This case was last updated from Santa Clara County Superior Courts on 08/14/2019 at 07:45:16 (UTC).

Cortez v. United Natural Foods, Inc., et al.

Case Summary

On 06/18/2018 Cortez filed a Labor - Other Labor lawsuit against United Natural Foods, Inc . This case was filed in Santa Clara County Superior Courts, Downtown Superior Court located in Santa Clara, California. The Judge overseeing this case is Kuhnle, Thomas. The case status is Other - Transferred.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ******9895

  • Filing Date:

    06/18/2018

  • Case Status:

    Other - Transferred

  • Case Type:

    Labor - Other Labor

  • Court:

    Santa Clara County Superior Courts

  • Courthouse:

    Downtown Superior Court

  • County, State:

    Santa Clara, California

Judge Details

Judge

Kuhnle, Thomas

 

Party Details

Plaintiff

Cortez, Richard B

Defendants and Decedents

United Natural Foods West, Inc.

United Natural Foods, Inc.

Not Classified By Court

Superior Court of California

Attorney/Law Firm Details

Plaintiff Attorney

Workman, Robin Gibson

Not Classified By Court Attorney

Superior Court of CA, County of Santa Clara

 

Court Documents

Removal to Federal Court

Removal to Federal Court: Comment: Defendants' Notice to State Court and Plaintiff of Removal of Action

Notice

Notice of Posting Jury Fees Deposit: Comment: Notice of Posting Jury Fees Deposit

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

Civil Case Cover Sheet: Comment: Complex

Complaint (Unlimited) (Fee Applies)

Complaint (Unlimited) (Fee Applies):

 

Docket Entries

  • 09/21/2018
  • Conference: Case Management - Judicial Officer: Kuhnle, Thomas; Hearing Time: 10:00 AM; Cancel Reason: Vacated; Comment: (1st CMC) Discovery and responsive pleading deadline stayed, as of 6/21/18, when the case was deemed complex.

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  • 08/01/2018
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  • Removal to Federal Court - Removal to Federal Court: Comment: Defendants' Notice to State Court and Plaintiff of Removal of Action

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  • 06/25/2018
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  • Notice - Notice of Posting Jury Fees Deposit: Comment: Notice of Posting Jury Fees Deposit

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  • 06/21/2018
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  • 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

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  • 06/18/2018
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  • Summons: Issued/Filed - Summons Issued Filed:

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  • 06/18/2018
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  • Civil Case Cover Sheet - Civil Case Cover Sheet: Comment: Complex

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  • 06/18/2018
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  • Complaint (Unlimited) (Fee Applies) - Complaint (Unlimited) (Fee Applies):

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Complaint Information

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pay Plaintiff, and similarly situated delivery drivers, for all hours worked and overtime compensation owed in violation of California Labor Code sections 201-204b, 510 and 1194; (4) properly calculate the regular rate of pay for Plaintiff and other similarly situated delivery drivers, and therefore pay all regular and overtime wages owed, by failing to include all remuneration in the regular rate of pay calculation, and therefore pay all wages when due in violation of California Labor Code sections 201-204b, 510 and 1194; and, (5) provide accurate wage statements as required by Labor Code section 226(a)(1)(2) and (5), for Plaintiff and other similarly situated delivery drivers, in that UNFI did not list all wages owed or hours worked, does not pay the additional hour of compensation for missed rest or meal periods, and does not properly calculate the regular rate of pay for purposes of calculating overtime compensation. In addition, for all its employees, UNFI does not list either the last four digits of the social security number or an employee identification number on Plaintiff’s and other employees’ wage statements in violation of Labor Code section 226(a)(7).

2. Plaintiff Richard B. Cortez, a resident of the State of California, brings this action pursuant to California Labor Code Sections 201-204b, 226, 226.7, 510, 512, 558, 1174, 1194, 2802 and California Business and Professions Code section 17200 et. seq.; and applicable Industrial Welfare and Commission Wage Orders made pursuant to California Labor Code sections 2699, 2699.3 and 2699.5.

3. UNPFI is in the business of the distribution of natural foods. UNFI engages in this business throughout California.

4. Plaintiff is ignorant of the true names and capacities of Doe Defendants 1-50, inclusive. Plaintiff sues these Defendants by such fictitious names pursuant to California Code of Civil Procedurc §474. Plaintiff will seek leave of Court to amend this Complaint to identify these Defendants when their identities are ascertained. Plaintiff 1s informed and believe, and on that basis alleges, that each of the fictitiously named Defendants was in some manner liable and Jegally responsible for the damages and injuries set forth herein.

3. Plaintiff was employed by Defendants for over a year from June 2016 to August

2017. Plaintiff worked as a delivery driver for Defendants in Gilroy, California. This action

seeks relief on behalf of two subclasses of persons in the employ of Defendants in California within four years preceding the filing of the action to the present comprised of the following employees:

a. Subclass A: Those persons employed by Defendants as delivery drivers; and,

b. Subclass B: Those persons employed by Defendants to whom Defendants issued wage statements.

6. Given Plaintiff was employed by Defendants within four years of filing this complaint and was subject to the actions/inaction of Defendants of which he complains, Plaintiff is an adequate and proper class representative. Plaintiff brings this action in his individual capacity, on behalf of all others similarly situated, as an aggrieved employee, and pursuant to California Business & Professions Code section 17204, on behalf of the general public.

7. As a driver for UNFI, Plaintiff and other similarly situated delivery drivers, were required to use their personal cell phones to make and receive work-related calls both from other UNFI employees and from customers of UNFI. Until approximately July 2017, UNFI did not reimburse Plaintiff, or similarly situated delivery drivers, any amount for the costs associated with the use of their personal cell phone and internet usage. In approximately July 2017, UNFI changed its policy and began providing a $20/month lump sum reimbursement to Plaintiff and other delivery drivers for their personal cell phone usage. UNFI took no measures to determine whether this reimbursement was sufficient. Given the requirements placed on Plaintiff, and the other delivery drivers, the small reimbursement provided still was not sufficient to reimburse Plaintiff and the other delivery drivers for the costs incurred to use their personal cell phones for work.

8. UNFI routinely required Plaintiff, and similarly situated drivers, to work shifts longer than 5 hours without providing them rest breaks or meal breaks. Throughout Plaintiff’s employment at UNFI, UNFI took no action to provide Plaintiff and similarly situated drivers

with rest breaks or make rest breaks available; rather, UNFI stated that there was no time for

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With respect to all employees, UNFI did not list either the last four digits of the employees’ social security number or an employee identification number on the wage statements in violation of Labor Code section 226(a)(7).

11. Plaintiff is informed and believes that the damages, back-wages, restitution, penalties, interest and attorneys’ fees do not exceed an aggregate of $4,999,999.99 and that Plaintiff’s individual claims do not exceed $74,999.99.

12. The proposed class is sufficiently numerous and the proposed class members are geographically dispersed throughout California, the joinder of whom in one action is impracticable, such that the disposition of those claims in a class action will provide substantial benefits to both the parties and the Court.

13. There is a well-defined community of interest in the questions of law and fact involved affecting the parties to be represented. The questions of law and fact common to Subclass A, the delivery drivers, predominate over questions that may affect individual class members. These questions include, but are not limited to, the followifig:

(a) Whether UNFI implemented and engaged in a practice whereby it unlawfully failed to reimburse Plaintiff and other delivery drivers for work-related expenses as required by law;

(b) Whether UNFI implemented and engaged in a systematic practice whereby it unlawfully failed to provide meal periods to Plaintiff and other delivery drivers as required by law and failed to pay Plaintiff and other delivery drivers compensation for the lack of meal periods;

(c) Whether UNFI implemented and engaged in a systematic practice whereby it unlawfully failed to provide rest periods to Plaintiff other delivery drivers as required by law and failed to pay class members compensation to Plaintiff and other delivery drivers for the lack of rest periods;

(d) Whether UNFI implemented and engaged in a practice whereby it failed to payN

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(¢) (H)

Whether UNFI implemented and engaged in a practice whereby it failed to includ all remuneration in the calculation of the regular rate of pay, thereby failing to pay Plaintiff and other delivery drivers all earned regular and overtime pay;

Whether the acts and practices of UNFI as alleged herein violated, inter alia, applicable provisions of the California Labor Code, including but not limited to sections 201, 202, 203, 204, 204b, 2.26, 226.7, 510,512, 558, 1174, 1194, 2802, and 2698, et seq., and applicable Industrial Welfare Commission Orders, and

California Business & Professions Code section 17200, et seq.

The questions of law and fact common to Subclass B predominate over questions that

may affect individual class members. These questions include, but are not limited to, the

following:

(a)

(b)

14.

Whether UNFI implemented and engaged in a practice whereby it failed to provide accurate and compliant wage statements to Plaintiff and other employees, in that UNFI failed to show the last four digits of employees’ social security numbers, or an employee identification number, on wage statement; Whether the acts and practices of UNFT as alleged herein violated, inter alia, applicable provisions of the California Labor Code, including but not limited to sections 226 and 2698, et seq., and applicable Industrial Welfare Commission Orders, and California Business & Professions Code section 17200, et seq.

Because Defendant required Plaintiff to incur work-related expenses without

retmbursement, failed to provide Plaintiff with rest or meal periods, or compensation for missed

meal or rest periods, failed to pay Plaintiff for all hours worked and overtime compensation

owed, failed to include all remuneration in the regular rate of pay calculation for Plaintiff, and

failed to provide Plaintiff with accurate wage statements as required by the California Labor

Code, Plaintiff asserts claims in accord with the claims of both Subclasses.

15.

Plaintiff will fairly and adequately represent and protect the interests of the

proposed class members in that he has no disabling conflict of interest that would be

antagonistic to those of the other members of the proposed Subclasses. Plaintiff retained

COMPLAINT

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counsel who are competent and experienced in the prosecution of class action wage and hour violations.

16. Because Plaintiff and the members of the proposed Subclasses all similarly suffered irreparable harm and damages as a result of UNFI’s unlawful and wrongful conduct, class treatment is especially appropriate and this action will provide substantial benefits to both. Absent this action, UNFI’s unlawful conduct will continue unremedied and uncorrected.

FIRST CAUSE OF ACTION

(Violation of California Labor Code § 2802) (Subclass A)

17. Plaintiff, and members of the proposed Subclasses, reallege and incorporate by reference the allegations contained in the foregoing paragraphs as if fully set forth herein.

18. California Labor Code section 2802 provides 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, . . .”

19. Plaintiff, and other delivery drivers, used their personal cell phones to make and receive work-related calls. UNFI either did not reimburse Plaintiff, and other delivery drivers, for any of the costs of using their personal cell phones for work or provide' inadequate reimbursement.

20. Plaintiff, and other delivery drivers, have suffered damages as a direct consequence of UNFTI’s failure to comply with Labor Code section 2802 and they seek reimbursement for the expenditures they incurred in direct consequence of the discharge of their duties in an amount according to proof at time of trial with interest thereon, costs, applicable civil penalties and attorney’s fees as set forth below.

21. Plaintiff and proposed members of Subclass A are therefore entitled to the relief o e 3 N b

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SECOND CAUSE OF ACTION

(Failure To Provide Rest And Meal Breaks As Required by Labor Code Sections 226.7 And 512 And Applicable Wage Orders)

(Subclass A)

22. Plaintiff and the proposed Subclass members incorporate by reference the allegations contained in the foregoing paragraphs of this complaint as if fully set forth herein.

23. During all relevant periods, UNFI failed to take any action to provide Plaintiff an other delivery drivers with rest or meal breaks. UNFI likewise did not pay Plaintiff or other delivery drivers an additional hour of compensation if Plaintiff or the other delivery drivers did not receive the required rest and meal breaks. This failure violated California Labor Code sections 226.7 and 512. Given these failures, UNFI also did not provide Plaintiff and the other delivery drivers with accurate wage statements, in that the wage statements did not set forth all compensation earned in violation of California Labor Code section 226.

24. Asaresult of UNFI’s failures, Plaintiff and the other delivery drivers are entitled to recover the additional hour of compensation as set forth in California Labor Code section 226. and damages and penalties as allowed under section 226, and other applicable Labor Code provisions.

25. Plaintiff and the members of the proposed Subclasses members are therefore

entitled to the relief requested below.

THIRD CAUSE OF ACTION

(Failure to Provide Accurate, Itemized Wage Statements Labor Code Section 226(a))

(Subclasses A & B)

26. Plaintiff and members of the proposed Subclasses reallege and incorporate by reference the allegations contained in the foregoing paragraphs as if fully set forth herein.

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social security number or an employee identification number other than a social security number.”

28. UNFI failed to provide timely, accurate, itemized wage statements to PlaintifT, and those members of proposed Subclasses A & B, in accordance with Labor Code section 226(a). In particular, with respect to Subclass A, the wage statements UNFI provided Plaintiff, and the other delivery drivers, do not accurately reflect the actual gross or net wages earned and, for part of the class period, did not reflect all hours worked. The wage statements were also inaccurate because UNF]I did not pay the additional hour of compensation for missed rest or meai breaks or properly calculate the regular rate of pay thereby inaccurately calculating overtime compensation. With respect to Subclass B, UNFI did not set forth either the employees’ last four digits of their social security numbers of employee identification number in violation of Labor Code section 226(a)(7).

29. UNFTI’s failure to comply with Labor Code section 226(a) was, and continues to be, knowing and intentional. Although, as alleged herein, UNFI was aware that, for part of the pertinent time period, that Plaintiff, and the other delivery drivers, worked hours for which they received no regular or overtime compensation and these hours were not listed on wage statements, and for the entire proposed class period Plaintiff and other similarly situated deliver drivers did not receive meal and rest breaks, or compensation for same, and the regular rate of pay did not include all remuneration for delivery drivers, UNFI systematically failed to include this information on the wage statements. UNFI was also aware that the employees’ last four digits of their social security numbers, or employee identification numbers, do not appear on wage statements. As a result, Plaintiff, and those similarly situated in both Subclasses A & B, suffered actual damages.

30. Defendant is liable to Plaintiff, and those in both Subclasses A & B, for all recovery allowed pursuant to Labor Code sections 226(e) and 226.3, with interest thereon, and penalties as prc;vided in the Labor Code. Furthermore, Plaintiffs and the proposed subclasses are entitled to an award of attorneys’ fees and costs as set forth below.page 9 can't be parsed

AON

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FIFTH CAUSE OF ACTION -

(Failure to Pay Wages When Due Pursuant to California Labor Code §§ 201, 202, 203, 204, 204b)

(Subclass A)

35. Plaintiff and members of the proposed Subclasses reallege and incorporate by reference the allegations contained in the foregoing paragraphs as if fully set forth herein.

36. During all relevant periods, California Labor Code section 204 required that: “labor” performed by a semi-monthly paid employee shall be paid for no later than between the 16™ and the 26™ of the month for labor performed between the 1% and the 15" of the month or between the 1% and the 10" day of the following month for labor performed between the 16% and the last day of the month. Labor Code section 204b also provides that “labor” performed by a weekly employee during any calendar week, and prior to or on the regular payday shall be paid for not later than the regular payday of the employer for such weekly-paid employer. Labor Code section 200 states that “‘wages’ includes all amounts for labor performed by employees of every description...” and “‘labor’ includes labor, work, or service whether rendered or performed under contract...or other agreement if the labor to be paid for is performed personally by the person demanding payment.”

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SIXTH CAUSE OF ACTION

(Unlawful, Unfair and Fraudulent Business Practices Pursuant To Business & Professions Code Section 17200, et seq.)

(Subclasses A & B)

39. Plaintiff and members of the proposed Subclasses reallege and incorporate by reference the allegations contained in the foregoing paragraphs as if fully set forth herein.

40. California Business & Professions Code section 17200, et seq. prohibits acts of unfair competition, which shall mean and include any “unlawful business act or practice.”

41. The policies, acts and practices heretofore described were and are unlawful business acts or practices because UNFI failed to pay regular and overtime wagcs at the lawful rate, failed to pay wages for regular and overtime hours worked, failed to provide accurate and timely wage statements, and failed to reimburse employees for costs associated with performing their jobs in violation of applicable Labor Code sections, including but not limited to California Labor Code sections 201-204b, 226, 226.7, 510, 512, 558, 1174, 1194, 2802, applicable Industrial Welfare Commission Wage Orders, the Labor Code Private Attorney General Act of 2004 (*PAGA”), California Labor Code section 2698, et seq., and other provisions of California common and/or statutory law. Plaintiff reserves the right to allege additional statutory and common law violations by Defendants. Such conduct is ongoing to this date.

42. The policies, acts or practices described herein were and are an unfair business act or practice because any justifications for UNFI’s illegal and wrongtful conduct were and are vastly outweighed by the harm such conduct caused Plaintiff, the proposed class members, and the members of the general public. Such conduct is ongoing to this date.

43. Plaintiff and Subclass members are therefore entitled to the relief requested below.

SEVENTH CAUSE OF ACTION

(Labor Code Private Attorneys General Act of 2004: Labor Code Sec. 2698) (Subclasses A & B)

44, Plaintiff and members of the proposed Subclasses reallege and incorporate by O @0 1] O o Ik W N

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45. The policies, acts and practices heretofore described were and are unlawful because UNFI’s failure to provide employees rest and meal breaks; failure to pay employees compensation for work without meal and rest periods; failure to timely pay employees for all hours worked and to timely pay all wages and overtime compensation duc; failure to include all remuneration in the regular rate of pay; failure to reimburse employees for all expenses incurred; and, failure to provide accurate itemized wage statements to Plaintiff and other similarly situated aggrieved employees violates applicable Labor Code sections and gives rise to statutory and civil penalties as a result of such conduct, including but not limited to penalties as provided by Labor Code sections 201, 202, 203, 204, 204b, 226, 226.7, 510, 512, 1174, 1194, 2698, 2699(1), and 2699.5, and applicable Industrial Welfare Commission Wage Orders. Plaintiff, as an aggrieved employee, hereby seeks recovery of civil penalties as prescribed by the Labor Code Private Attorney General Act of 2004 on behalf of himself and other current and former employees of UNFT against whom one or more of the violations of the Labor Code was committed.

46. On February 23, 2018, Plaintiff gave written notice to the California Labor and Worktorce Development Agency by online submission through their website and by certified mail to United Natural Foods, Inc. dba UNFI, of Labor Code violations as prescribed by California Labor Code section 2699.3. Plaintiff has not received written notification by the LWDA of an intention to investigate the allegations set forth in Plaintiff’s letter or written notice of an intent to cure, as prescribed by California Labor Code section 2699.3.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff prays for relief as follows:

1. An order certifying that the action may be maintained as a class action;

2. Compensatory and statutory damages, penalties and restitution, as appropriate

and available under each cause of action in an amount to be proven at trial;

3. Reasonable attorneys’ fees pursuant to Labor Code sections 226, 1194, 2802 and 2699; 5. Costs of this suit; 6. Pre- and post-judgment interest.

JURY DEMAND

Plaintiff hereby demands a trial by jury.

Date: June 15, 2018 WORKMAN LAW FIR C