Preview
E-FILED
12/29/2020 4:08 PM
Clerk of Court
ACKERMANN & TILAJEF, P.C. Superior Court of CA,
oe ae County of Sara Clr
cja@ackermanntilajef.com
1180 South Beverly Drive, Suite 610 aero 3. R. Walker
Los Angeles, California 90035 ys
Telephone: (310) 277-0614
Facsimile: (310) 277-0635
EMPLOYMENT RIGHTS LAW GROUP, APC
Amir Seyedfarshi, CA Bar No. 301656
amir@employmentrightslawgroup.com
1180 South Beverly Drive, Suite 610
Los Angeles, California 90035
Telephone: (424) 777-0964
Attorneys for Plaintiff, the Putative Class, and the Aggrieved Employees
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SANTA CLARA
VALERIE BOYER, individually and on behalf | CASENO: 20CV375153
of all others similarly situated,
CLASS ACTION
Plaintiff,
PLAINTIFF’S CLASS ACTION AND PAGA
Vv. REPRESENTATIVE COMPLAINT FOR:
LUCILE SALTER PACKARD CHILDREN’S (1) FAILURE TO REIMBURSE BUSINESS
HOSPITAL AT STANFORD, a California EXPENSES (LABOR CODE § 2802);
corporation, and DOES 1 to 100, inclusive, (2) UCL VIOLATIONS (CAL. BUS. & PROF.
CODE §§ 17200-17204); AND,
Defendant. (3) PAGA PENALTIES (LABOR CODE § 2698
et seq.).
DEMAND FOR JURY TRIAL
CLASS ACTION AND PAGA REPRESENTATIVE ACTION COMPLAINTPlaintiff Valerie Boyer, (“Plaintiff”), on behalf of herself, the Aggrieved Employees, the
State of California, and all others similarly situated (hereinafter “Class Members”), complains and
alleges as follows:
OVERVIEW OF CLAIMS
1. Plaintiff brings this action on behalf of herself and all others similarly situated, as a
Class Action, as a Representative Action, and on behalf of the California general public, against
Defendant Lucile Salter Packard Children’s Hospital at Stanford and Does 1 to 100 (“Defendant”)
for its (1) failure to reimburse its current and former employees for their work-related home office
expenses in California during the COVID-19 pandemic and the various stay at home orders for
which they have not been fully reimbursed; (2) unfair business practices based on the foregoing;
and (3) PAGA penalties based on the foregoing. As a result of the foregoing, Defendant has
violated California statutory laws as described below.
2. The “Class Period” is designated as the period from March 13, 2020 to the filing of
this action through the date of class certification. Defendant’s violations of California’s
reimbursement laws and unfair competition laws, as described more fully below, have been
ongoing throughout the Class Period.
3. The “PAGA Period” is designated as the period from March 13, 2020, within the
one-year period prior to Plaintiff's mailing of the LWDA notice letter on October 14, 2020 through
the present and on-going.
YENUE
4. Venue is proper in this county under section 395.5 of the California Code of Civil
Procedure as the allegations herein took place within the County of Santa Clara. Further,
Defendant keeps and maintains its hospital in Palo Alto, California. Many of the putative Class
Members were employed and/or performed work during the Class Period by Defendant in Santa
Clara County. Finally, many of the acts alleged herein including Defendant’s failure to reimburse
Plaintiff and Class Members for a reasonable portion of their home office expenses, occurred in
Santa Clara County. Venue is therefore proper in Santa Clara County.
Mt
CLASS ACTION AND PAGA REPRESENTATIVE ACTION COMPLAINT
2JURISDICTION
5. Defendant is within the jurisdiction of this Court. Defendant transacts millions of
dollars of business by operating a children’s hospital and research center in California. Thus,
Defendant has obtained the benefits of the laws of the State of California. In addition, Plaintiff
asserts no claims arising under federal law. Rather, Plaintiff brings causes of action based solely
on, and arising from, California law. The claims of the class are also individual claims for
violations of California law described herein.
THE PARTIES
6. Plaintiff Valerie Boyer is a resident of Santa Clara county, California. Throughout
the Class Period and the PAGA period, Defendant employed Plaintiff as a translator and
interpreter. From at least March 13, 2020 through the present, Defendant’s employees, including
Plaintiff during her employment, were not reimbursed a reasonable portion of their home office
expenses, including their home internet expenses, in the course of carrying out their job duties in
California.
a Plaintiff represents the State of California and the following group of employees:
Plaintiff and all other California residents who are or were employed by Defendant, who were
subject to stay at home orders and/or whose offices were closed due to COVID-19 at any point
from March 15, 2020 to the present and ongoing (the “Aggrieved Employees” and/or “Class
Members”). All such Aggrieved Employees or Class members are and were subject to
Defendant’s unlawful reimbursement policy, as described in further detail below.
8. Defendant is a California corporation with its principal place of business in Palo
Alto, California. Defendant is a renowned hospital and research center connected with the Stanford
Medical School. Defendant was the employer of Plaintiff, Class Members, and the Aggrieved
Employees for all relevant time periods.
9. The true names and capacities, whether individual, corporate, associate, or
otherwise, of Defendants sued herein as DOES 1 to 100 inclusive, are currently unknown to
Plaintiff, who therefore sues Defendants by such fictitious names under Code of Civil Procedure §
474. Plaintiff is informed and believes, and based thereon alleges, that each of the Defendants
CLASS ACTION AND PAGA REPRESENTATIVE ACTION COMPLAINT
3)designated herein as a DOE is legally responsible in some manner for the unlawful acts referred to
herein. Plaintiff will seek leave of court to amend this Complaint to reflect the true names and
capacities of the Defendants designated hereinafter as DOES when such identities become known.
10. Plaintiff is informed and believes, and based thereon alleges, 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 hereto, and the acts of each Defendant are
legally attributable to the other Defendants. Furthermore, Defendants in all respects acted as the
employer and/or joint employer of Plaintiff, the Class Members, and the other Aggrieved
Employees.
11. Plaintiff and the Class Members were employed by Defendant in California at
various times during the Class Period. Due to turnover during the Class Period, the total number
of class members is estimated to be approximately 200.
FACTUAL ALLEGATIONS
12. Defendant operates and, at all times during the Class Period and PAGA Period, has
done and does business in California in the workforce solutions industry. Defendant, in the course
of operating its business in California during the Class Period, employed Plaintiff, the Aggrieved
Employees, and the Class Members.
13. From at least early-to mid-March 2020 when work from home orders went into
effect, Plaintiff, the Class, and the aggrieved employees, at the direction of Defendant and/or with
Defendant’s knowledge and acquiescence, have incurred home office expenses including, among
other things, home internet service expenses, hardware and other equipment expenses, cell phone
service, and electricity expenses associated with their home offices in order to perform necessary
work-related duties.
14, Plaintiff and the aggrieved employees and Class Members were thus expected by
Defendant to pay for, and have personally paid for, among other things, home internet service, cell
phone service, electricity, and the purchase and maintenance of all hardware used for work-
purposes, including laptops, keyboards, mouses, Bluetooth headsets, and cell phones used by
Plaintiff and the Aggrieved Employees and Class members in the discharge of their job duties (the
CLASS ACTION AND PAGA REPRESENTATIVE ACTION COMPLAINT
4“home office expenses”). These expenses ranged, but typically amounted from $100 to $500 per
aggrieved employee or Class Member.
15. In sum, Defendant’s expense-related policies and/or practices require and expect,
and/or with Defendant’s knowledge thereof permit, Plaintiff, the Class, and the aggrieved
employees and Class Members to pay for home office expenses incurred in direct consequence of
discharging their necessary and business-related job duties on behalf of Defendant, without
reimbursement in full by Defendant for such expenses, as required by California law.
16. Defendant does not maintain an expense reimbursement policy and/or practice
stating that Defendant will affirmatively reimburse Plaintiff and the aggrieved employees and
Class Members for a reasonable portion of their home office expenses necessarily incurred in their
discharge of their duties during the COVID 19 pandemic when they were required to work from
home, as required by Labor Code sections 2802(a) and (c). California Labor Code section 2802
requires an employer to “indemnify his or her employee for all necessary expenditures or losses
incurred by that employee in direct consequence of the discharge of his or her duties.” See Cal.
Labor Code section 2802(a); see also 2802(c) where “necessary” expenses are defined to include
all “reasonable” costs.
17. “The elements of a claim under Section 2802 are: (i) the employee made
expenditures or incurred losses; (ii) the expenditures or losses were incurred in direct consequence
of the employee's discharge of his or her duties, or obedience to the directions of the employer; and
(iii) the expenditures or losses were reasonable and necessary.” Marr v. Bank of America, 2011
U.S. Dist. LEXIS 24868 (N.D. March 8, 2011) (citing Gattuso v. Harte-Hanks Shoppers, Inc., 42
Cal.4th 554, 568 (2007).
18. “In addition, the employer ‘must either know or have reason to know that the
employee has incurred [the] expense.’” /d. (citing Stuart v. RadioShack Corp., 641 F.Supp. 2d 901
(N.D.Cal. 2009). Where an employer has knowledge that employees are incurring a reimbursable
expense, the employer must “exercise due diligence to ensure each employee is
reimbursed.” Marr, at *1. The right of an employee to expense reimbursements is not
waivable. See Cal. Labor Code sections 2804 and 219(a). Any contract to waive them is null and
CLASS ACTION AND PAGA REPRESENTATIVE ACTION COMPLAINT
5void. Edwards v. Arthur Anderson, 44 Cal. 4th 937, 951 (2008)
19. Furthermore, under Labor Code section 2802, employers must reimburse employees
for all reasonable work-related expenses, regardless of whether or not the employees incurred any
additional out-of-pocket expense from that work-related use. See, Cochran v. Schwan’s Home
Service, Inc., 228 Cal.App.4th 1137 (Cal. Aug. 12, 2014) (“We hold that when employees must
use their personal cell phones for work-related calls, Labor Code section 2802 requires the
employer to reimburse them. Whether the employees have cell phone plans with unlimited
minutes or limited minutes, the reimbursement owed is a reasonable percentage of their cell phone
bills.”). Thus, where employees are expected or mandated to use their internet at home for work,
courts have held that they incurred home internet expenses in “direct consequence of the discharge
of his or her duties” and were entitled to reimbursement. See Aguilar v. Zep, Inc., 2014 US Dist
LEXIS 120315, *54 (N.D.Cal. Aug. 27, 2014) (Hon. Edward Chen) (where outside sales reps used
home internet and computers for work, and even admitted that they would have incurred the same
expenses without work duties, the court nevertheless held that the employer was obligated to
reimburse some reasonable portion of these expenses); see also Ritchie v. Blue Shield of
California, 2014 WL 6982943, at *21 (N.D.Cal. Dec. 9, 2014) (Hon. Edward Chen)
(certifying class of home office claims processors with 2802 phone reimbursement claims for
landline reimbursements where company required claims processors working from home to have a
landline, but rejecting certification of claims for home office supplies as individualized).
20. In short, Defendant’s policies and/or practices require and expect, and/or with
Defendant’s knowledge thereof permit, Plaintiff, the Class, and the aggrieved employees to pay for
home office expenses incurred in direct consequence of discharging their work duties on behalf of
Defendant, without reimbursement in full by Defendant for such expenses. Defendant has
maintained its policies and/or practices of denying reimbursement in full of Plaintiff's, the Class’
and the aggrieved employees’ necessarily incurred business expenses, or substantially similar
policies, throughout California and throughout the Class and PAGA Period, specifically during the
period when work from home orders were in effect as a result of COVID-19.
21. Defendant is aware or should have been aware that Plaintiff, the Class, and the
CLASS ACTION AND PAGA REPRESENTATIVE ACTION COMPLAINT
6aggrieved employees regularly incur home office expenses in the discharge of their duties as
employees by virtue of Defendant’s instructions to Plaintiff, the Class, and the aggrieved
employees to work from home order during the COVID-19 pandemic. Defendant nevertheless
has, throughout the Class and PAGA Period, and specifically during work from home orders
during the COVID-19 pandemic, failed and refused to reimburse Plaintiff, the Class, and the
aggrieved employees for such home office expenses incurred by them in connection with their
work.
22. Plaintiff, the Aggrieved Employees, and Class Members have been harmed by
Defendant’s unlawful home office expense policies and/or practices in that they have not been paid
for certain home office expenses incurred while employed by Defendant in California, thereby
diminishing their agreed-upon compensation, in substantial amounts to be proved at trial.
23. Plaintiff has fully and completely exhausted and completed her administrative
remedies under PAGA prior to proceeding with the PAGA claim. On October 14, 2020, Plaintiff
filed her PAGA Notice online with the Labor Workforce Development Agency (“LWDA”) and
sent a letter by certified mail to Defendant setting forth the facts and theories of the violations
alleged against Defendant, as prescribed by Labor Code § 2698 et seq. As required by PAGA,
Plaintiff also submitted the $75.00 filing fee with the LWDA by regular mail. Pursuant to Labor
Code § 2699.3(a)(2)(A), Plaintiff has thus satisfied her administrative pre-requisites since sixty-
five (65) calendar days have elapsed since the postmark date of the PAGA notice.
CLASS ACTION ALLEGATIONS
24. Plaintiff brings this action on behalf of herself and all others similarly situated as a
class action pursuant to Code of Civil Procedure § 382. Plaintiff seeks to represent a Class
composed of and defined as Plaintiff and all other California residents who are or were employed
by Defendant, who were subject to stay at home orders and/or whose offices were closed due to
COVID-19 at any point from March 13, 2020 and ongoing (“Class Members”). All such Class
Members were subject to Defendant’s policy and practice of not fully reimbursing employees’
home office expenses.
25. This action has been brought and may properly be maintained as a class action
CLASS ACTION AND PAGA REPRESENTATIVE ACTION COMPLAINT
7under Code of Civil Procedure § 382 because there is a well-defined community of interest in the
litigation, the proposed class is easily ascertainable, and Plaintiff is a proper representative of the
Class:
a. Numerosity: The potential members of the Class as defined are so
numerous that joinder of all the members of the Class is impracticable. While the precise number
of Class Members has not been determined at this time, Plaintiff is informed and believes that
Defendant has employed approximately 200 employees during the Class Period. The Class
Members are dispersed throughout California. Joinder of all members of the proposed classes is
therefore not practicable.
b. Commonality: There are questions of law and fact common to Plaintiff and
the Class that predominate over any questions affecting only individual members of the Class.
These common questions of law and fact include, without limitation:
i. Whether Plaintiff and Class Members incurred unreimbursed business
expenses in the discharge of their duties as employees, including but not limited to home office
expenses, in violation of Labor Code § 2802;
ii. Whether Defendant intended, suffered and/or permitted, and/or knew and/or
should have known that Plaintiff and Class Members incurred unreimbursed home office expenses,
in the discharge of their duties as employees;
iii, Whether Defendant’s failure to reimburse the home office expenses incurred
by Plaintiff and Class Members was the result of, and/or pursuant to, a business policy or regular
practice of Defendant;
iv. Whether Plaintiffs are entitled to restitution under Business and Professions
Code § 17200;
v. Whether Defendant owes penalties pursuant to PAGA for failing to
reimburse its drivers for the necessarily incurred business expenses.
vi. The proper formula(s) for calculating damages, interest, and restitution
owed to Plaintiff and the Class Members;
vii. The nature and extent of class-wide damages.
CLASS ACTION AND PAGA REPRESENTATIVE ACTION COMPLAINT
8c. Typicality: Plaintiff's claims are typical of the claims of the Class. Both
Plaintiff and Class Members sustained injuries and damages, and were deprived of property rightly
belonging to them, arising out of and caused by Defendant’s common course of conduct in
violation of law as alleged herein, in similar ways and for the same types of expenses.
d. Adequacy of Representation: Plaintiff is a member of the Class and will
fairly and adequately represent and protect the interests of the Class and Class Members.
Plaintiff’s interests do not conflict with those of Class and Class Members. Counsel who represent
Plaintiff are competent and experienced in litigating large wage and hour class actions and will
devote sufficient time and resources to the case and otherwise adequately represent the Class and
Class Members.
e. Superiority of Class Action: A class action is superior to other available
means for the fair and efficient adjudication of this controversy. Individual joinder of all Class
Members is not practicable, and questions of law and fact common to the Class predominate over
any questions affecting only individual members of the Class. Each Class Member has been
damaged or may be damaged in the future by reason of Defendant’s unlawful policies and/or
practices of not fully reimbursing business expenses. Certification of this case as a class action
will allow those similarly situated persons to litigate their claims in the manner that is most
efficient and economical for the parties and the judicial system. Certifying this case as a class
action is superior because it allows for efficient and full disgorgement of the ill-gotten gains
Defendant has enjoyed by maintaining its unlawful business expense reimbursement policies
and/or practices, and will thereby effectuate California’s strong public policy of protecting
employees from deprivation or offsetting of compensation earned in their employment. If this
action is not certified as a Class Action, it will be impossible as a practical matter for many or most
Class Members to bring individual actions to recover monies unlawfully withheld from their
lawful compensation due from Defendant’s, due to the relatively small amounts of such individual
recoveries relative to the costs and burdens of litigation.
Mil
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CLASS ACTION AND PAGA REPRESENTATIVE ACTION COMPLAINT
9FIRST CAUSE OF ACTION
FAILURE TO REIMBURSE FOR BUSINESS EXPENSES
[Cal. Labor Code § 2802(a) and (c)]
On Behalf of Plaintiff and the Class Against Defendant
26. Plaintiff re-alleges and incorporates by reference each and every allegation set forth
in the preceding paragraphs.
27. The actionable period for this cause of action is from March 13, 2020 through the
present.
28. Defendant does not maintain an expense reimbursement policy and/or practice to
affirmatively reimburse Plaintiff and Class Members for a reasonable portion of his and their home
office expenses necessarily incurred in their discharge of their duties during the COVID 19
pandemic when working from home was necessary for the aggrieved employees and the Class
members, as required by Labor Code sections 2802(a) and (c).
29. California Labor Code section 2802 requires an employer to "indemnify his or her
employee for all necessary expenditures or losses incurred by that employee in direct consequence
of the discharge of his or her duties." See Cal. Labor Code section 2802(a); see also 2802(c)
where necessary is defined to include all “reasonable” costs. As noted, “[t]he elements of a claim
under Section 2802 are: (i) the employee made expenditures or incurred losses; (ii) the
expenditures or losses were incurred in direct consequence of the employee's discharge of his or
her duties, or obedience to the directions of the employer; and (iii) the expenditures or losses were
reasonable and necessary.” Marr y. Bank of America, 2011 U.S. Dist. LEXIS 24868 (N.D. March
8, 2011) (citing Gattuso v. Harte-Hanks Shoppers, Inc., 42 Cal.4th 554, 568 (2007). “In addition,
the employer ‘must either know or have reason to know that the employee has incurred [the]
expense.” Jd. (citing Stuart v. RadioShack Corp., 641 F.Supp. 2d 901 (N.D.Cal. 2009). Where an
employer has knowledge that employees are incurring a reimbursable expense, the employer must
“exercise due diligence to ensure each employee is reimbursed.” Marr, at *1. The right of an
employee to expense reimbursements is not waivable. See Cal. Labor Code sections 2804 and
219(a). Any contract to waive them is null and void. Edwards v. Arthur Anderson, 44 Cal. 4th 937,
951 (2008)
CLASS ACTION AND PAGA REPRESENTATIVE ACTION COMPLAINT
1030. Furthermore, under Labor Code section 2802, employers must reimburse employees
for all reasonable work-related expenses, regardless of whether or not the employees incurred any
additional out-of-pocket expense from that work-related use. See, Cochran v. Schwan’s Home
Service, Inc., 228 Cal.App.4th 1137 (Cal. Aug. 12, 2014) (“We hold that when employees must
use their personal cell phones for work-related calls, Labor Code section 2802 requires the
employer to reimburse them. Whether the employees have cell phone plans with unlimited
minutes or limited minutes, the reimbursement owed is a reasonable percentage of their cell phone
bills.”). Thus, where employees are expected or mandated to use their internet at home for work,
courts have held that they incurred home internet expenses in “direct consequence of the discharge
of his or her duties” and were entitled to reimbursement. See Aguilar v. Zep, Inc., 2014 US Dist
LEXIS 120315, *54 (N.D.Cal. Aug. 27, 2014) (Hon. Edward Chen) (where outside sales reps used
home internet and computers for work, and even admitted that they would have incurred the same
expenses without work duties, the court nevertheless held that the employer was obligated to
reimburse some reasonable portion of these expenses); see also Ritchie v. Blue Shield of
California, 2014 WL 6982943, at *21 (N.D.Cal. Dec. 9, 2014) (Hon. Edward Chen)
(certifying class of home office claims processors with 2802 phone reimbursement claims for
landline reimbursements where company required claims processors working from home to have a
landline, but rejecting certification of claims for home office supplies as individualized).
31. Here, Defendant’s failure to reimburse the work-related home office expenses of
Plaintiff and Class Members violated their non-waivable rights secured to Plaintiff and Class
Members by Labor Code §2802. See Labor Code §2804. Plaintiff and similarly situated Class
Members are thus entitled to reimbursement for these necessary expenditures, plus interest and
attorneys’ fees and costs, under Labor Code § 2802(c).
SECOND CAUSE OF ACTION
UNFAIR COMPETITION LAW VIOLATIONS
[Bus. & Prof. Code § 17200]
On Behalf of Plaintiff and the Class Against Defendant
32. Plaintiff re-alleges and incorporates by reference each and every allegation set forth
in the preceding paragraphs.
CLASS ACTION AND PAGA REPRESENTATIVE ACTION COMPLAINT
ll33. Section 17200 of the California Business & Professions Code prohibits any
unlawful, unfair, or fraudulent business practices. Business & Professions Code § 17204 allows
“any person who has suffered injury in fact and has lost money or property” to prosecute a civil
action for violation of the UCL. Such a person may bring such an action on behalf of herself and
others similarly situated who are affected by the unlawful, unfair, or fraudulent business practice.
34, Under section 17208 of the California Business and Professions Code, the statute of
limitations for a claim under Section 17200 is four years. Accordingly, the actionable period for
this cause of action is March 13, 2020 through the present.
35. Section 90.5(a) of the Labor Code states that it is the public policy of California to
enforce vigorously minimum labor standards in order to ensure employees are not required to work
under substandard and unlawful conditions, and to protect employers who comply with the law
from those who attempt to gain competitive advantage at the expense of their workers by failing to
comply with minimum labor standards.
36. Beginning in March 2020 and continuing to the present, Defendant has committed
unlawful, unfair, and/or fraudulent business acts and practices as defined by the UCL, by failing to
reimburse and indemnify Plaintiff and similarly situated Class Members for their employment-
related home office expenses, in violation of Labor Code § 2802.
oT As a direct and proximate result of Defendant’s unlawful, unfair, and/or fraudulent
acts and practices described herein, Defendant has received and continues to hold unlawfully
obtained property and money belonging to Plaintiff and the Class in the form of unreimbursed
employee home office expenses that reduced or offset compensation earned by Plaintiff and Class
Members.
38. As a direct and proximate result of Defendant’s unlawful business practices,
Plaintiffs and the Class Members have suffered economic injuries including, but not limited to out-
of-pocket home office expenses. Defendant has profited from its unlawful, unfair, and/or
fraudulent acts and practices in the amount of those home office expenses and interest accrued
thereon.
39. Plaintiff and similarly situated Class Members are entitled to monetary relief
CLASS ACTION AND PAGA REPRESENTATIVE ACTION COMPLAINT
12pursuant to Business & Professions Code §§ 17203 and 17208 for all unreimbursed business
expenses, and interest thereon, from at least March 13, 2020 through to the date of such
restitution, at rates specified by law. Defendant should be required to disgorge all the profits and
gains it has reaped and restore such profits and gains to Plaintiff and Class Members from whom
they were unlawfully taken.
40. Beginning four years prior to the filing of this Complaint, Defendant committed,
and continues to commit, acts of unfair competition, as defined in sections 17200 et seq. of the
California Business and Professions Code by, among other things, failing to reimburse Plaintiff
and the Class members for a reasonable portion of their home office expenses as required by
California law, and therefore was substantially injurious to Plaintiff and the Class members.
41. | Defendant engaged in unfair competition in violation of sections 17200 et seg. of
the California Business & Professions Code by violating Section 2802 of the Labor Code.
42. Defendant’s course of conduct, act, and practice in violation of the California laws
mentioned above constitute independent violations of sections 17200 et seq. of the California
Business and Professions Code.
43. The unlawful, unfair and fraudulent business practices and acts of Defendant, as
described above, have injured Plaintiff and the Class in that they were denied reimbursement for a
reasonable percentage of their home office expenses, and therefore was substantially injurious to
Plaintiff and the Class Members.
44. Plaintiff and similarly situated Class Members are entitled to enforce all applicable
penalty provisions of the Labor Code pursuant to Business & Professions Code § 17202.
45. Plaintiff has assumed the responsibility of enforcement of the laws and public
policies specified herein by suing on behalf of herself and other similarly situated Class Members
previously or presently employed by Defendant in California. Plaintiff's success in this action will
enforce important rights affecting the public interest. Plaintiff will incur a financial burden in
pursuing this action in the public interest. Therefore, an award of reasonable attorneys’ fees to
Plaintiff is appropriate pursuant to Code of Civil Procedure § 1021.5.
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CLASS ACTION AND PAGA REPRESENTATIVE ACTION COMPLAINT
13THIRD CAUSE OF ACTION
LABOR CODE PRIVATE ATTORNEY GENERAL ACT
[Cal. Labor Code §§ 2698-2699.5]
On Behalf of Plaintiff and the Aggrieved Employees Against Defendant
46. Plaintiff, on behalf of herself and all Aggrieved Employees, re-alleges and
incorporates by reference each and every allegation set forth in the preceding paragraphs.
47. Based on the above allegations incorporated by reference, Lucile Salter Packard
Children’s Hospital at Stanford has violated Labor Code § 2802 by failing to reimburse Plaintiff
and the Aggrieved Employees their reasonable and necessary business expenses.
48. _ As a result of the acts alleged above, Plaintiff seeks penalties under Labor Code §
2699, et. seq., because of Defendant’s violations of Labor Code § 2802.
49. Plaintiff seeks to recover the PAGA civil penalties through a representative action
as permitted by PAGA and the California Supreme Court in Arias v. Superior Court (2009), 46
Cal.4th 969. Therefore, class certification hereby of the PAGA claims is not required, but Plaintiff
may choose to seek certification of the PAGA claims.
50. | Under Labor Code §§ 2699(f)(2) and 2699.5, for each such violation, Plaintiff and
all other Aggrieved Employees are entitled to penalties in an amount to be shown at the time of
trial subject to the following formula:
$100 for the initial violation per employee per pay period; and
$200 for each subsequent violation per employee per pay period.
These penalties shall be allocated seventy-five percent (75%) to the Labor and Workforce
Development Agency (LWDA) and twenty-five percent (25%) to the affected employees.
51. Some courts have interpreted Labor Code section 2699(f)(2) to impose the
enhanced “subsequent violation penalty” only after an employer has been notified that its conduct
violates the Labor Code. See Steenhuyse v. UBS Fin. Servs., Inc., 317 F. Supp. 3d 1062, 1067
(N.D. Cal. 2018) (“California law is clear that a ‘subsequent violation’ level applies only to
violations after the employer is on notice that its continued conduct is unlawful. Until notified that
it is violating a Labor Code provision (whether or not the Commissioner or court chooses to
impose penalties), the employer cannot be presumed to be aware that its continuing underpayment
CLASS ACTION AND PAGA REPRESENTATIVE ACTION COMPLAINT
14of employees is a ‘violation’ subject to penalties.”); Amalgamated Transit Union Local 1309,
AFL-CIO v. Laidlaw Transit Services, Inc., No. 05cv1199-IEG-CAB, 2009 WL 2448430 (S.D.
Cal. 2009) (finding that California law imposes the “subsequent violation penalty” only after an
employer has been notified its conduct violates the Labor Code); Willis v. Xerox Bus. Servs., LLC,
No. No. 1:13-cv-01353-LJO-JLT, 2013 WL 6053831, at *6 (E.D. Cal. Nov. 15, 2013) (finding that
“[t]he phrase ‘subsequent violation’ is a term of art” and “[flor a plaintiff to recover for a
‘subsequent violation,’ an employer must have notice that it has violated the Labor Code.”’). Based
on these decisions, all pay periods at issue after the submission of Plaintiff's LWDA letter would
trigger the heightened subsequent violation amount.
JURY DEMAND
1. Plaintiff hereby demands trial by jury of her and the Class’s claims under Section
2802 of the Labor Code against Defendant, and of all claims, except for those brought under the
PAGA and UCL, which are subject to a bench trial.
PRAYER FOR RELIEF
Wherefore, Plaintiff, on behalf of herself and the members of the Class, prays for judgment
against Defendant as follows:
1. An Order than this action may proceed and be maintained as a class action;
2. On the First Cause of Action:
a. That the Court find and declare that Defendant’s business expense policies
and/or practices violate California law, including Labor Code § 2802, by refusing and/or failing to
reimburse all business expenses incurred by Plaintiff and other and Class Members in the
discharge of their duties in California as employees of Defendant;
b. That the Court award to Plaintiff and Class Members all unreimbursed
business expenses, and interest thereon, that they are owed, pursuant to Labor Code § 2802, and
attorneys fees, pursuant to Labor Code § 2802(c), in an amount to be proved at trial;
3. On the Second Cause of Action:
a. That the Court find and declare that Defendant has violated the UCL and
committed unfair and unlawful business practices by failing to reimburse Plaintiff and similarly
CLASS ACTION AND PAGA REPRESENTATIVE ACTION COMPLAINT
15situated Class Members for their home office expenses incurred by them in the course of their
duties for the benefit of Defendant, their employers;
b. Restitution, including, but not limited to, the relief permitted by section
2802 of the California Labor Code;
c. That Defendant be ordered to pay restitution to Plaintiff and the Class
Members due to Defendant’s UCL violations under the First Cause of Action pursuant to Business
and Professions Code §§ 17200-17205, in the amount of their unreimbursed business expenses and
interest thereon;
4. On the Third Cause of Action:
a. A civil penalty against Defendant in the amount of $100 for the initial
violation and $200 for each subsequent violation as specified in section 2699(f)(2) of the
California Labor Code for Plaintiff and the Aggrieved Employees during all of the pay periods in
the PAGA Period and on-going until the violations are corrected;
b. An award of reasonable attorney’s fees against Defendant as specified in
Labor Code § 2699(g)(1), for all the work performed by the undersigned counsel in connection
with the PAGA claims;
c. An award of all costs incurred by the undersigned counsel for Plaintiff in
connection with Plaintiff's and Class Members’ PAGA claim against Defendant as provided for in
Labor Code § 2699(g)(1);
3 All other relief as this Court deems proper.
Dated: December 29, 2020 Respectfully submitted,
ACKERMANN & TILAJEF, P.C.
EMPLOYMENT RIGHTS LAW GROUP, APC
» bh
Craig Ackermann, Esq.
Amir Seyedfarshi, Esq.
Attorneys for Plaintiff; the Putative Class, and the
Aggrieved Employees
CLASS ACTION AND PAGA REPRESENTATIVE ACTION COMPLAINT
16
Preview
E-FILED 12/29/2020 4:08 PM Clerk of Court ACKERMANN & TILAJEF, P.C. Superior Court of CA, oe ae County of Sara Clr cja@ackermanntilajef.com 1180 South Beverly Drive, Suite 610 aero 3. R. Walker Los Angeles, California 90035 ys Telephone: (310) 277-0614 Facsimile: (310) 277-0635 EMPLOYMENT RIGHTS LAW GROUP, APC Amir Seyedfarshi, CA Bar No. 301656 amir@employmentrightslawgroup.com 1180 South Beverly Drive, Suite 610 Los Angeles, California 90035 Telephone: (424) 777-0964 Attorneys for Plaintiff, the Putative Class, and the Aggrieved Employees SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA VALERIE BOYER, individually and on behalf | CASENO: 20CV375153 of all others similarly situated, CLASS ACTION Plaintiff, PLAINTIFF’S CLASS ACTION AND PAGA Vv. REPRESENTATIVE COMPLAINT FOR: LUCILE SALTER PACKARD CHILDREN’S (1) FAILURE TO REIMBURSE BUSINESS HOSPITAL AT STANFORD, a California EXPENSES (LABOR CODE § 2802); corporation, and DOES 1 to 100, inclusive, (2) UCL VIOLATIONS (CAL. BUS. & PROF. CODE §§ 17200-17204); AND, Defendant. (3) PAGA PENALTIES (LABOR CODE § 2698 et seq.). DEMAND FOR JURY TRIAL CLASS ACTION AND PAGA REPRESENTATIVE ACTION COMPLAINTPlaintiff Valerie Boyer, (“Plaintiff”), on behalf of herself, the Aggrieved Employees, the State of California, and all others similarly situated (hereinafter “Class Members”), complains and alleges as follows: OVERVIEW OF CLAIMS 1. Plaintiff brings this action on behalf of herself and all others similarly situated, as a Class Action, as a Representative Action, and on behalf of the California general public, against Defendant Lucile Salter Packard Children’s Hospital at Stanford and Does 1 to 100 (“Defendant”) for its (1) failure to reimburse its current and former employees for their work-related home office expenses in California during the COVID-19 pandemic and the various stay at home orders for which they have not been fully reimbursed; (2) unfair business practices based on the foregoing; and (3) PAGA penalties based on the foregoing. As a result of the foregoing, Defendant has violated California statutory laws as described below. 2. The “Class Period” is designated as the period from March 13, 2020 to the filing of this action through the date of class certification. Defendant’s violations of California’s reimbursement laws and unfair competition laws, as described more fully below, have been ongoing throughout the Class Period. 3. The “PAGA Period” is designated as the period from March 13, 2020, within the one-year period prior to Plaintiff's mailing of the LWDA notice letter on October 14, 2020 through the present and on-going. YENUE 4. Venue is proper in this county under section 395.5 of the California Code of Civil Procedure as the allegations herein took place within the County of Santa Clara. Further, Defendant keeps and maintains its hospital in Palo Alto, California. Many of the putative Class Members were employed and/or performed work during the Class Period by Defendant in Santa Clara County. Finally, many of the acts alleged herein including Defendant’s failure to reimburse Plaintiff and Class Members for a reasonable portion of their home office expenses, occurred in Santa Clara County. Venue is therefore proper in Santa Clara County. Mt CLASS ACTION AND PAGA REPRESENTATIVE ACTION COMPLAINT 2JURISDICTION 5. Defendant is within the jurisdiction of this Court. Defendant transacts millions of dollars of business by operating a children’s hospital and research center in California. Thus, Defendant has obtained the benefits of the laws of the State of California. In addition, Plaintiff asserts no claims arising under federal law. Rather, Plaintiff brings causes of action based solely on, and arising from, California law. The claims of the class are also individual claims for violations of California law described herein. THE PARTIES 6. Plaintiff Valerie Boyer is a resident of Santa Clara county, California. Throughout the Class Period and the PAGA period, Defendant employed Plaintiff as a translator and interpreter. From at least March 13, 2020 through the present, Defendant’s employees, including Plaintiff during her employment, were not reimbursed a reasonable portion of their home office expenses, including their home internet expenses, in the course of carrying out their job duties in California. a Plaintiff represents the State of California and the following group of employees: Plaintiff and all other California residents who are or were employed by Defendant, who were subject to stay at home orders and/or whose offices were closed due to COVID-19 at any point from March 15, 2020 to the present and ongoing (the “Aggrieved Employees” and/or “Class Members”). All such Aggrieved Employees or Class members are and were subject to Defendant’s unlawful reimbursement policy, as described in further detail below. 8. Defendant is a California corporation with its principal place of business in Palo Alto, California. Defendant is a renowned hospital and research center connected with the Stanford Medical School. Defendant was the employer of Plaintiff, Class Members, and the Aggrieved Employees for all relevant time periods. 9. The true names and capacities, whether individual, corporate, associate, or otherwise, of Defendants sued herein as DOES 1 to 100 inclusive, are currently unknown to Plaintiff, who therefore sues Defendants by such fictitious names under Code of Civil Procedure § 474. Plaintiff is informed and believes, and based thereon alleges, that each of the Defendants CLASS ACTION AND PAGA REPRESENTATIVE ACTION COMPLAINT 3)designated herein as a DOE is legally responsible in some manner for the unlawful acts referred to herein. Plaintiff will seek leave of court to amend this Complaint to reflect the true names and capacities of the Defendants designated hereinafter as DOES when such identities become known. 10. Plaintiff is informed and believes, and based thereon alleges, 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 hereto, and the acts of each Defendant are legally attributable to the other Defendants. Furthermore, Defendants in all respects acted as the employer and/or joint employer of Plaintiff, the Class Members, and the other Aggrieved Employees. 11. Plaintiff and the Class Members were employed by Defendant in California at various times during the Class Period. Due to turnover during the Class Period, the total number of class members is estimated to be approximately 200. FACTUAL ALLEGATIONS 12. Defendant operates and, at all times during the Class Period and PAGA Period, has done and does business in California in the workforce solutions industry. Defendant, in the course of operating its business in California during the Class Period, employed Plaintiff, the Aggrieved Employees, and the Class Members. 13. From at least early-to mid-March 2020 when work from home orders went into effect, Plaintiff, the Class, and the aggrieved employees, at the direction of Defendant and/or with Defendant’s knowledge and acquiescence, have incurred home office expenses including, among other things, home internet service expenses, hardware and other equipment expenses, cell phone service, and electricity expenses associated with their home offices in order to perform necessary work-related duties. 14, Plaintiff and the aggrieved employees and Class Members were thus expected by Defendant to pay for, and have personally paid for, among other things, home internet service, cell phone service, electricity, and the purchase and maintenance of all hardware used for work- purposes, including laptops, keyboards, mouses, Bluetooth headsets, and cell phones used by Plaintiff and the Aggrieved Employees and Class members in the discharge of their job duties (the CLASS ACTION AND PAGA REPRESENTATIVE ACTION COMPLAINT 4“home office expenses”). These expenses ranged, but typically amounted from $100 to $500 per aggrieved employee or Class Member. 15. In sum, Defendant’s expense-related policies and/or practices require and expect, and/or with Defendant’s knowledge thereof permit, Plaintiff, the Class, and the aggrieved employees and Class Members to pay for home office expenses incurred in direct consequence of discharging their necessary and business-related job duties on behalf of Defendant, without reimbursement in full by Defendant for such expenses, as required by California law. 16. Defendant does not maintain an expense reimbursement policy and/or practice stating that Defendant will affirmatively reimburse Plaintiff and the aggrieved employees and Class Members for a reasonable portion of their home office expenses necessarily incurred in their discharge of their duties during the COVID 19 pandemic when they were required to work from home, as required by Labor Code sections 2802(a) and (c). California Labor Code section 2802 requires an employer to “indemnify his or her employee for all necessary expenditures or losses incurred by that employee in direct consequence of the discharge of his or her duties.” See Cal. Labor Code section 2802(a); see also 2802(c) where “necessary” expenses are defined to include all “reasonable” costs. 17. “The elements of a claim under Section 2802 are: (i) the employee made expenditures or incurred losses; (ii) the expenditures or losses were incurred in direct consequence of the employee's discharge of his or her duties, or obedience to the directions of the employer; and (iii) the expenditures or losses were reasonable and necessary.” Marr v. Bank of America, 2011 U.S. Dist. LEXIS 24868 (N.D. March 8, 2011) (citing Gattuso v. Harte-Hanks Shoppers, Inc., 42 Cal.4th 554, 568 (2007). 18. “In addition, the employer ‘must either know or have reason to know that the employee has incurred [the] expense.’” /d. (citing Stuart v. RadioShack Corp., 641 F.Supp. 2d 901 (N.D.Cal. 2009). Where an employer has knowledge that employees are incurring a reimbursable expense, the employer must “exercise due diligence to ensure each employee is reimbursed.” Marr, at *1. The right of an employee to expense reimbursements is not waivable. See Cal. Labor Code sections 2804 and 219(a). Any contract to waive them is null and CLASS ACTION AND PAGA REPRESENTATIVE ACTION COMPLAINT 5void. Edwards v. Arthur Anderson, 44 Cal. 4th 937, 951 (2008) 19. Furthermore, under Labor Code section 2802, employers must reimburse employees for all reasonable work-related expenses, regardless of whether or not the employees incurred any additional out-of-pocket expense from that work-related use. See, Cochran v. Schwan’s Home Service, Inc., 228 Cal.App.4th 1137 (Cal. Aug. 12, 2014) (“We hold that when employees must use their personal cell phones for work-related calls, Labor Code section 2802 requires the employer to reimburse them. Whether the employees have cell phone plans with unlimited minutes or limited minutes, the reimbursement owed is a reasonable percentage of their cell phone bills.”). Thus, where employees are expected or mandated to use their internet at home for work, courts have held that they incurred home internet expenses in “direct consequence of the discharge of his or her duties” and were entitled to reimbursement. See Aguilar v. Zep, Inc., 2014 US Dist LEXIS 120315, *54 (N.D.Cal. Aug. 27, 2014) (Hon. Edward Chen) (where outside sales reps used home internet and computers for work, and even admitted that they would have incurred the same expenses without work duties, the court nevertheless held that the employer was obligated to reimburse some reasonable portion of these expenses); see also Ritchie v. Blue Shield of California, 2014 WL 6982943, at *21 (N.D.Cal. Dec. 9, 2014) (Hon. Edward Chen) (certifying class of home office claims processors with 2802 phone reimbursement claims for landline reimbursements where company required claims processors working from home to have a landline, but rejecting certification of claims for home office supplies as individualized). 20. In short, Defendant’s policies and/or practices require and expect, and/or with Defendant’s knowledge thereof permit, Plaintiff, the Class, and the aggrieved employees to pay for home office expenses incurred in direct consequence of discharging their work duties on behalf of Defendant, without reimbursement in full by Defendant for such expenses. Defendant has maintained its policies and/or practices of denying reimbursement in full of Plaintiff's, the Class’ and the aggrieved employees’ necessarily incurred business expenses, or substantially similar policies, throughout California and throughout the Class and PAGA Period, specifically during the period when work from home orders were in effect as a result of COVID-19. 21. Defendant is aware or should have been aware that Plaintiff, the Class, and the CLASS ACTION AND PAGA REPRESENTATIVE ACTION COMPLAINT 6aggrieved employees regularly incur home office expenses in the discharge of their duties as employees by virtue of Defendant’s instructions to Plaintiff, the Class, and the aggrieved employees to work from home order during the COVID-19 pandemic. Defendant nevertheless has, throughout the Class and PAGA Period, and specifically during work from home orders during the COVID-19 pandemic, failed and refused to reimburse Plaintiff, the Class, and the aggrieved employees for such home office expenses incurred by them in connection with their work. 22. Plaintiff, the Aggrieved Employees, and Class Members have been harmed by Defendant’s unlawful home office expense policies and/or practices in that they have not been paid for certain home office expenses incurred while employed by Defendant in California, thereby diminishing their agreed-upon compensation, in substantial amounts to be proved at trial. 23. Plaintiff has fully and completely exhausted and completed her administrative remedies under PAGA prior to proceeding with the PAGA claim. On October 14, 2020, Plaintiff filed her PAGA Notice online with the Labor Workforce Development Agency (“LWDA”) and sent a letter by certified mail to Defendant setting forth the facts and theories of the violations alleged against Defendant, as prescribed by Labor Code § 2698 et seq. As required by PAGA, Plaintiff also submitted the $75.00 filing fee with the LWDA by regular mail. Pursuant to Labor Code § 2699.3(a)(2)(A), Plaintiff has thus satisfied her administrative pre-requisites since sixty- five (65) calendar days have elapsed since the postmark date of the PAGA notice. CLASS ACTION ALLEGATIONS 24. Plaintiff brings this action on behalf of herself and all others similarly situated as a class action pursuant to Code of Civil Procedure § 382. Plaintiff seeks to represent a Class composed of and defined as Plaintiff and all other California residents who are or were employed by Defendant, who were subject to stay at home orders and/or whose offices were closed due to COVID-19 at any point from March 13, 2020 and ongoing (“Class Members”). All such Class Members were subject to Defendant’s policy and practice of not fully reimbursing employees’ home office expenses. 25. This action has been brought and may properly be maintained as a class action CLASS ACTION AND PAGA REPRESENTATIVE ACTION COMPLAINT 7under Code of Civil Procedure § 382 because there is a well-defined community of interest in the litigation, the proposed class is easily ascertainable, and Plaintiff is a proper representative of the Class: a. Numerosity: The potential members of the Class as defined are so numerous that joinder of all the members of the Class is impracticable. While the precise number of Class Members has not been determined at this time, Plaintiff is informed and believes that Defendant has employed approximately 200 employees during the Class Period. The Class Members are dispersed throughout California. Joinder of all members of the proposed classes is therefore not practicable. b. Commonality: There are questions of law and fact common to Plaintiff and the Class that predominate over any questions affecting only individual members of the Class. These common questions of law and fact include, without limitation: i. Whether Plaintiff and Class Members incurred unreimbursed business expenses in the discharge of their duties as employees, including but not limited to home office expenses, in violation of Labor Code § 2802; ii. Whether Defendant intended, suffered and/or permitted, and/or knew and/or should have known that Plaintiff and Class Members incurred unreimbursed home office expenses, in the discharge of their duties as employees; iii, Whether Defendant’s failure to reimburse the home office expenses incurred by Plaintiff and Class Members was the result of, and/or pursuant to, a business policy or regular practice of Defendant; iv. Whether Plaintiffs are entitled to restitution under Business and Professions Code § 17200; v. Whether Defendant owes penalties pursuant to PAGA for failing to reimburse its drivers for the necessarily incurred business expenses. vi. The proper formula(s) for calculating damages, interest, and restitution owed to Plaintiff and the Class Members; vii. The nature and extent of class-wide damages. CLASS ACTION AND PAGA REPRESENTATIVE ACTION COMPLAINT 8c. Typicality: Plaintiff's claims are typical of the claims of the Class. Both Plaintiff and Class Members sustained injuries and damages, and were deprived of property rightly belonging to them, arising out of and caused by Defendant’s common course of conduct in violation of law as alleged herein, in similar ways and for the same types of expenses. d. Adequacy of Representation: Plaintiff is a member of the Class and will fairly and adequately represent and protect the interests of the Class and Class Members. Plaintiff’s interests do not conflict with those of Class and Class Members. Counsel who represent Plaintiff are competent and experienced in litigating large wage and hour class actions and will devote sufficient time and resources to the case and otherwise adequately represent the Class and Class Members. e. Superiority of Class Action: A class action is superior to other available means for the fair and efficient adjudication of this controversy. Individual joinder of all Class Members is not practicable, and questions of law and fact common to the Class predominate over any questions affecting only individual members of the Class. Each Class Member has been damaged or may be damaged in the future by reason of Defendant’s unlawful policies and/or practices of not fully reimbursing business expenses. Certification of this case as a class action will allow those similarly situated persons to litigate their claims in the manner that is most efficient and economical for the parties and the judicial system. Certifying this case as a class action is superior because it allows for efficient and full disgorgement of the ill-gotten gains Defendant has enjoyed by maintaining its unlawful business expense reimbursement policies and/or practices, and will thereby effectuate California’s strong public policy of protecting employees from deprivation or offsetting of compensation earned in their employment. If this action is not certified as a Class Action, it will be impossible as a practical matter for many or most Class Members to bring individual actions to recover monies unlawfully withheld from their lawful compensation due from Defendant’s, due to the relatively small amounts of such individual recoveries relative to the costs and burdens of litigation. Mil Ml CLASS ACTION AND PAGA REPRESENTATIVE ACTION COMPLAINT 9FIRST CAUSE OF ACTION FAILURE TO REIMBURSE FOR BUSINESS EXPENSES [Cal. Labor Code § 2802(a) and (c)] On Behalf of Plaintiff and the Class Against Defendant 26. Plaintiff re-alleges and incorporates by reference each and every allegation set forth in the preceding paragraphs. 27. The actionable period for this cause of action is from March 13, 2020 through the present. 28. Defendant does not maintain an expense reimbursement policy and/or practice to affirmatively reimburse Plaintiff and Class Members for a reasonable portion of his and their home office expenses necessarily incurred in their discharge of their duties during the COVID 19 pandemic when working from home was necessary for the aggrieved employees and the Class members, as required by Labor Code sections 2802(a) and (c). 29. California Labor Code section 2802 requires an employer to "indemnify his or her employee for all necessary expenditures or losses incurred by that employee in direct consequence of the discharge of his or her duties." See Cal. Labor Code section 2802(a); see also 2802(c) where necessary is defined to include all “reasonable” costs. As noted, “[t]he elements of a claim under Section 2802 are: (i) the employee made expenditures or incurred losses; (ii) the expenditures or losses were incurred in direct consequence of the employee's discharge of his or her duties, or obedience to the directions of the employer; and (iii) the expenditures or losses were reasonable and necessary.” Marr y. Bank of America, 2011 U.S. Dist. LEXIS 24868 (N.D. March 8, 2011) (citing Gattuso v. Harte-Hanks Shoppers, Inc., 42 Cal.4th 554, 568 (2007). “In addition, the employer ‘must either know or have reason to know that the employee has incurred [the] expense.” Jd. (citing Stuart v. RadioShack Corp., 641 F.Supp. 2d 901 (N.D.Cal. 2009). Where an employer has knowledge that employees are incurring a reimbursable expense, the employer must “exercise due diligence to ensure each employee is reimbursed.” Marr, at *1. The right of an employee to expense reimbursements is not waivable. See Cal. Labor Code sections 2804 and 219(a). Any contract to waive them is null and void. Edwards v. Arthur Anderson, 44 Cal. 4th 937, 951 (2008) CLASS ACTION AND PAGA REPRESENTATIVE ACTION COMPLAINT 1030. Furthermore, under Labor Code section 2802, employers must reimburse employees for all reasonable work-related expenses, regardless of whether or not the employees incurred any additional out-of-pocket expense from that work-related use. See, Cochran v. Schwan’s Home Service, Inc., 228 Cal.App.4th 1137 (Cal. Aug. 12, 2014) (“We hold that when employees must use their personal cell phones for work-related calls, Labor Code section 2802 requires the employer to reimburse them. Whether the employees have cell phone plans with unlimited minutes or limited minutes, the reimbursement owed is a reasonable percentage of their cell phone bills.”). Thus, where employees are expected or mandated to use their internet at home for work, courts have held that they incurred home internet expenses in “direct consequence of the discharge of his or her duties” and were entitled to reimbursement. See Aguilar v. Zep, Inc., 2014 US Dist LEXIS 120315, *54 (N.D.Cal. Aug. 27, 2014) (Hon. Edward Chen) (where outside sales reps used home internet and computers for work, and even admitted that they would have incurred the same expenses without work duties, the court nevertheless held that the employer was obligated to reimburse some reasonable portion of these expenses); see also Ritchie v. Blue Shield of California, 2014 WL 6982943, at *21 (N.D.Cal. Dec. 9, 2014) (Hon. Edward Chen) (certifying class of home office claims processors with 2802 phone reimbursement claims for landline reimbursements where company required claims processors working from home to have a landline, but rejecting certification of claims for home office supplies as individualized). 31. Here, Defendant’s failure to reimburse the work-related home office expenses of Plaintiff and Class Members violated their non-waivable rights secured to Plaintiff and Class Members by Labor Code §2802. See Labor Code §2804. Plaintiff and similarly situated Class Members are thus entitled to reimbursement for these necessary expenditures, plus interest and attorneys’ fees and costs, under Labor Code § 2802(c). SECOND CAUSE OF ACTION UNFAIR COMPETITION LAW VIOLATIONS [Bus. & Prof. Code § 17200] On Behalf of Plaintiff and the Class Against Defendant 32. Plaintiff re-alleges and incorporates by reference each and every allegation set forth in the preceding paragraphs. CLASS ACTION AND PAGA REPRESENTATIVE ACTION COMPLAINT ll33. Section 17200 of the California Business & Professions Code prohibits any unlawful, unfair, or fraudulent business practices. Business & Professions Code § 17204 allows “any person who has suffered injury in fact and has lost money or property” to prosecute a civil action for violation of the UCL. Such a person may bring such an action on behalf of herself and others similarly situated who are affected by the unlawful, unfair, or fraudulent business practice. 34, Under section 17208 of the California Business and Professions Code, the statute of limitations for a claim under Section 17200 is four years. Accordingly, the actionable period for this cause of action is March 13, 2020 through the present. 35. Section 90.5(a) of the Labor Code states that it is the public policy of California to enforce vigorously minimum labor standards in order to ensure employees are not required to work under substandard and unlawful conditions, and to protect employers who comply with the law from those who attempt to gain competitive advantage at the expense of their workers by failing to comply with minimum labor standards. 36. Beginning in March 2020 and continuing to the present, Defendant has committed unlawful, unfair, and/or fraudulent business acts and practices as defined by the UCL, by failing to reimburse and indemnify Plaintiff and similarly situated Class Members for their employment- related home office expenses, in violation of Labor Code § 2802. oT As a direct and proximate result of Defendant’s unlawful, unfair, and/or fraudulent acts and practices described herein, Defendant has received and continues to hold unlawfully obtained property and money belonging to Plaintiff and the Class in the form of unreimbursed employee home office expenses that reduced or offset compensation earned by Plaintiff and Class Members. 38. As a direct and proximate result of Defendant’s unlawful business practices, Plaintiffs and the Class Members have suffered economic injuries including, but not limited to out- of-pocket home office expenses. Defendant has profited from its unlawful, unfair, and/or fraudulent acts and practices in the amount of those home office expenses and interest accrued thereon. 39. Plaintiff and similarly situated Class Members are entitled to monetary relief CLASS ACTION AND PAGA REPRESENTATIVE ACTION COMPLAINT 12pursuant to Business & Professions Code §§ 17203 and 17208 for all unreimbursed business expenses, and interest thereon, from at least March 13, 2020 through to the date of such restitution, at rates specified by law. Defendant should be required to disgorge all the profits and gains it has reaped and restore such profits and gains to Plaintiff and Class Members from whom they were unlawfully taken. 40. Beginning four years prior to the filing of this Complaint, Defendant committed, and continues to commit, acts of unfair competition, as defined in sections 17200 et seq. of the California Business and Professions Code by, among other things, failing to reimburse Plaintiff and the Class members for a reasonable portion of their home office expenses as required by California law, and therefore was substantially injurious to Plaintiff and the Class members. 41. | Defendant engaged in unfair competition in violation of sections 17200 et seg. of the California Business & Professions Code by violating Section 2802 of the Labor Code. 42. Defendant’s course of conduct, act, and practice in violation of the California laws mentioned above constitute independent violations of sections 17200 et seq. of the California Business and Professions Code. 43. The unlawful, unfair and fraudulent business practices and acts of Defendant, as described above, have injured Plaintiff and the Class in that they were denied reimbursement for a reasonable percentage of their home office expenses, and therefore was substantially injurious to Plaintiff and the Class Members. 44. Plaintiff and similarly situated Class Members are entitled to enforce all applicable penalty provisions of the Labor Code pursuant to Business & Professions Code § 17202. 45. Plaintiff has assumed the responsibility of enforcement of the laws and public policies specified herein by suing on behalf of herself and other similarly situated Class Members previously or presently employed by Defendant in California. Plaintiff's success in this action will enforce important rights affecting the public interest. Plaintiff will incur a financial burden in pursuing this action in the public interest. Therefore, an award of reasonable attorneys’ fees to Plaintiff is appropriate pursuant to Code of Civil Procedure § 1021.5. Mf CLASS ACTION AND PAGA REPRESENTATIVE ACTION COMPLAINT 13THIRD CAUSE OF ACTION LABOR CODE PRIVATE ATTORNEY GENERAL ACT [Cal. Labor Code §§ 2698-2699.5] On Behalf of Plaintiff and the Aggrieved Employees Against Defendant 46. Plaintiff, on behalf of herself and all Aggrieved Employees, re-alleges and incorporates by reference each and every allegation set forth in the preceding paragraphs. 47. Based on the above allegations incorporated by reference, Lucile Salter Packard Children’s Hospital at Stanford has violated Labor Code § 2802 by failing to reimburse Plaintiff and the Aggrieved Employees their reasonable and necessary business expenses. 48. _ As a result of the acts alleged above, Plaintiff seeks penalties under Labor Code § 2699, et. seq., because of Defendant’s violations of Labor Code § 2802. 49. Plaintiff seeks to recover the PAGA civil penalties through a representative action as permitted by PAGA and the California Supreme Court in Arias v. Superior Court (2009), 46 Cal.4th 969. Therefore, class certification hereby of the PAGA claims is not required, but Plaintiff may choose to seek certification of the PAGA claims. 50. | Under Labor Code §§ 2699(f)(2) and 2699.5, for each such violation, Plaintiff and all other Aggrieved Employees are entitled to penalties in an amount to be shown at the time of trial subject to the following formula: $100 for the initial violation per employee per pay period; and $200 for each subsequent violation per employee per pay period. These penalties shall be allocated seventy-five percent (75%) to the Labor and Workforce Development Agency (LWDA) and twenty-five percent (25%) to the affected employees. 51. Some courts have interpreted Labor Code section 2699(f)(2) to impose the enhanced “subsequent violation penalty” only after an employer has been notified that its conduct violates the Labor Code. See Steenhuyse v. UBS Fin. Servs., Inc., 317 F. Supp. 3d 1062, 1067 (N.D. Cal. 2018) (“California law is clear that a ‘subsequent violation’ level applies only to violations after the employer is on notice that its continued conduct is unlawful. Until notified that it is violating a Labor Code provision (whether or not the Commissioner or court chooses to impose penalties), the employer cannot be presumed to be aware that its continuing underpayment CLASS ACTION AND PAGA REPRESENTATIVE ACTION COMPLAINT 14of employees is a ‘violation’ subject to penalties.”); Amalgamated Transit Union Local 1309, AFL-CIO v. Laidlaw Transit Services, Inc., No. 05cv1199-IEG-CAB, 2009 WL 2448430 (S.D. Cal. 2009) (finding that California law imposes the “subsequent violation penalty” only after an employer has been notified its conduct violates the Labor Code); Willis v. Xerox Bus. Servs., LLC, No. No. 1:13-cv-01353-LJO-JLT, 2013 WL 6053831, at *6 (E.D. Cal. Nov. 15, 2013) (finding that “[t]he phrase ‘subsequent violation’ is a term of art” and “[flor a plaintiff to recover for a ‘subsequent violation,’ an employer must have notice that it has violated the Labor Code.”’). Based on these decisions, all pay periods at issue after the submission of Plaintiff's LWDA letter would trigger the heightened subsequent violation amount. JURY DEMAND 1. Plaintiff hereby demands trial by jury of her and the Class’s claims under Section 2802 of the Labor Code against Defendant, and of all claims, except for those brought under the PAGA and UCL, which are subject to a bench trial. PRAYER FOR RELIEF Wherefore, Plaintiff, on behalf of herself and the members of the Class, prays for judgment against Defendant as follows: 1. An Order than this action may proceed and be maintained as a class action; 2. On the First Cause of Action: a. That the Court find and declare that Defendant’s business expense policies and/or practices violate California law, including Labor Code § 2802, by refusing and/or failing to reimburse all business expenses incurred by Plaintiff and other and Class Members in the discharge of their duties in California as employees of Defendant; b. That the Court award to Plaintiff and Class Members all unreimbursed business expenses, and interest thereon, that they are owed, pursuant to Labor Code § 2802, and attorneys fees, pursuant to Labor Code § 2802(c), in an amount to be proved at trial; 3. On the Second Cause of Action: a. That the Court find and declare that Defendant has violated the UCL and committed unfair and unlawful business practices by failing to reimburse Plaintiff and similarly CLASS ACTION AND PAGA REPRESENTATIVE ACTION COMPLAINT 15situated Class Members for their home office expenses incurred by them in the course of their duties for the benefit of Defendant, their employers; b. Restitution, including, but not limited to, the relief permitted by section 2802 of the California Labor Code; c. That Defendant be ordered to pay restitution to Plaintiff and the Class Members due to Defendant’s UCL violations under the First Cause of Action pursuant to Business and Professions Code §§ 17200-17205, in the amount of their unreimbursed business expenses and interest thereon; 4. On the Third Cause of Action: a. A civil penalty against Defendant in the amount of $100 for the initial violation and $200 for each subsequent violation as specified in section 2699(f)(2) of the California Labor Code for Plaintiff and the Aggrieved Employees during all of the pay periods in the PAGA Period and on-going until the violations are corrected; b. An award of reasonable attorney’s fees against Defendant as specified in Labor Code § 2699(g)(1), for all the work performed by the undersigned counsel in connection with the PAGA claims; c. An award of all costs incurred by the undersigned counsel for Plaintiff in connection with Plaintiff's and Class Members’ PAGA claim against Defendant as provided for in Labor Code § 2699(g)(1); 3 All other relief as this Court deems proper. Dated: December 29, 2020 Respectfully submitted, ACKERMANN & TILAJEF, P.C. EMPLOYMENT RIGHTS LAW GROUP, APC » bh Craig Ackermann, Esq. Amir Seyedfarshi, Esq. Attorneys for Plaintiff; the Putative Class, and the Aggrieved Employees CLASS ACTION AND PAGA REPRESENTATIVE ACTION COMPLAINT 16