On 07/16/2018 Sanchez filed a Labor - Other Labor lawsuit against A S Painting Plastering, Inc. This case was filed in Santa Clara County Superior Courts, Downtown Superior Court located in Santa Clara, California. The Judges overseeing this case are Kuhnle, Thomas and Walsh, Brian C. The case status is Pending - Other Pending.
******1651
07/16/2018
Pending - Other Pending
Santa Clara County Superior Courts
Downtown Superior Court
Santa Clara, California
Kuhnle, Thomas
Walsh, Brian C
Zendejas Sanchez, Francisco
Sanchez, Francisco Zendejas
A & S Painting & Plastering, Inc.
Superior Court of California
Marder, William Lucas
Hyun, Dennis Sangwon
Courtney, Kevin P.
Superior Court of CA, County of Santa Clara
Scan0076.pdf: Comment: Proof of Service
Answer to Complaint: Comment: Answer to Complaint
Proof of Service of Summons Complaint: Comment: Proof of Service of Summons/Complaint
Order Granting Plaintiff's CCP 170.6 Peremptory Challenge TEK: Comment: Order Granting Plaintiff's CCP 170.6 Peremptory Challenge - signed/TEK
Affidavit Peremptory Challenge CCP 170.6 TEK: Comment: Peremptory Challenge against Hon. Thomas E. Kuhnle and Declaration
Order Deeming Case Complex and Staying Discovery and Responsive Pleading Deadline: Comment: Order Deeming Case Complex and Staying Discovery and Responsive Pleading Deadline signed/TEK
Complaint (Unlimited) (Fee Applies):
Civil Case Cover Sheet:
Summons Issued Filed:
CMC Statement Plaintiff: Comment: Plaintiff's Further Case Management Statement
CMC Statement Defendant: Comment: HRG 06/28/19 CASE MANAGEMENT STATEMENT
Notice CMC reset from 3-8-19 to 6-28-19: Comment: CMC reset from 3/8/19 to 6/28/19
Proof of Service: Comment: HRG 03/08/19 Proof of Electronic Service
Kevin P. Courtney Declaration re Continued CMC: Comment: HRG 03/08/19 Declaration Re Continued Case Management Conference
Notice CMC 3-8-19 at 10am in D1: Comment: CMC set for 3/8/19 at 10am in D1
Joint CMC Statement: Minutes Non-Criminal: Judicial Officer: Walsh, Brian C; Hearing Time: 10:00 AM; Result: Held; Comment: (1st CMC) Proposed Wage and Hour Class Action * Discovery and responsive pleading deadline stayed, as of 7/24/18, when the case was deemed complex. Plaintiff's CCP 170.6 against TEK filed 7/25/18 and granted 7/26/18. Answer to Complaint filed 9/5/18.
Joint CMC Statement: Comment: Joint Case Management Statement
Civil Lawsuit Notice: Comment: 1st CMC set for 11/2/18 at 10am in D5; assigned to Hon. Thomas E. Kuhnle
Conference: Case Management - Judicial Officer: Walsh, Brian C; Hearing Time: 10:00 AM; Comment: (3rd CMC) Proposed Wage and Hour Class Action * Discovery and responsive pleading deadline stayed, as of 7/24/18, when the case was deemed complex. Plaintiff's CCP 170.6 against TEK filed 7/25/18 and granted 7/26/18. Answer to Complaint filed 9/5/18. At the 11/2/18 CMC, the parties agreed to mediation, and to informal discovery to prepare for mediation. Mediation with Judge Kevin Murphy (Ret.) set for 3/27/19. At the 6/28/19 CMC, the parties were ordered to meet and confer re exchange of financial disclosure/info and discuss the settlement funding and protective order. Stipulated Protective Order entered 7/3/19.
Stipulation and Order - Stipulated Protective Order: Comment: Stipulated Protective Order - signed/BCW
Notice - Notice CMC 10-18-19 at 10am in D5: Comment: CMC set for 10/18/19 at 10am in D5
Conference: Case Management - CMC Statement Defendant: CMC Statement Plaintiff: Minutes Non-Criminal: Judicial Officer: Walsh, Brian C; Hearing Time: 10:00 AM; Result: Held; Comment: (2nd CMC) Proposed Wage and Hour Class Action * Discovery and responsive pleading deadline stayed, as of 7/24/18, when the case was deemed complex. Plaintiff's CCP 170.6 against TEK filed 7/25/18 and granted 7/26/18. Answer to Complaint filed 9/5/18. At the 11/2/18 CMC, the parties agreed to mediation, and to informal discovery to prepare for mediation. Mediation with Judge Kevin Murphy (Ret.) set for 3/27/19.
Minute Order - Minutes Non-Criminal:
Statement: Case Management Conference - CMC Statement Plaintiff: Comment: Plaintiff's Further Case Management Statement
Statement: Case Management Conference - CMC Statement Defendant: Comment: HRG 06/28/19 CASE MANAGEMENT STATEMENT
Notice - Notice CMC reset from 3-8-19 to 6-28-19: Comment: CMC reset from 3/8/19 to 6/28/19
Proof of Service - Proof of Service: Comment: HRG 03/08/19 Proof of Electronic Service
Declaration - Kevin P. Courtney Declaration re Continued CMC: Comment: HRG 03/08/19 Declaration Re Continued Case Management Conference
Proof of Service - Scan0076.pdf: Comment: Proof of Service
Answer (Unlimited) (Fee Applies) - Answer to Complaint: Comment: Answer to Complaint
Proof of Service: Summons DLR (Civil) - Proof of Service of Summons Complaint: Comment: Proof of Service of Summons/Complaint
Order - Order Granting Plaintiff's CCP 170.6 Peremptory Challenge TEK: Comment: Order Granting Plaintiff's CCP 170.6 Peremptory Challenge - signed/TEK
Affidavit: Peremptory Challenge CCP 170.6 - Affidavit Peremptory Challenge CCP 170.6 TEK: Comment: Peremptory Challenge against Hon. Thomas E. Kuhnle and Declaration
Order: Deeming Case Complex - Order Deeming Case Complex and Staying Discovery and Responsive Pleading Deadline: Comment: Order Deeming Case Complex and Staying Discovery and Responsive Pleading Deadline signed/TEK
Civil Lawsuit Notice - Civil Lawsuit Notice: Comment: 1st CMC set for 11/2/18 at 10am in D5; assigned to Hon. Thomas E. Kuhnle
Complaint (Unlimited) (Fee Applies) - Complaint (Unlimited) (Fee Applies):
Civil Case Cover Sheet - Civil Case Cover Sheet:
Summons: Issued/Filed - Summons Issued Filed:
William L. Marder, Cal Bar No. 170131 POLARIS LAW GROUP, LLP
501 San Benito Street, Suite 200 Hollister, California 95023
Telephone: 831.531.4214
Facsimile: 831.634.0333
Dennis S. Hyun (State Bar No. 224240) HYUN LEGAL, APC
515 S. Figueroa St., Suite 1250
Los Angeles, CA 90071
(213) 488-6554 facsimile
Attorneys for Plaintiff and the Class
7/16/2018 11:14 AM Clerk of Court Superior Court of CA, County of Santa Clara
Reviewed By: V. Taylor
FRANCISCO ZENDEJAS SANCHEZ, as an individual and on behalf of all others similarly situated,
Plaintiffs, V. A & S PAINTING & PLASTERING,
INC., a California corporation; and DOES 1 through 50, inclusive,
Defendants.
CASENO. 18CV331651
CLASS ACTION COMPLAINT FOR:
(1) VIOLATION OF CAL. LABOR CODE § 226(a);
(2) VIOLATION OF CAL. LABOR CODE § 2698, ET SEOQ.
DEMAND EXCEEDS $25,000.00
Plaintiff Francisco Zendejas Sanchez (“Plaintiff”) hereby submits this Class Action
Complaint (“Complaint”) against Defendant A & S Painting & Plastering, Inc. (the “Company”
or “Defendant”), a California corporation, and DOES 1-50 (hereinafter collectively referred to as
“Defendants”), individually and on behalf of the Class of all other similarly situated current and
former employees of Defendants for penalties and/or damages for violations of the California
1. This class action is within the Court’s jurisdiction under California Labor Code §§ 226 and 2698, ef seq. and the California Industrial Welfare Commission’s (“IWC”) Wage Orders.
2. This Complaint challenges systemic illegal employment practices resulting in violations of the California Labor Code against employees of Defendants.
3. Plaintiff is informed and believes, and based thereon alleges, that Defendants jointly and severally have acted intentionally and with deliberate indifference and conscious disregard to the rights of all employees by failing to keep accurate records and failing to provide accurate itemized wage statements identifying all required information, including without limitation, the inclusive dates of the period for which the employee is being paid.
4, Plaintiff is informed and believes, and based thereon alleges, that Defendants have engaged 1n, among other things a system of willful violations of the California Labor Code and applicable IWC Wage Orders by creating and maintaining policies, practices and customs that knowingly deny employees the above stated rights and benefits.
5. The Court has jurisdiction over the violations of the California Labor Code §§ 226, and 2698, et seq. As alleged below, Plaintiffjurisdictional requirements to proceed under the Private Attorney General’s Act (the “PAGA?”), Labor Code § 2698, et seq.
6. Venue is proper in Santa Clara County because Defendants maintain business locations in this County and Plaintiff performed work for Defendants’ facility located in this County.
7. Plaintiff worked for Defendant as a non-exempt employee. During Plaintiffs employment, he received defective paystubs from Defendant.
8. Defendant is a California corporation engaged in contracting work, including painting and plastering. Defendant is headquartered in Santa Clara County.
9. Plaintiff was and is a victim of the policies, practices, and customs of Defendants complained of in this action in ways that have deprived Plaintiff of the rights guaranteed by California Labor Code §§ 226 and 2698, ef seq. and the applicable IWC Wage Orders. 10. Plaintiff is informed and believes, and based thereon alleges, that at all times herein mentioned Defendants and DOES 1 through 50 are and were business entities, individuals, and partnerships, licensed to do business and actually doing business in the State of California.
11. As such, and based upon all the facts and circumstances incident to Defendants’ business in California, Defendants are subject to California Labor Code §§ 226 and 2698, ef segq. and the IWC Wage Orders.
12. Plaintiff does not know the true names or capacities, whether individual, partner or corporate, of the Defendants sued herein as DOES 1 through 50, inclusive, and for that reason, said Defendants are sued under such fictitious names, and Plaintiff prays for leave to amend this complaint when the true names and capacities are known. Plaintiff is informed and believes, and based thereon alleges, that each of said fictitious Defendants was responsible in some way for the matters alleged herein and proximately caused Plaintiff and members of the general public and class to be subject to the illegal employment practices, wrongs and injuries complained of herein.
13. Atall times herein mentioned, each of said Defendants participated in the doing of the acts hereinafter alleged to have been done by the named Defendants; and furthermore, the Defendants, and each of them, were the agents, servants and employees of each of the other Defendants, as well as the agents of all Defendants, and at all times herein mentioned, were acting within the course and scope of said agency and employment.
14. Plaintiff is informed and believes, and based thereon alleges, that at all times material hereto, each of the Defendants named herein was the agent, employee, alter ego and/or joint venturer of, or working in concert with each of the other co- Defendants and was acting within the course and scope of such agency, employment, joint venture, or concerted activity. To the extent said acts, conduct, and omissions were perpetrated by certain Defendants, each of the remaining Defendants confirmed and ratified said acts, conduct, and omissions of the acting Defendants.
15. At all times herein mentioned, 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. 16. At all times herein mentioned, the acts and omissions of various Defendants, and each of them, concurred and contributed to the various acts and omissions of each and all of the other Defendants in proximately causing the injuries and damages as herein alieged. At all times herein mentioned, Defendants, and each of them, ratified each and every act or omission complained of herein. At all times herein mentioned, the Defendants, and each of them, aided and abetted the acts and omissions of each and all of the other Defendants in proximately causing the damages as herein alleged.
17. Definition: The named individual Plaintiff seeks class certification, pursuant to California Code of Civil Procedure § 382, of the following class:
a. All current and former California employees who received a wage statement from Defendant at any time during the period of time from July 16, 2017, through the present (“Wage Statement Class™).
18. Numerosity and Ascertainability: The members of the Class are so numerous that joinder of all members would be impractical, if not impossible. The identity of the members of the Class is readily ascertainable by review of the Company’s records, including payroll records. Plaintiff is informed and believes, and based thereon alleges, that the Company failed to provide accurate itemized wage statements to employees in violation of Labor Code § 226.
19. Adequacy of Representation: The named Plaintiff is fully prepared to take all necessary steps to represent fairly and adequately the interests of the class defined above. Plaintiff’s attorneys are ready, willing and able to fully and adequately represent the class and the named Plaintiffs. Plaintiff’s attorneys have prosecuted and settled wage-and-hour class actions in the past and currently have a number of wage-and-hour class actions pending in California courts.
20. The Company uniformly administered a corporate policy, practice of failing to provide accurate itemized wage statements to employees in violation of Labor Code § 226.
21. Common Question of Law and Fact: There are predominant common questions of law and fact and a community of interest amongst Plaintiffs and the claims of the Class concerning the Company’s failure to provide accurate itemized wage statements to employees in violation of Labor Code § 226. 22. Typicality: The claims of the named Plaintiff are typical of the claims of all members of the Class in that Plaintiff has suffered the harm alleged in this Complaint in a similar and typical manner as the Class members. Plaintiff was not provided proper and accurate payroll records identifying all information required by Labor Code § 226(a). Specifically, the Company violated Labor Code § 226(a)(8) by, among other actions, failing to identify the name and/or address of the legal entity that is the employer. Plaintiff’s wage statements failed to include this information. Thus, Plaintiff is a member of the Class and has suffered the alleged violations of California Labor Code §§ 226 and 2698, et seq., and the applicable IWC Wage Orders.
23. The California Labor Code and upon which Plaintiff bases these claims is broadly remedial in nature. These laws and labor standards serve an important public ihterest in establishing minimum working conditions and standards in California. These laws and labor standards protect the average working employee from exploitation by employers who may seek to take advantage of superior economic and bargaining power in setting onerous terms and conditions of employment.
24. The nature of this action and the format of laws available to Plaintiff and members of the Class identified herein make the class action format a particularly efficient and appropriate procedure to redress the wrongs alleged herein. If each employee were required to file an individual lawsuit, the corporate Defendant would necessarily gain an unconscionable advantage since it would be able to exploit and overwhelm the limited resources of the individual Plaintiff with Defendants’ 'Vastly superior financial and legal resources. Requiring each Class member 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 damage to their careers at subsequent employment.
25. The prosecution of separate actions by the individual class members, even if possible, would create a substantial risk of (a) inconsistent or varying adjudications with respect to individual Class members against the Company and which would establish potentially incompatible standards of conduct for the Company, and/or (b) adjudications 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 the 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 Class are not sufficiently large to warrant vigorous individual prosecution considering all of the concomitant costs and expenses.
26. Such a pattern, practice and uniform administration of corporate policy regarding illegal employee compensation described herein is unlawful and creates an entitlement to recovery by Plaintiffs and the Class identified herein, in a civil action any and all applicable penalties and/or damages, reasonable attorneys’ fees, and costs of suit according to the mandate of California Labor Code §§ 226 and 2698, et seq., the applicable IWC Wage Orders, and Code of Civil Procedure § 1021.5.
27. Proof of a common business practice or factual pattern, which the named Plaintiffs experienced and are representative of, will establish the right of each of the members of the Class to recovery on the causes of action alleged herein.
28. The Class is commonly entitled to a specific fund with respect to the compensation illegally and unfairly retained by the Company. The Class is commonly entitled to restitution of those funds being improperly withheld by the Company. This action is brought for the benefit of the entire class and will result in the creation of a common fund.
VIOLATION OF LABOR CODE § 226(a)
29. Plaintiff re-alleges and incorporates by reference paragraphs 1 through 28 as though fully set for herein. |
30. The Company failed in its affirmative obligation to provide accurate itemized
wage statements in violation of Labor Code § 226(a). Specifically, the Company violated Labor Code § 226(a)(8) by, among other actions, failing to identify the name and/or address of the legal entity that is the employer. The wage statements provided to Plaintiffs and the Class failed to identify such information.
31. Such a pattern, practice and uniform administration of corporate policy as identified herein, in a civil action, for all damages or penalties pursuant to Labor Code § 226, including interest thereon, attorneys’ fees, and costs of suit according to the mandate of California Labor Code § 226.
VIOLATION OF LABOR CODE § 2698, ET SEQ.
32. Plaintiff re-alleges and incorporates by reference paragraphs 1 through 31 as though fully set for herein.
33. Plaintiff seeks penalties on behalf of the State of California for violations committed against the following employees:
a. All current and former California employees who received wage statements at any time during the period of time from April 30, 2017, through the present.
34. On or about April 30, 2018, Plaintiff sent notice to the Labor Workforce Development Agency (the “LWDA”) of the violations of Labor Code § 226(a)(8). As set forth in Plaintiff’s PAGA notice, “[t]he pay statements failed to identify the name and/or address of the legal entity that is the employer in violation of Labor Code § 226(a)(8). This violation is applicable to all current and former employees of the employer, including the aggrieved employee.”
35. As of the date of the filing of this Complaint, the LWDA has not notified Plaintiffs whether it intends to investigate the claims. Therefore, Plaintiff may seek applicable penalties under the PAGA.
36. Such a pattern, practice and uniform administration of corporate policy as described herein is unlawful and creates an entitlement to recovery by the Plaintiff on behalf of the State of California, in a civil action, for penalties pursuant to the PAGA, Labor Code § 2699(a), including interest thereon, attorneys’ fees, and costs of suit according to the mandate of PAGA for Defendant’s violations of Labor Code § 226, as well as attorneys’ fees and costs.
1. For an order certifying the proposed Class;
2. For an order appointing Plaintiff as the representative of the Class as described herein;
3. For an order appointing counsel for Plaintiff as Class counsel;
4. Upon the First Cause of Action , for damages and/or penalties pursuant to
California Labor Code § 226, and for costs and attorneys’ fees;
5. Upon the Second Cause of Action, for civil penalties according to proof pursuant to Labor Code § 2698, et seq.;
6. On all causes of action, for attorneys’ fees and costs as provided by California Labor Code §§ 226, and 2698, et seq., and Code of Civil Procedure § 1021.5; and
7. For such other and further relief as the Court may deem just and proper.
DATED: July 16, 2018 POLARIS LAW GROUP, LLP
William L. Marder Attorneys for PLAINTIFF and the CLASS
By:
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