Preview
Electronically Filed
1 Jerome Anthony Clay, Jr., Esq., SBN 327175 Superior Court of California
LAW OFFICES OF JEROME A. CLAY County of San Joaquin
2 5250 Claremont Avenue, Suite 221
Stockton, California 95207 2021-11-24 12:13:27
3 Clerk: Kristy Kobus
Telephone: (209) 603-9852
4 Facsimile: (510) 280-2841
E-mail: Jclay7@claylaw.net
5
Attorney(s) for Plaintiff(s): Jeanine D. Davis
6
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 IN AND FOR THE COUNTY OF SAN JOAQUIN
10 STOCKTON COURTHOUSE
11
12 JEANINE D. DAVIS, Case No.: STK-CV-UOE-2021-0003224
13 Plaintiff(s), Assigned for all purposes to:
Honorable Judge Barbara Kronlund
14 vs. Department 10D
15 MICHAEL TEMERIN DBA STOCKTON
TOWNHOUSE APARTMENTS; ALIS
16 SECOND AMENDED VERIFIED COMPLAINT
VALENCIA; and DOES 1 through 50, Inclusive,
FOR:
17
1. Failure to Pay Minimum Wages;
Defendant(s). 2. Liquidated Damages for Failure to Pay
18
Minimum Wages;
19 3. Failure to Pay Wages Owed;
4. Failure to Pay Vested Vacation Time;
20 5. Failure to Pay Overtime Wages;
6. For Failure to Pay Wages for Missed Meal
21 Periods;
7. Failure to Provide Rest Periods;
22 8. Failure to Provide Adequate Wage
Statements;
23 9. Assault;
10. Battery;
24 11. Retaliation;
12. Intentional Infliction of Emotional Distress;
25 13. Unfair Competition Law Business &
Professions Code § 17200 et seq.
26 _________________________________
27 [JURY TRIAL DEMANDED]
Complaint Filed: April 13, 2021
28 Trial Date: Not Assigned
LAW
OFFICES OF
JEROME A.
CLAY Case No. STK-CV-UOE-2021-0003224 1
SECOND AMENDED VERIFIED COMPLAINT
1 Plaintiff, JEANINE D. DAVIS, by their undersigned counsel, hereby complain against
2 Defendants MICHAEL TEMERIN DBA STOCKTON TOWNHOUSE APARTMENTS; and DOES 1
3 through 50, Inclusive, and allege as follows:
4 SUMMARY
5 1. This case involves former Defendant-employer’s deliberate scheme to deny its
6 Apartment Complex Residential Manager the fundamental protections due to employees under
7 California law. This action seeks to enjoin the Defendant’s unlawful conduct, to obtain restitution of
8 unpaid wages and unlawful deductions made from truck Apartment Complex Residential Manager’s
9 pay, under the California Labor Code, the California Industrial Welfare Commission’s (“IWC”) Wage
10 Orders, the California Business and Professions Code (§§ 17200 et seq.), and other statutes and
11 regulations applicable to non-exempt employees in the State of California.
12 2. This action is brought against Defendants—who run a large apartment complex rental
13 operation in Northern-Central California - for engaging in a pattern and practice of willfully denying
14 Plaintiff JEANINE D. DAVIS, the basic wage-and-hour rights and protections guaranteed to
15 employees by the California Labor Code and the IWC’s applicable Wage Order.
16 3. The result of Defendants’ scheme is that Plaintiff JEANINE D. DAVIS and other
17 similarly situated Apartment Complex Residential Managers were, and are, routinely denied
18 payment of all earned wages, including: (i) the compensation earned but left unpaid for non-
19 managerial work, pursuant to California law’s requirement that employees be paid at least the
20 minimum wage for each hour worked; (ii) the premium wages earned for each day an employee is
21 deprived an uninterrupted, duty-free meal period mandated by California law; (iii) the premium
22 wages earned for each day an employee is deprived an uninterrupted, duty-free rest period
23 mandated by California law; and (iv) improper deductions made from drivers’ pay for Defendants’
24 own business operational expenses. Instead, Defendants have taken such wages owed to Plaintiff
25 JEANINE D. DAVIS and other similarly-situated Apartment Complex Residential Managers and
26 unlawfully converted the funds for Defendants’ own use and benefit, in order to maximize profits
27 and gain an unfair business advantage over their competitors at the expense of Defendants’ own
28 employees. By their unlawful misclassification scheme, Defendants also evaded their obligation to
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OFFICES OF
JEROME A.
CLAY Case No. STK-CV-UOE-2021-0003224 2
SECOND AMENDED VERIFIED COMPLAINT
1 provide Workers’ Compensation protection to these employees in an industry where work-related
2 injuries and illnesses are far from uncommon.
3 4. Defendants’ acts and omissions, as described herein, violate provisions of the
4 California Labor Code, including sections 201, 202, 204, 226, 226.7, 226.8, 432.5, 512, 1197 and
5 2802; violate the applicable Wage Orders issued by the California Industrial Welfare Commission;
6 and amount to unfair and unlawful business practices prohibited by the California Business and
7 Professions Code, sections 17200 et seq.
8 5. Plaintiff JEANINE D. DAVIS now brings this action, to recover the unpaid wages
9 owed to her by Defendants, to recover the expenses unlawfully deducted from her pay by
10 Defendants, and to collect all applicable statutory penalties for Defendants’ myriad violations of the
11 California Labor Code, including recordkeeping penalties under Labor Code section 226 and
12 waiting-time penalties under Labor Code section 203.
13 PARTIES
14 6. Plaintiff JEANINE D. DAVIS (hereinafter referred to as “Plaintiff” and/or Ms. DAVIS”)
15 is, and at all times mentioned in this Complaint was a resident of the County of San Joaquin,
16 California.
17 7. Defendant MICHAEL TEMERIN DBA STOCKTON TOWNHOUSE APARTMENTS
18 (hereinafter referred to as “STOCKTON TOWNHOUSE APARTMENTS”) is, and at all times
19 mentioned in this Complaint has been an entity with the capacity to sue and to be sued, and doing
20 business, with a principal place of business located at 1540 Telegraph Avenue, Stockton, California
21 95204. Apartments. STOCKTON TOWNHOUSE APARTMENTS is a rental apartment complex with
22 approximately 50 rental units.
23 8. Defendants Does 1 to 50, inclusive, are sued under fictitious names pursuant to Code
24 of Civil Procedure section 474. Plaintiff is informed and believes, and on that basis alleges, that
25 each of the Defendants sued under fictitious names is in some manner responsible for the wrongs
26 and damages alleged below, in so acting was functioning as the agent, servant, partner, and
27 employee of the Co-Defendants, and in taking the actions mentioned below was acting within the
28 course and scope of his or her authority as such agent, servant, partner, and employee, with the
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1 permission and consent of the Co-Defendants. The named Defendants and Doe Defendants are
2 sometimes hereafter referred to, collectively and/or individually, as “Defendants.”
3 9. The true names and capacities, whether individual, corporate, associate, or
4 otherwise, of Defendants 1-50, inclusive, are unknown to Plaintiff, who therefore sues the Doe
5 Defendants by fictitious names. Plaintiff will amend this complaint to show their true names and
6 capacities when they have been ascertained.
7 10. Plaintiff is informed and believes, and based thereon alleges, that each Defendant
8 sued in this action acts and acted, in all respects pertinent to this action, as the agent of the other
9 Defendants, carried out a joint scheme, business plan or policy in all respects pertinent hereto, and
10 that the acts of each Defendant are legally attributable to the other Defendants.
11 11. Plaintiffs is informed and believes, and based thereon alleges, that each Defendant
12 sued in this action, including each Defendant sued by the fictitious names DOES 1 through 50,
13 Inclusive, is directly or indirectly responsible in some manner for the occurrences, controversies and
14 damages alleged herein, in various capacities, including but not limited to serving as joint employer,
15 joint tortfeasor, single enterprise, alter ego, or agents of the other Defendants. Each Defendant
16 approved, participated in, controlled, or ratified the acts of all other Defendants.
17 JURISDICTION AND VENUE
18 12. Venue is proper because STOCKTON TOWNHOUSE APARTMENTS’ principal place
19 of business is in Stockton, California. In addition, each cause of action enumerated below arises
20 from California state law and the events giving rise to this lawsuit took place in California, including
21 the County of San Joaquin.
22 13. This Court has jurisdiction over Plaintiff’s claims under Labor Code sections 201, 202,
23 204, 226, 226.7, 226.8, 432.5, 512, 1197 and 2802; Wage Orders issued by the California Industrial
24 Welfare Commission; and California Business and Professions Code, sections 17200 et seq.
25 EXHAUSTION OF ADMINISTRATIVE REMEDIES
26 14. On February 1, 2021, Ms. DAVIS timely filed a charge of discrimination with the
27 California Department of Fair Employment and Housing (“DFEH”). The DFEH issued a Right-to-Sue
28 Notice on February 1, 2021. Accordingly, Ms. DAVIS has timely exhausted her administrative
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JEROME A.
CLAY Case No. STK-CV-UOE-2021-0003224 4
SECOND AMENDED VERIFIED COMPLAINT
1 remedies. A true-and-correct copy of Plaintiff’s Right-to-Sue Notice is attached to this Complaint as
2 Exhibit A.
3 FACTS COMMON TO ALL CAUSES OF ACTION
4 15. The allegations set forth in paragraphs 1 through 16 are re-alleged and incorporated
5 herein by reference.
6 16. After 12 years of working as Residential Manager. Ms. DAVIS was placed on limited
7 leave of absence on August 22, 2020, by the Property Manager, Ms. ALIS VALENCIA (hereinafter
8 referred to as “Ms. VALENCIA”) , after the serious issue involving residents in the complex where
9 Ms. DAVIS was working and resides:
10 a) The incited started by a verbal complaint from a female resident (Caucasian) about
11 unwelcome behavior by her male, next-door neighbor (African-American), on or about
12 July 15, 2020. Ms. DAVIS asked female resident to put the complaint in writing, and when
13 she didn’t, Ms. DAVIS thought that the matter had been dropped.
14 b) On August 21, 2020, Ms. DAVIS found letter of complaint from the male resident, the
15 same resident who was complained about by his next-door female resident, stating that
16 he was confronted by Maintenance Manager Mr. ROBERT GIBSON (hereinafter referred
17 to as Mr. GIBSON”).
18 c) Prior to the letter of complaint from the male resident, was received by Ms. DAVIS,
19 Ms. DAVIS advised Mr. GIBSON, not to talk to this resident, and not to confront him, as
20 no official complaint was made by any complex resident against this tenant. Mr. GIBSON
21 without previous authorization from Ms. VALENCIA, took a matter into his hands,
22 potentially causing a big lawsuit between the tenant and the apartment complex and its
23 management team.
24 d) Due to this incident Ms. VALENCIA placed Ms. DAVIS and Mr. GIBSON on leave of
25 absence. A true-and-correct copy of Ms. VALENCIA’s notice to the residents is attached
26 to this Complaint as Exhibit B.
27 e) Ms. VALENCIA, expressed the favoritism towards Mr. GIBSON’s behavior. Ms.
28 DAVIS previously made several complaint to Ms. VALENCIA about Mr. GIBSON’s
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SECOND AMENDED VERIFIED COMPLAINT
1 behavior, brought by the residents, as he has been seen intoxicated, not working, talking
2 to residents about his current issues. Mr. GIBSON’s behavior was ignored by Ms.
3 VALENCIA. Furthermore, Mr. GIBSON had a tendency of complaining to residents about
4 Ms. DAVIS in a manner such as: “Ms. DAVIS is not my boss, I do not need to follow her
5 directions.”
6 f) At the last incident, Ms. VALENCIA made statement to Ms. DAVIS, that Mr. GIBSON
7 is more valuable to her, then Ms. DAVIS. Ms. DAVIS experienced favoritism and racial
8 discrimination, Ms. Davis is African-American female. Ms. VALENCIA by her authority and
9 avoidance to address the issues regarding Mr. GIBSON, created unhealthy work
10 environment, which caused Ms. DAVIS the anxiety attack. Currently Ms. DAVIS is on
11 medical leave due to stress and depression suffered during the incident.
12 17. Ms. DAVIS was not paid during her medical leave.
13 18. For the last 12 years Ms. DAVIS typically performed her duties working as
14 Defendants’ residential manager for forty-five (45) hours per week, from 10:00 a.m. to 8:00 p.m.,
15 Monday through Friday, weekends 10 a.m. to 2 p.m. Additionally, Ms. DAVIS also On-call 24hrs
16 managing Defendant’s apartment complex where she lived while working for Defendant.
17 Consequently, Plaintiff worked for STOCKTON TOWNHOUSE APARTMENTS’ benefit
18 approximately sixty (60) hours per week, on average.
19 19. For the last 12 years, Defendant failed to provide Ms. DAVIS the minimum owed to
20 her under California law. Throughout her employment, Defendant paid Ms. DAVIS, how they felt.
21 The contract that Ms. DAVIS had with STOCKTON TOWNHOUSE APARTMENTS called for 3 -
22 10% of the net rental income per month. While Defendant also required Plaintiff to live at
23 STOCKTON TOWNHOUSE APARTMENTS’ apartment complex, which she managed, Defendant
24 has Ms. DAVIS sign agreement which permitted Defendant to offset the value of Ms. DAVIS’ free
25 rent, in the amount of $500.00 which also included utilities.
26 20. Given that Ms. DAVIS worked a total of 60 hours per week, she should have been
27 paid a total of $720.00 per week at the minimum wage rate of $12.00 per hour - the minimum wage
28 required to be paid to all employees under California law.
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CLAY Case No. STK-CV-UOE-2021-0003224 6
SECOND AMENDED VERIFIED COMPLAINT
1 21. Despite this fact, Defendant only paid Ms. DAVIS, how they felt, but in more
2 instances average of $200.00 per week, or approximately $3.33 per hour for each of her 60 hours
3 worked per week. As a result, Ms. DAVIS hourly wages reflected an amount well below $12.00 per
4 hour, thus Defendants failed to pay all of the minimum wages owed to her.
5 22. For the last 12 years, Defendant also failed to provide Ms. DAVIS the overtime wages
6 owed to her under California law, whether at time and a half or double her hourly rate. Throughout
7 Ms. DAVIS’ employment, she consistently worked as a non-exempt employee in excess of eight (8)
8 hours in a day, or more than forty (40) hours in a work week, thus was subject to the overtime
9 requirements of California law. Throughout her employment, Ms. DAVIS typically worked
10 approximately sixty (60) hours per week, or twenty (20) hours of overtime per workweek. However,
11 Ms. DAVIS was never provided any wages, no less any wages at an overtime rate, for her hours
12 worked in excess of eight (8) hours a day or forty (40) hours per week.
13 23. For the last 12 years, Defendant also failed to provide Ms. DAVIS with her sick,
14 vacation and the personal time off days owed to her under California law. On or about November
15 17, 2020 Ms. DAVIS provided Defendants with the letter that itemized all unpaid sick, vacation, and
16 personal time off. A true-and-correct copy of Ms. DAVIS’ letter to Defendants is attached to this
17 Complaint as Exhibit C.
18 24. Ms. DAVIS is informed and believes, and thereon alleges, that at all times herein
19 mentioned, Defendant and its management were advised by skilled lawyers and other
20 professionals, employees and advisors knowledgeable about California Labor and Wage Law and
21 Employment and personnel practices, and about the requirements of California law.
22 25. Defendant knew or should have known that Ms. DAVIS was not receiving the
23 minimum and/or overtime wages owed to her despite working hours requiring such, because,
24 among other factors, Defendant and/or its agents, officers and employees witnessed and
25 demanded that Ms. DAVIS work such hours. Additionally, Ms. DAVIS complained to Defendant
26 about such unpaid wages, sick, vacation and the personal time off days, but was ignored. As a
27 result of Defendant’s failures to obey California law, Plaintiff alleges she has been damaged
28 approximately $500,000.00 in unpaid minimum wages, overtime wages, sick, vacation and the
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CLAY Case No. STK-CV-UOE-2021-0003224 7
SECOND AMENDED VERIFIED COMPLAINT
1 personal time off leave.
2 26. At no time during or after Ms. DAVIS’ employment did Defendant supply Ms. DAVIS
3 with an itemized statement in writing showing, among other things, her total actual hours worked,
4 an accurate breakdown of all wages owed to her, an accurate breakdown of total wages paid to her
5 at either her regular rate or overtime rates, and/or an accurate breakdown of all the deductions
6 taken from her wages.
7 27. In addition to Defendant’s violations of wage and hour law, Defendant also unlawfully
8 retaliated against Ms. DAVIS by suspending her employment due to incident that was not caused
9 by her and was preventable if Ms. VALENCIA did not crate the hostile work environment.
10 28. Ms. DAVIS filed this instant action on April 19, 2021, and since then, the harassment
11 by Mr. GIBSON intensified. Mr. GIBSON went several times in Ms. DAVIS’ backyard, without the
12 authorization and approval, and knowing his nature and behavior of picking the fights and
13 arguments especially with African-American minorities that lived in the complex, Ms. DAVIS
14 requested from Ms. VALENCIA that Mr. GIBOSN is prohibited entering her premises and backyard,
15 further Ms. DAVIS requested that Mr. RICARDO ALVAREZ (hereinafter referred to as Mr.
16 ALVAREZ”) is only allowed to enter Ms. DAVIS’ premises.
17 29. On June 23, 2021, due to some repairs to the water heater and air-condition system,
18 Mr. ALVAREZ accompanied RC PLUMING during the repair process. While they were repairing the
19 units, Ms. DAVIS noticed Mr. GIBSON in her backyard and sked him what he is doing there, while
20 he was not allowed. Mr. GIBSON verbally and later physically assaulted Ms. DAVIS in her backyard
21 while she was calling the Stockton Police Department to report the assault. Ms. DAVIS also notified
22 Ms. VALENCIA about said incident.
23 30. On June 24, 2021, Ms. DAVIS was informed by the Police Officer that Mr. GIBSON
24 was permitted to her backyard to perform the work by Ms. VALENCIA.
25 31. At the time of the incident Mr. GIBSON was not performing any work in Ms. DAVIS
26 back yard, he was there to harass and intimidate Ms. DAVIS, what he was doing entire time while
27 Ms. DAVIS was working for Defendant STOCKTON TOWNHOUSE APARTMENTS.
28 32. At the time of the incident Ms. DAVIS was still an employee of Defendant
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OFFICES OF
JEROME A.
CLAY Case No. STK-CV-UOE-2021-0003224 8
SECOND AMENDED VERIFIED COMPLAINT
1 STOCKTON TOWNHOUSE APARTMENTS, same as Ms. VALENCIA, Mr. GIBSON, and Mr.
2 ALVAREZ.
3 33. Recently Defendant STOCKTON TOWNHOUSE APARTMENTS filed the eviction
4 case against Ms. DAVIS, claiming unpaid rent. On or about August 6, 2021, Defendant STOCKTON
5 TOWNHOUSE APARTMENTS filed Unlawful Detainer (“UD”) Complaint bearing Case No.: STK-
6 CV-LUDR-2021-0007458 in the Superior Court of California, County of San Joaquin. A true-and-
7 correct copy of Defendant STOCKTON TOWNHOUSE APARTMENTS’ Unlawful Detainer
8 Complaint is attached to this Complaint as Exhibit D.
9 34. In Defendant STOCKTON TOWNHOUSE APARTMENTS’ UD Complaint, Defendant
10 states that Ms. DAVIS failed to pay her rent, pursuant to The Stockton Townhouse Apartments
11 Employment Agreement for Residential Manger (“AGREEMENT”).
12 35. The AGREEMENT, only provides for the benefits and compensation as follows:
13 “Monthly: occupancy of apartment ($500) and payment of PG&E charges.” Further the
14 AGREEMENT provides: “This Agreement becomes effective October 22, 2008 and may be
15 terminated by either party through a written notice of no less than 30 days.” No termination was
16 issued by either party, until June 30, 2021 according to the UD Complaint (See Exhibit A to the UD
17 Complaint). Ms. DAVIS never received termination of her employment, until she was served with
18 UD Complaint in August 2021.
19 36. After the assault by Mr. GIBSON on June 23, 2021, Ms. DAVIS employment was
20 terminated on June 30, 2021, according to the UD Complaint by STOCKTON TOWNHOUSE
21 APARTMENTS.
22 37. Said incidents caused severe anxiety attack, for which Ms. DAVIS was on medical
23 leave due to stress and depression suffered during the incidents.
24 38. As a result of Defendant’s unlawful conduct in unlawfully suspending that terminating
25 Ms. DAVIS and retaliating against her in response to her complaints and being on medical leave
26 without being paid, Ms. DAVIS has been damaged economically and emotionally, all to a matter of
27 proof at trial.
28 ///
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JEROME A.
CLAY Case No. STK-CV-UOE-2021-0003224 9
SECOND AMENDED VERIFIED COMPLAINT
1 FIRST CAUSE OF ACTION
2 Failure to Pay Minimum Wages
3 [California Labor Code §§ 1197 and 1182.12;
4 8 California Code of Regulations §§ 11040 et seq., IWC Wage Order 14]
5 (As Against All Defendants)
6 39. Plaintiff re-alleges and incorporates by reference each preceding paragraph of the
7 complaint as if fully set forth herein and further alleges that:
8 40. 8 California Code of Regulations sections 11140 et seq. and California Labor Code
9 section 1197 require that employers pay each employee no less than the statutory minimum wage
10 for all hours worked.
11 41. At all times relevant, each Defendants failed to pay the minimum hourly wage,
12 currently set by California Labor Code section 1182.12 at $12.00 per hour for all hours worked to
13 Plaintiff.
14 42. Pursuant to California Labor Code sections 1194 and 218.6, Plaintiff is entitled to
15 recover the unpaid balance of the full amount of the minimum wages and interest thereon in an
16 amount to be proven at trial.
17 43. As a result of Defendants’ unlawful acts, Plaintiff has been deprived of minimum
18 wages in amounts to be determined at trial, and are entitled to recover such amounts, plus
19 interests thereon, attorneys’ fees and costs under Labor Code section 1194.
20 SECOND CAUSE OF ACTION
21 Liquidated Damages for Failure to Pay Minimum Wages
22 [California Labor Code § 1194.2]
23 (As Against All Defendants)
24 44. Plaintiff re-alleges and incorporates by reference each preceding paragraph of the
25 complaint as if fully set forth herein and further alleges that:
26 45. As a direct and proximate result of each Defendants’ actions as alleged herein,
27 Plaintiff is entitled to recover penalties in the form of liquidated damages in an amount equal to the
28 minimum wages unlawfully unpaid and interest thereon pursuant to Labor Code section 1194.2
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SECOND AMENDED VERIFIED COMPLAINT
1 The exact amount of liquidated damages owing will be determined at trial.
2 46. As a result of Defendants’ unlawful acts, Plaintiff is also entitled to recover such
3 amounts, plus interests thereon, attorneys’ fees and costs under Labor Code § 1194.
4 THIRD CAUSE OF ACTION
5 Failure to Pay Wages Owed
6 [California Labor Code § Code § 218]
7 (As Against All Defendants)
8 47. Plaintiff re-alleges and incorporates by reference each preceding paragraph of the
9 complaint as if fully set forth herein and further alleges that:
10 48. California Labor Code section 201 requires that employers pay each employee all
11 wages earned and unpaid at the time of discharge.
12 49. At all times relevant, Defendants failed to pay Plaintiffs at the promised rate of 3 -
13 10% of the net rental income per month.
14 50. Pursuant to California Labor Code section 218, Plaintiff is entitled to recover the
15 unpaid balance of the full amount of unpaid and interest thereon in an amount to be proven at trial.
16 51. As a result of Defendants’ unlawful acts, Plaintiff has been deprived of owed wages in
17 amounts to be determined at trial, and are entitled to recover such amounts, plus interests thereon,
18 and attorneys’ fees and costs under Labrador Code section 218.5.
19 FOURTH CAUSE OF ACTION
20 Failure to Pay Vested Vacation Time
21 [California Labor Code § 227.3]
22 (As Against All Defendants)
23 52. Plaintiff re-alleges and incorporates by reference each preceding paragraph of the
24 complaint as if fully set forth herein and further alleges that:
25 53. Labor Code section 227.3 requires that whenever a contract of employment provides
26 for paid vacations, and is not used by the employee, all vested vacation shall be paid as wages at
27 final rate in accordance with the contract.
28 54. Plaintiff accrued vested vacation pay under a collective bargaining agreement, which
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SECOND AMENDED VERIFIED COMPLAINT
1 qualifies as a contract of employment for purpose of Labor Code section 227.3.
2 55. Defendants failed to pay Plaintiff’s vacation pay.
3 56. Pursuant to California Labor Code section 218, Plaintiff is entitled to recover the
4 unpaid balance of the full amount of unpaid and interest thereon in an amount to be proven at trial.
5 57. As a result of Defendants’ unlawful acts, Plaintiff has been deprived of owed wages in
6 amounts to be determined at trial, and are entitled to recover such amounts, plus interests thereon,
7 and attorneys’ fees and costs under Labrador Code section 218.5.
8 FIFTH CAUSE OF ACTION
9 Failure to Pay Overtime Wages
10 [California Labor Code §§ 510, 558 and Wage Order 5]
11 (As Against All Defendants)
12 58. Plaintiff re-alleges and incorporates by reference each preceding paragraph of the
13 complaint as if fully set forth herein and further alleges that:
14 59. California Labor Code §§ 510, 558, and Wage Order 5 entitle non-exempt employees
15 to overtime premiums for hours worked in excess of eight (8) in a given day, forty (40) in a given
16 workweek, or on the seventh day worked in a single workweek. All hours must be paid at the
17 statutory or agreed rate and no part of this rate may be used as a credit against a minimum wage
18 obligation.
19 60. Plaintiff worked in excess of eight hours per day and in excess of forty hours per
20 week, and Defendant STOCKTON TOWNHOUSE APARTMENTS unlawfully failed to pay Plaintiff
21 the proper overtime compensation.
22 61. As a result of these violations, Defendant STOCKTON TOWNHOUSE
23 APARTMENTS is liable for unpaid overtime wages, interest thereon, and attorneys’ fees and costs.
24 SIXTH CAUSE OF ACTION
25 For Failure to Pay Wages for Missed Meal Periods
26 [California Labor Code §§ 226.7, 512, and Wage Order 5]
27 (As Against All Defendants)
28 62. Plaintiff re-alleges and incorporates by reference each preceding paragraph of the
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1 complaint as if fully set forth herein and further alleges that:
2 63. Defendant STOCKTON TOWNHOUSE APARTMENTS failed to provide meal
3 periods as required by Labor Code §§ 226.7, 512 and Wage Order 5.
4 64. Plaintiff worked in excess of five hours a day without being provided at least half
5 hour meal periods in which they were relieved of their duties, as required by Labor Code §§ 226.7
6 and 512 and Wage Order 5. See Brinker Restaurant Corp., et al. v. Superior Court (2012) 53 Cal.
7 4th 1004, 1040-41 (“The employer satisfies this obligation if it relieves its employees of all duty,
8 relinquishes control over their activities and permits them a reasonable opportunity to take an
9 uninterrupted 30–minute period, and does not impede or discourage them from doing so . . . [A]
10 first meal period [is required] no later than the end of an employee’s fifth hour of work, and a
11 second meal period [is required] no later than the end of an employee’s 10th hour of work.”).
12 65. Because Defendant STOCKTON TOWNHOUSE APARTMENTS failed to provide
13 proper meal periods, it is liable to Plaintiff for one hour of additional pay at the regular rate of
14 compensation for each work day that the proper meal periods were not provided, pursuant to
15 Labor Code §§ 226.7 and 512 and Wage Order 5, as well as interest thereon, plus reasonable
16 attorneys’ fees and costs of suit pursuant to Civil Procedure Code § 1021.5.
17 SEVENTH CAUSE OF ACTION
18 For Failure to Provide Rest Periods
19 [California Labor Code § 226.7, and Wage Order 5]
20 (As Against All Defendants)
21 66. Plaintiff re-alleges and incorporates by reference each preceding paragraph of the
22 complaint as if fully set forth herein and further alleges that:
23 67. Defendant STOCKTON TOWNHOUSE APARTMENTS failed to provide the rest
24 periods that are required by Wage Order 5. See Brinker, 53 Cal. 4th 1004 at 1029 (“Employees are
25 entitled to 10 minutes rest for shifts from three and one-half to six hours in length, 20 minutes for
26 shifts of more than six hours up to 10 hours, 30 minutes for shifts of more than 10 hours up to 14
27 hours, and so on.”).
28 68. Because Defendant STOCKTON TOWNHOUSE APARTMENTS failed to provide
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1 proper rest periods, it is liable to Plaintiff for one hour of additional pay at the regular rate of
2 compensation for each workday that the proper rest periods were not provided, pursuant to Labor
3 Code § 226.7 and Wage Order 5, as well as interest thereon, plus reasonable attorneys’ fees and
4 costs of suit pursuant to Civil Procedure Code § 1021.5.
5 EIGHTH CAUSE OF ACTION
6 Failure to Provide Adequate Wage Statements
7 [California Labor Code §§ 226 and 1174
8 8 California Code of Regulations §§ 11140 et seq., IWC Wage Order 14]
9 (As Against All Defendants)
10 69. Plaintiff re-alleges and incorporates by reference each preceding paragraph of the
11 complaint as if fully set forth herein and further alleges that:
12 70. At all relevant times, Defendants failed to provide Plaintiff with proper itemized wage
13 information on each pay period receipt as required by Labor Code section 226(a). Specifically,
14 Plaintiff alleges that Defendants failed to provide any wage statements to Plaintiff who therefore
15 suffered injury as defined by California Labor Code section 226(e)(2).
16 71. California Labor Code section 226(a) requires that employers must furnish itemized
17 wage information on “each pay date.”
18 72. IWC Wage Order 14, 8 California Code of Regulations section 11140(7) and
19 California Labor Code sections 226 and 1174 require that each Defendant keep written daily
20 records of each of its employee’s hours worked and meal periods and to maintain such records for
21 at least three years; and to maintain an accurate production record of the piece rate operation; and
22 to provide each employer with each periodic itemized wage statement setting forth, among other
23 things, the dates of labor for which payment of wages is made, the total hours of work for which
24 payment of wages is made, the net and net wages paid, all deductions from those wages and the
25 name and address of the employer.
26 73. As a result of Defendants’ unlawful acts, Plaintiff was injured and suffered losses in
27 amounts to be determined at trial and are entitled to recover actual damages or an amount equal
28 to $50.00 for the first violation and an additional $100.00 for each additional violation, in an
LAW
OFFICES OF
JEROME A.
CLAY Case No. STK-CV-UOE-2021-0003224 14
SECOND AMENDED VERIFIED COMPLAINT
1 aggregate amount not to exceed $4,000.00, whichever is greater in an amount to be determined at
2 trial.
3 NINTH CAUSE OF ACTION
4 Assault
5 (As Against All Defendants)
6 74. Plaintiff re-alleges and incorporates by reference each preceding paragraph of the
7 complaint as if fully set forth herein and further alleges that:
8 75. A person is liable for assault if the person intentionally threatened another person
9 causing a reasonable apprehension of an imminent harmful or offensive bodily contact.
10 76. As alleged herein, Plaintiff’s co-worker intended to threaten and did threaten Plaintiff
11 with an imminent harmful or offensive bodily contact and caused Plaintiff a reasonable
12 apprehension of such contact. Mr. GIBSON verbally and physically assaulted the Plaintiff, hitting
13 her in the arm and verbally attacking while in her backyard, for which Plaintiff reported to Ms.
14 VALENCIA, and thereafter made a report with the Stockton Police Department.
15 77. The above said acts of Defendant STOCKTON TOWNHOUSE APARTMENTS and
16 Plaintiff’s co-worker were a proximate cause in Plaintiff’s damage as stated below.
17 78. As a direct and proximate result of these actions, Plaintiff has sustained damages,
18 including extreme mental suffering, humiliation, emotional distress, and economic losses, entitling
19 her to damages in an amount to be proven at trial.
20 79. The foregoing conduct of Defendant STOCKTON TOWNHOUSE APARTMENTS and
21 Plaintiff’s co-worker was intended by Defendant STOCKTON TOWNHOUSE APARTMENTS and
22 Plaintiff’s co-worker to cause injury to the Plaintiff or was despicable conduct carried on by the
23 Defendant STOCKTON TOWNHOUSE APARTMENTS and Plaintiff’s co-worker with a willful and
24 conscious disregard of the rights of Plaintiff or subjected Plaintiff to cruel and unjust hardship in
25 conscious disregard of Plaintiff’s right to be free from violence or intimidation by threat of violence
26 committed against Plaintiff’s because of her race, gender and/or good faith complaints, such as to
27 constitute malice, oppression or fraud under California Civil Code § 3294, thereby entitling Plaintiff
28 to punitive damages in an amount appropriate to punish or make an example of Defendant.
LAW
OFFICES OF
JEROME A.
CLAY Case No. STK-CV-UOE-2021-0003224 15
SECOND AMENDED VERIFIED COMPLAINT
1 80. Defendant’s conduct described herein was undertaken, authorized and/or ratified by
2 Defendant’s officers, directors and/or managing agents. The aforementioned conduct of said
3 officers, directors and/or managing agents and individuals was therefore undertaken on behalf of
4 Defendant. Defendant further had advanced knowledge of the actions and conduct of said
5 individuals whose actions and conduct were ratified, authorized and approved by Defendant
6 STOCKTON TOWNHOUSE APARTMENTS’ officers, directors and/or managing agents.
7 TENTH CAUSE OF ACTION
8 Battery
9 (As Against All Defendants)
10 81. Plaintiff re-alleges and incorporates by reference each preceding paragraph of the
11 complaint as if fully set forth herein and further alleges that:
12 82. A person is liable for battery if the person intentionally caused a harmful,
13 unprivileged, or offensive touching of another person.
14 83. As alleged herein, Plaintiff’s co-worker intended to threaten and did threaten Plaintiff
15 with an imminent harmful or offensive bodily contact and caused Plaintiff a reasonable
16 apprehension of such contact. Mr. GIBSON verbally and physically assaulted the Plaintiff, hitting
17 her in the arm and verbally attacking while in her backyard, for which Plaintiff reported to Ms.
18 VALENCIA, and thereafter made a report with the Stockton Police Department.
19 84. The above said acts of Defendant STO
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Electronically Filed 1 Jerome Anthony Clay, Jr., Esq., SBN 327175 Superior Court of California LAW OFFICES OF JEROME A. CLAY County of San Joaquin 2 5250 Claremont Avenue, Suite 221 Stockton, California 95207 2021-11-24 12:13:27 3 Clerk: Kristy Kobus Telephone: (209) 603-9852 4 Facsimile: (510) 280-2841 E-mail: Jclay7@claylaw.net 5 Attorney(s) for Plaintiff(s): Jeanine D. Davis 6 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 IN AND FOR THE COUNTY OF SAN JOAQUIN 10 STOCKTON COURTHOUSE 11 12 JEANINE D. DAVIS, Case No.: STK-CV-UOE-2021-0003224 13 Plaintiff(s), Assigned for all purposes to: Honorable Judge Barbara Kronlund 14 vs. Department 10D 15 MICHAEL TEMERIN DBA STOCKTON TOWNHOUSE APARTMENTS; ALIS 16 SECOND AMENDED VERIFIED COMPLAINT VALENCIA; and DOES 1 through 50, Inclusive, FOR: 17 1. Failure to Pay Minimum Wages; Defendant(s). 2. Liquidated Damages for Failure to Pay 18 Minimum Wages; 19 3. Failure to Pay Wages Owed; 4. Failure to Pay Vested Vacation Time; 20 5. Failure to Pay Overtime Wages; 6. For Failure to Pay Wages for Missed Meal 21 Periods; 7. Failure to Provide Rest Periods; 22 8. Failure to Provide Adequate Wage Statements; 23 9. Assault; 10. Battery; 24 11. Retaliation; 12. Intentional Infliction of Emotional Distress; 25 13. Unfair Competition Law Business & Professions Code § 17200 et seq. 26 _________________________________ 27 [JURY TRIAL DEMANDED] Complaint Filed: April 13, 2021 28 Trial Date: Not Assigned LAW OFFICES OF JEROME A. CLAY Case No. STK-CV-UOE-2021-0003224 1 SECOND AMENDED VERIFIED COMPLAINT 1 Plaintiff, JEANINE D. DAVIS, by their undersigned counsel, hereby complain against 2 Defendants MICHAEL TEMERIN DBA STOCKTON TOWNHOUSE APARTMENTS; and DOES 1 3 through 50, Inclusive, and allege as follows: 4 SUMMARY 5 1. This case involves former Defendant-employer’s deliberate scheme to deny its 6 Apartment Complex Residential Manager the fundamental protections due to employees under 7 California law. This action seeks to enjoin the Defendant’s unlawful conduct, to obtain restitution of 8 unpaid wages and unlawful deductions made from truck Apartment Complex Residential Manager’s 9 pay, under the California Labor Code, the California Industrial Welfare Commission’s (“IWC”) Wage 10 Orders, the California Business and Professions Code (§§ 17200 et seq.), and other statutes and 11 regulations applicable to non-exempt employees in the State of California. 12 2. This action is brought against Defendants—who run a large apartment complex rental 13 operation in Northern-Central California - for engaging in a pattern and practice of willfully denying 14 Plaintiff JEANINE D. DAVIS, the basic wage-and-hour rights and protections guaranteed to 15 employees by the California Labor Code and the IWC’s applicable Wage Order. 16 3. The result of Defendants’ scheme is that Plaintiff JEANINE D. DAVIS and other 17 similarly situated Apartment Complex Residential Managers were, and are, routinely denied 18 payment of all earned wages, including: (i) the compensation earned but left unpaid for non- 19 managerial work, pursuant to California law’s requirement that employees be paid at least the 20 minimum wage for each hour worked; (ii) the premium wages earned for each day an employee is 21 deprived an uninterrupted, duty-free meal period mandated by California law; (iii) the premium 22 wages earned for each day an employee is deprived an uninterrupted, duty-free rest period 23 mandated by California law; and (iv) improper deductions made from drivers’ pay for Defendants’ 24 own business operational expenses. Instead, Defendants have taken such wages owed to Plaintiff 25 JEANINE D. DAVIS and other similarly-situated Apartment Complex Residential Managers and 26 unlawfully converted the funds for Defendants’ own use and benefit, in order to maximize profits 27 and gain an unfair business advantage over their competitors at the expense of Defendants’ own 28 employees. By their unlawful misclassification scheme, Defendants also evaded their obligation to LAW OFFICES OF JEROME A. CLAY Case No. STK-CV-UOE-2021-0003224 2 SECOND AMENDED VERIFIED COMPLAINT 1 provide Workers’ Compensation protection to these employees in an industry where work-related 2 injuries and illnesses are far from uncommon. 3 4. Defendants’ acts and omissions, as described herein, violate provisions of the 4 California Labor Code, including sections 201, 202, 204, 226, 226.7, 226.8, 432.5, 512, 1197 and 5 2802; violate the applicable Wage Orders issued by the California Industrial Welfare Commission; 6 and amount to unfair and unlawful business practices prohibited by the California Business and 7 Professions Code, sections 17200 et seq. 8 5. Plaintiff JEANINE D. DAVIS now brings this action, to recover the unpaid wages 9 owed to her by Defendants, to recover the expenses unlawfully deducted from her pay by 10 Defendants, and to collect all applicable statutory penalties for Defendants’ myriad violations of the 11 California Labor Code, including recordkeeping penalties under Labor Code section 226 and 12 waiting-time penalties under Labor Code section 203. 13 PARTIES 14 6. Plaintiff JEANINE D. DAVIS (hereinafter referred to as “Plaintiff” and/or Ms. DAVIS”) 15 is, and at all times mentioned in this Complaint was a resident of the County of San Joaquin, 16 California. 17 7. Defendant MICHAEL TEMERIN DBA STOCKTON TOWNHOUSE APARTMENTS 18 (hereinafter referred to as “STOCKTON TOWNHOUSE APARTMENTS”) is, and at all times 19 mentioned in this Complaint has been an entity with the capacity to sue and to be sued, and doing 20 business, with a principal place of business located at 1540 Telegraph Avenue, Stockton, California 21 95204. Apartments. STOCKTON TOWNHOUSE APARTMENTS is a rental apartment complex with 22 approximately 50 rental units. 23 8. Defendants Does 1 to 50, inclusive, are sued under fictitious names pursuant to Code 24 of Civil Procedure section 474. Plaintiff is informed and believes, and on that basis alleges, that 25 each of the Defendants sued under fictitious names is in some manner responsible for the wrongs 26 and damages alleged below, in so acting was functioning as the agent, servant, partner, and 27 employee of the Co-Defendants, and in taking the actions mentioned below was acting within the 28 course and scope of his or her authority as such agent, servant, partner, and employee, with the LAW OFFICES OF JEROME A. CLAY Case No. STK-CV-UOE-2021-0003224 3 SECOND AMENDED VERIFIED COMPLAINT 1 permission and consent of the Co-Defendants. The named Defendants and Doe Defendants are 2 sometimes hereafter referred to, collectively and/or individually, as “Defendants.” 3 9. The true names and capacities, whether individual, corporate, associate, or 4 otherwise, of Defendants 1-50, inclusive, are unknown to Plaintiff, who therefore sues the Doe 5 Defendants by fictitious names. Plaintiff will amend this complaint to show their true names and 6 capacities when they have been ascertained. 7 10. Plaintiff is informed and believes, and based thereon alleges, that each Defendant 8 sued in this action acts and acted, in all respects pertinent to this action, as the agent of the other 9 Defendants, carried out a joint scheme, business plan or policy in all respects pertinent hereto, and 10 that the acts of each Defendant are legally attributable to the other Defendants. 11 11. Plaintiffs is informed and believes, and based thereon alleges, that each Defendant 12 sued in this action, including each Defendant sued by the fictitious names DOES 1 through 50, 13 Inclusive, is directly or indirectly responsible in some manner for the occurrences, controversies and 14 damages alleged herein, in various capacities, including but not limited to serving as joint employer, 15 joint tortfeasor, single enterprise, alter ego, or agents of the other Defendants. Each Defendant 16 approved, participated in, controlled, or ratified the acts of all other Defendants. 17 JURISDICTION AND VENUE 18 12. Venue is proper because STOCKTON TOWNHOUSE APARTMENTS’ principal place 19 of business is in Stockton, California. In addition, each cause of action enumerated below arises 20 from California state law and the events giving rise to this lawsuit took place in California, including 21 the County of San Joaquin. 22 13. This Court has jurisdiction over Plaintiff’s claims under Labor Code sections 201, 202, 23 204, 226, 226.7, 226.8, 432.5, 512, 1197 and 2802; Wage Orders issued by the California Industrial 24 Welfare Commission; and California Business and Professions Code, sections 17200 et seq. 25 EXHAUSTION OF ADMINISTRATIVE REMEDIES 26 14. On February 1, 2021, Ms. DAVIS timely filed a charge of discrimination with the 27 California Department of Fair Employment and Housing (“DFEH”). The DFEH issued a Right-to-Sue 28 Notice on February 1, 2021. Accordingly, Ms. DAVIS has timely exhausted her administrative LAW OFFICES OF JEROME A. CLAY Case No. STK-CV-UOE-2021-0003224 4 SECOND AMENDED VERIFIED COMPLAINT 1 remedies. A true-and-correct copy of Plaintiff’s Right-to-Sue Notice is attached to this Complaint as 2 Exhibit A. 3 FACTS COMMON TO ALL CAUSES OF ACTION 4 15. The allegations set forth in paragraphs 1 through 16 are re-alleged and incorporated 5 herein by reference. 6 16. After 12 years of working as Residential Manager. Ms. DAVIS was placed on limited 7 leave of absence on August 22, 2020, by the Property Manager, Ms. ALIS VALENCIA (hereinafter 8 referred to as “Ms. VALENCIA”) , after the serious issue involving residents in the complex where 9 Ms. DAVIS was working and resides: 10 a) The incited started by a verbal complaint from a female resident (Caucasian) about 11 unwelcome behavior by her male, next-door neighbor (African-American), on or about 12 July 15, 2020. Ms. DAVIS asked female resident to put the complaint in writing, and when 13 she didn’t, Ms. DAVIS thought that the matter had been dropped. 14 b) On August 21, 2020, Ms. DAVIS found letter of complaint from the male resident, the 15 same resident who was complained about by his next-door female resident, stating that 16 he was confronted by Maintenance Manager Mr. ROBERT GIBSON (hereinafter referred 17 to as Mr. GIBSON”). 18 c) Prior to the letter of complaint from the male resident, was received by Ms. DAVIS, 19 Ms. DAVIS advised Mr. GIBSON, not to talk to this resident, and not to confront him, as 20 no official complaint was made by any complex resident against this tenant. Mr. GIBSON 21 without previous authorization from Ms. VALENCIA, took a matter into his hands, 22 potentially causing a big lawsuit between the tenant and the apartment complex and its 23 management team. 24 d) Due to this incident Ms. VALENCIA placed Ms. DAVIS and Mr. GIBSON on leave of 25 absence. A true-and-correct copy of Ms. VALENCIA’s notice to the residents is attached 26 to this Complaint as Exhibit B. 27 e) Ms. VALENCIA, expressed the favoritism towards Mr. GIBSON’s behavior. Ms. 28 DAVIS previously made several complaint to Ms. VALENCIA about Mr. GIBSON’s LAW OFFICES OF JEROME A. CLAY Case No. STK-CV-UOE-2021-0003224 5 SECOND AMENDED VERIFIED COMPLAINT 1 behavior, brought by the residents, as he has been seen intoxicated, not working, talking 2 to residents about his current issues. Mr. GIBSON’s behavior was ignored by Ms. 3 VALENCIA. Furthermore, Mr. GIBSON had a tendency of complaining to residents about 4 Ms. DAVIS in a manner such as: “Ms. DAVIS is not my boss, I do not need to follow her 5 directions.” 6 f) At the last incident, Ms. VALENCIA made statement to Ms. DAVIS, that Mr. GIBSON 7 is more valuable to her, then Ms. DAVIS. Ms. DAVIS experienced favoritism and racial 8 discrimination, Ms. Davis is African-American female. Ms. VALENCIA by her authority and 9 avoidance to address the issues regarding Mr. GIBSON, created unhealthy work 10 environment, which caused Ms. DAVIS the anxiety attack. Currently Ms. DAVIS is on 11 medical leave due to stress and depression suffered during the incident. 12 17. Ms. DAVIS was not paid during her medical leave. 13 18. For the last 12 years Ms. DAVIS typically performed her duties working as 14 Defendants’ residential manager for forty-five (45) hours per week, from 10:00 a.m. to 8:00 p.m., 15 Monday through Friday, weekends 10 a.m. to 2 p.m. Additionally, Ms. DAVIS also On-call 24hrs 16 managing Defendant’s apartment complex where she lived while working for Defendant. 17 Consequently, Plaintiff worked for STOCKTON TOWNHOUSE APARTMENTS’ benefit 18 approximately sixty (60) hours per week, on average. 19 19. For the last 12 years, Defendant failed to provide Ms. DAVIS the minimum owed to 20 her under California law. Throughout her employment, Defendant paid Ms. DAVIS, how they felt. 21 The contract that Ms. DAVIS had with STOCKTON TOWNHOUSE APARTMENTS called for 3 - 22 10% of the net rental income per month. While Defendant also required Plaintiff to live at 23 STOCKTON TOWNHOUSE APARTMENTS’ apartment complex, which she managed, Defendant 24 has Ms. DAVIS sign agreement which permitted Defendant to offset the value of Ms. DAVIS’ free 25 rent, in the amount of $500.00 which also included utilities. 26 20. Given that Ms. DAVIS worked a total of 60 hours per week, she should have been 27 paid a total of $720.00 per week at the minimum wage rate of $12.00 per hour - the minimum wage 28 required to be paid to all employees under California law. LAW OFFICES OF JEROME A. CLAY Case No. STK-CV-UOE-2021-0003224 6 SECOND AMENDED VERIFIED COMPLAINT 1 21. Despite this fact, Defendant only paid Ms. DAVIS, how they felt, but in more 2 instances average of $200.00 per week, or approximately $3.33 per hour for each of her 60 hours 3 worked per week. As a result, Ms. DAVIS hourly wages reflected an amount well below $12.00 per 4 hour, thus Defendants failed to pay all of the minimum wages owed to her. 5 22. For the last 12 years, Defendant also failed to provide Ms. DAVIS the overtime wages 6 owed to her under California law, whether at time and a half or double her hourly rate. Throughout 7 Ms. DAVIS’ employment, she consistently worked as a non-exempt employee in excess of eight (8) 8 hours in a day, or more than forty (40) hours in a work week, thus was subject to the overtime 9 requirements of California law. Throughout her employment, Ms. DAVIS typically worked 10 approximately sixty (60) hours per week, or twenty (20) hours of overtime per workweek. However, 11 Ms. DAVIS was never provided any wages, no less any wages at an overtime rate, for her hours 12 worked in excess of eight (8) hours a day or forty (40) hours per week. 13 23. For the last 12 years, Defendant also failed to provide Ms. DAVIS with her sick, 14 vacation and the personal time off days owed to her under California law. On or about November 15 17, 2020 Ms. DAVIS provided Defendants with the letter that itemized all unpaid sick, vacation, and 16 personal time off. A true-and-correct copy of Ms. DAVIS’ letter to Defendants is attached to this 17 Complaint as Exhibit C. 18 24. Ms. DAVIS is informed and believes, and thereon alleges, that at all times herein 19 mentioned, Defendant and its management were advised by skilled lawyers and other 20 professionals, employees and advisors knowledgeable about California Labor and Wage Law and 21 Employment and personnel practices, and about the requirements of California law. 22 25. Defendant knew or should have known that Ms. DAVIS was not receiving the 23 minimum and/or overtime wages owed to her despite working hours requiring such, because, 24 among other factors, Defendant and/or its agents, officers and employees witnessed and 25 demanded that Ms. DAVIS work such hours. Additionally, Ms. DAVIS complained to Defendant 26 about such unpaid wages, sick, vacation and the personal time off days, but was ignored. As a 27 result of Defendant’s failures to obey California law, Plaintiff alleges she has been damaged 28 approximately $500,000.00 in unpaid minimum wages, overtime wages, sick, vacation and the LAW OFFICES OF JEROME A. CLAY Case No. STK-CV-UOE-2021-0003224 7 SECOND AMENDED VERIFIED COMPLAINT 1 personal time off leave. 2 26. At no time during or after Ms. DAVIS’ employment did Defendant supply Ms. DAVIS 3 with an itemized statement in writing showing, among other things, her total actual hours worked, 4 an accurate breakdown of all wages owed to her, an accurate breakdown of total wages paid to her 5 at either her regular rate or overtime rates, and/or an accurate breakdown of all the deductions 6 taken from her wages. 7 27. In addition to Defendant’s violations of wage and hour law, Defendant also unlawfully 8 retaliated against Ms. DAVIS by suspending her employment due to incident that was not caused 9 by her and was preventable if Ms. VALENCIA did not crate the hostile work environment. 10 28. Ms. DAVIS filed this instant action on April 19, 2021, and since then, the harassment 11 by Mr. GIBSON intensified. Mr. GIBSON went several times in Ms. DAVIS’ backyard, without the 12 authorization and approval, and knowing his nature and behavior of picking the fights and 13 arguments especially with African-American minorities that lived in the complex, Ms. DAVIS 14 requested from Ms. VALENCIA that Mr. GIBOSN is prohibited entering her premises and backyard, 15 further Ms. DAVIS requested that Mr. RICARDO ALVAREZ (hereinafter referred to as Mr. 16 ALVAREZ”) is only allowed to enter Ms. DAVIS’ premises. 17 29. On June 23, 2021, due to some repairs to the water heater and air-condition system, 18 Mr. ALVAREZ accompanied RC PLUMING during the repair process. While they were repairing the 19 units, Ms. DAVIS noticed Mr. GIBSON in her backyard and sked him what he is doing there, while 20 he was not allowed. Mr. GIBSON verbally and later physically assaulted Ms. DAVIS in her backyard 21 while she was calling the Stockton Police Department to report the assault. Ms. DAVIS also notified 22 Ms. VALENCIA about said incident. 23 30. On June 24, 2021, Ms. DAVIS was informed by the Police Officer that Mr. GIBSON 24 was permitted to her backyard to perform the work by Ms. VALENCIA. 25 31. At the time of the incident Mr. GIBSON was not performing any work in Ms. DAVIS 26 back yard, he was there to harass and intimidate Ms. DAVIS, what he was doing entire time while 27 Ms. DAVIS was working for Defendant STOCKTON TOWNHOUSE APARTMENTS. 28 32. At the time of the incident Ms. DAVIS was still an employee of Defendant LAW OFFICES OF JEROME A. CLAY Case No. STK-CV-UOE-2021-0003224 8 SECOND AMENDED VERIFIED COMPLAINT 1 STOCKTON TOWNHOUSE APARTMENTS, same as Ms. VALENCIA, Mr. GIBSON, and Mr. 2 ALVAREZ. 3 33. Recently Defendant STOCKTON TOWNHOUSE APARTMENTS filed the eviction 4 case against Ms. DAVIS, claiming unpaid rent. On or about August 6, 2021, Defendant STOCKTON 5 TOWNHOUSE APARTMENTS filed Unlawful Detainer (“UD”) Complaint bearing Case No.: STK- 6 CV-LUDR-2021-0007458 in the Superior Court of California, County of San Joaquin. A true-and- 7 correct copy of Defendant STOCKTON TOWNHOUSE APARTMENTS’ Unlawful Detainer 8 Complaint is attached to this Complaint as Exhibit D. 9 34. In Defendant STOCKTON TOWNHOUSE APARTMENTS’ UD Complaint, Defendant 10 states that Ms. DAVIS failed to pay her rent, pursuant to The Stockton Townhouse Apartments 11 Employment Agreement for Residential Manger (“AGREEMENT”). 12 35. The AGREEMENT, only provides for the benefits and compensation as follows: 13 “Monthly: occupancy of apartment ($500) and payment of PG&E charges.” Further the 14 AGREEMENT provides: “This Agreement becomes effective October 22, 2008 and may be 15 terminated by either party through a written notice of no less than 30 days.” No termination was 16 issued by either party, until June 30, 2021 according to the UD Complaint (See Exhibit A to the UD 17 Complaint). Ms. DAVIS never received termination of her employment, until she was served with 18 UD Complaint in August 2021. 19 36. After the assault by Mr. GIBSON on June 23, 2021, Ms. DAVIS employment was 20 terminated on June 30, 2021, according to the UD Complaint by STOCKTON TOWNHOUSE 21 APARTMENTS. 22 37. Said incidents caused severe anxiety attack, for which Ms. DAVIS was on medical 23 leave due to stress and depression suffered during the incidents. 24 38. As a result of Defendant’s unlawful conduct in unlawfully suspending that terminating 25 Ms. DAVIS and retaliating against her in response to her complaints and being on medical leave 26 without being paid, Ms. DAVIS has been damaged economically and emotionally, all to a matter of 27 proof at trial. 28 /// LAW OFFICES OF JEROME A. CLAY Case No. STK-CV-UOE-2021-0003224 9 SECOND AMENDED VERIFIED COMPLAINT 1 FIRST CAUSE OF ACTION 2 Failure to Pay Minimum Wages 3 [California Labor Code §§ 1197 and 1182.12; 4 8 California Code of Regulations §§ 11040 et seq., IWC Wage Order 14] 5 (As Against All Defendants) 6 39. Plaintiff re-alleges and incorporates by reference each preceding paragraph of the 7 complaint as if fully set forth herein and further alleges that: 8 40. 8 California Code of Regulations sections 11140 et seq. and California Labor Code 9 section 1197 require that employers pay each employee no less than the statutory minimum wage 10 for all hours worked. 11 41. At all times relevant, each Defendants failed to pay the minimum hourly wage, 12 currently set by California Labor Code section 1182.12 at $12.00 per hour for all hours worked to 13 Plaintiff. 14 42. Pursuant to California Labor Code sections 1194 and 218.6, Plaintiff is entitled to 15 recover the unpaid balance of the full amount of the minimum wages and interest thereon in an 16 amount to be proven at trial. 17 43. As a result of Defendants’ unlawful acts, Plaintiff has been deprived of minimum 18 wages in amounts to be determined at trial, and are entitled to recover such amounts, plus 19 interests thereon, attorneys’ fees and costs under Labor Code section 1194. 20 SECOND CAUSE OF ACTION 21 Liquidated Damages for Failure to Pay Minimum Wages 22 [California Labor Code § 1194.2] 23 (As Against All Defendants) 24 44. Plaintiff re-alleges and incorporates by reference each preceding paragraph of the 25 complaint as if fully set forth herein and further alleges that: 26 45. As a direct and proximate result of each Defendants’ actions as alleged herein, 27 Plaintiff is entitled to recover penalties in the form of liquidated damages in an amount equal to the 28 minimum wages unlawfully unpaid and interest thereon pursuant to Labor Code section 1194.2 LAW OFFICES OF JEROME A. CLAY Case No. STK-CV-UOE-2021-0003224 10 SECOND AMENDED VERIFIED COMPLAINT 1 The exact amount of liquidated damages owing will be determined at trial. 2 46. As a result of Defendants’ unlawful acts, Plaintiff is also entitled to recover such 3 amounts, plus interests thereon, attorneys’ fees and costs under Labor Code § 1194. 4 THIRD CAUSE OF ACTION 5 Failure to Pay Wages Owed 6 [California Labor Code § Code § 218] 7 (As Against All Defendants) 8 47. Plaintiff re-alleges and incorporates by reference each preceding paragraph of the 9 complaint as if fully set forth herein and further alleges that: 10 48. California Labor Code section 201 requires that employers pay each employee all 11 wages earned and unpaid at the time of discharge. 12 49. At all times relevant, Defendants failed to pay Plaintiffs at the promised rate of 3 - 13 10% of the net rental income per month. 14 50. Pursuant to California Labor Code section 218, Plaintiff is entitled to recover the 15 unpaid balance of the full amount of unpaid and interest thereon in an amount to be proven at trial. 16 51. As a result of Defendants’ unlawful acts, Plaintiff has been deprived of owed wages in 17 amounts to be determined at trial, and are entitled to recover such amounts, plus interests thereon, 18 and attorneys’ fees and costs under Labrador Code section 218.5. 19 FOURTH CAUSE OF ACTION 20 Failure to Pay Vested Vacation Time 21 [California Labor Code § 227.3] 22 (As Against All Defendants) 23 52. Plaintiff re-alleges and incorporates by reference each preceding paragraph of the 24 complaint as if fully set forth herein and further alleges that: 25 53. Labor Code section 227.3 requires that whenever a contract of employment provides 26 for paid vacations, and is not used by the employee, all vested vacation shall be paid as wages at 27 final rate in accordance with the contract. 28 54. Plaintiff accrued vested vacation pay under a collective bargaining agreement, which LAW OFFICES OF JEROME A. CLAY Case No. STK-CV-UOE-2021-0003224 11 SECOND AMENDED VERIFIED COMPLAINT 1 qualifies as a contract of employment for purpose of Labor Code section 227.3. 2 55. Defendants failed to pay Plaintiff’s vacation pay. 3 56. Pursuant to California Labor Code section 218, Plaintiff is entitled to recover the 4 unpaid balance of the full amount of unpaid and interest thereon in an amount to be proven at trial. 5 57. As a result of Defendants’ unlawful acts, Plaintiff has been deprived of owed wages in 6 amounts to be determined at trial, and are entitled to recover such amounts, plus interests thereon, 7 and attorneys’ fees and costs under Labrador Code section 218.5. 8 FIFTH CAUSE OF ACTION 9 Failure to Pay Overtime Wages 10 [California Labor Code §§ 510, 558 and Wage Order 5] 11 (As Against All Defendants) 12 58. Plaintiff re-alleges and incorporates by reference each preceding paragraph of the 13 complaint as if fully set forth herein and further alleges that: 14 59. California Labor Code §§ 510, 558, and Wage Order 5 entitle non-exempt employees 15 to overtime premiums for hours worked in excess of eight (8) in a given day, forty (40) in a given 16 workweek, or on the seventh day worked in a single workweek. All hours must be paid at the 17 statutory or agreed rate and no part of this rate may be used as a credit against a minimum wage 18 obligation. 19 60. Plaintiff worked in excess of eight hours per day and in excess of forty hours per 20 week, and Defendant STOCKTON TOWNHOUSE APARTMENTS unlawfully failed to pay Plaintiff 21 the proper overtime compensation. 22 61. As a result of these violations, Defendant STOCKTON TOWNHOUSE 23 APARTMENTS is liable for unpaid overtime wages, interest thereon, and attorneys’ fees and costs. 24 SIXTH CAUSE OF ACTION 25 For Failure to Pay Wages for Missed Meal Periods 26 [California Labor Code §§ 226.7, 512, and Wage Order 5] 27 (As Against All Defendants) 28 62. Plaintiff re-alleges and incorporates by reference each preceding paragraph of the LAW OFFICES OF JEROME A. CLAY Case No. STK-CV-UOE-2021-0003224 12 SECOND AMENDED VERIFIED COMPLAINT 1 complaint as if fully set forth herein and further alleges that: 2 63. Defendant STOCKTON TOWNHOUSE APARTMENTS failed to provide meal 3 periods as required by Labor Code §§ 226.7, 512 and Wage Order 5. 4 64. Plaintiff worked in excess of five hours a day without being provided at least half 5 hour meal periods in which they were relieved of their duties, as required by Labor Code §§ 226.7 6 and 512 and Wage Order 5. See Brinker Restaurant Corp., et al. v. Superior Court (2012) 53 Cal. 7 4th 1004, 1040-41 (“The employer satisfies this obligation if it relieves its employees of all duty, 8 relinquishes control over their activities and permits them a reasonable opportunity to take an 9 uninterrupted 30–minute period, and does not impede or discourage them from doing so . . . [A] 10 first meal period [is required] no later than the end of an employee’s fifth hour of work, and a 11 second meal period [is required] no later than the end of an employee’s 10th hour of work.”). 12 65. Because Defendant STOCKTON TOWNHOUSE APARTMENTS failed to provide 13 proper meal periods, it is liable to Plaintiff for one hour of additional pay at the regular rate of 14 compensation for each work day that the proper meal periods were not provided, pursuant to 15 Labor Code §§ 226.7 and 512 and Wage Order 5, as well as interest thereon, plus reasonable 16 attorneys’ fees and costs of suit pursuant to Civil Procedure Code § 1021.5. 17 SEVENTH CAUSE OF ACTION 18 For Failure to Provide Rest Periods 19 [California Labor Code § 226.7, and Wage Order 5] 20 (As Against All Defendants) 21 66. Plaintiff re-alleges and incorporates by reference each preceding paragraph of the 22 complaint as if fully set forth herein and further alleges that: 23 67. Defendant STOCKTON TOWNHOUSE APARTMENTS failed to provide the rest 24 periods that are required by Wage Order 5. See Brinker, 53 Cal. 4th 1004 at 1029 (“Employees are 25 entitled to 10 minutes rest for shifts from three and one-half to six hours in length, 20 minutes for 26 shifts of more than six hours up to 10 hours, 30 minutes for shifts of more than 10 hours up to 14 27 hours, and so on.”). 28 68. Because Defendant STOCKTON TOWNHOUSE APARTMENTS failed to provide LAW OFFICES OF JEROME A. CLAY Case No. STK-CV-UOE-2021-0003224 13 SECOND AMENDED VERIFIED COMPLAINT 1 proper rest periods, it is liable to Plaintiff for one hour of additional pay at the regular rate of 2 compensation for each workday that the proper rest periods were not provided, pursuant to Labor 3 Code § 226.7 and Wage Order 5, as well as interest thereon, plus reasonable attorneys’ fees and 4 costs of suit pursuant to Civil Procedure Code § 1021.5. 5 EIGHTH CAUSE OF ACTION 6 Failure to Provide Adequate Wage Statements 7 [California Labor Code §§ 226 and 1174 8 8 California Code of Regulations §§ 11140 et seq., IWC Wage Order 14] 9 (As Against All Defendants) 10 69. Plaintiff re-alleges and incorporates by reference each preceding paragraph of the 11 complaint as if fully set forth herein and further alleges that: 12 70. At all relevant times, Defendants failed to provide Plaintiff with proper itemized wage 13 information on each pay period receipt as required by Labor Code section 226(a). Specifically, 14 Plaintiff alleges that Defendants failed to provide any wage statements to Plaintiff who therefore 15 suffered injury as defined by California Labor Code section 226(e)(2). 16 71. California Labor Code section 226(a) requires that employers must furnish itemized 17 wage information on “each pay date.” 18 72. IWC Wage Order 14, 8 California Code of Regulations section 11140(7) and 19 California Labor Code sections 226 and 1174 require that each Defendant keep written daily 20 records of each of its employee’s hours worked and meal periods and to maintain such records for 21 at least three years; and to maintain an accurate production record of the piece rate operation; and 22 to provide each employer with each periodic itemized wage statement setting forth, among other 23 things, the dates of labor for which payment of wages is made, the total hours of work for which 24 payment of wages is made, the net and net wages paid, all deductions from those wages and the 25 name and address of the employer. 26 73. As a result of Defendants’ unlawful acts, Plaintiff was injured and suffered losses in 27 amounts to be determined at trial and are entitled to recover actual damages or an amount equal 28 to $50.00 for the first violation and an additional $100.00 for each additional violation, in an LAW OFFICES OF JEROME A. CLAY Case No. STK-CV-UOE-2021-0003224 14 SECOND AMENDED VERIFIED COMPLAINT 1 aggregate amount not to exceed $4,000.00, whichever is greater in an amount to be determined at 2 trial. 3 NINTH CAUSE OF ACTION 4 Assault 5 (As Against All Defendants) 6 74. Plaintiff re-alleges and incorporates by reference each preceding paragraph of the 7 complaint as if fully set forth herein and further alleges that: 8 75. A person is liable for assault if the person intentionally threatened another person 9 causing a reasonable apprehension of an imminent harmful or offensive bodily contact. 10 76. As alleged herein, Plaintiff’s co-worker intended to threaten and did threaten Plaintiff 11 with an imminent harmful or offensive bodily contact and caused Plaintiff a reasonable 12 apprehension of such contact. Mr. GIBSON verbally and physically assaulted the Plaintiff, hitting 13 her in the arm and verbally attacking while in her backyard, for which Plaintiff reported to Ms. 14 VALENCIA, and thereafter made a report with the Stockton Police Department. 15 77. The above said acts of Defendant STOCKTON TOWNHOUSE APARTMENTS and 16 Plaintiff’s co-worker were a proximate cause in Plaintiff’s damage as stated below. 17 78. As a direct and proximate result of these actions, Plaintiff has sustained damages, 18 including extreme mental suffering, humiliation, emotional distress, and economic losses, entitling 19 her to damages in an amount to be proven at trial. 20 79. The foregoing conduct of Defendant STOCKTON TOWNHOUSE APARTMENTS and 21 Plaintiff’s co-worker was intended by Defendant STOCKTON TOWNHOUSE APARTMENTS and 22 Plaintiff’s co-worker to cause injury to the Plaintiff or was despicable conduct carried on by the 23 Defendant STOCKTON TOWNHOUSE APARTMENTS and Plaintiff’s co-worker with a willful and 24 conscious disregard of the rights of Plaintiff or subjected Plaintiff to cruel and unjust hardship in 25 conscious disregard of Plaintiff’s right to be free from violence or intimidation by threat of violence 26 committed against Plaintiff’s because of her race, gender and/or good faith complaints, such as to 27 constitute malice, oppression or fraud under California Civil Code § 3294, thereby entitling Plaintiff 28 to punitive damages in an amount appropriate to punish or make an example of Defendant. LAW OFFICES OF JEROME A. CLAY Case No. STK-CV-UOE-2021-0003224 15 SECOND AMENDED VERIFIED COMPLAINT 1 80. Defendant’s conduct described herein was undertaken, authorized and/or ratified by 2 Defendant’s officers, directors and/or managing agents. The aforementioned conduct of said 3 officers, directors and/or managing agents and individuals was therefore undertaken on behalf of 4 Defendant. Defendant further had advanced knowledge of the actions and conduct of said 5 individuals whose actions and conduct were ratified, authorized and approved by Defendant 6 STOCKTON TOWNHOUSE APARTMENTS’ officers, directors and/or managing agents. 7 TENTH CAUSE OF ACTION 8 Battery 9 (As Against All Defendants) 10 81. Plaintiff re-alleges and incorporates by reference each preceding paragraph of the 11 complaint as if fully set forth herein and further alleges that: 12 82. A person is liable for battery if the person intentionally caused a harmful, 13 unprivileged, or offensive touching of another person. 14 83. As alleged herein, Plaintiff’s co-worker intended to threaten and did threaten Plaintiff 15 with an imminent harmful or offensive bodily contact and caused Plaintiff a reasonable 16 apprehension of such contact. Mr. GIBSON verbally and physically assaulted the Plaintiff, hitting 17 her in the arm and verbally attacking while in her backyard, for which Plaintiff reported to Ms. 18 VALENCIA, and thereafter made a report with the Stockton Police Department. 19 84. The above said acts of Defendant STO