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BRAD C. BRERETON (SBN 111266)
DAVID J. TERRAZAS (SBN 256132)
SASHA SHAHABI (SBN 298070)
BRERETON, MOHAMED, TERRAZAS LLP
1362 Pacific Avenue, Suite 221
Santa Cruz, California 95060
Tel: (831) 429-6391
Fax: (831) 459-8298
djt@brereton.law
Attorneys for Plaintiff
Tom Ebert
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SANTA CRUZ
UNLIMITED JURISDICTION
CASE NO.: 19CV03672
TOM EBERT, an individual;
Plaintiff, FIRST AMENDED COMPLAINT
vs.
AMERICAN ABALONE FARMS LLC,
a limited liability company, OCEAN
QUEEN USA, INC., A California
corporation, JAMES HO a.k.a.
CHIHYANG HO, an individual,
HENSON XIE a.k.a. SHOU HAI XIE,
an Individual, and DOES 1-50,
inclusive,
Defendants.
Plaintiff TOM EBERT alleges as follows:
1. At all times relevant herein, Plaintiff Tom Ebert was an individual residing
in the State of California.
2. At all times relevant herein, Defendant American Abalone Farms, LLC,
(‘AAF”) was a limited liability company organized and existing under the laws of
California, with its principal place of business located in Santa Cruz County, California.
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3. At all times relevant herein, Defendant Ocean Queen USA, Incorporated
(“OQ”) was a Corporation formed under the laws of and doing business in the state of
California.
4. At all times relevant herein, Defendant James Ho was an individual
residing in the State of California. Plaintiff is informed and believes that James Ho is
also known as Chihyang Ho. Plaintiff is informed and believes that James Ho is an
owner, director, officer, and managing agent of AAF and OQ.
5. At all time relevant herein, Defendant Henson Xie was an individual
residing in the state of California. Plaintiff is informed and believes that Henson Xie is
also known as Shou Hai Xie. Plaintiff is informed and believes that Henson Xie is an
owner and managing agent of AAF.
6. The true names and capacities, whether individual, corporate, or
otherwise, of the fictitiously named Defendants DOES 1 through 50, are unknown to
Plaintiff at this time. Plaintiff is informed and believes and based thereon alleges that
each of the defendants designated as a Doe is responsible in some manner for the
events and happenings herein referred to, and caused injury and damage proximately
thereby to Plaintiff, as herein alleged.
7. Except as indicated herein, at all times mentioned herein, each of the
defendants, including the Defendants served as a Doe herein, was the agent and/or
employee of each of the other Defendants and in doing the things herein mentioned
was acting within the scope of such agency and/or employment. At all times relevant
herein Defendant James Ho was authorized to act on behalf of each of the business
entity defendants described in this complaint, both before the purchase of Defendant
American Abalone Farms, and thereafter. Plaintiff is informed and believes that each of
the corporate and business entity defendants authorized, approved and ratified the
conduct of Defendant James Ho as alleged in this complaint, including through the
authorization, approval and ratification of such conduct after the purchase of such
business entity. Plaintiff is further informed and believes that each of the defendants
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named in this complaint is the alter ego of Defendant James Ho, and there exists, and
at all times herein mentioned has existed, a unity of interest and ownership between
Defendants such that any separateness between them has ceased to exist in that
Defendant James Ho completely controlled, dominated, managed, and operated the
other entity Defendants to suit his convenience.
8. At all times mentioned herein, each of the Defendants was the agent and
employee of each of the remaining Defendants, and at all times acted within the
purpose and scope of their agency and employment, and each Defendant has ratified
and approved the acts of his or her agent.
9. On or about July 27, 2018 through on or about July 31, 2019, Plaintiff
Tom Ebert was employed by Defendants and Does. During said period, Plaintiff worked
on average in excess of forty hours per week. In the course of such employment,
Plaintiff also was also required to use his personal vehicle and expend personal
resources to perform assigned duties during the workday.
FIRST CAUSE OF ACTION
Breach of Contract
(Against Defendants OQ, HO, AAF and Does)
10. Plaintiff hereby re-alleges and incorporates herein, each of the foregoing
allegations in this Complaint.
11. Onor about July 2018, Defendant Ocean Queen Seafood USA, Inc., and
Defendant James Ho purchased American Abalone Farms, Inc. (AAF) from Plaintiff
Tom Ebert. The purchase agreement was comprised of both a written and an oral
agreement whereby Plaintiff Thomas Ebert was retained by AAF to assist the new
owner in the business. The agreement also provided for the payment of AAF Accounts
Payable (AP) to Plaintiff at time of the business sale; payment to Plaintiff of funds
received by state and federal agencies as reimbursement for disaster relief; Payment to
Plaintiff of monies in AAF banks accounts at time of the business sale; Defendant,
Ocean Queen USA, Inc’s., assumption of AAF business debts; and payment of
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Plaintiff's wages for his employment by Defendants’ Ocean Queen USA, Inc., American
Abalone Farms, Inc., and James Ho.
12. Onor about July 27, 2018, Defendants entered into possession of
Defendant AAF, and they began to operate and manage AAF pursuant to the purchase
agreement between the parties. On or about April 2019, Plaintiff was notified by
Defendant James Ho that all AAF employees, including Plaintiff, were terminated, and
that Defendant Henson Xie would decide whether and who to rehire. Plaintiff is
informed and believes that in or around the beginning of 2019, Defendant Henson Xie
acquired some ownership interest in AAF from Defendant James Ho, and that Henson
Xie and James Ho are and during the relevant times were the owners and/or managing
agents of AAF. In or around April 2019, Defendant Henson Xie asked Plaintiff to
continue assisting with the management of AAF, and Plaintiff orally agreed and
continued to work for AAF for an additional three months, from May to August 2019.
13. Plaintiff performed all that was required of him under the agreements
except that which he was prevented or excused from performing by reason of
Defendants and Does conduct.
14. | Thereafter the Defendants breached the agreement with Plaintiff by failing
to provide the payment of required wages in an amount of at least $68,000.00; failing to
provide the payment of AAF Accounts Payable (AP) to Plaintiff at time of the business
sale in amount of at least $23,000.00; failing to provide the payment to Plaintiff of funds
received by state and federal agencies as reimbursement for disaster relief in an
amount of at least $4,500.00; failure by Defendant Ocean Queen, USA, to assume
AAF business debts, in an amount of at least $40,000.00; and failing to provide the
payment to Plaintiff of monies in AAF banks accounts at time of the business sale in an
amount of at least $3,000.00.
15. Onor after August 20, 2019, Plaintiff's demanded payment from
Defendants for unpaid wages, un-reimbursed business expenses and other sums as
described above and due to Plaintiff in an amount of at least $119,000.00.
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16. Asadirect and proximate result of the Defendants conduct as alleged
above Plaintiff has incurred damages in an amount of at least $119,000.00
SECOND CAUSE OF ACTION
Failure to Pay Minimum Wages
(California Labor Code Section 1197)
(Against Defendants AAF, HO, XIE and Does)
17. Plaintiff hereby incorporates all allegations of paragraphs in
this complaint as though set forth in full herein.
18. Atall times relevant herein, Defendants AAF, HO, XIE, and Does owned,
operated, and controlled a business for the purposes of operating an abalone farm,
spawning, growing, distributing and marketing abalone which employed persons within
the meaning of California Industrial Welfare Commission (“IWC”) Wage Order No. 14-
2001 and California Code of Regulations (“CCR”), Title 8, Section 11040.
19. Defendants recruited, solicited, hired and employed, induced, and
furnished employment to Plaintiff, and were employers pursuant to IWC Wage Order
No. 4-2001 and CCR, Title 8, Section 11040, which apply to occupations in the
professional, technical, clerical, mechanical, and similar occupations and control the
wages and working conditions of people employed by Defendants.
20. Atal times relevant herein, Defendants directly, indirectly and though an
agent and other persons engaged, suffered, and permitted Plaintiff to work.
21. Atall times relevant herein, Defendants directly and indirectly exercised
control over the wages, hours, and working conditions of Plaintiff.
22. Atal times relevant herein, Plaintiff was an employee of Defendants
under the California Labor Code and was non-exempt, and therefore subject to the
provisions of CCR, Title 8, Section 11040 and Wage Order No. 4-2001.
23. Atall times relevant herein, Plaintiff was an employee of Defendants
pursuant to an oral agreement. The terms of this contract included that Plaintiff worked
as a full-time employee providing professional services in the raising of mollusks and at
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all times as an employee of Defendants and not exempted from the California Labor
Law.
24. Atall times relevant herein, Plaintiff worked for the Defendants without the
provision of being paid minimum wages, without being paid proper overtime
compensation, without being paid all wages on time, working without meal or rest
periods, without being compensated for inadequate meal and rest periods, without
being paid the full amount of wages owed at the time of termination, and without having
being provided with accurate wage statements as required by law.
25. Defendants had in existence a consistent and uniform policy of requiring
Plaintiff to work without adequate compensation as required by law.
26. Defendants had in existence a consistent and uniform policy of failing to
authorize, permit, and provide Plaintiff rest periods of at least 10 minutes per four hours
worked, or major fractions thereof, and failing to pay Plaintiff one hour of pay at
Plaintiff's regular rate of compensation, or other compensation, for each workday that
the rest period was not provided, as required by California state wage and hour laws.
27. Defendants had in existence a consistent and uniform policy of failing to
compensate Plaintiff for travel required in the course of his employment as required by
California state wage and hour laws.
28. Plaintiff is informed and believes and based thereon alleges, that
Defendants knew, or should have known, that Plaintiff was entitled to receive all rest
periods or payment of an additional hour of pay at plaintiff's regular rate of
compensation when he did not receive timely, uninterrupted rest periods.
29. Defendants had in existence a consistent and uniform policy of failing to
provide accurate wage statements to plaintiff, as required by California law.
30. Defendants had in existence a consistent and uniform policy of failing to
provide compensation in full when due and payable for all hours worked in accordance
with California law.
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31. Defendants had in existence a consistent and uniform policy of failing to
pay all compensation owed immediately upon termination in accordance with California
law.
32. Plaintiff is informed and believes and based thereon alleges, that
Defendants knew, or should have known, that Plaintiff was entitled to receive all wages
owed immediately upon termination of employment in accordance with California law.
Plaintiff is informed and believes and based thereon alleges, that Plaintiff was harmed
in an amount of at least $68,000.00, the full amount to be proven at trial.
33. Plaintiff is informed and believes and based thereon alleges, that: At all
times herein mentioned, Defendants knew, or should have known, that they had a duty
to compensate Plaintiff; and Defendants had the financial ability to pay such
compensation, but willfully, knowingly, and intentionally failed to do so, all in order to
increase Defendants’ profits and to use profits to acquire other assets.
34. Plaintiff is informed and believes and based thereon alleges, that
Defendants knew, or should have known, that Plaintiff was entitled to receive certain
wages for all work done by him, and that he was not receiving certain wages for such
work.
35. Atall times herein mentioned, Plaintiff performed his employee duties, all
of which were known to Defendants.
36. Plaintiff brings this action pursuant to the Labor Code, CCR, Title 8,
Section 11040, and IWC Wage Order No. 14-2001 seeking unpaid wages, unpaid rest
and meal period compensation, necessary losses and expenditures incurred in his
employment, penalties, damages, attorneys’ fees and costs, injunctive, and other
equitable relief.
37. Plaintiff brings this action pursuant to Business and Professions Code
sections 17200-17208, seeking injunctive relief, restitution, and disgorgement of all
benefits Defendants enjoyed from their failure to provide minimum wages, overtime
wages, and rest and meal period compensation.
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38. Within three years last past immediately prior to the filing of the complaint
in this action, Defendants were obligated to the Plaintiff for unpaid wages, unpaid
overtime, and other violations of the Labor Code as alleged in this complaint.
39. Labor Code Section 1197 provides that it is unlawful to pay less than the
minimum wage established by law.
40. Atal times relevant herein, IWC Wage Order No. 14-2001, which applies
to Plaintiff's employment by Defendants, provided for a payment of minimum wage as
established by law.
41. Under the provision of the aforementioned Wage Order, Plaintiff would
have received an amount of compensation according to proof at trial for hours worked.
Defendants therefore owe Plaintiff a sum according to proof, representing the
difference between the amount of wages owed pursuant to the Wage Order and the
amount actually paid to Plaintiff. Defendants have failed and refused, and continue to
fail and refuse to pay Plaintiff the amount owed.
42. Defendants’ failure to pay Plaintiff the sum due, as required by the
applicable Wage Order, violates the provision of Labor Code Section 1197 and is
therefore unlawful.
43. Plaintiff is informed and believes, and based thereon alleges that each of
the Defendants named in this complaint knowingly and wilfully received the benefits of
the Plaintiff's work, efforts, labors, services, and employment as described in this cause
of action, and further, knowingly and wilfully retained such benefit to the detriment and
damage of the Plaintiff, and knowingly and wilfully failed to comply with applicable law
related to such work, efforts, labors, services, and employment.
44. Wherefore, Plaintiff prays judgment as set forth below.
THIRD CAUSE OF ACTION
Failure to Pay Overtime Compensation
(California Labor Code Section 510)
(Against Defendants AAF, HO, XIE and Does)
45. Plaintiff hereby incorporates all allegations of paragraphs in
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this complaint as though set forth in full herein.
46. Within three years last past immediately prior to the filing of the complaint
in this action, Defendants AAF, HO, XIE and Does were obligated to the Plaintiff for
unpaid wages, unpaid overtime, and other violations of the Labor Code as alleged in
this complaint.
47. Labor Code Section 1198 provides that it is unlawful to employ persons
for longer than the hours set by the Industrial Welfare Commission or under conditions
prohibited by the applicable wage hours.
48. Atall times relevant herein, Industrial Welfare Commission Wage Order
No. 14-2001, which applies to Plaintiff's employment by Defendants, provides that:
employees employed for more than 8 hours in one day, or employees employed for
more than 40 hours per week, or employees employed for more than 6 days in any
workweek are entitled to payment at the rate of time and one half hours in excess of
eight hours in one day, or 40 hours in one week, or more than six days in any
workweek; and employees employed for more than 12 hours in one day are entitled to
payment at the rate of double time for hours in excess of eight hours; and employees
employed for more than eight hours on the seventh consecutive day of work in a
workweek are entitled to payment at the rate of double time for hours in excess of eight
hours.
49. Under the provision of the aforementioned Wage Order, Plaintiff would
have received an amount of compensation according to proof at trial for the overtime
hours worked. Defendants therefore owe Plaintiff a sum according to proof,
representing the difference between the amount of overtime wages owed pursuant to
the Wage Order and the amount actually paid to Plaintiff. Defendants have failed and
refused, and continue to fail and refuse to pay Plaintiff the amount owed.
50. Defendants’ failure to pay Plaintiff the sum due, as required by the
applicable Wage Order, violates the provision of Labor Code Section 510 and is
therefore unlawful. Plaintiff is informed and believes and based thereon alleges that
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FIRST AMENDED COMPLAINTthe amount owed to Plaintiff by Defendant for overtime of at least $25,000.00, the full
amount to be proven at trial.
51. Pursuant to Labor Code Section 1194(a), Plaintiff requests that the court
award Plaintiff reasonable attorneys’ fees and costs incurred by him in this action.
52. Wherefore, Plaintiff prays judgment as set forth below.
Failure S Ronnburat Work Related Expenses
(California Labor Code Section 2802)
(Against Defendants AAF, HO, XIE and Does)
53. Plaintiff hereby incorporates all allegations of paragraphs in
this complaint as though set forth in full herein.
54. Within three years last past immediately prior to the filing of the complaint
in this action, Defendants AAF, HO, XIE, and Does were obligated to the Plaintiff for
unpaid wages, unpaid overtime, and other violations of the Labor Code as alleged in
this complaint.
55. As alleged above, Defendants have failed to pay Plaintiff for all necessary
work related expenditures or losses incurred in direct consequence of the discharge of
his duties and by Defendants’ direction. Plaintiff is informed and believes and based
thereon alleges that the full amount of work related expenses owed to Plaintiff by
Defendant of at least $38,000.00, the full amount to be proven at trial.
56. As an example of Defendants’ failure to reimburse Plaintiff for work
related expenses, Plaintiff was included as an American Abalone Employee and listed
as an additional guarantor for business expenses related to business purchases.
Defendant Ocean Queen USA, Inc., agreed to pay for business expenses incurred by
Defendant American Abalone, Inc. Prior to April 30,2019. Defendants refused to pay
for these business expenses. As an example Plaintiff has been billed for Defendant
American Abalone Farm, Inc., business expenses related to a Capital One Credit Card;
a Bank of America Credit Card and a Home Depot Credit Card that Defendants refuse
to reimburse Plaintiff for payment, as required by law. Furthermore, Plaintiff was not
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reimbursed for the use of his personal vehicle for business purposes, as required by
law.
57. Defendants’ violations of California Labor Code section 2802 were
repeated, willful, and intentional.
58. Pursuant to Labor Code Section 1194(a), Plaintiff requests that the court
award Plaintiff damages arising from the foregoing, and reasonable attorneys’ fees and
costs incurred by him in this action.
59. Wherefore, Plaintiff prays judgment as set forth below.
FIFTH CAUSE OF ACTION
Failure to Pay Wages Timely
(California Labor Code Section 204)
(Against Defendants AAF, HO, XIE and Does)
60. Plaintiff hereby incorporates all allegations of paragraphs in
this complaint as though set forth in full herein.
61. Within three years last past immediately prior to the filing of the complaint
in this action, Defendants AAF, HO, XIE and Does were obligated to the Plaintiff for
unpaid wages, unpaid overtime, and other violations of the Labor Code as alleged in
this complaint.
62. As alleged above, Defendants have failed to timely pay Plaintiff the wages
and overtime wages due to him, and have failed to reimburse Plaintiff for work related
expenses. Plaintiff is informed and believes that the full amount of wages and work
related expenses owed to Plaintiff by Defendant of at least $75,000.00, the full amount
to be proven at trial.
63. Defendants’ conduct as alleged herein constitutes a violation of the
California Labor Code, including but not limited to Section 204 thereof, which requires
that all wages be paid in at least semimonthly payments.
64. Defendants’ violations of California Labor Code section 204 were
repeated, willful, and intentional.
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65. Plaintiff has been damaged by said violations of California Labor Code
sections, 204, 226.7, and 512(a), and IWC Wage Order No. 14-2001.
66. Wherefore, Plaintiff prays judgment as set forth below.
SIXTH CAUSE OF ACTION
Failure to Pay All Wages Upon Termination
(California Labor Code Sections 201 and 202)
(Against Defendants AAF, HO, XIE and Does)
67. Plaintiff hereby incorporates all allegations of paragraphs in
this complaint as though set forth in full herein.
68. Plaintiff was entitled to be immediately paid for all compensation owed by
Defendants AAF, HO, XIE and Does as required by Labor Code sections 201 and 202
when his employment with Defendants ended. This, Defendants failed to do. Plaintiff is
informed and believes that the full amount of wages owed to Plaintiff by Defendants at
termination is in excess of $75,000.00, to be proven at trial.
69. Pursuant to Labor Code section 203, if an employer willfully fails to pay an
employee unpaid wages within the requisite time period, the employer must pay the
employee a penalty in the amount of up to 30 days of pay, called a “waiting time
penalty.” Accordingly, Plaintiff seeks the payment of Labor Code Section 203 penalties,
in an amount according to proof.
70. Wherefore, Plaintiff prays judgment as set forth below.
SEVENTH CAUSE OF ACTION
Unfair Business Practices
(California Business and Professions Code Section 17200 et., seq.,)
(Against All Defendants OQ, AAF, Ho, and Does)
71. — Plaintiff hereby incorporates all allegations of paragraphs in
this complaint as though set forth in full herein.
72. Under Business and Professions Code Section 17201, Plaintiff asserts
standing on his own behalf.
73. Within four years last past immediately prior to the filing of the complaint
in this action, Defendant, Ocean Queen USA, Inc., Defendant Ho and Does engaged in
the conduct alleged above in this complaint. Plaintiff is informed and believes and
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based thereon alleges that said Defendants conspired with, and acted as the
authorized agents for Defendants American Abalone Fams, Inc., Ocean Queen USA,
Inc., and the other Does, in the conduct attributed to Defendants American Abalone
Farms, Inc., Ho and Does.
74. Plaintiff is informed and believes that said Defendants, authorized
Defendants Ho and Does to engage in the aforementioned conduct as stated in this
complaint.
75. Plaintiff is informed and believes that said Defendants American Abalone
Farms, Inc., Ocean Queen USA, Inc., and Does., ratified Defendants Ho and Does’
conduct as alleged in this complaint.
76. Plaintiff is informed and believes that Defendant Ho and Does used,
applied, paid, delivered and expended the money received from Plaintiff Tom Ebert,
and the value of Plaintiffs unpaid wages, for the use and benefit of each of the following
business entities: American Abalone Farms, Inc., and Ocean Queen USA, Inc.
77. The fraudulent business practices of the said Defendants Ho, American
Abalone Farms, Inc., and Ocean Queen USA, Inc., , and Does is alleged above. The
unlawful and unfair business practices of said Defendants, as alleged above, also
infringed upon and defeated the public interest purposes of state wage and hour laws,
as set forth in the California Labor Code, the California Industrial Welfare Commission
Wage Orders, and the California Code of Regulations, which promote compliance with
all wage and hour laws and employment regulations by participants in Defendants’
industry.
78. In addition, Plaintiff is informed and believes and based thereon alleges
that said Defendants have engaged in a business practice of defrauding other
employees in the same or similar fashion as described in this complaint in regards to
the fraud against this Plaintiff, and further engaged in a business practice of violating
the labor laws of this state in regards to other persons who worked for them, and who,
under applicable law, fall within the definition of being employees of Defendants.
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79. Said Defendants’ unfair and unlawful business practices thus imposed
harm to Plaintiff and others. As a result of the unfair and unlawful business practices,
said Defendants retained monies belonging to Plaintiff and were unjustly enriched at
Plaintiff's expense.
80. Asadirect and proximate result of said Defendants’ conduct, Plaintiff has
suffered injury and loss of money, Plaintiff has no adequate remedy at law, and
irreparable harm would result if equitable relief is not provided. Plaintiff requires an
injunction, restitution, and imposition of an equitable trust to obtain restitution of all
funds wrongfully retained by said Defendants.
81. | The actions and omissions of said Defendants, as alleged in this
amended complaint, constitute violations of California Business and Professions Codes
Sections 17200 et seq., and 17500 et seq. The acts and omissions are unfair and
unlawful business practices, which can be enjoined, and they are practices for which
Defendants can be held liable in fines, damages, and costs.
82. This action will result in the enforcement of an important right affecting the
public interest. Accordingly, Plaintiff is entitled to an award of reasonable attorneys’
fees according to proof.
83. Wherefore, Plaintiff prays judgment as set forth below.
EIGHTH CAUSE OF ACTION
Failure to Maintain Accurate Records
(Labor Code Sections 1174, 1174.5,)
(Against Defendants AAF, HO, XIE and Does)
84. All allegations of the complaint are incorporated by reference as though
set forth in each of the foregoing allegations in this Complaint.
85. Under California Labor Section 1174, Defendants are required to maintain
accurate records of the hours worked and the wages paid to Plaintiff.
86. Defendants failed to maintain accurate records of the hours worked and
the wages paid to Plaintiff. Defendants did not employ policies, procedures, and
practices to track Plaintiffs hours.
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87. Plaintiff was injured by Defendants’ failure to maintain accurate records,
because, as alleged above, Plaintiff did not receive pay for all hours worked, and thus
suffered monetary damages due to Defendants’ policies described above.
88. Plaintiff is not exempt from the requirements of the Employment Laws and
Regulations.
89. | Based on Defendants’ conduct as alleged herein, Defendants are liable
for damages and statutory penalties pursuant to California Labor Code Sections 1174,
1174.5, and other applicable provisions of the Employment Laws and Regulations in
amounts to be established at trial, as well as attorneys’ fees and costs, pursuant to
statute.
Failure to'Purhish Wage Sid Hour Statements
(Labor Code Sections 226(e), 226.3)
(Against Defendants AAF, HO, XIE and Does)
90. All allegations of the complaint are incorporated by reference as though
set forth in each of the foregoing allegations in this Complaint.
91. Under California Labor Section 226(a), 226(e)(1),226(e)(2), Defendants
are required to provide timely and accurate wage and hour statements showing the
inclusive dates of the pay period, gross wages earned, total hours worked, all
deductions made, net wages earned, the name and address of the legal entity
employing them, all applicable hourly rates in effect during each pay period, and the
corresponding number of hours worked at each hourly rate. Plaintiff in fact never
received accurate wage statements at all, as Defendants did not employ a timekeeping
system that actually tracked all hours worked nor respond to Plaintiffs request for
records.
92. Defendants knowingly failed to provide Plaintiff with timely wage and hour
statements as required by law.
93. Plaintiff was injured by Defendants’ failure to provide wage statements,
because, as alleged above, Plaintiff could not determine whether they were paid
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properly and/or did not receive pay for all hours worked, and thus suffered monetary
damages due to Defendants’ policies described above.
94. Plaintiff is not exempt from the requirements of the Employment Laws and
Regulations.
95. Based on Defendants’ conduct as alleged herein, Defendants are liable
for damages and statutory penalties pursuant to California Labor Code Sections 226,
and other applicable provisions of the Employment Laws and Regulations in amounts to
be established at trial, as well as attorneys’ fees and costs, pursuant to statute.
RELIEF REQUESTED
WHEREFORE, Plaintiffs pray judgment against the Defendants, and
each of them, jointly and severally as follows:
|. For an award of general, consequential and special damages in amount
in excess of $119,000.00;
2. For an award of prejudgment interest on all such damages at the legal
rate from July 31, 2019 through the date of entry of judgment in this action;
3. For an award of Punitive damages against Defendants in an amount to
be proven at trial;
4. For an award of all attorney's fees and costs of suit; and
5. For such other and further relief as the Court may deem proper.
Respectfully submitted,
Dated: February 23, 2022
reréton, Mohamed, Terrazas LLP
By: Sasha Shahabi
Attorney for Plaintiff
Tom Ebert
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C0 ODN DH FB WD = NN MO NY YB NY VB YB NY NY BSB Be ae wo ows Baw aw Bw aw a on OD a FF WH = DOG DN DTD KR WOW DY = BRAD C. BRERETON (SBN 111266) DAVID J. TERRAZAS (SBN 256132) SASHA SHAHABI (SBN 298070) BRERETON, MOHAMED, TERRAZAS LLP 1362 Pacific Avenue, Suite 221 Santa Cruz, California 95060 Tel: (831) 429-6391 Fax: (831) 459-8298 djt@brereton.law Attorneys for Plaintiff Tom Ebert SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CRUZ UNLIMITED JURISDICTION CASE NO.: 19CV03672 TOM EBERT, an individual; Plaintiff, FIRST AMENDED COMPLAINT vs. AMERICAN ABALONE FARMS LLC, a limited liability company, OCEAN QUEEN USA, INC., A California corporation, JAMES HO a.k.a. CHIHYANG HO, an individual, HENSON XIE a.k.a. SHOU HAI XIE, an Individual, and DOES 1-50, inclusive, Defendants. Plaintiff TOM EBERT alleges as follows: 1. At all times relevant herein, Plaintiff Tom Ebert was an individual residing in the State of California. 2. At all times relevant herein, Defendant American Abalone Farms, LLC, (‘AAF”) was a limited liability company organized and existing under the laws of California, with its principal place of business located in Santa Cruz County, California. 1 FIRST AMENDED COMPLAINT= oO ON OO Rk WO PD 3. At all times relevant herein, Defendant Ocean Queen USA, Incorporated (“OQ”) was a Corporation formed under the laws of and doing business in the state of California. 4. At all times relevant herein, Defendant James Ho was an individual residing in the State of California. Plaintiff is informed and believes that James Ho is also known as Chihyang Ho. Plaintiff is informed and believes that James Ho is an owner, director, officer, and managing agent of AAF and OQ. 5. At all time relevant herein, Defendant Henson Xie was an individual residing in the state of California. Plaintiff is informed and believes that Henson Xie is also known as Shou Hai Xie. Plaintiff is informed and believes that Henson Xie is an owner and managing agent of AAF. 6. The true names and capacities, whether individual, corporate, or otherwise, of the fictitiously named Defendants DOES 1 through 50, are unknown to Plaintiff at this time. Plaintiff is informed and believes and based thereon alleges that each of the defendants designated as a Doe is responsible in some manner for the events and happenings herein referred to, and caused injury and damage proximately thereby to Plaintiff, as herein alleged. 7. Except as indicated herein, at all times mentioned herein, each of the defendants, including the Defendants served as a Doe herein, was the agent and/or employee of each of the other Defendants and in doing the things herein mentioned was acting within the scope of such agency and/or employment. At all times relevant herein Defendant James Ho was authorized to act on behalf of each of the business entity defendants described in this complaint, both before the purchase of Defendant American Abalone Farms, and thereafter. Plaintiff is informed and believes that each of the corporate and business entity defendants authorized, approved and ratified the conduct of Defendant James Ho as alleged in this complaint, including through the authorization, approval and ratification of such conduct after the purchase of such business entity. Plaintiff is further informed and believes that each of the defendants 2 FIRST AMENDED COMPLAINT= oO ON ODO OHO BR WwW DY named in this complaint is the alter ego of Defendant James Ho, and there exists, and at all times herein mentioned has existed, a unity of interest and ownership between Defendants such that any separateness between them has ceased to exist in that Defendant James Ho completely controlled, dominated, managed, and operated the other entity Defendants to suit his convenience. 8. At all times mentioned herein, each of the Defendants was the agent and employee of each of the remaining Defendants, and at all times acted within the purpose and scope of their agency and employment, and each Defendant has ratified and approved the acts of his or her agent. 9. On or about July 27, 2018 through on or about July 31, 2019, Plaintiff Tom Ebert was employed by Defendants and Does. During said period, Plaintiff worked on average in excess of forty hours per week. In the course of such employment, Plaintiff also was also required to use his personal vehicle and expend personal resources to perform assigned duties during the workday. FIRST CAUSE OF ACTION Breach of Contract (Against Defendants OQ, HO, AAF and Does) 10. Plaintiff hereby re-alleges and incorporates herein, each of the foregoing allegations in this Complaint. 11. Onor about July 2018, Defendant Ocean Queen Seafood USA, Inc., and Defendant James Ho purchased American Abalone Farms, Inc. (AAF) from Plaintiff Tom Ebert. The purchase agreement was comprised of both a written and an oral agreement whereby Plaintiff Thomas Ebert was retained by AAF to assist the new owner in the business. The agreement also provided for the payment of AAF Accounts Payable (AP) to Plaintiff at time of the business sale; payment to Plaintiff of funds received by state and federal agencies as reimbursement for disaster relief; Payment to Plaintiff of monies in AAF banks accounts at time of the business sale; Defendant, Ocean Queen USA, Inc’s., assumption of AAF business debts; and payment of 3 FIRST AMENDED COMPLAINT= oO ON OO F&F WwW DY Plaintiff's wages for his employment by Defendants’ Ocean Queen USA, Inc., American Abalone Farms, Inc., and James Ho. 12. Onor about July 27, 2018, Defendants entered into possession of Defendant AAF, and they began to operate and manage AAF pursuant to the purchase agreement between the parties. On or about April 2019, Plaintiff was notified by Defendant James Ho that all AAF employees, including Plaintiff, were terminated, and that Defendant Henson Xie would decide whether and who to rehire. Plaintiff is informed and believes that in or around the beginning of 2019, Defendant Henson Xie acquired some ownership interest in AAF from Defendant James Ho, and that Henson Xie and James Ho are and during the relevant times were the owners and/or managing agents of AAF. In or around April 2019, Defendant Henson Xie asked Plaintiff to continue assisting with the management of AAF, and Plaintiff orally agreed and continued to work for AAF for an additional three months, from May to August 2019. 13. Plaintiff performed all that was required of him under the agreements except that which he was prevented or excused from performing by reason of Defendants and Does conduct. 14. | Thereafter the Defendants breached the agreement with Plaintiff by failing to provide the payment of required wages in an amount of at least $68,000.00; failing to provide the payment of AAF Accounts Payable (AP) to Plaintiff at time of the business sale in amount of at least $23,000.00; failing to provide the payment to Plaintiff of funds received by state and federal agencies as reimbursement for disaster relief in an amount of at least $4,500.00; failure by Defendant Ocean Queen, USA, to assume AAF business debts, in an amount of at least $40,000.00; and failing to provide the payment to Plaintiff of monies in AAF banks accounts at time of the business sale in an amount of at least $3,000.00. 15. Onor after August 20, 2019, Plaintiff's demanded payment from Defendants for unpaid wages, un-reimbursed business expenses and other sums as described above and due to Plaintiff in an amount of at least $119,000.00. 4 FIRST AMENDED COMPLAINT= oOo ON DOO & WOW PD 16. Asadirect and proximate result of the Defendants conduct as alleged above Plaintiff has incurred damages in an amount of at least $119,000.00 SECOND CAUSE OF ACTION Failure to Pay Minimum Wages (California Labor Code Section 1197) (Against Defendants AAF, HO, XIE and Does) 17. Plaintiff hereby incorporates all allegations of paragraphs in this complaint as though set forth in full herein. 18. Atall times relevant herein, Defendants AAF, HO, XIE, and Does owned, operated, and controlled a business for the purposes of operating an abalone farm, spawning, growing, distributing and marketing abalone which employed persons within the meaning of California Industrial Welfare Commission (“IWC”) Wage Order No. 14- 2001 and California Code of Regulations (“CCR”), Title 8, Section 11040. 19. Defendants recruited, solicited, hired and employed, induced, and furnished employment to Plaintiff, and were employers pursuant to IWC Wage Order No. 4-2001 and CCR, Title 8, Section 11040, which apply to occupations in the professional, technical, clerical, mechanical, and similar occupations and control the wages and working conditions of people employed by Defendants. 20. Atal times relevant herein, Defendants directly, indirectly and though an agent and other persons engaged, suffered, and permitted Plaintiff to work. 21. Atall times relevant herein, Defendants directly and indirectly exercised control over the wages, hours, and working conditions of Plaintiff. 22. Atal times relevant herein, Plaintiff was an employee of Defendants under the California Labor Code and was non-exempt, and therefore subject to the provisions of CCR, Title 8, Section 11040 and Wage Order No. 4-2001. 23. Atall times relevant herein, Plaintiff was an employee of Defendants pursuant to an oral agreement. The terms of this contract included that Plaintiff worked as a full-time employee providing professional services in the raising of mollusks and at 5 FIRST AMENDED COMPLAINT= oO ON DO OH BF WwW DY all times as an employee of Defendants and not exempted from the California Labor Law. 24. Atall times relevant herein, Plaintiff worked for the Defendants without the provision of being paid minimum wages, without being paid proper overtime compensation, without being paid all wages on time, working without meal or rest periods, without being compensated for inadequate meal and rest periods, without being paid the full amount of wages owed at the time of termination, and without having being provided with accurate wage statements as required by law. 25. Defendants had in existence a consistent and uniform policy of requiring Plaintiff to work without adequate compensation as required by law. 26. Defendants had in existence a consistent and uniform policy of failing to authorize, permit, and provide Plaintiff rest periods of at least 10 minutes per four hours worked, or major fractions thereof, and failing to pay Plaintiff one hour of pay at Plaintiff's regular rate of compensation, or other compensation, for each workday that the rest period was not provided, as required by California state wage and hour laws. 27. Defendants had in existence a consistent and uniform policy of failing to compensate Plaintiff for travel required in the course of his employment as required by California state wage and hour laws. 28. Plaintiff is informed and believes and based thereon alleges, that Defendants knew, or should have known, that Plaintiff was entitled to receive all rest periods or payment of an additional hour of pay at plaintiff's regular rate of compensation when he did not receive timely, uninterrupted rest periods. 29. Defendants had in existence a consistent and uniform policy of failing to provide accurate wage statements to plaintiff, as required by California law. 30. Defendants had in existence a consistent and uniform policy of failing to provide compensation in full when due and payable for all hours worked in accordance with California law. 6 FIRST AMENDED COMPLAINT= oO ON OH fk WwW DN NM NM NY NHB NHB HB HB NY NY | BSB Be Ba Ba Bw ae aw aw a on Oo a FW NY = FD OG DN DOD TO RF Ww DY = 31. Defendants had in existence a consistent and uniform policy of failing to pay all compensation owed immediately upon termination in accordance with California law. 32. Plaintiff is informed and believes and based thereon alleges, that Defendants knew, or should have known, that Plaintiff was entitled to receive all wages owed immediately upon termination of employment in accordance with California law. Plaintiff is informed and believes and based thereon alleges, that Plaintiff was harmed in an amount of at least $68,000.00, the full amount to be proven at trial. 33. Plaintiff is informed and believes and based thereon alleges, that: At all times herein mentioned, Defendants knew, or should have known, that they had a duty to compensate Plaintiff; and Defendants had the financial ability to pay such compensation, but willfully, knowingly, and intentionally failed to do so, all in order to increase Defendants’ profits and to use profits to acquire other assets. 34. Plaintiff is informed and believes and based thereon alleges, that Defendants knew, or should have known, that Plaintiff was entitled to receive certain wages for all work done by him, and that he was not receiving certain wages for such work. 35. Atall times herein mentioned, Plaintiff performed his employee duties, all of which were known to Defendants. 36. Plaintiff brings this action pursuant to the Labor Code, CCR, Title 8, Section 11040, and IWC Wage Order No. 14-2001 seeking unpaid wages, unpaid rest and meal period compensation, necessary losses and expenditures incurred in his employment, penalties, damages, attorneys’ fees and costs, injunctive, and other equitable relief. 37. Plaintiff brings this action pursuant to Business and Professions Code sections 17200-17208, seeking injunctive relief, restitution, and disgorgement of all benefits Defendants enjoyed from their failure to provide minimum wages, overtime wages, and rest and meal period compensation. 7 FIRST AMENDED COMPLAINT= oOo ON DOD oO Fk WwW DN 38. Within three years last past immediately prior to the filing of the complaint in this action, Defendants were obligated to the Plaintiff for unpaid wages, unpaid overtime, and other violations of the Labor Code as alleged in this complaint. 39. Labor Code Section 1197 provides that it is unlawful to pay less than the minimum wage established by law. 40. Atal times relevant herein, IWC Wage Order No. 14-2001, which applies to Plaintiff's employment by Defendants, provided for a payment of minimum wage as established by law. 41. Under the provision of the aforementioned Wage Order, Plaintiff would have received an amount of compensation according to proof at trial for hours worked. Defendants therefore owe Plaintiff a sum according to proof, representing the difference between the amount of wages owed pursuant to the Wage Order and the amount actually paid to Plaintiff. Defendants have failed and refused, and continue to fail and refuse to pay Plaintiff the amount owed. 42. Defendants’ failure to pay Plaintiff the sum due, as required by the applicable Wage Order, violates the provision of Labor Code Section 1197 and is therefore unlawful. 43. Plaintiff is informed and believes, and based thereon alleges that each of the Defendants named in this complaint knowingly and wilfully received the benefits of the Plaintiff's work, efforts, labors, services, and employment as described in this cause of action, and further, knowingly and wilfully retained such benefit to the detriment and damage of the Plaintiff, and knowingly and wilfully failed to comply with applicable law related to such work, efforts, labors, services, and employment. 44. Wherefore, Plaintiff prays judgment as set forth below. THIRD CAUSE OF ACTION Failure to Pay Overtime Compensation (California Labor Code Section 510) (Against Defendants AAF, HO, XIE and Does) 45. Plaintiff hereby incorporates all allegations of paragraphs in 8 FIRST AMENDED COMPLAINT= oO ON OO F&F WwW DY this complaint as though set forth in full herein. 46. Within three years last past immediately prior to the filing of the complaint in this action, Defendants AAF, HO, XIE and Does were obligated to the Plaintiff for unpaid wages, unpaid overtime, and other violations of the Labor Code as alleged in this complaint. 47. Labor Code Section 1198 provides that it is unlawful to employ persons for longer than the hours set by the Industrial Welfare Commission or under conditions prohibited by the applicable wage hours. 48. Atall times relevant herein, Industrial Welfare Commission Wage Order No. 14-2001, which applies to Plaintiff's employment by Defendants, provides that: employees employed for more than 8 hours in one day, or employees employed for more than 40 hours per week, or employees employed for more than 6 days in any workweek are entitled to payment at the rate of time and one half hours in excess of eight hours in one day, or 40 hours in one week, or more than six days in any workweek; and employees employed for more than 12 hours in one day are entitled to payment at the rate of double time for hours in excess of eight hours; and employees employed for more than eight hours on the seventh consecutive day of work in a workweek are entitled to payment at the rate of double time for hours in excess of eight hours. 49. Under the provision of the aforementioned Wage Order, Plaintiff would have received an amount of compensation according to proof at trial for the overtime hours worked. Defendants therefore owe Plaintiff a sum according to proof, representing the difference between the amount of overtime wages owed pursuant to the Wage Order and the amount actually paid to Plaintiff. Defendants have failed and refused, and continue to fail and refuse to pay Plaintiff the amount owed. 50. Defendants’ failure to pay Plaintiff the sum due, as required by the applicable Wage Order, violates the provision of Labor Code Section 510 and is therefore unlawful. Plaintiff is informed and believes and based thereon alleges that 9 FIRST AMENDED COMPLAINTthe amount owed to Plaintiff by Defendant for overtime of at least $25,000.00, the full amount to be proven at trial. 51. Pursuant to Labor Code Section 1194(a), Plaintiff requests that the court award Plaintiff reasonable attorneys’ fees and costs incurred by him in this action. 52. Wherefore, Plaintiff prays judgment as set forth below. Failure S Ronnburat Work Related Expenses (California Labor Code Section 2802) (Against Defendants AAF, HO, XIE and Does) 53. Plaintiff hereby incorporates all allegations of paragraphs in this complaint as though set forth in full herein. 54. Within three years last past immediately prior to the filing of the complaint in this action, Defendants AAF, HO, XIE, and Does were obligated to the Plaintiff for unpaid wages, unpaid overtime, and other violations of the Labor Code as alleged in this complaint. 55. As alleged above, Defendants have failed to pay Plaintiff for all necessary work related expenditures or losses incurred in direct consequence of the discharge of his duties and by Defendants’ direction. Plaintiff is informed and believes and based thereon alleges that the full amount of work related expenses owed to Plaintiff by Defendant of at least $38,000.00, the full amount to be proven at trial. 56. As an example of Defendants’ failure to reimburse Plaintiff for work related expenses, Plaintiff was included as an American Abalone Employee and listed as an additional guarantor for business expenses related to business purchases. Defendant Ocean Queen USA, Inc., agreed to pay for business expenses incurred by Defendant American Abalone, Inc. Prior to April 30,2019. Defendants refused to pay for these business expenses. As an example Plaintiff has been billed for Defendant American Abalone Farm, Inc., business expenses related to a Capital One Credit Card; a Bank of America Credit Card and a Home Depot Credit Card that Defendants refuse to reimburse Plaintiff for payment, as required by law. Furthermore, Plaintiff was not 10 FIRST AMENDED COMPLAINToO ON DO HO FF WwW DY reimbursed for the use of his personal vehicle for business purposes, as required by law. 57. Defendants’ violations of California Labor Code section 2802 were repeated, willful, and intentional. 58. Pursuant to Labor Code Section 1194(a), Plaintiff requests that the court award Plaintiff damages arising from the foregoing, and reasonable attorneys’ fees and costs incurred by him in this action. 59. Wherefore, Plaintiff prays judgment as set forth below. FIFTH CAUSE OF ACTION Failure to Pay Wages Timely (California Labor Code Section 204) (Against Defendants AAF, HO, XIE and Does) 60. Plaintiff hereby incorporates all allegations of paragraphs in this complaint as though set forth in full herein. 61. Within three years last past immediately prior to the filing of the complaint in this action, Defendants AAF, HO, XIE and Does were obligated to the Plaintiff for unpaid wages, unpaid overtime, and other violations of the Labor Code as alleged in this complaint. 62. As alleged above, Defendants have failed to timely pay Plaintiff the wages and overtime wages due to him, and have failed to reimburse Plaintiff for work related expenses. Plaintiff is informed and believes that the full amount of wages and work related expenses owed to Plaintiff by Defendant of at least $75,000.00, the full amount to be proven at trial. 63. Defendants’ conduct as alleged herein constitutes a violation of the California Labor Code, including but not limited to Section 204 thereof, which requires that all wages be paid in at least semimonthly payments. 64. Defendants’ violations of California Labor Code section 204 were repeated, willful, and intentional. 11 FIRST AMENDED COMPLAINToO ON DO oO FF WO DY = MN MN NY NY NY NY YNY HN @ Bea aaa a sa oa on OW aH FB Ww YH A DOG DN DOD TD RW DY = 65. Plaintiff has been damaged by said violations of California Labor Code sections, 204, 226.7, and 512(a), and IWC Wage Order No. 14-2001. 66. Wherefore, Plaintiff prays judgment as set forth below. SIXTH CAUSE OF ACTION Failure to Pay All Wages Upon Termination (California Labor Code Sections 201 and 202) (Against Defendants AAF, HO, XIE and Does) 67. Plaintiff hereby incorporates all allegations of paragraphs in this complaint as though set forth in full herein. 68. Plaintiff was entitled to be immediately paid for all compensation owed by Defendants AAF, HO, XIE and Does as required by Labor Code sections 201 and 202 when his employment with Defendants ended. This, Defendants failed to do. Plaintiff is informed and believes that the full amount of wages owed to Plaintiff by Defendants at termination is in excess of $75,000.00, to be proven at trial. 69. Pursuant to Labor Code section 203, if an employer willfully fails to pay an employee unpaid wages within the requisite time period, the employer must pay the employee a penalty in the amount of up to 30 days of pay, called a “waiting time penalty.” Accordingly, Plaintiff seeks the payment of Labor Code Section 203 penalties, in an amount according to proof. 70. Wherefore, Plaintiff prays judgment as set forth below. SEVENTH CAUSE OF ACTION Unfair Business Practices (California Business and Professions Code Section 17200 et., seq.,) (Against All Defendants OQ, AAF, Ho, and Does) 71. — Plaintiff hereby incorporates all allegations of paragraphs in this complaint as though set forth in full herein. 72. Under Business and Professions Code Section 17201, Plaintiff asserts standing on his own behalf. 73. Within four years last past immediately prior to the filing of the complaint in this action, Defendant, Ocean Queen USA, Inc., Defendant Ho and Does engaged in the conduct alleged above in this complaint. Plaintiff is informed and believes and 12 FIRST AMENDED COMPLAINT= oO ON DO oO Fk WwW DY based thereon alleges that said Defendants conspired with, and acted as the authorized agents for Defendants American Abalone Fams, Inc., Ocean Queen USA, Inc., and the other Does, in the conduct attributed to Defendants American Abalone Farms, Inc., Ho and Does. 74. Plaintiff is informed and believes that said Defendants, authorized Defendants Ho and Does to engage in the aforementioned conduct as stated in this complaint. 75. Plaintiff is informed and believes that said Defendants American Abalone Farms, Inc., Ocean Queen USA, Inc., and Does., ratified Defendants Ho and Does’ conduct as alleged in this complaint. 76. Plaintiff is informed and believes that Defendant Ho and Does used, applied, paid, delivered and expended the money received from Plaintiff Tom Ebert, and the value of Plaintiffs unpaid wages, for the use and benefit of each of the following business entities: American Abalone Farms, Inc., and Ocean Queen USA, Inc. 77. The fraudulent business practices of the said Defendants Ho, American Abalone Farms, Inc., and Ocean Queen USA, Inc., , and Does is alleged above. The unlawful and unfair business practices of said Defendants, as alleged above, also infringed upon and defeated the public interest purposes of state wage and hour laws, as set forth in the California Labor Code, the California Industrial Welfare Commission Wage Orders, and the California Code of Regulations, which promote compliance with all wage and hour laws and employment regulations by participants in Defendants’ industry. 78. In addition, Plaintiff is informed and believes and based thereon alleges that said Defendants have engaged in a business practice of defrauding other employees in the same or similar fashion as described in this complaint in regards to the fraud against this Plaintiff, and further engaged in a business practice of violating the labor laws of this state in regards to other persons who worked for them, and who, under applicable law, fall within the definition of being employees of Defendants. 13 FIRST AMENDED COMPLAINToO ON DO HO RF WOW DY = NH My NY NY NY NY NY NY NY |B Ss a as as aw 79. Said Defendants’ unfair and unlawful business practices thus imposed harm to Plaintiff and others. As a result of the unfair and unlawful business practices, said Defendants retained monies belonging to Plaintiff and were unjustly enriched at Plaintiff's expense. 80. Asadirect and proximate result of said Defendants’ conduct, Plaintiff has suffered injury and loss of money, Plaintiff has no adequate remedy at law, and irreparable harm would result if equitable relief is not provided. Plaintiff requires an injunction, restitution, and imposition of an equitable trust to obtain restitution of all funds wrongfully retained by said Defendants. 81. | The actions and omissions of said Defendants, as alleged in this amended complaint, constitute violations of California Business and Professions Codes Sections 17200 et seq., and 17500 et seq. The acts and omissions are unfair and unlawful business practices, which can be enjoined, and they are practices for which Defendants can be held liable in fines, damages, and costs. 82. This action will result in the enforcement of an important right affecting the public interest. Accordingly, Plaintiff is entitled to an award of reasonable attorneys’ fees according to proof. 83. Wherefore, Plaintiff prays judgment as set forth below. EIGHTH CAUSE OF ACTION Failure to Maintain Accurate Records (Labor Code Sections 1174, 1174.5,) (Against Defendants AAF, HO, XIE and Does) 84. All allegations of the complaint are incorporated by reference as though set forth in each of the foregoing allegations in this Complaint. 85. Under California Labor Section 1174, Defendants are required to maintain accurate records of the hours worked and the wages paid to Plaintiff. 86. Defendants failed to maintain accurate records of the hours worked and the wages paid to Plaintiff. Defendants did not employ policies, procedures, and practices to track Plaintiffs hours. 14 FIRST AMENDED COMPLAINT= oO ON DO oO Fk WwW DY yw NHN NOY NY NY NY NY NY NY |= BSB = a 87. Plaintiff was injured by Defendants’ failure to maintain accurate records, because, as alleged above, Plaintiff did not receive pay for all hours worked, and thus suffered monetary damages due to Defendants’ policies described above. 88. Plaintiff is not exempt from the requirements of the Employment Laws and Regulations. 89. | Based on Defendants’ conduct as alleged herein, Defendants are liable for damages and statutory penalties pursuant to California Labor Code Sections 1174, 1174.5, and other applicable provisions of the Employment Laws and Regulations in amounts to be established at trial, as well as attorneys’ fees and costs, pursuant to statute. Failure to'Purhish Wage Sid Hour Statements (Labor Code Sections 226(e), 226.3) (Against Defendants AAF, HO, XIE and Does) 90. All allegations of the complaint are incorporated by reference as though set forth in each of the foregoing allegations in this Complaint. 91. Under California Labor Section 226(a), 226(e)(1),226(e)(2), Defendants are required to provide timely and accurate wage and hour statements showing the inclusive dates of the pay period, gross wages earned, total hours worked, all deductions made, net wages earned, the name and address of the legal entity employing them, all applicable hourly rates in effect during each pay period, and the corresponding number of hours worked at each hourly rate. Plaintiff in fact never received accurate wage statements at all, as Defendants did not employ a timekeeping system that actually tracked all hours worked nor respond to Plaintiffs request for records. 92. Defendants knowingly failed to provide Plaintiff with timely wage and hour statements as required by law. 93. Plaintiff was injured by Defendants’ failure to provide wage statements, because, as alleged above, Plaintiff could not determine whether they were paid 15 FIRST AMENDED COMPLAINToO ON DO oO F&F WwW DY properly and/or did not receive pay for all hours worked, and thus suffered monetary damages due to Defendants’ policies described above. 94. Plaintiff is not exempt from the requirements of the Employment Laws and Regulations. 95. Based on Defendants’ conduct as alleged herein, Defendants are liable for damages and statutory penalties pursuant to California Labor Code Sections 226, and other applicable provisions of the Employment Laws and Regulations in amounts to be established at trial, as well as attorneys’ fees and costs, pursuant to statute. RELIEF REQUESTED WHEREFORE, Plaintiffs pray judgment against the Defendants, and each of them, jointly and severally as follows: |. For an award of general, consequential and special damages in amount in excess of $119,000.00; 2. For an award of prejudgment interest on all such damages at the legal rate from July 31, 2019 through the date of entry of judgment in this action; 3. For an award of Punitive damages against Defendants in an amount to be proven at trial; 4. For an award of all attorney's fees and costs of suit; and 5. For such other and further relief as the Court may deem proper. Respectfully submitted, Dated: February 23, 2022 reréton, Mohamed, Terrazas LLP By: Sasha Shahabi Attorney for Plaintiff Tom Ebert 16 FIRST AMENDED COMPLAINT