This case was last updated from Santa Clara County Superior Courts on 08/14/2019 at 07:57:08 (UTC).

Davis v. WeDriveU, Inc.

Case Summary

On 01/30/2018 Davis filed a Labor - Other Labor lawsuit against WeDriveU, Inc. This case was filed in Santa Clara County Superior Courts, Downtown Superior Court located in Santa Clara, California. The Judge overseeing this case is Walsh, Brian C. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ******2578

  • Filing Date:

    01/30/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Labor - Other Labor

  • Court:

    Santa Clara County Superior Courts

  • Courthouse:

    Downtown Superior Court

  • County, State:

    Santa Clara, California

Judge Details

Judge

Walsh, Brian C

 

Party Details

Plaintiffs

Davis, Thomas

Timmins, Sean

Defendant

WeDriveU, Inc.

Other

Superior Court of California

Attorney/Law Firm Details

Plaintiff Attorneys

Haines, Paul Keith

Korobkin, Tuvia

Nguyen, Elizabeth Chau

Lidman, Scott Michael

Defendant Attorney

Linehan, Jessica Lauren

Other Attorney

Superior Court of CA, County of Santa Clara

 

Court Documents

Amended Complaint Filed - No Fee

Third Amended Complaint: Comment: Amended Complaint

Declaration

Elizabeth Nguyen Declaration: Comment: Declaration of Elizabeth Nguyen

Declaration

Scott M. Lidman Declaration: Comment: Declaration of Scott M. Lidman

Declaration

Robin G. Workman Declaration: Comment: Declaration of Robin G. Workman

Declaration

Sean Timmins Declaration: Comment: Declaration of Sean Timmins

Declaration

Plaintiff Thomas Davis Declaration: Comment: Declaration of Thomas Davis

Memorandum: Points and Authorities

Memorandum Points and Authorities:

Motion: Preliminary Approval

Motion Preliminary Approval HRG 8-9-19: Comment: HRG 8/9/19

Complaint: Amended

Complaint Second Amended: Comment: Second Amended Representative Action Complaint

Proof of Service: Summons DLR (Civil)

Proof of Service Summons DLR (Civil):

Notice

Notice CMC reset from 5-25-18 to 6-8-18: Comment: CMC reset from 5/25/18 to 6/8/18

Order: Deeming Case Complex

Order Deeming Case Complex & Staying Discovery: Guidelines for Motions relating to Class Certification: Comment: and Staying Discovery and Responsive Pleading Deadline signed/BCW

Notice

Civil Lawsuit Notice: ADR CV-5003: Comment: Civil Lawsuit Notice (1st CMC set for 5/25/18 at 10am in D1; assigned to Hon. Brian C. Walsh)

Order: Deeming Case Complex

Order Deeming Case Complex & Staying Discovery: Guidelines for Motions relating to Class Certification: Comment: and Staying Discovery and Responsive Pleading Deadline signed/BCW

Notice

Civil Lawsuit Notice: ADR CV-5003: Comment: Civil Lawsuit Notice (1st CMC set for 5/25/18 at 10am in D1; assigned to Hon. Brian C. Walsh)

Complaint (Unlimited) (Fee Applies)

Complaint (Unlimited) (Fee Applies): Comment: Class Action Complaint

Summons: Issued/Filed

Summons Issued Filed:

Civil Case Cover Sheet

2018-01-30 Civil Case Cover Sheet.pdf: Comment: COMPLEX

33 More Documents Available

 

Docket Entries

  • 11/15/2019
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  • Motion: Final Fairness Hearing - Third Amended Complaint: Judicial Officer: Walsh, Brian C; Hearing Time: 9:00 AM

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  • 08/09/2019
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  • Motion: Preliminary Approval - Complaint Second Amended: Motion Preliminary Approval HRG 8-9-19: Memorandum Points and Authorities: Plaintiff Thomas Davis Declaration: Sean Timmins Declaration: Robin G. Workman Declaration: Scott M. Lidman Declaration: Elizabeth Nguyen Declaration: Milan Moore Declaration: Paul K. Haines Declaration: William Wickersham Declaration: Proof of Service: Notice Non-Opposition to Preliminary Approval of Class Action Settlement: Tentative Ruling HRG 8-9-19: Minutes Non-Criminal: Judicial Officer: Walsh, Brian C; Hearing Time: 9:00 AM; Result: Held; Comment: Motion by Plaintiff Thomas Davis for Preliminary Approval of Class Action Settlement

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  • 08/09/2019
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  • Amended Complaint Filed - No Fee - Third Amended Complaint: Comment: Amended Complaint

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  • 08/09/2019
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  • Order - Preliminary Approval Order HRG 8-9-19: Comment: Preliminary Approval Order HRG 8/9/19 - signed/BCW

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  • 08/09/2019
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  • Minute Order - Minutes Non-Criminal:

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  • 08/08/2019
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  • Order: Proposed - Proposed Order: Comment: Proposed Order

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  • 08/08/2019
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  • Declaration - Robin G. Workman Supplemental Declaration: Comment: Supplemental Declaration of Robin G. Workman

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  • 08/07/2019
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  • Notice - Tentative Ruling HRG 8-9-19: Comment: Tentative Ruling for Hearing on 8/9/19

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  • 07/25/2019
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  • Notice - Notice Non-Opposition to Preliminary Approval of Class Action Settlement: Comment: Notice of Non-Opposition to Motion for Preliminary Approval of Class Action Settlement

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  • 07/16/2019
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  • Proof of Service - Proof of Service: Comment: Proof of Service

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32 More Docket Entries
  • 04/19/2018
  • Clerk Rejection Letter - Comment: Answer- incorrect fees attached again.

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  • 04/18/2018
  • Clerk Rejection Letter - Comment: Answer- incorrect fees attached

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  • 04/16/2018
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  • Amended Complaint Filed - No Fee - 2018-04-16 WeDriveU - Davis FAC.pdf: Comment: First Amended; Atty Lidman

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  • 04/04/2018
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  • Proof of Service: Summons DLR (Civil) - Proof of Service Summons DLR (Civil):

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  • 03/09/2018
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  • Notice - Notice CMC reset from 5-25-18 to 6-8-18: Comment: CMC reset from 5/25/18 to 6/8/18

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  • 02/01/2018
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  • Order: Deeming Case Complex - Order Deeming Case Complex & Staying Discovery: Guidelines for Motions relating to Class Certification: Comment: and Staying Discovery and Responsive Pleading Deadline signed/BCW

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  • 01/31/2018
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  • Notice - Civil Lawsuit Notice: ADR CV-5003: Comment: Civil Lawsuit Notice (1st CMC set for 5/25/18 at 10am in D1; assigned to Hon. Brian C. Walsh)

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  • 01/30/2018
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  • Complaint (Unlimited) (Fee Applies) - Complaint (Unlimited) (Fee Applies): Comment: Class Action Complaint

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  • 01/30/2018
  • View Court Documents
  • Summons: Issued/Filed - Summons Issued Filed:

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  • 01/30/2018
  • View Court Documents
  • Civil Case Cover Sheet - 2018-01-30 Civil Case Cover Sheet.pdf: Comment: COMPLEX

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Complaint Information

E-FILED

1/30/2018 5:23 PM Clerk of Court

LIDMAN LAW, APC Superior Court of CA, Scott M. Lidman (SBN 199433) County of Santa Clara slidman@lidmanlaw.com 18CV 322578

Elizabeth Nguyen (SBN 238571) Reviewed By: R. Walke

en %uyen@ lidmanlaw.com

N. Sepulveda Blvd., Suite 1550 El Sequndo, California 00245 Tel: (424) 322-4772 Fax: (424) 322-4775

Attorneys for Plaintiff

HAINES LAW GROUP, APC Paul K. Haines (SBN 248226) phaines@ haineslawgroup.com Tuvia Korobkin (SBN 268066) tkorobkin@ haineslawgroup.com Stacey M. Shim (SBN 305911) sshim@ hameslaw

222 N. Se ulveda% Suite 1550 El Sequndo, California 90245 Tel: (424) 292-2350

Fax: (424) 292-2355

Attorneys for Plaintiff

SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA

THOMAS DAVIS, as an individual and on case No.. J@CV 322578

behalf of all others similarly situated, CLASSACTION COMPLAINT:

(1) FAILURE TO PAY ALL OVERTIME WAGES OWED

VS. (LABOR CODE §§ 204, 510, 538,

1194, 1198) WEDRIVEU, INC., a California corporation; and DOES 1 through 100, (2) FAILURETO PAY ALL MINIMUM

WAGES OWED (LABOR CODE §§

Defendants. 1194, 1194.2, 1197);

(3) FAILURE TO PAY ALL WAGESAT THE AGREED-UPON RATE

(LABOR CODE §§ 221-223);

(4) FAILURE TO PROVIDE MEAL

PERIODS (LABOR CODE §§ 226.7,

(5) FAILURE TO AUTHORIZE AND PERMIT ALL REST PERIODS

(LABOR CODE §§ 226.7, 516);

Plaintiff,

(6) FAILURE TO PAY ALL WAGES OWED UPON TERMINATION (LABOR CODE §§ 201-203) (7) FAILURE TO PROVIDE

ACCURATE, ITEMIZED WAGE

STATEMENTS (LABOR CODE

§ 226 ET SEQ.; and

(8) UNFAIR COMPETITION (BUS &

PROF CODE § 17200 et seq.)

DEMAND FOR JURY TRIAL UNLIMITED CIVIL CASE

JURISDICTION

1. Plaintiff, on behalf of himself and all others similarly situated, hereby brings this Complaint for recovery of unpaid wages and penalties under California Business & Professions Code § 17200 et. seq., Labor Code §§ 201-203, 218 et seq., 221-223, 226 et seq., 226.7, 510, 516, 1192, 1194, 1194.2, 1197, 1197.1, 1198, and Industrial Welfare Commission Wage Order 4 (“Wage Order 4”), in addition to seeking declaratory relief and restitution. This Complaint is brought pursuant to California Code of Civil Procedure § 382. This Court has jurisdiction over Defendants’ violations of the California Labor Code because the amount in controversy exceeds this Court's jurisdictional minimum.

VENUE

2. Venue is proper in this judicial district pursuant to Cal. Code of Civ. Proc. §§ 395(a) and 395.5, as at least some of the acts and omissions complained of herein occurred in the County of Santa Clara. Defendants own, maintain offices, transact business, have agent(s) within the County of Santa Clara, and/or otherwise are found within the County of Santa Clara, and Defendants are within the jurisdiction of this Court for purposes of service of process.

PARTIES

3. Plaintiff is an individual over the age of eighteen (18). At all relevant times herein, Plaintiff was and currently is, a California resident. During the four years immediately preceding the filing of the Complaint in this action and within the statute of limitations periods applicable to each cause of action pled herein, Plaintiff was employed by Defendants as a non-exempt employee. Plaintiff was, and is, a victim of Defendants’ policies and/or practices complained of herein, lost money and/or property, and has been deprived of the rights guaranteed by Labor Code §§ 201-203, 218 et seq., 221-223, 226 et seq., 226.7, 510, 516, 558, 1192, 1194, 1194.2, 1197, 1197.1, and 1198; California Business & Professions Code § 17200 et seq. (“Unfair Competition Law”); and Wage Order 4, which sets employment standards for the professional, technical, clerical, mechanical and similar occupations industry, which includes the industry in which Plaintiff worked for Defendants.

4, Plaintiff is informed and believes, and based thereon alleges, that during the four years preceding the filing of the Complaint and continuing to the present, Defendants did (and continue to do) business by being the self-described leader in transportation, specializing in corporate shuttles, university shuttles and managed transportation solutions across the United States. Defendants link customers’ offices to public transit, provide intercampus shuttles between buildings and parking lots, provide bus services from customers’ employees residences to offices, offer transportation for meetings and events, and provide on-demand services. Defendants also provide transportation services to and from, and at, university campuses, and also on-demand transportation services for students and employees at universities.

d. Defendants employed Plaintiff and other, similarly-situated non-exempt employees within, among other counties, Santa Clara County and the state of California and, therefore, were (and are) doing business in Santa Clara County and the State of California.

0. Plaintiff does not know the true names or capacities, whether individual, partner, or corporate, of the defendants sued herein as DOES 1 to 100, inclusive, and for that reason, said defendants are sued under such fictitious names, and Plaintiff will seek leave from this Court to amend this Complaint when such true names and capacities are discovered. Plaintiff is informed, and believes, and based thereon alleges, that each of said fictitious defendants, whetherindividual, partners, or corporate, were responsible in some manner for the acts and omissions alleged herein, and proximately caused Plaintiff and the Classes (as defined in Paragraph 22) to be subject to the unlawful employment practices, wrongs, injuries and damages complained of herein.

7. Plaintiff is informed, and believes, and thereon alleges, that at all times mentioned herein, Defendants were and are the employers of Plaintiff and all members of the Classes.

8. At all times herein mentioned, each of said Defendants participated in the doing of the acts hereinafter alleged to have been done by the named Defendants; and furthermore, the Defendants, and each of them, were the agents, servants, and employees of each and every one of the other Defendants, as well as the agents of all Defendants, and at all times herein mentioned were acting within the course and scope of said agency and employment. Defendants, and each of them, approved of, condoned, and/or otherwise ratified each and every one of the acts or omissions complained of herein.

9. At all times mentioned herein, Defendants, and each of them, were members of and engaged in a joint venture, partnership, and common enterprise, and acting within the course and scope of and in pursuance of said joint venture, partnership, and common enterprise. Further, Plaintiff alleges that all Defendants were joint employers for all purposes of Plaintiff and all members of the Classes.

GENERAL FACTUAL ALLEGATIONS

10. Plaintiff was employed by Defendants as a non-exempt employee from approximately September 18, 2017 through approximately October 13, 2017. Plaintiff performed services as a driver for Defendants’ customer, Nvidia.

11. Pursuant to a written Employment A greement entered into effective September 18, 2017, Plaintiff was to be paid $24.00 per hour for all hours worked, including for training time, and would further be paid a “Split Shift Rate” of $2.40 per hour when Plaintiff’s work schedule included a “break time” of 2 or more unpaid hours. As such, Plaintiff was either earning $24.00 per hour, or $26.40 per hour in a given workday and/or workweek. Plaintiff’s Employment A greement further provided that Plaintiff would be paid overtime “consistent with Company policy and applicable state law.” The Employment A greement also stated that Plaintiff was required to submit his timesheet within 24 hours following his work assignment, and that any timesheets turned in after the imposed deadline may not be able to be processed for that pay period.

12. During his employment with Defendants, Plaintiff worked weeks during which he was paid both $24.00 for certain time, and also $26.40 for certain time if he was working a split shift. However, Plaintiff worked in excess of 8.0 hours per day and 40.0 hours per week. During said times, Plaintiff was often paid one and one-half times his $24.00 per hour for overtime ($36.00 per hour). Defendants were required, however, to calculate and include within Plaintiff’s regular rate for purposes of calculating his overtime compensation, all of the hourly rates and compensation he earned such that his overtime rate should have been in excess of $36.00 per hour. Accordingly, Defendants failed to properly calculate Plaintiff’s reqular rate of pay resulting in the underpayment of overtime wages due to him.

13. During his employment with Defendants and except for his initial 3-day training period, Defendants scheduled Plaintiff to work Monday through Friday, and issued a written schedule indicating that Plaintiff would work a split shift Monday through Friday, starting at 5:45 a.m. until 10:05 a.m., and then again from 3:50 p.m. until 8:20 p.m. However, Plaintiff’s actual time worked differed from the written schedule. Specifically, Plaintiff was required to show up and start working approximately 15 minutes or more before the start of his scheduled shift to perform various duties before he commenced his driving duties. He would also be required to perform various duties after the end of his driving shift. The duties he would perform before and/or after his scheduled shift including, but are not limited to, performing pre and post- inspections on the shuttle/bus he drove, participating in meetings, and completing paperwork. Despite this work, Plaintiff was instructed to report on his timecards only the time he was actually driving. For example, Plaintiff was scheduled to commence his shift, per the written “Nvidia Driver Schedule,” at 5:45 a.m. However, on several days (for example, October 2, 3, 4 and 6, 2017), per Defendants’ instructions, Plaintiff put on his timecards that he started work at 6:00 a.m. despite him starting work at his scheduled time, or earlier. This resulted in the underpayment of wages to Plaintiff insofar as D efendants were not paying Plaintiff for all time he was actually under Defendants’ direction and control, and working. This resulted in Plaintiff being underpaid for both minimum wages as well as wages at his agreed-upon rate. Additionally, Plaintiff regularly worked more than 8.0 hours in a day, and more than 40.0 hours in a week. As such, due to Plaintiff not being paid for all hours worked, he was also underpaid overtime wages by Defendants.

14. Throughout Plaintiff’s employment with Defendants, Defendants would require Plaintiff to keep track of his own time worked on a written timesheet, and instructed Plaintiff to round his start and end times to quarter hour increments. However, Defendants knew or should have known that Plaintiff was not starting and ending his work shifts exactly on quarter hour increments, yet Defendants paid Plaintiff based on the rounded times he was instructed to record. This resulted in Defendants unlawfully shaving Plaintiff’s work time such that Plaintiff would not be fully paid for all time worked. This time shaving/rounding practice utilized by D efendants was not-even handed over time and would almost exclusively round and shave in Defendants’ favor such that Plaintiff was routinely underpaid for his time worked. Further, during Plaintiff’s employment with Defendants, he often worked in excess of 8 hours per workday and/or 40 hours per work week. Thus, had Plaintiff been properly allotted all of the time he actually worked, including the time unlawfully shaved/rounded, he would have often worked additional overtime which was not paid, or underpaid. This practice by Defendants resulted in Defendants not properly tracking the time worked by Plaintiff, and also resulted in Defendants paying Plaintiff less than he was owed for the work he performed, including failing to pay him all required minimum wages, agreed-upon wages and overtime wages.

15. Separate and apart from Defendants not paying Plaintiff for all time he actually worked, Defendants also failed to pay Plaintiff for the hours actually appearing on his timecards. For example, Plaintiff’s time cards show he worked 28 hours between September 17, 2017 and September 22, 2017, 50.5 hours between September 25, 2017 and September 29, 2017, and 55.5 hours between October 2, 2017 and October 6, 2017. This is a total of 134 hours of work time for these time periods combined. However, when Plaintiff was paid for these time periods, he was only paid for 127.25 hours; thus, Defendants underpaid Plaintiff for his actual hours reported. This resulted in the underpayment of minimum wages, agreed-upon wages and overtime wages.

16. Throughout Plaintiff’s employment with Defendants, Plaintiff was not provided all required meal periods due to Defendants’ meal period policies/practices which fail to provide uninterrupted, duty-free 30-minute meal periods. Specifically, Plaintiff was scheduled to work a split shift, with one shift in the moming and another shift in the late afternoon/evening. On occasions, the first shift Plaintiff worked exceed five hours in length, yet Plaintiff was not provided the opportunity to take a duty-free 30-minute meal period before working more than 5 hours. For example, on September 29, 2017, Plaintiff’s timecard reflects that he worked a shift that commenced at 5:30 a.m. and lasted until 10:30 a.m. Thus, Plaintiff worked 6 straight hours without the opportunity to take a meal period. Furthermore, all of the days Plaintiff worked, when combining the two shifts he worked in a day, he worked in excess of 5 hours. However, on many of those days, Plaintiff was not provided with a bona fide meal period. Instead, Plaintiff had a significant break in time between his shifts which Defendants counted as non-working time. During these breaks, Plaintiff was unable to effectively leave the work premises, and was also prohibited from entering the customer’s facility, and he had to ensure he was available to start the second part of his shift. Thus, Plaintiff was essentially required to spend a significant portion of the time between shifts in the company shuttle/bus. Thus, he was effectively under the direction and control of Defendants during such time and was unable to use it solely for his own purposes. Such time was not a bona fide meal break, and also was uncompensated by Defendants, both in violation of California law.

17. Defendants also had a policy/practice of not providing second uninterrupted, duty- free 30-minute meal periods to Plaintiff and other non-exempt employees who worked more than 10.0 hours per workday. Plaintiff reqularly worked shifts in excess of 10.0 hours but was not provided the opportunity to take a second off-duty meal period of at least 30 minutes in length.

18. Although Plaintiff was not provided with all legally-compliant meal periods to which he was entitled, Defendants failed to compensate Plaintiff with the required meal period premium for each workday in which he experienced a meal period violation as mandated by Labor Code § 226.7. Upon information and belief during at least a portion of the class period, Defendants maintained no payroll code or other mechanism for the payment of meal period premium payments under Labor Code § 226.7 in the event that a legally compliant meal period was not provided to Plaintiff and their other non-exempt employees.

19. Plaintiff was also not authorized and permitted to take all required rest periods due to Defendants’ rest period policies/practices. Defendants’ rest period policies/practices fail to authorize and permit all rest periods for every four hours worked, or major fraction thereof. Specifically, Plaintiff was required to complete his shuttle services as partstrict schedule to which he was required to adhere. His schedule and duties often prevented him from being able to take an uninterrupted rest period of at least 10 minutes. And, due to the nature of the job, Plaintiff essentially had to remain on the shuttle/bus and could not effectively use any alleged break time for his own purpose. Plaintiff did not have sufficient time to leave the shuttle/bus for a rest period, and there was no place for Plaintiff to rest since he was not permitted inside the customers’ facility. Accordingly, Plaintiff was not authorized and permitted to take uninterrupted, non-working rest breaks. On those occasions when Plaintiff was not authorized and permitted to take all legally-compliant rest periods to which he was entitled, Defendants failed to compensate Plaintiff with the required rest period premium for each workday in which he experienced a rest period violation as mandated by Labor Code § 226.7. Further, upon information and belief during at least a portion of the class period, Defendants maintained no payroll code or other mechanism for the payment of rest period premium payments under Labor Code § 226.7 in the event that a legally compliant rest period was not provided to their non- exempt employees.

20. At the time Plaintiff’s employment with Defendants was terminated in October 2017, Defendants owed Plaintiff unpaid minimum, regular and overtime wages, and meal and rest period premiums, yet failed at the time of his termination and through the present to timely pay Plaintiff for all wages to which he was legally entitled, in violation of Labor Code § 203.

21. Asaresult of Defendants’ failure to pay all overtime, minimum and agreed-upon wages owed, and failure to pay all rest period premium wages, Defendants failed to provide Plaintiff with accurate, itemized wage statements.

22. Additionally, Plaintiff’s wage statements were facially incorrect. For example, Plaintiff received a paycheck and wage statement dated October 13, 2017, which indicated that it was payment for work performed for the period September 24, 2017 through October 7, 2017. However, Plaintiff performed work and submitted a timesheet for his first week of work, September 17, 2017 through September 23, 2017. Plaintiff never received an independent, separate paycheck for this week of work. Instead, Plaintiff is informed and believes and based thereon alleges, that Defendants included pay for that week in the paycheck dated October 13, 2017. Thus, the paycheck Plaintiff received on October 13, 2017 was facially inaccurate in thatperiod indicated on the wage statement, but indeed was payment for

three weeks of Plaintiff’s work time. As such, Plaintiff’s wage statement was inaccurate and

failed to comply with Labor Code section 226(a)(6) which requires that a wage statement

accurately identify the inclusive dates of the pay period for which the employee is being paid.

CLASSACTION ALLEGATIONS

23. Class Definitions: Plaintiff brings this action on behalf of himself and the

following Classes pursuant to § 382 of the Code of Civil Procedure:

a. The Overtime Class consists of all of Defendants’ current and former non-exempt employees holding the position of driver, operator and similar positions in California who: worked in excess of 8 hours in a work day and/or in excess of 40 hours in a work week, and were subject to Defendants’ timekeeping policies/practices, during the four years preceding the filing of the Complaint through the present.

o} The Minimum Wage Class consists of all of Defendants’ current and former non- exempt employees holding the position of driver, operator and similar positions in California who were subject to Defendants’ timekeeping policies/practices, during the four years preceding the filing of the Complaint through the present.

C. The Agreed-Upon Rate Class consists of all of Defendants’ current and former non-exempt employees holding the position of driver, operator and similar positions in California who were subject to Defendants’ timekeeping policies/practices, during the four years preceding the filing of the Complaint through the present.

d. The Meal Period Class consists of all of Defendants’ current and former non- exempt employees holding the position of driver, operator and similar positions in California who: worked at least one shift in excess of 5.0 hours during the four years immediately preceding the filing of the Complaint through the present.

e. The Rest Period Class consists of all of Defendants’ current and former non- exempt employees holding the position of driver, operator and similar positions in California who: worked at least one shift of 3.5 hours or more during the four years immediately preceding the filing of the Complaint through the present. f. The Waiting Time Penalty Class consists of all members of the: (i) Overtime Class; (i1) Minimum Wage Class; (iii) A greed-Upon Rate Class; (iv) Meal Period Class; and/or (v) Rest Period Class who separated their employment with Defendants during the three years immediately preceding the filing of the Complaint through the present.

g. The Wage Statement Class consists of: (i) members of the Overtime Class; (ii) members of the Minimum Wage Class; (iii) members of the A greed-Upon Rate Class; (iv) members of the Meal Period Class; (v) members of the Rest Period Class, and/or (iv) any employees who received a wage statement that incorrectly identified the pay period for which the employee was being paid, during the one year immediately preceding the filing of the Complaint through the present.

h. The UCL Class consists of members of the: (1) Overtime Class; (i1)) Minimum

Wage Class; (iii) A greed-Upon Rate Class; (iv) Meal Period Class; (v) Rest Period Class; (vi) Waiting Time Penalty Class; and/or (vii) Wage Statement Class, during the four years immediately preceding the filing of the Complaint through the present

24, Plaintiff reserves the right under Rule 3.765(b) of the California Rules of Court, to amend or modify the description of the various classes with greater specificity or further division into subclasses or limitation to particular issues.

25. Numerosity/A scertainability: The members of the Classes are so numerous that joinder of all members would be unfeasible and not practicable. The membership of the Classes is unknown to Plaintiff at this time; however, it is estimated that the members of the Classes number greater than one hundred (100) individuals. The identity of such membership is readily ascertainable via inspection of Defendants’ employment records.

26. Common Questions of Law and Fact Predominate/W ell Defined C ommunity of Interest: There are common questions of law and fact as to Plaintiff and all other similarly situated employees, which predominate over questions affecting only individual members. Those

common questions include, without limitation:

1.

11,

111,

1V.

V.

Vil.

27.

Whether Defendants properly paid all minimum wages, agreed-upon wages and/or overtime wages at the regular rate to members of the Minimum Wage Class, A greed-Upon Wage Class and Overtime Class pursuant to Labor Code §§ 204, 221, 510, 558, 1192, 1194, 1194.2, 1197, 1197.1 and 1198;

Whether Defendants provided all legally compliant meal periods to members of the Meal Period Class pursuant to Labor Code §§ 226.7 and 512

Whether Defendants authorized and permitted all legally compliant rest periods to members of the Rest Period Class pursuant to Labor Code §§ 226.7 and 516; Whether Defendants paid all wages owed to its terminated/separated employees at the time of said termination/separation pursuant to Labor Code §§ 201-203; Whether Defendants provided accurate, itemized wage statements to members of the Classes;

Whether Defendants properly reimbursed employees for business expenses necessarily incurred in the discharge of their duties; and

Whether Defendants engaged in unlawful, unfair, illegal, and/or deceptive business practices by and through the wage and hour policies and practices described above, and whether as a result Defendants owe the classes restitution.

Predominance of Common Questions: Common questions of law and fact

predominate over questions that affect only individual members of the Classes. The common

questions of law set forth above are numerous and substantial and stem from D efendants’ policies

and/or practices applicable to each individual class member, such as Defendants’ uniform

minimum wage, agreed-upon wage, overtime wage payment, and meal and rest period

policies/practices. As such, the common questions predominate over individual questions

concerning each individual class member’s showing as to their eligibility for recovery oras to the

amount of their damages.

28.

Typicality: The claims of Plaintiff are typical of the claims of the Classes because Plaintiff was employed by Defendants as a non-exempt employee in California during the statute(s) of limitations period applicable to each cause of action pled in the Complaint. A s alleged herein, Plaintiff, like the members of the Classes, was not provided all legally required minimum wages, agreed-upon wages, and overtime wages, was not provided all required meal periods, was not authorized and permitted to take all required rest periods, did not receive period premium wages when he was not provided compliant meal and rest periods, was not provided with all wages upon termination, and was not provided with accurate, itemized wage statements.

29. Adequacy of Representation: Plaintiff is fully prepared to take all necessary steps to represent fairly and adequately the interests of the members of the Classes. Moreover, Plaintiff’s attorneys are ready, willing and able to fully and adequately represent the members of the Classes and Plaintiff. Plaintiff’s attorneys have prosecuted and defended numerous wage- and-hour class actions in state and federal courts in the past and are committed to vigorously prosecuting this action on behalf of the members of the Classes.

30. Superiority: The California Labor Code is broadly remedial in nature and serves an important public interest in establishing minimum working conditions and standards in California. These laws and labor standards protect the average working employee from exploitation by employers who have the responsibility to follow the laws and who may seek to take advantage of superior economic and bargaining power in setting onerous terms and conditions of employment. The nature of this action and the format of laws available to Plaintiff and members of the Classes make the class action format a particularly efficient and appropriate procedure to redress the violations alleged herein. If each employee were required to file an individual lawsuit, Defendants would necessarily gain an unconscionable advantage since they would be able to exploit and overwhelm the limited resources of each individual plaintiff with their vastly superior financial and legal resources. Moreover, requiring each member of the Classes to pursue an individual remedy would also discourage the assertion of lawful claims by employees who would be disinclined to file an action against their former and/or current employer for real and justifiable fear of retaliation and permanent damages to their careers at subsequent employment. Further, the prosecution of separate actions by the individual class members, even if possible, would create a substantial risk of inconsistent or varying verdicts or adjudications with respect to the individual class members against Defendants herein; and which would establish potentially incompatible standards of conduct for Defendants; and/or legal determinations with respect to individual class members which would, as a practical matter, be dispositive of the interest of the other class members not parties to adjudications or which would substantially impair or impede the ability of the class members to protect their interests. Further, the claims of the individual members of the Classes are not sufficiently large to warrant vigorous individual prosecution considering all of the concomitant costs and expenses attending thereto. As such, the Classes identified in Paragraph 22 are maintainable as a Class under § 382 of the Code of Civil Procedure.

FIRST CAUSE OF ACTION FAILURETO PAY ALL OVERTIME WAGES (AGAINST ALL DEFENDANTS)

31. Plaintiff re-alleges and incorporates by reference all previous paragraphs.

32. This cause of action is brought pursuant to Labor Code §§ 204, 510, 558, 1194 and 1198 which provide that all non-exempt employees are entitled to all overtime wages for all overtime worked (hours in excessand/or 40 in one week), and provide a private right of action for the failure to pay all overtime compensation for overtime work performed.

33. At all times relevant herein, Defendants were required to properly compensate Plaintiff and the members of the Overtime Class for all overtime hours worked pursuant to California Labor Code §§ 510 and 1194, and Wage Order 4. Labor Code § 510 and Wage Order 4, Section 3 require an employer to pay an employee “one and one-half (1%%) times the regular rate of pay” forwork in excess of 8 hours per workday and/orin excess of 40 hours per workweek. Labor Code § 510 and Wage Order 4, Section 3 also require an employer to pay an employee double the employee’s regular rate for work in excess of 12 hours each workday and/or in excess of 8 hours on the seventh consecutive day of work in the workweek. Defendants caused Plaintiff and the members of the Overtime Class to work in excess of 8 hours in a workday and/or 40 hours in a workweek but did not properly compensate Plaintiff and the members of the Overtime Class at one and one-half their regular rate of pay for such hours. Defendants also caused Plaintiff and the members of the Overtime Class to work in excess of 12 hours in a workday but did not properly compensate Plaintiff and the members of the Overtime Class at double their regular rate of pay for such hours.

34. The foregoing practices and policies are unlawful and create entitlement to recovery by Plaintiff and the members of the Overtime Class in a civil action for the unpaid amount of overtime premium owing, including interest thereon, as well as statutory penalties, civil penalties, and attorneys’ fees and costs of suit, pursuant to Labor Code §§ 204, 218.5, 218.6, 510, 558, 1194 and 1198, Wage Order 4, California Code of Civil Procedure § 1021.5 California Code of Civil Procedure § 1021.5, and Civil Code §§ 3287(b) and 3289.

SECOND CAUSE OF ACTION FAILURE TO PAY ALL MINIMUM WAGES OWED (AGAINST ALL DEFENDANTS)

35. Plaintiff re-alleges and incorporates by reference all previous paragraphs.

36. This cause of action is brought pursuant to Labor Code §§ 204, 558, 1194 and 1198 which provide that all non-exempt employees are entitled to all minimum wages for all hours worked, and provide a private right of action for the failure to pay all minimum wage compensation for all work performed.

37. At all times relevant herein, Defendants were required to properly compensate Plaintiff and the members of the Minimum Wage Class for all hours worked pursuant to California Labor Code §§ 1194, 1197 and1198, and Wage Order 4. Wage Order 4, Section 4 requires an employer to pay to every employee on the established payday for the period involved not less than the applicable minimum wage for all hours worked in the payroll period. Defendants caused Plaintiff and the members of the Minimum W age Class to work hours in a workweek but did not properly compensate Plaintiff and the members of the Minimum Wage Class at least minimum wages for such hours.

38. At all times relevant herein, Defendants lacked good faith and had no reasonable grounds for believing that their practices in failing to pay all minimum wages owed at the applicable rate was not a violation of any provision of the Labor Code relating to minimum wage, or an order of the Industrial Welfare Commission. Defendants therefore, in addition to owing minimum wages to Plaintiff and the members of the Minimum Wage Class, also owe liquidated damages in an amount equal to the wages unlawfully unpaid, and interest thereon, pursuant to Labor Code § 1194.2.

39. The foregoing practices and policies are unlawful and create entitlement to recovery by Plaintiff and the members of the Minimum Wage Class in a civil action for the unpaid amount of minimum wages owing, including interest thereon, as well as statutory penalties, liquidated damages, civil penalties, and attorneys’ fees and costs of suit, pursuant to Labor Code §§ 204, 218.5, 218.6, 558, 1194, 1194.2, 1197, 1197.1 and 1198, Wage Order 4, California Code of Civil Procedure § 1021.5 California Code of Civil Procedure § 1021.5, and Civil Code §§ 3287(b) and 3289.

THIRD CAUSE OF ACTION FAILURE TO PAY ALL AGREED-UPON WAGES (AGAINST ALL DEFENDANTS)

40. Plaintiff re-alleges and incorporates by reference all previous paragraphs.

41. This cause of action is brought pursuant to Labor Code §§ 204 and 221-223 which provide that all non-exempt employees are entitled to be paid all wages owed at the rate agreed upon with their employer, and provide a private right of action for the failure to pay all wages owed at the agreed-upon rate for all work performed.

42. At all times relevant herein, Defendants were required to properly compensate Plaintiff and the members of the A greed-Upon Rate Class for all hours worked at the rate agreed to with Defendants, pursuant to California Labor Code §§ 221-223. At all relevant times herein, Defendants required Plaintiff and the members of the A greed-Upon Rate Class to remain under Defendants’ control and perform work without paying them therefor, which resulted in Plaintiff and the members of the A greed-Upon Rate Class to earn less than the agreed rate for their work. This pattern and practice by Defendants of failing to pay the agreed-upon rate for all work

performed violates the Labor Code and constitutes unjust enrichment, 43. The foregoing practices and policies are unlawful and create entitlement to recovery by Plaintiff and the members of the A greed-Upon Rate Class in a civil action for the unpaid amount of agreed-upon wages owing, including interest thereon, as well as statutory penalties, civil penalties, and attorneys’ fees and costs of suit, pursuant to Labor Code §§ 204, 218.5, 218.6, 221, and 558 California Code of Civil Procedure § 1021.5 California Code of Civil Procedure § 1021.5, and Civil Code §§ 3287(b) and 3289.

FOURTH CAUSE OF ACTION FAILURE TO PROVIDE ALL MEAL PERIODS (AGAINST ALL DEFENDANTS)

44, Plaintiff re-alleges and incorporates by reference all previous paragraphs.

45, Plaintiff is informed and believes, and based thereon alleges, that Defendants failed in their affirmative obligation to provide all of their non-exempt employees in California, including Plaintiff and members of the Meal Period Class, with all legally compliant meal periods in accordance with the mandates of the California Labor Code and Wage Order 4, § 11. Despite Defendants’ violations, Defendants did not pay an additional hour of pay to Plaintiff and members of the Meal Period Class at their respective regular rates of compensation, in accordance with California Labor Code §§ 226.7, and 512.

46. Asaresult, Defendants are responsible for paying premium compensation for meal period violations including interest thereon, as well as statutory penalties, civil penalties, and costs of suit, pursuant to Labor Code §8§ 226.7, 512, and 558, Wage Order 4, California Code of Civil Procedure § 1021.5 and Civil Code §§ 3287(b) and 3289.

FIFTH CAUSE OF ACTION FAILURE TO AUTHORIZE AND PERMIT ALL REST PERIODS (AGAINST ALL DEFENDANTS)

47. Plaintiff re-alleges and incorporates by reference all previous paragraphs.

48. Wage Order 4, § 12 and California Labor Code §§ 226.7 and 516 establish the right of employees to be authorized and permitted to take a paid rest period of at least ten (10)

minutes net rest time for each four (4) hour period worked, or major fraction thereof. 49. Asalleged herein, Defendants failed to authorize and permit Plaintiff and members of the Rest Period Class to take all required rest periods.

50. The foregoing violations create an entitlement to recovery by Plaintiff and members of the Rest Period Class in a civil action for the unpaid amount of rest period premiums owing, including interest thereon, as well as statutory penalties, civil penalties, and costs of suit according to California Labor Code §§ 226.7, 516, 558, Wage Order 4, California Code of Civil Procedure § 1021.5, and Civil Code §§ 3287(b) and 3289.

SIXTH CAUSE OF ACTION FAILURE TO PAY ALL WAGES OWED UPON TERMINATION (AGAINST ALL DEFENDANTS)

51. Plaintiff re-alleges and incorporates by reference all previous paragraphs.

52. This cause of action is brought pursuant to Labor Code §§ 201-203 which require an employer to pay all wages immediately at the time of termination of employment in the event the employer discharges the employee or the employee provides at least 72 hours of notice of his/her intent to quit. In the event the employee provides less than 72 hours of notice of his/her intent to quit, said employee’s wages become due and payable not later than 72 hours upon said employee’s last date of employment.

53. Defendants failed to timely pay Plaintiff all of his final wages at the time of termination, which include, among other things, underpaid minimum, regular and overtime wages and meal and rest period premium wages. Further, Plaintiff is informed and believes, and based thereon alleges, that as a matter of uniform policy and practice, Defendants continue to fail to pay members of the Waiting Time Penalty Class all earned wages at the end of employment in a timely manner pursuant to the requirements of Labor Code §§ 201-203. Defendants’ failure to pay all final wages was willful within the meaning of Labor Code § 203.

54. Defendants’ willful failure to timely pay Plaintiff and the members of the Waiting Time Penalty Class their earned wages upon separation from employment results in a continued payment of wages up to thirty (30) days from the time the wages were due. Therefore, Plaintiff

and members of the Waiting Time Penalty Class are entitled to compensation pursuant to Labor Code § 203, plus reasonable attorneys’ fees and costs of suit.

SEVENTH CAUSE OF ACTION

FAILURE TO PROVIDE ACCURATE, ITEMIZED WAGE STATEMENTS

(AGAINST ALL DEFENDANTS)

55. Plaintiff re-alleges and incorporates by reference all previous paragraphs.

56. Plaintiff is informed and believes, and based thereon alleges, that Defendants knowingly and intentionally, as a matter of uniform practice and policy, failed to furnish Plaintiff and the Wage Statement Class Members with accurate, itemized wage statements that included among other requirements, accurate total gross wages earned, rest period premiums, and total net wages eamed in violation of Labor Code § 226 et seq.

57. Defendants’ failure to furnish Plaintiff and the members of the Wage Statement Class with complete and accurate, itemized wage statements resulted in actual injury, as said failures led to, among other things, the non-payment of all of minimum, regular and overtime wages earmned and non-payment of their rest period premiums, and deprived them of the information necessary to identify discrepancies in Defendants’ reported data.

58. Defendants’ failures created an entitlement to Plaintiff and members of the Wage Statement Class in a civil action for damages and/or penalties pursuant to Labor Code § 226, including statutory penalties civil penalties, reasonable attorneys’ fees, and costs according to suit pursuant to Labor Code § 226 et seq.

EIGHTH CAUSE OF ACTION UNFAIR COMPETITION (AGAINST ALL DEFENDANTS)

59. Plaintiff re-alleges and incorporates by reference all previous paragraphs.

60. Defendants have engaged and continue to engage in unfair and/or unlawful business practices in California in violation of California Business and Professions Code § 17200 et seq., by failing to pay all overtime, minimum and/or agreed-upon wages owed, failing to authorize and permit all required rest periods, failing to pay rest period premium wage payments,

and failing to pay all wages upon termination of employment. 6l1. Defendants’ utilization of these unfair and/or unlawful business practices deprived Plaintiff and continues to deprive members of the Classes of compensation to which they are legally entitled, constitutes unfair and/or unlawful competition, and provides an unfair advantage over Defendants’ competitors who have been and/or are currently employing workers and attempting to do so in honest compliance with applicable wage and hour laws.

62. Because Plaintiff is a victim of Defendants’ unfair and/or unlawful conduct alleged herein, Plaintiff for himself and on behalf of the members of the Classes, seeks full restitution of monies, as necessary and according to proof, to restore any and all monies withheld, acquired and/or converted by Defendants pursuant to Business and Professions Code §§ 17203 and 17208.

63. The acts complained of herein occurred within the last four years immediately preceding the filing of the Complaint in this action.

64. Plaintiff was compelled to retain the services of counsel to file this court action to protect his interests and those of the Classes, to obtain restitution and injunctive relief on behalf of Defendants’ current non-exempt employees, and to enforce important rights affecting the public interest. Plaintiff has thereby incurred the financial burden of attorneys’ fees and costs, which he is entitled to recover under Code of Civil Procedure § 1021.5.

PRAYER

WHEREFORE, Plaintiff prays for judgment for himself and for all others on whose behalf

this suit is brought against D efendants, as follows:

1. For an order certifying the proposed Classes;

2. For an order appointing Plaintiff as representative of the Classes; 3. For an order appointing Counsel for Plaintiff as Counsel for the Classes; 4, Upon the First Cause of Action, for compensatory, consequential, general and

special damages according to proof pursuant to Labor Code §§ 204, 510, 558, 1194 and 1198. 5. Upon the Second Cause of Action, for compensatory, consequential, general and special damages according to proof pursuant to Labor Code §§ 204, 558, 1194, 1197, 1197.1 and 1198; 0. Upon the Third Cause of Action, for compensatory, consequential, general and special damages according to proof pursuant to Labor Code §§ 204, and 221-223;

7. Upon the Fourth Cause of Action, for compensatory, consequential, general and special damages according to proof pursuant to Labor Code §§ 226.7, 516, and 558;

8. Upon the Fifth Cause of Action, for compensatory, consequential, general and special damages according to proof pursuant to Labor Code §§ 226.7, 516, and 558;

9. Upon the Sixth Cause of Action, for waiting time penalties pursuant to Labor § 203;

10. Upon the Seventh Cause of Action, for penalties pursuant to Labor § 226;

11. Upon the Eighth Cause of Action, for restitution to Plaintiff and members of the Classes of all money and/or property unlawfully acquired by Defendants by means of any acts or practices declared by this Court to be in violation of Business and Professions Code § 17200 et seq.;

12. Prejudgment interest on all due and unpaid wages pursuant to California Labor Code § 218.6 and Civil Code §§ 3287 and 3289;

13. Onall causes of action, for attorneys’ fees and costs as provided by Labor Code § 218.5 and Code of Civil Procedure § 1021.5 and all other applicable statutes; and

14. For such other and further relief the Court may deem just and proper.

Respectfully submittéd, Dated: Januaryc)i\, 2018

By:

Scott M. Lidman Attorneys for Plaintiff

THOMAS DAVIS

DEMAND FOR JURY TRIAL

Plaintiff hereby demands a jury trial with respect to all issues triable by jury.

N Respectfully submitted, Dated: January © . 2018 LIDMAN LAW, AP

By:

Scott M. Lidman Attorneys for Plaintiff

THOMAS DAVIS