

Describe how YOUR non-exempt California TOUR GUIDES recorded their rest periods,
or if they did not record their rest periods, how others recorded their rest periods, on or after
October 22, 2006, including any clocking in and out process or any other steps to record
their rest periods. ("Nonexempt California TOUR GUIDES" refers to those TOUR
GUIDES who were not exempt from the laws, rules and regulations governing overtime
compensation and meal and rest breaks.)

ANSWER TO SPECIAL INTERROGATORY NO. 20:

See Response to Special Interrogatory No. 19. Rest periods were not reported on the
Timesheets.

SPECIAL INTERROGATORY NO. 21:

Describe how YOUR non-exempt California TOUR GUIDE(S) recorded their meal
periods, or if they did not record their meal periods, how others recorded their meal
periods, on or after October 22, 2006, including any clocking in and out process or any
other steps to record their meal periods. ("Nonexempt California TOUR GUIDES" refers
to those TOUR GUIDES who were not exempt from the laws, rules and regulations
governing overtime compensation and meal and rest breaks.)

ANSWER TO SPECIAL INTERROGATORY NO. 21:

See Response to Special Interrogatory No. 19.

SPECIAL INTERROGATORY NO. 22:

Describe how the time records, including timecards, of YOUR California non-
exempt TOUR GUIDES are/were maintained on or after October 22, 2006. ("Non-exempt
California TOUR GUIDES" refers to those TOUR GUIDES who were not exempt from

RESPONSETO SPECIAL
INTERROGATORIES (DUAX) -10- Case No. CGC-10-504804the laws, rules and regulations governing overtime compensation and meal and rest
breaks.)
ANSWER TO SPECIAL INTERROGATORY NO. 22:

See Response to Special Interrogatory No. 19.
SPECIAL INTERROGATORY NO. 23:

How long have YOU maintained paper and/or electronic copies of records
pertaining to YOUR California non-exempt TOUR GUIDES since October 22, 2006.
("Non-exempt California TOUR GUIDES" refers to those TOUR GUIDES who were not
exempt from the laws, rules and regulations governing overtime compensation and meal
and rest breaks.)

ANSWER TO SPECIAL INTERROGATORY NO. 23:

Defendant objects to Special Interrogatory No. 23 on the grounds that the term “records”
is overbroad, vague and ambiguous. In addition, Defendant objects to Special Interrogatory No.
23 on the grounds that it includes in its sweep matters not relevant to the claims asserted in this
action and is not reasonably calculated to lead to the discovery of admissible evidence. Without

waiving the foregoing expenses, Defendant responds as follows. See Response to Special
Interrogatory No. 19.

SPECIAL INTERROGATORY NO. 24:

For each business establishment IDENTIFIED by YOU in response to Special
Interrogatory No. 1, IDENTIFY each manager(s) who worked at each business
establishment from October 22, 2006, to the present date.

ANSWER TO SPECIAL INTERROGATORY NO. 24:

Defendant objects to Special Interrogatory No. 24 on the grounds that the term
“manager” is vague and ambiguous. In addition, Defendant objects to Special Interrogatory No.
24 on the grounds that responsive information about HS is not relevant to the claims asserted in
this action and is not reasonably calculated to lead to the discovery of admissible evidence.
Furthermore, Defendant objects to Special Interrogatory No. 24 on the grounds that it lacks

foundation and is argumentative in that Defendant was not involved in the operations of HS.

RESPONSETO SPECIAL

INTERROGATORIES (DUAX) -ll- Case No. CGC-10-504804Without waiving the foregoing objections, Defendant responds as follows.

Peggy Padua, Operations Manager, San Francisco; early 2008 through March 2009; 288
Whitmore Street, #324, Oakland, California; Responsible for staffing and day-to-day
operations.

Jamie White, Operations Manager—Staff, San Francisco; March 2009 to the present;
2800 Leavenworth Street, Suite 14, San Francisco, California; Responsible for staffing and day-
to-day operations.

Christopher Lovatt, San Francisco; Manager Operations-Vehicles; March 2009 to the
present; 2800 Leavenworth Street, Suite 14, San Francisco, California; Responsible for
overseeing vehicle maintenance.

Andrew Smith:

Operations Manager, San Francisco; February 2007 to early 2008; 2800
Leavenworth Street, Suite 14, San Francisco, California; Responsible for day-to-day operations
and oversight of staff and maintenance of vehicles;

General Manager, San Francisco; early 2008 to present; Responsible for oversight
of operations in San Francisco and San Diego;
SPECIAL INTERROGATORY NO. 25:

If you contend this case is not suitable for class certification, state each and every
fact in support of such contention.

ANSWER TO SPECIAL INTERROGATORY NO. 25:

Defendant objects to Special Interrogatory No. 25 on the grounds that it is overbroad.
Without waiving the foregoing objections, Defendant responds as follows. The alleged class
includes numerous individuals providing uniquely different services under different working
schedules and job requirements including, inter alia, “front counter” and other office employees,
tour guides and bus drivers. In addition, the duties, work schedules, responsibilities, employment
status, compensation formulas and other unique employment factors of the individuals described
within each of the three aforementioned generalized categories (“front counter” and other office

employees, tour guides and bus drivers) differed significantly and include the following different

RESPONSETO SPECIAL
INTERROGATORIES (DUAX) -12- Case No. CGC-10-504804jobs/titles: San Francisco double deck tour bus drivers on four different generalized routes of
differing work durations and work demands; San Diego double deck tour bus drivers on two
different routes with differing work demands; San Francisco school bus drivers, who also
provided narrative to customers, on four different generalized routes of differing durations and
work demands; San Francisco tour guides with differing work durations and work demands, but
who were generally very busy during peak seasons; San Diego tour guides who were perennially
underworked and experienced significant idle time; San Francisco taste tour guides conducting
tours of at least four hours duration with the tour guides themselves setting the pace of the tour
and selecting the four to six establishments to frequent; Wine Country motor coach drivers
frequenting four to six wineries lasting either 1 full or 4 day (none of the named plaintiffs held
this position); Muir Woods bus drivers and tour guides (none of the named plaintiffs held this
position); Yosemite motor coach tour bus drivers and guides consisting of a tour lasting in excess
of 13 hours in one day (none of the named plaintiffs held this position); Individuals working in the
“back office” performing administrative, accounting, human resources and related tasks (none of
the named plaintiffs held these positions); Individuals working at the Front Customer Counter:
three different shifts—Opener Shift, Mid Shift and Closer Shift—consisting of significantly
different customer demands and levels of business as well as significantly different job
responsibilities and time management restraints to insure the work is completed professionally and
to the customers’ satisfaction, including various schedules of meal and rest breaks throughout the
Shifts; Front Customer Counter supervisors (none of the named plaintiffs held this position);
Online Reservations persons answering calls at call center or online with no set schedule of work
(none of the named plaintiffs held this position); Alcatraz coordinators who planned Alcatraz trips
and ordering with varying levels of work demand (none of the named plaintiffs held this position);
Dispatchers controlling departure of buses and directing customers with no set work schedule
(none of the named plaintiffs held this position); Street Sales Union Square and Street Sales
Fisherman’s Wharf involving the sale of tickets and customer service and, to a lesser extent,
dispatcher responsibilities with varying shift patterns and durations (none of the named plaintiffs

held these positions); Local Vendor Sales Representatives promoting CitySightseeing products

RESPONSETO SPECIAL
INTERROGATORIES (DUAX) -13- Case No. CGC-10-50480427

28

with local vendors (stores, hotels etc.) in San Francisco involving a very flexible work schedule
including evening work (none of the named plaintiffs held this position); Wholesale Sales
Representatives promoting CitySightseeing products with international and national sales outlets
(none of the named plaintiffs held this position); Driver Trainers instructing potential new drivers
on how to drive the tour buses safely and in accordance with federal and state driving laws (none
of the named plaintiffs held this position); Yard Hands supporting the mechanics (none of the
named plaintiffs held this position); Head Mechanics (none on the named plaintiffs held this
position); Mechanics (none of the named plaintiffs held this position).

As such, questions of law and fact common to the members of the class alleged in the
unverified Complaint do not predominate over questions which may affect only individual
members of the alleged class and the putative class is, therefore, not numerous. In addition, a large
and significant number of the individuals included in the purported class would elect to be
excluded from the class or subclasses proposed by plaintiffs resulting in a failure to satisfy the
numerosity requirements for class actions. Furthermore, the claims of the named Plaintiffs, as best
can be discermed from the vague allegations of the unverified Complaint, are based on facts unique
to those Plaintiffs and may not be typical of the claims, if any, of the purported class. Moreover,
the questionable conduct and behavior of the named Plaintiffs when they worked for Defendant
(of which they are fully aware) present defenses unique to the named Plaintiffs’ claims and make
them unsuitable class representatives. The named Plaintiffs’ counsel lack the requisite experience
and track record in prosecuting successfully class action claims. In addition, the claims under the
California Labor Code and Industrial Welfare Commission Wage Orders are not appropriate for
resolution as a class action.

SPECIAL INTERROGATORY NO. 26:

If you contend that this case cannot be maintained as a representative action under Business
and Professions Code § 17200, state each and every fact in support of such contention.
ANSWER TO SPECIAL INTERROGATORY NO. 26:

See Response to Special Interrogatory No. 25.

RESPONSETO SPECIAL
INTERROGATORIES (DUAX) -14- Case No. CGC-10-504804SPECIAL INTERROGATORY NO. 27:

IDENTIFY all of YOUR California TOUR GUIDES who have COMPLAINED to
YOU regarding overtime pay since October 22, 2006. ("COMPLAINED" refers to any
communication to YOU by TOUR GUIDES who claimed they had not paid them premium

overtime compensation.)

ANSWER TO SPECIAL INTERROGATORY NO. 27:

Defendant objects to Special Interrogatory No. 27 on the grounds that it is overbroad as
to time. Without waiving the foregoing objection, Defendant responds as follows. None other
than the Plaintiff in the unverified Complaint in this action.

SPECIAL INTERROGATORY NO. 28:

Describe YOUR policy or policies, in effect on or after October 22, 2006, regarding the
payment of overtime compensation to YOUR California TOUR GUIDES.
ANSWER TO SPECIAL INTERROGATORY NO. 28:

Defendant objects to Special Interrogatory No. 28 on the grounds that it lacks foundation
and is argumentative to the extent that it assumes that all tour guides were Defendant’s
employees and not independent contractors who are not entitled to overtime pay. Defendant
further objects to Special Interrogatory No. 28 on the grounds that it is overbroad as to time.
Without waiving the foregoing objections, Defendant responds as follows. Defendant has no
written policies relating to overtime pay.

SPECIAL INTERROGATORY NO. 29:

IF YOU contend YOU had a valid collective bargaining agreement with any labor
organization, including but not limited to any employee bargaining unit, employee association,
union or other employee organization or representative of YOUR employees in California since
October 22, 2006, IDENTIFY that organization or those organizations.

ANSWER TO SPECIAL INTERROGATORY NO. 29:

Defendant objects to Special Interrogatory No. 29 on the grounds that it is overbroad as
to time and is vague and ambiguous. Defendant further objects to Special Interrogatory No. 29

on the grounds that it is not relevant to the claims at issue in this action and is not reasonably

RESPONSETO SPECIAL
INTERROGATORIES (DUAX) -15- Case No. CGC-10-50480427

28

calculated to lead to the discovery of admissible evidence. Without waiving the foregoing
objection, Defendant responds as follows. Defendant makes no such contention.
SPECIAL INTERROGATORY NO. 30:

IDENTIFY all agreements with all of the organizations YOU IDENTIFIED in
response to Special Interrogatory No. 29.

ANSWER TO SPECIAL INTERROGATORY NO. 30:

Not Applicable.

SPECIAL INTERROGATORY NO. 31:

IDENTIFY all of YOUR non-exempt TOUR GUIDES who did not receive any one or
more duty-free, 10-minute rest periods to which the employee was entitled under the Califomia
Labor Code during the time period from October 22, 2006, to the present date.

ANSWER TO SPECIAL INTERROGATORY NO. 31:

Defendant objects to Special Interrogatory No. 31 on the grounds that it is overbroad as
to time. Defendant further objects to Special Interrogatory No. 31 on the grounds that it lacks
foundation and is argumentative in that it incorrectly assumes that rest periods were not taken.

In addition, Defendant objects to Special Interrogatory No. 31 on the grounds that it lacks
foundation and is argumentative to the extent that it assumes that all tour guides were
Defendant’s employees and not independent contractors. Without waiving the foregoing
objections, Defendant responds as follows. Defendant is not aware of any tour guides who did
not take duty-free rest breaks when entitled to do so nor did Defendant receive any complaints
from tour guides that they did not receive or take a rest break.

SPECIAL INTERROGATORY NO. 32:

IDENTIFY all of YOUR non-exempt TOUR GUIDES who have COMPLAINED to YOU
that they were not permitted to take a 30-minute, duty-free meal break at any time since October
22, 2006. ("COMPLAINED" refers to any communication to YOU by TOUR GUIDES who
claimed they were not permitted to take a duty-free meal break.)

ANSWER TO SPECIAL INTERROGATORY NO. 32:

Defendant objects to Special Interrogatory No. 32 on the grounds that it is overbroad as

RESPONSETO SPECIAL
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to time. Defendant further objects to Special Interrogatory No. 32 on the grounds that it lacks
foundation and is argumentative to the extent that the tour guides were independent contractors
and not Defendants’ employees. Without waiving the foregoing objections, Defendant responds
as follows. None other than the Plaintiffs in the unverified Complaint in this action.

SPECIAL INTERROGATORY NO. 33:

IDENTIFY all of YOUR non-exempt TOUR GUIDES who have COMPLAINED to YOU
that they were not permitted to take a 10-minute, duty-free rest break at any time since October
22, 2006. ("COMPLAINED" refers to any communication to YOU by TOUR GUIDES who
claimed they were not permitted to take a duty-free rest break.)

ANSWER TO SPECIAL INTERROGATORY NO. 33:

See Response to Special Interrogatory No. 31.
SPECIAL INTERROGATORY NO. 34:

IDENTIFY all non-exempt TOUR GUIDES who did not receive a 30-minute, duty-free
meal period to which the employee was entitled under the California Labor Code during the time
period from October 22, 2006, to the present.

ANSWER TO SPECIAL INTERROGATORY NO. 34:

Defendant objects to Special Interrogatory No. 34 on the grounds that it is overbroad as

to time. Without waiving the foregoing objections, Defendant responds as follows. Defendant is
not aware of any.
SPECIAL INTERROGATORY NO. 35:

IDENTIFY all non-exempt TOUR GUIDES who worked over 6 hours in any one day
without receiving a 30-minute, duty-free meal period during the time period from October 22,
2006, to the present.

ANSWER TO SPECIAL INTERROGATORY NO. 35:

Defendant objects to Special Interrogatory No. 35 on the grounds that it is overbroad as

to time. Without waiving the foregoing objections, Defendant responds as follows. Defendant is

not aware of any.

RESPONSETO SPECIAL
INTERROGATORIES (DUAX) -17- Case No. CGC-10-504804SPECIAL INTERROGATORY NO. 36:

IDENTIFY all non-exempt TOUR GUIDES who worked over 4 hours in any one day
without receiving a duty-free, 10-minute rest period during the time period from October 22,
2006, to the present.

ANSWER TO SPECIAL INTERROGATORY NO. 36:

Defendant objects to Special Interrogatory No. 36 on the grounds that it is overbroad as

to time. Without waiving the foregoing objections, Defendant responds as follows. Defendant is

not aware of any.
SPECIAL INTERROGATORY NO. 37:

IDENTIFY all non-exempt TOUR GUIDES to whom YOU paid a penalty wage because
the TOUR GUIDE missed a duty-free, 30-minute meal period during the time period October
22, 2006, through the present.

ANSWER TO SPECIAL INTERROGATORY NO. 37:

Defendant objects to Special Interrogatory No. 37 on the grounds that it is overbroad as
to time. Defendant further objects to Special Interrogatory No. 37 on the grounds that the term
“penalty wage” is vague and ambiguous. In addition, Defendant objects to Special Interrogatory
No. 37 on the grounds that it lacks foundation and is argumentative. Without waiving the
foregoing objections, Defendant responds as follows. None.

SPECIAL INTERROGATORY NO. 38:

IDENTIFY all non-exempt TOUR GUIDES to whom YOU have paid a penalty wage
because the TOUR GUIDE missed duty-free, 10-minute rest period during the time period
October 22, 2006, through the present.

ANSWER TO SPECIAL INTERROGATORY NO. 38:

Defendant objects to Special Interrogatory No. 38 on the grounds that it is overbroad as
to time. Defendant further objects to Special Interrogatory No. 38 on the grounds that the term
“penalty wage” is vague and ambiguous. In addition, Defendant objects to Special Interrogatory
No. 38 on the grounds that it lacks foundation and is argumentative. Without waiving the

foregoing objections, Defendant responds as follows. None.

RESPONSETO SPECIAL
INTERROGATORIES (DUAX) -18- Case No. CGC-10-504804SPECIAL INTERROGATORY NO. 39:

IDENTIFY ANY establishment YOU operated that has not maintained or kept all of its
TOUR GUIDES' wage records, including payroll, meal and rest break records, from October 22,
2006, to the present.

ANSWER TO SPECIAL INTERROGATORY NO. 39:

Defendant objects to Special Interrogatory No. 39 on the grounds that it is overbroad as
to time. Defendant further objects to Special Interrogatory No. 39 on the grounds that it lacks
foundation and is argumentative in that the timesheets submitted by those working at Defendant
did not contain references to rest periods. Furthermore, Defendant objects to Special
Interrogatory No. 39 on the grounds that the term “wage records” is vague and ambiguous. Last,
Defendant objects to Special Interrogatory No. 39 on the additional grounds that it lacks
foundation and is argumentative in that it assumes that all tour guides were employees of
Defendant rather than independent contractors for whom “payroll records” are not maintained.
Without waiving the foregoing objections, Defendant responds as follows. None.

SPECIAL INTERROGATORY NO. 40:

IDENTIFY YOUR tax identification number(s) used in California from October 22, 2006, to

the present.

ANSWER TO SPECIAL INTERROGATORY NO. 40:

Defendant objects to Special Interrogatory No. 40 on the grounds that it is not relevant to
the claims at issue in this action and is not reasonably calculated to lead to the discovery of
admissible evidence.

SPECIAL INTERROGATORY NO. 41:

IDENTIFY all members of YOUR board of directors during the time period October 22,
2006, through the present.

ANSWER TO SPECIAL INTERROGATORY NO. 41:

Defendant objects to Special Interrogatory No. 41 on the grounds that it is not relevant to
the claims at issue in this action and is not reasonably calculated to lead to the discovery of

admissible evidence. Without waiving the foregoing objections, Defendant responds as follows.

RESPONSETO SPECIAL
INTERROGATORIES (DUAX) -19- Case No. CGC-10-504804Christopher P. Watts, 2800 Leavenworth Street, Suite 14, San Francisco, California.

SPECIAL INTERROGATORY NO. 42:

IDENTIFY all documents memorializing YOUR human resources policies and
procedures in effect in California between October 22, 2006, and the present date that relate to
YOUR overtime compensation practices for YOUR TOUR GUIDES.

ANSWER TO SPECIAL INTERROGATORY NO. 42:

Defendant objects to Special Interrogatory No. 42 on the grounds that it lacks foundation
and is argumentative in that it assumes that all tour guides were employees of Defendant rather
than independent contractors for whom “overtime pay” does not apply. Defendant further
objects to Special Interrogatory No. 42 on the grounds that it is overbroad as to time. Without
waiving the foregoing objections, Defendant responds as follows. No such documents exist.
SPECIAL INTERROGATORY NO. 43:

IDENTIFY all documents memorializing YOUR human resources policies and
procedures in effect in California between October 22, 2006, and the present date that relate to
YOUR rest and meal break policies practices for YOUR TOUR GUIDES.

ANSWER TO SPECIAL INTERROGATORY NO. 43:

Defendant objects to Special Interrogatory No. 43 on the grounds that it lacks foundation
and is argumentative in that it assumes that all tour guides were employees of Defendant rather
than independent contractors for whom “rest and meal period” do not apply. Defendant further
objects to Special Interrogatory No. 43 on the grounds that it is overbroad as to time. Without
waiving the foregoing objections, Defendant responds as follows. No such documents exist.

SPECIAL INTERROGATORY NO. 44:

IDENTIFY all personnel responsible for enforcing YOUR policies and procedures
relating to premium overtime wages in California between October 22, 2006, and the present

date.

ANSWER TO SPECIAL INTERROGATORY NO. 44:

Defendant objects to Special Interrogatory No. 44 on the grounds that it is overbroad as

to time. Defendant further objects to Special Interrogatory No. 44 on the grounds that it the

RESPONSETO SPECIAL
INTERROGATORIES (DUAX) -20- Case No. CGC-10-50480427

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phrase “responsible for enforcing. ..policies and procedures” is vague and ambiguous. Without
waiving the foregoing objections, Defendant responds as follows. Andrew Smith, as General
Manager, is responsible for overseeing the overall operations of Defendant and its employees
and independent contractors, including Defendant’s policies and procedures.
SPECIAL INTERROGATORY NO. 45:

IDENTIFY all personnel responsible for enforcing YOUR policies and procedures
relating to meal and rest breaks in California between October 22, 2006, and the present date.

ANSWER TO SPECIAL INTERROGATORY NO. 45:

See Response to Special Interrogatory No. 44.
SPECIAL INTERROGATORY NO. 46:
IDENTIFY the person or persons most knowledgeable about your policies and

procedures r