Autrey v. Level 3 Communications, LLC

Complaint Information

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18CV335899

Santa Clara - Civil

DIVERSITY LAW GROUP, P.C.

Larry W. Lee, State Bar No. 228175 E-mail: Iwlee@diversitylaw.com Nicholas Rosenthal, State Bar No. 268297 E-mail: nrosenthal@diversitylaw.com 515 S. Figueroa St., Suite 1250

Los Angeles, California 90071 Telephone: (213) 488-6555 Facsimile: (213) 488-6554

POLARIS LAW GROUP LLP

William L. Marder, State Bar No. 170131 E-mail: bill@polarislawgroup.com

501 San Benito Street, Suite 200 Hollister, California 95023

Telephone: (831) 531-4214 Facsimile: (831) 634-0333

Dennis S. Hyun (State Bar No. 224240) E-mail: dhyun@hyunlegal.com

HYUN LEGAL, APC

515 S. Figueroa St., Suite 1250

Los Angeles, California 90071

(213) 488-6555

(213) 488-6554 facsimile

Attorneys for Plaintiff and the Class

Electronically Filed

by Superior Court of CA, County of Santa Clara, on 11/30/2018 11:18 AM Reviewed By: R. Walker Case #18CV335899 Envelope: 2227406

SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA

KURT AUTREY, individually and on behalf of | Case No. 18CV335899

all those similarly situated, Plaintiff, Vs.

LEVEL 3 COMMUNCATIONS, LLC, a

Delaware limited liability company; and DOES

1 through 50, inclusive,

Defendants.

PLAINTIFF’S FIRST AMENDED CLASS AND REPRESENTATIVE ACTION

COMPLAINT FOR:

(1) VIOLATION OF LABOR CODE § 226 (2) VIOLATION OF LABOR CODE

§ 2698, ET SEQ.WD

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Comes now Plaintiff Kurt Autrey (“Plaintiff”), individually and on behalf of all similarly situated current and former employees hereby alleges and complains against Defendant Level 3 Communications, a Delaware limited liability company (“Defendant,” or “Level 3”), and Does 1

through 50 (collectively, “Defendants™) as follows:

JURISDICTION AND VENUE

1. This Court has jurisdiction over the violations of the California Labor Code § 226, and 2698, et seq. 2, Venue is proper in this Court because Plaintiff is a resident of Santa Clara County.

PARTIES

3. Level 3 is a telecommunications and internet company operating throughout the United

States, including in Santa Clara County, California. 4, On or about November 2, 2017, Plaintiff began employment with Defendant at its

location in Santa Clara, California. On or about September 14, 2018, Plaintiff’s employment was

terminated.

DOE DEFENDANTS

5. 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 to be subject to the illegal employment practices, wrongs and injuries complained of herein. |

AGENCY STATUS OF EACH DEFENDANT

6. | At all times herein mefitioned, each of said Defeildants 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

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7. 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.

8. 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.

0. 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, the Defendants, and each of them, aided and abetted the acts and omissions of each and all of the other Defendants in proximately calising the damages as herein alleged.

CLASS ALLEGATIONS

10. Class Definition: The named individual Plaintiff brings this action individually and on behalf of the Class pursuant to California Code of Civil Procedure. Plaintiff proposes the following class: all current and former California non-exempt employees of Defendants who received commission wages at any time between October 5, 2017, through the present (this group of individuals shall hereinafter be collectively referred to as the “Class” or “Class Members.”).

11. 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 ascertaifiable by review of Defen(iant’s records, including p‘ayroll records. Plaintiff ié informed and believe, and based thereon alleges, that Defendant failed to provide proper payroll records in violation of Labor Code § 226. |

12. 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’spage 3 can't be parsed

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against their former and/or current employer for real and justifiable fear of retaliation and permanent damage to their careers at subsequent employment.

17. 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 Defendant and which would establish potentially incompatible standards of conduct for the Defendant, 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.

18. 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 the Plaintiff and the Class identified herein, in a civil action for all damages and or penalties pursuant to Labor Code § 226 including interest thereon, applicable penalties, reasonable attorney’s fees, and costs of suit according to the mandate of California Labor Code § 226 and Code of Civil Procedure § 1021.5.

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

20. This action is brought for the benefit of the entire Class and will result in the creation of a common fund.

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

21. Plaintiff ret—alleges and incorporates by reference paragraphs 1 xthrough 20 as though fullgf set forth herein.

22. Defendants failed in their affirmative obligation to provide accurate itemized wage | statements. Specifically, when Defendant paid commission wages to Plaintiff and Class Members, the

wage statements issued by the Company did not identify the accurate pay period start and end dates for which the commission wages were being paid. Rather, whenever such wages were paid, the wage statements simply showed the same pay period start and end dates as on the wage statements themselves, which is not the actual pay period start and end dates for the commissions payments. Therefore, Plaintiff is a member of the Class and have suffered the alleged violations of California Labor Code § 226.

23. 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 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.

SECOND CAUSE OF ACTION

VIOLATION OF LABOR CODE § 2698, ET SEQ.

(PRIVATE ATTORNEYS GENERAL ACT) (BY PLAINTIFF AND THE AGGRIEVED EMPLOYEES AGAINST ALL DEFENDANTYS)

24. Plaintiff re-alleges and incorporates by reference paragraphs 1 through 23 as though fully set forth herein.

25. Asidentified above, Defendant violated Labor Code section 226(a) by failing to provide complete and accurate wage statements.

26. Because of Defendant’s violations of Labor Code section 226(a), Plaintiff is an “aggrieved employee” as defined in Labor Code section 2699(a). As such, Plaintiff brings this cause of action on behalf of the State of California for violations committed against all similarly situated Aggrieved Employees of Defendant.

27. On or about September 26, 2018, Plaintiff sent written notice to the California Labor & Workforce Development Agency (“LWDA”) of Defendant’s violations of Labor Code section 226(a), pursuant to Labor Code section 2699.3.

28. As of the date of the filing of this Complaint, the LWDA has yet to provide notice to Plaintiff as to whether it intends to investigate the Labor Code violations provided for in the written O 0 3 O »n S~ W

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29. As such, pursuant to Labor Code sections 2699(a) and 2699.3, Plaintiff and the Aggrieved Employees may seek recovery of all applicable civil penalties on behalf of the State of California for Defendants’ violations of Labor Code section 226(a).

PRAYER FOR RELIEF

WHEREFORE, Plaintiff prays for judgment to be entered in Plaintiff’s favor and against Defendants, and each of them, as follows:

1. For an order certifying the proposed Class;

For an order appointing Plaintiff as the representative of the Class;

For an order appointing Counsel for Plaintiff as Class counsel;

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Upon the First Cause of Action, for penalties and/or damages pursuant to Labor Code § 226, et seq., for interest, costs, and for attorney’s fees;

6. Upon the Second Cause of Action, for civil penalties pursuant to California Labor Code section 2698, ef seq., and for costs and attorneys’ fees; and

7. On all causes of action, for prejudgment interest at the prevailing legal rate;

8. On all causes of action, for attorney’s fees and costs as provided by California Labor Code §¢§ 226 and 2699 and Code of Civil Procedure § 1021.5 and for such other and further relief the Court may deem just and proper.

9. | Costs of suit; and

10. Such other and further relief as the Court may deem proper.

DATED: November 30, 2018 DIVERSITY LAW GRQUP, P.C.

By: Larry W. Lee " Attorneys for Plaintiff and the Classpage 7 can't be parsed