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UH 10/22/201 9
By
GREGG A. FISCH, Cal.
gfisch@sheppardmullin.com
Bar N0. 214486 gmgfl
Y. DOUGLAS YANG, Cal. Bar No. 307550
dyang@sheppardmullin.com
MICHAELA GOLDSTEIN, Cal. Bar No. 3 1 6455
mgoldstein@sheppardmullin.com
1901 Avenue of the Stars, Suite 1600
Los Angeles, California 90067-6055
Telephone: 3 10.228.3700
Facsimile: 310.228.3701
Attorneys for Defendant
MOBILEONE, LLC
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN MATEO
10 COMPLEX CIVIL LITIGATION
11 In re MOBILEONE WAGE AND HOUR Judicial Council Coordination Proceedings
CASES, N0. JCCP 5039
12
Coordinated Proceeding Special Title (CRC Assigned For A11 Purposes T0 The Honorable
13 Rule 3.550) Marie S. Weiner, Department 2
14 APPENDIX OF EVIDENCE IN SUPPORT
OF DEFENDANT MOBILEONE, LLC’S
15 MOTION FOR C.C.P. §437c(t) SUMMARY
ADJUDICATION OF LEGAL ISSUES
16
[Filed concurrently with Notice ofMotion and
17 Motion; Memorandum ofPoints and
Authorities; Separate Statement 0f Undisputed
18 Facts; and [Proposed] Order]
19 Hearing date: December 16, 2019
Time: 10:00 am.
20 Location: 400 County Center
Redwood City, CA 94063, Department 2.
21
Consolidated Complaint Filed: Sept. 6, 2019
22 Kiki Chess Complaint Filed: May 30, 2018
Vivian Ly Complaint Filed: October 19, 2018
23
24
25
26
27
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SMRHr4836-8954-00102 APPENDIX OF EVIDENCE ISO DEFENDANT MOBILEONE, LLC’S MOTION FOR C.C.P.
§437c(t) SUMMARY ADJUDICATION OF LEGAL ISSUES
Defendant MobileOne, LLC respectfully submits the following Appendix 0f Evidence in
support of its Motion for California Code of Civil Procedure Section 437c(t) Summary
Adjudication of Legal Issues.
Dated: October 22, 2019
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By ‘W/ '
7
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SHEPPARD MULLIN RICHTER & HAMPTON
GREGG A. FISCH
Y. DOUGLAS YANG
LLP
MICHAELA GOLDSTEIN
Attorneys for Defendant
MOBILEONE, LLC
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SMRHI4836-8954-0010-2 APPENDIX 0F EVIDENCE ISO DEFENDANT MOBILEONE, LLC’S MOTION FOR C.C.P.
§437c(t) SUMMARY ADIUDICATION OF LEGAL ISSUES
TABLE OF CONTENTS
Joint Stipulation re Facts for Defendant MobileOne, LLC’s Motion for C.C.P. §437c(t)
Summary Adjudication 0f Legal Issues 1
........................................................................
Exhibit A: First Amended Complaint re Cannon ..........................................................
9
Exhibit B: Order and Judgment Granting Final Approval 0f Class Action Settlement
re Cannon 26
....................................................................................................................
Exhibit C: Settlement Agreement re Cannon .............................................................. 30
Exhibit D: Motion for Preliminary Approval 0f Class Action Settlement re
10 Cannon 58
........................................................................................................................
11 Exhibit E: Minute Order Granting Motion for Preliminary Approval of Class Action
12 Settlement re Cannon .................................................................................................. 85
13 Exhibit F: Order and Judgment Granting Preliminary Approval of Class Action
14 Settlement re Cannon .................................................................................................. 87
15 Exhibit G: Motion for Final Approval of Class Action Settlement re Cannon ........... 92
16 Exhibit H: Minute Order Granting Motion for Final Approval of Class Action
17 Settlement re Cannon ................................................................................................
117
18 Exhibit I:Notice Packet Sent t0 Plaintiff Kiki Chess 120
...............................................
19 Exhibit J :Reminder Postcard Sent to Plaintiff Kiki Chess 128
.......................................
20
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22
23
24
25
26
27
28
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SMRH:4836—8954-0010.2 APPENDIX OF EVIDENCE ISO DEFENDANT MOBILEONE, LLC’S MOTION FOR C.C.P.
§437c(t) SUMMARY ADJUDICATION OF LEGAL ISSUES
Shaun Setareh (SEN 2045 14)
Shaun@sctarehlaw.com
William M. Pan (SBN 219846)
willim@setarehlaw.com
Alexandra R. McIntosh (SBN 320004)
alex@setarehlaw.com
SETAREH LAW GROUP
31S S. Beverly Drive, Suite 3 15
Beverly Hills, CA 90212
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Telephone: (310) 883—7771
Facsimile: (3 10) 888-01 09
Attorneys for Plaintiff
KIKI CHESS
GREGG A. FISCH, Cal. Bar Nu. 2 14486
gfisch@sheppardmuflin.com
Y. DOUGLAS YANG, Cal. Bar No. 307550
dyang@sheppardmullin.com
MICHAELA GOLDSTEIN, Cal. Bar No. 3 1 6455
mgoldstein@5heppardmullin.cnm
1901 Avenue of the Stars, Suite 1600
L03 Angeles, California 90067-6055
Telephnne: 310.228.3700
Facsimile: 310.228.3?D]
Attorneys for Defendant
MOBILEONE, LLC
Additional comma! listed anfaflawingpage.
SUPERIOR COURT 0F THE STATE OF CALIFORNIA
COUNTY OF SAN MATEO
mumuhmmwog'fiiaazafi:a
COMPLEX CIVIL LITIGATION
In re MOBILEONE WAGE AND HOUR Judicial Council Coordination Proceedings
CASES, No. JCCP 5039
Coordinated Proceeding Special Title (CBC Assigned For All Purposes To The: Honorable
Rule 3.550) Marie S. Weiner, Department 2
JOINT STIPULATIUN RE FACTS FOR
DEFENDANT’S RULE 437c(t) MOTION
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RELATED T0 THE
ACTION SETTLEMENT
WON CLASS
Complaint Filed: May 30, 201 8
Consolidated Complaint Filed:
SeDthber 6, 2019
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Shfllflzfldll-Blfid—Ilmm STIPULATED FACTS FUR DEFENDANTS RULE 43'?c(t) MUTIUN
DAVID YEREMIAN & ASSOCIATES, INC.
David Yeremian (SBN 226337)
david@yeremianlaw.com
Roman Shkodnik (SBN 285 152)
roman@yeremia.nlaw.com
535 N. Brand Blvd, Suite 705
Glendale, California 91203
Telephone: (818) 230-8380
Facsimile: (8] 8) 230-0308
WOO'QONUI-hLAB-JH
UNITED EMPLOYEES LAW GROUP, PC
Walter Haines (SBN 7 1075)
whaines@eulglaw.com
5500 Bolsa Ave., Suite 201
Huntington Beach, CA 92649
Telephone: (3 10) 652-2242
Attorneys for Plaintifi‘ VIVIAN LY
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W4841-8154-4970-1 STIPULATED FACTS FOR DEFENDANT‘S RULE 437c(t) MOTION
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PlaintifiKiki Chess (“Plaintifi‘ Chess”) and Plaintifl‘ Vivian Ly (“Plainfifl' Ly”)
[Q (collectively, “Plaintifl's”), and Defendant MobileOne, LLC (“Defendant” or “MobileOne,”
{A collectively with Plaintifl's, the “Parties? hereby jointly submit the following proposed stipulated
é.
facts for Defendant’s Rule 43 7c(t) Motion related to the Cannon class action settlement.
UT
FACT 1: A lawsuit entitled Maxthew Maurice Cannon, et all, v.MobileOne LLC (hereafier
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referenced as “Cannon”) was filed on May 13, 201 5, in the Sacramento Superior Court of’
NI
Califomia, assigned Case No. 34-2015—00179159-CU-0E-GDS and assigned to Judge
a David Brown.
\D FACT 2: On February 3, 201 6, the First Amended Complaint, which was the operative
complaint, in Cannon was filed. A true and conect copy of the First Amended Complaint
in Cannon is attached hereto as Exhibit A.
FACT 3: Cannon was settled on a class-wide basis.
FACT 4: The Court approved the class-wide settlement in Cannon. A true and correct
copy of the Court’s Order and Judgment Granting Final Approval of Class Action
Settlement in Cannon is attached hereto as Exhibit B.
FACT 5: In the Court’s Order, granting final approval ofthe class settlement in Cannon,
the class was defined as follows: “all non—exampt employees employed by MobileOne at
any time fi'om May l3, 201 1, to July 31, 2015, who worked for Dcfcndam within the Stale
ofCalifomia.” Each such individual within that class definition was considered a “Class
Member.” See Exhibit B (Order and Judgment Granting Final Approval in Cannon).
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FACT 6: The settlement agreement in Cannon, as approved by the Court, stated that the
settlement would constitutc a “full and complete settlement and release of all claims
dmcribed in Paragraph 24 oftlu's Stipulation of Settlement.” A true and correct copy of
the Cannon Stipulation of Class Settlement and Release, i.e.,the “Cannon Settlement
Agreement” is attached hereto as Exhibit C.
FACT 7: In Paragraph 24 ofthe Cannon Settlement Agreement, the Class Members
released the following claims: “any and all claims asserted in the Complaint and any other
claims that arise out ofthe same underlying factual allegations of the Complaint that
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SMRHI4841-8164-4970-1 STIPULATED FACTS FDR DEFENDANT’S RULE 43703) MOTION
I-l-
occurred during the Class Period, including claims for alleged (1) failure to pay all wages
N and overtime earned; (2) failure to provide meal periods; (3) failure to provide rest breaks;
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(4) failure to provide adequate seating; (5) failure to provide accurate itemized wage
& statements in violation of Labor Code section 226; (6) failure to timely pay wages when
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due in violation ofLabor Code sections 201, 202 and 203; (7) unfair competition in
m violation of Section 17200 of California‘s Business and Professions Code; and (8) civil
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penalties under the Private Attorneys‘ General Act of 2004 (PAGA), Labor Code sections
a 2698, et seq." See Exhibit C (Cannon Settlement Agreement).
W FACT 8: Paragraph 24 0f the Cannon Settlement Agreement further established that the
following claims also were released by the Class Members: “all claims for unpaid wages,
including, but not limited to, straight time compensation, overtime compensation, and
interest; missed meal period and rest-period wages; payment for allhours worked; wage
statements; failure to keep accurate records; failure to provide adequate seating; unfair
business practices; penalties, including, but not limited to,recordkecping penalties, wage
statement penalties, minhnum-wagc penalties, and waifing—time penalties; and attomeys’
fees and costs. The Class Released Claims include all such claima arising under the
California Labor Code (including, but not limited to, sections 201, 202, 203, 204, 210,
218.6, 22] , 225.5, 226, 226.7,. 227.3, 450, 510, Sl l, 512, 558, 1174, 1174.5, 1194, 1197,
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1197.1 , 1197.2, 1198, and 2698, ct seq.); the Wage Orders ofthe California Industrial
Welfare Commission; California Business and Professions Code section 17200, ct scq.; 'the
California common law of contract; the Fair Labor Standards Act, 29 U.S.C. § 201, ct seq;
and federal common law.” See Exhibit C (Cannon Settlement Agreement).
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FACT 9: Motion for Preliminary Approval of Class Settlement in Cannon was filed on
February 16, 201 6. A true and correct copy ofthe Motion for Preliminary Approval of
Class Action Settlement in Cannon isattached hereto as Exhibit D.
FACT 10: 011March 14, 2016, the Court granted preliminary approval of the Class
Settlement in Cannon, as well as granted conditional certification of the class, approved
the form and method of class notice, and scheduled final approval of the Class Settlement.
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SMRI'EM41-3164-49’70-1 STIPULA’IED FACTS FOR DEFENDANT’S RULE 437c(t} MOTION
A 1111c and correct copy ofthe Minute Order Granting Motion for Preliminary Approval of
Class Action Settlement in Cannon, dated March I4, 2016 is attached hereto as Exhibit E;
a true and correct copy of the Order and Judgmcnt Granting Preliminary Approval of Class
Action Settlement in Cannon is attached hereto as Exhibit F.
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FACT ll: As part of the ruling towards the grant of preliminary approval of the Class
Settlement in Cannon, the Court held that it “finds that the procedures for notifying the
Class about the settlement as described in the Stipulation provide the best notice
practicable under the circumstances and therefore meet the requirements of due process,
and directs the mailing of the Class Notice in accordance with the Settlement Agreemen .”
And, the Court also “approvc[d], as to form and content, the proposed Class Notice,
attached to the Settlement Agreement as Exhibit A.” See Exhibit F (Order and Judgment
Granting Preliminary Approval of Class Action Settlement in Cannon).
FACT 12: Motion for Final Approval of Class Settlement in Cannon was filed on May 23,
—-
2016. A true and correct copy ofthe Motion for Final Approval of Class Settlement in
Cannon is attached hereto as Exhibit G.
FACT 13: The Parties in Cannon participated in a Hearing regarding Final Appmval of
Class Settlement on June 15, 20] 6.
FACT 14: On June 15, 201 6, the Court entered a Minute Order Granting Motion for Final
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Approval of Class Action Settlement in Cannon. A true and correct copy ofthe Minuts
Order Granting Motion for Final Approval of Class Action Settlement in Cannon is
attached hereto as Exhibit H. In the Minute Order, the Court held that “Class Members
were sent the Notice of Pendency of Class Action, Proposed Settlement, Your Rights, and
Options for You to Consider ("Class Notice") via U.S. Mail, which explained the terms of
the proposed Settlement and appraised Class Members of their rights under the
Settlement.”
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FACT 15: "The Court granted final approval of the Class Settlement on July 5, 201 6.
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SMRflzml-Slfimml ‘STIPULATED FACTS FOR DEFENDANTS RULE 437c(t) MOTION
FACT 16: On July 5, 2016', Judge Brown signed the Order and Judgment Granting Final
Approval of Class Action Settlement in Cannon. See Exhibit B (Order and Judgment
Granting Final Approval in Cannon).
FACT 1‘7: The Court found that “the class members were given notice of their rights under
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the Settlement in a reasonable manner that comports with the requirements of due
process.” The Court also explained “[n]o member of the Class filed written obj actions to
the Settlement." See Exhibit B (Order and Judgment Granting Final Approval in Cannon).
FACT 18: As the Court explained in the Minute Order, “not a single Class Member opted
out.” See Exhibit H (Minute Order Granting Motion for Final Approval of Class Action
Settlement in Cannon, dated June 15, 2016).
FACT l9: The Court dismissed Cannon “on the merits with prejudice." Further, the Court
held that, “[u]pon entry of [the] Judgment and the release ofthc Settlement proceeds to the
claims administmtor in [the] case, Plaintiffs and the Class shall be deemed to have fully
and finally released all claims at issue in this lawsuit as set forth in the Settlement
Agreement.” See Exhibit B (Order and Judgment Granting Final Approval in Cannon)-
FACT 20: In Cannon, Defendants released the Settlement proceeds to the claims
administrator in the case on July 5, 2016, and the claims administrator disbursed the
Settlement fimds to the Settlement Class Members on July 8, 2016.
FACT 21: The Cannon Settlement Agreement states that all claims are released “as ofthe
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date of the Judgment” i.e.,July 5, 201 6. See Exhibit B (Order and Judgment Granting
Final Approval in Cannon); see also Exhibit C (Cannon Settlement Agreement).
Similarly, the Notice to Class Members, attached as Exhibit A to the Cannon Settlement
Agreement explains that the release applies “through the date of final approval ofthe
settlement.”
NNMMMNM FACT 22: There were 877 Class Members in Cannon, allof whom were subject to the
terms of the Cannon Settlement Agreement and released claims against MobileOne as a
result. See Exhibit H (Minute Order Granting Motion for Final Approval of Class Action
Settlement in Cannon, dated June 15, 20] 6).
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SMRHflMI-BIGHWM STPULATED FACTS FOR. DEFENDANT S RULE 43 7cm MOTION
FACT 23: Plainfifi' Chess was hired in a Retail Stafi position, classified as a non-exempt
employee, on March 23, 2015. Efl‘ective on or around June l, 201 6, Plaintifi' Chess was
promoted to an Assistant Manager position, classified as an exempt employee. Than, on or
around May 2, 2017, Plaintiff Chess was promoted to a Location Manager position, again
classified as an exempt employee.
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Plaintiif Chess's employment with MobileOne ended as
ofJune 1, 2017.
FACT 24: On April 4, 2016, Plaintiff Kiki Chess was provided notice ofthe Cannon class
action settlement to her last known address. A true and correct copy of the Notice Packet
sent to Plaintiff Kiki Chess is attached hereto as Exhibit I. Because she did not. submit a
Claim Form by April 29, 201 6, Plaintiff Chess also was sent a reminder postcard, which
Was mailed out on May 4, 2016. A true and correct copy ofthe reminder postcard sent to
Plaintiff Kiki Chess isattached hereto as Exhibit J. Plaintifi‘ Chess never responded to the
mailings; she did not submit a Claim Form, an Objection, a Request for Exclusion, or any
other documents in response.
FACT 25: Pursuant to the Settlement Agreement, “Class Members [in Cannon] who do
not ‘opt out’ shall be deemed a party to the Settlement, characterized as a Settlement Class
Member, and have agreed to a release of all claims of the Settlement Class against
MobilcOne.” See Exhibit C (Cannon Settlement Agreement).
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FACT 26: Plaintiff Kiki Chess did not submit a timely and valid Request for Exclusion
and, thus, was a Settlement Class Member in Cannon.
FACT 27: Plaintifi' Ly was hired by MobileOne in a Retail Stafi'position, and classified as
a non~exempt employee, efiective June 20, 201 7. Plaintifi' Ly continued in the same
position until her employment with MobileOne ended as of Februaty 5, 201 8. During her
MNNNMNMMM MobileOne employment, Plaintiff Ly held only that one non—exempt position, she never
served in a management role or held an Assistant Manager or Location Manager position.
FACT 28: Because ofthe timing of when she was employed with MobileO’ne, Plaintifi' Ly
was not covered by Cannon or the settlement in Cannon. And, thus, Plaintiff Ly was not a
Class Member in Cannon and did not release any claims against MobileOne as a result.
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SWNMl-SIWWOJ STH’ULATED FACTS FOR DEFENDANT’S RULE 437::(t) MOTION
o The Parties incorporate by reference the documents attached hereto as Exhibitslto this Joint
Stipulation and reserve the right to make additional factual assertions and arguments based
on these documents.
\OOOQONUI-hwtor—n
Dated: Octobelagnow SETAREH LAW GROUP
Shaun Setareh
William M. Pao
Alexandra R. McIntosh
Attorneys for Plaintiff -
1
KIKI CHESS
Dated- October_,2019 D mYEREmAN&Asso TE
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‘
David Y‘é'remian
Roman Shkodnik .
Attorneys for Plaintifi‘
VIVIAN LY
Dated: Octobergfl, 2019 SHEPPARD MULLIN RICHT/ER&HAMPT0N LLp
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mWfl Y.
GREGG A.
DOUGLAS YANG
Mu?
FISCH
MICHAELA GOLDS'IEIN
Attorneys for Defendant
MOBILEONE, LLC
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SMRH:4841-8 164-4970.] STIPULA'IED FACTS FOR DEFENDANT'S RULE 437c(t) MOTION
Exhibit A
JAMES KAWAHITO (SBN 23485 l)
KAWAHITO WESTRICK LLP ,
10474 Santa Monica Blvd., Suite 465
Los Angelcs, California 90025 OHWH
Telephone: (310) ?46-5300
A8
Facsimile: (310) 593—2520
XV:|
SAHAG MAJARAIN II (SBN 14662 l)
LAW OFFICES OF SAHAG MAJARIAN II
18250 Ventma Blvd.
\ooouaasmc-w‘tom
Tarzana, CA 91356
Telephone: (818) 609-0807
Fax No.: (81 8) 609-0892
Attorneys for Plaintiffs MATI‘HEW MAURICE
CANNON, PARISH HARRIGAN, and Class Members
SUPERIOR COURT 0F THE STATE OF CALIFORNIA
COUNTY 0F SACRAMENTO
MATTHEW MAURICE CANNON and
PARISH HARRIGAN. Individually, and on Case Number: 34-201 5-001 791 59
behalf ofother members of the general public
similarly situated,
FIRST AMENDED CLASS'ACTION
Plaintifis, COMPLAINT
vs. (l) Failure to Pay Overtime Wages in Violation
of California Labor Code §§ 510 and 1194;
"—
MOBILEONE LLC., and DOES
——
l through 10,
inclusive, (2) Failure to Pay Wages Upon Termination in
Violation of California Labor Code §§ 201 and
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Defendants. 202;
‘
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(3) Failure to ProvideProper Wage Statements
in Violation of California Labor Code § 226(a);
(4) Failure to Provide Meal and Rest Breaks
Violation of California Labor Code §§ 226.7
and 512(a)
(5) Failure to Provide Adequate Seating in
Violation ofCalifomia Labor Code § 1198;
(6)) Violation of California Business &
Professions Code §§ 17200, et seq. (Unfair or
Unlawful Business Practices)
bEMAND FOR JURY TRIAL
FIRST AMWDED CLASS ACTION COMPLAINT Exhibit A
0009
1 Plaintiffs Matthew Maurice Cannon and Parish Hattigan (collectively, ..Plaintiffsj.
2 individually, and on behalf of all other similarly situated putative class members ("Class
3 Members") allege as follows:
4 . JURISDICTION AND VENUE
5 I) This action is brought as a class action pursuant to California Code of Civil Procedure
6 § 382. The monetary damages and restitution sought by Plaintiffs exceed the minimal
7 jurisdictional limits of the Superior Court and will be established according to proof at trial.
8 2) This Court has jurisdiction over this action pursuant to California Constitution Article
9 VI, § I 0, which grants the Superior Court ..original jurisdiction in all causes except those given by
10 statute to other courts." The statutes under which this action is brought do not specify any other
11 basis for jurisdiction.
12 3) This Court has j urisdicti.on over Defendant MobileOne LLC («Defendant") because it
13 is registered to conduct business in California and has multiple retail locations in California where
14 it employs California residents. As such. it has sufficient minimum contacts in California and it
15 has intentionally availed itself of the California market so as to render the exercise ofjurisdiction
16 over it by the California courts consistent with traditional notions of fair play and substantial
17 justice.
18 4) Venue is proper in this Court because, upon information and belief, the named
19 Defendant transacts business and has stores and/or offices in this county, Defendant employea
20 Plaintiffs and other Class Members in this county, and the acts and omissions al]eged herein took
21 place in this county.
22 THE PARTIES
23 S) Plaintiffs are residents of the County of Sacramento in the State of California.
24 6) Defendant was and is, upon information and belief, an Arizona corporation with its
25 principal places of business in California, and at all times hereinafter mentioned, is an employer
26 whose employees are engaged throughout this county, the State of California, and/or the various
27 states of the United States of America.
28
FIRST AMBNDBD CL.ASS ACTION COMPLAINT Exhibit A
0010
1 7) Plaintiffs are unaware of the true names or capacities of the defendants sued herein
2 under the fictitious names DOES 1-10 (hereinafter referred to as "DOES 1-1 O" and together, with
3 Defendant MobileOne LLC, "Defendants''), but prays for leave to amend and serve such
4 fictitiously named defendants pursuant to California Code of Civil Procedure§ 474, once their
5 names and capacities become known.
6 8) Plaintiffs al'e infonned and believe, and thereon allege. that each and all of the acts and
7 omissions alleged herein were performed by, or are attributable to, Defendant and DOES 1-10,
8 each acting as the agent for the other, with legal authority to act on the other's behalf. The acts
9 were in accordance with, and represent the official policies of Defendants.
10 9) At all times herein mentioned, Defendants ratified each and every act or omission
11 complained of herein.
12 l 0) Plaintiffs are informed and believe, and thereon allege. that Defendants are in some
13 manner intentionally, negligently, or otherwise responsible for the acts, omissions, occurrences,
14 and transactions alleged herein.
15 CLASS ACTION ALLEGATIONS
16 11) Plaintiffs bring this action on their own behalf, as well as on behalf of each and all
17 other persons similarly situated, and thus, seeks class certification under California Code of Civil
18 Procedure § 382.
19 12) All claims alleged herein arise under California law for which Plaintiffs seek relief
20 authorized by California law.
21 13) The proposed SEATING class consists of and is defined as:
22 All persons who have been employed by Defendant within the relevant time
23 periods prior to the filing of this complaint until July 31, 2015 and who held or hold
24 any position classified as a non-exempt sales representative by Defenda.qt.
25 14) The proposed STRAIGHT OVERTIME class consists of and is defined as:
26 All persons who have been employed by Defendant within the relevant time
27 periods prior to the filing of this complaint until July-31, 205 and who held or hold
28
FJRST AMENDBD CLASS ACTION COMPLAINT Exhibit A
0011
I any position classified as non-exempt by Defendant and who failed to receive 1.5
2 times the regulat' rate of pay for each hour worked over eight hours in a day or forty
3 hours in a week.
4 15) The proposed AJUSTED RATE OVERTIME class consists of and is defined as:
5 All persons who have been employed by Defendant within the relevant time
6 periods prior to the filing of this complaint until July 31, 2015 and who held or hold
7 any position classified as non-exempt by Defendant and received non-discretionary
8 commission or incentive pay and worked overtime hours during that pay period.
9 16) The proposed MEAL AND REST BREAK class consists of and is defined as: All
10 persons who have been employed by Defendant within the relevant time periods prior to the filing
11 of this complaint until July 31, 2015 and who held or hold any position classified as non-exempt
12 by Defendant and who did not receive meal and rest breaks as requhed by law.
Preview
Electrunlully brfiuplnur Cour! flfialiflnllflaunfil afiln Malia UH 10/22/201 9 By GREGG A. FISCH, Cal. gfisch@sheppardmullin.com Bar N0. 214486 gmgfl Y. DOUGLAS YANG, Cal. Bar No. 307550 dyang@sheppardmullin.com MICHAELA GOLDSTEIN, Cal. Bar No. 3 1 6455 mgoldstein@sheppardmullin.com 1901 Avenue of the Stars, Suite 1600 Los Angeles, California 90067-6055 Telephone: 3 10.228.3700 Facsimile: 310.228.3701 Attorneys for Defendant MOBILEONE, LLC SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN MATEO 10 COMPLEX CIVIL LITIGATION 11 In re MOBILEONE WAGE AND HOUR Judicial Council Coordination Proceedings CASES, N0. JCCP 5039 12 Coordinated Proceeding Special Title (CRC Assigned For A11 Purposes T0 The Honorable 13 Rule 3.550) Marie S. Weiner, Department 2 14 APPENDIX OF EVIDENCE IN SUPPORT OF DEFENDANT MOBILEONE, LLC’S 15 MOTION FOR C.C.P. §437c(t) SUMMARY ADJUDICATION OF LEGAL ISSUES 16 [Filed concurrently with Notice ofMotion and 17 Motion; Memorandum ofPoints and Authorities; Separate Statement 0f Undisputed 18 Facts; and [Proposed] Order] 19 Hearing date: December 16, 2019 Time: 10:00 am. 20 Location: 400 County Center Redwood City, CA 94063, Department 2. 21 Consolidated Complaint Filed: Sept. 6, 2019 22 Kiki Chess Complaint Filed: May 30, 2018 Vivian Ly Complaint Filed: October 19, 2018 23 24 25 26 27 28 -1- SMRHr4836-8954-00102 APPENDIX OF EVIDENCE ISO DEFENDANT MOBILEONE, LLC’S MOTION FOR C.C.P. §437c(t) SUMMARY ADJUDICATION OF LEGAL ISSUES Defendant MobileOne, LLC respectfully submits the following Appendix 0f Evidence in support of its Motion for California Code of Civil Procedure Section 437c(t) Summary Adjudication of Legal Issues. Dated: October 22, 2019 \OOO‘QONLII-PUJNH By ‘W/ ' 7 &W SHEPPARD MULLIN RICHTER & HAMPTON GREGG A. FISCH Y. DOUGLAS YANG LLP MICHAELA GOLDSTEIN Attorneys for Defendant MOBILEONE, LLC NNNNNNNNNHHr—AHHHr—ay—ap—nr—l W‘JaU’I-FWNHOWWQQM-bWNHO .2- SMRHI4836-8954-0010-2 APPENDIX 0F EVIDENCE ISO DEFENDANT MOBILEONE, LLC’S MOTION FOR C.C.P. §437c(t) SUMMARY ADIUDICATION OF LEGAL ISSUES TABLE OF CONTENTS Joint Stipulation re Facts for Defendant MobileOne, LLC’s Motion for C.C.P. §437c(t) Summary Adjudication 0f Legal Issues 1 ........................................................................ Exhibit A: First Amended Complaint re Cannon .......................................................... 9 Exhibit B: Order and Judgment Granting Final Approval 0f Class Action Settlement re Cannon 26 .................................................................................................................... Exhibit C: Settlement Agreement re Cannon .............................................................. 30 Exhibit D: Motion for Preliminary Approval 0f Class Action Settlement re 10 Cannon 58 ........................................................................................................................ 11 Exhibit E: Minute Order Granting Motion for Preliminary Approval of Class Action 12 Settlement re Cannon .................................................................................................. 85 13 Exhibit F: Order and Judgment Granting Preliminary Approval of Class Action 14 Settlement re Cannon .................................................................................................. 87 15 Exhibit G: Motion for Final Approval of Class Action Settlement re Cannon ........... 92 16 Exhibit H: Minute Order Granting Motion for Final Approval of Class Action 17 Settlement re Cannon ................................................................................................ 117 18 Exhibit I:Notice Packet Sent t0 Plaintiff Kiki Chess 120 ............................................... 19 Exhibit J :Reminder Postcard Sent to Plaintiff Kiki Chess 128 ....................................... 20 21 22 23 24 25 26 27 28 -3- SMRH:4836—8954-0010.2 APPENDIX OF EVIDENCE ISO DEFENDANT MOBILEONE, LLC’S MOTION FOR C.C.P. §437c(t) SUMMARY ADJUDICATION OF LEGAL ISSUES Shaun Setareh (SEN 2045 14) Shaun@sctarehlaw.com William M. Pan (SBN 219846) willim@setarehlaw.com Alexandra R. McIntosh (SBN 320004) alex@setarehlaw.com SETAREH LAW GROUP 31S S. Beverly Drive, Suite 3 15 Beverly Hills, CA 90212 \DOOKJDNUI-hmMJ—I- Telephone: (310) 883—7771 Facsimile: (3 10) 888-01 09 Attorneys for Plaintiff KIKI CHESS GREGG A. FISCH, Cal. Bar Nu. 2 14486 gfisch@sheppardmuflin.com Y. DOUGLAS YANG, Cal. Bar No. 307550 dyang@sheppardmullin.com MICHAELA GOLDSTEIN, Cal. Bar No. 3 1 6455 mgoldstein@5heppardmullin.cnm 1901 Avenue of the Stars, Suite 1600 L03 Angeles, California 90067-6055 Telephnne: 310.228.3700 Facsimile: 310.228.3?D] Attorneys for Defendant MOBILEONE, LLC Additional comma! listed anfaflawingpage. SUPERIOR COURT 0F THE STATE OF CALIFORNIA COUNTY OF SAN MATEO mumuhmmwog'fiiaazafi:a COMPLEX CIVIL LITIGATION In re MOBILEONE WAGE AND HOUR Judicial Council Coordination Proceedings CASES, No. JCCP 5039 Coordinated Proceeding Special Title (CBC Assigned For All Purposes To The: Honorable Rule 3.550) Marie S. Weiner, Department 2 JOINT STIPULATIUN RE FACTS FOR DEFENDANT’S RULE 437c(t) MOTION mmmmmmmmm RELATED T0 THE ACTION SETTLEMENT WON CLASS Complaint Filed: May 30, 201 8 Consolidated Complaint Filed: SeDthber 6, 2019 -1- Shfllflzfldll-Blfid—Ilmm STIPULATED FACTS FUR DEFENDANTS RULE 43'?c(t) MUTIUN DAVID YEREMIAN & ASSOCIATES, INC. David Yeremian (SBN 226337) david@yeremianlaw.com Roman Shkodnik (SBN 285 152) roman@yeremia.nlaw.com 535 N. Brand Blvd, Suite 705 Glendale, California 91203 Telephone: (818) 230-8380 Facsimile: (8] 8) 230-0308 WOO'QONUI-hLAB-JH UNITED EMPLOYEES LAW GROUP, PC Walter Haines (SBN 7 1075) whaines@eulglaw.com 5500 Bolsa Ave., Suite 201 Huntington Beach, CA 92649 Telephone: (3 10) 652-2242 Attorneys for Plaintifi‘ VIVIAN LY magm¥8e~2385553535533 no NM M .2- W4841-8154-4970-1 STIPULATED FACTS FOR DEFENDANT‘S RULE 437c(t) MOTION u—n PlaintifiKiki Chess (“Plaintifi‘ Chess”) and Plaintifl‘ Vivian Ly (“Plainfifl' Ly”) [Q (collectively, “Plaintifl's”), and Defendant MobileOne, LLC (“Defendant” or “MobileOne,” {A collectively with Plaintifl's, the “Parties? hereby jointly submit the following proposed stipulated é. facts for Defendant’s Rule 43 7c(t) Motion related to the Cannon class action settlement. UT FACT 1: A lawsuit entitled Maxthew Maurice Cannon, et all, v.MobileOne LLC (hereafier 0% referenced as “Cannon”) was filed on May 13, 201 5, in the Sacramento Superior Court of’ NI Califomia, assigned Case No. 34-2015—00179159-CU-0E-GDS and assigned to Judge a David Brown. \D FACT 2: On February 3, 201 6, the First Amended Complaint, which was the operative complaint, in Cannon was filed. A true and conect copy of the First Amended Complaint in Cannon is attached hereto as Exhibit A. FACT 3: Cannon was settled on a class-wide basis. FACT 4: The Court approved the class-wide settlement in Cannon. A true and correct copy of the Court’s Order and Judgment Granting Final Approval of Class Action Settlement in Cannon is attached hereto as Exhibit B. FACT 5: In the Court’s Order, granting final approval ofthe class settlement in Cannon, the class was defined as follows: “all non—exampt employees employed by MobileOne at any time fi'om May l3, 201 1, to July 31, 2015, who worked for Dcfcndam within the Stale ofCalifomia.” Each such individual within that class definition was considered a “Class Member.” See Exhibit B (Order and Judgment Granting Final Approval in Cannon). NMNNNNNNMI—tb—IHh—I FACT 6: The settlement agreement in Cannon, as approved by the Court, stated that the settlement would constitutc a “full and complete settlement and release of all claims dmcribed in Paragraph 24 oftlu's Stipulation of Settlement.” A true and correct copy of the Cannon Stipulation of Class Settlement and Release, i.e.,the “Cannon Settlement Agreement” is attached hereto as Exhibit C. FACT 7: In Paragraph 24 ofthe Cannon Settlement Agreement, the Class Members released the following claims: “any and all claims asserted in the Complaint and any other claims that arise out ofthe same underlying factual allegations of the Complaint that -3- SMRHI4841-8164-4970-1 STIPULATED FACTS FDR DEFENDANT’S RULE 43703) MOTION I-l- occurred during the Class Period, including claims for alleged (1) failure to pay all wages N and overtime earned; (2) failure to provide meal periods; (3) failure to provide rest breaks; L03 (4) failure to provide adequate seating; (5) failure to provide accurate itemized wage & statements in violation of Labor Code section 226; (6) failure to timely pay wages when U1 due in violation ofLabor Code sections 201, 202 and 203; (7) unfair competition in m violation of Section 17200 of California‘s Business and Professions Code; and (8) civil H” penalties under the Private Attorneys‘ General Act of 2004 (PAGA), Labor Code sections a 2698, et seq." See Exhibit C (Cannon Settlement Agreement). W FACT 8: Paragraph 24 0f the Cannon Settlement Agreement further established that the following claims also were released by the Class Members: “all claims for unpaid wages, including, but not limited to, straight time compensation, overtime compensation, and interest; missed meal period and rest-period wages; payment for allhours worked; wage statements; failure to keep accurate records; failure to provide adequate seating; unfair business practices; penalties, including, but not limited to,recordkecping penalties, wage statement penalties, minhnum-wagc penalties, and waifing—time penalties; and attomeys’ fees and costs. The Class Released Claims include all such claima arising under the California Labor Code (including, but not limited to, sections 201, 202, 203, 204, 210, 218.6, 22] , 225.5, 226, 226.7,. 227.3, 450, 510, Sl l, 512, 558, 1174, 1174.5, 1194, 1197, mqmugwmucquaagmfi:5 1197.1 , 1197.2, 1198, and 2698, ct seq.); the Wage Orders ofthe California Industrial Welfare Commission; California Business and Professions Code section 17200, ct scq.; 'the California common law of contract; the Fair Labor Standards Act, 29 U.S.C. § 201, ct seq; and federal common law.” See Exhibit C (Cannon Settlement Agreement). HMNNNNNMMHHH FACT 9: Motion for Preliminary Approval of Class Settlement in Cannon was filed on February 16, 201 6. A true and correct copy ofthe Motion for Preliminary Approval of Class Action Settlement in Cannon isattached hereto as Exhibit D. FACT 10: 011March 14, 2016, the Court granted preliminary approval of the Class Settlement in Cannon, as well as granted conditional certification of the class, approved the form and method of class notice, and scheduled final approval of the Class Settlement. .4- SMRI'EM41-3164-49’70-1 STIPULA’IED FACTS FOR DEFENDANT’S RULE 437c(t} MOTION A 1111c and correct copy ofthe Minute Order Granting Motion for Preliminary Approval of Class Action Settlement in Cannon, dated March I4, 2016 is attached hereto as Exhibit E; a true and correct copy of the Order and Judgmcnt Granting Preliminary Approval of Class Action Settlement in Cannon is attached hereto as Exhibit F. \OHMO‘UI&UJMH FACT ll: As part of the ruling towards the grant of preliminary approval of the Class Settlement in Cannon, the Court held that it “finds that the procedures for notifying the Class about the settlement as described in the Stipulation provide the best notice practicable under the circumstances and therefore meet the requirements of due process, and directs the mailing of the Class Notice in accordance with the Settlement Agreemen .” And, the Court also “approvc[d], as to form and content, the proposed Class Notice, attached to the Settlement Agreement as Exhibit A.” See Exhibit F (Order and Judgment Granting Preliminary Approval of Class Action Settlement in Cannon). FACT 12: Motion for Final Approval of Class Settlement in Cannon was filed on May 23, —- 2016. A true and correct copy ofthe Motion for Final Approval of Class Settlement in Cannon is attached hereto as Exhibit G. FACT 13: The Parties in Cannon participated in a Hearing regarding Final Appmval of Class Settlement on June 15, 20] 6. FACT 14: On June 15, 201 6, the Court entered a Minute Order Granting Motion for Final mqumnmgfigogzgfinGBZE r-n Approval of Class Action Settlement in Cannon. A true and correct copy ofthe Minuts Order Granting Motion for Final Approval of Class Action Settlement in Cannon is attached hereto as Exhibit H. In the Minute Order, the Court held that “Class Members were sent the Notice of Pendency of Class Action, Proposed Settlement, Your Rights, and Options for You to Consider ("Class Notice") via U.S. Mail, which explained the terms of the proposed Settlement and appraised Class Members of their rights under the Settlement.” MMMNM FACT 15: "The Court granted final approval of the Class Settlement on July 5, 201 6. -5- SMRflzml-Slfimml ‘STIPULATED FACTS FOR DEFENDANTS RULE 437c(t) MOTION FACT 16: On July 5, 2016', Judge Brown signed the Order and Judgment Granting Final Approval of Class Action Settlement in Cannon. See Exhibit B (Order and Judgment Granting Final Approval in Cannon). FACT 1‘7: The Court found that “the class members were given notice of their rights under wm'dUNLII-PUJNI—a the Settlement in a reasonable manner that comports with the requirements of due process.” The Court also explained “[n]o member of the Class filed written obj actions to the Settlement." See Exhibit B (Order and Judgment Granting Final Approval in Cannon). FACT 18: As the Court explained in the Minute Order, “not a single Class Member opted out.” See Exhibit H (Minute Order Granting Motion for Final Approval of Class Action Settlement in Cannon, dated June 15, 2016). FACT l9: The Court dismissed Cannon “on the merits with prejudice." Further, the Court held that, “[u]pon entry of [the] Judgment and the release ofthc Settlement proceeds to the claims administmtor in [the] case, Plaintiffs and the Class shall be deemed to have fully and finally released all claims at issue in this lawsuit as set forth in the Settlement Agreement.” See Exhibit B (Order and Judgment Granting Final Approval in Cannon)- FACT 20: In Cannon, Defendants released the Settlement proceeds to the claims administrator in the case on July 5, 2016, and the claims administrator disbursed the Settlement fimds to the Settlement Class Members on July 8, 2016. FACT 21: The Cannon Settlement Agreement states that all claims are released “as ofthe wqasmawmggs'gasaazafiza date of the Judgment” i.e.,July 5, 201 6. See Exhibit B (Order and Judgment Granting Final Approval in Cannon); see also Exhibit C (Cannon Settlement Agreement). Similarly, the Notice to Class Members, attached as Exhibit A to the Cannon Settlement Agreement explains that the release applies “through the date of final approval ofthe settlement.” NNMMMNM FACT 22: There were 877 Class Members in Cannon, allof whom were subject to the terms of the Cannon Settlement Agreement and released claims against MobileOne as a result. See Exhibit H (Minute Order Granting Motion for Final Approval of Class Action Settlement in Cannon, dated June 15, 20] 6). -5- SMRHflMI-BIGHWM STPULATED FACTS FOR. DEFENDANT S RULE 43 7cm MOTION FACT 23: Plainfifi' Chess was hired in a Retail Stafi position, classified as a non-exempt employee, on March 23, 2015. Efl‘ective on or around June l, 201 6, Plaintifi' Chess was promoted to an Assistant Manager position, classified as an exempt employee. Than, on or around May 2, 2017, Plaintiff Chess was promoted to a Location Manager position, again classified as an exempt employee. wwfi-Ja‘tUléwNn— Plaintiif Chess's employment with MobileOne ended as ofJune 1, 2017. FACT 24: On April 4, 2016, Plaintiff Kiki Chess was provided notice ofthe Cannon class action settlement to her last known address. A true and correct copy of the Notice Packet sent to Plaintiff Kiki Chess is attached hereto as Exhibit I. Because she did not. submit a Claim Form by April 29, 201 6, Plaintiff Chess also was sent a reminder postcard, which Was mailed out on May 4, 2016. A true and correct copy ofthe reminder postcard sent to Plaintiff Kiki Chess isattached hereto as Exhibit J. Plaintifi‘ Chess never responded to the mailings; she did not submit a Claim Form, an Objection, a Request for Exclusion, or any other documents in response. FACT 25: Pursuant to the Settlement Agreement, “Class Members [in Cannon] who do not ‘opt out’ shall be deemed a party to the Settlement, characterized as a Settlement Class Member, and have agreed to a release of all claims of the Settlement Class against MobilcOne.” See Exhibit C (Cannon Settlement Agreement). mqmw¢mm~c$$33$§5553 FACT 26: Plaintiff Kiki Chess did not submit a timely and valid Request for Exclusion and, thus, was a Settlement Class Member in Cannon. FACT 27: Plaintifi' Ly was hired by MobileOne in a Retail Stafi'position, and classified as a non~exempt employee, efiective June 20, 201 7. Plaintifi' Ly continued in the same position until her employment with MobileOne ended as of Februaty 5, 201 8. During her MNNNMNMMM MobileOne employment, Plaintiff Ly held only that one non—exempt position, she never served in a management role or held an Assistant Manager or Location Manager position. FACT 28: Because ofthe timing of when she was employed with MobileO’ne, Plaintifi' Ly was not covered by Cannon or the settlement in Cannon. And, thus, Plaintiff Ly was not a Class Member in Cannon and did not release any claims against MobileOne as a result. -7- SWNMl-SIWWOJ STH’ULATED FACTS FOR DEFENDANT’S RULE 437::(t) MOTION o The Parties incorporate by reference the documents attached hereto as Exhibitslto this Joint Stipulation and reserve the right to make additional factual assertions and arguments based on these documents. \OOOQONUI-hwtor—n Dated: Octobelagnow SETAREH LAW GROUP Shaun Setareh William M. Pao Alexandra R. McIntosh Attorneys for Plaintiff - 1 KIKI CHESS Dated- October_,2019 D mYEREmAN&Asso TE ,l . A v ‘ David Y‘é'remian Roman Shkodnik . Attorneys for Plaintifi‘ VIVIAN LY Dated: Octobergfl, 2019 SHEPPARD MULLIN RICHT/ER&HAMPT0N LLp ooqo‘MAva-‘oxoooqaazg'KSSS NNMNNNNMNHHHn—t mWfl Y. GREGG A. DOUGLAS YANG Mu? FISCH MICHAELA GOLDS'IEIN Attorneys for Defendant MOBILEONE, LLC -3- SMRH:4841-8 164-4970.] STIPULA'IED FACTS FOR DEFENDANT'S RULE 437c(t) MOTION Exhibit A JAMES KAWAHITO (SBN 23485 l) KAWAHITO WESTRICK LLP , 10474 Santa Monica Blvd., Suite 465 Los Angelcs, California 90025 OHWH Telephone: (310) ?46-5300 A8 Facsimile: (310) 593—2520 XV:| SAHAG MAJARAIN II (SBN 14662 l) LAW OFFICES OF SAHAG MAJARIAN II 18250 Ventma Blvd. \ooouaasmc-w‘tom Tarzana, CA 91356 Telephone: (818) 609-0807 Fax No.: (81 8) 609-0892 Attorneys for Plaintiffs MATI‘HEW MAURICE CANNON, PARISH HARRIGAN, and Class Members SUPERIOR COURT 0F THE STATE OF CALIFORNIA COUNTY 0F SACRAMENTO MATTHEW MAURICE CANNON and PARISH HARRIGAN. Individually, and on Case Number: 34-201 5-001 791 59 behalf ofother members of the general public similarly situated, FIRST AMENDED CLASS'ACTION Plaintifis, COMPLAINT vs. (l) Failure to Pay Overtime Wages in Violation of California Labor Code §§ 510 and 1194; "— MOBILEONE LLC., and DOES —— l through 10, inclusive, (2) Failure to Pay Wages Upon Termination in Violation of California Labor Code §§ 201 and MMMMNMMNHHHHH—HHv—Ip Defendants. 202; ‘ gflfimkwNHOWMQONMkmm—O (3) Failure to ProvideProper Wage Statements in Violation of California Labor Code § 226(a); (4) Failure to Provide Meal and Rest Breaks Violation of California Labor Code §§ 226.7 and 512(a) (5) Failure to Provide Adequate Seating in Violation ofCalifomia Labor Code § 1198; (6)) Violation of California Business & Professions Code §§ 17200, et seq. (Unfair or Unlawful Business Practices) bEMAND FOR JURY TRIAL FIRST AMWDED CLASS ACTION COMPLAINT Exhibit A 0009 1 Plaintiffs Matthew Maurice Cannon and Parish Hattigan (collectively, ..Plaintiffsj. 2 individually, and on behalf of all other similarly situated putative class members ("Class 3 Members") allege as follows: 4 . JURISDICTION AND VENUE 5 I) This action is brought as a class action pursuant to California Code of Civil Procedure 6 § 382. The monetary damages and restitution sought by Plaintiffs exceed the minimal 7 jurisdictional limits of the Superior Court and will be established according to proof at trial. 8 2) This Court has jurisdiction over this action pursuant to California Constitution Article 9 VI, § I 0, which grants the Superior Court ..original jurisdiction in all causes except those given by 10 statute to other courts." The statutes under which this action is brought do not specify any other 11 basis for jurisdiction. 12 3) This Court has j urisdicti.on over Defendant MobileOne LLC («Defendant") because it 13 is registered to conduct business in California and has multiple retail locations in California where 14 it employs California residents. As such. it has sufficient minimum contacts in California and it 15 has intentionally availed itself of the California market so as to render the exercise ofjurisdiction 16 over it by the California courts consistent with traditional notions of fair play and substantial 17 justice. 18 4) Venue is proper in this Court because, upon information and belief, the named 19 Defendant transacts business and has stores and/or offices in this county, Defendant employea 20 Plaintiffs and other Class Members in this county, and the acts and omissions al]eged herein took 21 place in this county. 22 THE PARTIES 23 S) Plaintiffs are residents of the County of Sacramento in the State of California. 24 6) Defendant was and is, upon information and belief, an Arizona corporation with its 25 principal places of business in California, and at all times hereinafter mentioned, is an employer 26 whose employees are engaged throughout this county, the State of California, and/or the various 27 states of the United States of America. 28 FIRST AMBNDBD CL.ASS ACTION COMPLAINT Exhibit A 0010 1 7) Plaintiffs are unaware of the true names or capacities of the defendants sued herein 2 under the fictitious names DOES 1-10 (hereinafter referred to as "DOES 1-1 O" and together, with 3 Defendant MobileOne LLC, "Defendants''), but prays for leave to amend and serve such 4 fictitiously named defendants pursuant to California Code of Civil Procedure§ 474, once their 5 names and capacities become known. 6 8) Plaintiffs al'e infonned and believe, and thereon allege. that each and all of the acts and 7 omissions alleged herein were performed by, or are attributable to, Defendant and DOES 1-10, 8 each acting as the agent for the other, with legal authority to act on the other's behalf. The acts 9 were in accordance with, and represent the official policies of Defendants. 10 9) At all times herein mentioned, Defendants ratified each and every act or omission 11 complained of herein. 12 l 0) Plaintiffs are informed and believe, and thereon allege. that Defendants are in some 13 manner intentionally, negligently, or otherwise responsible for the acts, omissions, occurrences, 14 and transactions alleged herein. 15 CLASS ACTION ALLEGATIONS 16 11) Plaintiffs bring this action on their own behalf, as well as on behalf of each and all 17 other persons similarly situated, and thus, seeks class certification under California Code of Civil 18 Procedure § 382. 19 12) All claims alleged herein arise under California law for which Plaintiffs seek relief 20 authorized by California law. 21 13) The proposed SEATING class consists of and is defined as: 22 All persons who have been employed by Defendant within the relevant time 23 periods prior to the filing of this complaint until July 31, 2015 and who held or hold 24 any position classified as a non-exempt sales representative by Defenda.qt. 25 14) The proposed STRAIGHT OVERTIME class consists of and is defined as: 26 All persons who have been employed by Defendant within the relevant time 27 periods prior to the filing of this complaint until July-31, 205 and who held or hold 28 FJRST AMENDBD CLASS ACTION COMPLAINT Exhibit A 0011 I any position classified as non-exempt by Defendant and who failed to receive 1.5 2 times the regulat' rate of pay for each hour worked over eight hours in a day or forty 3 hours in a week. 4 15) The proposed AJUSTED RATE OVERTIME class consists of and is defined as: 5 All persons who have been employed by Defendant within the relevant time 6 periods prior to the filing of this complaint until July 31, 2015 and who held or hold 7 any position classified as non-exempt by Defendant and received non-discretionary 8 commission or incentive pay and worked overtime hours during that pay period. 9 16) The proposed MEAL AND REST BREAK class consists of and is defined as: All 10 persons who have been employed by Defendant within the relevant time periods prior to the filing 11 of this complaint until July 31, 2015 and who held or hold any position classified as non-exempt 12 by Defendant and who did not receive meal and rest breaks as requhed by law.