This case was last updated from Santa Clara County Superior Courts on 08/07/2019 at 21:55:45 (UTC).

Caudill v. Kaiser Foundation Hospitals

Case Summary

On 04/27/2018 Caudill filed a Labor - Other Labor lawsuit against Kaiser Foundation Hospitals. 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 Walsh, Brian C. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ******7308

  • Filing Date:

    04/27/2018

  • 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

Walsh, Brian C

 

Party Details

Plaintiff

Caudill, Ricky

Defendant

Kaiser Foundation Hospitals

Other

Superior Court of California County of Santa Clara

Attorney/Law Firm Details

Plaintiff Attorney

Blumenthal, Norman B

Defendant Attorneys

Rowley, Christian Joseph

Friedrichs, Kerry McCoy

Vartabedian, Pamela Lynn

Other Attorney

Superior Court of CA, County of Santa Clara

 

Court Documents

Notice

Caudill Vartabedian NOA.pdf: Comment: HRG Notice of Appearance by Pamela L. Vartabedian

Proof of Service

POS-07-10-18.pdf: Comment: Proof of Service

Notice

Notice CMC reset from 8-24-18 to 9-21-18: Comment: CMC reset from 8/24/18 to 9/21/18

Complaint: Amended

Complaint First Amended: Comment: First Amended Class Action Complaint

Proof of Service: Summons DLR (Civil)

Proof of Service of Summons Complaint: 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/BCW

Summons: Issued/Filed

Summons.pdf:

Civil Case Cover Sheet

Civil Cover Sheet.pdf:

Complaint (Unlimited) (Fee Applies)

Complaint (Unlimited) (Fee Applies):

Minute Order

Minutes Non-Criminal:

Notice

Notice CMC 11-30-18 at 10am in D1: Comment: CMC set for 11/30/18 at 10am in D1

Notice

Caudill Notice of Courtcall 092118.pdf: Comment: HRG 091818 Notice of Courtcall Telephonic Appearance

Statement: Case Management Conference

Joint CMC Statement: Comment: HRG 092118 Joint Case Management Statement

Advance jury fee (Nonrefundable)

Advance Jury Fee (Nonrefundable):

Notice

Caudill Name Change 083118.pdf: Comment: Notice of Change of Attorney Name and Email Address

Notice

Caudill Rowley NOA.pdf: Comment: HRG 082418 Notice of Appearance by Christian J. Rowley

Notice

Caudill Friedrichs NOA.pdf: Comment: HRG 082418 Notice of Appearance by Kerry M. Friedrichs

Notice

Caudill Khan NOA.pdf: Comment: HRG 082418 Notice of Appearance by Minal Khan

15 More Documents Available

 

Docket Entries

  • 09/13/2019
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  • Conference: Case Management - Joint CMC Statement: Judicial Officer: Walsh, Brian C; Hearing Time: 10:00 AM; Comment: (3rd CMC) Discovery and responsive pleading deadline stayed, as of 4/30/18, when the case was deemed complex. The stay on discovery was lifted on 11/30/18. 1st Amended Complaint filed 7/6/18; answer thereto filed 11/29/18. Related Cases: (1) Tilton v. Kaiser, Superior Court of California, County of San Bernardino, Case No. CIVDS1517937, filed 12/16/15 (PENDING); (2) Osilla v. Kaiser, Superior Court of California, County of Alameda, Case No. RG17873923; filed 8/28/17 (PENDING); (3) Rodriguez v. Kaiser, Superior Court of California, County of San Bernardino, Case No. CIVDS1818367, filed 4/27/18 (PENDING).

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  • 07/01/2019
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  • Stipulation and Order - Stipulation and Order Continuing CMC to 9-13-19: Comment: Stipulation & Order Continuing CMC to 9/13/19 - signed/BCW

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  • 06/21/2019
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  • Notice - Notice CMC reset from 6-28-19 to 9-13-19: Comment: CMC reset from 6/28/19 to 9/13/19

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  • 03/29/2019
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  • Notice - Notice CMC reset from 4-5-19 to 6-28-19: Comment: CMC reset from 4/5/19 to 6/28/19

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  • 03/29/2019
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  • Statement: Case Management Conference - Joint CMC Statement: Comment: [HRG 4/5/2019] Joint Status Conference Report; Stipulation and [Proposed] Order

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  • 12/04/2018
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  • Notice - Notice CMC 4-5-19 at 10am in D1: Comment: CMC set for 4/5/19 at 10am in D1

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  • 11/30/2018
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  • Conference: Case Management - Minutes Non-Criminal: Judicial Officer: Walsh, Brian C; Hearing Time: 10:00 AM; Result: Held; Comment: (2nd CMC)

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  • 11/30/2018
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  • Minute Order - Minutes Non-Criminal:

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  • 11/29/2018
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  • Answer: Amended Complaint - Answer First Amended Complaint: Comment: Answer to First Amended Complaint

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  • 11/27/2018
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  • Notice - Caudill Notice of CourtCall 113018.pdf: Comment: HRG 11/30/18 Notice of CourtCall Telephonic Appearance re Case Management Conference

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12 More Docket Entries
  • 08/10/2018
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  • Notice - Caudill Khan NOA.pdf: Comment: HRG 082418 Notice of Appearance by Minal Khan

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  • 08/10/2018
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  • Notice - Caudill Vartabedian NOA.pdf: Comment: HRG Notice of Appearance by Pamela L. Vartabedian

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  • 08/10/2018
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  • Proof of Service - POS-07-10-18.pdf: Comment: Proof of Service

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  • 07/20/2018
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  • Notice - Notice CMC reset from 8-24-18 to 9-21-18: Comment: CMC reset from 8/24/18 to 9/21/18

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  • 07/06/2018
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  • Complaint: Amended - Complaint First Amended: Comment: First Amended Class Action Complaint

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  • 06/14/2018
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  • Proof of Service: Summons DLR (Civil) - Proof of Service of Summons Complaint: Comment: Proof of Service of Summons

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  • 04/30/2018
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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/BCW

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  • 04/27/2018
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  • Summons: Issued/Filed - Summons.pdf:

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  • 04/27/2018
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  • Civil Case Cover Sheet - Civil Cover Sheet.pdf:

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  • 04/27/2018
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  • Complaint (Unlimited) (Fee Applies) - Complaint (Unlimited) (Fee Applies):

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Complaint Information

E-FILED

4/27/2018 10:30 AM

BLUMENTHAL NORDREHAUG BHOWMIK DE BLOGW'K ppcourt

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) 18CV327308

2255 Calle Clara

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

Reviewed By: A. Hwang

Attorneys for Plaintiff

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

RICKY CAUDILL, an individual, on behalf of himself, and on behalf of all persons similarly situated,

Plaintiff, VS. KAISER FOUNDATION HOSPITALS, a

California Corporation; and Does 1 through 50, Inclusive,

Defendants.

Case No. 18CV327308

CLASS ACTION COMPLAINT FOR:

1. UNFAIR COMPETITION IN VIOLATION OF CAL. BUS. & PROF. CODE §§ 17200, et seq.;

2. FAILURE TO PAY OVERTIME WAGES IN VIOLATION OF CAL. LAB. CODE §§ 510, et seq.;

3. FAILURE TO PROVIDE REQUIRED

MEAL PERIODS IN VIOLATION OF

CAL. LAB. CODE §§ 226.7 & 512 AND

THE APPLICABLE IWC WAGE

ORDER;

4. FAILURE TO PROVIDE REQUIRED

REST PERIODS IN VIOLATION OF

CAL. LAB. CODE §§ 226.7 & 512 AND

THE APPLICABLE IWC WAGE

ORDER; and,

5. FAILURE TO PROVIDE

ACCURATE ITEMIZED STATEMENTS

IN VIOLATION OF CAL. LAB. CODE § 226.

DEMAND FOR A JURY TRIAL

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

THE PARTIES

1. Defendant Kaiser Foundation Hospitals (“DEFENDANT”) is a California corporation and at all relevant times mentioned herein conducted and continues to conduct substantial and regular business throughout California.

2. DEFENDANT Kaiser Foundation Hospitals, Inc. owns and operates hospitals. The company was founded in 1948 and is based in Oakland, California. Kaiser Foundation Hospitals, Inc. operates as a subsidiary of Kaiser Permanente Inc.

3. Plaintiff Caudill has been employed by DEFENDANT in California as a non- exempt employee entitled to overtime pay since October of 2010. Plaintiff Caudill has been at all times relevant mentioned herein classified by DEFENDANT as a non-exempt employee paid in whole or in part on an hourly basis and received additional compensation from DEFENDANT in the form of non-discretionary incentive wages and cash in lieu of benefits payments.

4. 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 a California hospital and classified as non-exempt 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 is under five million dollars ($5,000,000.00).

5. PLAINTIFF brings this Class Action on behalf of himself and a CALIFORNIA CLASS in 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 overtime worked. DEFENDANT’s uniform policy and practice alleged herein is an unlawful, unfair and deceptive business practice whereby DEFENDANT 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 i1n 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.

6. 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 sue 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 are informed and believe, and based upon that information and belief allege, 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 hereinafter alleged.

7. 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.

/1] /1]

THE CONDUCT

8. During the CALIFORNIA CLASS PERIOD, DEFENDANT failed and continues to fail to accurately calculate and pay PLAINTIFF and the other members of the CALIFORNIA CLASS for their overtime worked. DEFENDANT systematically, unlawfully and unilaterally fail to accurately calculate wages for overtime worked by PLAINTIFF and other members of the CALIFORNIA CLASS in order to avoid paying these employees the correct overtime compensation. As aresult, PLAINTIFF and the other members of the CALIFORNIA CLASS forfeit wages due them for working overtime without compensation at the correct overtime rates. DEFENDANT’s uniform policy and practice to not pay the members of the CALIFORNIA CLASS the correct overtime rate for all overtime worked in accordance with applicable law 1s evidenced by DEFENDANT’s business records.

9. State law provides that employees must be paid overtime at one-and-one-half times their “regular rate of pay.” PLAINTIFF and other CALIFORNIA CLASS Members are compensated at an hourly rate plus incentive pay that is tied to specific elements of an employee’s performance.

10. The second component of PLAINTIFF’s and other CALIFORNIA CLASS Members’ compensation is DEFENDANT’s non-discretionary incentive program that pays PLAINTIFF and other CALIFORNIA CLASS Members incentive wages based on their performance for DEFENDANT. The non-discretionary incentive program provides all employees paid on an hourly basis with incentive compensation when the employees meet the various performance goals set by DEFENDANT, including but not limited to, health benefits cash out options and shift differentials for working undesirable shifts. However, when calculating the regular rate of pay in order to pay overtime to PLAINTIFF and other CALIFORNIA CLASS Members, DEFENDANT fails to include the incentive compensation as part of the employees’ “regular rate of pay” for purposes of calculating overtime pay. Management and supervisors described the incentive program to potential and new employees

as part of the compensation package. As a matter of law, the incentive compensation received by PLAINTIFF and other CALIFORNIA CLASS Members must be included in the “regular rate of pay.” The failure to do so has resulted in a systematic underpayment of overtime compensation to PLAINTIFF and other CALIFORNIA CLASS Members by DEFENDANT.

11. 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 fails to compensate PLAINTIFF and the other members of the CALIFORNIA CLASS at the correct rate of pay for all overtime worked. This uniform policy and practice of DEFENDANT is intended to purposefully avoid the payment of the correct overtime compensation as required by California law which allowed DEFENDANT to illegally 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.

12. As a result of their rigorous work schedules, PLAINTIFF and other CALIFORNIA CLASS Members are also from time to time unable to take off duty meal breaks and are not fully relieved of duty for meal periods. PLAINTIFF and other CALIFORNIA CLASS Members are required to perform work as ordered by DEFENDANT for more than five (5) hours during a shift without receiving an off-duty meal break. Further, DEFENDANT fails to provide PLAINTIFF and CALIFORNIA CLASS Members with a second off-duty meal period some workdays in which these employees are required by DEFENDANT to work ten (10) hours of work. PLAINTIFF and the other CALIFORNIA CLASS Members therefore forfeit meal breaks without additional compensation and in accordance with DEFENDANT’s strict corporate policy and practice.

13. From time to time during the CALIFORNIA CLASS PERIOD, PLAINTIFF and other CALIFORNIA CLASS Members are also required to work in excess of four (4) hours without being provided ten (10) minute rest periods. Further, these employees are 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 are also not provided with one hour wages in lieu thereof. As a result of their rigorous work schedules, PLAINTIFF and other CALIFORNIA CLASS Members are periodically denied their proper rest periods by DEFENDANT and DEFENDANT’s managers.

14. When PLAINTIFF and other CALIFORNIA CLASS Members work overtime in the same pay period they earned incentive wages and/or when these employees miss meal and rest breaks, DEFENDANT also fails to provide PLAINTIFF and the other members of the CALIFORNIA CLASS with complete and accurate wage statements which fail to show, among other things, the correct overtime rate for overtime worked, including, work performed in excess of eight (8) hours in a workday and/or forty (40) hours in any workweek. Cal. Lab. Code § 226 provides that every employer shall furnish each of his or her employees with an accurate itemized wage statement in writing showing, among other things, gross wages earned and all applicable hourly rates in effect during the pay period and the corresponding amount of time worked at each hourly rate. Aside, from the violations listed above in this paragraph, DEFENDANT failed to issue to PLAINTIFF an itemized wage statement that lists all the requirements under California Labor Code 226 et seq. As a result, from time to time DEFENDANT provided PLAINTIFF and the other members of the CALIFORNIA CLASS with wage statements which violated Cal. Lab. Code § 226.

15. 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 fails to accurately calculate and record the correct overtime rate for the overtime worked by PLAINTIFF and other

CALIFORNIA CLASS Members. The proper calculation of these employees’ overtime hour rates is the DEFENDANT’s burden. As a result of DEFENDANT’s intentional disregard of the obligation to meet this burden, DEFENDANT fails to properly calculate and/or pay all required overtime compensation for work performed by the members of the CALIFORNIA CLASS and violated the California Labor Code and regulations promulgated thereunder as herein alleged.

16. Specifically as to PLAINTIFF’S pay, DEFENDANT provides compensation to him in the form of two components. One component of PLAINTIFF’S compensation is a base hourly wage. The second component of PLAINTIFF’S compensation are non-discretionary incentive wages as described herein in Paragraphs No. 10 and No. 11. DEFENDANT pays the incentive wages, so long as PLAINTIFF meets certain predefined performance requirements. PLAINTIFF met DEFENDANT’s predefined eligibility performance requirements in various pay periods throughout his employment with DEFENDANT and DEFENDANT paid PLAINTIFF the incentive wages. During these pay periods in which PLAINTIFF were paid the non-discretionary incentive wages by DEFENDANT, PLAINTIFF also worked overtime for DEFENDANT, but DEFENDANT never included the incentive compensation in PLAINTIFF’S regular rate of pay for the purposes of calculating what should have been PLAINTIFF’S accurate overtime rate and thereby underpaid PLAINTIFF for overtime worked throughout his employment with DEFENDANT. The incentive compensation paid by DEFENDANT constituted wages within the meaning of the California Labor Code and thereby should have been part of PLAINTIFE’S “regular rate of pay.” DEFENDANT also provides PLAINTIFF with a paystub that fails to accurately display PLAINTIFF’S correct rates of

overtime pay for certain pay periods in violation of Cal. Lab. Code § 226(a).

JURISDICTION AND VENUE

17. 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 is brought as a Class Action on behalf of PLAINTIFF and similarly situated employees of DEFENDANT pursuant to Cal. Code of Civ. Proc. § 382.

18. 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 (i1) committed the wrongful conduct herein alleged in this County against members

of the CALIFORNIA CLASS and CALIFORNIA LABOR SUB-CLASS.

THE CALIFORNIA CLASS

19. PLAINTIFF bring 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 1n a California hospital and classified as non-exempt 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 is under five million dollars ($5,000,000.00).

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

21. The California Legislature has commanded that ““all wages... ... carned by any person in any employment are due and payable twice during each calendar month, on days designated in advance by the employer as the regular paydays”, and further that “[a]ny work in excess of eight hours in one workday and any work in excess of 40 hours in any one workweek . . . shall be compensated at the rate of no less than one and one-half times the regular rate of pay for an employee.” (Lab. Code § 204 and § 510(a).) The Industrial Welfare Commission (IWC), however, is statutorily authorized to “establish exemptions from the requirement that an overtime rate of compensation be paid... ...for executive, administrative, and professional employees, provided [inter alia] that the employee 1s primarily engaged in duties that meet the test of the exemption, [and] customarily and regularly exercises discretion and independent judgment in performing those duties...” (Lab. Code § 510(a).) Neither the PLAINTIFF nor the other members of the CALIFORNIA CLASS and/or the CALIFORNIA LABOR SUB-CLASS qualify for exemption from the above requirements.

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, engages in a practice whereby DEFENDANT systematically failed to correctly calculate and record overtime compensation for overtime worked by PLAINTIFF and the other members of the CALIFORNIA CLASS, even though DEFENDANT enjoys the benefit of this work, requires employees to perform this work and permits or suffers to permit this overtime work.

23. DEFENDANT has the legal burden to establish that each and every CALIFORNIA CLASS Member is paid the applicable rate for all overtime worked and to accurately calculate the “regular rate of pay” by including the incentive compensation that PLAINTIFF and members of the CALIFORNIA CLASS were awarded by DEFENDANT. 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 the applicable overtime rate for all overtime worked, 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. Atnotime 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 overtime worked at the applicable rate, as required by California Labor Code §§ 204 and 510, et seq. At no time during the CALIFORNIA CLASS PERIOD was the overtime compensation for any member of the CALIFORNIA CLASS properly recalculated so as to include all earnings in the overtime compensation calculation as required by California Labor Code §§ 510, et seq. 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) Violating the California Unfair Competition Laws, Cal. Bus. & Prof. Code §§ 17200, et seq., by unlawfully, unfairly and/or deceptively having in place company policies, practices and procedures that fail to pay all wages due the CALIFORNIA CLASS for all overtime worked, and fail to accurately record the applicable rates of all overtime worked by the CALIFORNIA CLASS; (b) Committing an act of unfair competition in violation of the California Unfair Competition Laws, Cal. Bus. & Prof. Code §§ 17200, et seq., by unlawfully, unfairly, and/or deceptively having in place a company policy, practice and procedure that fail to correctly calculate overtime compensation due to PLAINTIFF and the members of the CALIFORNIA CLASS; (c) 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 mandatory meal and/or rest breaks to PLAINTIFF and the CALIFORNIA CLASS members; and, (d) Committing an act of unfair competition in violation of the California

any member of the CALIFORNIA CLASS properly recalculated so as to compensate the employee for all overtime worked at the applicable rate, as required by California Labor Code §§ 204 and 510, et seq. At no time during the CALIFORNIA CLASS PERIOD was the overtime compensation for any member of the CALIFORNIA CLASS properly recalculated so as to include all earnings in the overtime compensation calculation as required by California Labor Code §§ 510, et seq. 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) Violating the California Unfair Competition Laws, Cal. Bus. & Prof. Code §§ 17200, et seq., by unlawfully, unfairly and/or deceptively having in place company policies, practices and procedures that fail to pay all wages due the CALIFORNIA CLASS for all overtime worked, and fail to accurately record the applicable rates of all overtime worked by the CALIFORNIA CLASS; (b) Committing an act of unfair competition in violation of the California Unfair Competition Laws, Cal. Bus. & Prof. Code §§ 17200, et seq., by unlawfully, unfairly, and/or deceptively having in place a company policy, practice and procedure that fail to correctly calculate overtime compensation due to PLAINTIFF and the members of the CALIFORNIA CLASS; (c) 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 mandatory meal and/or rest breaks to PLAINTIFF and the CALIFORNIA CLASS members; and, (d) Committing an act of unfair competition in violation of the California Unfair Competition Laws, Cal. Bus. & Prof. Code §§ 17200, et seq., by violating the Fair Labor Standards Act (“FLSA™), 29 U.S.C. §§ 201, et seq., by failing to pay the correct federal overtime wages to the PLAINTIFF and the members of the CALIFORNIA CLASS as legally required by the FLSA, and retaining the unpaid federal overtime to the benefit of DEFENDANT.

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)

(b)

(c)

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;

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

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, has been subjected to the uniform employment practices of DEFENDANT and is a non-exempt employee paid on an hourly basis and paid additional non-discretionary incentive wages who has been subjected to the DEFENDANT’s practice and policy which fails to pay the correct rate of overtime wages due to the CALIFORNIA CLASS for all overtime worked by the CALIFORNIA CLASS and thereby systematically underpays overtime compensation to the 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 (d)

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 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. In addition to meeting the statutory prerequisites to a Class Action, this action

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

(a)

(b)

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 CLASS will create the risk of:

1) 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,

2) 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 (c)

appropriate class-wide relief with respect to the CALIFORNIA CLASS

as a whole in that DEFENDANT uniformly failed to pay all wages due.

Including the correct overtime rate, for all worked by the members of the

CALIFORNIA CLASS as required by law;

1) 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 seek 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 is 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 CLASS in individually controlling the prosecution or defense of separate actions 1n that the substantial expense of individual actions will be avoided 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;

2) 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 is the only means to assert their claims through a representative; and,

A class action is 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)

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; (b)

(e)

(2)

(h)

A Class Action is 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 is

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 is

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;

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;

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;

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

Class treatment provides manageable judicial treatment calculated to bring

an 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 1dentified.

THE CALIFORNIA LLABOR SUB-CLASS

31. PLAINTIFF further bring the Second, Third, Fourth and Fifth 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 in a California hospital and classified as non-exempt 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 Welfare Commission (“IWC”) Wage Order requirements, and the applicable provisions of California law, intentionally, knowingly, and wilfully, engages in a practice whereby DEFENDANT fails to correctly calculate overtime compensation for the overtime worked by PLAINTIFF and the other members of the CALIFORNIA LABOR SUB-CLASS, even though DEFENDANT enjoys the benefit of this work, requires employees to perform this work and permits or suffers to permit this overtime work. DEFENDANT has uniformly denied these CALIFORNIA LABOR SUB-CLASS Members overtime wages at the correct amount to which these employees are entitled in order

to unfairly cheat the competition and unlawfully profit. To the extent equitable tolling operates to toll claims by the CALIFORNIA LABOR SUB-CLASS against DEFENDANT, the CALIFORNIA LABOR SUB-CLASS PERIOD should be adjusted accordingly.

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 identified.

34. The CALIFORNIA LABOR SUB-CLASS is so numerous that joinder of all CALIFORNIA LABOR SUB-CLASS Members is 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 fails to correctly calculate and pay overtime compensation to members of the CALIFORNIA LABOR SUB- CLASS in violation of the California Labor Code and California regulations and the applicable California Wage Order;

(b) Whether the members of the CALIFORNIA LABOR SUB-CLASS are entitled to overtime compensation for overtime worked under the overtime pay requirements of California law;

(c) Whether DEFENDANT fails to accurately record the applicable overtime rates for all overtime worked PLAINTIFF and the other members of the CALIFORNIA LABOR SUB-CLASS;

(d) Whether DEFENDANT fails to provide PLAINTIFF and the other members of the CALIFORNIA LABOR SUB-CLASS with legally required uninterrupted thirty (30) minute meal breaks and rest periods;

(¢) Whether DEFENDANT fails to provide PLAINTIFF and the other members of the CALIFORNIA LABOR SUB-CLASS with accurate

(H) (2)

(h)

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

The proper measure of damages and penalties owed to the members of the CALIFORNIA LABOR SUB-CLASS; and,

Whether DEFENDANT’s conduct was willful.

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

under California law by:

(a)

(b)

Violating Cal. Lab. Code §§ 510, et seq., by failing to accurately pay PLAINTIFF and the members of the CALIFORNIA LABOR SUB- CLASS the correct overtime pay for which DEFENDANT 1s liable pursuant to Cal. Lab. Code § 1194 & § 1198;

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 all accurate and applicable overtime rates in effect during the pay period and the corresponding amount of time worked at each overtime rate by the employee; and, 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.

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 is 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 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;

(c) The claims of the representative PLAINTIFF are typical of the claims of cach member of the CALIFORNIA LABOR SUB-CLASS. PLAINTIFF, like all the other members of the CALIFORNIA LABOR SUB-CLASS, 1S a non-exempt employee paid on an hourly basis and paid additional non-discretionary incentive wages who has been subjected to the DEFENDANT s practice and policy which fails to pay the correct rate of overtime wages due to the CALIFORNIA LABOR SUB-CLASS for all overtime worked. 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,

(d) 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. In addition to meeting the statutory prerequisites to a Class Action, this action is 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 (b)

(c)

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 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 failed to pay all wages due. Including the

correct overtime rate, for all overtime 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,

w0

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 is 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.

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

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

(a)

(b)

(c)

(d)

(2)

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;

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 in 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 is 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 in 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;

(h) The members of the CALIFORNIA LABOR SUB-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 LABOR SUB-CLASS.

FIRST CAUSE OF ACTION

For Unlawful Business Practices [Cal. Bus. And Prof. Code §§ 17200, el 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 is 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 in a business practice which violates California law, including but not limited to, the applicable Wage Order(s), the California Code of Regulations and the California Labor Code including Sections 204, 226.7, 510, 512, 558, 1194, 1198 & the Fair Labor Standards Act, for which this Court should issue 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. Bythe conductalleged herein, DEFENDANT s practices are unlawful and unfair in that these practices violated public policy, are immoral, unethical, oppressive, unscrupulous or substantially injurious to employees, and are without valid justification or utility for which this Court should issue 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 are deceptive and fraudulent in that DEFENDANT’s uniform policy and practice fails to pay PLAINTIFF, and other members of the CALIFORNIA CLASS, wages due for overtime worked, fails to accurately to record the applicable rate of all overtime worked, and fails to provide the required amount of overtime compensation due to a systematic miscalculation of the overtime rate 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. Bytheconductalleged herein, DEFENDANT’s practices are also unlawful, unfair and deceptive in that DEFENDANT’s employment practices cause 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 are also unfair and deceptive in that DEFENDANT’s uniform policies, practices and procedures fail to provide mandatory meal and/or rest breaks to PLAINTIFF and the CALIFORNIA CLASS members.

48. Therefore, PLAINTIFF demands on behalf of himself and on behalf of each CALIFORNIA CLASS member, one (1) hour of pay for each workday in 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 in 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 on behalf of each CALIFORNIA CLASS member, one (1) hour of pay for each workday in which a rest period was not timely provided as required by law.

50. Additionally, Pursuant to the Fair Labor Standards Act, 29 U.S.C. §§ 201, et seq., PLAINTIFF and the other members of the CALIFORNIA CLASS are entitled to overtime compensation for all overtime hours actually worked, at a rate not less than one and one-half times their regular rate of pay for all hours worked in excess of forty (40) hours in any workweek. DEFENDANT’s failure to correctly calculate overtime wages as required by federal law 1s willful and not in good faith.

51. During the CALIFORNIA CLASS PERIOD, PLAINTIFF, and other members of the CALIFORNIA CLASS, worked more than forty (40) hours in a workweek.

52. DEFENDANT f{ails to include the incentive compensation in the regular rate of pay for PLAINTIFF and the CALIFORNIA CLASS resulting in an illegal underpayment of overtime compensation during the CALIFORNIA CLASS PERIOD. Thus, DEFENDANT fails to pay PLAINTIFF, and other members of the CALIFORNIA CLASS, overtime compensation for the time they have worked in excess of the maximum hours permissible by law as required by § 207 of the FLSA, even though PLAINTIFF, and the other members of the CALIFORNIA CLASS, are regularly required to work, and do in fact work, overtime.

53. Asaresult of DEFENDANT’s failure to pay the correct overtime compensation at the applicable overtime rate for overtime worked, as required by the FLSA, PLAINTIFF and the members of the CALIFORNIA CLASS have been damaged in an amount to be proved at trial.

54. Therefore, PLAINTIFF demands that they and the members of the CALIFORNIA CLASS be paid the correct overtime compensation as required by the FLSA for all overtime worked in any workweek for which the incentive wages were awarded, plus interest and statutory costs as provided by law.

55. 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 overtime 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.

56. 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, are unlawful and in violation of public policy, are immoral, unethical, oppressive and unscrupulous, are deceptive, and thereby constitute unlawful, unfair and deceptive business practices in violation of Cal. Bus. & Prof. Code §§ 17200, et seq.

57. 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 overtime worked.

58. 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 issued restraining DEFENDANT from engaging in any unlawful and unfair business practices in the future.

59. 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 aresult 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 is restrained from continuing to

engage in these unlawful and unfair business practices.

SECOND CAUSE OF ACTION

For Failure To Pay Overtime Compensation [Cal. Lab. Code §§ 204, 510, 1194 and 1198] (By PLAINTIFF and the CALIFORNIA LABOR SUB-CLASS and Against All Defendants)

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

61. PLAINTIFF and the other members of the CALIFORNIA LABOR SUB-CLASS bring a claim for DEFENDANT’s willful and intentional violations of the California Labor Code and the Industrial Welfare Commission requirements for DEFENDANT’s failure to accurately calculate the applicable rates for all overtime worked by PLAINTIFF and other members of the CALIFORNIA LABOR SUB-CLASS and DEFENDANT s failure to properly compensate the members of the CALIFORNIA LABOR SUB-CLASS for overtime worked, including, work performed in excess of eight (8) hours in a workday and/or forty (40) hours in any workweek.

62. Pursuant to Cal. Lab. Code § 204, other applicable laws and regulations, and public policy, an employer must timely pay its employees for all hours worked.

63. Cal. Lab. Code § 510 further provides that employees in California shall not be

employed more than eight (8) hours per workday and/or more than forty (40) hours per workweek unless they receive additional compensation beyond their regular wages in amounts specified by law.

64. Cal. Lab. Code § 1194 establishes an employee’s right to recover unpaid wages, including overtime compensation and interest thereon, together with the costs of suit. Cal. Lab. Code § 1198 further states that the employment of an employee for longer hours than those fixed by the Industrial Welfare Commission is unlawful.

65. DEFENDANT maintains a uniform wage practice of paying PLAINTIFF and the other members of the CALIFORNIA LABOR SUB-CLASS without regard to the correct amount of overtime worked and correct applicable overtime rate for the amount of overtime they worked. As set forth herein, DEFENDANT’s uniform policy and practice is to unlawfully and intentionally deny timely payment of wages due for the overtime worked by PLAINTIFF and the other members of the CALIFORNIA LABOR SUB-CLASS, and DEFENDANT 1n fact failed to pay these employees the correct applicable overtime wages for all overtime worked.

66. DEFENDANT’s uniform pattern of unlawful wage and hour practices manifested, without limitation, applicable to the CALIFORNIA LABOR SUB-CLASS as a whole, as a result of implementing a uniform policy and practice that denied accurate compensation to PLAINTIFF and the other members of the CALIFORNIA LABOR SUB-CLASS for all overtime worked, including, the work performed in excess of eight (8) hours in a workday and/or forty (40) hours in any workweek.

67. In committing these violations of the California Labor Code, DEFENDANT inaccurately calculates the amount of overtime worked and the applicable overtime rates and consequently underpays the actual time worked by PLAINTIFF and other members of the CALIFORNIA LABOR SUB-CLASS. DEFENDANT acted in an illegal attempt to avoid the payment of all earned wages, and other benefits in violation of the California Labor Code, the Industrial Welfare Commission requirements and other applicable laws and regulations.

68. Asadirect result of DEFENDANT’s unlawful wage practices as alleged herein, PLAINTIFF and the other members of the CALIFORNIA LABOR SUB-CLASS donotreceive full compensation for all overtime worked.

69. Cal. Lab. Code § 515 sets out various categories of employees who are exempt from the overtime requirements of the law. None of these exemptions are applicable to PLAINTIFF and the other members of the CALIFORNIA LABOR SUB-CLASS. Further, PLAINTIFF and the other members of the CALIFORNIA LABOR SUB-CLASS are not subject to a valid collective bargaining agreement that would preclude the causes of action contained herein this Complaint. Rather, the PLAINTIFF bring this Action on behalf of themselves and the CALIFORNIA LABOR SUB-CLASS based on DEFENDANT’s violations of non- negotiable, non-waiveable rights provided by the State of California.

70. During the CALIFORNIA LABOR SUB-CLASS PERIOD, PLAINTIFF and the other members of the CALIFORNIA LABOR SUB-CLASS have been paid less for time worked that they are entitled to, constituting a failure to pay all earned wages.

71. DEFENDANT fails to accurately pay PLAINTIFF and the other members of the CALIFORNIA LABOR SUB-CLASS overtime wages for the time they work which is in excess of the maximum hours permissible by law as required by Cal. Lab. Code §§ 510, 1194 & 1198, even though PLAINTIFF and the other members of the CALIFORNIA LABOR SUB-CLASS are required to work, and do in fact work, overtime as to which DEFENDANT fails to accurately record and pay using the applicable overtime rate as evidenced by DEFENDANT’s business records and witnessed by employees.

72. By virtue of DEFENDANT's unlawful failure to accurately pay all earned compensation to PLAINTIFF and the other members of the CALIFORNIA LABOR SUB- CLASS for the true time they worked, PLAINTIFF and the other members of the CALIFORNIA LABOR SUB-CLASS have suffered and will continue to suffer an economic injury in amounts which are presently unknown to them and which will be ascertained according to proof at trial.

73. DEFENDANT knew or should have known that PLAINTIFF and the other members of the CALIFORNIA LABOR SUB-CLASS are under compensated for their overtime worked. DEFENDANT systematically elected, either through intentional malfeasance or gross nonfeasance, to not pay employees for their labor as a matter of uniform company policy, practice and procedure, and DEFENDANT perpetrated this systematic scheme by refusing to pay PLAINTIFF and the other members of the CALIFORNIA LABOR SUB-CLASS the applicable overtime rate.

74. Inperforming the acts and practices herein alleged in violation of California labor laws, and refusing to compensate the members of the CALIFORNIA LABOR SUB-CLASS for all time worked and provide them with the requisite overtime compensation, DEFENDANT acted and continues to act intentionally, oppressively, and maliciously toward PLAINTIFF and the other members of the CALIFORNIA LABOR SUB-CLASS with a conscious of and utter disregard for their legal rights, or the consequences to them, and with the despicable intent of depriving them of their property and legal rights, and otherwise causing them injury in order to increase company profits at the expense of these employees.

75. PLAINTIFF and the other members of the CALIFORNIA LABOR SUB-CLASS therefore request recovery of all unpaid wages, including overtime wages, according to proof, interest, statutory costs, as well as the assessment of any statutory penalties against DEFENDANT, in a sum as provided by the California Labor Code and/or other applicable statutes. To the extent overtime compensation is determined to be owed to the CALIFORNIA LABOR SUB-CLASS Members who have terminated their employment, DEFENDANT’S conduct also violates Labor Code §§ 201 and/or 202, and therefore these individuals are also be entitled to waiting time penalties under Cal. Lab. Code § 203, which penalties are sought herein on behalf of these CALIFORNIA LABOR SUB-CLASS Members. DEFENDANT’s conduct as alleged herein was willful, intentional and not in good faith. Further, PLAINTIFF and other CALIFORNIA LABOR SUB-CLASS Members are entitled to seek and recover

THIRD 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)

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

77. 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 does 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 are often not fully relieved of duty by DEFENDANT for their meal periods. Additionally, DEFENDANT’s failure to provide PLAINTIFF and the CALIFORNIA LABOR SUB-CLASS Members with legally required meal breaks prior to their fifth (5th) hour of work 1s evidenced by DEFENDANT’s business records. As a result, PLAINTIFF and other members of the CALIFORNIA LABOR SUB-CLASS therefore forfeit meal breaks without additional compensation and in accordance with DEFENDANT’s strict corporate policy and practice.

78. 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 are 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 each workday that a meal period was not provided.

79. 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.

FOURTH 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)

80. 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.

81. Fromtime to time, PLAINTIFF and other CALIFORNIA LABOR SUB-CLASS Members are required to work in excess of four (4) hours without being provided ten (10) minute rest periods. Further, these employees are 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 are also not provided with one hour wages in lieu thereof. As a result of their rigorous work schedules, PLAINTIFF and other CALIFORNIA LABOR SUB-CLASS Members are periodically denied their proper rest periods by DEFENDANT and DEFENDANT’s managers.

82. 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 are 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 was not provided. 83. 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.

FIFTH 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)

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

85. Cal. Labor Code § 226 provides that an employer must furnish employees with an “accurate itemized” statement in writing showing:

(1) gross wages earned,

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

is solely based on a salary and who is 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 if the employee

is 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 identification number other than a social security number may be shown on the itemized statement,

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

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

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

86. When PLAINTIFF and other CALIFORNIA CLASS Members work overtime in the same pay period they earned incentive wages and or miss meal and rest breaks, DEFENDANT also fails to provide PLAINTIFF and the other members of the CALIFORNIA CLASS with complete and accurate wage statements which fail to show, among other things, the correct overtime rate for overtime worked, including, work performed in excess of eight (8) hours in a workday and/or forty (40) hours in any workweek. Cal. Lab. Code § 226 provides that every employer shall furnish each of his or her employees with an accurate itemized wage statement in writing showing, among other things, gross wages earned and all applicable hourly rates in effect during the pay period and the corresponding amount of time worked at each hourly rate. Aside, from the violations listed above in this paragraph, DEFENDANT f{ails to issue to PLAINTIFF an itemized wage statement that lists all the requirements under California Labor Code 226 et seq. Asaresult, from time to time DEFENDANT provides PLAINTIFF and the other members of the CALIFORNIA CLASS with wage statements which violated Cal. Lab. Code § 226.

87. DEFENDANT knowingly and intentionally fails 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 include, but are not limited to, costs expended calculating the correct rates for the overtime worked and the amount of employment taxes which were not properly paid to state and federal tax authorities. These damages are 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 in 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).

PRAYER FOR RELIEF

WHEREFORE, PLAINTIFF pray for judgment against each Defendant, jointly and

severally, as follows:

1. On behalf of the CALIFORNIA CLASS:

A)

B)

C)

D)

i

A)

B)

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;

An order temporarily, preliminarily and permanently enjoining and restraining DEFENDANT from engaging in similar unlawful conduct as set forth herein; An order requiring DEFENDANT to pay all wages and all sums unlawfuly withheld from compensation due to PLAINTIFF and the other members of the CALIFORNIA CLASS; and,

Restitutionary disgorgement of DEFENDANT s ill-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:

That the Court certify the Second, Third, Fourth and Fifth 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, including compensatory damages for overtime compensation due PLAINTIFF and the other members of the CALIFORNIA LABOR SUB-CLASS, during the applicable CALIFORNIA LABOR SUB-CLASS PERIOD plus interest thereon at the statutory rate; C) 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 rest breaks; and,

D) 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.

3. On all claims:

A) Anaward of interest, including prejudgment interest at the legal rate;

B) 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 §218.5, §226, and/or §1194.

Dated: April27,2018 BLUMENTHAL NORDREHAUG BHOWMIK DE BLOUW LLP

DEMAND FOR A JURY TRIAL

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

Dated: April27,2018 BLUMENTHAL NORDREHAUG BHOWMIK DE BLOUW LLP

By: _/s/ Norman Blumenthal