Party Notice: Cerena Sweetland-Gil vs University Of The Pacific, a California Non-Profit corporation

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. FILED

SUPERIOR ¢
JACKSON LEWIS P.c. PERCE COURT =S10¢K TON
NATHAN W. AUSTIN (SBN 219672) 200 JAN ~
CHRISTOPHER J. TRUXLER (SBN 282354) 8 AMO: 19

400 Capitol Mall, Suite 1600

Sacramento, California 95814 RANDOH EJRILEy, ERK.

Telephone: (916) 341-0404

Facsimile; (916) 341-0141 REPAY

Email: nathan.austin@jacksonlewis.com uTy
christopher. truxler@jacksonlewis.com

Attorneys for Defendant
UNIVERSITY OF THE PACIFIC

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN JOAQUIN

CERENA SWEETLAND-GIL, individually and | CASE NO. STK-CV-UOE-2019-0014682
on behalf of all others similarly situated,

CLASS ACTION
Plaintiff,
ASSIGNED FOR ALL PURPOSES TO:
v. JUDGE BARBARA A. KRONLUND
DEPARTMENT 10D
UNIVERSITY OF THE PACIFIC, a California
Non-Profit Corporation, DEFENDANT’S AMENDED NOTICE TO
STATE COURT AND ADVERSE PARTY
Defendant. OF REMOVAL OF CIVIL ACTION TO
FEDERAL COURT

Complaint Filed: 11.04.19
FAC Filed: 01.27.20

TO THE HONORABLE BARBARA A. KRONLUND AND CLERK OF SAN JOAQUIN
COUNTY SUPERIOR COURT, AND TO PLAINTIFF CERENA SWEETLAND-GIL,
INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, AND HER
ATTORNEYS OF RECORD:

NOTICE IS HEREBY GIVEN that, on December 29, 2020, Defendant University of the
Pacific (“Defendant”) filed its “Notice to State Court and Adverse Party of Removal of Civil
Action to Federal Court” with this Court, notifying this Court and Plaintiff Cerena Sweetland-Gil
of Defendant’s filing of a Notice of Removal removing the above-captioned action from this

Court to the United States District Court for the Eastern District of California. At that time,

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Defendant provided the temporary case number assigned by the federal court and provided a copy
of the Notice of Removal (excluding Exhibits A — D).

NOTICE IS FURTHER GIVEN that the federal court has assigned the following

permanent case number: 2:20-cv-02545-TLN-KJN. Additionally, a true and correct copy of

Defendant’s Notice of Removal with Exhibits A — D is attached hereto as EXHIBIT 1 and

incorporated herein by this reference.

Dated: January 7, 2021

JACKSON LEWIS P.C.

py, NOt“.

NATHAN W. AUSTIN
CHRISTOPHER J. TRUXLER

Attorneys for Defendant
UNIVERSITY OF THE PACIFIC

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DEFENDANT’S AMENDED NOTICE TO STATE COURT AND ADVERSE PARTY OF
REMOVAL OF CIVIL ACTION TO FEDERAL COURT— ms

 

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Case 2:20-cv-025+.sMCE-KJN Document1 Filed 12/2.:20 Page 1 of 545

JACKSON LEWIS P.C.

NATHAN W. AUSTIN (SBN 219672)

CHRISTOPHER J. TRUXLER (SBN 282354)

400 Capitol Mall, Suite 1600

Sacramento, California 95814

Telephone: (916) 341-0404

Facsimile: 916) 341-0141

Email: nathan.austin@jacksonlewis.com
christopher.truxler@jacksonlewis.com

Attorneys for Defendant
UNIVERSITY OF THE PACIFIC

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

CERENA SWEETLAND-GIL, individually and | CASE NO.
on behalf of all others similarly situated,

 

DEFENDANT’S NOTICE OF REMOVAL
Plaintiff,

vs.

UNIVERSITY OF THE PACIFIC, a California
Non-Profit Corporation,

Defendant.

 

Defendant University of the Pacific (“Defendant”) removes this Action to this Court from
the Superior Court of the State of California, San Joaquin County pursuant to 28 U.S.C. §§ 1332,
1441, and 1446,
I, FACTUAL BACKGROUND
1, On or about November 2, 2019, Plaintiff Cerena Sweetland-Gil (“Plaintiff”) filed suit

against Defendant in the Superior Court of the State of California, San Joaquin County.

 

A copy of the initia! Complaint was served on Defendant on or about November 5, 2019. On
January 27, 2020, Plaintiff filed a First Amended Complaint (“FAC”}—which is the operative
complaint in this action—in the Superior Court of the State of California, San Joaquin County.
EXHIBIT A. On December 1, 2020, Plaintiff put Defendant on notice that this action is

removable by pleading in state court that the amount in controversy exceeds $5 million. True and
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correct copies of all other pleadings, papers, and orders filed in state court are attached hereto as
EXHIBIT B.

2. Plaintiff alleges in the FAC that Defendant violated various California state laws
by, inter alia, failing to pay Plaintiff and other similarly situated individuals (1) hourly and
separately apart from the piece rate, (2) wages for all hours worked, and (3) compensation due
upon discharge from employment. (See generally EXHIBIT A.) Plaintiff also alleges that
Defendant failed to provide her and other similarly situated individuals accurate itemized wage
Statements and violated California’s Unfair Competition Law. (/d.) Plaintiff seeks civil penalties
under California’s Private Attomeys General Act in connection with these claims. dd.)

3. Plaintiff purports to bring this action on behalf of a putative class consisting of “all
other similarly situated individuals currently and formerly employed by the University of the

Pacific (‘Defendant’) in California as part-time instructors or in a similar capacity (‘Class

Members’) from four years prior to the filing of this Complaint through to [sic] the trial date

(‘Class Period’).” (/d, at 41.)

4, Plaintiff seeks to recover, inter alia, unpaid minimum wages, liquidated damages,
waiting time penalties, unpaid wages upon termination, civil penalties, interest, attorneys’ fees,
and costs on behalf of herself and all putative class members. (ld. at pp. 14-15.)

5. Plaintiff alleges that she is a resident of the State of California. (id. at J 10.)

6. Defendant is incorporated under the laws of the State of California and its
principal place of business is located in the State of California.

7. On information and belief, Defendant alleges that members of the putative class
are residents of states other than Califomia. Ehrman v. Cox Communs., Inc., 932 F.3d 1223, 1227
(9th Cir. 2019) (stating that a party’s allegation of minimal diversity may be based on information
and belief and need not contain evidentiary support) (citations omitted),

8. Defendant’s records reflect that, in the year preceding the filing of the complaint
alone, Defendant employed more than 100 part-time faculty members. (See EXHIBIT C.)
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I. THIS COURT HAS SUBJECT MATTER JURISDICTION OVER THIS ACTION

PURSUANT TO THE CLASS ACTION FAIRNESS ACT

This case is removable under the Class Action Faimess Act of 2005 (‘CAFA”), CAFA
grants district courts subject matter jurisdiction over any civil action: (1) which is a “class
action,” (2) in which the matter in controversy exceeds $5,000,000, exclusive of interest and
costs, (3) involving a proposed class of at least 100 members, and (4) where “any member of 2
class of Plaintiff is a citizen of a State different from any defendant.” 28 U.S.C. § 1332(d). “[N]o
antiremoval presumption attends cases invoking CAFA, which Congress enacted to facilitate
adjudication of certain class actions in federal court.” Dart Cherokee Basin Operating Co.,
LLC v. Owens, 135 S. Ct. 547, 554 (2014). Rather, “Congress intended CAFA to be interpreted
expansively.” {barra v. Manheim Investments, Inc., 775 F.3d 1193, 1195 (9th Cir. 2015).

As set forth below, Defendant has met its burden of alleging herein all of the elements
required to establish subject matter jurisdiction under CAFA.

A. There Is Minimal Diversity.

In order to meet the “minimal diversity” required by CAFA, any member of the class of
Plaintiffs must be a citizen of a state different from any defendant. 28 U.S.C. § 1332(d)(2).
Defendant is incorporated under the laws of the State of California and its principal place of
business is located in the State of California, (See Factual Background, { 6.) Accordingly,
Defendant is a citizen of the State of California. See 28 U.S.C, § 1332(c)(1) (“[A] corporation
shall be deemed to be a citizen of any State by which it has been incorporated and of the State
where it has its principal place of business.”). Plaintiff alleges that she is a resident of the State of
California. (See Factual Background, 5.) On information and belief, Defendant alleges that at
least one class member is not a resident of the state of California. (See Factual Background, 7.)
Ehrman, 932 F.3d at 1227, Accordingly, the “minimal diversity” required under CAFA is
established in this case since at least one Defendant is a citizen of a different state than at least
one Plaintiff. See 28 U.S.C. § 1332(d)(2)(A) (conferring federal jurisdiction where “any member
ofa class of plaintiffs is a citizen of a State different from any defendant”).

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B The Amount in Controversy Exceeds $5,000,000, Exclusive of Interest and
Costs.

Pursuant to CAFA, the claims of the individual members in a class action are aggregated
to determine if the amount in controversy exceeds $5 million, exclusive of interest and costs.
28 U.S.C. § 1332(d)(6).

Where, as here, the Plaintiff “demands monetary relief of a stated sum, that sum, if
asserted in good faith, is ‘deemed to be the amount in controversy.” Dark Cherokee, 135 8. Ct.
at 551. While Defendant denies that it is liable for any of Plaintiff's claims, the amount in
controversy requirement is satisfied because Plaintiff alleged in a December 1, 2020 Case
Management Statement that she seeks $5,973,894 for wage statement penalties, unpaid wages,
and waiting-time penalties. A true and correct copy of Plaintiff's Case Management Statement is
attached hereto as EXHIBIT C. In addition, Plaintiff seeks $3,280,200 in PAGA penalties
(see id.), for a total of $9,254,094.

Plaintiff also seeks to recover attorney’s fees on behalf of herself and the putative class
members, (See EXHIBIT A at p. 14.) Courts may consider attorney’s fees when evaluating the
potential amount in controversy for purposes of CAFA jurisdiction, See Guglielmino v. McKee
Foods Corp., 506 F.3d 696, 700 (citing Galt G/S v, JSS Scandinavia, 142 F.3d 1150, 1156
(9th Cir. 1998)); Deaver v. BBVA Compass Consulting & Benefits, Inc. 946 F. Supp. 2d 982, 988
(N.D. Cal. 2013) (citing Lowdermilk v. U.S. Bank N.A., 479 F.3d 994, 1000 (9th Cir. 2007).

For purposes of removal, the Ninth Circuit uses a benchmark rate of 25% of the potential
damages as the amount of attorneys’ fees, and courts may include that fee in the CAFA amount in
controversy. Hanlon v. Chrysler Corp., 150 F.3d 1011, 1029 (9th Cir. 1998); In re Adding
Quintus Sec, Litig., 148 F, Supp. 2d 967, 973 (N.D. Cal. 2001) (benchmark for attorneys’ fees is
25% of the common fund), Defendant has plausibly demonstrated by a preponderance of the
evidence that the amount in controversy conservatively exceeds $5 million, but the inclusion of
attorneys’ fees with respect to the calculation of $9,254,094 for damages detailed above would
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add another $2,313,523 to the amount in controversy, bringing the total number to more than
$11,567,617.!

Thus, Defendant has demonstrated that CAFA’s “amount in controversy” element is
satisfied. Ibarra, 775 F.3d at 1197 (‘““[A] defendant's notice of removal need include only a
plausible allegation that the amount in controversy exceeds the jurisdictional threshold,’ and need.
not contain evidentiary submissions” (quoting Dart, 135 S. Ct. 547).).

Defendant reserves the right to present evidence establishing the amount placed in
controversy by each of Plaintiff's claims should Plaintiff challenge whether the jurisdictional
amount-in-controversy threshold is met. See Dart Cherokee, 135 S. Ct. at 554 (“Evidence
establishing the amount is required by § 1446(c)(2)(B) only when the plaintiff contests, or the
court questions, the defendant’s allegation [that the amount in controversy exceeds the
jurisdictional threshold].”).

CG The Proposed Class Is Greater Than 100 Members

As noted above, Defendant’s records reflect that, in the year preceding the filing of the
complaint alone, Defendant employed more than 100 part-time faculty members. (Factual
Background, {| 8.) Plaintiff has also asserted that Defendant employs more than 100 part-time
faculty members, (See EXHIBIT C.) Accordingly, Defendant has shown there is a potential
class of at least 100 members.

D. This Matter Is a “Class Action.”

CAFA defines a “class action” as

any civil action filed under rule 23 of the Federal Rules of Civil
Procedure or similar State statute or rule of judicial procedure
authorizing an action to be brought by 1 or more representative
persons as a class action[.]

28 U.S.C. § 1332(d)(1)(B). Plaintiff purports to bring this action on behalf of a putative class

consisting of “all other similarly situated individuals currently and formerly employed by the

' Defendant does not concede that Plaintiff can ultimately demonstrate an entitlement to recovery
of attorneys’ fees. Nevertheless, because Plaintiff seeks to recover attorneys’ fees as a remedy in
this case, Defendant must assume Plaintiff will recover those attorneys’ fees and must include
those fees in calculating the amount in controversy.

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Case 2:20-cv-02448-MCE-KJN Document1 Filed 12/20/20 Page 6 of 545

University of the Pacific (‘Defendant’) in California as part-time instructors or in a similar
capacity (‘Class Members’) from four years prior to the filing of this Complaint through to [sic]
the trial date (‘Class Period’).” (Factual Background, 9/3.) Plaintiff states that “[tJhis is a class
action under California Code of Civil Procedure § 382. (FAC, J 1.) Plaintiff also indicated on her
Civil Case Cover Sheet that the case is a class action suit. (EXHIBIT D.) Accordingly, Plaintiff
clearly seeks to bring this case as a “class action” within the meaning of CAFA.

il. TIMELINESS OF REMOVAL

 

28 U.S.C, §1446(b)(3) allows a defendant to remove within 30 days after the defendant
receives “a copy of . . . [an] other paper from which it may first be ascertained that the case is one
which is or has become removable.” Here, Defendant received Plaintiffs Case Management
Statement via email on December 1, 2020, which first placed Defendant on notice that this action
satisfies CAFA’s amount in controversy requirements and is, therefore, removable. Accordingly,
this Notice of Removal is filed within thirty (30) days from when Defendant received a copy of a
paper from which it may first be ascertained that the case is removable and is timely filed
pursuant to 28 U.S.C. § 1446(b).

IV. CONCLUSION

Defendant has established the necessary jurisdictional elements to assert federal
jurisdiction under CAFA. For this reason, this Court has original jurisdiction over Plaintiff's
claims by virtue of CAFA.

Defendant submits this notice without waiving any defenses to the claims asserted by
Plaintiff, conceding that Plaintiff has pleaded claims upon which relief may be granted, conceding
that class certification is appropriate, or conceding that Plaintiff or any class members are entitled
to any remedy or relief in this Action. Upon filing this Notice of Removal, Defendant will

provide written notification to Plaintiff and will file a Notice of Filing Notice of Removal with

the clerk of the Superior Court of the State of California, San Joaquin County.
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Case 2:20-cv-025+0-MCE-KJN Document1 Filed 12/s:20 Page 7 of 545
WHEREFORE, Defendant respectfully requests that the within action, now pending in the
Superior Court of the State of California, San Joaquin County, be removed to the United States
District Court for the Eastern District of California.
Dated: December 29, 2020 JACKSON LEWIS P.C,
By:___/s/ Nathan W_ Austin
NATHAN W. AUSTIN
CHRISTOPHER J. TRUXLER
Attomeys for Defendant
UNIVERSITY OF THE PACIFIC
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Defendant’s Notice of RemovalCase 2:20-cv-025:c-MCE-KJN Document1 Filed 12/2..20 Page 8 of 545

 

 

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MCE-KJN Document1 Filed 2: Page 9 of 545 |

 

Case 2:20-cv-025:

FILED 2

2000 JAN 27 AH 10: 03

JULIAN HAMMOND (SBN 268489) ROSA JUNGUEIRO. CLERK

jhammond@hammondlawpc.com
POLINA B) LER (SBN 269086) a
pbrandler@hammondlawpe.com ¥ rt
ARI CHI TAK (SBN 290971)

acherniak@hammondlaw.com

HAMMONDLAW, P.C.

1829 Reisterstown Rd., Suite 410

Baltimore, MD 21208

(310) 661-6766

(310) 295-2385 (Fax)

Attorneys for Plaintiff and the Putative Class

»”

SUPERIOR COURT FOR THE STATE OF CALIFORNIA *
COUNTY OF SAN JOAQUIN

CERENA SWEETLAND-GIL, individually CASE NO. STK-CV-UOE-2019-00 14682
and on behalf of all others similacly situated,

FIRST AMENDED CLASS AND

Plaintify, REPRESENTATIVE ACTION COMPLAINT:
NS. (1) Failure to Pay Hourly and Separately
UNIVERSITY OF THE PACIFIC, a California Apart from the Piece and/or Failure to Pay
Non-Profit Corporation, ‘ages for All Hours Worked (Cal, Labor
Code §§ 226.2, 1194, 1194.2; IWC Wage

ef ti. Order No. 4-2001, § 4);

Defendan (2) Failure to Pay Compensation Due Upon
Discharge From Employment (Cal. Labor
Code §§ 201-203);

(3) Unfair, Unlawful, or Fraudulent Business
Fractices (Cal. Bus, & Prof. Code § 17200
et seq.)

(4) Failere to Issue Accurate Ytemized Wage
Statements (Cal, Labor Code §§ 226(a),
()s 226.2(a); and

(5) Civil Penalties under Private Attorneys
General Act (Cal, Labor Code § 2699

DE! ‘OR Y

 

FIRST AMENDED CLASS AND REPRESENTATIVE ACTION COMPLAINT

FILED BY FAX

 

 

 

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1 Case 2:20-cv-0264:— AICE-KIN Document1 Filed 12/2::1 Page 10 of 545

1 Plaintiff Cerena Sweetland-Gil ("Plaintiff"), on behalf of herself and alt others similarly situated,
complains and alleges the following:
INTRODUCTION

L This is a class action under California Code of Civil Procedure § 382 seeking damages
for unpaid wages, statutory penalties, interest, restitution, and reasonable attorneys’ fees and costs under
California Labor Code (“Labor Code") §§ 226.2, 1194, 1194.2, 201-203, IWC Wage Order (‘Wage
Order") No. 4-2001 § 4, California Civil Procedure Code § 1021.5, and California’s Unfair Competition
Law (“UCL”), Business & Professions Code §§ 17200 ef seq, on behalf of Plaintiff and all other
similarly situated individuals currently and formerly employed by the University of the Pacific
(“Defendant’) in California as part-time instructors or in a similar capacity (“Class Merabers") from
10 four years prior to the filing of this Complaint through to the trial date (“Class Period"), Defendant's
violations of California’s wage and hour laws and unfair competition laws, as described more fully
below, have been ongoing for at least the past four years, and are continuing at present,

2 During the Class Period, Plaintiff and Class Members were non-exempt employees
13]| because they did not earn a monthly salary equivalent of two times the state minimum wage for full-
141] time employment, the minimum amount an employee must eam to be considered exempt under the
15]] Industrial Welfare Commission Wage Order No. 4. Defendant paid Class Members on a piece-rate

 

16 basis, i.e., a flat rate for each course taught, The more courses Class Members taught, the more they
were paid.

3. Because Class Members are piece rate workers who are non-exempt, pursuant to Labor
Code §§ 226.2, Defendant was required to pay Class Members separately and hourly at least at the
197) minimum wage for their non-productive time (i.e, time spent working outside the hours of classroom
20/} instruction). Defendant, however, did not pay them for their non-productive time, in violation of Labor
21 || Code §§ 226.2, 1194, 1194.2, and Wage Order No, 4-2001, § 4. Asa result, Defendant is liable to Class
22 || Members for unpaid wages,

 

4, Jn the alternative, if Class Members’ componsation is not considered a piece rate, then
Class Members aré non-exempt employees because, as stated above, they do not carn the required
minimum amount to be considered exempt under Wage Order No.4. As non-exempt employees, Class
251) Members were entitled to be paid for all hours worked pursuant to Labor Code §§ 1194, 1194.2 and
26} Wage Order No. 4, § 4. Thus, pursuant to Labor Code § 1194, 1194.2 and Wage Order No. 4, § 4,
27}| because their compensation was intended to cover only the hours of classroom instruction, Defendant
28 || Was required to pay Class Members for all hours worked outside the hours of classroom instruction, but

 

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failed to do so, Ag a result, Defendant is liable for unpaid wages and liquidated damages in the amount
of unpaid wages,

5, Whether Class Members’ compensation is considered a piece-rate, or not, as a result of
failing to pay wages for all hours worked, Defendant failed to pay Class Members al! compensation due
and owing to them upon discharge of employment as required by Labor Code § 201. As a result,
Defendant {s fable for waiting time penalties pursuant to Labor Code § 203.

6. As a result of the above Labor Code violations, Defendant committed unfair, unlawful,
and fraudulent business practices, in violation of the UCL,

a This action is also brought on behalf of'a subclass comprised of Class Members who are
or have been employed by Defendant during the one year prior to the filing of the Complaint through to
the trial date (“Wage Statement Subclass Period”) for statutory penalties, injunctive relief, and
reasonable attorneys’ fees and costs pursuant to Labor Code §§ 226.2(a), 226(a), (e), and (h) (“Wage
Statement Subclass"). During the Wage Statement Subclass Period, Defendant knowingly and
intentionally failed to furnish Plaintiffand Wage Statement Subclass Members with accurate itemized
‘wage statements. Plaintiff and Wage Statement Subclass Members suffered injury as a result of
Defendant's violation of Labor Code §§ 226(a) and 226.2(a), Asa result, Subclass members are entitled
to statutory penalties as provided for under Labor Code § 226(c) and seek injunctive relief under Labor
Cade § 226(h) to enjoin Defendant from issuing Inaccurate wage statements, and reasonable attorneys’
fees and cost,

8 Plaintiff also brings this action as a representative action under the California Labor
Code’s Private Attorneys General Act (“PAGA"), Cal. Labor Code § 2698 ef seg., for civil penalties on
behalf of herself and other as part-time lecturers of Defendant (‘‘Aggrieved Employees”) for the Labor
Cade and Wage Order violations alleged herein, specifically Labor Code §§ 201-203, 226(a), 226.2,
226.2(a), 226.7, 1174(d), 1174.5, 1194, 1194.2, and IWC Wage Order No. 4-200] §§ 4 and 12.

9 The “PAGA Period” is from November 1, 2018 through to the trial date,

PARTIES

10. Plaintiffis a resident of Mountain House, California who was employed by Defendant as
an instructor until December 2018, During her employment, Plaintiff was subject to Defendants
unlawful conduct described herein,

1}. Defendant is a private non-profit university, incorporated in California and located in
Stockton, :

 

 

 

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SDICTION

12, This Court has jurisdiction over PlaintifP's and Class Members’ claims for failure to pay
separately and hourly for time worked outside the hours of classroom instruction and/or fallure to pay
for all hours worked pursuant to Labor Cade §§ 226.2, 1194, 1194.2 and Wage Order No. 4-2001 § 4,

13, This Court has jurisdiction over Plaintiff's and Class Members’ claims for failure to pay
all compensation due upon discharge from employment under Labor Code §§ 261-203.

14. This Court has jurisdiction over Plaintiff's and Class Members’ claims for restitution
under the UCL, Bus. & Prof. Code §§ 17203 and 17204,

15, This Court has jurisdiction over Plaintiff's and Wage Statement Subclass Members’
claims for the failure to issue accurate itemized wage statements under Labor Code §§ 226.2(a), 226(a),
©.

16, This Court has jurisdiction over claims for attorney's fees and costs pursuant to Labor
Code §§ 226(h) and 1194, and Cal. Civ, Proc. Code § 1021.5.

17, This Court has jurisdiction over the claims for declaratory relief under the UCL, Bus, &
Prof. Code §§ 17200 ef seq.

18. This Court has jurisdiction aver Plaintiff's claims for civil penalties under Labor Code
§ 2699. On Novernber 1, 2019, Plaintiff provided PAGA Notice pursuant to Labor Code § 2699.3 to the
California Labor & Workforce Development Agency (“LWDA") and Defendant. The LWDA Has
Provided no notice to Plaintiff within the period specified'in Labor Code § 2699,3 rogarding its intention
to investigate or not investigate any other claims alleged in the PAGA Notice, Plaintiff has therefore
fully complied with the PAGA procedural requirements and may commence this representative action
Pursuant to Labor Code § 2699,

19, The amount in controversy for Plaintiff, including claims far civil penalties and pro rata
share of attorney's fees, is less than seventy-five thousand dollars ($75,000).

VENUE

20. Venue is proper in the County of San Joaquin pursuant to Cal, Ciy. Proc, Cade §§ 395(a)
and 395.5. Defendant's principal place of business is in Stockton.

CTUAL ALLE is CO ‘ON TO ALL SS MEMBERS
A, Defendant's Business and Class Members’ Role in Business Operations

21. Defendant is a private, non-profit university that offers undergraduate and graduate
Programs at 3 California campuses including its main campus in Stockton, and campuses in Sacramento
and Sun Francisco. Defendant offers more than 80 undergraduate and graduate degrees, These programs

 

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are offered throughout the year during the fall, spring and summer semesters. In order to teach these :
programs, Defendant employs Class Members.

B. Class Menibers Are Non-Exempt Plece-Rate Employees, or, Alternatively, They Are Non-
Exempt Salarled Employees

22, During the Class Period, Class Members were non-exempt becauso they did not earn at
least the monthly salary equivalent of two times the California minimum wage for full-time employment
—a minimum amount required for an employee in California to be considered exempt, See Wage Order
No. 4-2001, § 1A).

23. Defendant compensated Class Members in the form of a flat amount for teaching each
course (“Course Rate”), The more courses a Class Member teaches, the more she/he is paid. The
payment of'a Course Rate is form of piece rate compensation,

24, Whether piece-rate or not, Class Members are non-exempt because they do not ear the
smininium required amount to be qualify for exempt status, As non-exempt employees, they were and
ate entitled to certain protections under the labor code.

G Defendant's Compensation Practices Applicable to Class Members Violated California's
Minimum Wage Laws

25. During the Class Period, in addition to teaching courses, Defendant required and/or
expected, Class Members to perform, and Class Members did perform, numerous non-productive tasks
outside of classroom instructional hours, These tasks inelude, but are nat limited to: (1) arriving on
campus prior to the start of class to be available to meet with students for office hours and prepare class
materials; (2) beIng available to students for office hours; (3) being available to students during the
week, including by phone and email and responding to student phons calls and emails; (4) creating -
course materials, including syllabi, tests and quizzes; (5) building lesson plans and lectures; (6) grading
assignments, tests and quizzes; (7) attending faculty orientations and meetings; (8) taking attendance
daily and entering attendance online; and (9) professional development (Non-Teaching Tasks”). These

tasks, with the exception of taking attendance, by their very nature, could not be performed during the
hours of classroom instruction.

26. Because Class Members are non-exempt employees who are paid by the piece, pursuant
to Labor Code § 226.2 Defendant was required to pay them separately from the piece and hourly at least
at the minimum wage for all hours worked spent performing Non-Teaching Tasks. However, throughout
the Class Period, Defendant failed to pay any wages to Plaintiff and Class Members for the time spent
on Non-Teaching Tasks. Nor did Defendant provide any means or mechanism for them to record their

 

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time spent performing Non-Teaching Tasks, and had no practice and/or policy in place to compensate
them for such work.

27, — Under the alternative theory, even if Class Members were not paid by the piece, pursuant
to Labor Code §§ 1194, 1194.2 and Wage Order No. 4-2001, § 4, Defendant was required to pay them
for all hours worked as they were non-cxempt, The compensation Defendant paid Class Members, was
intended to cover anly the hours of classroom instruction. Therefore, Defendant was required to pay
Class Members additional compensation for Non-Teaching Tasks. However, Dofendant failed to do so.

D. Defendant’s Compensation Practices for Class Members Violated California's Rest Perlod
Laws

28. Because Class Members are non-exempt employees who are pald by the piece,
Defendant is legally required under Labor Code §§ 226.2 to pay Class Members for their time spent an
rest breaks separately and apart from the Course, Rate, at their average hovrly rate, but did not do so. As
aresult, Defendant authorized, at most, only unpaid rest breaks. Because any rest breaks that Class
Members took were unpaid, Defendant failed to authorize compliant rest breaks in accordance with § 12
of Wage Order 4-2001, and applicable law, thereby triggering an obligation to make premium payments
to Class Members under Labor Code § 226.7.

29, During the Class Period, Defendant’s policies and/or practices also did not authorize and
permit Class Members to take paid off-duty rest periods. These policies and/or practices included, but
were not limited to, requiring Class Members to devote the eutire scheduled class time to making
themselves available to students, arriving early to prepare for class, and to be available to students
before, during, and after class, Thus, Defendant failed to authorize and permit compliant rest breaks in
accordance with Wage Order No. 4-2001, § 12(A) thereby triggering an obligation te make premium
payments to Plaintiff and Class Members on a class-wide basis under Labor Cade $ 226.7 and Wage
Order No.-2001, § 12(B).

E. Defendant Failed to Pay All Wages Owed to Class Members Upon Termination At the End of
Each Semester/Interterm

30. Asa consequence of Defendant's failure to pay wages owed for Non-Teaching Tasks,
and premium pay for unpaid or missed rest brezks, Class Members did not receive all compensation due
to them when their employment terntinated at the end of each semester. As a result, Class Members did
not receive all wages due upon termination; nor did they receive these wages due within 30 days of the
separation of their employment from Defendant.

 

 

 

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31. In light of the clear law requiring that Defendant pay for time spent on Non-Teaching
Tasks, and pay premium pay for missed rest breaks, Defendant’s failure to pay wages for such time and
failure to pay such wage upon termination was willful, .

F. Defendant's Labor Code Violations Were Unfair Business Practices

32, From at least four years prior to filing this complaint, through the present, Defendant has
adopted and used unfair business practices to reduce Class Members’ compensation and increase profits,
These unfair business practices include failing to pay Class Members for Non-Teaching time and for
their time spent on rest periods separate and apart from the Course Rate; falling to authorize and permit
timely off-duty rest periods; and failing to pay premium pay for missed rest breaks,

@. Defendant Failed to Issue Accurate Itemized Wage Statements

33. During the Wage Statement Subclass Period, Defendant failed to issue accurate itemized
wage statements to Plaintiffand Wage Statement Subclass Members. In particular, because Subclass
Members were non-exempt, Defendant was required under Labor Code § 226(a) to furnish them with
‘Wage statements, sentimonthly or at the time of each payment of wages, containing (1) gross wages
earned, (2) total hours worked by the employee, (3) the number of piece-rate units earned and any —
applicable piece rate if the employce is paid on a piece-rate basis, (4) net wages earned, and (5) all .
applicable hourly rates in effect during the pay period and the corresponding number of hours worked at
each hourly rate by the employee,

34. Additionally, because Wage Statement Subclass Members were piece-rate workers,
Defendant was required under Labor Code § 226.2(a) to issue wage statements to them that itemized the
total hours of nonproductive time, the rate of compensation, and the gross wages paid for nonproductive
time during the pay period; and all hours of compensable rest and recovery periods, the rate of
compensation, and the gross wages paid for those periods during the pay period,

35. However, Defendant issued wage statements that failed to include any hours spent
working; the number of piece-rates earned and applicable plece rate; applicable hourly rates; gross and
net wages earned; hours spent performing Non-Teaching Tasks; and gmounts paid for such time; or any
hours spent on rest breaks, or any compensation paid for such rest breaks,

36. Defendant's practice of furnishing Wage Statement Subclass Members Incomplete and/or
inaccurate wage statements in violation of Labor Code § 226(a) and 226.2(a)(2) for was knowing and
intentional, as it was not an isolated and unintentional payroll error due to a clerical or inadvertent
mistake, but rather the result of Defendant's regular compensation policies.

 

 

 

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37. Wage Statement Subclass Members could not promptly and easily determine from the
wage statements alone, without reference to other document or information, Including wage statements
from previous pay periods, their regular hourly rate, the total hours worked at that rate, the total hours

worked during a pay period, number of pieces worked, As a result, Subclass Members suffered injury
for the purposes of Labor Code § 226(e).
CLASS ACTION ALLEGATIONS

38, Plaintiff brings this class action pursuant to Cal. Civ. Pro. Code § 382 on behalf of the
Class and the Subclass, Upon information and belief, there are more than 100 Class Members, and more
than 100 Subclass Members, The members of the Class and Subclass are so numerous that joinder of all
members is impractical,

39. Plaintiff's claims are typical of the claims of the members of the Class and Subclass
because he was a part-time lecturer who was non-exempt and employed pursuant to a uniform
employment contract, just like all other part-time lecturers, and was not pald anything for Non-Teaching
Tasks, was not paid all wages due at termination; and was not provided an accurate and itemized wage
statement for each pay period.

40. Plaintiff will fairly and adequately represent the interests of the Class and Subclass.
Plaintiff has no conflict of interest with any member of the Class and Subclass, Plaintiff has retained
competent and experienced counsel in complex class action litigation. Plaintiff's counsel has the
expertise and financial resources to adequately represent tho interests of the Class and Subclass,

41. | Common questions of law and fact exist as to all members of the Class and the Subclass
and predominate over any questions solely affecting individual members of the Class and Subclass.
Among the questions of law and fact common to the Plaintiff and the Class and Subclass are the
following:

a, Whether a Course Rate is a piece rate;

b, Whether Class Members are piece-rate workers, entitled to separate and hourly pay for
their time spent on Non-Teaching tasks and under Labor Code §§ 226.2, 1194, and Wage
Order No. 4, §§ 4, 12; .

c. Whether Class Members are non-exempt employees, entitled to at least minimum wage
for all hours worked including time spent working outside of teaching the classroom,
under Labor Code §§ 1194 and Wage Order No. 4, §§ 4, 12;

 

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d. Whether Defendant is Hable for liquidated damages to Plaintiff and the Class under -
Labor Code § 1194.2 for its failure to pay for thelr time spent on Non-Teaching Tasks
during the Class Period;

e. Whether Defendant violated Labor Code § 203 by failing to pay Class Members for all of
their wages due to them upon separation of their employment, including the wages owed
to them for their time spent on Non-Teaching Tasks;

f Whether these violations constitute unfalr, unlawful, and fraudulent business practices, in
violation of UCL;

g. Whether Plaintiff and Class Members are entitled to restitution under Bus, & Prof, Code
§ 17200 ef seg. for uncompensated wages, and unpaid premium pay;

h, Whether Defendant violated Lubor Code §§ 226(a) and 226.2(a) by failing to issue
Itemized wage statements to Plaintiff and Wage Statement Subclass Members;

i, Whether Defendant's failure to issue itemized wage statements was knowing and
intentional;

Jj. Whether Plaintiffand Wage Statement Subclass Members suffered injury for the
purposes of Labor Code § 226(e);

k. The proper formula(s) for calculating damages, interest, and restitution owed to Plaintiff
and the Class and Subclass Members;

1, Whether the Class js entitled to declaratory relief; and

m. Whether the Class is entitled to injunctive relief.

42. Class action treatment is superior to any alternative to ensure the fair and efficient
adjudication of the controversy alleged herein, Such treatment will permit a large number of similarly
situated persons to prosecute their common claims ina single forum simultaneously, efficiently, and
without duplication of effort and expense that numerous Individual actions would entail. No difficulties
are likely to be encountered in the management of this class action that would preclude its maintenance
as a class action, and no superior alternative exists for the fair and efficient adjudication of this
controversy. Class Members arc readily identifiable from Defendant's employee rosters and/or payroll
records.

43. Defendant's actions are generally applicable to the entire Class. Prosecution of separate
actions by individual members of each Class creates the risk of inconsistent or varying adjudications of
the issues presented herein, which, in turn, would establish incompatible standards of conduct for
Defendant.

 

 

 

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44, Because joinder of all members is impractical, a class action is superior to other available |"
methods for the fair and efficient adjudication of this controversy. Furthermore, the amounts at stake
for many members of each Class, while substantial, may not be sufficient to enable them to maintain
separate suits against Defendant.

FIRST CAUSE OF ACTION

Failure to Pay Separately from the Piece and Hourly far Non-productive Time and/or Failure to
Pay Wages for All Hours Worked
[Cal Labor Code §§ 226.2, 1194, 1194.2; Wage Order No, 4-2001, § 4]
45, Plaintiff re-alleges and incorporates by reference each and every allegation set forth in
the preceding paragraphs.
46, Labor Code § 1194 provides, in relevant part:

“Notwithstanding any agreement to work for a lesser wage, any employee receiving less
than the Segal minimum wage ... applicable to the employes is entitled to recover in a civil
action the unpaid balance of the full amount of this minimum wage [...], including interest
thereon, reasonable attorney's fees, and costs of suit.”

47. Labor Code § 1194.2 provides, in relevant part:

“In uny action under ... Section 1194 to recover wages because of the payment of a wage

less than the minimum wage fixed by an order of the commission, an employee shell be

entitled to recover liquidated damages in an amount equal to the wages unlawfully unpaid

and interest thereon. ...”

48. Labor Code § 226,2(a)(1) states that “employees shall be compensated for...
nonproductive time separate from any piece-rate compensation.”

49. As sel forth above, during the Class Period, Plaintiff and Class Members were paid a
piece rate (j.¢, fixed amount for the time spent on teaching courses (Course Rate)), but Defendant did
not compensate them for their time spent on Non-Teaching Tasks, separately from the Course Rate, or
atall,

50. Accordingly, pursuant to § 4 of the Wage Order and Labor Cade §§ 226.2, 1194, and
1194.2, Plaintiff and the Class are entitled ta recover, at a minimum, thelr unpaid hourly wages, plus
liquidated damages in an additional amount equal to the total amount of applicable minimum wages
unlawfully withheld during the Class Period for Class Members’ time spent on Non-Teaching Tasks.

Sl. Plaintiff, on behalf of herself and all other Class Members, requests relief as desoribed
below. ‘

 

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SECOND CAUSE OF ACTION

Faiinre to Pay Compensation Due Upon Termination
[Cal. Labor Code §§ 201-203}

52, Plaintiffre-alleges and incorporates by reference each and every allegation set forth in
the preceding paragraphs.

53. Labor Cade §§ 201 and 202 require Defendant to pay all compensation due and owing to
Class Members promptly afier their employment was terminated. Labor Code § 203 provides that if an
cmployer willfully fails to pay compensation promptly upon discharge or resignation, as required by *
§§ 201 and 202, then the employer is liable for penalties in the form of continued compensation up to 30
work days,

54. Asalleged herein, Defendant failed to pay Plaintiff and other Class Members for their
time spent performing Non-Teaching Tasks, and as a result failed to pay all wages due and owing to
Plaintiff and Class Members upon their termination or separation from employment with Defendant, as
required by Labor Code §§ 201 and 202,

55. In light of the clear law requiring that Defendant pay for time spent on Non-Teaching
Tasks hourly and separately from the Course Rate, Defendant's failure to pay wages for such time and
failure to pay such wage upon termination was willful.

56. Asa result, Defendant is liable to Plaintiff and Class Members for waiting time penalties
amounting to thirty (30) days wages for each formerly employed Class Member pursuant to Labor Code
§ 203. \
57. Plaintiff, on behalf of herself and all other Class Members, requests relief as described

below.
IRD CAUSE OF. ION
Violation of Unfair Competition Laws
[Cal. Bus. & Prof. Code § 17200 er seq.)
58. ° Plaintiff re-alleges and incorporates by reference each and every allegation set forth in
the preceding paragraphs.
59. The UCL prohibits any unlawful, unfair, or fraudulent business practices, Labor Code
§ 90.5(a) states that it is the public policy of California to vigorously enforce minimum labor standards
in order to ensure employees ars not required to work under substandard and unlawful conditions, and
to protect employers who comply with the law from those who attempt to gain competitive advantage at
the expense of thelr workers by failing to comply with minimum labor standards, ‘Through its actions

 

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alleged herein, Defendant has engaged in unfair competition within the meaning of the UCL, because
Defendant's conduct has violated state wage and hour Jaws as herein described.

60. Beginning at least four years prior to the filing of this Complaint, Defendant committed,
and continues to commit, acts of unfair competition, as defined in the UCL by wrongfully denying Class
Members payment for Non-Teaching Time (separately and hourly from the Course Rate or at all), in
violation of Labor Code §§ 226.2, 1194, and Wage Order No, 4-2001, §§ 4.

61. By Its actions and omissions, Defendant has substantially injured Plaintiff and the Class.
Members. Defendant's conduct as herein alleged has damaged Plaintiff and the Class and was
substantially injurious to them.

62. The harm to Plaintiff and the Class resulting from Defendant's labor code violations
outweighs the utility, if any, of Defendant's policies and practices, Therefore, Defendant's actions
described herein constitute an unfair business practice or act within the meaning of the UCL.

63. Plaintiff, on behalf of herself and all other Class Members, requests relief as described

below,

FOURTH CAUSE OF ACTION

Failure to Issue Accurate Itemized Wage Statement
[Cal. Labor Code §§ 226(a), (¢); 226.2(a))

64. — Plaintiffre-alleges and incorporates by reference each and every allegation set forth in
the preceding paragraplis.

65. During the Wage Statement Subclass Period, Defendant failed to furnish Plaintiff and
Wage Statement Subclass Members with accurate itemized wage statements in violation of Labor Code
§ 226(a) by failing to list on their wage statements (1) gross wages earned, (2) total hours worked by the
employee, (3) the number of piece-rate units eared and any applicable picce rate if the employee is
paid on a piece-rate basis, (4) net wages earned, and (5) all applicable hourly rates in effect during the
pay period and the corresponding number of hours worked at each hourly rate by the employes

66. Defendant also failed to furntsh Plaintiff and Wage Statement Subclass Members with
accurate itemized wage statements In violation of Labor Code § 226.2(a)(2) by failing to itemize hours
of nonproductive time, the rate of compensetion, and grass wages paid for nonproductive time during,
the pay period,

67, Defendant's failure to furnish accurate itemized wage statements to Plaintiff and Wage
Statement Subclass Members was knowing and intentional.

 

 

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68. —_Plaintiffand Wage Statement Subclass Members suffered injury as a result of
Defendant's knowing and intentional failure to comply with Labor Code §§ 226(a) and 226,2(a)(2) for
purposes of Labor Code § 226(e). Asa result, Wage Statement Subclass Members are entitled to recover
$50 for each initial pay period with a violation, and $100 for each subsequent pay period with a
violation, up to an amount not exceeding an aggregate penalty of $4,000 for each Wage Statement
Subelass Member, pursuant to Labor Code § 226(e).

69. Plaintiff, on behalf of herself and all other Wage Statement Subclass Members, requests
telief as described below. .

FIFTH CAUSE OF ACTION

Civil Penalties
[Cal. Labor Code § 2698 et seq.}

70, Plaintiff rc-alleges and incorporates by reference each and every allegation set forth in
the preceding paragraphs,

71. — Plaintiff is an “agerieved employee” under PAGA because she was employed by
Defendant during the applicable statutory period and suffered one or more of the Labor Code violations
alleged herein, As such, Plaintiff seeks to recover, on behalf of herself.and all other currently and
formerly employed aggrieved employees of Defendant, civil penalties under PAGA, plus reasonable
attorneys’ fees end costs,

72, Plaintiff seeks to recover the PAGA penalties through a representative action as
permitted by PAGA and the Callfornia Supreme Court in Arias v. Superior Court, 46 Cal, 4th 969
(2009). Therefore, class certification of the PAGA claims is not required, but Plaintiff may choose to
seek certification of the PAGA claims,

73. Plaintiff seeks PAGA penalties on behalf of herself and Aggtieved Employees against
Defendant for the following violations:

Violation of Labor Cade § 226.2 and 1194 ¢

74. During the PAGA Period, Defendant did not compensate Agatieved Employees
separately and hourly for the Non-Teaching Tasks they were required to perform. Thus, Defendan