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  • Haven, Thomas et al vs California Vocations, Inc(15) Unlimited Other Employment document preview
  • Haven, Thomas et al vs California Vocations, Inc(15) Unlimited Other Employment document preview
  • Haven, Thomas et al vs California Vocations, Inc(15) Unlimited Other Employment document preview
  • Haven, Thomas et al vs California Vocations, Inc(15) Unlimited Other Employment document preview
  • Haven, Thomas et al vs California Vocations, Inc(15) Unlimited Other Employment document preview
  • Haven, Thomas et al vs California Vocations, Inc(15) Unlimited Other Employment document preview
  • Haven, Thomas et al vs California Vocations, Inc(15) Unlimited Other Employment document preview
  • Haven, Thomas et al vs California Vocations, Inc(15) Unlimited Other Employment document preview
						
                                

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ZAKAY LAW GROUP, APLC Superior Court of California F Shani O. Zakay (State Bar #277924) ackland K. Hom (State Bar #327243) County of Butte 5850 Oberlin Drive, Suite 230A | San Diego, CA 9212 L Telephone: (619)255-9047 1/12/2021 E Facsimile: (858) 404-9203 op ys shani@zakaylaw.com D jackland@ zakaylaw.com By Deputy ical) ly FILED JCL LAW FIRM, APC Jean-Claude Lapuyade (State Bar #248676) 3990 Old Town Avenue, Suite C204 San Diego, CA 92110 Telephone: (619)599-8292 Facsimile: (619) 599-8291 jlapuyade@jcl-lawfirm.com 10 Attomeys for Plaintiff 11 SUPERIOR COURT OF THE STATE OF CALIFORNIA 12 INAND FOR THE COUNTY OF BUITE 13 14 THOMAS HAVEN, an individual, on behalf Case No: 20CV01514 of himself and on behalf of all persons 15 similarly situated, Action Filed: 08/03/20 16 Plaintiff, DECLARATION OF JACKLAND K. HOM, E! . INSUPPORT OF 17 PLAINTIFF’S MOTION TO vs. COMPEL DI 18 CALIFORNIA VOCATIONS, INC., CALIFORNIA VOCATIONS, INC. a TO PROVIDE FURTHER 19 California Corporation; and DOES 1 through RESPONSES TO SPECIAL INTERROGATORIES [SET ONE] 50, Inclusive, AND REQUEST FOR MONETARY 20 SANCTIONS 21 Defendants. Date: February 10, 2021 22 Time: 9:00 am. 23 Judge: Hon. Stephen E. Benson 24 Dept.: 6 25 26 27 28 1 DECLARATION I, Jackland K. Hom, Esq, declare as follows: 1 I am over eighteen years of age and if called as a witness, I could and would competently testify to the following facts from my own personal knowledge. I am an attorney- at-law at Zakay Law Group, APLC (hereinafter “Plaintiff's Counsel”). I am counsel of record for plaintiff Thomas Haven, (hereafter “Plaintiff’) in this action filed against California Vocations, Inc. (hereinafter “Defendant”). I EXHIBITS 2 Attached hereto as Exhibit “A” is a true and correct copy of Plaintiff's May 27, 2020 PAGA Notice. 10 3 Attached hereto as Exhibit “B” is a true and correct copy of Plaintiff's operative 11 Complaint. 12 4 Attached hereto as Exhibit “C” is a true and correct copy of Plaintiff's Special 13 Interrogatories Set One. 14 5. Attached hereto as Exhibit “D” is a true and correct copy of Defendant’s 15 Responses to Special Interrogatories Set One. 16 6 Attached hereto as Exhibit “E” is a true and correct copy of Plaintiff's November 17 4, 2020 Meet and Confer Letter. 18 7 Attached hereto as Exhibit “F” is a true and correct copy of Defendant’s January 19 8, 2021 response to Plaintiff's Meet and Confer Letter. 20 II. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND 21 8 On August 3, 2020, Plaintiff filed this wage and hour class and representative 22 PAGA action, asserting eight causes of action for Defendant’s violations of various California 23 Labor Codes and a ninth cause of action for Defendant’s violation of PAGA. 24 9 On October 2, 2020, Plaintiff served Defendant with Special Interrogatories, Set 25 One, containing two interrogatories. Plaintiff's interrogatories sought the identification of all 26 class members and aggrieved employees. 27 10. On November 3, 2020, Defendant served Plaintiff with its inadequate objection- 28 only responses and equally unavailing boilerplate general and specific objections. 2 DECLARATION 11. On November 4, 2020, Plaintiffs counsel served Defendant a formal meet and confer letter addressing Defendant’s objections. Importantly, Plaintiff counsel’s good faith efforts to meet and confer included an agreement to enter into Belair-West Landscape, Inc. v. Superior Court, (2007) 149 Cal.App.4th 554, type notice. Although not required, the so-called Belaire-West type notice addresses minimal privacy concerns of aggrieved employees by providing the aggrieved employees with written notice and opportunity to opt-out of the information disclosure. In furtherance of the good faith effort, Plaintiff's counsel attached a proposed, Belair-West notice for Defendant’s review, comment and consideration by November 11, 2020. 10 12. On December 16, 2020, counsel for the parties telephonically met and conferred. 11 During the call, the parties discussed the Defendant’s improper objections and inadequate 12 discovery response. Unfortunately, the parties were stuck at an impasse and could not reach an 13 agreement to resolve the present discovery dispute. However, Plaintiff's counsel was willing to 14 provide Defendant’s counsel with more time to serve a formal response to Plaintiff's meet and 15 confer letter. 16 13. On January 4, 2021, Plaintiffs counsel again implored Defendant in writing to 17 provide a formal written response to Plaintiff's meet and confer letter. Id. In response, 18 Defendant stated it would provide said response within a couple days’ time. 19 14. Thereafter, on January 8, 2021, Defendant provided its written response to 20 Plaintiff's meet and confer letter. However, Defendant’s correspondence fails to provide even a 21 modicum of support for its claim that producing the requested discovery would impose a burden 22 on Defendant. Rather, Defendant’s position rests on arbitrary concerns regarding burden and not 23 concrete examples of the number of manhours it would take to produce the discovery. 24 Moreover, in response to Plaintiffs offer of a Belaire-West procedure to alleviate any privacy 25 concems — the procedure customarily used in wage and hour actions such as this one — 26 Defendant merely states that such process is “not appropriate in this matter...pending 27 [Defendant’s] pending demurrer.” Simply put, Defendant is attempting to unilaterally impose a 28 3 DECLARATION stay on discovery because of its pending Demurrer. However, to date, Defendant has not cited any authority in support of its position. TIL. PLAINTIFF’S REQUEST FOR SANCTIONS 15. Plaintiff Counsel’s regular hourly billing rates range between $350 and$550. Plaintiff Counsel’s hourly billing rates have been approved in various courts throughout California, including the San Diego Superior Court in the matter entitled Shachno v. KT Hotels, LLC, et al., San Diego Superior Court Case No. 37-2018-00043601. 16. As of January 12, 2021, Plaintiff Counsel spent a total of 13.8 hours bringing this motion, comprised of 4.5 hours for legal research and 9.3 hours drafting, revising, editing and 10 filing the Notice of Motion, Memorandum of Points and Authorities, this Declaration, Separate 11 Statement and Proposed Order. Thus, at the time of filing Plaintiffs moving papers, Plaintiff's 12 Counsel incurred $5,550 in legal fees bringing this motion. 13 17. Moreover, Plaintiff's Counsel expects to spend another 7 hours drafting a reply 14 brief and attending a hearing on this motion. If accurate, Plaintiff’s Counsel will spend a total 15 of 20.8 hours in bringing this motion, exclusive of filing fees and surcharges. On reply, 16 Plaintiff’s Counsel will supplement this Declaration documenting additional time spent on reply 17 and attaching invoices for filing fees. 18 18. Defendant’s conduct here warrants sanctions. Rather than fully complying with a 19 proper discovery request, Defendant engaged in delay tactics to gain an unfair litigation 20 advantage at the expense of prejudicing the class members and aggrieved employees. 21 Defendant asserted numerous boilerplate and unfounded objections. In fact, Defendant cannot 22 point to single meritorious objection. Moreover, Plaintiff’s Counsel gave Defendant and its 23 counsel ample opportunity to change course and comply with its discovery obligations. 24 Defendant pursued this path even in the face of clear precedent against it. Defendant’s conduct 25 is just a bad faith attempt to delay the effective prosecution of this matter. Defendant’s 26 stonewalling is precisely the type of conduct a sanctions order is intended to dissuade. 27 III 28 4 DECLARATION 1 Ill. PLAINTIFF’S COUNSEL COMPLIED WITH CRC 3.1345(b) 2 19. Pursuant to California Rules of Court, Rule 3.1345(b), “Any motion involving the 3 content of a discovery request or the responses to such a request must be accompanied by a 4 separate statement.” A separate statement of discovery in dispute is filed concurrently herewith. 5 I declare under the penalty of perjury under the laws of the State of California that 6 |the foregoing is true and correct. Executed this 12" day of January 2021, at San Diego, 7 | California. ZAKAY LAW GROUP, APLC 8 9 By: a. - 10 Jack! om Attomey for Plaintiff 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 DECLARATION EXHIBIT A shani@zakaylaw.com May 27, 2020 Labor & Workforce Development Agency CALIFORNIA VOCATIONS, INC Attn. PAGA Administrator c/o ROBERT BRUCE IRVINE 1515 Clay Street, Ste. 801 1620 CYPRESS LN Oakland, CA 94612 PARADISE CA 95969 PAGA @dir.ca.gov Via Online Submission Re: Notice of Violations of California Labor Code Sections §§ 201, 201.3, 202, 203, 204, 210, 218.5, 218.6, 226, 226.3, 226.7, 510, 512, 558, 1174(d), 1174.5, 1194, 1197, 1197.1, 1198, 1199, 2802 and Applicable Industrial Welfare Commission Wage Orders Dear Sir/ Madam: This office represents Thomas Haven (“Plaintiff”) and other aggrieved employees in an action against California Vocations, Inc. (“Defendant”). This office intends to file the enclosed Complaint on behalf of Plaintiff and other similarly situated employees. The purpose of this correspondence is to provide the Labor and Workforce Development Agency with notice of alleged violations of the California Labor Code and certain facts and theories in support of the alleged violations in accordance with Labor Code section 2699.3. Plaintiff was employed by Defendant in California from August 2016 to November 2019. Plaintiff was paid on an hourly basis and entitled to minimum wages, overtime wages, and legally required meal and rest periods. At all times during his employment, Defendant failed to, among other things, provide Plaintiff, and all those similarly situated, with all legally mandated off-duty meal and rest periods, and with minimum and overtime wages for all time worked. Defendant further failed to properly calculate and pay Plaintiff and others similarly situated the correct regular rate for purposes of overtime and for purposes of sick time. Defendant also failed to reimburse Plaintiff for the use of his personal cell phone. As a consequence, Plaintiff contends that Defendant failed to fully compensate him, and other similarly situated and aggrieved employees, for all earned wages and failed to provide accurate wage statements. Accordingly, Plaintiff contends that Defendant’s conduct violated Labor Code sections §§ 201, 201.3, 202, 203, 204, 210, 218.5, 218.6, 226, 226.3, 226.7, 510, 512, 558, 1174(d), 1174.5, 1194, 1197, 1197.14, 1198, 1199, and applicable wage orders, Violation of the Applicable Industrial Welfare Commission Wage Order(s), and is therefore actionable under California Labor Code § 2699.3 and 2698 et seq. A copy of the proposed Complaint is attached hereto. The Complaint (i) identifies the alleged violations, (ii) details the facts and theories which support the alleged violations, (ili) details the specific work performed by Plaintiff, (iv) sets forth the people/entities, dates, ZAKAYLAW.COM 5850 Oberlin Drive, Suite 230A, San Diego, CA 92121 (619) 255-9047 classifications, violations, events, and actions which are at issue to the extent known to the Plaintiff, and (v) sets forth the illegal practices used by Defendant. Plaintiff therefore incorporates the allegations of the attached Complaint into this letter as if fully set forth herein. If the agency needs any further information, please do not hesitate to ask. The class action lawsuit consists of a class of other aggrieved employees. As class counsel, our intention is to vigorously prosecute the class wide claims as alleged in the Complaint, and to procure civil penalties as provided by the Private Attorney General Act of 2004 on behalf of Plaintiff and all aggrieved California employees and Class Members Your earliest response to this notice is appreciated. If you have any questions or concerns, please do not hesitate to contact me at the above number and address. Respectfully, Shani O. Zakay Attorney at Law ZAKAY LAW GROUP, APLC Shani O. Zakay (State Bar #277924) 5850 Oberlin Drive, Suite 230A. San Diego, CA 92121 Telephone: (619)255-9047 Facsimile: (858) 404-9203 JCL LAW FIRM, APC Jean-Claude Lapuyade (State Bar #248676) 3990 Old Town Avenue, Suite C204 San Diego, CA 92110 Telephone: (619)599-8292 Facsimile: (619) 599-8291 Attorneys for Plaintiff SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 IN AND FOR THE COUNTY OF LOS ANGELES 11 12 THOMAS HAVEN, an individual, on behalf Case No: of himself and on behalf of all persons 13 similarly situated, CLASS ACTION COMPLAINT FOR: 14 Plaintiff, 1) UNFAIR COMPETITION IN VIOLATION v OF CAL. BUS. & PROF. CODE §17200 et 15 seq; 2) FAILURE TO PAY OVERTIME WAGES 16 CALIFORNIA VOCATIONS, INC., a IN VIOLATION OF CAL. LAB. CODE §§ California Corporation; and DOES 1-50, 510, et seq; 17 Inclusive, 3) FAILURE TO PROVIDE REQUIRED MEAL PERIODS IN VIOLATION OF 18 CAL. LAB. CODE §§ 226.7 & 512 AND Defendants. THE APPLICABLE IWC WAGE ORDER; 4) FAILURE TO PROVIDE REQUIRED 19 REST PERIODS IN VIOLATION OF CAL. LAB. CODE §§ 226.7 & 512 AND THE 20 APPLICABLE IWC WAGE ORDER; 5) FAILURE TO PROVIDE ACCURATE 21 ITEMIZED STATEMENTS IN VIOLATION OF CAL. LAB. CODE § 226; 22 6) FAILURE TO REIMBURSE EMPLOYEES FOR REQUIRED EXPENSES IN 23 VIOLATION OF CAL. LAB. CODE § 2802; and 24 7) FAILURE TO PROVIDE WAGES WHEN DUE IN VIOLATION OF CAL. LAB. 25 CODE §§ 201, 202 AND 203; 8) FAILURE TO PAY MINIMUM WAGES 26 IN VIOLATION OF CAL. LAB. CODE §§ 1194, 1197, AND 1197.1 27 DEMAND FOR A JURY TRIAL 28 1 CLASS ACTION COMPLAINT Plaintiff Thomas Haven (“PLAINTIFF”), an individual, on behalf of himself and all other similarly situated current and former employees, alleges on information and belief, except for his own acts and knowledge which are based on personal knowledge, the following: PRELIMINARY ALLEGATIONS 1 Defendant California Vocations, Inc. (“DEFENDANT”) is a California corporation and at all relevant times mentioned herein conducted and continues to conduct substantial and regular business throughout California. 2. DEFENDANT provides residential and vocational support to developmentally disabled adults. 10 3 PLAINTIFF was employed by DEFENDANT in California as a non-exempt 11 employee entitled to minimum wages, overtime pay and meal and rest periods from August of 12 2016 to November of 2019. PLAINTIFF was at all times relevant mentioned herein classified 13 by DEFENDANT as a non-exempt employee paid in whole or in part on an hourly basis and 14 received additional compensation from DEFENDANT in the form of non-discretionary 15 incentive wages. 16 4 PLAINTIFF brings this Class Action on behalf of himself and a California class, 17 defined as all individuals who are or previously were employed by DEFENDANT in California 18 and classified as non-exempt employees (the “CALIFORNIA CLASS”) at any time during the 19 period beginning April 6, 2016 and ending on the date as determined by the Court (the 20 “CALIFORNIA CLASS PERIOD”). The amount in controversy for the aggregate claim of 21 CALIFORNIA CLASS Members is under five million dollars ($5,000,000.00). 22 5 PLAINTIFF brings this Class Action on behalf of himself and a CALIFORNIA 23 CLASS in order to fully compensate the CALIFORNIA CLASS for their losses incurred during 24 the CALIFORNIA CLASS PERIOD caused by DEFENDANT’s uniform policy and practice 25 which failed to lawfully compensate these employees for all their time worked, including 26 overtime. DEFENDANT’s uniform policy and practice alleged herein is an unlawful, unfair and 27 deceptive business practice whereby DEFENDANT retained and continues to retain wages due 28 to PLAINTIFF and the other members of the CALIFORNIA CLASS. PLAINTIFF and the other 2 CLASS ACTION COMPLAINT members of the CALIFORNIA CLASS seek an injunction enjoining such conduct by DEFENDANT in the future, relief for the named PLAINTIFF and the other members of the CALIFORNIA CLASS who have been economically injured by DEFENDANT’s past and current unlawful conduct, and all other appropriate legal and equitable relief. 6. The true names and capacities, whether individual, corporate, subsidiary, partnership, associate or otherwise of defendants DOES 1 through 50, inclusive, are presently unknown to PLAINTIFF who therefore sues these Defendants by such fictitious names pursuant to Cal. Civ. Proc. Code § 474. PLAINTIFF will seek leave to amend this Complaint to allege the true names and capacities of Does | through 50, inclusive, when they are ascertained. 10 PLAINTIFF is informed and believes, and based upon that information and belief alleges, that 11 the Defendants named in this Complaint, including DOES 1 through 50, inclusive, are 12 responsible in some manner for one or more of the events and happenings that proximately 13 caused the injuries and damages hereinafter alleged 14 7 The agents, servants and/or employees of the Defendants and each of them acting 15 on behalf of the Defendants acted within the course and scope of his, her or its authority as the 16 agent, servant and/or employee of the Defendants, and personally participated in the conduct 17 alleged herein on behalf of the Defendants with respect to the conduct alleged herein. 18 Consequently, the acts of each Defendant are legally attributable to the other Defendants and all 19 Defendants are jointly and severally liable to PLAINTIFF and the other members of the 20 CALIFORNIA CLASS, for the loss sustained as a proximate result of the conduct of the 21 Defendants’ agents, servants and/or employees 22 THE CONDUCT 23 8 During the CALIFORNIA CLASS PERIOD, DEFENDANT failed and continues 24 to fail to accurately calculate and pay PLAINTIFF and the other members of the CALIFORNIA 25 CLASS for their overtime worked. DEFENDANT unlawfully and unilaterally failed to 26 accurately calculate wages for overtime worked by PLAINTIFFS and other members of the 27 CALIFORNIA CLASS in order to avoid paying these employees the correct overtime 28 compensation. As a result, PLAINTIFF and the other members of the CALIFORNIA CLASS CLASS ACTION COMPLAINT forfeited wages due them for working overtime without compensation at the correct overtime rates. DEFENDANT’s uniform policy and practice to not pay the members of the CALIFORNIA CLASS the correct overtime rate for all overtime worked in accordance with applicable law is evidenced by DEFENDANT’s business records. 9 State law provides that employees must be paid overtime at one-and-one- halftimes their “regular rate of pay.” PLAINTIFF and other CALIFORNIA CLASS Members were compensated at an hourly rate plus incentive pay that was tied to specific elements of an employee’s performance. 10. The second component of PLAINTIFF’s and other CALIFORNIA CLASS 10 Members’ compensation was DEFENDANT’s non-discretionary incentive program that paid 11 PLAINTIFF and other CALIFORNIA CLASS Members incentive wages based on their 12 performance for DEFENDANT. The non-discretionary incentive program provided all 13 employees paid on an hourly basis with incentive compensation when the employees met the 14 various performance goals set by DEFENDANT. However, when calculating the regular rate of 15 pay in order to pay overtime to PLAINTIFF and other CALIFORNIA CLASS Members, 16 DEFENDANT failed to include the incentive compensation as part of the employees > «6, regular 17 rate of pay” for purposes of calculating overtime pay. Management and supervisors described 18 the incentive program to potential and new employees as part of the compensation package. As 19 a matter of law, the incentive compensation received by PLAINTIFF and other CALIFORNIA 20 CLASS Members must be included in the “regular rate of pay.” The failure to do so has resulted 21 in a systematic underpayment of overtime compensation to PLAINTIFF and other 22 CALIFORNIA CLASS Members by DEFENDANT. 23 11. In violation of the applicable sections of the California Labor Code and the 24 requirements of the Industrial Welfare Commission ("IWC") Wage Order, DEFENDANT as a 25 matter of company policy, practice and procedure, intentionally and knowingly failed to 26 compensate PLAINTIFF and the other members of the CALIFORNIA CLASS at the correct 27 rate of pay for all overtime worked. This uniform policy and practice of DEFENDANT is 28 intended to purposefully avoid the payment of the correct overtime compensation as required by 4 CLASS ACTION COMPLAINT California law which allowed DEFENDANT to illegally profit and gain an unfair advantage over competitors who complied with the law. To the extent equitable tolling operates to toll claims by the CALIFORNIA CLASS against DEFENDANT, the CALIFORNIA CLASS PERIOD should be adjusted accordingly. 12. As a result of their rigorous work schedules, PLAINTIFF and other CALIFORNIA CLASS Members were also from time to time unable to take off duty meal breaks and were not fully relieved of duty for meal periods. PLAINTIFF and other CALIFORNIA CLASS Members were required to perform work as ordered by DEFENDANT for more than five (5) hours during a shift without receiving an off-duty meal break. 10 Occasionally, PLAINTIFF and other CALIFORNIA CLASS Members had to work through 11 what was supposed to be their off-the-clock meal break. Further, DEFENDANT failed to 12 provide PLAINTIFF and CALIFORNIA CLASS Members with a second off-duty meal period 13 each workday in which these employees were required by DEFENDANT to work ten (10) hours 14 of work. PLAINTIFF and the other CALIFORNIA CLASS Members therefore forfeited meal 15 breaks without additional compensation and in accordance with DEFENDANT’s strict 16 corporate policy and practice 17 13. During the CALIFORNIA CLASS PERIOD, from time to time, PLAINTIFF and 18 other CALIFORNIA CLASS Members were also required to work in excess of four (4) hours 19 without being provided ten (10) minute rest periods. Further, these employees were denied their 20 first rest periods of at least ten (10) minutes for some shifts worked of at least two (2) to four (4) 21 hours, a first and second rest period of at least ten (10) minutes for some shifts worked of 22 between six (6) and eight (8) hours, and a first, second and third rest period of at least ten (10) 23 minutes for some shifts worked of ten (10) hours or more. PLAINTIFF and other 24 CALIFORNIA CLASS Members were also not provided with one hour wages in lieu thereof. 25 As a result of their rigorous work schedules, PLAINTIFF and other CALIFORNIA CLASS 26 Members were periodically denied their proper rest periods by DEFENDANT and 27 DEFENDANT’s managers. 28 5 CLASS ACTION COMPLAINT 14. DEFENDANT as a matter of corporate policy, practice and procedure, intentionally, knowingly and systematically failed to reimburse and indemnify the PLAINTIFF and the other CALIFORNIA CLASS Members for required business expenses incurred by the PLAINTIFF and other CALIFORNIA CLASS Members in direct consequence of discharging their duties on behalf of DEFENDANT. Under California Labor Code Section 2802, employers are required to indemnify employees for all expenses incurred in the course and scope of their employment. Cal. Lab. Code § 2802 expressly states that "an employer shall indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of 10 the employer, even though unlawful, unless the employee, at the time of obeying the directions, 11 believed them to be unlawful." 12 15. In the course of their employment, PLAINTIFF and other CALIFORNIA 13 CLASS Members as a business expense, were required by DEFENDANT to use their own 14 personal cellular phones as a result of and in furtherance of their job duties as employees for 15 DEFENDANT but were not reimbursed or indemnified by DEFENDANT for the cost 16 associated with the use of their personal cellular phones for DEFENDANT’s benefit. 17 Specifically, PLAINTIFF and other CALIFORNIA CLASS Members were required by 18 DEFENDANT to use their personal cell phones to for work related issues. As a result, in the 19 course of their employment with DEFENDANT the PLAINTIFF and other members of the 20 CALIFORNIA CLASS incurred unreimbursed business expenses which included, but were not 21 limited to, costs related to the use of their personal cellular phones all on behalf of and for the 22 benefit of DEFENDANT. 23 16. When PLAINTIFF and other CALIFORNIA CLASS Members worked overtime 24 in the same pay period they earned incentive wages and/or missed meal and rest breaks, 25 DEFENDANT also failed to provide PLAINTIFF and the other members of the CALIFORNIA 26 CLASS with complete and accurate wage statements which failed to show, among other things, 27 the correct overtime rate for overtime worked, including, work performed in excess of eight (8) 28 hours in a workday and/or forty (40) hours in any workweek, and the correct penalty payments 6 CLASS ACTION COMPLAINT or missed meal and rest periods. Cal. Lab. Code § 226 provides that every employer shall furnish each of his or her employees with an accurate itemized wage statement in writing showing, among other things, gross wages earned and all applicable hourly rates in effect during the pay period and the corresponding amount of time worked at each hourly rate. Aside, from the violations listed above in this paragraph, DEFENDANT failed to issue to PLAINTIFF an itemized wage statement that lists all the requirements under California Labor Code 226 et seq. As a result, from time to time DEFENDANT provided PLAINTIFF and the other members of the CALIFORNIA CLASS with wage statements which violated Cal. Lab. Code § 226. 17. By reason of this uniform conduct applicable to PLAINTIFF and _ all 10 CALIFORNIA CLASS Members, DEFENDANT committed acts of unfair competition in 11 violation of the California Unfair Competition Law, Cal. Bus. & Prof. Code §§ 17200, et 12 seq.(the “UCL”), by engaging in a company-wide policy and procedure which failed to 13 accurately calculate and record the correct overtime rate for the overtime worked by 14 PLAINTIFF and other CALIFORNIA CLASS Members. The proper calculation of these 15 employees’ overtime hour rates is the DEFENDANT’s burden. As a result of DEFENDANT’s 16 intentional disregard of the obligation to meet this burden, DEFENDANT failed to properly 17 calculate and/or pay all required overtime compensation for work performed by the members of 18 the CALIFORNIA CLASS and violated the California Labor Code and regulations promulgated 19 thereunder as herein alleged. 20 18. Specifically as to PLAINTIFF’S pay, DEFENDANT provided compensation to 21 him in the form of two components. One component of PLAINTIFF’S compensation was a base 22 hourly wage. The second component of PLAINTIFF’S compensation were non-discretionary 23 incentive wages. DEFENDANT paid the incentive wages, so long as PLAINTIFF met certain 24 predefined performance requirements. PLAINTIFF met DEFENDANT’s predefined eligibility 25 performance requirements in various pay periods throughout his employment with 26 DEFENDANT and DEFENDANT paid PLAINTIFF the incentive wages. During these pay 27 periods in which PLAINTIFF was_ paid the non-discretionary incentive wages by 28 DEFENDANT, PLAINTIFF also worked overtime for DEFENDANT, but DEFENDANT never 7 CLASS ACTION COMPLAINT included the incentive compensation in PLAINTIFF’S regular rate of pay for the purposes of calculating what should have been PLAINTIFF’S accurate overtime rate and thereby underpaid PLAINTIFF for overtime worked throughout her employment with DEFENDANT. The incentive compensation paid by DEFENDANT constituted wages within the meaning of the California Labor Code and thereby should have been part of PLAINTIFF’S “regular rate of pay.” PLAINTIFF was also from time to time unable to take off duty meal and rest breaks and was not fully relieved of duty for his meal periods, resulting in off-the-clock work and unpaid minimum wages. PLAINTIFF was required to perform work as ordered by DEFENDANT for more than five (5) hours during a shift without receiving an off-duty meal break. Further, 10 DEFENDANT failed to provide PLAINTIFF with a second off-duty meal period each workday 11 in which he was required by DEFENDANT to work ten (10) hours of work. PLAINTIFF 12 therefore forfeited meal and rest breaks without additional compensation and in accordance with 13 DEFENDANT?’s strict corporate policy and practice. DEFENDANT also provided PLAINTIFF 14 with a paystub that failed to accurately display PLAINTIFF’S correct rates of overtime pay and 15 payments for missed meal and rest periods for certain pay periods in violation of Cal. Lab. Code 16 § 226(a). To date, DEFENDANT has not fully paid PLAINTIFF the overtime compensation still 17 owed to them or any penalty wages owed to them under Cal. Lab. Code § 203. The amount in 18 controversy for PLAINTIFF individually does not exceed the sum or value of $75,000. 19 JURISDICTION AND VENUE 20 19. This Court has jurisdiction over this Action pursuant to California Code of Civil 21 Procedure, Section 410.10 and California Business & Professions Code, Section 17203. This 22 action is brought as a Class Action on behalf of PLAINTIFF and similarly situated employees 23 of DEFENDANT pursuant to Cal. Code of Civ. Proc. § 382. 24 20. Venue is proper in this Court pursuant to California Code of Civil Procedure, 25 Sections 395 and 395.5, because DEFENDANT (i) currently maintains and at all relevant times 26 maintained offices and facilities in this County and/or conducts substantial business in this 27 County, and (ii) committed the wrongful conduct herein alleged in this County against members 28 of the CALIFORNIA CLASS and CALIFORNIA LABOR SUB-CLASS 8 CLASS ACTION COMPLAINT THE CALIFORNIA CLASS 21. PLAINTIFF brings the First Cause of Action for Unfair, Unlawful and Deceptive Business Practices pursuant to Cal. Bus. & Prof. Code §§ 17200, et seq. (the "UCL") as a Class Action, pursuant to Cal. Code of Civ. Proc. § 382, on behalf ofa California class, defined as all individuals who are or previously were employed by DEFENDANT in California and classified as non-exempt employees (the “CALIFORNIA CLASS”) at any time during the period beginning April 6, 2016 and ending on the date as determined by the Court (the “CALIFORNIA CLASS PERIOD”). The amount in controversy for the aggregate claim of CALIFORNIA CLASS Members is under five million dollars ($5,000,000.00). 10 22. To the extent equitable tolling operates to toll claims by the CALIFORNIA 11 CLASS against DEFENDANT, the CALIFORNIA CLASS PERIOD should be adjusted 12 accordingly. 13 23. The California Legislature has commanded that “all wages. earned by any 14 person in any employment are due and payable twice during each calendar month, on days 15 designated in advance by the employer as the regular paydays”, and further that “[a]ny work in 16 excess of eight hours in one workday and any work in excess of 40 hours in any one workweek . 17 . . Shall be compensated at the rate of no less than one and one-half times the regular rate of pay 18 for an employee.” (Lab. Code § 204 and § 510(a).) The Industrial Welfare Commission (IWC), 19 however, is statutorily authorized to “establish exemptions from the requirement that an 20 overtime rate of compensation be paid for executive, administrative, and professional 21 employees, provided [inter alia] that the employee is primarily engaged in duties that meet the 22 test of the exemption, [and] customarily and regularly exercises discretion and independent 23 judgment in performing those duties...” (Lab. Code § 510(a).) Neither the PLAINTIFF nor the 24 other members of the CALIFORNIA CLASS and/or the CALIFORNIALABOR SUB-CLASS 25 qualify for exemption from the above requirements. 26 24. DEFENDANT, as a matter of company policy, practice and procedure, and in 27 violation of the applicable Labor Code, Industrial Welfare Commission (“IWC”) Wage Order 28 requirements, and the applicable provisions of California law, intentionally, knowingly, and CLASS ACTION COMPLAINT willfully, engaged in a practice whereby DEFENDANT systematically failed to correctly calculate and record overtime compensation for overtime worked by PLAINTIFF and the other members of the CALIFORNIA CLASS, even though DEFENDANT enjoyed the benefit of this work, required employees to perform this work and permitted or suffered to permit this overtime work. 25. DEFENDANT has the legal burden to establish that each and every CALIFORNIA CLASS Member is paid the applicable rate for all overtime worked and to accurately calculate the “regular rate of pay” by including the incentive compensation that PLAINTIFF and members of the CALIFORNIA CLASS were awarded by DEFENDANT. 10 DEFENDANT, however, as a matter of uniform and systematic policy and procedure failed to 11 have in place during the CALIFORNIA CLASS PERIOD and still fails to have in place a policy 12 or practice to ensure that each and every CALIFORNIA CLASS Member is paid the applicable 13 overtime rate for all overtime worked, so as to satisfy their burden. This common business 14 practice applicable to each and every CALIFORNIA CLASS Member can be adjudicated on a 15 class-wide basis as unlawful, unfair, and/or deceptive under Cal. Business & Professions 16 Code§§ 17200, et seq. (the “UCL”) as causation, damages, and reliance are not elements of this 17 claim. 18 26. At no time during the CALIFORNIA CLASS PERIOD was the compensation for 19 any member of the CALIFORNIA CLASS properly recalculated so as to compensate the 20 employee for all overtime worked at the applicable rate, as required by California Labor Code 21 §§ 204 and 510, et seq. At no time during the CALIFORNIA CLASS PERIOD was the 22 overtime compensation for any member of the CALIFORNIA CLASS properly recalculated so 23 as to include all earnings in the overtime compensation calculation as required by California 24 Labor Code §§ 510, et seq. 25 27. The CALIFONRIA CLASS is so numerous that joinder of all CALIFORNIA 26 CLASS Members is impracticable. 27 28. DEFENDANT uniformly violated the rights of the CALIFORNIA CLASS under 28 California law by: 10 CLASS ACTION COMPLAINT a. Violating the California Unfair Competition Laws, Cal. Bus. & Prof. Code §§ 17200, et seqg., by unlawfully, unfairly and/or deceptively