This case was last updated from Santa Clara County Superior Courts on 08/14/2019 at 07:48:21 (UTC).

Espinoza v. Dave & Buster's Management Corporation, Inc.

Case Summary

On 04/13/2018 Espinoza filed a Labor - Other Labor lawsuit against Dave Buster's Management Corporation, 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 Kuhnle, Thomas. The case status is Other - Transferred.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ******6529

  • Filing Date:

    04/13/2018

  • Case Status:

    Other - Transferred

  • Case Type:

    Labor - Other Labor

  • Court:

    Santa Clara County Superior Courts

  • Courthouse:

    Downtown Superior Court

  • County, State:

    Santa Clara, California

Judge Details

Judge

Kuhnle, Thomas

 

Party Details

Plaintiff

Espinoza, Ervin

Defendant

Dave & Buster's Management Corporation, Inc.

Other

Superior Court of California

Attorney/Law Firm Details

Plaintiff Attorney

Rosenkranz, Andrea

Other Attorney

Superior Court of CA, County of Santa Clara

 

Court Documents

Removal to Federal Court

Espinoza - State Court Notice of Removal.pdf:

Proof of Service: Summons DLR (Civil)

tc of filing proof.pdf:

Notice

P'S.NTC.CRT.COMPLEX.ORD.pdf: Comment: PLAINTIFF???S NOTICE OF COURT ORDER DEEMING CASE COMPLEX AND STAYING DISCOVERY

Order: Deeming Case Complex

Order Deeming Case Complex and Staying Discovery and Responsive Pleading: Comment: Order Deeming Case Complex and Staying Discovery and Responsive Pleading Deadline signed/TEK

Complaint (Unlimited) (Fee Applies)

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

Summons: Issued/Filed

SUMMONS.pdf: Comment: Summons

 

Docket Entries

  • 07/27/2018
  • Conference: Case Management - Judicial Officer: Kuhnle, Thomas; Hearing Time: 10:00 AM; Cancel Reason: Vacated; Comment: (1st CMC) Proposed Class Action * Employment * Discovery and responsive pleading deadline stayed, as of 5/8/18, when the case was deemed complex.

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  • 06/04/2018
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  • Removal to Federal Court - Espinoza - State Court Notice of Removal.pdf:

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  • 05/11/2018
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  • Proof of Service: Summons DLR (Civil) - tc of filing proof.pdf:

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  • 05/08/2018
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  • Notice - P'S.NTC.CRT.COMPLEX.ORD.pdf: Comment: NOTICE OF COURT ORDER DEEMING CASE COMPLEX AND STAYING DISCOVERY

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  • 05/08/2018
  • View Court Documents
  • Order: Deeming Case Complex - Order Deeming Case Complex and Staying Discovery and Responsive Pleading: Comment: Order Deeming Case Complex and Staying Discovery and Responsive Pleading Deadline signed/TEK

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  • 04/13/2018
  • View Court Documents
  • Complaint (Unlimited) (Fee Applies) - Complaint (Unlimited) (Fee Applies): Comment: Complaint

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  • 04/13/2018
  • View Court Documents
  • Summons: Issued/Filed - SUMMONS.pdf: Comment: Summons

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  • 04/13/2018
  • Civil Case Cover Sheet - Comment: Civil Case Cover Sheet

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Complaint Information

E-FILED

4/13/2018 11:04 AM

Joseph Lavi, Esq. (State Bar No. 209776) Clerk of Court ilavi@lelawfirm.com Superior Court of CA, Andrea Rosenkranz, Esq. (State Bar No. 301559) County of Santa Clara arosenkranz@ lelawfirm.com

LAVI & EBRAHIMIAN, LLP 18CV326529

8889 W. Olympic Blvd. Suite 200 Reviewed By: E. Fang

Beverly Hills, California 90211 Telephone: (310) 432-0000 Facsimile: (310) 432-0001

Attorneys for Plaintiff ERVIN ESPINOZA, on behalf of himself and others similarly situated

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

ERVIN ESPINOZA, on behalf of himself and | Case No.18CV326529 others similarly situated,

PLAINTIFF, CLASS ACTION

VS. PLAINTIFF ERVIN ESPINOZA"S

COMPLAINT FOR DAMAGES AND DAVE & BUSTER’S MANAGEMENT | EQUITABLE RELIEF FOR

CORPORATION, INC., a corporation; and

s 1. FAILURE TO PROVIDE MEAL DICES 1 fo 100, tnclusive, PERIODS AND MEAL PERIOD

DEFENDANTS. PREMIUM WAGESIN

VIOLATION OF LABOR CODE

SECTIONS 226.7 & 512 AND THE WAGE ORDERS;

2. FAILURE TO PROVIDE REST

PERIODS AND REST PERIOD PREMIUM WAGES IN VIOLATION OF LABOR CODE

SECTION 226.7 AND THE WAGE ORDERS;

3. FAILURE TO PROVIDE

ACCURATE WAGE STATEMENTS IN VIOLATION OF LABOR CODE SECTION 226 AND

THE WAGE ORDERS;

4, FAILURE TO TIMELY PAY

FINAL WAGESIN VIOLATION OF LABOR CODE SECTIONS 201

PROFESSIONS CODE SECTION

17200, et seq

DEMAND FOR JURY TRIAL

NOW COMES Plaintiff ERVIN ESPINOZA (“Plaintiff’), on behalf of himself, the general public, and all others similarly situated alleging and complaining against Defendants DAVE & BUSTER’S MANAGEMENT CORPORATION, INC. a corporation; and DOES 1 to 100, inclusive, (hereinafter collectively referred to as “Defendants”) as follows:

INTRODUCTION

1. This is a class action lawsuit seeking unpaid wages and interest thereon for Defendants’ failure to provide legally compliant meal periods and/or pay meal period premium wages; failure to provide legally compliant rest periods and/or pay rest period premium wages; statutory penalties for failure to provide accurate wage statements; waiting time penalties in the form of continuation wages for failure to timely pay employee all earned and unpaid wages due upon separation of employment; applicable civil penalties; injunctive relief and other equitable relief; and reasonable attorney’s fees, pursuant to Labor Code Section 226(e); costs, pursuant to Labor Code Section 218.5; and interest, pursuant to Labor Code Section 218.6, brought on behalf of Plaintiff and others similarly situated.

JURISDICTION AND VENUE

2. This Court has jurisdiction over Plaintiff and the Class Members’ claims for Defendants’ failure to provide legally compliant meal periods and/or pay meal period premium wages; failure to provide legally compliant rest periods and/or pay rest period premium wages; statutory penalties for failure to provide accurate wage statements; waiting time penalties in the form of continuation wages for failure to timely pay employee all earned and unpaid wages due upon separation of employment; and claims for injunctive relief and restitution under California Business & Professions Code Section 17200 et seq. for the following reasons: Plaintiff’s lawsuit seeks permanent injunction and damages for himself and the Class Members in excess of $25,000; more than two-thirds of the putative class members are California citizens; the principal violations Clara County, including at 940 Great Mall Drive, Milpitas, CA 95035; the conduct of Defendants forms a significant basis for Plaintiff’s and the Class Members’ claims; and Plaintiff and the Class Members seek significant relief from Defendants.

PARTIES

3. Plaintiff brings this action on behalf of himself and other members of the general public similarly-situated. The named Plaintiff and the class of persons on whose behalf this action is filed are current, former and/or future employees of Defendants who worked, work, or will work for Defendants as non-exempt hourly employees in California. At all times mentioned herein, the named Plaintiff is and was domiciled and a resident and citizen of California and was employed by Defendants in a non-exempt position within the 4 years prior to the filing of the complaint. The named Plaintiff is no longer an employee of Defendants.

4, Defendants employed Plaintiff as an hourly non-exempt employee from on or around May 23, 2016, until on or around February 16, 2018.

D. Plaintiff is informed and believes and thereon alleges that Defendant DAVE & BUSTER’S MANAGEMENT CORPORATION, INC. is authorized to do business within the State of California and is doing business in the State of California and/or that Defendants DOES 1 to 50 are, and at all times relevant hereto were, members and/or managers of Defendant DAVE & BUSTER’S MANAGEMENT CORPORATION, INC. who were acting on behalf of Defendant DAVE & BUSTER’S MANAGEMENT CORPORATION, INC. in the establishment of, or ratification, of, the aforementioned illegal payroll practices or policies. At all times mentioned herein, Defendant DAVE & BUSTER’S MANAGEMENT CORPORATION, INC. employed numerous hourly paid employees in Santa Clara County.

0. Plaintiff is informed and believes and thereon alleges that Defendants DOES 1 through 25 are corporations, or are other business entities or organizations of a nature unknown to Plaintiff.

7. Plaintiff is further informed and believes and thereon alleges that Defendants DOES 1 through 25 are corporations, or are other business entities or organizations of a nature unknown to aspects of the employment and workplaces behavior of the employees of DAVE & BUSTER’S MANAGEMENT CORPORATION, INC.

8. Plaintiff is informed and believes and thereon alleges that Defendants DOES 26 through 50 are individuals unknown to Plaintiff. Each of the individual defendants is sued individuallycapacity as an agent, shareholder, owner, representative, manager, supervisor, independent contractor and/or employee of each Defendant and had operational control for Defendants.

9. Plaintiff is unaware of the true names of Defendants DOES 1 to 100 and therefore sues said Defendants by said fictitious names, and will amend this complaint when the true names and capacities are ascertained or when such facts pertaining to liability are ascertained, or as permittedCourt. Plaintiff is informed and believes that each of the fictitiously named defendants is in some manner responsible for the events and allegations set forth in this complaint.

10. Plaintiff is informed, believes, and thereon alleges that at all relevant times, each Defendant was an employer, was the principal, agent, partner, joint venturer, officer, director, controlling shareholder, subsidiary, affiliate, parent corporation, successor in interest and/or predecessor in interest of some or all of the other Defendants, and was engaged with some or all of the other defendants in a joint enterprise for profit, and bore such other relationships to some or all of the other defendants so as to be liable for their conduct with respect to the matters alleged in this complaint. Plaintiff is further informed and believes and thereon alleges that each defendant acted pursuant to and within the scope of the relationships alleged above, and that at all relevant times, each defendant knew or should have known about, authorized, ratified, adopted, approved, controlled, aided and abetted the conduct of all other defendants. As used in this complaint, “Defendant” means “Defendants and each of them,” and refers to the Defendants named in the particular cause of action in which the word appears and includes Defendants DAVE & BUSTER’S MANAGEMENT CORPORATION, INC. and DOES 1 to 100.

11. Atall times mentioned herein, each Defendant was the co-conspirator, agent, servant, scope of said conspiracy, agency, employment, and/or joint venture and with the permission and consent of each of the other Defendants.

12. Plaintiff is informed and believes and thereon alleges that there exists such a unity of interest and ownership between Defendants DAVE & BUSTER’S MANAGEMENT CORPORATION, INC. and DOES 1 to 100, that the individuality and separateness of Defendants have ceased to exist. The business affairs of Defendants are, and at all times relevant hereto were, so mixed and intermingled that the same cannot reasonably be segregated, and the same are in inextricable confusion. Defendant DAVE & BUSTER’S MANAGEMENT CORPORATION, INC., is and at all times relevant hereto was, used by Defendants DOES 1 to 100, as a mere shell and conduit for the conduct of Defendants DOES 1 to 100’s affairs and was undercapitalized during such use. The recognition of the separate existence of Defendants would not promote justice, in that it would permit Defendants to insulate themselves from liability to Plaintiff. A ccordingly, Defendants constitute the alter ego of each other and the fiction of their separate existence must be disregarded.

13. Plaintiff makes the allegations in this complaint without any admission that, as to any particular allegation, Plaintiff bears the burden of pleading, proving, or persuading and Plaintiff reserves all of Plaintiff’s rights to plead in the alternative.

DESCRIPTION OF ILLEGAL PAY PRACTICES

14. Pursuant to the applicable Industrial Welfare Commission Wage Order (“Wage Order”), codified at California Code of Regulations title 8, Section 11040, Defendants and business entities sued as DOES 1-100 were employers of Plaintiff within the meaning of the applicable W age Order and applicable California Labor Code Sections. Therefore, Defendants are jointly and severally liable for the wrongs complained of herein in violation of the Wage Order and the California Labor Code.

15. Failure to provide non-exempt employees with legally compliant meal periods and/or pay non-exempt employees wages to compensate them for workdays Defendants failed to provide legally compliant meal periods: Defendants often employ non-exempt employees, length. California law requires an employer to provide an employee an uninterrupted meal period of no less than 30-minutes before the end of a 5-hour work period. Lab. Code § 512. An employer may not employ an employee for a work period of more than 10 hours per day without providing the employee with a second meal period of not less than 30 minutes before the end of the tenth hour of work. Id. If an employer fails to provide an employee a meal period in accordance with the law, the employer must pay the employee one hour of pay at the employee’s regular rate of compensation for each work day that a legally required meal period was not provided or was not duty free. Id.

16. Plaintiff and similarly situated employees would work on workdays in shifts of between 5 hours and more than 10 hours in length entitling them to two meal periods under California law. Defendants maintained a policy, practice, and/or procedure, however, that failed to provide for legally compliant first and/or second uninterrupted, duty-free 30-minute meal periods when non-exempt, hourly employees worked between 5 and 10 or more hours in a day, throughout the class period. Defendants also failed to provide the employees with premium wages for these non-compliant meal periods. Defendants’ failure to provide the employees with legally compliant meal periods was in violation of Labor Code Section 226.7 and the IWC Wage Orders. A ccordingly, Defendants owe each hourly employee wages for these non-compliant meal periods.

17. Failure to provide non-exempt employees with legally compliant rest periods and/or pay non-exempt employees wages to compensate them for workdays Defendants failed to provide legally compliant rest periods: Defendants often employ non-exempt employees, including the named Plaintiff and all others similarly-situated, for shifts longer than 3.5 hours in in length. California law states that “[e]very employer shall authorize and permit all employees to take rest periods, which insofar as practicable shall be in the middle of each work period. The authorized rest period time shall be based on the total hours worked daily at the rate of ten (10) minutes net rest time per four (4) hours or major fraction thereof. ... If an employer fails to provide an employee a rest period in accordance with the applicable provisions of this order, the employer shall pay the employee one (1) hour of pay at the employee’s regular rate of compensation for each workday that the rest period is not provided.” Wage order 5, subd. 12; see Lab. Code § 226.7. Under California length, 20 minutes for shifts of more than six hours up to 10 hours, 30 minutes for shifts of more than 10 hours up to 14 hours, and so on.” Brinker Restaurant Corp. v. Sup. Ct. (Hohnbaum) (2012) 53 Cal.4th 1004, 1029; Lab. Code §226.7; Wage Order 5, subd. 12. Rest periods must be in the middle of each work period. Wage Order 5, subd. 12.

18. Plaintiff and similarly situated employees would work on workdays in shifts between three and one-half hours and more than 10 hours entitling them to three rest periods under California law. Defendants maintained a policy, practice, and/or procedure, however, that failed to provide non-exempt, hourly employees with one 10-minute paid rest period for when they worked a shift of three and one-half to six hours in length, two 10-minute paid rest periods for when they worked a shift of more than six hours up to 10 hours in length, and/or three 10-minute paid rest periods for when they worked a shift of more than 10 hours up to 14 hours in length. Defendants also failed to pay employees one hour of pay at their regular rate of pay for each workday Plaintiff and employees did not receive all legally compliant rest periods. Defendants’ failure to provide the employees with rest periods was in violation of Labor Code Section 226.7 and the IWC Wage Orders. Defendants owe each of their hourly employees for these unpaid rest period wages.

19. Pay Stub Violations: California Labor Code Section 226(a) provides (inter alia) that, upon paying an employee his or her wages, the employer must “furnish each of his or her employees ... an itemized statement in writing showing (1) gross wages earned, (2) total hours worked by the employee, except for any employee whose compensation is solely based on a salary and who is exempt from payment of overtime under subdivision (a) of Section 515 or any applicable order of the Industrial Welfare Commission, (3) the number of piece-rate units earned and any applicable piece rate if the employee is paid on a piece-rate basis, (4) all deductions, provided, that all deductions made on written orders of the employee may be aggregated and shown as one item, (5) net wages earned, (6) the inclusive dates of the pay period for which the employee is paid, (7) the name of the employee and his or her social security number, (8) the name and address of the legal entity that is the employer, and (9) all applicable hourly rates in effect during the pay period and the corresponding number of hours worked at each hourly rate by the employee.” other non-exempt, hourly employees. Defendants’ failure to provide legally compliant meal periods and/or pay meal period premium wages and failure to provide legally compliant rest periods and/or pay rest period premium wages resulted in Defendants providing their non-exempt, hourly employees with inaccurate itemized wage statements in violation of Labor Code Section 226(a) because they did not reflect all of the employees’ earnings. This intentional inaccurate information prevented Plaintiff and other non-exempt, hourly employees from knowing the actual wages and calculating their actual wages which resulted in Plaintiff and other hourly class members to suffer actual damages.

21. Failure to Pay California Employees All Wages Due at Time of Termination/Resignation: An employer is required to pay all unpaid wages timely after an employee’s employment ends. The wages are due immediately upon termination (Lab. Code § 201) or within 72 hours of resignation (Lab. Code § 202). Plaintiff resigned from his position with Defendant on or about February 16, 2018. Defendants, however, failed to pay Plaintiff and other non-exempt, hourly employees with all wages, including premiummissed meal periods and/or rest periods, during their employment and never paid these amounts after Plaintiff and other non-exempt, hourly employees separated employment with Defendants. As a result, Defendants failed to provide all separated employees whose employment ended within three years prior to the filing of the Complaint all earned and unpaid wages.

CLASS DEFINITIONS AND CLASSALLEGATIONS

22. This action has been brought and may properly be maintained as a class action pursuant to California Code of Civil Procedure Section 382 and other applicable law, because there is a well-defined community of interest in the litigation and the proposed classes are ascertainable.

23. Plaintiff brings this action on behalf of himself, on behalf of all others similarly situated, and on behalf of the General Public, and as a member of a Class defined as follows:

A. Meal Period Class: All current and former non-exempt, hourly employees employed by Defendants in California at any time within the four years prior to the filing of the initial complaint in this action and through the date notice is mailed to a certified class who worked and/or second meal periods.

B. Rest Period Class: All current and former non-exempt, hourly employees employed by Defendants in California at any time within the four years prior to the filing of the initial complaint in this action and through the date notice is mailed to a certified class who worked more than three and one-half (3.5) hours in a day yet Defendants did not provide required rest periods of ten net minutes rest time for every four hours worked between three and one-half (3.5) and six hours, six and ten hours, ten and fourteen hours.

C. Wage Statement Class: All current and former non-exempt, hourly employees employed by Defendants in California at any time within four years prior to the filing of the initial complaint in this action and through the date notice is mailed to a certified class who received inaccurate and/or incomplete itemized wage statements.

D. Waiting Time Class: All current and former non-exempt, hourly employees employed by Defendants in California at any time within four years prior to the filing of the initial complaint in this action and through the date notice is mailed to a certified class whose employment ended and they did not receive payment of all unpaid wages within the statutory time period after separation of employment.

E. California Class: All aforementioned classes are here collectively referred to as the “California Class.”

24. All Classes are here collectively referred to as “California Class”. 25. There is a well-defined community of interest in the litigation and the classes are ascertainable:

A. Numerosity: The Plaintiff classes are so numerous that the individual joinder of all members is impractical under the circumstances of this case. While the exact number of class members in each class is unknown to Plaintiff at this time, Plaintiff is informed and believes and thereon allege that, in California, each class has over 100 members.

B. Common Questions Predominate: Common questions of law and fact exist as to all members of the Plaintiff classes and predominates over any questions that affect only limited to:

(1) Whether Defendants unlawfully failed to provide the Meal Period Class with proper meal periods or an hour wage for every day such periods were not provided,;

(11) Whether Defendants unlawfully failed to provide the Rest Period Class with proper rest periods or an hour wage for every day such breaks were not provided;

(iii) Whether Defendants unlawfully failed to furnish the Wage Statement Class with proper accurate itemized wage statements;

(iv) Whether Defendants failed to provide the Waiting Time Class with all unpaid wages within the statutory time period following separation of employment;

(v) W hether Defendants violated Business & Professions Code Section 17200, et seq. by their wage and hour practices, furnishing of correct itemized wage statement practices, indemnification practices, as well as, payment at the time of separation practices;

(vi) Whether Class Members are entitled to unpaid wages, penalties, interest, fees and other relief in conjunction with their claims; and

(vil)) Whether, as a consequence of Defendants’ unlawful conduct, the Class Members are entitled to restitution, and/or equitable relief; and

(viii)) Plaintiff anticipates that Defendants’ affirmative defenses will raise additional common issues of fact and law.

C. Typicality: Plaintiff’s claims are typical of the claims of the class members in each of the classes. Plaintiff and the members of the Meal Period Classes sustained damages arising out of Defendants’ failure to provide legally compliant meal periods and/or meal period premium wages. Plaintiff and the members of the Rest Period Class sustained damages arising out of Defendants’ failure to provide legally compliant rest periods and/or rest period premium wages. Plaintiff and the members of the Wage Statement Class sustained damages arising out of Defendants’ failure to furnish them with proper Itemized Wage Statements. Plaintiff and the members of the Waiting Time and Class sustained damages arising out of Defendants’ failure to provide all wages due upon the end of their employment. interests of the members of each class. Plaintiff has no interest that is adverse to the interests of the other class members. Plaintiff has retained counsel competent and experienced in complex class action litigation and Plaintiff intends to prosecute this action vigorously. The interests of the members of the Classes will be fairly and adequately protected by Plaintiff and his counsel.

E. Superiority: A class action is superior to other available means for the fair and efficient adjudication of this controversy. Because individual joinder of all members of each class is impractical, class action treatment will permit a large number of similarly situated persons to prosecute their common claims in a single forum simultaneously, efficiently, and without the unnecessary duplication of effort and expense that numerous individual actions would engender. The expenses and burdens of individual litigation would make it difficult or impossible for individual members of each class to redress the wrongs done to them, while important public interests will be served by addressing the matter as a class action. The cost to and burden on the court system of adjudication of individualized litigation would be substantial, and substantially more than the costs and burdens of a class action. Individualized litigation would also present the potential for inconsistent or contradictory judgments.

F. Public Policy Consideration: Employers throughout the state violate wage and hour laws. Current employees are often afraid to assert their rights out of fear of direct or indirect retaliation. Former employees are fearful of bringing actions because they perceive their former employers can blacklist them in their future endeavors through negative references and by other means. Class actions provide the class members who are not named in the Complaint with a type of anonymity that allows for vindication of their rights.

FIRST CAUSE OF ACTION FAILURE TO PROVIDE MEAL PERIODS AND MEAL PERIOD PREMIUM WAGESIN

VIOLATION OF LABOR CODE SECTIONS 226.7 & 512 AND THE WAGE ORDERS (On Behalf of the Meal Period Class against All Defendants and Does 1-100) 206. Plaintiff hereby incorporates by reference paragraphs 1-25 above, as if fully set herein. exempt, hourly employees of Defendants covered by Labor Code Sections 226.7 & 512 and the IWC Wage Orders.

28. Pursuant to Labor Code Sections 226.7 & 512 and the IWC Wage Orders, an employer is required to provide an employee an uninterrupted meal period of no less than 30- minutes before the end of a 5-hour work period. Lab. Code § 512. An employer may not employ an employee for a work period of more than 10 hours per day without providing the employee with a second meal period of not less than 30 minutes before the end of the tenth hour of work. Id. If an employer fails to provide an employee a meal period in accordance with the law, the employer must pay the employee one hour of pay at the employee’s regular rate of compensation for each work day that a legally required meal period was not provided or was not duty free. Id.

29. Plaintiff is informed and believes and thereon alleges that Plaintiff and members of the Meal Period Class would work on workdays in shifts of between 5 hours and more than 10 hours in length entitling them to two meal periods under California law. Defendants maintained a policy, practice, and/or procedure, however, that failed to provide for legally compliant first and/or second uninterrupted, duty-free 30-minute meal periods when non-exempt, hourly employees worked between 5 and 10 or more hours in a day, throughout the class period. Defendants also failed to provide Plaintiff and members of the Meal Period Class with premium wages for these for these non-compliant meal periods.

30. Despite that California law requires employers to provide employees with timely and uninterrupted meal periods when they have worked a sufficient amount of hours, Plaintiff is informed and believes and thereon alleges that Defendants did not provide Plaintiff and members of the Meal Period Class with legally compliant first and/or second meal periods.

31. As a result of Defendants’ unlawful conduct, Plaintiff and members of the Meal Period Class have suffered damages in an amount, subject to proof, to the extent they were not paid an hour wage for every meal period which they did not properly receive.

SECOND CAUSE OF ACTION FAILURE TO PROVIDE REST PERIODS AND REST PERIOD PREMIUM WAGES IN

VIOLATION OF LABOR CODE SECTION 226.7 AND THE WAGE ORDERS (On Behalf of the Rest Period Class against All Defendants and Does 1-100)

33. Plaintiff hereby incorporates by reference paragraphs 1-32 above, as if fully set herein.

34. At all relevant times, Plaintiff and members of the Rest Period Class were non- exempt, hourly employees of Defendants covered by Labor Code Section 226.7 and the IWC Wage Orders.

35. Pursuant to Labor Code Section 226.7 and the IWC Wage Orders, Plaintiff and members of the Rest Period Class were entitled to receive rest periods of 10-net minutes for every four hours, or major fraction thereof, worked. If Plaintiff and members of Rest Period Class did not receive rest periods for every four hours, or major fraction thereof, worked in a day, Defendants were required to pay them one hour of pay at the employee’s regular rate of pay for each workday that the rest period is not provided.

36. Plaintiff is informed and believes and thereon alleges that Plaintiff and members of the Rest Period Class would work on workdays in shifts between three and one-half hours and more than 10 hours entitling them to three rest periods under California law. Defendants maintained a policy, practice, and/or procedure, however, that failed to provide non-exempt, hourly employees with one 10-minute paid rest period for when they worked a shift of three and one-half to six hours in length, two 10-minute paid rest periods for when they worked a shift of more than six hours up to 10 hours in length, and/or three 10-minute paid rest periods for when they worked a shift of more than 10 hours up to 14 hours in length.

37. Plaintiff is informed and believes and thereon alleges that at all relevant times within the limitations period applicable to this cause of action, Defendants’ policies and procedures were to not provide employees with legally compliant rest periods and to not pay employees one hour of pay at the employees’ regular rate of pay for each workday that all legally compliant rest periods were 38. As a result of Defendants’ unlawful conduct, Plaintiff and members of the Rest Period Class have suffered damages in an amount, subject to proof, to the extent they were not paid an hour wage for every rest period which they did not properly receive.

39. Pursuant to Labor Code Section 226.7 and the IWC Wage Orders, Plaintiff and members of the Rest Period Class are entitled to recover the full amount of unpaid rest period wages, interest thereon, and costs of suit.

THIRD CAUSE OF ACTION FAILURE TO PROVIDE ACCURATE WAGE STATEMENTS IN VIOLATION OF LABOR CODE SECTION 226 AND THE WAGE ORDERS

(On Behalf of the Wage Statement Class against All Defendants and Does 1-100)

40. Plaintiff hereby incorporates by reference paragraphs 1-39 above, as if fully set herein by reference.

41. At all relevant times, Plaintiff and members of the Wage Statement Class were employees of Defendants covered by Labor Code Section 226 and the IWC Wage Orders.

42. Pursuant to Labor Code Section 226, subdivision (a), and IWC Wage Orders, Plaintiff and the other members of the Wage Statement Class were entitled to receive, semimonthly or at the time of each payment of wages, an accurate itemized wage statement which included, but not limited to, the following: (a) gross wages earned; (b) the total hours worked by the employee; (c) net wages earned; (d) all applicable hourly rates in effect during the pay period and the corresponding number of hours worked at each hourly rate by the employee; and (e) the name and address of the legal entity that is the employer.

43. Defendants failed to provide accurate and complete wage statements to Plaintiff and members of the Wage Statement Class. Defendants’ failure to provide legally compliant meal periods and/or pay meal period premium wages and failure to provide legally compliant rest periods and/or pay rest period premium wages resulted in Defendants providing their non-exempt, hourly employees with inaccurate itemized wage statements in violation of Labor Code Section 226(a) because they did not reflect all of the employees’ earnings. This intentional inaccurate information calculating their actual wages which resulted in Plaintiff and members of the Wage Statement Class to suffer actual damages.

44, Defendants’ failure to provide Plaintiff and members of the Wage Statement Class with accurate wage statements was knowing and intentional. Defendants had the ability to provide Plaintiff and members of the Wage Statement Class with accurate wage statements but intentionally provided wage statements that D efendants knew were not accurate.

45. As a result of Defendants’ conduct, Plaintiff and members of the Wage Statement Class have suffered injury. The absence of accurate information on their wage statements has prevented earlier challenges to Defendants unlawful pay practices, required discovery and mathematical computations to determine the amount of wages owed, caused difficulty and expense in attempting to reconstruct time and pay records, and/or led to the submission of inaccurate information about wages and amounts deducted from wages to state and federal government agencies.

46. Pursuant to Labor Code Section 226(e), Plaintiff and members of the Wage Statement Class are entitled to recover fifty (50) dollars for the initial pay period within the applicable limitations period in which a violation of Labor Code Section 226 occurred and one hundred dollars for each violation of Labor Code Section 226 in a subsequent pay period, not to exceed an aggregate penalty of four thousand (4,000) dollars per employee.

47. Pursuant to Labor Code Section 226, Plaintiff and members of the Wage Statement Class are entitled to recover the full amount of penalties due under Labor Code Section 226(e) and reasonable attorney’s fees.

FOURTH CAUSE OF ACTION FAILURE TO TIMELY PAY FINAL WAGES IN VIOLATION OF LABOR CODE SECTIONS 201 & 202

(On Behalf of the Waiting Class against All Defendants and Does 1-100)

49, Plaintiff hereby incorporates by reference paragraphs 1-48 above, as if fully set herein.

50. At all relevant times, Plaintiff and members of the Waiting Time Class were employees of Defendants covered by Labor Code Sections 201 or 202.

51. Pursuant to Labor Code Sections 201 or 202, Plaintiff and members of the Waiting Time Class were entitled upon separation of employment to timely payment of all wages earned and unpaid prior to separation of employment. Discharged employees were entitled to payment of all wages eamed and unpaid prior to discharge immediately upon termination. Employees who resigned were entitled to payment of all wages earned and unpaid prior to resignation within 72 hours after giving notice of resignation or, if they gave 72 hours previous notice, they were entitled to payment of all wages earned and unpaid prior to resignation at the time of resignation.

52. Defendants failed to pay Plaintiff and members of the Waiting Time Class all wages earned and unpaid prior to separation in accordance with Labor Code Sections 201 and/or 202. Plaintiff is informed and believes and thereon alleges that at all relevant times within the limitations period applicable to this cause of action, Defendants maintained a policy or practice of failing to pay premium wages for all non-compliant meal periods and failing to pay premium wages for all non- compliant rest periods.

53. Defendants’ failure to pay Plaintiff and members of the Waiting Time Class all wages earned prior to separation timely in accordance with Labor Code Sections 201 and/or 202 was willful. Defendants had the ability to pay all wages earned by Plaintiff and members of the Waiting Time Class prior to separation in accordance with Labor Code Sections 201 and/or 202, but intentionally adopted policies or practices incompatible with the requirements of Labor Code Sections 201 and/or 202. When Defendants failed to pay Plaintiff and members of the Waiting Time doing and intended to do what they did.

54. Pursuant to Labor Code Sections 201 or 202, Plaintiff and members of the Waiting Time Class are entitled to all wages earned prior to separation of employment that Defendants did not pay them.

50. Pursuant to Labor Code Section 203, Plaintiff and members of the Waiting Time Class are entitled to continuation of their wages, from the day their earned and unpaid wages were due upon separation of employment until paid, up to a maximum of 30 days.

506. Asaresult of Defendants’ conduct, Plaintiff and members of the Waiting Time Class have suffered damages in an amount, subject to proof, to the extent they were not paid for all wages earned prior to separation of employment.

57. Asaresult of Defendants’ conduct, Plaintiff and members of the Waiting Time Class have suffered damages in an amount, subject to proof, to the extent they were not paid all continuation wages owed under Labor Code Section 203.

58. Pursuant to Labor Code Sections 201, 202, and 203, Plaintiff and members of the Waiting Time Class are entitled to recover the full amount of their unpaid wages, continuation wages under Section 203, interest thereon, reasonable attorney’s fees and costs of suit.

NINTH CAUSE OF ACTION UNFAIR COMPETITION IN VIOLATION OF BUSINESS & PROFESSIONS CODE

SECTION 17200, et seq (On Behalf of the California Class against All Defendants and Does 1-100)

59. Plaintiff hereby incorporates by reference paragraphs 1-58 above, as if fully set herein by reference.

60. The unlawful conduct of Defendants alleged herein constitutes unfair competition within the meaning of California Business and Professions Code Section 17200. This unfair conduct includes Defendants’ use of policies and procedures which resulted in their failure to provide legally compliant meal periods and/or pay meal period premium wages; to provide legally compliant rest periods and/or pay rest period premium wages; and to provide accurate itemized wage statements. Labor Code, as outline above, Defendants have gained a competitive advantage over other comparable companies doing business in the State of California that comply with their obligations to provide legally compliant meal periods and/or pay meal period premium wages; to provide legally compliant rest periods and/or pay rest period premium wages; and to provide accurate itemized wage statements.

62. As a result of Defendants’ unfair competition as alleged herein, Plaintiff and members of the Meal Period Class, Rest Period Class, Wage Statement Class, and/or Waiting Time Class have suffered injury in fact and lost money or property, as described in more detail above.

63. Pursuant to California Business and Professions Code Section 17203, Plaintiff and members of the Meal Period Class, Rest Period Class, Wage Statement Class, and/or Waiting Time Class are entitled to restitution of all wages and other monies rightfully belonging to them that Defendants failed to pay and wrongfully retained by means of their unlawful and unfair business practices.

04. Plaintiff also seeks an injunction against Defendants on behalf of members of the California Class enjoining them, and any and all persons acting in concert with them, from engaging in each of the unlawful practices, policies and patterns set forth herein.

65. Plaintiff and members of the California Class also seeks attorneys’ fees and costs of suit, including but not limited to that recoverable under California Code of Civil Procedure Section 1021.5.

PRAYER FOR RELIEF

ONALL CAUSES OF ACTION:

1. That the Court determine that this action may be maintained as a class action (for the entire California Class and/orspecified sub-classes) pursuant to Code of Civil Procedure Section 382 and any other applicable law;

2. That the named Plaintiff be designated as class representative for the California Class (and all sub-classes thereof);

3. A declaratory judgment that the practices complained herein are unlawful; concert with them, from engaging in each of the unlawful practices, policies and patterns set forth herein; and

d. For attorneys’ fees and costs of suit, including but not limited to that recoverable under Code of Civil Procedure Section 1021.5.

ON THE FIRST CAUSE OF ACTION:

1. That the Defendants be found to have violated the meal period provisions of the Labor Code and the IWC Wages Orders as to Plaintiff and the Meal Period Class;

2, For damages, according to proof, including unpaid wages;

3. For any and all legally applicable penalties;

4, For pre-judgment interest, including but not limited to that recoverable under Labor Code Section 218.6, and post-judgment interest; and

D. For such and other further relief, in law and/or equity, as the Court deems just or appropriate.

ON THE SECOND CAUSE OF ACTION:

1. That the Defendants be found to have violated the rest period provisions of the Labor Code and the IWC Wages Orders as to Plaintiff and the Rest Period Class;

2. For damages, according to proof, including unpaid wages;

3. For any and all legally applicable penalties;

4, For pre-judgment interest, including but not limited to that recoverable under Labor Code Section 218.6, and post-judgment interest; and

D. For such and other further relief, in law and/or equity, as the Court deems just or appropriate.

ON THE THIRD CAUSE OF ACTION:

1. That the Defendants be found to have violated the provisions of the Labor Code regarding proper itemized paystubs as to Plaintiff and the Wage Statement Class;

2. For damages and/or penalties, according to proof, including damages and/or statutory penalties under Labor Code Section 226(e) and any other legally applicable damages or penalties; 4, For attorneys’ fees and costs of suit, including but not limited to that recoverable under California Labor Code Section 226(e); and

D. For such and other further relief, in law and/or equity, as the Court deems just or appropriate.

ON THE FOURTH CAUSE OF ACTION:

1. That the Defendants be found to have violated the provisions of the Labor Code regarding payment of wages due upon resignation or termination as to Plaintiff and the Waiting Time Class;

2. For damages and/or penalties, according to proof, including damages and/or statutory penalties under Labor Code Section 203 and any other legally applicable damages or penalties;

3. For pre-judgment interest, including under Labor Code Section 218.6, and post- judgment interest; and

4, For such and other further relief, in law and/or equity, as the Court deems just or appropriate.

ON THE FIFTH CAUSE OF ACTION:

1. That the Defendants be found to have violated Business and Professions Code Section 17200 for the conduct alleged herein as to Plaintiff and all Classes;

2. A declaratory judgment that the practices complained herein are unlawful;

3. An injunction against Defendants enjoining them, and any and all persons acting in concert with them, from engaging in each of the unlawful practices, policies and patterns set forth herein;

4, For restitution to the full extent permitted by law; and Dated: April 12, 2018 Respectfully submitted, LAVI & EBRAHIMIAN, LLP

By: Joseph Lavi,

Andrea Rosenkranz, Esq.

Attorneys for Plaintiff ERVIN ESPINOZA, on behalf of himself and others similarly situated.

DEMAND FOR JURY TRIAL

Plaintiff ERVIN ESPINOZA demands a trial by jury for himself and the California Class on all claims so triable.

Dated: April 12, 2018 Respectfully submitted, LAVI & EBRAHIMIAN, LLP

By: