Velasquez v. Olam West Coast, Inc.

Complaint Information

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0 ~J O A W NN == O E-FILED

4/16/2018 3:56 PM

Larry W. Lee (State Bar No. 228175) Clerk of Court

Kristen M. Agnew (State Bar No. 247656) Superior Court of CA, Nicholas Rosenthal (State Bar No. 268297) County of Santa Clara DIVERSITY LAW GROUP, P.C. 18CV 326637

515 S. Figueroa Street, Suite 1250 Reviewed By: A. Hwang

Los Angeles, CA 90071

(213) 488-6555

(213) 488-6554 facsimile

William L. Marder, Esq. (State Bar No. 170131) Polaris Law Group LLP

501 San Benito Street, Suite 200

Hollister, CA 95023

Tel: (831) 531-4214

Fax: (831) 634-0333

Attorneys for Plaintiff and the Class

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

JOHN VELASQUEZ, as an individual and | Case No.: 18CV326637 on behalf of all others similarly situated,

CLASS ACTION COMPLAINT FOR

Plaintiffs, DAMAGES FOR:

VS. (1) VIOLATION OF CAL. LABOR CODE § 226(a) OLAM WEST COAST, INC., a Delaware corporation; and DOES 1 through 50,

inclusive, DEMAND OVER $25,000.00

Defendants. Plaintiff John Velasquez (“Plaintiff”’) hereby submits this Class Action Complaint (“Complaint”) against Defendant Olam West Coast, Inc. (“Defendant”), and Does 1 through 50 (hereinafter collectively referred to as “Defendants™), on behalf of himself and a class of all other similarly situated current and former employees of Defendants for penalties for violations of the California Labor Code, including without limitation, failure to provide employees with accurate

itemized wage statements as follows:

INTRODUCTION

1. This class and representative action is within the Court’s jurisdiction under California Labor Code section 226. 2. This Complaint challenges systemic illegal employment practices resulting in

violations of the California Labor Code against individuals who worked for 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 in Defendants’ failure to provide accurate payroll records.

4, Plaintiff is informed and believes, and based thereon alleges, that Defendants have engaged in, among other things a system of willful violations of the California Labor Code, by creating and maintaining policies, practices and customs that knowingly deny employees the

above stated rights and benefits.

JURISDICTION AND VENUE

5. The Court has jurisdiction over the violations of California Labor Code section 226. 0. Venue is proper in Santa Clara County because Defendants have branch locations

in Santa Clara County, and Plaintiff was employed by Defendants in Santa Clara County.

PARTIES

7. Plaintiff began employment by Defendants in or about 1981. Plaintiff’s last day worked was on or about November 3, 2017. During Plaintiff’s employment with Defendants,

Plaintiff was not provided proper and accurate itemized wage statements. Specifically, when overtime wages were paid, the wage statements failed to identify the accurate rates of overtime, including double-time, pay and the total hours worked.

8. Plaintiff is informed and believes, and based thereon alleges, that at all times herein mentioned Defendant Olam West Coast, Inc. is and was a Delaware corporation, licensed to do business and actually doing business in the State of California. As such, and based upon all the facts and circumstances incident to Defendant’s business, Defendant is subject to California Labor Code section 226.

9. 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.

10. 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 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.

11. 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.

12. At all times herein mentioned, Defendants, and each of them, were members of,

and engaged 1n, 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.

13. 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 alleged. 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, 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.

CLASS ACTION ALLEGATIONS

14. Definition: The named individual Plaintiff seeks class certification, pursuant to California Code of Civil Procedure section 382. Plaintiff proposes the following class: all current and former California non-exempt employees of Defendants who were paid overtime, including double overtime, wages at any time between April 16, 2017, through the present (the “Class™ or “Class Members”).

15. Numerosity: 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 Defendants’ records, including payroll records. Plaintiff is informed and believes, and based thereon alleges, that Defendants failed to provide proper payroll records in violation of Labor Code section 226.

16. 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 individual Plaintiff. 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 state and federal courts.

17. Defendants uniformly administered a corporate policy, practice of failing to provide proper payroll records in violation of Labor Code section 226. Plaintiff is informed and

believes, and based thereon alleges, that this corporate conduct is accomplished with the advanced knowledge, intent and willfulness.

18. Common Question of Law and Fact: There are predominant common questions of law and fact and a community of interest amongst Plaintiff and the claims of the Class concerning Defendants’ policy and practice of failing to provide proper payroll records in violation of Labor Code section 226.

19. Typicality: The claims of Plaintiff are typical of the claims of all members of the Class in that Plaintiff suffered the harm alleged in this Complaint in a similar and typical manner as the Class members. As with other non-exempt California employees, Plaintiff wés not provided proper and accurate itemized wage statements. Specifically, when overtime wages were paid, the wage statements failed to identify the accurate rates of overtime, including double-time, pay and the total hours worked. Therefore, Defendants violated Labor Code section 226 by not providing the requisite itemized wage statement to Plaintiff. Therefore, Plaintiff is a member of the Class and have suffered the alleged violations of California Labor Code section 226.

20. The California Labor Code sections upon which Plaintiff bases these claims are broadly remedial in nature. These laws and labor standards serve 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 may seek to take advantage of superior economic and bargaining power in setting onerous terms and conditions of employment.

21. 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 Defendants would necessarily gain an unconscionable advantage since it would be able to exploit and overwhelm the limited resources of each individual plaintiff with their 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.

22. 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 Defendants and which would establish potentially incompatible standards of conduct for the Defendants, 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.

23. Such a pattern, practice and uniform administration of corporate policy regarding illegal payroll practices described herein is unlawful and creates an entitlement to recovery by Plaintiff and the Class identified herein, in a civil action, for applicable penalties, reasonable attorneys’ fees, and costs of suit according to the mandate of California Labor Code section 226 et seq., and Code of Civil Procedure section 1021.5.

24. Proof of a common business practice or factual pattern, which the named Plaintiff experienced and is representative of, will establish the right of each of the members of the Plaintiff Class to recovery on the causes of action alleged herein.

FIRST CAUSE OF ACTION VIOLATION OF LABOR CODE § 226 (BY PLAINTIFF AND THE CLASS AGAINST ALL DEFENDANTY)

25. Plaintiff re-alleges and incorporates by reference paragraphs 1 through 24 as though fully set forth herein.

26. Defendants failed in their affirmative obligation to provide accurate itemized wage statements. Defendants, as a matter of policy and practice, did not provide accurate records in violation of Labor Code section 226.

27. Plaintiff and the Class were paid on an hourly basis. As such, the wage statements

should have reflected the correct applicable rates of pay and total hours worked, pursuant to Labor Code section 226(a). The wage statements provided to Plaintiff and the Class failed to identify such information, including without limitation, the correct rates of pay and total hours worked.

28. Such a pattern, practice and uniform administration of corporate policy as described herein is unlawful and creates an entitlement to recovery by the Plaintiff and the Class identified herein, in a civil action, for all penalties pursuant to Labor Code section 226, including interest thereon, attorneys’ fees, and costs of suit according to the mandate of California Labor Code section 226.

PRAYER FOR RELIEF

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

this suit is brought against Defendants, jointly and severally, as follows:

1. For an order certifying the proposed Class;

2. For an order appointing Plaintiff as the representative of the Class as described herein;

3. Upon the First Cause of Action, for penalties pursuant to California Labor Code

section 226, and for costs and attorneys’ fees; 4. On all causes of action for attorneys’ fees and costs as provided by California Labor Code section 226 and Code of Civil Procedure section 1021.5; and

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

DATED: April 16, 2018