Lacap, et al. v. Admiral Security Services, Inc., et al.

Complaint Information

E-FILED

10/11/2018 11:28 AM TOMAS E. MARGAIN, Bar No. 193555 Clerk of Court HUY TRAN, Bar No. 288196 Superior Court of CA,

Justice at Work Law Group, LLP 84 West Santa Clara Street, Suite 790 County of Santa Clara

San Jose, CA 95113 1 80_\/3361 03

Telephone: (408) 317-1100 Reviewed By: R. Walker Facsimile: (408) 351-0105

Tomas@JAWLawGroup.com

Huy@JAWLawGroup.com

KEVIN R. ALLEN (SBN 237994)

DANIEL VELTON (SBN 267890)

VELTON ZEGELMAN P.C.

525 W. Remington Drive, Suite 106 Sunnyvale, CA 94087

Tel. (408) 505-7892

Fax (408) 228-1930

kallen@vzfirm.com dvelton@vzfirm.com

Attorneys for Plaintiff JOHN NGUYEN and the Proposed Class

SUPERIOR COURT OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA UNLIMITED JURISDICTION 18CV336103

RICHARD LACAP and ERNESTO Case No. GEREZ, individually and on behalf of all others similarly situated, CLASS ACTION COMPLAINT FOR

VIOLATIONS OF THE CALIFORNIA

Plaintiffs, LABOR CODE AND CALIFORNIA

BUSINESS AND PROFESSIONS CODE

V.

ADMIRAL SECURITY SERVICES, INC. and Does 1-50,

Defendants.

Plaintiffs RICHARD LACAP and ERNESTO GEREZ, on behalf of themselves and all other similarly situated current and former employees of Defendants ADMIRAL SECURITY SERVICES,

INTRODUCTION

1. This is a class action lawsuit brought pursuant to the Civil Code, Labor Code, and Business and Professions Code against Defendants. Defendants run a private security business.

2. Plaintiffs bring this lawsuit on behalf of the class to challenge the unfair and unlawful practices that Defendants have engaged in with regard to their breaks. Plaintiffs seek restitution and compensation on behalf of themselves and other similarly situated employees for unpaid meal and rest period, statutory penalties, and interest. Plaintiffs also seek declaratory and injunctive relief. Finally, Plaintiff seek reasonable attorneys’ fees and costs pursuant to the Labor Code and Code of Civil Procedure § 1021.5.

PARTIES

3. Plaintiffs RICHARD LACAP and ERNESTO GEREZ are individuals over the age of eighteen (18) and at all relevant times residents of San Jose in Santa Clara County. Plaintiffs were employed by Defendants within the four years preceding the filing date of this Complaint.

4. Defendant ADMIRAL SECURITY SERVICES, INC. is a corporation that is duly registered and authorized to do business in the State of California. ADMIRAL was also Plaintiffs’ employer.

5. The true and correct names and capacities of Does 1 through 50, inclusive, are unknown to Plaintiffs, who therefore sue said Defendants by such fictitious names. On information and belief, Plaintiffs allege that each of said fictitious Defendants caused injury and damages to them. Plaintiffs will seek leave of court to amend this Complaint to show their true names and capacities when the same have been ascertained pursuant to Code Civil Procedure § 474.

6. At all times relevant herein, ADMIRAL and Does 1-50 inclusive were and are employer(s) and person(s) within the definition of California Labor Code § 18, the applicable Industrial Wage Order, and California Business and Professions Code § 17201. 7. On information and belief, Plaintiffs allege that at all relevant times herein mentioned, each of the Defendants, including Does 1-50, were the agents, employees, supervisors, employers, alter egos, and/or joint ventures of the remaining defendants, and were acting both individually and in the course and scope of such relationship, and/or as an integrated enterprise, and/or as joint employers, with the knowledge and/or consent of the remaining Defendants.

8. On information and belief, Plaintiffs allege that at all times herein mentioned, defendants Does 1-50, and each of them, were at all relevant times herein the agents, servants and/or employees of each and every group of defendants, and that all acts and omissions herein complained of were performed within the course and scope of said employment, service and/or agency and with the consent of each of the defendants. All actions of each defendant herein alleged were ratified and approved by the directors, officers or managing agents of defendants.

9. On information and belief, Plaintiffs allege that each of the Defendants acted in concert with each and every other Defendant, intended to and did participate in the events, acts, practices and courses of conduct alleged herein, and proximately caused damage and injury thereby to Plaintiffs and other similarly situated current and former employees.

10. At all times herein mentioned, each Defendant was the agent or employee of each of the other Defendants and was acting within the course and scope of such agency or employment.

JURISDICTION AND VENUE

11. This Count has jurisdiction over Plaintiffs’ claims and those of similarly situated current and former employees for unpaid wages because Plaintiffs are California residents, particular to Santa Clara County.

12. Venue is proper in this County because Plaintiffs resides in Santa Clara County, and

FACTUAL ALLEGATIONS APPLICABLE TO ALL CLAIMS

13. Defendants ADMIRAL SECURITY SERVICES, INC. and Does 1-50 run a private security business, and assigns their guards, including Plaintiffs, to job sites where it is the responsibility of the guards to patrol and protect the sites.

14. Plaintiffs and other similarly situated employees were hired as private security guards. As part of their employment, Plaintiffs and other similarly situated employees were assigned to job sites where there were no other guards or relievers to work with them.

15. Defendants required their guards, including Plaintiffs, to execute on-duty meal agreements without respect to whether the nature of guard duties 1s appropriate for such agreements.

16. Plaintiffs and other similarly situated employees who worked alone at their assigned job sites were not afforded complaint meal and rest breaks because they worked alone. Additionally, Plaintiffs and other similarly situated employees never received any compensation for the breaks that were not provided.

17. As aresult of Defendants’ failure to provide compliant breaks, Plaintiffs and other similarly situated employees were not provided with wage statements that reflected the premium wages they earned when Defendants failed to provide them with said breaks.

CLASS ACTION ALLEGATIONS

18. Plaintiffs bring this action on behalf of themselves and all others similarly situated pursuant to the Labor Code and Business & Professions Code § 17200, ef seq. Plaintiffs seek to represent the following classes of employees, defined as follows:

All security guards employed by Defendants who were scheduled or assigned to work alone for a shift of two or more hours and were not provided with compliant rest breaks.

All security guards employed by Defendants who were scheduled or

assigned to work alone for a shift of five or more hours and were not provided with compliant meal breaks. 19. The exact number of class members 1s unknown to Plaintiffs at this time. On

information and belief, Plaintiffs allege that there are at least forty (40) class members. Accordingly,

the members of the class are so numerous that joinder of all members would be impracticable. The

disposition of the class members’ claims through this class action will benefit both the parties and

the Court. The exact number and identity of the proposed class members are readily ascertainable

through inspection of Defendants’ records.

20. The Class period will be from the four years prior to the Complaint.

21. Common questions of law and fact exist as to members of the class and include, but

are not limited to, the following:

(a)

(b)

(©)

(d)

©

(H

(2)

Whether Defendants failed to provide meal periods to Plaintiffs and members of the class during which they were relieved of all duty;

Whether Defendants failed to provide rest periods to Plaintiffs and members of the class during which they were relieved of all duty;

Whether Defendants failed to provide Plaintiffs and members of the class accurate wage statements showing all premium wages earned and due; Whether Defendants willfully failed to pay all wages due Plaintiff and members of the class upon termination;

Whether Defendants engaged in unfair competition proscribed by the Business and Professions Code by engaging in the conduct described hereinabove;

The scope and type of injunctive relief necessary to prevent the wage and hour violations described herein;

The measure of restitution and damages to compensate Plaintiff and members of the class for the violations alleged herein; 22. Plaintiffs’ claims are typical of the claims of the class that Plaintiffs seek to represent. Plaintiffs and members of the class were not provided with the breaks required by California law. Defendants’ common course of conduct with respect to Plaintiffs and members of the class has caused them to sustain the same or similar injuries and damages.

23. Plaintiffs will fairly and adequately represent and protect the interests of the members of the class. Plaintiffs are member of the classes and do not have any conflict of interest with other class members. Plaintiffs have retained and are represented by competent counsel who are experienced in complex class action litigation, including break period class actions such as the present action.

24. The nature of this action and California law make a class action the superior and appropriate procedure to afford relief for the wrongs alleged herein.

COUNT ONE

California Labor Code § 226.7 Failure to Provide Meal and Rest Breaks

25. Plaintiffs re-allege and incorporate by reference the allegations contained in the preceding paragraphs as though fully set forth herein.

26. At all times relevant herein, Defendants were required to provide an uninterrupted thirty (30) minute meal break for any shift that ran longer than six (6) hours. Cal. Labor Code § 226.7; IWC Wage Order 5-2001(11). Defendants were also required to provide ten (10) minute paid rest breaks for any shift that ran longer than four (4) hours. /d. at (12).

27. Defendants did not provide, permit, or authorize Plaintiffs, or other similarly situated employees, to take their meal breaks, or pay added wages in lieu of the break as required by law. Labor Code § 226.7. Defendants also did not provide, permit, or authorize Plaintiffs, or other similarly situated employees, to take their rest breaks, or pay added wages in lieu of the break as required by law. Id. Plaintiffs worked more hours in one shift than the minimum hours required by law to be entitled to those breaks. Plaintiffs, on information and belief, have never voluntarily or willfully waived their rest breaks. Any express or implied waivers obtained from Plaintiffs were not willfully obtained, were not voluntarily agreed to, were a condition or employment, or were part of an unlawful contract of adhesion.

28. Defendants’ failure to provide the statutorily required breaks makes them liable to cach Plaintiff, and each similarly situated employee, for one hour of pay at their regular rate for each shift where a compliant meal break was not provided, and another hour of pay at their regular rate for each shift where a rest break was not provided. Labor Code § 226.7.

29. As a result of Defendants’ unlawful acts, Plaintiffs have been deprived of wages in amounts to be determined at trial and is entitled to their recovery, as well as interest and penalties thereon and attorneys’ fees and costs. Labor Code §§ 206, 226, 226.7, 1194.

COUNT TWO

California Labor Code § 203 Waiting Time Penalties

30. Plaintiffs re-allege and incorporate by reference the allegations contained in the preceding paragraphs as though fully set forth herein.

31. At the time each Plaintiff’s employment with Defendants was terminated, and any other similarly situated employee who was terminated, Defendants owed them premium wages for not providing compliant breaks, and such wages owed to them were ascertainable at the time of termination.

32. Failure to pay wages owed at an employee's termination subjects the employer the payment of a penalty equaling up to thirty (30) days’ wages. Labor Code §§ 201 and 203.

COUNT THREE

California Labor Code § 226 Failure to Provide Accurate Wage Stubs

34, Plaintiffs re-allege and incorporate by reference the allegations contained in the preceding paragraphs as though fully set forth herein.

35. Atall times relevant hereto, Defendants were required to provide each employee with written periodic wage payment setting forth, among other things, the dates of labor for which payment of wages is made, the total hours of work for the pay period, the gross and net wages paid, all deductions from those wages, and the name and address of the employer. Labor Code § 226.

36. Defendants knowingly and intentionally failed to provide Plaintiffs and other similarly situated employees with accurate, itemized wage statements in compliance with Labor Code § 226. Such failures in Defendants itemized wage statements include, failing to disclose premium wages earned by Plaintiffs and other similarly situated employees when Defendants failed to provide them with compliant meal and rest breaks.

37. As a direct result of Defendants’ conduct, Plaintiffs and other similarly situated employees were never provided with accurate paystubs. Plaintiffs and other similarly situated employees are entitled to recover penalties in an amount of not less than $50.00 for an initial violation and $100.00 for a subsequent for each violation up to $4,000.00.

38. Plaintiffs have incurred, and will continue to incur attorney fees in the prosecution of this action.

COUNT FOUR

Business and Professions Code § 17200, et seq. Engaging in Unfair Competition 39. Plaintiffs re-allege and incorporate by reference the allegations contained in the

preceding paragraphs as though fully set forth herein. 40. At all times relevant herein, Defendants were required to provide their employees, including Plaintiffs and other similarly situated employees, meal and rest breaks that meet the standards set out in the Labor Code. Labor Code § 226.7. At all times relevant herein, Defendants were also required to refrain from engaging in unfair competition. Bus. & Prof. Code § 17000, et seq.

41. Defendants engaged in unfair competition by failing to provide compliant meal and rest breaks. Plaintiffs worked sufficient hours to be entitled to those breaks. These illegal acts gave Defendants a competitive advantage over other employers and business in the private security industry who were in compliance with the law.

42. Defendants were also aware of the existence and requirements of the Unfair Trade Practice Act, and the requirements of the Labor Code and Wage Order 4-2001, but knowingly, willfully, and intentionally failed to pay Plaintiffs and other similarly situated employees for all hours worked and at their overtime rate for their overtime hours and provide them breaks.

43. As adirect and proximate result of Defendants’ failure and refusal to provide compliant meal and rest breaks, Plaintiffs’ rights were violated, as well as the rights of other similarly situated employees, and they suffered general damages in the form of unpaid wages in an amount to be proved at trial.

44. Plaintiffs and other similarly situated employees have been illegally deprived of their overtime pay and herein seek restitution pursuant to Business and Professions Code § 17203.

COUNT FIVE

Declaratory Relief

45. Plaintiffs re-allege and incorporate by reference the allegations contained in the

preceding paragraphs as though fully set forth herein, and further alleges as follows: 46. An actual controversy has arisen between Plaintiffs and members of the class, on the one hand, and Defendants, on the other hand, as to their respective rights, remedies and obligations. Specifically, Plaintiffs contend and Defendants deny, that:

(a) Defendants have failed and continue to fail to provide Plaintiffs and members of the class compliant meal and rest breaks;

(b) Defendants have failed and continue to file to provide Plaintiffs with the premium wages Defendants owe for their failure to provide said breaks; and

(¢) Defendants have failed and continue to fail to provide Plaintiffs and members of the class accurate wage and hour statements showing all wages earned.

47. Plaintiffs further allege that members of the class are entitled to recover earned wages, penalties, and interest as alleged herein.

48. Accordingly, Plaintiffs seek a declaration as to the respective rights, remedies, and obligations of the parties.

Attorney’s Fees and Costs

49. Enforcement of statutory provisions enacted to protect workers and to ensure proper and prompt payment of wages due to employees 1s a fundamental public interest in California. Consequently, Plaintiffs’ success in this action will result in the enforcement of important rights affecting the public interest and will confer a significant benefit upon the general public. Private enforcement of the rights enumerated herein is necessary as no public agency has pursued enforcement. Plaintiffs are incurring a financial burden in pursuing this action and it would be against the interest of justice to require the payment of any attorney’s fees and costs from any recovery that might be obtained herein. As prayed for below, Plaintiffs and their counsel, JUSTICE

AT WORK LAW GROUP, are entitled to and seek an award of attorneys’ fees and costs pursuant pursuant law including but not limited to Code of Civil Procedure § 1021.5, Labor Code § 1194 and

other applicable laws.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs respectfully pray for relief as follows:

1. 2.

0. T

Dated: /Jg / ‘94 / 7

For declaratory relief as pled or as the Court may deem proper;

For prelifi;inary and permanent injunctive relief prohibiting Defendants, their officers, agents and all those acting in concert with them, from committing in the future those violations of law herein alleged;

For an eq;Jitable accounting to identify, locate and restore to all current and former employees the wages they are due, with interest thereon;

For an order awarding Plaintiffs and the members of the class compensatory damages, including lost wages, earnings and other employee benefits and all other sums of money owed Plaintiff and members of the class, together with interest on these amounts, according to proof;

For an award of reasonable attorneys’ fees as provided by applicable law;

For all costs of suit; and

For such other and further relief as this Court deems just and proper.

Attorney for Plaintiffs

RICHARD LACAP and ERNESTO GEREZ, individually and on behalf of all others similarly situated— (O8] o —_

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DEMAND FOR JURY TRIAL

Plaintiffs hereby demand a trial by jury on all claims so triable.

Dated: /")g /aé }/46

E ATAWORK LAW GROUP, LLP Attorney for Plaintiffs