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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
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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
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Attomeys for Plaintiff
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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INAND FOR THE COUNTY OF BUITE
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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
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SANCTIONS
21 Defendants.
Date: February 10, 2021
22 Time: 9:00 am.
23 Judge: Hon. Stephen E. Benson
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Dept.: 6
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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.
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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
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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
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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
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9 By: a. -
10 Jack! om
Attomey for Plaintiff
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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
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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
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DEMAND FOR A JURY TRIAL
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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.
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3 PLAINTIFF was employed by DEFENDANT in California as a non-exempt
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employee entitled to minimum wages, overtime pay and meal and rest periods from August of
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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
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8 During the CALIFORNIA CLASS PERIOD, DEFENDANT failed and continues
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to fail to accurately calculate and pay PLAINTIFF and the other members of the CALIFORNIA
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CLASS for their overtime worked. DEFENDANT unlawfully and unilaterally failed to
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accurately calculate wages for overtime worked by PLAINTIFFS and other members of the
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CALIFORNIA CLASS in order to avoid paying these employees the correct overtime
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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
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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.
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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
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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
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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
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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).
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22. To the extent equitable tolling operates to toll claims by the CALIFORNIA
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CLASS against DEFENDANT, the CALIFORNIA CLASS PERIOD should be adjusted
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accordingly.
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23. The California Legislature has commanded that “all wages. earned by any
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person in any employment are due and payable twice during each calendar month, on days
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designated in advance by the employer as the regular paydays”, and further that “[a]ny work in
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excess of eight hours in one workday and any work in excess of 40 hours in any one workweek .
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. . Shall be compensated at the rate of no less than one and one-half times the regular rate of pay
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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