This case was last updated from Santa Clara County Superior Courts on 08/07/2019 at 12:07:17 (UTC).

Sottile v. Motion Recruitment Partners LLC

Case Summary

On 01/10/2018 Sottile filed a Labor - Other Labor lawsuit against Motion Recruitment Partners LLC. This case was filed in Santa Clara County Superior Courts, Downtown Superior Court located in Santa Clara, California. The Judge overseeing this case is Walsh, Brian C. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ******1677

  • Filing Date:

    01/10/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Labor - Other Labor

  • Court:

    Santa Clara County Superior Courts

  • Courthouse:

    Downtown Superior Court

  • County, State:

    Santa Clara, California

Judge Details

Judge

Walsh, Brian C

 

Party Details

Plaintiff

SOTTILE, MATTHEW

Defendant

MOTION RECRUITMENT PARTNERS LLC

Other

Superior Court of California

Attorney/Law Firm Details

Plaintiff Attorneys

Blumenthal, Norman B

Bhowmik, Aparajit

Nordrehaug, Kyle Roald

Defendant Attorneys

Lotz, Jennifer Ann

Yang, Stephen N

Petirs, Emilie Anne

Johnsrud, Brian Lee

Other Attorney

Superior Court of CA, County of Santa Clara

 

Court Documents

Motion: Final Fairness Hearing

Motion Final Approval of Class Action Settlement HRG 4-19-19: Memorandum Points and Authorities HRG 4-19-19: Norman Blumenthal Declaration HRG 4-19-19: Stephanie Molina Declaration HRG 4-19-19: Matthew Sotile Declaration HRG 4-19-19: Proposed Order HRG 4-19-19: Proof of Service HRG 4-19-19: Motion Attorney's Fees, Costs and Service Award HRG 4-19-19: Memorandum Points and Authorities HRG 4-19-19: Kyle Nordrehaug Declaration HRG 4-19-19: Proof of Service HRG 4-19-19: Order: Stipulation and Order to Modify Final Approval of Class Settlement: Judicial Officer: Walsh, Brian C; Hearing Time: 9:00 AM; Result: Heard: Granted

Notice of Hearing (no fee)

Motion Attorney's Fees, Costs and Service Award HRG 4-19-19: Comment: HRG 4/19/19 Notice of Motion and Motion for Award of Attorneys' Fees, Costs and Service Award

Proof of Service

Proof of Service HRG 4-19-19: Comment: PROOF OF SERVICE

Order: Proposed

Proposed Order HRG 4-19-19: Comment: [PROPOSED] FINAL APPROVAL ORDER AND JUDGMENT

Declaration

Matthew Sotile Declaration HRG 4-19-19: Comment: DECLARATION OF MATTHEW SOTTILE

Declaration

Stephanie Molina Declaration HRG 4-19-19: Comment: DECLARATION OF STEPHANIE MOLINA OF ILYM GROUP, INC.

Declaration

Norman Blumenthal Declaration HRG 4-19-19: Comment: DECLARATION OF NORMAN BLUMENTHAL IN SUPPORT OF MOTION FOR FINAL APPROVAL OF CLASS SETTLEMENT

Memorandum: Points and Authorities

Memorandum Points and Authorities HRG 4-19-19: Comment: MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR FINAL APPROVAL OF CLASS SETTLEMENT

Motion: Order

Motion Final Approval of Class Action Settlement HRG 4-19-19: Comment: HRG 4/19/19 NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF CLASS SETTLEMENT

Order: Deeming Case Complex

Order Deeming Case Complex & Staying Discovery: Guidelines for Motions relating to Class Certification: Comment: and Staying Discovery and Responsive Pleading Deadline signed/BCW

Notice

Civil Lawsuit Notice: ADR CV-5003: Comment: Civil Lawsuit Notice (1st CMC set for 5/4/18 at 10am in D1; assigned to Hon. Brian C. Walsh)

Complaint: Amended

Complaint First Amended: Comment: First Amended Class Action Complaint

Proof of Service: Summons DLR (Civil)

Proof of Service Summons DLR (Civil):

Order: Deeming Case Complex

Order Deeming Case Complex & Staying Discovery: Guidelines for Motions relating to Class Certification: Comment: and Staying Discovery and Responsive Pleading Deadline signed/BCW

Notice

Civil Lawsuit Notice: ADR CV-5003: Comment: Civil Lawsuit Notice (1st CMC set for 5/4/18 at 10am in D1; assigned to Hon. Brian C. Walsh)

Civil Case Cover Sheet

Civil Cover Sheet.pdf: Comment: COMPLEX

Summons: Issued/Filed

Summons Issued Filed:

Complaint (Unlimited) (Fee Applies)

Complaint (Unlimited) (Fee Applies):

24 More Documents Available

 

Docket Entries

  • 12/06/2019
  • Conference: Case Management - Judicial Officer: Walsh, Brian C; Hearing Time: 10:00 AM; Comment: COMPLIANCE HEARING FOLLOWING FINAL APPROVAL OF CLASS ACTION SETTLEMENT. At least 10 court days before the hearing, class counsel and the settlement administrator shall submit a summary accounting of the net settlement fund identifying distributions made as ordered herein, the number and value of any uncashed checks, amounts remitted to Defendant, the status of any unresolved issues, and any other matters appropriate to bring to this Court's attention. Counsel shall also submit an amended judgment as described in Code of Civil Procedure section 384, subdivision (b); upon filing and entry, the Clerk shall transmit a copy of the Amended Judgment to the Judicial Council. Counsel may appear at the compliance hearing telephonically.

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  • 04/24/2019
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  • Stipulation and Order - Stipulation and Order to Modify Final Approval of Class Settlement: Comment: Stipulation & Order to Modify Final Approval of Class Settlement - signed/BCW

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  • 04/19/2019
  • View Court Documents
  • Motion: Final Fairness Hearing - Motion Final Approval of Class Action Settlement HRG 4-19-19: Memorandum Points and Authorities HRG 4-19-19: Norman Blumenthal Declaration HRG 4-19-19: Stephanie Molina Declaration HRG 4-19-19: Matthew Sotile Declaration HRG 4-19-19: Proposed Order HRG 4-19-19: Proof of Service HRG 4-19-19: Motion Attorney's Fees, Costs and Service Award HRG 4-19-19: Memorandum Points and Authorities HRG 4-19-19: Kyle Nordrehaug Declaration HRG 4-19-19: Proof of Service HRG 4-19-19: Order: Stipulation and Order to Modify Final Approval of Class Settlement: Judicial Officer: Walsh, Brian C; Hearing Time: 9:00 AM; Result: Heard: Granted

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  • 04/19/2019
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  • Stipulation - Stipulation: Comment: and order to modify final approval of class settlement

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  • 04/19/2019
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  • Order - Order: Comment: OAH 041919 MTN FOR FINAL APPROVAL/ATTY FEES

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  • 04/19/2019
  • Minute Order

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  • 03/27/2019
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  • Proof of Service - Proof of Service HRG 4-19-19: Comment: HRG 4/19/19

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  • 03/27/2019
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  • Declaration - Kyle Nordrehaug Declaration HRG 4-19-19: Comment: Kyle Nordrehaug HRG 4/19/19

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  • 03/27/2019
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  • Memorandum: Points and Authorities - Memorandum Points and Authorities HRG 4-19-19: Comment: HRG 4/19/19

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  • 03/27/2019
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  • Notice of Hearing (no fee) - Motion Attorney's Fees, Costs and Service Award HRG 4-19-19: Comment: HRG 4/19/19 Notice of Motion and Motion for Award of Attorneys' Fees, Costs and Service Award

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22 More Docket Entries
  • 04/27/2018
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  • Statement: Case Management Conference - Sottile - Jt CMC Stmt.pdf: Comment: Joint Case Management Statement

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  • 04/23/2018
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  • Proof of Service - p-pos-FAC.pdf: Comment: Proof of Service

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  • 03/29/2018
  • Notice: Appearance - Comment: Notice of Appearance

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  • 03/22/2018
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  • Complaint: Amended - Complaint First Amended: Comment: First Amended Class Action Complaint

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  • 03/01/2018
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  • Proof of Service: Summons DLR (Civil) - Proof of Service Summons DLR (Civil):

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  • 01/22/2018
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  • Order: Deeming Case Complex - Order Deeming Case Complex & Staying Discovery: Guidelines for Motions relating to Class Certification: Comment: and Staying Discovery and Responsive Pleading Deadline signed/BCW

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  • 01/11/2018
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  • Notice - Civil Lawsuit Notice: ADR CV-5003: Comment: Civil Lawsuit Notice (1st CMC set for 5/4/18 at 10am in D1; assigned to Hon. Brian C. Walsh)

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  • 01/10/2018
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  • Civil Case Cover Sheet - Civil Cover Sheet.pdf: Comment: COMPLEX

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  • 01/10/2018
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  • Summons: Issued/Filed - Summons Issued Filed:

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  • 01/10/2018
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  • Complaint (Unlimited) (Fee Applies) - Complaint (Unlimited) (Fee Applies):

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Complaint Information

E-FILED

1/10/2018 3:56 PM

BLUMENTHAL NORDREHAUG BHOWMIK DE BLOR® KPpCouM

Norman B. Blumenthal (State Bar #068687) uperior Court of CA, Kyle R. Nordrehaug (State Bar #205975) County of Santa Clara Aparajit Bhowmik (State Bar #248066) 18CV321677

2255 Calle Clara Reviewed By: R. Walker

La Jolla, CA 92037 Telephone: (858)551-1223 Facsimile: (858) 551-1232 Website: www.bamlawca.com

Attorneys for Plaintiff

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

MATTHEW SOTTILE, an individual, on | Case No. m behalf of himself, and on behalf of all

persons similarly situated, CLASS ACTION COMPLAINT FOR: Plaintiffs, 1. UNFAIR COMPETITION IN VIOLATION OF CAL. BUS. & PROF. VS. CODE §§ 17200, et seq.;

2. FAILURE TO PROVIDE REQUIRED

MOTION RECRUITMENT PARTNERS | MEAL PERIODS IN VIOLATION OF

LLC, a Limited Liability Company; and CAL. LAB. CODE §§ 226.7 & 512 AND

Does 1 through 50, Inclusive, THE APPLICABLE IWC WAGE ORDER; Defendants. 3. FAILURE TO PROVIDE REQUIRED

REST PERIODS IN VIOLATION OF

CAL. LAB. CODE §§ 226.7 & 512 AND

THE APPLICABLE IWC WAGE

ORDER;

4. FAILURE TO PROVIDE

ACCURATE ITEMIZED STATEMENTS

IN VIOLATION OF CAL. LAB. CODE § 226;

5. FAILURE TO REIMBURSE

EMPLOYEES FOR REQUIRED EXPENSES IN VIOLATION OF

CAL. LAB. CODE § 2802; and,

6. FAILURE TO PROVIDE WAGES WHEN DUE IN VIOLATION OF CAL. LAB. CODE §§ 201, 202 AND 203.

DEMAND FOR A JURY TRIAL

Plaintiff Matthew Sottile (“PLAINTIFF”), an individual on behalf of himself and all other similarly situated current and former employees, alleges on information and belief, except

for his own acts and knowledge which are based on personal knowledge, the following:

THE PARTIES

1. Defendant Motion Recruitment Partners LLC (“DEFENDANT™) 1s a limited liability company and at all relevant times mentioned herein conducted and continues to conduct substantial and regular business throughout the State of California.

2. DEFENDANT, founded 1n 1989, is a parent and holding company to a group of recruitment solution providers. Jobspring Partners and Workbridge Associates both provide IT- specialized staffing for contract and permanent recruiting needs and Sevenstep provides global recruitment outsourcing services (RPO) across a broad range of industries for Permanent and Contract labor.

3. PLAINTIFF was employed by DEFENDANT 1n California as a Practice Manager from April of 2015 to July of 2017 and was at all times during his employment with DEFENDANT entitled to the legally required off-duty meal periods. PLAINTIFF was also required to be paid for his rest periods as DEFENDANT paid PLAINTIFF only commission wages and/or a draw for certain pay periods. DEFENDANT did not separately compensate PLAINTIFF for his rest periods.

4. Aspart of their business, DEFENDANT employs a fleet of nonexempt (from meal and rest periods) commission based pay employees who are paid commissions only for certain pay periods.

5. PLAINTIFF brings this Class Action on behalf of himself and a California class, defined as all individuals who are or previously were employed by DEFENDANT in California as nonexempt commission based pay employees (the “CALIFORNIA CLASS”) at any time during the period beginning four (4) years prior to the filing of this Complaint and ending on the date as determined by the Court (the “CALIFORNIA CLASS PERIOD”). The

amount in controversy for the aggregate claim of CALIFORNIA CLASS Members 1s under five million dollars ($5,000,000.00).

6. PLAINTIFF brings this Class Action on behalf of himself and a CALIFORNIA CLASS 1n order to fully compensate the CALIFORNIA CLASS for their losses incurred during the CALIFORNIA CLASS PERIOD caused by DEFENDANT’s uniform policy and practice which failed to lawfully compensate these employees for all their missed meal breaks and rest periods. DEFENDANT’s uniform policy and practice alleged herein 1s an unlawful, unfair and deceptive business practice whereby retained and continues to retain wages due PLAINTIFF and the other members of the CALIFORNIA CLASS. PLAINTIFF and the other members of the CALIFORNIA CLASS seek an injunction enjoining such conduct by DEFENDANT in the future, relief for the named PLAINTIFF and the other members of the CALIFORNIA CLASS who have been economically injured by DEFENDANT’s past and current unlawful conduct, and all other appropriate legal and equitable relief.

7. The true names and capacities, whether individual, corporate, subsidiary, partnership, associate or otherwise of defendants DOES 1 through 50, inclusive, are presently unknown to PLAINTIFF who therefore sues these Defendants by such fictitious names pursuant to Cal. Civ. Proc. Code § 474. PLAINTIFF will seek leave to amend this Complaint to allege the true names and capacities of Does 1 through 50, inclusive, when they are ascertained. PLAINTIFF 1s informed and believes, and based upon that information and belief alleges, that the Defendants named in this Complaint, including DOES 1 through 50, inclusive, are responsible in some manner for one or more of the events and happenings that proximately caused the injuries and damages heremafter alleged.

8. The agents, servants and/or employees of the Defendants and each of them acting on behalf of the Defendants acted within the course and scope of his, her or its authority as the agent, servant and/or employee of the Defendants, and personally participated in the conduct alleged herein on behalf of the Defendants with respect to the conduct alleged herein. Consequently, the acts of each Defendant are legally attributable to the other Defendants and all Defendants are jointly and severally liable to PLAINTIFF and the other members of the

CALIFORNIA CLASS, for the loss sustained as a proximate result of the conduct of the Defendants’ agents, servants and/or employees.

THE CONDUCT

9. During the CALIFORNIA CLASS PERIOD, DEFENDANT failed to provide all the legally required off-duty meal breaks to PLAINTIFF and the other CALIFORNIA CLASS Members as required by the applicable Wage Order and Labor Code. The nature of the work performed by PLAINTIFF and CALIFORNIA CLASS MEMBERS did not prevent these employees from being relieved of all of their duties for the legally required off-duty meal periods. As a result of their rigorous work schedules, PLAINTIFF and other CALIFORNIA CLASS Members were often not fully relieved of duty by DEFENDANT for their meal periods. Even though PLAINTIFF and other CALIFORNIA CLASS Members were not always able to take their meal periods, DEFENDANT required these employees to record fictitious meal breaks to avoid paying PLAINTIFF and other CALIFORNIA CLASS Members the premiums owed to the under California law. As a result, PLAINTIFF and other members of the CALIFORNIA CLASS therefore forfeited meal breaks without additional compensation and in accordance with DEFENDANT s strict corporate policy and practice.

10. Further, from time to time, DEFENDANT failed to provide PLAINTIFF and CALIFORNIA CLASS Members with a second off-duty meal period each workday in which these employees were required by DEFENDANT to work ten (10) hours of work. As a result, DEFENDANT’s failure to provide PLAINTIFF and the CALIFORNIA CLASS Members with legally required meal breaks is evidenced by DEFENDANT’s business records.

11. Inaddition, because of DEFENDANT’s commission pay plan described herein, DEFENDANT failed to compensate PLAINTIFF and CALIFORNIA CLASS Members for their rest periods as required by the applicable Wage Order and Labor Code. DEFENDANT did not have a policy or practice which paid for off-duty rest periods to PLAINTIFF and the other CALIFORNIA CLASS Members. As aresult, DEFENDANT s failure to provide PLAINTIFF and the CALIFORNIA CLASS Members with all the legally required paid rest periods is evidenced by DEFENDANT s businessrecords. PLAINTIFF and other CALIFORNIA CLASS Members were also required to work 1n excess of four (4) hours without being provided ten (10) minute rest periods. Further, these employees were denied their first rest periods of at least ten (10) minutes for some shifts worked of at least two (2) to four (4) hours, a first and second rest period of at least ten (10) minutes for some shifts worked of between six (6) and eight (8) hours, and a first, second and third rest period of at least ten (10) minutes for some shifts worked of ten (10) hours or more. PLAINTIFF and other CALIFORNIA CLASS Members were also not provided with one hour wages in lieu thereof. As a result of their rigorous work schedules, PLAINTIFF and other CALIFORNIA CLASS Members were periodically denied their proper rest periods by DEFENDANT and DEFENDANT’s managers.

12. From time to time, when DEFENDANT did not accurately record PLAINTIFF’s and other CALIFORNIA CLASS Members’ missed meal and rest breaks, the wage statements issued to PLAINTIFF and other CALIFORNIA CLASS Members by DEFENDANT violated California law, and 1n particular, Labor Code Section 226(a). Aside from the violations listed above 1n this paragraph, DEFENDANT failed to issue to PLAINTIFF an itemized wage statement that lists all the requirements under California Labor Code 226 ef seq.

13. DEFENDANT as a matter of corporate policy, practice and procedure, intentionally, knowingly and systematically failed to reimburse and indemnify the PLAINTIFF and the other CALIFORNIA CLASS Members for required business expenses incurred by the PLAINTIFF and other CALIFORNIA CLASS Members 1n direct consequence of discharging their duties on behalf of DEFENDANT. Under California Labor Code Section 2802, employers are required to indemnify employees for all expenses incurred in the course and scope of their employment. Cal. Lab. Code § 2802 expressly states that "an employer shall indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties,obedience to the directions of the employer, even though unlawful, unless the employee, at the time of obeying the directions, believed them to be unlawful."

14. In the course of their employment PLAINTIFF and other CALIFORNIA CLASS Members as a business expense, were required by DEFENDANT to use their personal cell phones as a result of and in furtherance of their job duties as employees for DEFENDANT but were not reitmbursed or indemnified by DEFENDANT for the cost associated with the use of their personal cell phones. As a result, in the course of their employment with DEFENDANT, PLAINTIFF and other members of the CALIFORNIA CLASS incurred unreimbursed business expenses which included, but were not limited to, costs related to the use of their personal cell phones on behalf of and for the benefit of DEFENDANT.

15. In violation of the applicable sections of the California Labor Code and the requirements of the Industrial Welfare Commission ("IWC") Wage Order, DEFENDANT as amatter of company policy, practice and procedure, intentionally, knowingly and systematically failed to compensate PLAINTIFF and the other members of the CALIFORNIA CLASS for missed meal and rest periods. This uniform policy and practice of DEFENDANT was intended to purposefully avoid the payment for all time worked as required by California law which allowed DEFENDANT to 1llegally profit and gain an unfair advantage over competitors who complied with the law. To the extent equitable tolling operates to toll claims by the CALIFORNIA CLASS against DEFENDANT, the CALIFORNIA CLASS PERIOD should be adjusted accordingly.

16. By reason of this uniform conduct applicable to PLAINTIFF and all CALIFORNIA CLASS Members, DEFENDANT committed acts of unfair competition in violation of the California Unfair Competition Law, Cal. Bus. & Prof. Code §§ 17200, et seq. (the “UCL”), by engaging in a company-wide policy and procedure which failed to accurately calculate and record all missed meal breaks and failed to pay PLAINTIFF and CALIFORNIA CLASS Members for rest periods as required by California law. The proper recording of these employees’ missed meal and rest breaks 1s the DEFENDANT’s burden. As a result of DEFENDANT’s intentional disregard of the obligation to meet this burden, DEFENDANT failed to properly calculate and/or pay all required compensation for work performed by the members of the CALIFORNIA CLASS and violates the California Labor Code and regulations promulgated thereunder as herein alleged.

17. Specifically as to PLAINTIFF, DEFENDANT failed to provide all the legally required off-duty meal breaks to him and paid rest periods to him as required by the applicable Wage Order and Labor Code. DEFENDANT failed to compensate PLAINTIFF for his missed meal and rest breaks. The nature of the work performed by PLAINTIFF did not prevent him from being relieved of all his duties for the legally required off-duty meal periods. Further, DEFENDANT failed to provide PLAINTIFF with a second off-duty meal period each workday in which PLAINTIFF was required by DEFENDANT to work ten (10) hours of work. As a result, DEFENDANT’S failure to provide PLAINTIFF with the legally required second off-duty meal period 1s evidenced by DEFENDANT’s business records. From time to time, and as a result of DEFENDANT not accurately recording all missed meal and rest periods, the wage statements 1ssued to PLAINTIFF by DEFENDANT violated California law, and 1n particular, Labor Code Section 226(a). Additionally, as a Practice Manager for DEFENDANT, PLAINTIFF developed and ensured attainment of sales and was to receive commission compensation for the services and/or products sold by him. DEFENDANT’s compensation plan unlawfully failed to PLAINTIFF commission wages for earned commissions on all completed sales. The forfeiture of earned commissions i1s unlawful because PLAINTIFF performed all the acts required of PLAINTIFF to be performed prior to termination to earn the commission. As a result, DEFENDANT failed to pay PLAINTIFF compensation for earned commissions for completed sales made for DEFENDANT by PLAINTIFF prior to termination. To date, DEFENDANT has not fully paid PLAINTIFF the compensation still owed to him or any penalty wages owed to him under Cal. Lab. Code § 203. The amount in controversy for PLAINTIFF

individually does not exceed the sum or value of $75,000.

JURISDICTION AND VENUE

18. This Court has jurisdiction over this Action pursuant to California Code of Civil Procedure, Section 410.10 and California Business & Professions Code, Section 17203. This action 1s brought as a Class Action on behalf of PLAINTIFF and similarly situated employees of DEFENDANT pursuant to Cal. Code of Civ. Proc. § 382.

19. Venue is proper in this Court pursuant to California Code of Civil Procedure, Sections 395 and 395.5, because DEFENDANT (1) currently maintains and at all relevant times maintained offices and facilities in this County and/or conducts substantial business in this County, and (1) committed the wrongful conduct herein alleged in this County against members

of the CALIFORNIA CLASS and CALIFORNIA LABOR SUB-CLASS.

THE CALIFORNIA CLASS

20. PLAINTIFF brings the First Cause of Action for Unfair, Unlawful and Deceptive Business Practices pursuant to Cal. Bus. & Prof. Code §§ 17200, et seq. (the "UCL") as a Class Action, pursuant to Cal. Code of Civ. Proc. § 382, on behalf of a California class, defined as all individuals who are or previously were employed by DEFENDANT in California as nonexempt commission based pay employees (the “CALIFORNIA CLASS”) at any time during the period beginning four (4) years prior to the filing of this Complaint and ending on the date as determined by the Court (the “CALIFORNIA CLASS PERIOD”). The amount in controversy for the aggregate claim of CALIFORNIA CLASS Members 1s under five million dollars ($5,000,000.00).

21. To the extent equitable tolling operates to toll claims by the CALIFORNIA CLASS against DEFENDANT, the CALIFORNIA CLASS PERIOD should be adjusted accordingly.

22. DEFENDANT, as a matter of company policy, practice and procedure, and in violation of the applicable Labor Code, Industrial Welfare Commission (“IWC”) Wage Order requirements, and the applicable provisions of California law, intentionally, knowingly, and wilfully, engaged 1n a practice whereby DEFENDANT systematically failed to correctly record missed meal and rest breaks and all time worked by PLAINTIFF and the other members of the CALIFORNIA CLASS, even though DEFENDANT enjoyed the benefit of this work, required employees to perform this work and permitted or suffered to permit this work.

23. DEFENDANT has the legal burden to establish that each and every CALIFORNIA CLASS Member was paid the correct wages for all time worked. The DEFENDANT, however, as a matter of uniform and systematic policy and procedure failed to have in place during the CALIFORNIA CLASS PERIOD and still fails to have in place a policy or practice to ensure that each and every CALIFORNIA CLASS Member is paid for all missed meal and rest breaks, so as to satisfy their burden. This common business practice applicable to each and every CALIFORNIA CLASS Member can be adjudicated on a class-wide basis as unlawful, unfair, and/or deceptive under Cal. Business & Professions Code §§ 17200, et seq. (the “UCL”) as causation, damages, and reliance are not elements of this claim.

24. Atno time during the CALIFORNIA CLASS PERIOD was the compensation for any member of the CALIFORNIA CLASS properly recalculated so as to compensate the employee for all missed meal breaks, as required by California Labor Code.

25. The CALIFORNIA CLASS, is so numerous that joinder of all CALIFORNIA CLASS Members 1s impracticable.

26. DEFENDANT uniformly violated the rights of the CALIFORNIA CLASS under California law by:

(a) Committing an act of unfair competition in violation of the California Unfair Competition Laws, Cal. Bus. & Prof. Code §§ 17200, et seq., by failing to provide PLAINTIFF and the other members of the CALIFORNIA CLASS with all legally required off-duty, uninterrupted thirty (30) minute meal breaks and the legally required paid rest breaks; and,

(b) Committing an act of unfair competition in violation of the California Unfair Competition Laws, Cal. Bus. & Prof. Code §§ 17200 et seq., by violating Cal. Lab. Code § 2802 by failing to retmburse PLAINTIFF and the CALIFORNIA CLASS members with necessary expenses incurred in the discharge of their job duties.

27. This Class Action meets the statutory prerequisites for the maintenance of a Class Action as set forth in Cal. Code of Civ. Proc. § 382, in that:

(a) The persons who comprise the CALIFORNIA CLASS are so numerous that the joinder of all such persons is impracticable and the disposition of their claims as a class will benefit the parties and the Court;

(b) Nearly all factual, legal, statutory, declaratory and injunctive relief 1ssues that are raised in this Complaint are common to the CALIFORNIA CLASS will apply uniformly to every member of the CALIFORNIA CLASS;

(c) The claims of the representative PLAINTIFF are typical of the claims of each member of the CALIFORNIA CLASS. PLAINTIFF, like all the other members of the CALIFORNIA CLASS, was a commission based pay employee who was subjected to the DEFENDANT’s deceptive practice and policy which failed to provide the legally required meal and rest periods to the CALIFORNIA CLASS and thereby systematically underpays compensation to PLAINTIFF and CALIFORNIA CLASS. PLAINTIFF sustained economic injury as a result of DEFENDANT’s employment practices. = PLAINTIFF and the members of the CALIFORNIA CLASS were and are similarly or identically harmed by the same unlawful, deceptive, unfair and pervasive pattern of misconduct engaged in by DEFENDANT; and,

(d) The representative PLAINTIFF will fairly and adequately represent and protect the interest of the CALIFORNIA CLASS, and has retained counsel who are competent and experienced in Class Action litigation. There are no material conflicts between the claims of the representative PLAINTIFF and the members of the CALIFORNIA CLASS that would make class certification inappropriate. Counsel for the CALIFORNIA CLASS will vigorously assert the claims of all CALIFORNIA CLASS Members.

28. Inaddition to meeting the statutory prerequisites to a Class Action, this action 1s properly maintained as a Class Action pursuant to Cal. Code of Civ. Proc. § 382, in that:

(a) Without class certification and determination of declaratory, injunctive, (b)

(c)

statutory and other legal questions within the class format, prosecution of

separate actions by individual members of the CALIFORNIA CLASS will

create the risk of:

D

Inconsistent or varying adjudications with respect to individual members of the CALIFORNIA CLASS which would establish incompatible standards of conduct for the parties opposing the CALIFORNIA CLASS; and/or,

Adjudication with respect to individual members of the CALIFORNIA CLASS which would as a practical matter be dispositive of interests of the other members not party to the adjudication or substantially impair or impede their ability to

protect their interests.

The parties opposing the CALIFORNIA CLASS have acted or refused to

act on grounds generally applicable to the CALIFORNIA CLASS, making

appropriate class-wide relief with respect to the CALIFORNIA CLASS

as a whole in that DEFENDANT uniformly failed to pay all wages due to members of the CALIFORNIA CLASS as required by law;

D

With respect to the First Cause of Action, the final relief on behalf of the CALIFORNIA CLASS sought does not relate exclusively to restitution because through this claim PLAINTIFF seeks declaratory relief holding that the DEFENDANT’s policy and practices constitute unfair competition, along with declaratory relief, injunctive relief, and incidental equitable relief as may be necessary to prevent and remedy the conduct declared to constitute

unfair competition;

Common questions of law and fact exist as to the members of the

CALIFORNIA CLASS, with respect to the practices and violations of

California law as listed above, and predominate over any question affecting only individual CALIFORNIA CLASS Members, and a Class

Action 1s superior to other available methods for the fair and efficient

adjudication of the controversy, including consideration of:

D

The interests of the members of the CALIFORNIA CLASS i1n individually controlling the prosecution or defense of separate actions 1n that the substantial expense of individual actions will be avolded to recover the relatively small amount of economic losses sustained by the individual CALIFORNIA CLASS Members when compared to the substantial expense and burden of individual prosecution of this litigation;

Class certification will obviate the need for unduly duplicative

litigation that would create the risk of:

A. Inconsistent or varying adjudications with respect to individual members of the CALIFORNIA CLASS, which would establish incompatible standards of conduct for the DEFENDANT; and/or,

B. Adjudications with respect to individual members of the CALIFORNIA CLASS would as a practical matter be dispositive of the interests of the other members not parties to the adjudication or substantially impair or impede their ability to protect their interests;

In the context of wage litigation because a substantial number of individual CALIFORNIA CLASS Members will avoid asserting their legal rights out of fear of retaliation by DEFENDANT, which may adversely affect an individual’s job with DEFENDANT or with a subsequent employer, the Class Action 1s the only means to assert their claims through a representative; and,

A class action 1s superior to other available methods for the fair and efficient adjudication of this litigation because class treatment will obviate the need for unduly and unnecessary duplicative litigation that is likely to result in the absence of certification of

this action pursuant to Cal. Code of Civ. Proc. § 382.

29. This Court should permit this action to be maintained as a Class Action pursuant

to Cal. Code of Civ. Proc. § 382 because:

(a)

(b)

(d)

(e)

The questions of law and fact common to the CALIFORNIA CLASS predominate over any question affecting only individual CALIFORNIA CLASS Members because the DEFENDANT’s employment practices are uniform and systematically applied with respect to the CALIFORNIA CLASS;

A Class Action 1s superior to any other available method for the fair and efficient adjudication of the claims of the members of the CALIFORNIA CLASS because in the context of employment litigation a substantial number of individual CALIFORNIA CLASS Members will avoid asserting their rights individually out of fear of retaliation or adverse impact on their employment;

The members of the CALIFORNIA CLASS are so numerous that it 1s impractical to bring all members of the CALIFORNIA CLASS before the Court;

PLAINTIFF, and the other CALIFORNIA CLASS Members, will not be able to obtain effective and economic legal redress unless the action 1s maintained as a Class Action;

There 1s a community of interest in obtaining appropriate legal and equitable relief for the acts of unfair competition, statutory violations and other improprieties, and in obtaining adequate compensation for the damages and injuries which DEFENDANT’s actions have inflicted upon the CALIFORNIA CLASS; (f) There 1s a community of interest in ensuring that the combined assets of DEFENDANT are sufficient to adequately compensate the members of the CALIFORNIA CLASS for the injuries sustained;

(g0 DEFENDANT has acted or refused to act on grounds generally applicable to the CALIFORNIA CLASS, thereby making final class-wide relief appropriate with respect to the CALIFORNIA CLASS as a whole;

(h) The members of the CALIFORNIA CLASS are readily ascertainable from the business records of DEFENDANT; and,

(1) Class treatment provides manageable judicial treatment calculated to bring a efficient and rapid conclusion to all litigation of all wage and hour related claims arising out of the conduct of DEFENDANT as to the members of the CALIFORNIA CLASS.

30. DEFENDANT maintains records from which the Court can ascertain and identify by job title each of DEFENDANT’s employees who as have been systematically, intentionally and uniformly subjected to DEFENDANT’s company policy, practices and procedures as herein alleged. PLAINTIFF will seek leave to amend the Complaint to include any additional job titles

of similarly situated employees when they have been identified.

THE CALIFORNIA LABOR SUB-CLASS

31. PLAINTIFF further bring the Second, Third, Fourth, Fifth and Sixth Causes of Action on behalf of a California sub-class, defined as all members of the CALIFORNIA CLASS who are or previously were employed by DEFENDANT 1n California as nonexempt commission based pay employees (the “CALIFORNIA LABOR SUB-CLASS”) at any time during the period three (3) years prior to the filing of the complaint and ending on the date as determined by the Court (the “CALIFORNIA LABOR SUB-CLASS PERIOD”) pursuant to Cal. Code of Civ. Proc. § 382. The amount in controversy for the aggregate claim of

CALIFORNIA LABOR SUB-CLASS Members is under five million dollars ($5,000,000.00). 32. DEFENDANT, as a matter of company policy, practice and procedure, and in violation of the applicable Labor Code, Industrial Weltare Commission (“IWC”) Wage Order requirements, and the applicable provisions of California law, intentionally, knowingly, and wilfully, engaged 1n a practice whereby DEFENDANT failed to correctly calculate premiums due for missed meal and rest periods by PLAINTIFF and the other members of the CALIFORNIA LABOR SUB-CLASS, even though DEFENDANT enjoyed the benefit of this work, required employees to perform this work and permitted or suffered to permit this work.

33. DEFENDANT maintains records from which the Court can ascertain and identify by name and job title, each of DEFENDANT’s employees who have been systematically, intentionally and uniformly subjected to DEFENDANT’s company policy, practices and procedures as herein alleged. PLAINTIFF will seek leave to amend the complaint to include any additional job titles of similarly situated employees when they have been 1dentified.

34. The CALIFORNIA LABOR SUB-CLASS i1s so numerous that joinder of all CALIFORNIA LABOR SUB-CLASS Members 1s impracticable.

35. Common questions of law and fact exist as to members of the CALIFORNIA LABOR SUB-CLASS, including, but not limited, to the following:

(a) Whether DEFENDANT unlawfully failed to correctly calculate and pay compensation due to members of the CALIFORNIA LABOR SUB- CLASS for missed meal and rest breaks in violation of the California Labor Code and California regulations and the applicable California Wage Order;

(b) Whether DEFENDANT failed to provide PLAINTIFF and the other members of the CALIFORNIA LABOR SUB-CLASS with accurate itemized wage statements;

(c) Whether DEFENDANT has engaged in unfair competition by the above-listed conduct;

(d) The proper measure of damages and penalties owed to the members of the

CALIFORNIA LABOR SUB-CLASS; and, (e)

Whether DEFENDANT’s conduct was willful.

36. DEFENDANT violated the rights of the CALIFORNIA LABOR SUB-CLASS

under California law by:

(a)

(b)

(c)

(d)

Violating Cal. Lab. Code §§ 226.7 and 512, by failing to provide PLAINTIFF and the other members of the CALIFORNIA CLASS with all legally required off-duty, uninterrupted thirty (30) minute meal breaks and the legally required paid rest breaks;

Violating Cal. Lab. Code § 226, by failing to provide PLAINTIFF and the members of the CALIFORNIA LABOR SUB-CLASS with an accurate itemized statement in writing showing the corresponding correct amount of wages earned by the employee, the total amount of hours worked, and the correct legal entity that was their employer;

Violating Cal. Lab. Code § 2802 by failing to reimburse PLAINTIFF and the CALIFORNIA CLASS members with necessary expenses incurred in the discharge of their job duties; and,

Violating Cal. Lab. Code §§ 201, 202 and/or 203, which provides that when an employee 1s discharged or quits from employment, the employer must pay the employee all wages due without abatement, by failing to tender full payment and/or restitution of wages owed or in the manner required by California law to the members of the CALIFORNIA LABOR SUB-CLASS who have terminated their employment

37. This Class Action meets the statutory prerequisites for the maintenance of a Class

Action as set forth in Cal. Code of Civ. Proc. § 382, in that:

(a)

(b)

The persons who comprise the CALIFORNIA LABOR SUB-CLASS are so numerous that the joinder of all CALIFORNIA LABOR SUB-CLASS Members 1s impracticable and the disposition of their claims as a class will benefit the parties and the Court;

Nearly all factual, legal, statutory, declaratory and injunctive relief issues (c)

(d)

that are raised in this Complaint are common to the CALIFORNIA LABOR SUB-CLASS and will apply uniformly to every member of the CALIFORNIA LABOR SUB-CLASS;

The claims of the representative PLAINTIFF are typical of the claims of each member of the CALIFORNIA LABOR SUB-CLASS. PLAINTIFF, like all the other members of the CALIFORNIA LABOR SUB-CLASS, was a Salesperson who was subjected to the DEFENDANT s practice and policy as described herein. PLAINTIFF sustained economic injury as a result of DEFENDANT’s employment practices. PLAINTIFF and the members of the CALIFORNIA LABOR SUB-CLASS were and are similarly or identically harmed by the same unlawful, deceptive, unfair and pervasive pattern of misconduct engaged in by DEFENDANT; and, The representative PLAINTIFF will fairly and adequately represent and protect the interest of the CALIFORNIA LABOR SUB-CLASS, and have retained counsel who are competent and experienced in Class Action litigation. There are no material conflicts between the claims of the representative PLAINTIFF and the members of the CALIFORNIA LABOR SUB-CLASS that would make class certification inappropriate. Counsel for the CALIFORNIA LABOR SUB-CLASS will vigorously assert the claims of all CALIFORNIA LABOR SUB-CLASS Members.

38. Inaddition to meeting the statutory prerequisites to a Class Action, this action 1s

properly maintained as a Class Action pursuant to Cal. Code of Civ. Proc. § 382, in that:

(a)

Without class certification and determination of declaratory, injunctive, statutory and other legal questions within the class format, prosecution of separate actions by individual members of the CALIFORNIA LABOR SUB-CLASS will create the risk of:

1) Inconsistent or varying adjudications with respect to individual

members of the CALIFORNIA LABOR SUB-CLASS which (b)

(c)

would establish incompatible standards of conduct for the parties opposing the CALIFORNIA LABOR SUB-CLASS; or,

2) Adjudication with respect to individual members of the CALIFORNIA LABOR SUB-CLASS which would as a practical matter be dispositive of interests of the other members not party to the adjudication or substantially impair or impede their ability to protect their interests.

The parties opposing the CALIFORNIA LABOR SUB-CLASS have acted

or refused to act on grounds generally applicable to the CALIFORNIA

LABOR SUB-CLASS, making appropriate class-wide relief with respect

to the CALIFORNIA LABOR SUB-CLASS as a whole in that

DEFENDANT uniformly fails to pay all wages due. Including the correct

wages for all time worked by the members of the CALIFORNIA LABOR

SUB-CLASS as required by law;

Common questions of law and fact predominate as to the members of the

CALIFORNIA LABOR SUB-CLASS, with respect to the practices and

violations of California Law as listed above, and predominate over any

question affecting only individual CALIFORNIA LABOR SUB-CLASS

Members, and a Class Action 1s superior to other available methods for

the fair and efficient adjudication of the controversy, including

consideration of:

1) The interests of the members of the CALIFORNIA LABOR SUB- CLASS 1n individually controlling the prosecution or defense of separate actions in that the substantial expense of individual actions will be avoided to recover the relatively small amount of economic losses sustained by the individual CALIFORNIA LABOR SUB-CLASS Members when compared to the substantial

expense and burden of individual prosecution of this litigation; Class certification will obviate the need for unduly duplicative

litigation that would create the risk of:

A. Inconsistent or varying adjudications with respect to individual members of the CALIFORNIA LABOR SUB- CLASS, which would establish incompatible standards of conduct for the DEFENDANT:; and/or,

B. Adjudications with respect to individual members of the CALIFORNIA LABOR SUB-CLASS would as a practical matter be dispositive of the interests of the other members not parties to the adjudication or substantially impair or impede their ability to protect their interests;

In the context of wage litigation because a substantial number of

individual CALIFORNIA LABOR SUB-CLASS Members will

avold asserting their legal rights out of fear of retaliation by

DEFENDANT, which may adversely affect an individual’s job

with DEFENDANT or with a subsequent employer, the Class

Action 1s the only means to assert their claims through a

representative; and,

A class action 1s superior to other available methods for the fair

and efficient adjudication of this litigation because class treatment

will obviate the need for unduly and unnecessary duplicative litigation that 1s likely to result in the absence of certification of

this action pursuant to Cal. Code of Civ. Proc. § 382.

39. This Court should permit this action to be maintained as a Class Action pursuant

to Cal. Code of Civ. Proc. § 382 because:

(a)

The questions of law and fact common to the CALIFORNIA LABOR

SUB-CLASS predominate over any question affecting only individual CALIFORNIA LABOR SUB-CLASS Members; (b)

(e)

(2)

(h)

A Class Action 1s superior to any other available method for the fair and efficient adjudication of the claims of the members of the CALIFORNIA LABOR SUB-CLASS because 1n the context of employment litigation a substantial number of individual CALIFORNIA LABOR SUB-CLASS Members will avoid asserting their rights individually out of fear of retaliation or adverse impact on their employment;

The members of the CALIFORNIA LABOR SUB-CLASS are so numerous that it 1s impractical to bring all members of the CALIFORNIA LABOR SUB-CLASS before the Court;

PLAINTIFF, and the other CALIFORNIA LABOR SUB-CLASS Members, will not be able to obtain effective and economic legal redress unless the action 1s maintained as a Class Action;

There 1s a community of interest in obtaining appropriate legal and equitable relief for the acts of unfair competition, statutory violations and other improprieties, and 1n obtaining adequate compensation for the damages and injuries which DEFENDANT’s actions have inflicted upon the CALIFORNIA LABOR SUB-CLASS;

There 1s a community of interest in ensuring that the combined assets of DEFENDANT are sufficient to adequately compensate the members of the CALIFORNIA LABOR SUB-CLASS for the injuries sustained; DEFENDANT has acted or refused to act on grounds generally applicable to the CALIFORNIA LABOR SUB-CLASS, thereby making final class- wide relief appropriate with respect to the CALIFORNIA LABOR SUB- CLASS as a whole;

The members of the CALIFORNIA LABOR SUB-CLASS are readily ascertainable from the business records of DEFENDANT; and,

Class treatment provides manageable judicial treatment calculated to bring

a efficient and rapid conclusion to all litigation of all wage and hour related claims arising out of the conduct of DEFENDANT as to the members of the CALIFORNIA LABOR SUB-CLASS.

FIRST CAUSE OF ACTION

For Unlawful Business Practices [Cal. Bus. And Prof. Code §§ 17200, et seq.] (By PLAINTIFF and the CALIFORNIA CLASS and Against All Defendants)

40. PLAINTIFF, and the other members of the CALIFORNIA CLASS, reallege and incorporate by this reference, as though fully set forth herein, the prior paragraphs of this Complaint.

41. DEFENDANT 1s a “person” as that term is defined under Cal. Bus. and Prof. Code § 17021.

42. California Business & Professions Code §§ 17200, et seq. (the “UCL”’) defines unfair competition as any unlawful, unfair, or fraudulent business act or practice. Section 17203 authorizes injunctive, declaratory, and/or other equitable relief with respect to unfair competition as follows:

Any person who engages, has engaged, or proposes to engage in unfair

competition may be enjoined in any court of competent jurisdiction. The court

may make such orders or judgments, including the appointment of a receiver, as

may be necessary to prevent the use or employment by any person of any practice

which constitutes unfair competition, as defined in this chapter, or as may be

necessary to restore to any person in interest any money or property, real or

personal, which may have been acquired by means of such unfair competition. Cal. Bus. & Prof. Code § 17203.

43. By the conduct alleged herein, DEFENDANT has engaged and continues to engage 1n a business practice which violates California law, including but not limited to, the applicable Industrial Wage Order(s), the California Code of Regulations and the California Labor Code including Sections 204, 206.5, 226.7, 512,558, 1194 & 2802, for which this Court should i1ssue declaratory and other equitable relief pursuant to Cal. Bus. & Prof. Code § 17203

as may be necessary to prevent and remedy the conduct held to constitute unfair competition,

including restitution of wages wrongfully withheld. 44. By the conduct alleged herein, DEFENDANT’s practices were unlawful and unfair in that these practices violated public policy, were immoral, unethical, oppressive, unscrupulous or substantially injurious to employees, and were without valid justification or utility for which this Court should 1ssue equitable and injunctive relief pursuant to Section 17203 of the California Business & Professions Code, including restitution of wages wrongfully withheld.

45. By the conduct alleged herein, DEFENDANT’s practices were deceptive and fraudulent in that DEFENDANT’s uniform policy and practice failed to provide the legally mandated meal and rest periods and the required amount of compensation for missed meal and rest periods due to a systematic business practice that cannot be justified, pursuant to the applicable Cal. Lab. Code, and Industrial Welfare Commission requirements in violation of Cal. Bus. Code §§ 17200, et seq., and for which this Court should issue injunctive and equitable relief, pursuant to Cal. Bus. & Prof. Code § 17203, including restitution of wages wrongfully withheld.

46. By the conduct alleged herein, DEFENDANT’s practices were also unlawful, unfair and deceptive in that DEFENDANT’s employment practices caused PLAINTIFF and the other members of the CALIFORNIA CLASS to be underpaid during their employment with DEFENDANT.

47. By the conduct alleged herein, DEFENDANT’s practices were also unlawful, unfair and deceptive in that DEFENDANT s uniform policies, practices and procedures failed to provide all legally required meal and rest breaks to PLAINTIFF and the other members of the CALIFORNIA CLASS as required by Cal. Lab. Code §§ 226.7 and 512.

48. Therefore, PLAINTIFF demands on behalf of himself and on behalf of each CALIFORNIA CLASS Member, one (1) hour of pay for each workday 1in which an off-duty meal period was not timely provided for each five (5) hours of work, and/or one (1) hour of pay for each workday 1n which a second off-duty meal period was not timely provided for each ten (10) hours of work.

49. PLAINTIFF further demands on behalf of himself and each member of the CALIFORNIA LABOR SUB-CLASS, one (1) hour of pay for each workday in which a rest period premium was not timely provided as required by law.

50. By and through the unlawful and unfair business practices described herein, DEFENDANT has obtained valuable property, money and services from PLAINTIFF and the other members of the CALIFORNIA CLASS, including earned wages for all time worked, and has deprived them of valuable rights and benefits guaranteed by law and contract, all to the detriment of these employees and to the benefit of DEFENDANT so as to allow DEFENDANT to unfairly compete against competitors who comply with the law.

51. All the acts described herein as violations of, among other things, the Industrial Welfare Commission Wage Orders, the California Code of Regulations, and the California Labor Code, were unlawful and in violation of public policy, were immoral, unethical, oppressive and unscrupulous, were deceptive, and thereby constitute unlawful, unfair and deceptive business practices 1n violation of Cal. Bus. & Prof. Code §§ 17200, ef seq.

52. PLAINTIFF and the other members of the CALIFORNIA CLASS are entitled to, and do, seek such relief as may be necessary to restore to them the money and property which DEFENDANT has acquired, or of which PLAINTIFF and the other members of the CALIFORNIA CLASS have been deprived, by means of the above described unlawful and unfair business practices, including earned but unpaid wages for all time worked.

53. PLAINTIFF and the other members of the CALIFORNIA CLASS are further entitled to, and do, seek a declaration that the described business practices are unlawful, unfair and deceptive, and that injunctive relief should be i1ssued restraining DEFENDANT from engaging in any unlawful and unfair business practices in the future.

54. PLAINTIFF and the other members of the CALIFORNIA CLASS have no plain, speedy and/or adequate remedy at law that will end the unlawful and unfair business practices of DEFENDANT. Further, the practices herein alleged presently continue to occur unabated. As a result of the unlawful and unfair business practices described herein, PLAINTIFF and the other members of the CALIFORNIA CLASS have suffered and will continue to suffer

irreparable legal and economic harm unless DEFENDANT 1s restrained from continuing to engage 1n these unlawful and unfair business practices.

SECOND CAUSE OF ACTION

For Failure to Provide Required Meal Periods [Cal. Lab. Code §§ 226.7 & 512 ] (By PLAINTIFF and the CALIFORNIA LABOR SUB-CLASS and Against All Defendants)

55. PLAINTIFF, and the other members of the CALIFORNIA LABOR SUB-CLASS, reallege and incorporate by this reference, as though fully set forth herein, the prior paragraphs of this Complaint.

56. During the CALIFORNIA CLASS PERIOD, DEFENDANT failed to provide all the legally required off-duty meal breaks to PLAINTIFF and the other CALIFORNIA LABOR SUB-CLASS Members as required by the applicable Wage Order and Labor Code. The nature of the work performed by PLAINTIFF and CALIFORNIA LABOR SUB-CLASS MEMBERS did not prevent these employees from being relieved of all of their duties for the legally required off-duty meal periods. As a result of their rigorous work schedules, PLAINTIFF and other CALIFORNIA LABOR SUB-CLASS Members were often not fully relieved of duty by DEFENDANT for their meal periods. As a result, PLAINTIFF and other members of the CALIFORNIA LABOR SUB-CLASS therefore forfeited meal breaks without additional compensation and in accordance with DEFENDANT’s strict corporate policy and practice.

57. DEFENDANT further violated California Labor Code §§ 226.7 and the applicable IWC Wage Order by failing to compensate PLAINTIFF and CALIFORNIA LABOR SUB- CLASS Members who were not provided a meal period, in accordance with the applicable Wage Order, one additional hour of compensation at each employee’s regular rate of pay for cach workday that a meal period 1s not provided.

58. As a proximate result of the aforementioned violations, PLAINTIFF and CALIFORNIA LABOR SUB-CLASS Members have been damaged in an amount according

to proof at trial, and seek all wages earned and due, interest, penalties, expenses and costs of suit.

THIRD CAUSE OF ACTION

For Failure to Provide Required Rest Periods [Cal. Lab. Code §§ 226.7 & 512 ] (By PLAINTIFF and the CALIFORNIA LABOR SUB-CLASS and Against All Defendants)

59. PLAINTIFF, and the other members of the CALIFORNIA LABOR SUB- CLASS, reallege and incorporate by this reference, as though fully set forth herein, the prior paragraphs of this Complaint.

60. In addition, because of DEFENDANT’s compensation pay plan described herein, DEFENDANT failed to compensate PLAINTIFF and CALIFORNIA LABOR SUB- CLASS Members for their rest periods as required by the applicable Wage Order and Labor Code. DEFENDANT did not have a policy or practice which paid for off-duty rest periods to PLAINTIFF and the other CALIFORNIA LABOR SUB-CLASS Members. As a result, DEFENDANT’s failure to provide PLAINTIFF and the CALIFORNIA LABOR SUB- CLASS Members with all the legally required paid rest periods 1s evidenced by DEFENDANT’s business records. Additionally, PLAINTIFF and other CALIFORNIA LABOR SUB-CLASS Members were also required to work in excess of four (4) hours without being provided ten (10) minute rest periods. Further, these employees were denied their first rest periods of at least ten (10) minutes for some shifts worked of at least two (2) to four (4) hours, a first and second rest period of at least ten (10) minutes for some shifts worked of between six (6) and eight (8) hours, and a first, second and third rest period of at least ten (10) minutes for some shifts worked of ten (10) hours or more. PLAINTIFF and other CALIFORNIA LABOR SUB-CLASS Members were also not provided with one hour wages 1n lieu thereof. As a result of their rigorous work schedules, PLAINTIFF and other CALIFORNIA LABOR SUB-CLASS Members were periodically denied their proper rest

periods by DEFENDANT and DEFENDANT’s managers. 61. DEFENDANT further violated California Labor Code §§ 226.7 and the applicable IWC Wage Order by failing to compensate PLAINTIFF and CALIFORNIA LABOR SUB-CLASS Members who were not provided a rest period, in accordance with the applicable Wage Order, one additional hour of compensation at each employee’s regular rate of pay for each workday that rest period 1s not provided.

62. As aproximate result of the aforementioned violations, PLAINTIFF and CALIFORNIA LABOR SUB-CLASS Members have been damaged in an amount according to proof at trial, and seek all wages earned and due, interest, penalties, expenses and costs of

suit.

FOURTH CAUSE OF ACTION

For Failure to Provide Accurate Itemized Statements [Cal. Lab. Code § 226] (By PLAINTIFF and the CALIFORNIA LABOR SUB-CLASS and Against All Defendants)

63. PLAINTIFF, and the other members of the CALIFORNIA LABOR SUB- CLASS, reallege and incorporate by this reference, as though fully set forth herein, the prior paragraphs of this Complaint.

64. Cal. Labor Code § 226 provides that an employer must furnish employees with an “‘accurate 1temized” statement in writing showing:

(1) gross wages earned,

(2) total hours worked by the employee, except for any employee whose

compensation 1s solely based on a salary and who 1s exempt from payment of

overtime under subdivision (a) of Section 515 or any applicable order of the

Industrial Welfare Commission,

(3) the number of piecerate units earned and any applicable piece rate 1f the employee

1s 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 period for which the employee 1s paid,

(7) the name of the employee and his or her social security number, except that by

January 1, 2008, only the last four digits of his or her social security number or an

employee 1dentification number other than a social security number may be shown on

the itemized statement,

(8) the name and address of the legal entity that 1s the employer, and

(9) all applicable hourly rates 1n effect during the pay period and the corresponding

number of hours worked at each hourly rate by the employee.

65. When DEFENDANT did not accurately record PLAINTIFF’s and other CALIFORNIA CLASS Members’ missed meal breaks and unpaid rest breaks, DEFENDANT violates Cal. Lab. Code § 226 in that DEFENDANT failed to provide an accurate wage statement 1in writing that properly and accurately itemized all missed meal periods incurred by PLAINTIFF and the other members of the CALIFORNIA LABOR SUB-CLASS and thereby also failed to set forth the correct wages earned by the employees. Aside, from the violations listed above in this paragraph, DEFENDANT failed to i1ssue to PLAINTIFF an itemized wage statement that lists all the requirements under California Labor Code 226 et seq.

66. DEFENDANT knowingly and intentionally failed to comply with Cal. Lab. Code § 226, causing injury and damages to PLAINTIFF and the other members of the CALIFORNIA LABOR SUB-CLASS. These damages included, but were not limited to, costs expended calculating the correct wages for all missed meal and rest breaks and the amount of employment taxes which were not properly paid to state and federal tax authorities. These damages were difficult to estimate. Therefore, PLAINTIFF and the other members of the CALIFORNIA LABOR SUB-CLASS may elect to recover liquidated damages of fifty dollars ($50.00) for the initial pay period in which the violation occurred, and one hundred dollars ($100.00) for each violation 1n a subsequent pay period pursuant to Cal. Lab. Code § 226, in an amount according

to proof at the time of trial (but in no event more than four thousand dollars ($4,000.00) for PLAINTIFF and each respective member of the CALIFORNIA LABOR SUB-CLASS herein).

FIFTH CAUSE OF ACTION

For Failure to Reimburse Employees for Required Expenses [Cal. Lab. Code § 2802] (By PLAINTIFF and the CALIFORNIA LABOR SUB-CLASS and Against All Defendants)

67. PLAINTIFF and the other CALIFORNIA LABOR SUB-CLASS members reallege and incorporate by this reference, as though fully set forth herein, the prior paragraphs of this Complaint.

68. Cal. Lab. Code § 2802 provides, in relevant part, that:

An employer shall indemnify his or her employee for all necessary

expenditures or losses incurred by the employee in direct consequence of the

discharge of his or her duties,obedience to the directions of

the employer, even though unlawful, unless the employee, at the time of

obeying the directions, believed them to be unlawful.

69. DEFENDANT violated Cal. Lab. Code § 2802, by failing to indemnify and reimburse PLAINTIFF and the CALIFORNIA LABOR SUB-CLASS members for required expenses incurred in the discharge of their job duties for DEFENDANT’s benefit. Specifically, DEFENDANT failed to reimburse PLAINTIFF and the CALIFORNIA LABOR SUB-CLASS members for expenses which include, but are not limited to, costs related to their personal cell phone use all on behalf of DEFENDANT. DEFENDANT’s uniform policy, practice and procedure was to not reimburse PLAINTIFF and the CALIFORNIA LABOR SUB-CLASS members for expenses resulting from travel to job sites for DEFENDANT within the course and scope of their employment for DEFENDANT. These expenses were necessary to complete their principal job duties. DEFENDANT 1s estopped by DEFENDANT’s conduct to assert any waiver of this expectation. Although these expenses are necessary expenses incurred by

PLAINTIFF and the CALIFORNIA LABOR SUB-CLASS members, DEFENDANT failed to indemnify and reimburse PLAINTIFF and the CALIFORNIA LABOR SUB-CLASS members for these expenses as an employer 1s required to do under the laws and regulations of California.

70. PLAINTIFF therefore demands reimbursement for expenditures or losses incurred by him and the CALIFORNIA LABOR SUB-CLASS members in the discharge of their job duties for DEFENDANT, or their obedience to the directions of DEFENDANT, with interest

at the statutory rate and costs under Cal. Lab. Code § 2802.

SIXTH CAUSE OF ACTION

For Failure to Pay Wages When Due [Cal. Lab. Code §§ 201, 202, 203] (By PLAINTIFF and the CALIFORNIA LABOR SUB-CLASS and Against All Defendants)

71. PLAINTIFF, and the other members of the CALIFORNIA LABOR SUB-CLASS, reallege and incorporate by reference, as though fully set forth herein, the prior paragraphs of this Complaint.

72. Cal. Lab. Code § 200 provides that:

As used 1n this article:

(a) "Wages" includes all amounts for labor performed by employees of every

description, whether the amount 1s fixed or ascertained by the standard of time,

task, piece, Commission basis, or other method of calculation.

(b) "Labor" includes labor, work, or service whether rendered or performed under

contract, subcontract, partnership, station plan, or other agreement if the labor to

be paid for 1s performed personally by the person demanding payment.

73. Cal. Lab. Code § 201 provides, in relevant part, that “If an employer discharges an employee, the wages earned and unpaid at the time of discharge are due and payable immediately.”

a. Cal. Lab. Code § 202 provides, in relevant part, that:

If an employee not having a written contract for a definite period quits his or her

employment, his or her wages shall become due and payable not later than 72

hours thereafter, unless the employee has given 72 hours previous notice of his

or her intention to quit, in which case the employee is entitled to his or her wages

at the time of quitting. Notwithstanding any other provision of law, an employee who quits without providing a 72-hour notice shall be entitled to receive payment by mailrequests and designates a mailing address. The date of the

mailing shall constitute the date of payment for purposes of the requirement to

provide payment within 72 hours of the notice of quitting.

74. There wasno definite term in PLAINTIFF’s orany CALIFORNIA LABOR SUB- CLASS Members’ employment contract.

a. Cal. Lab. Code § 203 provides:

If an employer willfully fails to pay, without abatement or reduction, in

accordance with Sections 201, 201.5, 202, and 205.5, any wages of an employee

who 1s discharged or who quits, the wages of the employee shall continue as a

penalty from the due date thereof at the same rate until paid or until an action

therefor 1s commenced; but the wages shall not continue for more than 30 days.

75. The employment of PLAINTIFF and many CALIFORNIA LABOR SUB-CLASS Members has terminated and DEFENDANT has not tendered payment of overtime wages, to these employees who actually worked overtime, as required by law.

76. Therefore, as provided by Cal Lab. Code § 203, on behalf of himself and the members of the CALIFORNIA LABOR SUB-CLASS whose employment has terminated, PLAINTIFF demands up to thirty days of pay as penalty for not paying all wages due at time of termination for all employees who terminated employment during the CALIFORNIA LABOR SUB-CLASS PERIOD, and demands an accounting and payment of all wages due,

plus interest and statutory costs as allowed by law.

PRAYER FOR RELIEF

WHEREFORE, PLAINTIFF prays for judgment against each Defendant, jointly and severally, as follows:

On behalf of the CALIFORNIA CLASS:

ek

A) That the Court certify the First Cause of Action asserted by the CALIFORNIA CLASS as a class action pursuant to Cal. Code of Civ. Proc. § 382;

B) An order temporarily, preliminarily and permanently enjoining and restraining DEFENDANT from engaging in similar unlawful conduct as set forth herein;

C) An order requiring DEFENDANT to pay all sums unlawfuly withheld from

compensation due to PLAINTIFF and the other members of the CALIFORNIA CLASS; and,

Restitutionary disgorgement of DEFENDANT’s 1ll-gotten gains into a fluid fund for restitution of the sums incidental to DEFENDANT’s violations due to PLAINTIFF and to the other members of the CALIFORNIA CLASS.

On behalf of the CALIFORNIA LABOR SUB-CLASS:

A)

That the Court certify the Second, Third, Fourth, Fifth and Sixth Causes of Action asserted by the CALIFORNIA LABOR SUB-CLASS as a class action pursuant to Cal. Code of Civ. Proc. § 382;

Compensatory damages, according to proof at trial, during the applicable CALIFORNIA LABOR SUB-CLASS PERIOD plus interest thereon at the statutory rate;

The greater of all actual damages or fifty dollars ($50) for the initial pay period in which a violation occurs and one hundred dollars ($100) per each member of the CALIFORNIA LABOR SUB-CLASS for each violation in a subsequent pay period, not exceeding an aggregate penalty of four thousand dollars ($4,000), and an award of costs for violation of Cal. Lab. Code § 226; The amount of the expenses PLAINTIFF and each member of the CALIFORNIA LABOR SUBCLASS incurred 1n the course of their job duties, plus interest, and costs of suit;

Meal and rest period compensation pursuant to California Labor Code Section 226.7 and the applicable IWC Wage Order; and,

The wages of all terminated employees from the CALIFORNIA LABOR SUB-CLASS as a penalty from the due date thereof at the same rate until paid or until an action therefore is commenced, in accordance with Cal. Lab. Code

§ 203.

On all claims:

A) B)

An award of interest, including prejudgment interest at the legal rate;

Such other and further relief as the Court deems just and equitable; and, C) An award of penalties, attorneys’ fees and cost of suit, as allowable under the law, including, but not limited to, pursuant to Labor Code §226, §1194 and/or §2802.

Dated: January 10, 2018 BLUMENTHAL NORDREHAUG BHOWMIK

DE BLOUW LLP

DEMAND FOR A JURY TRIAL

PLAINTIFF demands a jury trial on issues triable to a jury.

Dated: January 10, 2018 BLUMENTHAL NORDREHAUG BHOWMIK

DE BLOUW LLP