This case was last updated from Santa Clara County Superior Courts on 01/25/2020 at 00:29:16 (UTC).

Ortiz v. California Cemetery and Funeral Services LLC

Case Summary

On 07/24/2018 Ortiz filed a Labor - Other Labor lawsuit against California Cemetery and Funeral Services LLC. This case was filed in Santa Clara County Superior Courts, Downtown Superior Court located in Santa Clara, California. The Judges overseeing this case are Kuhnle, Thomas and Lucas, Patricia M. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ******1774

  • Filing Date:

    07/24/2018

  • 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

Judges

Kuhnle, Thomas

Lucas, Patricia M

 

Party Details

Plaintiff

ORTIZ, JOHN

Defendant

CALIFORNIA CEMETERY AND FUNERAL SERVICES LLC

Not Classified By Court

Superior Court of California

Attorney/Law Firm Details

Plaintiff Attorneys

Ottinger, Robert Walter

Pellouchoud, Ashley Nicole

Weisenberg, Benjamin D.

Defendant Attorneys

Magarian, Toby Michael

Shirley, Candace Holly

Not Classified By Court Attorney

Superior Court of CA, County of Santa Clara

 

Court Documents

Notice

Notice CMC 2-8-19 at 10am in D5: Comment: CMC set for 2/8/19 at 10am in D5

Statement: Case Management Conference

Joint CMC Statement: Comment: Joint Case Management Statement

Notice

Notice of Appearance: Comment: Notice of Appearance

Proof of Service

20180815165651 (2).pdf: Comment: Proof of Service

Proof of Service: Summons DLR (Civil)

SCI, Pleadings, Proof of Service of Complaint.pdf: Comment: Proof of Service of Summons

Order: Deeming Case Complex

Order Deeming Case Complex and Staying Discovery and Responsive Pleading Deadline: Comment: Order Deeming Case Complex and Staying Discovery and Responsive Pleading Deadline signed/TEK

Summons: Issued/Filed

Summons Issued Filed:

Civil Case Cover Sheet

CCFS, Civil Case Cover Sheet FINAL.pdf:

Complaint (Unlimited) (Fee Applies)

Complaint (Unlimited) (Fee Applies): Comment: Proposed Class Action Complaint

Memorandum: Points and Authorities

Memorandum Points and Authorities HRG 6-7-19: Comment: HRG 6/7/19

Motion: Compel

Motion Compel HRG 6-7-19: Comment: Notice of Motion

Notice: Change Address/Firm Name

Notice of Change of Firm Name: Comment: Notice of Change of Firm Name

Notice

Notice CMC reset from 2-8-19 to 6-7-19: Comment: CMC reset from 2/8/19 to 6/7/19

Stipulation and Order

Stipulation and Order Continue CMC from 2-8-19 to 6-7-19: Comment: Stipulation & Order to Continue CMC from 2/8/19 to 6/7/19

Answer (Unlimited) (Fee Applies)

Answer to Complaint: Comment: Answer to Complaint

Statement: Case Management Conference

Joint CMC Statement: Comment: HRG 11/16/2018 - Amended Initial Joint Case Management Statement

Civil Lawsuit Notice

Civil Lawsuit Notice: Comment: 1st CMC set for 11/16/18 at 10am in D5; assigned to Hon. Thomas E. Kuhnle

Notice

Hearing Date N A - Notice of Consent to Electronic Service: Comment: Hearing Date N/A - Notice of Consent to Electronic Service

28 More Documents Available

 

Docket Entries

  • 03/27/2020
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  • DocketConference: Case Management - Joint CMC Statement HRG 1-10-20: Judicial Officer: Lucas, Patricia M; Hearing Time: 10:00 AM; Comment: (3rd CMC) Proposed Class Action * Discovery and responsive pleading deadline stayed, as of 7/26/18, when the case was deemed complex. Stay on discovery was lifted on 11/16/18. At the 11/16/18, the Court ordered responsive pleadings to be filed by 11/30/18.

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  • 01/06/2020
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  • DocketNotice - Notice CMC reset from 1-10-20 to 3-27-20: Comment: CMC reset from 1/10/20 to 3/27/20

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  • 01/06/2020
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  • DocketOrder - Order and Notice of Reassignment of Case to D3 PML: Comment: Order & Notice of Reassignment of Case to D3, Hon. Patricia M. Lucas presiding signed/PML

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  • 01/02/2020
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  • DocketStatement: Case Management Conference - Joint CMC Statement HRG 1-10-20: Comment: Joint Case Management Statement

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  • 10/04/2019
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  • DocketConference: Case Management - Joint CMC Statement: Minutes Non-Criminal: Judicial Officer: Kuhnle, Thomas; Hearing Time: 10:00 AM; Result: Held; Comment: (2nd CMC)

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  • 10/04/2019
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  • DocketNotice - Notice CMC 1-10-20 at 10am in D5: Comment: CMC set for 1/10/20 at 10am in D5

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  • 10/04/2019
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  • DocketMinute Order - Minutes Non-Criminal:

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  • 09/27/2019
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  • DocketStatement: Case Management Conference - Joint CMC Statement: Comment: HRG 10 4 19 - Joint Case Management Statement

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  • 08/26/2019
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  • DocketNotice - Notice CMC reset from 9-6-19 to 10-4-19: Comment: CMC reset from 9/6/19 to 10/4/19

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  • 08/21/2019
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  • DocketConference: Case Progress - Minutes Non-Criminal: Judicial Officer: Kuhnle, Thomas; Hearing Time: 3:30 PM; Result: Held; Comment: INFORMAL DISCOVERY CONFERENCE

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32 More Docket Entries
  • 08/16/2018
  • DocketClerk Rejection Letter - Comment: All documents submitted by an attorney after 02/23/2018 must be E-Filed.

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  • 08/16/2018
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  • DocketNotice - Notice of Appearance: Comment: Notice of Appearance

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  • 08/16/2018
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  • DocketProof of Service - 20180815165651 (2).pdf: Comment: Proof of Service

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  • 08/13/2018
  • DocketNotice - Comment: Of Undocumented Action Re: $550.00 Complex Fee Designation received from plaintiff.

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  • 07/31/2018
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  • DocketProof of Service: Summons DLR (Civil) - SCI, Pleadings, Proof of Service of Complaint.pdf: Comment: Proof of Service of Summons

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  • 07/26/2018
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  • DocketOrder: Deeming Case Complex - Order Deeming Case Complex and Staying Discovery and Responsive Pleading Deadline: Comment: Order Deeming Case Complex and Staying Discovery and Responsive Pleading Deadline signed/TEK

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  • 07/24/2018
  • View Court Documents
  • DocketCivil Lawsuit Notice - Civil Lawsuit Notice: Comment: 1st CMC set for 11/16/18 at 10am in D5; assigned to Hon. Thomas E. Kuhnle

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  • 07/24/2018
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  • DocketSummons: Issued/Filed - Summons Issued Filed:

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  • 07/24/2018
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  • DocketCivil Case Cover Sheet - CCFS, Civil Case Cover Sheet FINAL.pdf:

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  • 07/24/2018
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  • DocketComplaint (Unlimited) (Fee Applies) - Complaint (Unlimited) (Fee Applies): Comment: Proposed Class Action Complaint

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Complaint Information

E-FILED

1/24/2018 2:15 PM

Robert Ottinger (SBN 156825) Clerk of Court

Ashley Pellouchoud (SBN 286049) Superior Court of CA, THE OTTINGER FIRM, P.C. County of Santa Clara 535 Mission Street 18CV331774

San Francisco, CA 94133 Reviewed By: R. Walker

Tel: 415-262-0096 Fax: (212) 571-0505 Email: robert@ottingerlaw.com

Attorneys for Plaintiff and Aggrieved Employees

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

JOHN ORTIZ, on behalf of himself and all other | Case No.: TBD 18CV331774 aggrieved employees,

REPRESENTATIVE ACTION

Plaintiffs, COMPLAINT VS. 1. Violation of Cal. Lab. Code §§ 2698 et

seq.

CALIFORNIA CEMETERY AND FUNERAL

SERVICES LLC, and DOES 1-10, inclusive, Plaintiff John Ortiz (“Plaintiff”), on behalf of himself and all other aggrieved employees (“Plaintiffs™), hereby files this Complaint against California Cemetery and Funeral Services LLC (“Defendant’), and all its subsidiaries that acted as joint employers for Plaintiffs, and DOES 1-10, inclusive (“Defendants” or “CCFS”). Plaintiff 1s informed and believes, and on that basis, alleges as follows:

INTRODUCTION

1) This lawsuit arises out of an ongoing wrongful scheme by Defendants to deny their employees the full benefits of California’s Labor Code. Defendant has violated numerous provisions of the California Labor Code, including failure to compensate Plaintiff and other aggrieved employees for all overtime hours worked despite the fact that Plaintiff and other aggrieved employees regularly work overtime, failure to pay a minimum wage for all hours worked, failure to provide meal and rest periods, failure to pay all earned wages at the conclusion of employment, failure to adequately reimburse Plaintiff and all other aggrieved employees for business expenditures incurred and required by their jobs, failure to furnish timely statements accurately showing, among other things, the total hours Plaintiff and other aggrieved employees worked during each pay period.

PARTIES

2) Plaintiff John Ortiz resides in Santa Clara County, California. Plaintiff was employed by Defendant from April 19, 2003 to January 31, 2018 as a “Driver.” In this role, his duties included transporting bodies, cosmetizing bodies, and other related duties.

3) Defendant CCFS 1s a provider of funeral services throughout the state of California and 1s and/or was an employer of Plaintiff and other aggrieved employees within the meaning of the California Labor Code, and applicable IWC wage order. Defendant suffered

and/or permitted Plaintiff and other aggrieved employees to work; exercised control over the wages, hours or working conditions of Plaintiff and other aggrieved employees; and engaged Plaintiff and other aggrieved employees. The work that Plaintiff and other Drivers performed for California Cemetery and Funeral Services was labor within the company’s usual course of business.

JURISDICTION AND VENUE

4) Plaintiff was an employee of Defendant within the State of California and was subject to the unlawful policies at some point during the liability period.

5) This Court has jurisdiction over this matter because Defendant is a corporation that maintains its headquarters in California, and Defendant committed the unlawful acts alleged herein in California.

6) Venue is proper in this district pursuant to CCP § 395.5 because a substantial part of the events or omissions giving rise to Plaintiffs’ claims occurred in Santa Clara County, where Defendant conducts business. Defendant’s unlawful actions therefore arise in Santa Clara County, among other places.

FACTUAL ALLEGATIONS

7) Defendant is a mortuary and funeral services company that employs “Drivers” who not only transport bodies but also facilitate the preparation and cosmetization of bodies for funerals. During daytime hours the Plaintiffs work in a personal care center where the majority of their work focuses on body preparation. However, after these daytime shifts, Plaintiffs remain on- call to transport bodies at Defendant’s request. Despite remaining available outside their normal hours at the personal care center, Plaintiff and other aggrieved employees have not been provided proper wages for on-call hours.

8) During their on-call hours, Drivers must stay tethered to their phone, may not

consume alcohol, may not attend loud events such as concerts, and may not travel to remote locations, lest they be unavailable to respond to a possible transport request. Instead of providing compensation for these on-call hours, Defendant only provides Drivers with one hour of pay at the overtime rate plus a $75 bonus for each on-call transport performed. However, this compensation fails to take into account the additional hours that Plaintiffs have spent under the full control and at the complete disposal of Defendant.

9) In addition to the above, Plaintiffs have not been provided adequate meal and rest breaks. During day shifts, if work becomes busy, employees are forced to delay or miss their meal and rest breaks, yet still record these breaks in the time log as if they were properly taken.

10) As if the aforementioned violations were not egregious enough, Plaintiffs have been required to drive their own cars to pick-up locations without being reimbursed for gas or mileage.

JOHN ORTIZ

11) Mr. John Ortiz’s schedule required him to work at Defendant’s personal care center from 8:30 AM until 5:00 PM, on Sunday, Monday, Tuesday, Wednesday, and Thursday. During this time, he performed his usual duties of preparing bodies for ceremony and making deliveries if needed. During these hours, he received his regular rate of $20.50 per hour. However, outside of these hours he, like the other Drivers, was required to remain on-call to transport bodies as needed. Mr. Ortiz did not receive his regular rate or overtime premiums for the hours he was required to remain on-call to transport bodies as needed. Instead Mr. Ortiz received $30.75 plus a $75 bonus for each on-call transport he completed, however this compensation failed to compensateon-call hours. Like other aggrieved employees, Mr. Ortiz was not given proper meal and rest breaks and was not reimbursed for gas or mileage expended in the performance of his duties, although he drove his own car to pick-up

STATUTORY DAMAGES OWED TO PLAINTIFF AND THE LWDA UNDER PAGA

12) Plaintiff brings this action on behalf of himself and all “aggrieved employees” under PAGA for one-year before the PAGA notice letter was issued. As a result of Defendant’s misconduct, Plaintiff seeks penalties and attorney’s fees and costs under the Private Attorneys General Act.

13) Based on the above, Plaintiff and other aggrieved employees are owed penalties for at least the following Labor Code violations by Defendant:

a. Failure to Pay Adequate Minimum and Overtime Wages;

1) At all relevant times, Plaintiff and other aggrieved employees have been non- exempt employees of Defendants entitled to the full protections of the Labor Code and of the Wage Order.

11) Labor Code § 1198 makes it unlawful for an employer to employ any person under conditions of employment that violate the Wage Order.

i11) Section 2(K) of the Wage Order defines “hours worked” as “the time during which an employee 1s subject to the control of the employer, [which] includes all the time the employee is suffered or permitted to work, whether or not required to do so.”

iv) Labor Code §§ 1194 and 1197, and Section 4 of the Wage Order, require employers to pay their non-exempt employees at least minimum wage for each hour worked.

V) Labor Code §§ 510 and 1194, and Section 3 of the Wage Order, require employers to pay overtime wages to their non-exempt employees at no less than one and one- half times their regular rates of pay for all hours worked in excess of eight hours in one workday, all hours worked in excess of forty hours in one workweek, and for the first eight hours worked

on a seventh consecutive workday. vi) Labor Code §§ 510 and 1194, and Section 3 of the Wage Order, also require employers to pay overtime wages to their non-exempt employees at no less than two times their regular rates of pay for all hours worked in excess of twelve hours in one workday, and for all hours worked in excess of eight hours on a seventh consecutive workday.

vil) At relevant times during their employment, Defendants failed to pay Plaintiff and other aggrieved employees at least minimum wage for each hour worked, and/or failed to pay their overtime wages for overtime hours worked, by maintaining policies and/or practices with respect to meal periods and timekeeping that Defendants either knew or reasonably should have known caused them to work without being paid while clocked out for purported meal periods.

viil) Plaintiff 1s informed, believes, and thereon alleges that, at all relevant times and as matters of policy or practice, Defendants have failed to pay Plaintiff and other aggrieved employees at least minimum wage for each hour worked, and have failed to pay them overtime wages for overtime hours worked, by maintaining policies and/or practices with respect to meal periods and timekeeping that Defendants either knew or reasonably should have known caused them to work without being paid while clocked out for purported meal periods.

b. Failure to provide Adequate Meal Periods;

1) Labor Code § 512 and § 11 of the Wage Order impose an affirmative obligation on employers to provide non-exempt employees with a first uninterrupted, duty-free, meal period of at least thirty minutes for each work period of five or more hours before the end of the fifth hour of work, and to provide them with a second uninterrupted, duty-free, meal period of at least thirty minutes for each work period of more than ten hours before the end of the tenth hour

of work. 11) Labor Code § 226.7 and § 11 of the Wage Order require employers to pay non- exempt employees an additional hour of premium wages at the employees’ regular rate of compensation on each workday that the employee is not provided with a meal period.

i11) Labor Code § 1198 makes it unlawful for an employer to employ any person under conditions of employment that violate the Wage Order.

1v) At relevant times during his employment, Defendants failed to relieve Plaintiff and other aggrieved employees of all duty for a first uninterrupted meal period of at least thirty minutes before the end of their fifth hour of work and/or for a second uninterrupted meal period of at least thirty minutes before the end of their tenth hour of work, and failed to pay their premium wages on those workdays.

V) Plaintiff 1s informed, believes, and thereon alleges that, at all relevant times, Defendants have maintained policies and practices with respect to employee scheduling and meal periods that have prevented Plaintiff and other aggrieved employees from being relieved of all duties for a first uninterrupted meal period of at least thirty minutes before the end of their fifth hour of work and/or for a second uninterrupted meal period of at least thirty minutes before the end of their tenth hour of work, and have failed to pay them premium wages on those workdays.

c. Failure to Provide Adequate Rest Periods;

1) Section 12 of the Wage Order imposes an affirmative obligation on employers to permit and authorize employees to take required rest periods at a rate of no less than ten minutes of net rest time for each four-hour work period, or major portion thereof, that must be in the middle of each work period insofar as is practicable.

i1) Labor Code § 226.7 and Section 12 of the Wage Order require employers to pay non-exempt employees an additional hour of premium wages at the employee’s regular rate of

compensation on each workday that the employee is not provided with a rest period. i11) Labor Code § 1198 makes it unlawful for an employer to employ any person under conditions of employment that violate the Wage Order.

iv) At relevant times during their employment, Defendants failed to authorize and permit Plaintiff and other aggrieved employees to take net rest periods of at least ten minutes for each four-hour work period, or major portion thereof, and failed to pay their premium wages on those workdays.

V) Plaintiff is informed, believes, and thereon alleges that, at all relevant times, Defendants have maintained policies and practices with respect to employee scheduling and rest periods that have failed to authorize and/or reasonably permit Plaintiff and other aggrieved employees to take net rest periods for each four-hour work period, or major portion thereof.

d. Failure to Indemnify Necessary Business Expenses and Losses;

1) Pursuant to California Labor Code § 2800 and § 2802, Defendants were required to reimburse Plaintiffs and other aggrieved employees for necessary business expenditures. In violation of § 2800 and 2802, Defendants have failed to reimburse all necessary business-related expenses and costs as alleged above, constitutes an unlawful/prohibited activity.

e. Failure to Furnish Accurate Itemized Wage Statements;

1) Pursuant to Labor Code § 226(a), Defendants have been obliged to provide Plaintiff and other aggrieved employees, either semimonthly or at the time of each payment of wages, accurate itemized statement showing, among other things, the gross and net wages earned by Plaintiff and other aggrieved employees.

1) Plaintiff and other aggrieved employees have suffered injuries due to Defendants’ failures to provide them with accurate written wage statements in that, among other things, their legal rights to receive accurate wage statements have been violated, they have been misled about

the amounts of wages they have earned, they have been prevented from immediately challenging allegedly unlawful pay practices, they have needed or will need to reconstruct time and pay records and perform mathematical computations to determine the amounts of wages they have earned, and they have had inaccurate information about their wages and deductions submitted to government agencies.

f. Failure to Pay Former Employees Proper Wages Upon Discharge;

1) Labor Code § 201 provides that all of the earned and unpaid wages of an employee who is discharged become due and payable immediately at the time of discharge.

11) Labor Code § 202 provides that all of the earned and unpaid wages of an employee who quits become due and payable at the time of quitting if the employee gives at least 72-hours notice before quitting, or within 72 hours of quitting if the employee gives less than 72-hours notice before quitting.

i11) Labor Code § 203 provides that the wages of a terminated employee will continue as a penalty for up to thirty (30) calendar days if the employer willfully fails to timely pay any earned and unpaid wages to the employee in the times set forth in Labor Code §§ 201-202.

iv) By failing to pay Plaintiff and other aggrieved earned premium wages, minimum wages, and/or overtime wages, Defendants failed to timely pay them all earned and unpaid wages 1n violation of Labor Code § 201 or § 202.

V) Plaintiff 1s informed, believes, and thereon alleges that, by failing to pay former employees earned premium wages, minimum wages, and/or overtime wages, Defendants have failed to timely pay them all earned and unpaid wages in violation of Labor Code § 201 or § 202.

vi) Plaintiff is informed, believes, and therecon alleges that, at all relevant times, Defendants’ failures to pay former employees earned and unpaid wages in violation of Labor

Code §§ 201-202 have been willful in that Defendants have had the ability to fully comply with the requirements set forth in those statutes, but have deliberately chosen to maintain policies and practices with respect to payroll that are incompatible with those requirements.

FIRST CAUSE OF ACTION CIVIL PENALTIES

(Lab. Code §§ 2698 et seq.) (By Plaintiff, On Behalf of Himself and All Other Aggrieved Employees Against Defendant)

14) Plaintiff hereby repeats and re-alleges each and every allegation in the preceding paragraphs as if fully set forth herein.

15) Labor Code §§ 2699(a) and (g) authorizes aggrieved employees, on behalf of themselves and other current and former employees, to bring a representative civil action to recover civil penalties pursuant to the procedures specified in Labor Code § 2699.3.

16) Plaintiff is informed and believes and thereon allege that, during the applicable limitations period, Defendant violated, at a minimum, Labor Code §§ 201, 202, 203, 204, 226, 226.7, 510,512, 1194, 1197, 1198, 2800, and 2802.

17) Plaintiff and all the other aggrieved employees, as employees against whom Defendant committed one or more violations of the Labor Code during the applicable limitations period, and/or caused to be committed, are an “aggrieved employee” within the meaning of Labor Code § 2699(¢).

18) Pursuant to Labor Code §§ 2699(a) and (f), Plaintiff seeks civil penalties for Defendant’s violations of, at a minimum, Labor Code §§ 201, 202, 203, 204, 226, 226.7, 510, 512, 1194, 1197, 1198, 2800, and 2802, against him and all the other aggrieved employees during the applicable limitations period.

19) Plaintiff has complied with the procedures for bringing suit set forth in Labor Code § 2699.3. By letter dated April 16, 2018, Plaintiff gave written notice via certified mail to

the Labor and Workforce Development Agency (“LWDA”) and Defendant of the specific provisions of the Labor Code that they allege to have been violated, including the facts and theories to support the alleged violations. A true and correct copy of that April 16, 2018 letter 1s attached hereto as Exhibit A.

20) Sixty-five (65) days have elapsed since such notification, and therefore pursuant to Labor Code §2699.3(a)(2)(A), Plaintiff has exhausted all administrative remedies.

21) Pursuant to Labor Code § 2699(g)(1), Plaintiff seeks an award of reasonable costs and attorneys’ fees in connection with his claims for civil penalties on behalf of himself and all other aggrieved employees.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff prays that the Court enter judgment in his favor and against Defendant, containing the following relief:

a. That the Court find that Defendant has violated the Private Attorney General Act, California Labor Code § 2699, ef seq. for all aggrieved employees for Defendant’s violations of the California Labor Code, as alleged herein;

b. That the Court find that Defendant’s violations have been willful;

C. That the Court impose penalties against Defendant on behalf of Plaintiff and all aggrieved employees according to the Private Attorney General Act;

d. Restitution;

c. Pre-judgment interest; f. Post-judgment interest; g. That Plaintiff be awarded reasonable attorneys’ fees and costs pursuant to

California Labor Code § 26999(g)(1), California Civil Procedure Code § 1021.5, and/or other applicable laws; and

JURY DEMAND

Plaintiff, on behalf of himself and all other aggrieved employees, hereby demands a trial

by jury on all triable issues.

Dated: July 24, 2018 Respectfully submitted,

San Francisco, CA W W

Robert W. Ottinger (SBN 156825) THE OTTINGER FIRM, P.C.

535 Mission Street

San Francisco, CA 94105 robert@ottingerlaw.com

Tel: 415-262-0096

Fax: 212-571-0505

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Robert Ottinger (SBN 156825) THE OTTINGER FIRM, P.C. 535 Mission Street

San Francisco, CA 94133

Tel: 415-262-0096

Fax: (212) 571-0505

Email: robert@ottingerlaw.com

Attorneys for Plaintiffs

ENDORSED FILED

San Franclsco County Suparior Court

MAR 2 0 2018 CLERK OF THE COURT

gy NEYLWEBB

ASUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN FRANCISCO

RAINBOW PADILLA and JOHN ORTIZ, individually and on behalf of all others similarly situated,

Plaintiffs, VS.

CALIFORNIA CEMETERY AND FUNERAL

SERVICES LLC, SERVICE CORPORATION INTERNATIONAL, SCI CALIFORNIA FUNERAL SERVICES, INC. and DOES 1-10, inclusive,

Defendants.

Case No.: 4802,

CLASS ACTION CLASS ACTION COMPLAINT FOR

DAMAGES, RESTITUTION AND

INJUNCTIVE RELIEF

1. FAILURE TO PROVIDE MEAL PERIODS (CAL. LAB. CODE §§ 226.7,512 and I.LW.C. WAGE ORDER NO 5-2001, 15-2001);

2. FAILURE TO PROVIDE REST PERIODS (CAL. LAB. CODE §§ 226.7 and L.LW.C. WAGE ORDER NO. 5-2001, 15-2001);

3. FAILURE TO PAY OVERTIME AND MINIMUM WAGES (CAL. LAB. CODE §§ 204,510, 1194 and 1.W.C. WAGE ORDERS NO. 5-2001, 15- 2001);

4. FAILURE TO FURNISH

ACCURATE ITEMIZED WAGE

STATEMENTS (CAL. LAB. CODE §226;

5. WAITING TIME PENALTIES (CAL

LAB. Code § 203);

6. FAILURE TO REIMBURSE

REQUIRED BUSINESS EXPENSES

(CAL. LAB. CODE § 2802); Plaintiffs Rainbow Padilla and John Ortiz, for themselves and on behalf of other persons similarly situated, complain and allege upon personal knowledge and information and belief as follows:

INTRODUCTION

1. Plaintiffs bring this class action on behalf of themselves and others similarly situated employed by CALIFORNIA CEMETERY AND FUNERAL SERVICES LLC, SERVICE CORPORATION INTERNATIONAL, and SCI CALIFORNIA FUNERAL SERVICES, INC. (collectively “Defendants”) from the date four years prior to the filing of this Complaint through the date of trial in this action.

2. Defendants have violated numerous provisions of the California Labor Code, including failure to compensate Plaintiffs and Class Members for all overtime hours worked despite the fact that Plaintiffs and Class Members regularly work overtime, failure to pay a minimum wage for all hours worked, failure to provide meal and rest periods, failure to pay all carned wages at the conclusion of employment, failure to adequately reimburse Plaintiffs and Class Members for business expenditures incurred and required by their jobs, failure to furnish timely statements accurately showing, among other things, the total hours Plaintiffs and Class Members worked during each pay period. Plaintiffs also allege that these acts, which in violation the California Labor Code, constitute predicate unlawful and unfair business practices in violation of the California Unfair Competition Laws.

PARTIES

3. Plaintiff Rainbow Padilla resides in Santa Clara County, California. Plaintiff has been employed by Defendants since 2008 until present as a “Driver.” In this role, her duties include transporting bodies, cosmetizing bodies, and other related duties.

4. Plaintiff John Ortiz resides in Santa Clara County, California. Plaintiff was employed by Defendants from April 19, 2003 to January 31, 2018 as a “Driver.” In this role, his duties included transporting bodies, cosmetizing bodies, and other related duties.

5. Defendant California Cemetery and Funeral Services LLC 1s a provider of funeral services throughout the state of California and is and/or was an employer of Plaintiffs and Class Members within the meaning of the California Labor Code, and applicable IWC wage order. California Cemetery and Funeral Services suffered or permitted Plaintiffs and Class Members to work; exercised control over the wages, hours or working conditions of Plaintiffs and Class Members; and engaged Plaintiffs and Class Members. The work that Plaintiffs and other Drivers performed for California Cemetery and Funeral Services was labor within the company’s usual course of business.

6. Defendant SCI California Funeral Services, Inc. (“SCI California) is a provider of funeral and end-of-life services in San Francisco County and across the United States. On information and belief SCI California i1s wholly owned by Service Corporation International. SCI California is and/or was an employer of Plaintiffs and Class Members within the meaning of the California Labor Code, and applicable IWC wage orders. SCI California: suffered or permitted Plaintiffs and Class Members to work; and exercised control over the wages, hours or working conditions of Plaintiffs and Class Members. The work that Plaintiffs and other Class Members performed for SCI California was labor within SCI California’s usual course of business.

7. Defendant Service Corporation International (“SCI”) 1s a provider of funeral and end-of-life services in California and across the United States. SCI is and/or was an employer of Plaintiffs and Class Members within the meaning of the California Labor Code, and applicable IWC wage order. SCI: suffered or permitted Plaintiffs and Class Members to work; and exercised control over the wages, hours or working conditions of Plaintiffs and Class Members. The work that Plaintiffs and other Drivers performed for SCI was labor within SCI’s usual course of business.

VENUE

8. Venue is proper in this district pursuant to CCP § 395.5 because a substantial part of the events or omissions giving rise to Plaintiffs’ claims occurred in San Francisco County in which this action was commenced.

FACTUAL ALLEGATIONS

9. Defendants are mortuary and funeral services companies that employ “Drivers” who not only transport bodies but also facilitate the preparation and cosmatization of bodies for funerals. During daytime hours the Plaintiffs work in a personal care center where the majority of their work focuses on body preparation. However, after these daytime shifts Plaintiffs remain on- call to transport bodies at Defendants’ request. Despite remaining available outside their normal hours at the personal care center, Plaintiffs and the other putative Class Members have not been provided proper wages for on-call hours.

10. During their on-call hours, Drivers must stay tethered to their phone, may not consume alcohol, may not attend loud events such as concerts, and may not travel to remote locations, lest they be unavailable to respond to a possible transport request. Instead of providing compensation for these on-call hours, Defendants only provide Drivers with one hour of pay at the overtime rate plus a $75 bonus for each on-call transport performed. However, this compensation fails to take into account the additional hours that Plaintiffs have spent under the full control and at the complete disposal of Defendants.

11. In addition to the above, Plaintiffs have not been provided adequate meal and rest breaks. During day shifts, if work becomes busy, employees are forced to delay or miss their meal and rest breaks, yet still record these breaks in the time log as if they were properly taken.

12. As 1f the aforementioned violations were not egregious enough, Plaintiffs have been required to drive their own cars to pick-up locations without being reimbursed for gas or mileage.

RAINBOW PADILLA

13. Ms. Rainbow Padilla’s current schedule requires her to work at Defendants’ personal care center from 7:00 AM until 3:30 PM, on Tuesday, Thursday, Friday, Saturday, and Sunday. During this time, she performs her usual duties of preparing bodies for ceremony and making deliveries if needed. During these hours, she receives her regular rate of $19.48 per hour. However, outside of these hours and even on her days “off,” she, like the other Drivers, is required to remain on-call to transport bodies as needed. Ms. Padilla does not receive her regular rate or overtime premiums for the hours Ms. Padilla is required to remain on-call to transport bodies as needed. Instead, Ms. Padilla receives $29.22 plus a $75 bonus for each on-call transport she completes, however this compensation fails to compensateon-call hours. 14. Like other Class Members, Ms. Padilla has not been given proper meal and rest breaks and has not been reimbursed for gas or mileage expended in the performance of her duties.

JOHN ORTIZ

15. Mr. John Ortiz’s schedule required him to work at Defendants’ personal care center from 8:30 AM until 5:00 PM, on Sunday, Monday, Tuesday, Wednesday, and Thursday. During this time, he performed his usual duties of preparing bodies for ceremony and making deliveries if needed. During these hours, he received his regular rate of $20.50 per hour. However, outside of these hours he, like the other Drivers, was required to remain on-call to transport bodies as needed. Mr. Ortiz did not receive his regular rate or overtime premiums for the hours he was required to remain on-call to transport bodies as needed. Instead Mr. Ortiz received $30.75 plus a $75 bonus for each on-call transport he completed, however this compensation failed to compensateon-call hours.

16. Like other Class Members, Mr. Ortiz was not given proper meal and rest breaks and was not reimbursed for gas or mileage expended in the performance of his duties.

CLASS ALLEGATIONS

17. Plaintiffs bring this action for themselves and as a class action under Cal. Code of Civil Procedure § 382 on behalf of the following defined group:

All persons who are or have been employed by Defendant as Drivers within the State of California within four years prior to the filing of this Complaint to the final disposition of this case.

18. This action 1s brought, and may properly be maintained, as a class action under § 382 because there 1s a well-defined community of interest in the litigation and the proposed class 1s easily ascertainable.

19. Numerosity: The Proposed Class 1s so numerous that joinder of all members is impracticable. Plaintiffs are informed and believe, and on that basis allege, that during the relevant time period, Defendants employed over 150 people who are geographically dispersed throughout California and who satisfy the definition of the Proposed Class. 20. Typicality: Plaintiffs’ claims are typical of the members of the Proposed Class. Plaintiffs are informed and believe that, like other Drivers they were not compensated properly, were not provided proper meal and rest breaks, were not provided accurate, itemized wage statements and were not reimbursed for required business expenses. Plaintiffs had the same duties and responsibilities as other Class Members. Plaintiffs were all subject to Defendants’ policy and practice of failing to compensate Drivers, failing to provide meal and rest breaks, failing to provide accurate, itemized wage statements and were not reimbursed for required business expenses.

21. Adequacy: Plaintiffs will fairly and adequately protect the interests of the Proposed Class, and have retained counsel experienced in wage and hour class action litigation.

22. Commonality: Common questions of law and fact exist to all members of the Proposed Class and predominate over any questions solely affecting individual members of the Proposed Class, including but not limited to:

a. Whether Defendants employed Plaintiffs and the Proposed Class within the meaning of California law;

b. Whether Defendants failed to provide adequate minimum and overtime wages;

c. Whether Defendants failed to provide adequate meal and rest breaks;

d. Whether Defendants improperly failed to indemnify the Proposed Class for necessary expenses and losses in violation of Labor Code § 2802;

¢. Whether Plaintiffs and the Proposed Class Members who are no longer employed with Defendants are entitled to waiting time penalties pursuant to California Labor Code § 203;

f. Whether Defendants’ conduct violated the California Unfair Competition Law set forth in the Business and Professions Code §§ 17200 ef seq. by violating state law as set forth herein;

g. The proper measure of damages sustained by Plaintiffs and the Proposed Class; and

h. Whether Defendants’ actions were “willful.” 23. Superiority: A class action is superior to other available methods for the fair and efficient adjudication of the controversy, particularly in the context of wage and hour litigation where individual Plaintiffs lack the financial resources to vigorously prosecute separate lawsuits against a corporate Defendant.

24. Plaintiffs intend to send notice to all members of the Proposed Class to the extent

required by § 382. The names and address of the Proposed Class are available from Defendants.

FIRST CAUSE OF ACTION FAILURE TO PROVIDE MEAL PERIODS

(Lab. Code §§ 226.7, 512, and 1198) (Against All Defendants)

25. Plaintiffs incorporate all of the preceding paragraphs of this Complaint as if fully set forth herein.

26. Labor Code § 512 and § 11 of the Wage Order impose an affirmative obligation on employers to provide non-exempt employees with a first uninterrupted, duty-free, meal period of at least thirty minutes for each work period of five or more hours before the end of the fifth hour of work, and to provide them with a second uninterrupted, duty-free, meal period of at least thirty minutes for each work period of more than ten hours before the end of the tenth hour of work.

27. Labor Code § 226.7 and § 11 of the Wage Order require employers to pay non- exempt employees an additional hour of premium wages at the employees’ regular rate of compensation on each workday that the employee is not provided with a meal period.

28. Labor Code § 1198 makes it unlawful for an employer to employ any person under conditions of employment that violate the Wage Order.

29. At relevant times during his employment, Defendants failed to relieve Plaintiffs of all duty for a first uninterrupted meal period of at least thirty minutes before the end of their fifth hour of work and/or for a second uninterrupted meal period of at least thirty minutes before the end of their tenth hour of work, and failed to pay their premium wages on those workdays.

30. Plaintiffs are informed, believe, and thereon allege that, at all relevant times, Defendants have maintained policies and practices with respect to employee scheduling and meal periods that have prevented Plaintiffs and other Class Members from being relieved of all hour of work and/or for a second uninterrupted meal period of at least thirty minutes before the end of their tenth hour of work, and have failed to pay them premium wages on those workdays. 31. Pursuant to Labor Code § 226.7, Plaintiffs seek to recover premium wages on behalf of themselves and Plaintiffs’ Class Members in amounts subject to proof. 32. Pursuant to Code of Civil Procedure § 1021.5, the substantial benefit doctrine, and/or the common fund doctrine, Plaintiffs, on behalf of themselves and the Plaintiffs’ Class, seek awards of reasonable attorneys’ fees and costs in amounts subject to proof at trial.

SECOND CAUSE OF ACTION FAILURE TO PROVIDE REST PERIODS

(Lab. Code §§ 226.7 and 1198) (Against All Defendants)

33. Plaintiffs incorporate all of the preceding paragraphs of this Complaint as if fully set forth herein.

34, Section 12 of the Wage Order imposes an affirmative obligation on employers to permit and authorize employees to take required rest periods at a rate of no less than ten minutes of net rest time for each four-hour work period, or major portion thereof, that must be in the middle of each work period insofar as 1is practicable.

35. Labor Code § 226.7 and Section 12 of the Wage Order require employers to pay non-exempt employees an additional hour of premium wages at the employee’s regular rate of compensation on each workday that the employee is not provided with a rest period.

36. Labor Code § 1198 makes it unlawful for an employer to employ any person under conditions of employment that violate the Wage Order.

37. At relevant times during their employment, Defendants failed to authorize and permit Plaintiffs to take net rest periods of at least ten minutes for each four-hour work period, or major portion thereof, and failed to pay their premium wages on those workdays.

38. Plaintiffs are informed, believe, and thereon allege that, at all relevant times, Defendants have maintained policies and practices with respect to employee scheduling and rest periods that have failed to authorize and/or reasonably permit Plaintiffs’ Class Members to take net rest periods for each four-hour work period, or major portion thereof.

39. Pursuant to Labor Code § 226.7, Plaintiffs seek to recover premium wages on

behalf of themselves and Class Members in amounts subject to proof. 40. Pursuant to Code of Civil Procedure § 1021.5, the substantial benefit doctrine, and/or the common fund doctrine, Plaintiffs, on behalf of themselves and the Plaintiffs’ Class, seek awards of reasonable attorneys’ fees and costs in amounts subject to proof.

THIRD CAUSE OF ACTION FAILURE TO PAY MINIMUM AND OVERTIME WAGES

(Lab. Code §§ 204, 1194 and 1194.2) (Against All Defendants)

41. Plaintiffs incorporate each of the preceding paragraphs of this Complaint by reference as if fully set forth herein.

42. At all relevant times, Plaintiffs and Class Members have been non-exempt employees of Defendants entitled to the full protections of the Labor Code and of the Wage Order.

43. Labor Code § 1198 makes it unlawful for an employer to employ any person under conditions of employment that violate the Wage Order.

44, Section 2(K) of the Wage Order defines “hours worked” as “the time during which an employee 1s subject to the control of the employer, [which] includes all the time the employee is suffered or permitted to work, whether or not required to do so.”

45. Labor Code §§ 1194 and 1197, and Section 4 of the Wage Order, require employers to pay their non-exempt employees at least minimum wage for each hour worked.

46. Labor Code §§ 510 and 1194, and Section 3 of the Wage Order, require employers to pay overtime wages to their non-exempt employees at no less than one and one- half times their regular rates of pay for all hours worked in excess of eight hours in one workday, all hours worked in excess of forty hours in one workweek, and for the first eight hours worked on a seventh consecutive workday.

47. Labor Code §§ 510 and 1194, and Section 3 of the Wage Order, also require employers to pay overtime wages to their non-exempt employees at no less than two times their regular rates of pay for all hours worked in excess of twelve hours in one workday, and for all hours worked 1n excess of eight hours on a seventh consecutive workday.

48. At relevant times during their employment, Defendants failed to pay Plaintiffs at least minimum wage for each hour worked, and/or failed to pay their overtime wages for

overtime hours worked, by maintaining policies and/or practices with respect to meal periods and timekeeping that Defendants either knew or reasonably should have known caused them to work without being paid while clocked out for purported meal periods.

49. Plaintiffs are informed, and believe, and thereon allege that, at all relevant times and as matters of policy or practice, Defendants have failed to pay Plaintiffs and Class Members at least minimum wage for each hour worked, and have failed to pay them overtime wages for overtime hours worked, by maintaining policies and/or practices with respect to meal periods and timekeeping that Defendants either knew or reasonably should have known caused them to work without being paid while clocked out for purported meal periods.

50. Pursuant to Labor Code §§ 1194(a) and 1194.2(a), Plaintiffs, on behalf of themselves and the Plaintiffs’ Class, seek to recover earned and unpaid minimum and overtime wages, interest thereon, liquidated damages in amounts equal to the amounts of the earned and unpaid minimum wages at issue, as well as awards of reasonable costs and attorneys’ fees, all in

amounts subject to proof.

FOURTH CAUSE OF ACTION WAGE STATEMENT PENALTIES

(Lab. Code § 226) (Against All Defendants)

51. Plaintiffs incorporate all of the preceding paragraphs of this Complaint as if fully set forth herein. 52. Pursuant to Labor Code § 226(a), Defendants have been obliged to provide

Plaintiffs and Class Members, either semimonthly or at the time of each payment of wages, accurate itemized statement showing, among other things, the gross and net wages earned by each class member.

53. Plaintiffs have suffered injuries due to Defendants’ failures to provide them with accurate written wage statements in that, among other things, their legal rights to receive accurate wage statements have been violated, they have been misled about the amounts of wages they have earned, they have been prevented from immediately challenging allegedly unlawful pay practices, they have needed or will need to reconstruct time and pay records and perform mathematical computations to determine the amounts of wages they have earned, and they have had inaccurate information about their wages and deductions submitted to

government agencies. 54, Pursuant to Labor Code § 226(e), Plaintiffs, on behalf of themselves and the Plaintiffs’ Class, seek to recover the greater of actual damages or $50 for the initial pay period in which a § 226(a) violation occurred, the greater of actual damages or $100 for each violation of § 226(a) in a subsequent pay period, up to the greater of actual damages or an aggregate $4,000 penalty per class member, as well as awards of reasonable attorneys’ fees

and costs, all in amounts subject to proof.

FIFTH CAUSE OF ACTION WAITING TIME PENALTIES

(Lab. Code § 203) (Against All Defendants)

55. Plaintiffs incorporate all of the preceding paragraphs of this Complaint as if fully set forth herein.

56. Labor Code § 201 provides that all of the earned and unpaid wages of an employee who is discharged become due and payable immediately at the time of discharge.

57. Labor Code § 202 provides that all of the earned and unpaid wages of an employee who quits become due and payable at the time of quitting if the employee gives at least 72-hours notice before quitting, or within 72 hours of quitting if the employee gives less than 72-hours notice before quitting.

58. Labor Code § 203 provides that the wages of a terminated employee will continue as a penalty for up to thirty (30) calendar days if the employer willfully fails to timely pay any earned and unpaid wages to the employee in the times set forth in Labor Code §§ 201-202.

59. By failing to pay Plaintiffs and Plaintiffs’ Class Members earned premium wages, minimum wages, and/or overtime wages, Defendants failed to timely pay them all earned and unpaid wages in violation of Labor Code § 201 or § 202.

60. Plaintiffs are informed, believe, and thereon allege that, by failing to pay former employees earned premium wages, minimum wages, and/or overtime wages, Defendants have failed to timely pay them all earned and unpaid wages in violation of Labor Code § 201 or § 202.

61. Plaintiffs are informed, believe, and thereon allege that, at all relevant times, Defendants’ failures to pay former employees earned and unpaid wages in violation of Labor

Code §§ 201-202 have been willful in that Defendants have had the ability to fully comply with the requirements set forth in those statutes, but have deliberately chosen to maintain policies and practices with respect to payroll that are incompatible with those requirements. 62. Pursuant to Labor Code § 203, Plaintiffs, on behalf of themselves and Class Members, seek up to thirty (30) days of wages as waiting time penalties in amounts subject to proof. 63. Pursuant to Code of Civil Procedure § 1021.5, the substantial benefit doctrine, and/or the common fund doctrine, Plaintiffs, on behalf of themselves and the Plaintiffs’ Class,

seek awards of reasonable attorneys’ fees and costs in amounts subject to proof.

SIXTH CAUSE OF ACTION FAILURE TO REIMBURSE NECESSARY BUSINESS EXPENSES

(Bus. & Prof. Code § 2800 AND 2802.) (Against All Defendants)

59. Pursuant to California Labor Code § 2800 and 2802, Defendants were required to reimburse Plaintiffs and Class Members for necessary business expenditures. In violation of § 2800 and 2802, Defendants have failed to reimburse all necessary business-related expenses and costs as alleged above, constitutes an unlawful/prohibited activity.

60. Pursuant to Code of Civil Procedure § 1021.5, the substantial benefit doctrine, and/or the common fund doctrine, Plaintiffs, on behalf of themselves and the Plaintiffs’

Class, seek awards of reasonable attorneys’ fees and costs in amounts subject to proof.

SEVENTH CAUSE OF ACTION UNFAIR COMPETITION

(Bus. & Prof. Code § 17200 et seq.) (Against All Defendants)

61. Plaintiffs incorporate all of the preceding paragraphs of this Complaint as if fully set forth herein.

62. Business and Professions Code § 17200 defines “unfair competition” to include any unlawful business practice.

63. Business and Professions Code § 17203 allows a person who has lost money or property as a result of unfair competition to bring a class action in accordance with Code of Civil Procedure § 382 to recover money or property that may have been acquired from

similarly situated persons by means of unfair competition. 64. As set forth above, Plaintiffs have lost money or property in the form of earned minimum, overtime, and/or premium wages as a result of Defendants’ unlawful failures to pay them those wages, and related failures to maintain accurate records, in violation of the requirements of the Labor Code and the Wage Order.

65. Plaintiffs are informed, believe, and thereon allege that, at all relevant times and as set forth above, Defendants have either acquired, or may have acquired, money or property in the form of earned minimum, overtime, and premium wages from Plaintiffs and Class Members by means of unfair competition as a result of Defendants’ unlawful failures to pay them those wages, and related failures to maintain accurate records, in violation of the requirements of the Labor Code and the Wage Order.

66. Pursuant to Business and Professions Code § 17203, Plaintiffs, on behalf of themselves and the Plaintiffs’ Class, seek restitution of all moneys and property, including, but not limited to, earned regular, overtime, and premium wages, that Defendants either acquired, and/or may have acquired, from them by means of unfair competition in amounts subject to proof at trial.

67. Pursuant to Code of Civil Procedure § 1021.5, the substantial benefit doctrine, and/or the common fund doctrine, Plaintiffs, on behalf of themselves and the Plaintiffs’ Class,

seek awards of reasonable attorneys’ fees and costs in amounts subject to proof.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs, on behalf of themselves, and all others similarly-situated, pray

for relief and judgment against Defendants as follows:

A. A declaratory judgment that the actions, conduct, and practices of Defendants

complained of herein violated the laws of the United States and the State of California;

B. An injunction and order permanently restraining Defendants from engaging in

such unlawful conduct;

C. An order that the action be certified as a class action; D. An order that the named Plaintiffs herein be appointed class representative; E. An order that counsel for Plaintiffs be appointed class counsel; F. An award of damages in an amount to be determined at trial, plus prejudgment interest, to compensate Plaintiffs and Plaintiffs’ Class Members for all monetary and/or economic hardship, including, but not limited to, the loss of past and future income, wages, compensation, and other benefits of employment;

G. An award of damages in an amount to be determined at trial, plus prejudgment interest, to compensate Plaintiffs and Plaintiffs’ Class Members for all non-monetary and compensatory harm;

H. An award of damages for any and all other monetary and/or non-monetary losses suffered by Plaintiffs and Plaintiffs’ Class Members

I. An award in an amount to be determined at trial, plus prejudgment interest;

J. For reasonable attorney’s fees and costs, including expert witness fees, pursuant

to California CCP §1021.5;

K. For costs of suit herein incurred; and L. For such other and further relief as the Court deems just and proper. Dated: March 20, 2018 Respectfully submitted,

San Francisco, CA W W

Robert W. Ottinger (SBN 156825) THE OTTINGER FIRM, P.C.

535 Mission Street

San Francisco, CA 94105 robert@ottingerlaw.com

Tel: 415-262-0096

Fax: 212-571-0505