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Gordon & Rees LLP
633 West Fifth Street, Suite 5200
Los Angeles, CA 90071
Cc em NA HW BW NY
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Il
RIL
ERIC R. DEITZ (SBN: 222565) psy ny thine
edeitz/@ersm.com et OP OO EID 42
LINDSAY C. DAVID (SBN: 283267)
Idavid@grsm.com
TATIANA DUPUY (SBN: 246705)
tdupuy@ersm.com
GORDON & REES LLP
633 West Fifth Street, Suite 5200
Los Angeles, CA 90071
Telephone: (213) 334-7219
Facsimile: (213) 680-4470
Attorneys for Defendant
SOUTH EAST PERSONNEL LEASING, INC. (also sued herein as SOUTH EAST
EMPLOYEE LEASING SERVICES, INC., a Florida corporation)
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN JOAQUIN
MICHAEL HIGGINBOTHAM and CASE NO. STK-CV-UOE-2020-425
MARCELINO DECIERDO, for themselves
and for all other current and former
aggrieved employees,
Judge: Hon. Jayne Hill
Dept: 10C
REQUEST FOR JUDICIAL NOTICE IN
SUPPORT OF DEFENDANT’S MOTION
TO BIFURCATE AND SEQUENCE
DISCOVERY
Plaintiff,
v.
SOUTH EAST EMPLOYEE LEASING
SERVICES, INC. A Florida corporation;
SOUTH EAST PERSONNEL LEASING
SERVICES, INC., a Florida corporation;
and DOES 1-100, inclusive,
Hearing Dates for Consideration:
January 12, 20
separ 20, 3027 YAN 28 2022
Complaint Filed: January 10, 2020
Trial Date: Not Set.
Defendants.
De
TO THE HONORABLE COURT IN THE ABOVE-REFERENCED MATTER
AND TO EACH PARTY AND ATTORNEY OF RECORD IN THIS ACTION:
PLEASE TAKE NOTICE THAT Defendant SOUTH EAST PERSONNEL LEASING,
INC. (“SPLI”) requests the Court take judicial notice of the following material in its file relating
to the above-captioned matter pursuant to Evidence Code 452(d)(1) and California Rules of
Court Rule 3.1306(c) of the following:
-1-
REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION TO BIRFURCATE
FILE BY FAXGordon & Rees LLP
633 West Fifth Street, Suite 5200
Los Angeles, CA 90071
oOo mw DH FF WN
12
1. Complaint filed on January 10, 2020. A courtesy copy is attached for the Court’s
convenience as Exhibit A.
Dated: November 29, 2021
GORDON REES SCULLY MANSUKHANI, LLP
fom
By:
Qe
Eric R. Deitz
Lindsay C. David
Tatiana Dupuy
Attorneys for Defendant
SOUTHEAST PERSONNEL
LEASING, INC.
REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION TO BIRFURCATEEXHIBIT AFILED BY FAX
FILED
SUM10
sunifons 20M PGB
(CITACION JUDICIAL) HUSA JUNQUEIRO. CLERK
NOTICE TO DEFENDANT:
{AVISO AL DEMANDADO): oy FTA L GOMEZ _
SOUTH EAST EMPLOYEE LEASING SERVICES, INC 0 Forda coworatan SOUTH RAST
MERSONNEL UCASING SERVICES, INC,, a Flonuy corporation, ard DOES soclysive:
YOU ARE BEING SUED BY PLAINTIFF:
{LO ESTA DEMANDANDO Et, DEMANDANTE):
MICHAEL F HiGGINaO: 4M and MARCELINO DFCIEROO, for remselves and for all other
Sree yea eee foes a coat Tay dBcide agains you waihoul your Dard heard Uniess yourespand wind 30 Gays. Read ine inlormalun
teciow.
You nave 30 CALE KLAR OAV: aller Tus summons and tegal papers are served on youto tle a wetien resporse al this court and hava a coay
served 61 (he plamntit A latter of phone call wl not protect you. Your writen response must be in proper !agal form it you wanl the equn to Bear your
lease Thera may be « cout form that you can use for your tesponsa. You ¢an fing those caurt forms and moro information al tha Colfairan Courts
lOnsine Self-Help Cemier «www.courtinta.ca.govasctiaelp), your county Law library. or Ino courthouse Reates! you. if yau cannol pay the fing fec, ask
sletk for a fee wanet farm. (f you da col fee your response anime, you may tose Ine caso dy datast, and your wages, manay, ana feopeny
taken wihout furner warring (tom the enurt,
‘There are other logat equierrents You may wart to cal an allomey nght away. if you do no! know an allomey, you may wanl to cal’ an altemey
referral service. Uf you court afford an altornay, you may ba eligible far free lega! senices hom a nanprofil legal services progtam. You can locale
hese nonprots greips al ine Cabtomia Lagal Sorvicos Wen site (waw laxhelpcsticmnia org}, the Catfesnia Causa Online Self-Help Center
erww.courtinta.ca.gavisetIha'p), of by conlzeting you Iceni court or county bar association. NOTE: The coun has a statutory lien fcr waved feos and
costs on ary selUemant ur arbidraLon avrard of $10,000 o1 maze in a civil case. The taxTs len full be paid before tne court wil dams ihe case
WAVISC! Lohan demandado Sinn respande dentro de 30 dias, fa come puede decidw en Su contra sin escuchar su versién. Lea la informaciin &
Tiere 10 DIAS DC CALENDARIO desputs do quo fe entioguen esta csacitn y papeles legals p2ro prosoniar una respuesta por oscrte en esta
baotzca do foyer de su condado a an ta con qua fe quede mds cerca, Sino puece pagar a cuota Ce praseniecién. pica of secretana da /a come quo|
¢6 un formutarta de exanciéa de pogo Ge euol3s, Sino presenta su respuesta a tiempo, puedo perder el caso por ineumpiimianto y la coste io paced
lawor su svelto, dinero y bienes sa mas agvertentra
Hay otros requisdos egstes. Es recomendanle que liane a un 2bogade tninecistamente. Sina concts b un abogaco, puede fiamor a un servicio do
@ abogados. Sino puedy pager a un sbogado, es posible que cumpfo con ios requisitos para obiener servicios legales gratwtos de un
lprograma de serviccas tegales sm fines de luero, Pubde encontrar estos grupos sin fries de hicra én el sitio web de CaMlornla Legal Servizas,
|Iwirw.tanhelpcalfornie.crg), en ef Cerio de Ayuda de las Cortes de Caklomia, (www.sucate.ca.gay) 0 paritadose en contacto con fa carte oe!
lcalegio de abagados iocaes AVISO" ar tey, in cae tene detecho a rectamar las euctas y ins castas exenios pos impanet un gravaman sone
Fer recuperacsén de $10,000 o mas de valor recchda mediante vn acverdo o ena conceson de arbitrmje en un caso de derecho cil Tiene que
egar el gravamen ge la code antes de que ta corte pueda desechar elcasc. |
Tha name and address of the court is; Vor uw OG7
(Einambre y diecersn de fa corto vs}. SAN JOAQUIN COUNTY SUPERIOR COURT STR-CV- ~2020- bU 2
180 E. Wabat Avanuo.
Stockton, CA $$202
The name, address, and telephone number of plainuff's attorney, of plainnff without an attorney, is. (21 nombre, fy diteccisn y ei adore
de teléfone def abogado del demandanta, o dei demandante aue no nene abogado, es)
Starley Setzman-SGN 90058; Cody Kannedy-SBN 296061-MARLIN & SALTZMAN, 29800 Agoura Rd #210, Agoura Hils CA 91301
DATE WE! Clesk, . Deputy
fon YAN 10 2020 ROSAJUNQUEIRO Gleb py pee,
(Fer proof of sarvce of this summons, use Proof of Service of Summans (ferm POS-010).)
(Para prueba go aniraga de osta ciation use el formutario Preot of Sarace ot Summons, (FOS-010))
ma NOTICE TO THE PERSON SERVED: Vou are servad
1 (1 4s anindndval defendant.
2 (1 as the person sued under the fientous namo of (specity)
2 ‘on behalf of (specity): South East Employee Leasing Services, Inc.,a Florida corporation
under BE] CCP 446.10 (corporatan) (cep 416.60 (mary
(J SGP 416.20 (defunct comoration) () COP 416.70 (consorvatee)
[-} CeP 416.40 (association or pannershiny [_] CCP 416.90 {autnenzed parsan)
(75 ather tspecityy:
Lg pee] by petscuat catvary un (tare) 02/)9/2020
Temata nena Cie SUMMONS
(Coures ef Caroma
Btw.00 Flee adr 7001MARLIN & SALTZMAN, LLP
Stanley D. Saltzman. Esq. (SBN 090058)
Cody R. Kennedy, Esq. (SBN 296061)
29800 Agoura Road. Suite 210
Agoura Hills. California 91301
Telephone: (818) 991-8080
Facsimile: (818) 991-8081
ssaltzman@marlinsallzman.com
ckennedy@imarlinsaltzman.com
DAVTYAN LAW FIRM, INC.
Emil Davtyan, Esq. (SBN 299363)
880 E. Broadway
Glendate, California 91205
Telephone: (818) 992-2935
Facsimlic: (818) 975-5525
Emil@davtyanlaw.com
Attomeys for Plainiifts
Michact Higginbotham and Marcelino Decierdo
FILED BY FAX
FILED
PT MEDD BH 9: 15S
ROCA JUN SUEIRD. CLERK
ar_ZENNY RODRIQUEZ
SUPERIOR COURT FOR THE STATE OF CALIFORNIA
COUNTY OF SAN JOAQUIN
MICHAEL HIGGINBOTHAM and
MARCELINO DECIERDO, for themselves and
for all other current and former aggrieved
employees.
Plaintifls,
vw
SOUTH EAST EMPLOYEE LEASING
SERVICES, INC., a Florida corporation;
SOUTH EAST PERSONNEL LEASING
SERVICES, INC., a Florida corporation; and
DOES 1-100. inclusive,
Defendants.
CASENO. gexec YE -2020- 1S
COMPLAINT FOR VIOLATION OF LABOR
CODE §§ 2698 ef seq. (“PRIVATE
ATTORNEYS GENERAL ACT")
THE CASE HAS BEEN ASSIGNED TO
JUDGE MICHAEL J. MULVIHILL, JR. IN
DEPARTMENT 100 FOR Al
INCLUDING TRIAL 11 PURPOSES,
COMPLAINTw
cD WwW IAD Bw
Plaintiffs Michael Higginbotham and Marcelino Decierdo (hereinatater “Plaintilfs") hereby
submit this Complaint against Defendants South East Employee Leasing Services, Inc.. South East
Personnel Leasing Services. Inc.. Monument Security, Inc.. and Does 1-100 (hereinafter collectively
referred 10 as “Delendants”) as aggrieved employees, on behalf of themselves and as representatives
of other similarly aggrieved employees who work or have worked al South East Employee Leasing
Services. Inc., South East Personnel Leasing Services, Inc., or Monument Security. Inc. (collectively
“Defendants"), pursuant to the procedures specified in Section 2699.3, (hereinafter referred to as
“aggrieved employees”).
INTRODUCTION
1 Plaintiffs are informed and believe, and based thereon alleges, that Defendants, jointly
and severally, have acted intentionally and with deliberate indifference and conscious disregard to the
rights of all aggrieved employees in failing to provide required meal and rest periods, regular time
wages, minimum wages, overtime wages. failing to keep required records, provide accurate itemized
wage statements, and timely pay all earned wages, and penalties thereon.
2. Pfaintiffs are informed and believe, and based thereon allege. that Defendants have
engaged in. among other things, a system of willful violations of the California Labor Code and the
California Code of Regulations (applicable !WC Wage Orders) by creating and maintaining policies,
practices and customs that did not comply with California's wage and hour laws regarding provision
of meal and rest periods, payment of regular time wages, minimum wages. overtime wages, failure to
reimburse work related expenses, issuance of accurate itemized wage statements, and limely payment
of all wages earned, when due. and penalties thereon. These violations are based upon actions by the
Defendants including. but not limited to. requiring Plaintiff and other employces to remain on-duty
without being provided compliant meal and rest periods, nor being paid for said time worked.
VENUE
3. Venue in this Court is proper because Defendants do business within San Joaquin
Vailey, Plaintiff was employed by Defendants in San Joaquin County, and actions giving rise to the
claim alleged herein occurred in San Joaquin County.
dl
2
COMPLAINTPARTIES
4, Plaintiff Michael Higginbotham was employed by Defendants during the applicable
time period and until November 30. 2018, and Plaintiff Decierdo was employed until November 12.
2018. Plaintiffs were classified as a non-exempt “security guard” employees during the full period of
their employment with Defendants. Plaintiffs allege that Defendants failed to abide by the California
wage and hour laws for work performed in California in the following ways: Defendants (a) Failed to
Pay Timely Wages (Labor Code §§ 201, 202. 201.3. 203, 204, 558): (b) Failed to Provide Meal And
Rest Periods or Premiums Payments in Lieu Thereof (Labor Code §§ 226.7. 512, 558: Wage Order):
{c) Failed to Maintain Required Employment Records (Labor Code §§ 1174, et seq., 558; Wage
Order); (d) Failed to Pay All Wages Owed Including Minimum Wages and Overtime Premiums
(Labor Code §§ 203. 204, 510. 558. 1194. 1194.2 . 1197, 1197.1, and 1198): (e) Failed to Provide
Accurate Wage Statements (Labor Code §§ 226, 226.3. 558: Wage Order): and (f) Failed to Pay All
Wages Owed Upon Separation From Employment (Labor Code §§ 200-203. 558) Plaintiffs were and
are a victim of Defendants’ policies, practices, and customs complained of above and in this action in
ways that have deprived them of the rights guaranteed to them by California Labor Code, California
Business and Professions Code §§ 17200. et seg. (Unfair Practices Act). and California Code of
Regulations. title 8, § 11070 (codifying Wage Order No. 7-2001).
5. Plaintiffs are informed and believe, and based thereon allege, that South East Employee
Leasing Services, Inc. is a Florida corporation that regularly does business in the State of California.
including providing services and products in San Joaquin County.
6. Plaintiffs are informed and believe. and based thereon allege, that South East Personne!
Leasing Services. Inc. is a Florida corporation that regularly does business in the State of California.
including providing services and products in San Joaquin County.
7h Plaintiffs are informed and believe, and thereon allege, that at all times herein
mentioned. Defendants and DOES | through 100 are and were corporations. business entities.
individuals, and partnerships. licensed to do business and actually doing business in the State of
California.
8. Defendants own. operate, and/or are engaged in the business of security guard services,
3
COMPLAINTSOD we NAH DY
s = 6s
13
and employed Plaintiffs in the State of California and Counties of San Joaquin and Santa Barbara.
9. Plaintiffs do not know the true names or capacities, whether individual, partner or
corporate, of the Defendants sued herein as DOES | through 100, inclusive. and for that reason, said
Defendants are sued under such fictitious names, and Plaintiffs pray leave to amend this complaint
when the true names and capacities are known, Plaintiffs are informed and believe. and thereon
allege, that each of said fictitious Defendants was responsible in some way for the matters alleged
herein and proximately caused Plaintifis and other current or former employees to be subject to the
illegal employment practices, wrongs and injuries complained of herein.
10. Atall times herein mentioned, each of said Defendants participated in the doing of the
acts hereinafter alleged to have been done by the named Defendants; and furthermore, the Defendants,
and each of them, were the agents, servants and employees of each of the other Defendants. as well as
the agents of all Defendants, and at all times herein mentioned, were acting within the course and
scope of said agency and employment.
11. Plaintiffs are informed and believe, and based thereon allege, that at all times material
hereto, each of the Defendants named herein was the joint employer, agent. employer. alter ego and/or
joint venturer of, or working in concert with, each of the other Co-Defendants and was acting within
the course and scope of such agency, employment, joint venture, or concerted activity. To the extent
said acts, conduct, and omissions were perpetrated by certain Defendants, each of the remaining
Defendants confirmed and ratified said acts, conduct, and omissions of the acting Defendants.
12. At all times herein mentioned, Defendants, and each of them. were members of, and
engaged in. a joint venture, partnership and common enterprise, and were acting within the course and
scope of, and in pursuance of. said joint venture, partnership and common enterprise.
13. Atall times herein mentioned. the acts and omissions of various Defendants, and cach
of them, concurred and contributed to the various acts and omissions of each and all of the other
Defendants in proximately causing the injuries and damages as herein alleged. At all times herein
mentioned, Detendants, and each of them. ratified each and every act or omission complained of
herein. At all times herein mentioned, the Defendants, and each of them, aided and abetted the acts
and omissions of each and all of the other Defendants in proximately causing the damages as herein
4
COMPLAINTalleged.
CAUSE OF ACTION
VIOLATION OF LABOR CODE §§ 2698-2699
(Against All Defendants by Plaintiff)
14. Plaintiffs incorporate cach and every one of the foregoing paragraphs of this Complaint
as though set forth in full.
15. This claim for relief is brought pursuant to Labor Code §§ 2698-2699.5, which is the
California Private Attorneys General Act.
16. Pursuant to Labor Code § 2699(a), Plaintiffs are aggrieved employees. on behalf of
himself. and as a proper representative of the other aggrieved employees pursuant to the procedures
specified in Section 2699.3, secks recovery of all applicable civil penalties for Defendants’ violation
of Labor Code §§ 201-204, 223, 226, 226.3, 226.4, 226.7, 510. 512, 558, 1174, 1174.5. 1193.5,
1193.6, 1194, 1194.5, 1195, 1198, 2698-2699.
17, As aggrieved employees. Plaintiffs seck to serve as representatives of the general
public to enforce and uphold California's wage and hour laws as a private attorney general as
expressly permitted by Labor Code §§ 2698. et seq., pursuant to the Private Attorneys General Act of
2004 (“PAGA"). Plaintiffs have complied with all notice provisions and are aggrieved employees as
required by PAGA to serve as a private attorney general and representatives on behalf of the general
public, and recover all penalties and damages that otherwise are reserved for the DLSE, the California
DIR, or the Labor Commissioner of the State of California, In accordance with Labor Code § 2699.3.
on or about November |, 2019, Plaintiffs gave written notice to Defendants by certified mail. return
receipt requested, and to the California Labor and Workforce Development Agency (LWDA")
electronically, A true and correct copy of the written notice is attached to this Complaint as
Exhibit “A” and incorporated by reference into this Complaint.
18. More than sixty (60) days have passed since the date the notice was submitted to the
LWDA and to Defendants, without communication from the LWDA that it intends to prosecute this
action instcad of Plaintiffs.
19, Pursuant to Labor Code § 2699(f), Plaintiffs, as aggrieved employees, on behalf of
5
COMPLAINTw
oMp mw I AH Bw
themselves and other aggrieved employees pursuant to the procedures specified in Section 2699.3 seek
recovery of all applicable civil penalties as follows: :
a. One hundred dollars ($100.00) for each aggrieved employee per pay period for
the initial violation per Labor Code § 2699(f)(2),
b Two hundred dollars ($200.00) for each aggrieved employee per pay period for
each subsequent violation, per Labor Code § 2699(f)(2),
c. Fifty dollars ($50.00) for each underpaid employee for each pay period for
which the employee was underpaid in addition to an amount sufficient to
recover underpaid wages, per Labor Code § 558{a)(!).
a One hundred dollars ($100.00) for each underpaid employee for each pay period
for which the employee was underpaid in addition to an amount sufficient to
recover underpaid wages, per Labor Code § 558(a)(2),
e Two hundred and fifty dollars ($250.00) per employee per violation in an initial
citation per Labor Code § 226.3,
f One thousand dollars ($1,000.00) per employee per violation in a subsequent
citation, per Labor Code § 226.3,
g. Five hundred dollars ($500.00) per Labor Code § 1174.5,
20. Plaintiffs seek less than $75,000.00 in penalties for themselves, and less than
$75,000.00 for any individual current or former employee of Defendants.
COUNT 1: FOR FAILURE TO TIMELY PAY WAGES
(Labor Code §§ 201, 202, 201.3, 203, 204, 538)
21. Plaintiffs incorporate each and every one of the foregoing paragraphs of this Complaint
as though set forth in full.
22, At all times relevant herein, Defendants were, and continue to be, temporary services
employers pursuant to Cal. Lab. Code § 201.3. Specifically, Defendants contract with
clients/customers to supply workers such as Plaintiffs to perform security guard services for said
clients/customers. Defendants regularly engage in negotiation with these Clients/Customers for
matters such as the time and place where the services are to be provided, the type of work, the working
6
COMPLAINTcen A HW BY DN
10
conditions, and the quality and price of the services,
23. For example, Plaintiff Higginbotham performed security guard services on behalf of
Defendants. and was stationed by Defendants at retail stores including a Safeway grocery store in
Stockton, California, and a Big Lots retail store in Stockton, Califomia. Defendants set
Higginbotham’s schedule (including the time when work was to be performed). and the specific
working conditions (including site-specific work duties/requirements), based upon negotiations with
their clients/customers.
24, Plaintiff Decierdo similarly performed security guard services on behalf of Defendants.
but was stationed and scheduled by Delendants to perform work at a Vons grocery store in Lompoc,
California, Defendants similarly set Decierdo’s schedule (including the time when work was to be
performed), and the specific working conditions (including site-specific work duties/requirements),
based upon negotiations with their clients/customers.
25. Defendants further retained the power to determine the assignments or reassignments of
aggrieved employees such as Plaintiffs to specific jobsite(s)/locations for specified time period(s);
Defendants retained the authority to assign or reassign said aggrieved employees to other clients or
customers when the worker is determined unacceptable by a specific client or customer: Defendants
set the rates of pay of said aggrieved employees as part of their initial hiring documents: Defendants
paid those aggrieved employees from their own accounts; and Defendants retained the right to hire and
terminate said aggrieved empfoyces.
26. Having performed work for a Temporary Services Employer pursuant to Cal. Lab.
Code § 201.3, each “employee's wages [were] due and payable no less frequently than weekly,
regardless of when the assignment [ended], and wages for work performed during any calendar week
[were] due and payable not later than the regular payday of the following calendar week.”
27. Despite this legal requirement, Defendants have failed, and continue to fail, to timely
pay wages awed, Defendants have instead instituted an illegal bi-weekly and/or bi-monthly pay
schedule applicable to Plaintiffs and similarly aggrieved employees. Pursuant to Defendants” poticies
and practices regarding the payment of wages, the amounts due and owed for each pay period are not
paid on or before the regular payday of the following calendar week.
7
COMPLAINToo AK Hh YN
28. Additionally, Defendants maintained a policy and practice of failing to record and/or
calculate all hours worked by Plaintiffs and similarly aggrieved employees when determining wages
owed, Becattse such hours were excluded from Defendants’ calculations of wages owed. Defendants
failed to pay any wages for said hours, and such wages were not paid timely.
29. For example, Defendants maintained incorrect records regarding the “date(s) of
termination” and “hours worked” for Plaintiffs and aggrieved employee that did not reflect. and were
not inclusive of, all shifts and hours of work actually worked. Defendants thereafter wholly failed to
issue any wage statements and/or payments for such work, including payment for several weeks*
worth of work performed by Plaintiffs and other aggrieved employees leading up to their termination,
COUNT 2: FAILURE TO ALLOW OR PAY FOR MEAL BREAKS
(Labor Code §§ 226.7, 512, 558; Wage Order)
30. Plaintiffs incorporate each and every one of the foregoing paragraphs of this Complaint
as though set forth in full.
31. Cal. Code Regs.. tit. 8, § 11070 and Labor Code §§ 226.7and 512 make it unlawful for
an employer in this state to fail to provide an employee meal periods, unless premium wages are paid
for any missed meal periods.
32. Labor Code § 226.7 states that “(an} employer shall not require an employee to work
during a meal ... period[.J” “fan employer fails to provide an employee a meal ... period. ..[then] the
employer shall pay the employee one additional hour of pay at the employee's regular rate of
compensation for each workday that the meal ,., period is not provided.”
33. Cal. Code Regs., tit. 8, § 11070 and Labor Code § 512 make it unlawful for an
employer to “employ an employee for a work period or more than five hours per day without
providing the employee with a meal period of not less than 30 minutes,” except if the workday is no
more that six hours, the meal break can be waived by mutual consent. A second meal period of no Icss
than 30 minutes is required for a more than a 10 hour workday, except that if the total hours worked is
no more than 12 hours, the second meal break can be waived by mutual consent, if the first meal break
was not waived,
34. Cal. Code Regs., tit. 8, § 11070 further provides that, “[i]f an employer fails to provide
8
COMPLAINTewe eo IN AW & YW bw
an employee a meal period in accordance with the applicable provisions of this order, the employer
shall pay the employee one (1) hour of pay at the employee’s regular rate of compensation for each
workday that the meal period is not provided.”
35. Plaintiffs allege that Delendants violated the foregoing provisions, in that they were not
provided uninterrupted “off-duty” meal periods, they were not paid for working through their meal
periods, and they were not paid “one additional hour of pay at {his] regular rate of compensation for
each workday that the meal period [was] not provided.”
36. Plaintiffs allege, on information and belief, that Defendant has applied this same policy,
business practice, and/or custom to other aggrieved employees.
37. Defendants maintained a policy and practice of requiring aggrieved employees, such as
Plaintiff Higginbotham, to remain under the control of Defendants at all times during meal and rest
breaks, including but not limited to, requiring employees to remain available/on-duty and/or to remain
at a designated post.
38. During the relevant time period, Plaintiffs and similarly aggrieved employees were
scheduled to work for a period of time no longer than six (6) hours, and did not waive their legally-
mandated meal periods by mutual consent, were required to work for periods longer than five (5)
hours without an uninterrupted meal period of not less than thirty (30) minutes and/or rest period.
39. For example, Defendants intentionally and willfully required Plaintiffs and similarly
aggrieved employees to work during meal periods and failed to compensate Plaintiff and the other
class members the full meal period premium for work performed during meal periods,
40. Specifically, Plaintiffs and similarly aggrieved envployees were required during both
meal and rest periods to remain under Defendants direction and control and were not permitted to
leave their designated work stations and/or work premises. Further. during said meal and rest periods
Plaintiffs and similarly aggrieved employees were required to remain on-duty, on-call, and responsive
to any employer requests that may be issued during that time.
41. During the relevant time period, Defendants failed to pay Plaintiff and all aggrieved
employees the full meal and rest period premiums due pursuant to California Labor Cade section
226.7.
COMPLAINTCc oe NAH Ra YW DN
42. Cal. Code Regs. tit. 8, § 11070 and Labor Code § 558 provides for a civi) penalty
against an employer or anyone acting on the employer's behalf, who violates wage provisions, in the
amount of $80 for each underpaid employee for each pay period for which the employee was
underpaid in addition to an amount sufficient to recover underpaid wages. For each subsequent
violation, the civil penalty is $100 for each underpaid employee for each pay period for which the
employee was underpaid in addition to an amount sufficient to recover underpaid wages.
43. Plaintiffs allege that they and all other aggrieved employees are entitled to recover the
civil penalties and their unpaid wages.
COUNT 3: FAILURE TO ALLOW OR PAY FOR REST BREAKS
(Labor Code §§ 226.7, 512, 558; Wage Order)
44, Plaintiff's incorporate cach and every one of the foregoing paragraphs of this Complaint
as though set forth in full at this point.
45. Cal. Code Regs., tit. 8, § 11070 and Labor Code § 226.7 makes it unlawful) for an
employer in this state to fail to provide an employee rest breaks, unless premium wages are paid for
any missed rest breaks.
46. Labor Code § 226.7 states that “[an] employer shall not require an employee to work
during a [rest period.]” “If an employer fails to provide an employee a [rest break] ...[then] the
employer shall pay the employee one additional hour of pay at the employee’s regular rate of
compensation for each workday that the [rest break] is not provided.”
47. Plaintiffs were regularly scheduled as a matter of uniform company policy to work, and
in fact worked, without rest breaks in violation of Cal. Code Regs.. tit. 8, § 11070, Catifornia Labor
Code § 226.7, and the Wage Order, in that he was not permitted to take one (1) ten (10) minute break
for every four (4) hours worked
48, Plaintiffs allege that Defendants violated the foregoing provisions, in that they were not
provided rest breaks and were required to remain on duty through any and all purported breaks. they
were not paid for working through their meal and rest breaks, and they were not paid “one additional
hour of pay at [his] regular rate of compensation for each workday that the [rest break] is not
provided.”
10
COMPLAINT49. Plaintiffs allege, on information and belief, that Defendant has applied this same policy,
business practice, and/or custom to other aggrieved employees.
50. Cal. Code Regs., tit. 8, § 11070 and Labor Code § 358 provides for a civil penalty
against an employer or anyone acting on the employer's behalf, who violates wage provisions, in the
amount of $50 for each underpaid employee for each pay period for which the employee was
underpaid in addition to an amount sufficient to recover underpaid wages. For each subsequent
violation, the civil penalty is $100 for cach underpaid employee for each pay period for which the
employee was underpaid in addition to an amount sufficient to recover underpaid wages.
51. Plaintiffs allege that they and all other aggrieved employees are entitled to recover the
civil penalties and their unpaid wages.
COUNT 4: FAILURE TO MAINTAIN REQUIRED RECORDS
(Labor Code §§ 1174, et seq., 558; Wage Order)
52. Plaintiffs incorporate each and every one of the foregoing paragraphs of their
Complaint as though set forth in full at this point.
53. Labor Code § 1174 and Cal. Code Regs.. tit. 8, § [1070(7) make it unlawful for an
employer to fail to maintain accurate employment records of all employees.
$4. Labor Code §1174 requires that every person employing labor in this state shall keep a
record showing the names and addresses of all employees employed and the ages of all minors. Cal.
Code Regs., tit. 8, §11070(7), likewise, requires “[e]very employer shall keep accurate information
with respect to each employee,” including: “Time records showing when the employee begins and
ends each work period. Meal periods, split shift intervals and total daily hours worked shall also be
recorded...5 “Total wages paid each payroll period,” and “Total hours worked in the payroll period
and applicable rates of pay.”
55, Plaintiffs allege that Defendants failed to keep accurate payroll and timekeeping
records, as required by law.
56. For example, Defendants failed to institute a proper time keeping system, policies, or
procedures that accurately recorded hours worked, and instead relied only upon inaccurate general
time summaries. Among other deficiencies, these inaccurate general time summaries failed to maintain
vy
COMPLAINTpunch in and punch out records showing when each employee actually began and ended each work
period along with the start and end of meal periods to the extent applicable. To the extent that any time
and pay records were kept by Defendants they were often incomplete and wholly excluded hours or
portions of hours worked. Notably, as discussed above, Defendants wholly failed to maintain several
weeks of time and pay records for Plaintiffs and aggrieved employces for time worked leading up to
their termination, and maintained improper records of the actual dates of termination,
57. Accordingly, because Defendants’ records fail to include when each employee actually
began and ended each work period, the start and end of meal periods, accurate and complete total daily
hours worked, accurate and complete total hours worked in the pay period, and accurate and accurate
and complete records of wages actually owed, Defendants have violated and continue to violate Labor
Code section 1174.5 and the Wage Order.
58. Plaintiffs allege, on information and belief, that Defendants have applied this same
policy, business practice, and/or custom to other aggrieved employees.
59. Labor Code § 1174.5 provides for a civil penalty against an employer who willfully
fails to maintain accurate records or five hundred dollars ($500).
60. Plaintiffs allege that they and all other aggrieved employees are entitled to recover the
civil penalties for Defendants’ failure to maintain records in accordance with Labor Code § 1174 and
the applicable Wage Order.
COUNT 5: FAILURE TO PAY REGULAR AND OVERTIME WAGES
(Labor Code §§ 203, 204, 510, 558, 1194, 1494.2 , 1197, 1197.1, and 1198)
61. Plaintiffs incorporate each and every one of the foregoing paragraphs of their
Complaint as though set forth in full at this point.
62. Under California law, “hours worked” is defined as “the time during which an
employee is subject to the control of an employer, and includes all the time the employee is suffered or
permitted to work, whether or not required to do so.”
63. Here, Plaintiffs and similarly aggrieved employees performed regular work (e.g.
security guard duties) under the direction and control of Defendants that was not accurately recorded
or maintained by Defendants’ timekeeping systems, and/or was recorded but purposefully excluded by
12
COMPLAINTwoe NDA UW FF WH
Defendants when calculating wages owed. Defendants thereafter failed to issue payments (including
minimum and overtime wages) for such work.
64. As described above, Defendants failed to institute a proper time keeping system,
policies, or procedures that accurately recorded hours worked, and instead relied only upon inaccurate
general time summaries. Among other deficiencies, these inaccurate general time summaries failed to
maintain punch in and punch out records showing when each employee actually began and ended each
work period along with the start and end of meal periods to the extent applicable. Such deficiencies
resulted in an underpayment of wages to Plaintiffs and similarly aggrieved employees.
65. Further, to the extent that any time and pay records were kept by Defendants. payment
was regularly not provided for all hours worked. Specifically, Defendants regularly improperly
excluded time worked (both recorded and unrecorded) from its calculations of payments owed, and
thereafter failed to issue any payments whatsoever for such time. Notably, as discussed above,
Defendants wholly failed to provide payment to Plaintiffs and aggrieved employees for several weeks’
worth of time worked leading up to their termination.
66, Defendants were at all times aware that such work was being performed, and such work
was carried out under the direction and supervision of Defendants and Defendants’ agents.
67. Defendants were required to timely compensate Plaintiffs with at least the minimum
wage (or overtime wages where applicable) for all hours worked
68. Further, while employed by Defendants, Plaintiffs were regularly and customarily
required to work more than eight (8) hours in a day or forty (40) hours in a week, and in fact did so.
69. The above-described unpaid time worked by aggrieved employees regularly consisted
of time worked in excess of eight (8) hours in a day. and/or in excess of forty (40) hours in a week.
Defendant intentionally and willfully failed to pay overtime wages owed for such time.
70. By failing to compensate Plaintiffs for the hours actually worked, Defendants have
failed and continue to fail to pay overtime compensation owed Plaintiffs pursuant to the Wage Order
and the California Labor Code and Code of Regulations,
71. — Plaintiffs are informed and believe, and based hereon allege, that Defendants’ policy
and practice of requiring overtime work and not paying for said work according to overtime mandates
13
COMPLAINTCw NUN AH Bw
10
of California law is, and at all times herein mentioned was, in violation of California Labor Code
§ 1194, applicable regulations, and the Wage Order. Defendants’ employment policies and practices
wrongfully and illegally failed to pay Plaintiffs for overtime compensation earned as required by
California law. Plaintiffs alleges, on information and belief, that Defendant has applied this same
policy, business practice, and/or custom to other employees whose employment with Defendants has
terminated. Such employees are aggrieved employces under Labor Code § 2699(c).
72, Cal, Code Regs., tit. 8, § 11070 and Labor Code § 558 provides for a civil penalty
against an employer or anyone acting on the employer's behalf, who violates wage provisions, in the
amount of $50 for each underpaid employee for each pay period for which the employee was
underpaid in addition to an amount sufficient to recover underpaid wages. For each subsequent
violation, the civil penalty is $100 for each underpaid employee for each pay period for which the
employee was underpaid in addition to an amount sufficient to recover underpaid wages.
73. Plaintiffs allege that they and all other aggrieved employees are entitled to recover the
civil penalties and their unpaid wages.
COUNT 6: FAILURE PROVIDE ACCURATE AND ITEMIZED WAGE STATEMENTS
74. Plaintiffs incorporate each and every one of the foregoing paragraphs of this Complaint
as though set forth in full at this point.
75. — Labor Code § 226 makes it unlawful for an employer to fail to provide accurate and
itemized wage statements to its employees.
76. Pursuant to California Labor Code Section 226(a), Plaintiffs and the other aggrieved
employees were entitled to receive, semimonthly or at the time of each payment of wages, an accurate
itemized statement showing, infer alfa: (a) gross wages earned; (b) net wages earned; (c) all applicable
hourly rates in effect during the pay period; and (d) the corresponding number of hours worked at cach
hourly rate by the employee.
77, Plaintiffs allege that they, and similarly aggrieved employees, did not receive accurate
itemized wage statements, as required by law, in that the wage statements provided to them did not
accurately reflect correct figures for gross wages earned, total hours worked, net wages earned, and/or
all applicable hourly rates in effect with the corresponding number of hours worked at each hourly
14
COMPLAINTCoot AH Bw N
rate. Further, the wage statements failed to list the name and address of each legal entity that is the
employer, such as the name and address of Defendant South East Personnel Leasing Services. Inc,
Plaintiffs allege, on information and belief, that Defendant have applied this same policy, business
practice, and/or custom to other aggrieved employees.
78. As set forth above, Defendants did not keep accurate timekeeping or payroll records
and, failed to provide accurate and complete information, as required by law. Accordingly, Plaintiff
and the aggrieved employees could not easily and promptly determine from their wage statements,
alone, that they had been properly paid or the true legal name of each and every applicable employer
and co/joint employer.
79. Labor Code § 226.3 provides for a civil penalty against an employer who violates
§ 226(a) of two hundred fifty dollars ($250.00) per employee for the initial violation and one thousand
dollars ($1,000.00) per employee for each subsequent violation.
80. Plaintiff alleges that he and all other aggrieved employees are entitled to recover all
civil penalties prescribed by statute.
COUNT7: FAILURE TO PAY ALL EARNED WAGES ON TERMINATION
81. Plaintiffs incorporate each and every one of the foregoing paragraphs of this Complaint
as though set forth in full at this point.
82. _ Labor Code §§ 201-203 make it unlawful for an employer in this state to fail to pay for
any and/or all wages earned by an employee. Labor Code § 200 defines “wages” as “all amounts for |
labor performed by employees of every description, whether the amount is fixed or ascertained by the
standard of time, task, piece, commission basis, or other method of calculation.” That section defines
“labor” as “labor, work or other service ... performed personally by the person demanding payment.”
83. Labor Code § 201 provides that upon termination of employment, by the employer's
discharge of the employee, “the wages earned and unpaid at the time of discharge are due and payable
immediately.”
84. Labor Code § 202 provides that if an employee terminates employment, “wages shall
become due and payable not later than 72 hours thereafter, unless the employee has given 72 hours
previous notice of his or her intention to quit, in which case the employee is entitled to his or her
15
COMPLAINTD> oN A HN & YBN =
yvR YN YN NWN See a i iia ai ie
RBRRBRBRRBBESSEUATBEBROS
wages at the time of quitting.”
85. Labor Code § 203 provides that if an employer fails to timely pay all earned wages at
the time employment is terminated. “the wages of the employee shall continue as a penalty from the
due date thereof at the same rate until paid or until an action therefor is commenced; but the wages
shall not continue for more than 30 days.”
86. Plaintiffs allege that Defendants violated the foregoing provisions, in that upon their
termination, they were not paid for all earned wages, including minimum wages, overtime wages, and
premium wages, in their final paychecks, including but not limited to wages for hours which
Defendants illegally failed to record via their timekeeping methods, practices, and procedures and/or
otherwise failed to include when calculating the payment of wages owed as described previously
herein, Defendants were at all times aware that wages were owed yet unpaid. Plaintiffs further allege
that more than 30 days have passed since the date his employment with Defendants ended.
87. Plaintiffs allege, on information and belief, that Defendants have applied this same
policy, business practice, and/or custom to other employees whose employment with Defendants have
terminated. Such employees are aggrieved employees under Labor Code § 2699(c).
88. Labor Code § 558 provides for a civil penalty against an employer or anyone acting on
the employer's behalf, who violates wage provisions, in the amount of $50 for each underpaid
employee for each pay period for which the employee was underpaid in addition to an amount
sufficient to recover underpaid wages. For cach subsequent violation, the civil penalty is $100 for
each underpaid employee for each pay period for which the employee was underpaid in addition to an
amount sufficient to recover underpaid wages.
89. Plaintiffs allege that they and all other aggrieved employees are entitled to recover the
civil penalties and their unpaid wages.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs, as aggrieved employces, on behalf of themselves and other current
or former similarly aggrieved employees pursuant to the procedures specified in Section 2699.3, prays
for judgment as follows:
1. Upon the First Cause of Action, for penalties pursuant to statute as set forth in
16
COMPLAINTCalifornia Labor Code California Labor Code $§ 201-204, 223, 226, 226.3, 226.4, 226.7, 510, 512,
558. 1174, 1174.5, 1193.5, 1193.6, 1194, 1194.5, 1198, 2802, 2698-2699 and California Code of
Regulations, title 8, § 11070 (codifying Wage Order No. 7-2001), not to exceed $75,000.00 for
Plaintiff Seruge individually nor to exceed $75,000.00 for any individual aggrieved employee of
Defendants, and for costs and attorneys’ fees; and
2. For such other and further relief the court may deem just and proper.
DATED: January 9, 2020 MARLIN & SALTZMAN, LLP
DAVTYAN, PLC
Lh bod
Fenty D. Sal Esq.
‘Cody R. Kenngfy, Esq.
Bradley R. Fagnani, Esq.
Attorneys for Plaintiff
17
COMPLAINTEXHIBIT A
to ComplaintMARLIN « SALTZMAN Davtyan PLC
Emil Davtyan
CLASS ACTIONS, MASS TORTS & CATASTROPING INJURIES 21900 Burbank Blvd Ste 300
29800 Agoura Road, Suite 210 | Agoura Hils,CA 91301 | 818.991.808 Woodland Hills, CA 91367-7418
Cody R. Kennedy
ckannedy@mertinsatzman.com
November 1, 2019
Electronically Filed
California Labor & Workforce Development Agency
Attn: PAGA Administrator
455 Golden Gate Avenue, 9" Floor
San Francisco, California 94102
Re: Michael Higginbotham, et at. v. South East Employee Leasing Services, Inc. et al.
To Whom It May Concern:
Notice is hereby provided as required by Labor Code §2699.3 that Michael Higginbotham and
Marcelino Decierdo (hereinafter collectively “Plaintiffs"), on behalf of themselves and all other
aggrieved current and former employees of South East Employee Leasing Services, Inc.; South
East Personnel Leasing Services, Inc., and Monument Security, Inc. (collectively “Defendants™).
allege that Defendants have violated, and continue to violate. the provisions of the Labor Code
and wages orders promulgated by the Industrial Welfare Commission. Those aggrieved employces
are all persons who, within the relevant statutes of limitations, have been or currently are employed
in California by Defendants who have suffered one or more of the violations alleged herein
pursuant to Labor Code §2699(c). Specifically, Plaintiffs believe that the aggrieved employees
include nonexempt workers who were employed as security guards, or in substantially
similar/related positions during the applicable statute of limitations period (the “Relevant Time-
Period”)
During the relevant time-period, Mr. Higginbotham was employed by Defendants as a nonexempt
security guard within San Joaquin County, California until approximately November 30, 2018,
and Mr. Decierdo was employed by Defendants as a nonexempt security guard within Santa
Barbara County, California until approximately November £2, 2018.
Plaintiffs were hired in California and performed work in California. Pursuant to California Labor
Code § 2699.3, Plaintiffs hereby provide notice of certain Labor Code violations by Defendants.
More specifically, Plaintiffs, on behalf of themselves and all similarly aggrieved employees
23800 Agoura Road, Suite 210 | Agoura Hills,CA91301 | 818.991.8080California Labor & Workforce Development Agency
Attn: PAGA Administrator
November 1, 2019
Page 2
(hereinafter referred to as “aggrieved employees”), allege that Defendants violated several sections
of California's Labor Code and Wage Orders as follows:
FOR FAILURE TO TIMELY PAY WAGES
(Labor Code §§ 201, 202, 201.3, 203, 204, 558)
Atall times relevant herein, Defendants were, and continue to be, temporary services employers
pursuant to Cal. Lab. Code § 201.3. Specifically, Defendants contract with clients/customers to
supply workers. (including, but not limited to, Plaintiffs) to perform security guard services for
said clients/customers. Defendants regularly engage in negotiation with these Clients/Customers
for matters such as the time and place where the services are to be provided. the type of work, the
working conditions, and the quality and price of the services.
For example, Plaintiff Higginbotham performed security guard services on behalf of Defendants,
and was stationed by Defendants at retail stores including a Safeway grocery store in Stockton,
California, and a Big Lots retail store in Stockton, California, Defendants set Higginbotham’s
schedule (including the time when work was to be performed), and the specific working conditions
(including site-specific work duties/requirements), based upon negotiations with their
clients/customers.
Plaintiff Decierdo similarly performed security guard services on behalf of Defendants, but was
stationed and scheduled by Defendants to perform work at a Vons grocery store in Lompoc,
California. Defendants similarly set Decierdo’s schedule (including the time when work was to be
performed), and the specific working conditions (including site-specific work
duties/requirements), based upon negotiations with their clients/customers.
Defendants further retained the power to determine the assignments or reassignments of aggrieved
employees such as Plaintiffs to specific jobsite(s)locations for specified time period(s):
Defendants retained the authority to assign or reassign said aggrieved employees to other clients
or customers when the worker is determined unacceptable by a specific client or customer:
Defendants set the rates of pay of said aggrieved employees as part of their initial hiring
documents; Defendants paid those aggrieved employees from their own accounts; and Defendants
retained the right to hire and terminate said aggrieved employees.
Having performed work for a Temporary Services Employer pursuant to Cal. Lab. Code § 201.3,
each “employee's wages [were] due and payable no less frequently than weekly, regardless of
when the assignment (ended). and wages for work performed during any calendar week [were]
due and payable not later than the regular payday of the following calendar week.”
Despite this legal requirement, Defendants have failed, and continue to fail, to timely pay wages
owed. Defendants have instead instituted an illegal bi-weekly and/or bi-monthly pay schedule
applicable to Plaintiffs and similarly aggrieved employees. Pursuant to Defendants’ policies andCalifornia Labor & Workforce Development Agency
Attn: PAGA Administrator
November 1, 2019
Page 3
practices regarding the payment of wages, the amounts due and owed for each pay period are not
paid on or before the regular payday of the following calendar week.
Additionally, Def
Preview
Gordon & Rees LLP 633 West Fifth Street, Suite 5200 Los Angeles, CA 90071 Cc em NA HW BW NY o Il RIL ERIC R. DEITZ (SBN: 222565) psy ny thine edeitz/@ersm.com et OP OO EID 42 LINDSAY C. DAVID (SBN: 283267) Idavid@grsm.com TATIANA DUPUY (SBN: 246705) tdupuy@ersm.com GORDON & REES LLP 633 West Fifth Street, Suite 5200 Los Angeles, CA 90071 Telephone: (213) 334-7219 Facsimile: (213) 680-4470 Attorneys for Defendant SOUTH EAST PERSONNEL LEASING, INC. (also sued herein as SOUTH EAST EMPLOYEE LEASING SERVICES, INC., a Florida corporation) SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN JOAQUIN MICHAEL HIGGINBOTHAM and CASE NO. STK-CV-UOE-2020-425 MARCELINO DECIERDO, for themselves and for all other current and former aggrieved employees, Judge: Hon. Jayne Hill Dept: 10C REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANT’S MOTION TO BIFURCATE AND SEQUENCE DISCOVERY Plaintiff, v. SOUTH EAST EMPLOYEE LEASING SERVICES, INC. A Florida corporation; SOUTH EAST PERSONNEL LEASING SERVICES, INC., a Florida corporation; and DOES 1-100, inclusive, Hearing Dates for Consideration: January 12, 20 separ 20, 3027 YAN 28 2022 Complaint Filed: January 10, 2020 Trial Date: Not Set. Defendants. De TO THE HONORABLE COURT IN THE ABOVE-REFERENCED MATTER AND TO EACH PARTY AND ATTORNEY OF RECORD IN THIS ACTION: PLEASE TAKE NOTICE THAT Defendant SOUTH EAST PERSONNEL LEASING, INC. (“SPLI”) requests the Court take judicial notice of the following material in its file relating to the above-captioned matter pursuant to Evidence Code 452(d)(1) and California Rules of Court Rule 3.1306(c) of the following: -1- REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION TO BIRFURCATE FILE BY FAXGordon & Rees LLP 633 West Fifth Street, Suite 5200 Los Angeles, CA 90071 oOo mw DH FF WN 12 1. Complaint filed on January 10, 2020. A courtesy copy is attached for the Court’s convenience as Exhibit A. Dated: November 29, 2021 GORDON REES SCULLY MANSUKHANI, LLP fom By: Qe Eric R. Deitz Lindsay C. David Tatiana Dupuy Attorneys for Defendant SOUTHEAST PERSONNEL LEASING, INC. REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION TO BIRFURCATEEXHIBIT AFILED BY FAX FILED SUM10 sunifons 20M PGB (CITACION JUDICIAL) HUSA JUNQUEIRO. CLERK NOTICE TO DEFENDANT: {AVISO AL DEMANDADO): oy FTA L GOMEZ _ SOUTH EAST EMPLOYEE LEASING SERVICES, INC 0 Forda coworatan SOUTH RAST MERSONNEL UCASING SERVICES, INC,, a Flonuy corporation, ard DOES soclysive: YOU ARE BEING SUED BY PLAINTIFF: {LO ESTA DEMANDANDO Et, DEMANDANTE): MICHAEL F HiGGINaO: 4M and MARCELINO DFCIEROO, for remselves and for all other Sree yea eee foes a coat Tay dBcide agains you waihoul your Dard heard Uniess yourespand wind 30 Gays. Read ine inlormalun teciow. You nave 30 CALE KLAR OAV: aller Tus summons and tegal papers are served on youto tle a wetien resporse al this court and hava a coay served 61 (he plamntit A latter of phone call wl not protect you. Your writen response must be in proper !agal form it you wanl the equn to Bear your lease Thera may be « cout form that you can use for your tesponsa. You ¢an fing those caurt forms and moro information al tha Colfairan Courts lOnsine Self-Help Cemier «www.courtinta.ca.govasctiaelp), your county Law library. or Ino courthouse Reates! you. if yau cannol pay the fing fec, ask sletk for a fee wanet farm. (f you da col fee your response anime, you may tose Ine caso dy datast, and your wages, manay, ana feopeny taken wihout furner warring (tom the enurt, ‘There are other logat equierrents You may wart to cal an allomey nght away. if you do no! know an allomey, you may wanl to cal’ an altemey referral service. Uf you court afford an altornay, you may ba eligible far free lega! senices hom a nanprofil legal services progtam. You can locale hese nonprots greips al ine Cabtomia Lagal Sorvicos Wen site (waw laxhelpcsticmnia org}, the Catfesnia Causa Online Self-Help Center erww.courtinta.ca.gavisetIha'p), of by conlzeting you Iceni court or county bar association. NOTE: The coun has a statutory lien fcr waved feos and costs on ary selUemant ur arbidraLon avrard of $10,000 o1 maze in a civil case. The taxTs len full be paid before tne court wil dams ihe case WAVISC! Lohan demandado Sinn respande dentro de 30 dias, fa come puede decidw en Su contra sin escuchar su versién. Lea la informaciin & Tiere 10 DIAS DC CALENDARIO desputs do quo fe entioguen esta csacitn y papeles legals p2ro prosoniar una respuesta por oscrte en esta baotzca do foyer de su condado a an ta con qua fe quede mds cerca, Sino puece pagar a cuota Ce praseniecién. pica of secretana da /a come quo| ¢6 un formutarta de exanciéa de pogo Ge euol3s, Sino presenta su respuesta a tiempo, puedo perder el caso por ineumpiimianto y la coste io paced lawor su svelto, dinero y bienes sa mas agvertentra Hay otros requisdos egstes. Es recomendanle que liane a un 2bogade tninecistamente. Sina concts b un abogaco, puede fiamor a un servicio do @ abogados. Sino puedy pager a un sbogado, es posible que cumpfo con ios requisitos para obiener servicios legales gratwtos de un lprograma de serviccas tegales sm fines de luero, Pubde encontrar estos grupos sin fries de hicra én el sitio web de CaMlornla Legal Servizas, |Iwirw.tanhelpcalfornie.crg), en ef Cerio de Ayuda de las Cortes de Caklomia, (www.sucate.ca.gay) 0 paritadose en contacto con fa carte oe! lcalegio de abagados iocaes AVISO" ar tey, in cae tene detecho a rectamar las euctas y ins castas exenios pos impanet un gravaman sone Fer recuperacsén de $10,000 o mas de valor recchda mediante vn acverdo o ena conceson de arbitrmje en un caso de derecho cil Tiene que egar el gravamen ge la code antes de que ta corte pueda desechar elcasc. | Tha name and address of the court is; Vor uw OG7 (Einambre y diecersn de fa corto vs}. SAN JOAQUIN COUNTY SUPERIOR COURT STR-CV- ~2020- bU 2 180 E. Wabat Avanuo. Stockton, CA $$202 The name, address, and telephone number of plainuff's attorney, of plainnff without an attorney, is. (21 nombre, fy diteccisn y ei adore de teléfone def abogado del demandanta, o dei demandante aue no nene abogado, es) Starley Setzman-SGN 90058; Cody Kannedy-SBN 296061-MARLIN & SALTZMAN, 29800 Agoura Rd #210, Agoura Hils CA 91301 DATE WE! Clesk, . Deputy fon YAN 10 2020 ROSAJUNQUEIRO Gleb py pee, (Fer proof of sarvce of this summons, use Proof of Service of Summans (ferm POS-010).) (Para prueba go aniraga de osta ciation use el formutario Preot of Sarace ot Summons, (FOS-010)) ma NOTICE TO THE PERSON SERVED: Vou are servad 1 (1 4s anindndval defendant. 2 (1 as the person sued under the fientous namo of (specity) 2 ‘on behalf of (specity): South East Employee Leasing Services, Inc.,a Florida corporation under BE] CCP 446.10 (corporatan) (cep 416.60 (mary (J SGP 416.20 (defunct comoration) () COP 416.70 (consorvatee) [-} CeP 416.40 (association or pannershiny [_] CCP 416.90 {autnenzed parsan) (75 ather tspecityy: Lg pee] by petscuat catvary un (tare) 02/)9/2020 Temata nena Cie SUMMONS (Coures ef Caroma Btw.00 Flee adr 7001MARLIN & SALTZMAN, LLP Stanley D. Saltzman. Esq. (SBN 090058) Cody R. Kennedy, Esq. (SBN 296061) 29800 Agoura Road. Suite 210 Agoura Hills. California 91301 Telephone: (818) 991-8080 Facsimile: (818) 991-8081 ssaltzman@marlinsallzman.com ckennedy@imarlinsaltzman.com DAVTYAN LAW FIRM, INC. Emil Davtyan, Esq. (SBN 299363) 880 E. Broadway Glendate, California 91205 Telephone: (818) 992-2935 Facsimlic: (818) 975-5525 Emil@davtyanlaw.com Attomeys for Plainiifts Michact Higginbotham and Marcelino Decierdo FILED BY FAX FILED PT MEDD BH 9: 15S ROCA JUN SUEIRD. CLERK ar_ZENNY RODRIQUEZ SUPERIOR COURT FOR THE STATE OF CALIFORNIA COUNTY OF SAN JOAQUIN MICHAEL HIGGINBOTHAM and MARCELINO DECIERDO, for themselves and for all other current and former aggrieved employees. Plaintifls, vw SOUTH EAST EMPLOYEE LEASING SERVICES, INC., a Florida corporation; SOUTH EAST PERSONNEL LEASING SERVICES, INC., a Florida corporation; and DOES 1-100. inclusive, Defendants. CASENO. gexec YE -2020- 1S COMPLAINT FOR VIOLATION OF LABOR CODE §§ 2698 ef seq. (“PRIVATE ATTORNEYS GENERAL ACT") THE CASE HAS BEEN ASSIGNED TO JUDGE MICHAEL J. MULVIHILL, JR. IN DEPARTMENT 100 FOR Al INCLUDING TRIAL 11 PURPOSES, COMPLAINTw cD WwW IAD Bw Plaintiffs Michael Higginbotham and Marcelino Decierdo (hereinatater “Plaintilfs") hereby submit this Complaint against Defendants South East Employee Leasing Services, Inc.. South East Personnel Leasing Services. Inc.. Monument Security, Inc.. and Does 1-100 (hereinafter collectively referred 10 as “Delendants”) as aggrieved employees, on behalf of themselves and as representatives of other similarly aggrieved employees who work or have worked al South East Employee Leasing Services. Inc., South East Personnel Leasing Services, Inc., or Monument Security. Inc. (collectively “Defendants"), pursuant to the procedures specified in Section 2699.3, (hereinafter referred to as “aggrieved employees”). INTRODUCTION 1 Plaintiffs are informed and believe, and based thereon alleges, that Defendants, jointly and severally, have acted intentionally and with deliberate indifference and conscious disregard to the rights of all aggrieved employees in failing to provide required meal and rest periods, regular time wages, minimum wages, overtime wages. failing to keep required records, provide accurate itemized wage statements, and timely pay all earned wages, and penalties thereon. 2. Pfaintiffs are informed and believe, and based thereon allege. that Defendants have engaged in. among other things, a system of willful violations of the California Labor Code and the California Code of Regulations (applicable !WC Wage Orders) by creating and maintaining policies, practices and customs that did not comply with California's wage and hour laws regarding provision of meal and rest periods, payment of regular time wages, minimum wages. overtime wages, failure to reimburse work related expenses, issuance of accurate itemized wage statements, and limely payment of all wages earned, when due. and penalties thereon. These violations are based upon actions by the Defendants including. but not limited to. requiring Plaintiff and other employces to remain on-duty without being provided compliant meal and rest periods, nor being paid for said time worked. VENUE 3. Venue in this Court is proper because Defendants do business within San Joaquin Vailey, Plaintiff was employed by Defendants in San Joaquin County, and actions giving rise to the claim alleged herein occurred in San Joaquin County. dl 2 COMPLAINTPARTIES 4, Plaintiff Michael Higginbotham was employed by Defendants during the applicable time period and until November 30. 2018, and Plaintiff Decierdo was employed until November 12. 2018. Plaintiffs were classified as a non-exempt “security guard” employees during the full period of their employment with Defendants. Plaintiffs allege that Defendants failed to abide by the California wage and hour laws for work performed in California in the following ways: Defendants (a) Failed to Pay Timely Wages (Labor Code §§ 201, 202. 201.3. 203, 204, 558): (b) Failed to Provide Meal And Rest Periods or Premiums Payments in Lieu Thereof (Labor Code §§ 226.7. 512, 558: Wage Order): {c) Failed to Maintain Required Employment Records (Labor Code §§ 1174, et seq., 558; Wage Order); (d) Failed to Pay All Wages Owed Including Minimum Wages and Overtime Premiums (Labor Code §§ 203. 204, 510. 558. 1194. 1194.2 . 1197, 1197.1, and 1198): (e) Failed to Provide Accurate Wage Statements (Labor Code §§ 226, 226.3. 558: Wage Order): and (f) Failed to Pay All Wages Owed Upon Separation From Employment (Labor Code §§ 200-203. 558) Plaintiffs were and are a victim of Defendants’ policies, practices, and customs complained of above and in this action in ways that have deprived them of the rights guaranteed to them by California Labor Code, California Business and Professions Code §§ 17200. et seg. (Unfair Practices Act). and California Code of Regulations. title 8, § 11070 (codifying Wage Order No. 7-2001). 5. Plaintiffs are informed and believe, and based thereon allege, that South East Employee Leasing Services, Inc. is a Florida corporation that regularly does business in the State of California. including providing services and products in San Joaquin County. 6. Plaintiffs are informed and believe. and based thereon allege, that South East Personne! Leasing Services. Inc. is a Florida corporation that regularly does business in the State of California. including providing services and products in San Joaquin County. 7h Plaintiffs are informed and believe, and thereon allege, that at all times herein mentioned. Defendants and DOES | through 100 are and were corporations. business entities. individuals, and partnerships. licensed to do business and actually doing business in the State of California. 8. Defendants own. operate, and/or are engaged in the business of security guard services, 3 COMPLAINTSOD we NAH DY s = 6s 13 and employed Plaintiffs in the State of California and Counties of San Joaquin and Santa Barbara. 9. Plaintiffs do not know the true names or capacities, whether individual, partner or corporate, of the Defendants sued herein as DOES | through 100, inclusive. and for that reason, said Defendants are sued under such fictitious names, and Plaintiffs pray leave to amend this complaint when the true names and capacities are known, Plaintiffs are informed and believe. and thereon allege, that each of said fictitious Defendants was responsible in some way for the matters alleged herein and proximately caused Plaintifis and other current or former employees to be subject to the illegal employment practices, wrongs and injuries complained of herein. 10. Atall times herein mentioned, each of said Defendants participated in the doing of the acts hereinafter alleged to have been done by the named Defendants; and furthermore, the Defendants, and each of them, were the agents, servants and employees of each of the other Defendants. as well as the agents of all Defendants, and at all times herein mentioned, were acting within the course and scope of said agency and employment. 11. Plaintiffs are informed and believe, and based thereon allege, that at all times material hereto, each of the Defendants named herein was the joint employer, agent. employer. alter ego and/or joint venturer of, or working in concert with, each of the other Co-Defendants and was acting within the course and scope of such agency, employment, joint venture, or concerted activity. To the extent said acts, conduct, and omissions were perpetrated by certain Defendants, each of the remaining Defendants confirmed and ratified said acts, conduct, and omissions of the acting Defendants. 12. At all times herein mentioned, Defendants, and each of them. were members of, and engaged in. a joint venture, partnership and common enterprise, and were acting within the course and scope of, and in pursuance of. said joint venture, partnership and common enterprise. 13. Atall times herein mentioned. the acts and omissions of various Defendants, and cach of them, concurred and contributed to the various acts and omissions of each and all of the other Defendants in proximately causing the injuries and damages as herein alleged. At all times herein mentioned, Detendants, and each of them. ratified each and every act or omission complained of herein. At all times herein mentioned, the Defendants, and each of them, aided and abetted the acts and omissions of each and all of the other Defendants in proximately causing the damages as herein 4 COMPLAINTalleged. CAUSE OF ACTION VIOLATION OF LABOR CODE §§ 2698-2699 (Against All Defendants by Plaintiff) 14. Plaintiffs incorporate cach and every one of the foregoing paragraphs of this Complaint as though set forth in full. 15. This claim for relief is brought pursuant to Labor Code §§ 2698-2699.5, which is the California Private Attorneys General Act. 16. Pursuant to Labor Code § 2699(a), Plaintiffs are aggrieved employees. on behalf of himself. and as a proper representative of the other aggrieved employees pursuant to the procedures specified in Section 2699.3, secks recovery of all applicable civil penalties for Defendants’ violation of Labor Code §§ 201-204, 223, 226, 226.3, 226.4, 226.7, 510. 512, 558, 1174, 1174.5. 1193.5, 1193.6, 1194, 1194.5, 1195, 1198, 2698-2699. 17, As aggrieved employees. Plaintiffs seck to serve as representatives of the general public to enforce and uphold California's wage and hour laws as a private attorney general as expressly permitted by Labor Code §§ 2698. et seq., pursuant to the Private Attorneys General Act of 2004 (“PAGA"). Plaintiffs have complied with all notice provisions and are aggrieved employees as required by PAGA to serve as a private attorney general and representatives on behalf of the general public, and recover all penalties and damages that otherwise are reserved for the DLSE, the California DIR, or the Labor Commissioner of the State of California, In accordance with Labor Code § 2699.3. on or about November |, 2019, Plaintiffs gave written notice to Defendants by certified mail. return receipt requested, and to the California Labor and Workforce Development Agency (LWDA") electronically, A true and correct copy of the written notice is attached to this Complaint as Exhibit “A” and incorporated by reference into this Complaint. 18. More than sixty (60) days have passed since the date the notice was submitted to the LWDA and to Defendants, without communication from the LWDA that it intends to prosecute this action instcad of Plaintiffs. 19, Pursuant to Labor Code § 2699(f), Plaintiffs, as aggrieved employees, on behalf of 5 COMPLAINTw oMp mw I AH Bw themselves and other aggrieved employees pursuant to the procedures specified in Section 2699.3 seek recovery of all applicable civil penalties as follows: : a. One hundred dollars ($100.00) for each aggrieved employee per pay period for the initial violation per Labor Code § 2699(f)(2), b Two hundred dollars ($200.00) for each aggrieved employee per pay period for each subsequent violation, per Labor Code § 2699(f)(2), c. Fifty dollars ($50.00) for each underpaid employee for each pay period for which the employee was underpaid in addition to an amount sufficient to recover underpaid wages, per Labor Code § 558{a)(!). a One hundred dollars ($100.00) for each underpaid employee for each pay period for which the employee was underpaid in addition to an amount sufficient to recover underpaid wages, per Labor Code § 558(a)(2), e Two hundred and fifty dollars ($250.00) per employee per violation in an initial citation per Labor Code § 226.3, f One thousand dollars ($1,000.00) per employee per violation in a subsequent citation, per Labor Code § 226.3, g. Five hundred dollars ($500.00) per Labor Code § 1174.5, 20. Plaintiffs seek less than $75,000.00 in penalties for themselves, and less than $75,000.00 for any individual current or former employee of Defendants. COUNT 1: FOR FAILURE TO TIMELY PAY WAGES (Labor Code §§ 201, 202, 201.3, 203, 204, 538) 21. Plaintiffs incorporate each and every one of the foregoing paragraphs of this Complaint as though set forth in full. 22, At all times relevant herein, Defendants were, and continue to be, temporary services employers pursuant to Cal. Lab. Code § 201.3. Specifically, Defendants contract with clients/customers to supply workers such as Plaintiffs to perform security guard services for said clients/customers. Defendants regularly engage in negotiation with these Clients/Customers for matters such as the time and place where the services are to be provided, the type of work, the working 6 COMPLAINTcen A HW BY DN 10 conditions, and the quality and price of the services, 23. For example, Plaintiff Higginbotham performed security guard services on behalf of Defendants. and was stationed by Defendants at retail stores including a Safeway grocery store in Stockton, California, and a Big Lots retail store in Stockton, Califomia. Defendants set Higginbotham’s schedule (including the time when work was to be performed). and the specific working conditions (including site-specific work duties/requirements), based upon negotiations with their clients/customers. 24, Plaintiff Decierdo similarly performed security guard services on behalf of Defendants. but was stationed and scheduled by Delendants to perform work at a Vons grocery store in Lompoc, California, Defendants similarly set Decierdo’s schedule (including the time when work was to be performed), and the specific working conditions (including site-specific work duties/requirements), based upon negotiations with their clients/customers. 25. Defendants further retained the power to determine the assignments or reassignments of aggrieved employees such as Plaintiffs to specific jobsite(s)/locations for specified time period(s); Defendants retained the authority to assign or reassign said aggrieved employees to other clients or customers when the worker is determined unacceptable by a specific client or customer: Defendants set the rates of pay of said aggrieved employees as part of their initial hiring documents: Defendants paid those aggrieved employees from their own accounts; and Defendants retained the right to hire and terminate said aggrieved empfoyces. 26. Having performed work for a Temporary Services Employer pursuant to Cal. Lab. Code § 201.3, each “employee's wages [were] due and payable no less frequently than weekly, regardless of when the assignment [ended], and wages for work performed during any calendar week [were] due and payable not later than the regular payday of the following calendar week.” 27. Despite this legal requirement, Defendants have failed, and continue to fail, to timely pay wages awed, Defendants have instead instituted an illegal bi-weekly and/or bi-monthly pay schedule applicable to Plaintiffs and similarly aggrieved employees. Pursuant to Defendants” poticies and practices regarding the payment of wages, the amounts due and owed for each pay period are not paid on or before the regular payday of the following calendar week. 7 COMPLAINToo AK Hh YN 28. Additionally, Defendants maintained a policy and practice of failing to record and/or calculate all hours worked by Plaintiffs and similarly aggrieved employees when determining wages owed, Becattse such hours were excluded from Defendants’ calculations of wages owed. Defendants failed to pay any wages for said hours, and such wages were not paid timely. 29. For example, Defendants maintained incorrect records regarding the “date(s) of termination” and “hours worked” for Plaintiffs and aggrieved employee that did not reflect. and were not inclusive of, all shifts and hours of work actually worked. Defendants thereafter wholly failed to issue any wage statements and/or payments for such work, including payment for several weeks* worth of work performed by Plaintiffs and other aggrieved employees leading up to their termination, COUNT 2: FAILURE TO ALLOW OR PAY FOR MEAL BREAKS (Labor Code §§ 226.7, 512, 558; Wage Order) 30. Plaintiffs incorporate each and every one of the foregoing paragraphs of this Complaint as though set forth in full. 31. Cal. Code Regs.. tit. 8, § 11070 and Labor Code §§ 226.7and 512 make it unlawful for an employer in this state to fail to provide an employee meal periods, unless premium wages are paid for any missed meal periods. 32. Labor Code § 226.7 states that “(an} employer shall not require an employee to work during a meal ... period[.J” “fan employer fails to provide an employee a meal ... period. ..[then] the employer shall pay the employee one additional hour of pay at the employee's regular rate of compensation for each workday that the meal ,., period is not provided.” 33. Cal. Code Regs., tit. 8, § 11070 and Labor Code § 512 make it unlawful for an employer to “employ an employee for a work period or more than five hours per day without providing the employee with a meal period of not less than 30 minutes,” except if the workday is no more that six hours, the meal break can be waived by mutual consent. A second meal period of no Icss than 30 minutes is required for a more than a 10 hour workday, except that if the total hours worked is no more than 12 hours, the second meal break can be waived by mutual consent, if the first meal break was not waived, 34. Cal. Code Regs., tit. 8, § 11070 further provides that, “[i]f an employer fails to provide 8 COMPLAINTewe eo IN AW & YW bw an employee a meal period in accordance with the applicable provisions of this order, the employer shall pay the employee one (1) hour of pay at the employee’s regular rate of compensation for each workday that the meal period is not provided.” 35. Plaintiffs allege that Delendants violated the foregoing provisions, in that they were not provided uninterrupted “off-duty” meal periods, they were not paid for working through their meal periods, and they were not paid “one additional hour of pay at {his] regular rate of compensation for each workday that the meal period [was] not provided.” 36. Plaintiffs allege, on information and belief, that Defendant has applied this same policy, business practice, and/or custom to other aggrieved employees. 37. Defendants maintained a policy and practice of requiring aggrieved employees, such as Plaintiff Higginbotham, to remain under the control of Defendants at all times during meal and rest breaks, including but not limited to, requiring employees to remain available/on-duty and/or to remain at a designated post. 38. During the relevant time period, Plaintiffs and similarly aggrieved employees were scheduled to work for a period of time no longer than six (6) hours, and did not waive their legally- mandated meal periods by mutual consent, were required to work for periods longer than five (5) hours without an uninterrupted meal period of not less than thirty (30) minutes and/or rest period. 39. For example, Defendants intentionally and willfully required Plaintiffs and similarly aggrieved employees to work during meal periods and failed to compensate Plaintiff and the other class members the full meal period premium for work performed during meal periods, 40. Specifically, Plaintiffs and similarly aggrieved envployees were required during both meal and rest periods to remain under Defendants direction and control and were not permitted to leave their designated work stations and/or work premises. Further. during said meal and rest periods Plaintiffs and similarly aggrieved employees were required to remain on-duty, on-call, and responsive to any employer requests that may be issued during that time. 41. During the relevant time period, Defendants failed to pay Plaintiff and all aggrieved employees the full meal and rest period premiums due pursuant to California Labor Cade section 226.7. COMPLAINTCc oe NAH Ra YW DN 42. Cal. Code Regs. tit. 8, § 11070 and Labor Code § 558 provides for a civi) penalty against an employer or anyone acting on the employer's behalf, who violates wage provisions, in the amount of $80 for each underpaid employee for each pay period for which the employee was underpaid in addition to an amount sufficient to recover underpaid wages. For each subsequent violation, the civil penalty is $100 for each underpaid employee for each pay period for which the employee was underpaid in addition to an amount sufficient to recover underpaid wages. 43. Plaintiffs allege that they and all other aggrieved employees are entitled to recover the civil penalties and their unpaid wages. COUNT 3: FAILURE TO ALLOW OR PAY FOR REST BREAKS (Labor Code §§ 226.7, 512, 558; Wage Order) 44, Plaintiff's incorporate cach and every one of the foregoing paragraphs of this Complaint as though set forth in full at this point. 45. Cal. Code Regs., tit. 8, § 11070 and Labor Code § 226.7 makes it unlawful) for an employer in this state to fail to provide an employee rest breaks, unless premium wages are paid for any missed rest breaks. 46. Labor Code § 226.7 states that “[an] employer shall not require an employee to work during a [rest period.]” “If an employer fails to provide an employee a [rest break] ...[then] the employer shall pay the employee one additional hour of pay at the employee’s regular rate of compensation for each workday that the [rest break] is not provided.” 47. Plaintiffs were regularly scheduled as a matter of uniform company policy to work, and in fact worked, without rest breaks in violation of Cal. Code Regs.. tit. 8, § 11070, Catifornia Labor Code § 226.7, and the Wage Order, in that he was not permitted to take one (1) ten (10) minute break for every four (4) hours worked 48, Plaintiffs allege that Defendants violated the foregoing provisions, in that they were not provided rest breaks and were required to remain on duty through any and all purported breaks. they were not paid for working through their meal and rest breaks, and they were not paid “one additional hour of pay at [his] regular rate of compensation for each workday that the [rest break] is not provided.” 10 COMPLAINT49. Plaintiffs allege, on information and belief, that Defendant has applied this same policy, business practice, and/or custom to other aggrieved employees. 50. Cal. Code Regs., tit. 8, § 11070 and Labor Code § 358 provides for a civil penalty against an employer or anyone acting on the employer's behalf, who violates wage provisions, in the amount of $50 for each underpaid employee for each pay period for which the employee was underpaid in addition to an amount sufficient to recover underpaid wages. For each subsequent violation, the civil penalty is $100 for cach underpaid employee for each pay period for which the employee was underpaid in addition to an amount sufficient to recover underpaid wages. 51. Plaintiffs allege that they and all other aggrieved employees are entitled to recover the civil penalties and their unpaid wages. COUNT 4: FAILURE TO MAINTAIN REQUIRED RECORDS (Labor Code §§ 1174, et seq., 558; Wage Order) 52. Plaintiffs incorporate each and every one of the foregoing paragraphs of their Complaint as though set forth in full at this point. 53. Labor Code § 1174 and Cal. Code Regs.. tit. 8, § [1070(7) make it unlawful for an employer to fail to maintain accurate employment records of all employees. $4. Labor Code §1174 requires that every person employing labor in this state shall keep a record showing the names and addresses of all employees employed and the ages of all minors. Cal. Code Regs., tit. 8, §11070(7), likewise, requires “[e]very employer shall keep accurate information with respect to each employee,” including: “Time records showing when the employee begins and ends each work period. Meal periods, split shift intervals and total daily hours worked shall also be recorded...5 “Total wages paid each payroll period,” and “Total hours worked in the payroll period and applicable rates of pay.” 55, Plaintiffs allege that Defendants failed to keep accurate payroll and timekeeping records, as required by law. 56. For example, Defendants failed to institute a proper time keeping system, policies, or procedures that accurately recorded hours worked, and instead relied only upon inaccurate general time summaries. Among other deficiencies, these inaccurate general time summaries failed to maintain vy COMPLAINTpunch in and punch out records showing when each employee actually began and ended each work period along with the start and end of meal periods to the extent applicable. To the extent that any time and pay records were kept by Defendants they were often incomplete and wholly excluded hours or portions of hours worked. Notably, as discussed above, Defendants wholly failed to maintain several weeks of time and pay records for Plaintiffs and aggrieved employces for time worked leading up to their termination, and maintained improper records of the actual dates of termination, 57. Accordingly, because Defendants’ records fail to include when each employee actually began and ended each work period, the start and end of meal periods, accurate and complete total daily hours worked, accurate and complete total hours worked in the pay period, and accurate and accurate and complete records of wages actually owed, Defendants have violated and continue to violate Labor Code section 1174.5 and the Wage Order. 58. Plaintiffs allege, on information and belief, that Defendants have applied this same policy, business practice, and/or custom to other aggrieved employees. 59. Labor Code § 1174.5 provides for a civil penalty against an employer who willfully fails to maintain accurate records or five hundred dollars ($500). 60. Plaintiffs allege that they and all other aggrieved employees are entitled to recover the civil penalties for Defendants’ failure to maintain records in accordance with Labor Code § 1174 and the applicable Wage Order. COUNT 5: FAILURE TO PAY REGULAR AND OVERTIME WAGES (Labor Code §§ 203, 204, 510, 558, 1194, 1494.2 , 1197, 1197.1, and 1198) 61. Plaintiffs incorporate each and every one of the foregoing paragraphs of their Complaint as though set forth in full at this point. 62. Under California law, “hours worked” is defined as “the time during which an employee is subject to the control of an employer, and includes all the time the employee is suffered or permitted to work, whether or not required to do so.” 63. Here, Plaintiffs and similarly aggrieved employees performed regular work (e.g. security guard duties) under the direction and control of Defendants that was not accurately recorded or maintained by Defendants’ timekeeping systems, and/or was recorded but purposefully excluded by 12 COMPLAINTwoe NDA UW FF WH Defendants when calculating wages owed. Defendants thereafter failed to issue payments (including minimum and overtime wages) for such work. 64. As described above, Defendants failed to institute a proper time keeping system, policies, or procedures that accurately recorded hours worked, and instead relied only upon inaccurate general time summaries. Among other deficiencies, these inaccurate general time summaries failed to maintain punch in and punch out records showing when each employee actually began and ended each work period along with the start and end of meal periods to the extent applicable. Such deficiencies resulted in an underpayment of wages to Plaintiffs and similarly aggrieved employees. 65. Further, to the extent that any time and pay records were kept by Defendants. payment was regularly not provided for all hours worked. Specifically, Defendants regularly improperly excluded time worked (both recorded and unrecorded) from its calculations of payments owed, and thereafter failed to issue any payments whatsoever for such time. Notably, as discussed above, Defendants wholly failed to provide payment to Plaintiffs and aggrieved employees for several weeks’ worth of time worked leading up to their termination. 66, Defendants were at all times aware that such work was being performed, and such work was carried out under the direction and supervision of Defendants and Defendants’ agents. 67. Defendants were required to timely compensate Plaintiffs with at least the minimum wage (or overtime wages where applicable) for all hours worked 68. Further, while employed by Defendants, Plaintiffs were regularly and customarily required to work more than eight (8) hours in a day or forty (40) hours in a week, and in fact did so. 69. The above-described unpaid time worked by aggrieved employees regularly consisted of time worked in excess of eight (8) hours in a day. and/or in excess of forty (40) hours in a week. Defendant intentionally and willfully failed to pay overtime wages owed for such time. 70. By failing to compensate Plaintiffs for the hours actually worked, Defendants have failed and continue to fail to pay overtime compensation owed Plaintiffs pursuant to the Wage Order and the California Labor Code and Code of Regulations, 71. — Plaintiffs are informed and believe, and based hereon allege, that Defendants’ policy and practice of requiring overtime work and not paying for said work according to overtime mandates 13 COMPLAINTCw NUN AH Bw 10 of California law is, and at all times herein mentioned was, in violation of California Labor Code § 1194, applicable regulations, and the Wage Order. Defendants’ employment policies and practices wrongfully and illegally failed to pay Plaintiffs for overtime compensation earned as required by California law. Plaintiffs alleges, on information and belief, that Defendant has applied this same policy, business practice, and/or custom to other employees whose employment with Defendants has terminated. Such employees are aggrieved employces under Labor Code § 2699(c). 72, Cal, Code Regs., tit. 8, § 11070 and Labor Code § 558 provides for a civil penalty against an employer or anyone acting on the employer's behalf, who violates wage provisions, in the amount of $50 for each underpaid employee for each pay period for which the employee was underpaid in addition to an amount sufficient to recover underpaid wages. For each subsequent violation, the civil penalty is $100 for each underpaid employee for each pay period for which the employee was underpaid in addition to an amount sufficient to recover underpaid wages. 73. Plaintiffs allege that they and all other aggrieved employees are entitled to recover the civil penalties and their unpaid wages. COUNT 6: FAILURE PROVIDE ACCURATE AND ITEMIZED WAGE STATEMENTS 74. Plaintiffs incorporate each and every one of the foregoing paragraphs of this Complaint as though set forth in full at this point. 75. — Labor Code § 226 makes it unlawful for an employer to fail to provide accurate and itemized wage statements to its employees. 76. Pursuant to California Labor Code Section 226(a), Plaintiffs and the other aggrieved employees were entitled to receive, semimonthly or at the time of each payment of wages, an accurate itemized statement showing, infer alfa: (a) gross wages earned; (b) net wages earned; (c) all applicable hourly rates in effect during the pay period; and (d) the corresponding number of hours worked at cach hourly rate by the employee. 77, Plaintiffs allege that they, and similarly aggrieved employees, did not receive accurate itemized wage statements, as required by law, in that the wage statements provided to them did not accurately reflect correct figures for gross wages earned, total hours worked, net wages earned, and/or all applicable hourly rates in effect with the corresponding number of hours worked at each hourly 14 COMPLAINTCoot AH Bw N rate. Further, the wage statements failed to list the name and address of each legal entity that is the employer, such as the name and address of Defendant South East Personnel Leasing Services. Inc, Plaintiffs allege, on information and belief, that Defendant have applied this same policy, business practice, and/or custom to other aggrieved employees. 78. As set forth above, Defendants did not keep accurate timekeeping or payroll records and, failed to provide accurate and complete information, as required by law. Accordingly, Plaintiff and the aggrieved employees could not easily and promptly determine from their wage statements, alone, that they had been properly paid or the true legal name of each and every applicable employer and co/joint employer. 79. Labor Code § 226.3 provides for a civil penalty against an employer who violates § 226(a) of two hundred fifty dollars ($250.00) per employee for the initial violation and one thousand dollars ($1,000.00) per employee for each subsequent violation. 80. Plaintiff alleges that he and all other aggrieved employees are entitled to recover all civil penalties prescribed by statute. COUNT7: FAILURE TO PAY ALL EARNED WAGES ON TERMINATION 81. Plaintiffs incorporate each and every one of the foregoing paragraphs of this Complaint as though set forth in full at this point. 82. _ Labor Code §§ 201-203 make it unlawful for an employer in this state to fail to pay for any and/or all wages earned by an employee. Labor Code § 200 defines “wages” as “all amounts for | labor performed by employees of every description, whether the amount is fixed or ascertained by the standard of time, task, piece, commission basis, or other method of calculation.” That section defines “labor” as “labor, work or other service ... performed personally by the person demanding payment.” 83. Labor Code § 201 provides that upon termination of employment, by the employer's discharge of the employee, “the wages earned and unpaid at the time of discharge are due and payable immediately.” 84. Labor Code § 202 provides that if an employee terminates employment, “wages shall become due and payable not later than 72 hours thereafter, unless the employee has given 72 hours previous notice of his or her intention to quit, in which case the employee is entitled to his or her 15 COMPLAINTD> oN A HN & YBN = yvR YN YN NWN See a i iia ai ie RBRRBRBRRBBESSEUATBEBROS wages at the time of quitting.” 85. Labor Code § 203 provides that if an employer fails to timely pay all earned wages at the time employment is terminated. “the wages of the employee shall continue as a penalty from the due date thereof at the same rate until paid or until an action therefor is commenced; but the wages shall not continue for more than 30 days.” 86. Plaintiffs allege that Defendants violated the foregoing provisions, in that upon their termination, they were not paid for all earned wages, including minimum wages, overtime wages, and premium wages, in their final paychecks, including but not limited to wages for hours which Defendants illegally failed to record via their timekeeping methods, practices, and procedures and/or otherwise failed to include when calculating the payment of wages owed as described previously herein, Defendants were at all times aware that wages were owed yet unpaid. Plaintiffs further allege that more than 30 days have passed since the date his employment with Defendants ended. 87. Plaintiffs allege, on information and belief, that Defendants have applied this same policy, business practice, and/or custom to other employees whose employment with Defendants have terminated. Such employees are aggrieved employees under Labor Code § 2699(c). 88. Labor Code § 558 provides for a civil penalty against an employer or anyone acting on the employer's behalf, who violates wage provisions, in the amount of $50 for each underpaid employee for each pay period for which the employee was underpaid in addition to an amount sufficient to recover underpaid wages. For cach subsequent violation, the civil penalty is $100 for each underpaid employee for each pay period for which the employee was underpaid in addition to an amount sufficient to recover underpaid wages. 89. Plaintiffs allege that they and all other aggrieved employees are entitled to recover the civil penalties and their unpaid wages. PRAYER FOR RELIEF WHEREFORE, Plaintiffs, as aggrieved employces, on behalf of themselves and other current or former similarly aggrieved employees pursuant to the procedures specified in Section 2699.3, prays for judgment as follows: 1. Upon the First Cause of Action, for penalties pursuant to statute as set forth in 16 COMPLAINTCalifornia Labor Code California Labor Code $§ 201-204, 223, 226, 226.3, 226.4, 226.7, 510, 512, 558. 1174, 1174.5, 1193.5, 1193.6, 1194, 1194.5, 1198, 2802, 2698-2699 and California Code of Regulations, title 8, § 11070 (codifying Wage Order No. 7-2001), not to exceed $75,000.00 for Plaintiff Seruge individually nor to exceed $75,000.00 for any individual aggrieved employee of Defendants, and for costs and attorneys’ fees; and 2. For such other and further relief the court may deem just and proper. DATED: January 9, 2020 MARLIN & SALTZMAN, LLP DAVTYAN, PLC Lh bod Fenty D. Sal Esq. ‘Cody R. Kenngfy, Esq. Bradley R. Fagnani, Esq. Attorneys for Plaintiff 17 COMPLAINTEXHIBIT A to ComplaintMARLIN « SALTZMAN Davtyan PLC Emil Davtyan CLASS ACTIONS, MASS TORTS & CATASTROPING INJURIES 21900 Burbank Blvd Ste 300 29800 Agoura Road, Suite 210 | Agoura Hils,CA 91301 | 818.991.808 Woodland Hills, CA 91367-7418 Cody R. Kennedy ckannedy@mertinsatzman.com November 1, 2019 Electronically Filed California Labor & Workforce Development Agency Attn: PAGA Administrator 455 Golden Gate Avenue, 9" Floor San Francisco, California 94102 Re: Michael Higginbotham, et at. v. South East Employee Leasing Services, Inc. et al. To Whom It May Concern: Notice is hereby provided as required by Labor Code §2699.3 that Michael Higginbotham and Marcelino Decierdo (hereinafter collectively “Plaintiffs"), on behalf of themselves and all other aggrieved current and former employees of South East Employee Leasing Services, Inc.; South East Personnel Leasing Services, Inc., and Monument Security, Inc. (collectively “Defendants™). allege that Defendants have violated, and continue to violate. the provisions of the Labor Code and wages orders promulgated by the Industrial Welfare Commission. Those aggrieved employces are all persons who, within the relevant statutes of limitations, have been or currently are employed in California by Defendants who have suffered one or more of the violations alleged herein pursuant to Labor Code §2699(c). Specifically, Plaintiffs believe that the aggrieved employees include nonexempt workers who were employed as security guards, or in substantially similar/related positions during the applicable statute of limitations period (the “Relevant Time- Period”) During the relevant time-period, Mr. Higginbotham was employed by Defendants as a nonexempt security guard within San Joaquin County, California until approximately November 30, 2018, and Mr. Decierdo was employed by Defendants as a nonexempt security guard within Santa Barbara County, California until approximately November £2, 2018. Plaintiffs were hired in California and performed work in California. Pursuant to California Labor Code § 2699.3, Plaintiffs hereby provide notice of certain Labor Code violations by Defendants. More specifically, Plaintiffs, on behalf of themselves and all similarly aggrieved employees 23800 Agoura Road, Suite 210 | Agoura Hills,CA91301 | 818.991.8080California Labor & Workforce Development Agency Attn: PAGA Administrator November 1, 2019 Page 2 (hereinafter referred to as “aggrieved employees”), allege that Defendants violated several sections of California's Labor Code and Wage Orders as follows: FOR FAILURE TO TIMELY PAY WAGES (Labor Code §§ 201, 202, 201.3, 203, 204, 558) Atall times relevant herein, Defendants were, and continue to be, temporary services employers pursuant to Cal. Lab. Code § 201.3. Specifically, Defendants contract with clients/customers to supply workers. (including, but not limited to, Plaintiffs) to perform security guard services for said clients/customers. Defendants regularly engage in negotiation with these Clients/Customers for matters such as the time and place where the services are to be provided. the type of work, the working conditions, and the quality and price of the services. For example, Plaintiff Higginbotham performed security guard services on behalf of Defendants, and was stationed by Defendants at retail stores including a Safeway grocery store in Stockton, California, and a Big Lots retail store in Stockton, California, Defendants set Higginbotham’s schedule (including the time when work was to be performed), and the specific working conditions (including site-specific work duties/requirements), based upon negotiations with their clients/customers. Plaintiff Decierdo similarly performed security guard services on behalf of Defendants, but was stationed and scheduled by Defendants to perform work at a Vons grocery store in Lompoc, California. Defendants similarly set Decierdo’s schedule (including the time when work was to be performed), and the specific working conditions (including site-specific work duties/requirements), based upon negotiations with their clients/customers. Defendants further retained the power to determine the assignments or reassignments of aggrieved employees such as Plaintiffs to specific jobsite(s)locations for specified time period(s): Defendants retained the authority to assign or reassign said aggrieved employees to other clients or customers when the worker is determined unacceptable by a specific client or customer: Defendants set the rates of pay of said aggrieved employees as part of their initial hiring documents; Defendants paid those aggrieved employees from their own accounts; and Defendants retained the right to hire and terminate said aggrieved employees. Having performed work for a Temporary Services Employer pursuant to Cal. Lab. Code § 201.3, each “employee's wages [were] due and payable no less frequently than weekly, regardless of when the assignment (ended). and wages for work performed during any calendar week [were] due and payable not later than the regular payday of the following calendar week.” Despite this legal requirement, Defendants have failed, and continue to fail, to timely pay wages owed. Defendants have instead instituted an illegal bi-weekly and/or bi-monthly pay schedule applicable to Plaintiffs and similarly aggrieved employees. Pursuant to Defendants’ policies andCalifornia Labor & Workforce Development Agency Attn: PAGA Administrator November 1, 2019 Page 3 practices regarding the payment of wages, the amounts due and owed for each pay period are not paid on or before the regular payday of the following calendar week. Additionally, Def