This case was last updated from Santa Clara County Superior Courts on 08/08/2019 at 08:44:00 (UTC).

Arizmendi v. ESA Management, LLC

Case Summary

On 08/21/2018 Arizmendi filed a Labor - Other Labor lawsuit against ESA Management, LLC. This case was filed in Santa Clara County Superior Courts, Downtown Superior Court located in Santa Clara, California. The Judge overseeing this case is Walsh, Brian C. The case status is Other - Transferred.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ******3342

  • Filing Date:

    08/21/2018

  • 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

Walsh, Brian C

 

Party Details

Plaintiff

Arizmendi, Sandra

Defendant

ESA Management, LLC

Not Classified By Court

Superior Court of California

Attorney/Law Firm Details

Plaintiff Attorneys

Melmed, Jonathan

Ackermann, Craig Justin

Defendant Attorneys

Porter, Lindbergh, Jr.

Bockes, Kurt Reo

Not Classified By Court Attorney

Superior Court of CA, County of Santa Clara

 

Court Documents

Proof of Service

PROOF.pdf: Comment: Proof of Service

Notice

NOTICE.pdf: Comment: Notice to State Court and Adverse Parties of Removal of Action to Federal Court

Proof of Service

posComplaint.pdf: Comment: Proof of Service

Answer (Unlimited) (Fee Applies)

Answer to Complaint: Comment: Defendant ESA Management, LLC's Answer to Plaintiff's Complaint

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

Civil Lawsuit Notice

Civil Lawsuit Notice: Comment: 1st CMC set for 12/14/18 at 10am in D1; assigned to Hon. Brian C. Walsh

Proof of Service: Summons DLR (Civil)

Proof of Service of Summons Complaint: Comment: Proof of Service of Summons

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

  • 12/14/2018
  • Conference: Case Management - Judicial Officer: Walsh, Brian C; Hearing Time: 10:00 AM; Cancel Reason: Vacated; Comment: (1st CMC) Proposed Wage and Hour Class and PAGA Action * Discovery and responsive pleading deadline stayed, as of 9/10/18, when the case was deemed complex. Deft ESA Management, LLC's Answer to Complaint filed 9/21/18; removal to Federal Court filed 9/24/18.

    Read MoreRead Less
  • 09/24/2018
  • View Court Documents
  • Proof of Service - PROOF.pdf: Comment: Proof of Service

    Read MoreRead Less
  • 09/24/2018
  • View Court Documents
  • Notice - NOTICE.pdf: Comment: Notice to State Court and Adverse Parties of Removal of Action to Federal Court

    Read MoreRead Less
  • 09/21/2018
  • View Court Documents
  • Proof of Service - posComplaint.pdf: Comment: Proof of Service

    Read MoreRead Less
  • 09/21/2018
  • View Court Documents
  • Answer (Unlimited) (Fee Applies) - Answer to Complaint: Comment: Defendant ESA Management, LLC's Answer to Plaintiff's Complaint

    Read MoreRead Less
  • 09/10/2018
  • View Court Documents
  • 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

    Read MoreRead Less
  • 08/24/2018
  • View Court Documents
  • Proof of Service: Summons DLR (Civil) - Proof of Service of Summons Complaint: Comment: Proof of Service of Summons

    Read MoreRead Less
  • 08/21/2018
  • View Court Documents
  • Summons: Issued/Filed - Summons Issued Filed:

    Read MoreRead Less
  • 08/21/2018
  • View Court Documents
  • Civil Lawsuit Notice - Civil Lawsuit Notice: Comment: 1st CMC set for 12/14/18 at 10am in D1; assigned to Hon. Brian C. Walsh

    Read MoreRead Less
  • 08/21/2018
  • View Court Documents
  • Civil Case Cover Sheet - Civil Case Cover Sheet: Comment: COMPLEX

    Read MoreRead Less
  • 08/21/2018
  • View Court Documents
  • Complaint (Unlimited) (Fee Applies) - Complaint (Unlimited) (Fee Applies):

    Read MoreRead Less

Complaint Information

E-FILED

8/21/2018 5:27 PM

ACKERMANN & TILAJEF, P.C. Clerk of Court

Craig J. Ackermann, CA Bar No. 229832 Superior Court of CA, cja@ackermanntilajef.com County of Santa Clara 1180 South Beverly Drive, Suite 610 18CV 333342

Los Angeles, California 90035 Reviewed By: R. Walker

Phone: (310) 277-0614 Fax: (310) 277-0635

MELMED LAW GROUP P.C. Jonathan Melmed, CA Bar No. 290218 m@melmedlaw.com

1180 South Beverly Drive, Suite 610 Los Angeles, California 90035

Phone: (310) 824-3828

Fax: (310) 862-6851

Attorneys for Plaintiff, the Class and the Aggrieved Employees

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

SANDRA ARIZMENDL, an individual,on | CASENO. 18CV 333342 behalf of the State of California, as a private attorney general, and on behalf of all others CLASS ACTION AND PAGA

similarly situated REPRESENTATIVE ACTION

COMPLAINT FOR

Plaintiff,

(1) FAILURE TO PROVIDE OFF-

V. DUTY REST PERIODS TO AND PAY

REST BREAK PREMIUMS (LABOR

ESA Management, LLC, a Delaware CODKE § 226.7 AND IWC WAGE Limited Liability Company, and DOES 1 to ORDER NO. 5); 50, inclusive, (2) FAILURE TO PROVIDE OFF-

DUTY MEAL PERIODS TO AND PAY

Defendants. MEAL PERIOD PREMIUMS (LABOR

CODE §§ 226.7, 512, AND IWC WAGE ORDER NO. 5);

(3) FAILURE TO PROVIDE COMPLETE/ACCURATE WAGE STATEMENTS IN VIOLATION OF

LABOR CODE § 226(a);

(4) FAILURE TO PAY ALL WAGES OWED UPON TERMINATION (LABOR CODE §§ 201-203)

(5) UCL VIOLATIONS (BUS. & PROF. CODE §§ 17200-17204);

(6) PAGA AND OTHER PENALTIES

(LABOR CODE §§ 2699, et seq., and 558).

DEMAND FOR JURY TRIAL

L. INTRODUCTION

1. Plaintiff brings this action on behalf of herself and all others similarly situated, as a class action pursuant to California Code of Civil Procedure § 382 and as a PAGA representative action pursuant to Labor Code § 2699, ef seq., and on behalf of the California general public, against Defendant ESA Management, LLC, and DOES 1 to 50 (collectively, “Defendants™) for Defendants’ (1) failure to provide off-duty rest breaks and/or pay missed rest break premiums; (2) failure to provide off-duty meal periods and/or pay missed meal period premiums; (3) failure to provide complete and accurate wage statements; (4) failure to pay all wages owed upon termination; (5) unfair business practices based on the foregoing; and (6) PAGA and other penalties based on the foregoing. As a result of the foregoing, Defendants have violated California statutory laws as described below.

2. The “Class Period” 1s designated as the period from four years prior to the filing of this action through the trial date. The PAGA period for the Rest Period Aggrieved Employees is the period from May 23, 2017 and ongoing. The PAGA period for the Meal Period Aggrieved Employees is the period from August 15, 2017 and ongoing. Defendants’ violations of California’s wage and hour laws and unfair competition laws, as described more fully below, have been ongoing throughout the Class Period and throughout the PAGA period and are ongoing.

IL. JURSIDICTION AND VENUE

3. This Court has subject matter jurisdiction over any and all causes of action asserted herein pursuant to Article VI, § 10 of the California Constitution and California Code of Civil Procedure § 410.10 by virtue of the fact that this 1s a civil action in which the matter in controversy, exclusive of interest, exceeds $25,000, and because each cause of action asserted arises under the laws of the State of California or is subject to adjudication in the courts of the

State of California. 4. This Court has personal jurisdiction over Defendants because Defendants have caused 1njuries in the County of Santa Clara and State of California through their acts, and by their violation of the California Labor Code and California state common law. Defendants transact millions of dollars of business within the state of California.

5. Venue as to Defendants is proper in this judicial district, pursuant to Code of Civil Procedure § 395. Defendants operate within California and do business within Santa Clara County, California. The unlawful acts alleged herein have a direct effect on Plaintiff and all of Defendants’ employees within Santa Clara County. Plaintiff 1s informed and believes that Defendants keep and maintain a regional headquarters in the County of Santa Clara.

III. THE PARTIES

A. PLAINTIFF

6. Plaintiff Sandra Arizmendi is a citizen of California, , and, at all times pertinent hereto, worked for Defendants in California. During the Class Period and PAGA period, Plaintiff was employed by Defendants as an hourly, nonexempt employee.

7. Plaintiff represents the state of California as well as two (2) groups of aggrieved employees defined as: (1) all hourly non-exempt individuals, who are or were employed by ESA Management, LLC or its predecessor or merged entities in California who worked at least one shift longer than 3.5 hours at any time from May 23, 2017 and ongoing (the “Rest Period Aggrieved Employees™); (2) all hourly non-exempt individuals, who are or were employed by ESA Management, LLC, or its predecessor or merged entities in California who worked at least one shift longer than 5 hours at any time from August 15, 2017 and ongoing (the “Meal Period Aggrieved Employees™). Collectively, the Rest Period Aggrieved Employees and the Meal Period Aggrieved Employees are referred to as the “Aggrieved Employees.”

8. Plaintiff also seeks to represent a Class of employees defined as: all non-exempt hourly individuals who are or were employed by ESA Management, LLC or its predecessor or merged entities in the State of California, who are or were classified as non-exempt at any time

from four years prior to the filing of this Complaint and ongoing (“Class Members™). 9. Plaintiff also seeks to represent two subclasses, the Rest Period Subclass and the Meal Period Subclass. The Rest Period Subclass 1s defined as all Class Members who worked at least one shift which lasted more than 3.5 hours. The Meal Period Subclass is defined as all Class Members who worked at least one shift which lasted more than 5 hours.

10. Plaintiff, Class Members, and the Aggrieved Employees at all times pertinent hereto, are, or were, employees of Defendants.

11. Upon information and belief, Plaintiff, Class Members and the Aggrieved Employees are covered by California Industrial Welfare Commission Occupational Wage Order No. 5-2001.

B. DEFENDANTS

12. Defendant ESA Management, LLC (“ESA”) is a North Carolina limited liability company that does business throughout the State of California under the brand name of Extended Stay America. ESA owns and operates approximately 60 hotels throughout the State of California. ESA employed Plaintiff, Class Members and the Aggrieved Employees within California. ESA has done and does business throughout the State of California including Santa Clara County, where it keeps and maintains a regional headquarters.

13. The true names and capacities, whether individual, corporate, associate, or otherwise, of Defendants sued herein as DOES 1 to 50, inclusive, are currently unknown to Plaintiff, who therefore sues Defendants by such fictitious names under Code of Civil Procedure § 474. Plaintiff is informed and believes, and based thereon alleges, that each of the Defendants designated herein as a DOE is legally responsible in some manner for the unlawful acts referred to herein. Plaintiff will seek leave of court to amend this Complaint to reflect the true names and capacities of the Defendants designated hereinafter as DOES when such identities become known.

14. Plaintiff is informed and believes, and based thereon alleges, that each Defendant acted in all respects pertinent to this action as the agent of the other Defendants, carried out a joint

scheme, business plan or policy in all respects pertinent hereto, and the acts of each Defendant are legally attributable to the other Defendants. Furthermore, Defendants in all respects acted as the employer and/or joint employer of Plaintiff and the other aggrieved employees. IV. FACTUAL BACKGROUND

15. Plaintiff, Class Members, and the Aggrieved Employees are, and were at all times pertinent hereto, classified as non-exempt employees by Defendants.

16. Plaintiff, Class Members, and the Aggrieved Employees consistently worked shifts more than four (4) hours or a major fraction thereof, including shifts up to and in excess of eight (8) hours.

17. Under IWC Wage Order 5-2001 an employer must authorize and permit all employees to take ten (10) minute duty free rest periods for every major fraction of four (4) hours worked. Labor Code § 226.7 provides “an employer shall not require an employee to work during a meal or rest or recovery period mandated pursuant to an applicable statute, or applicable regulation, standard, or order of the Industrial Welfare Commission (“IWC”). See Augustus v. ABM Security Services, Inc. (2016) 2 Cal. 5th 257, 269 (concluding that “during rest periods employers must relieve employees of all duties and relinquish control over how employees spend their time.”). In Augustus, the court expressly rejected the employer’s assertion that it could provide an on-duty rest period to employees who worked as security guards and further explained “that employers [must] relinquish any control over how employees spend their break time, and relieve their employees of all duties.” Id. at 273.

18. At all times pertinent hereto, and throughout the Class Period and the PAGA Period, Defendants failed to have a lawful rest period policy in place that informed Plaintiff, the Rest Period Subclass Members, and the Rest Period Aggrieved Employees of their right to take rest periods for shifts that were a major fraction of a four (4) hour work period and to make rest breaks available to these employees. Instead, Defendants’ rest period policy advised Plaintiff, the Rest Period Subclass Members, and the Rest Period Aggrieved Employees to take rest breaks on- site and to remain on duty during their rest periods. Per the ESA Employee Handbook, page 19, “All food and beverage items should be eaten in the break room or other Company designated

area only. Associates may be required to remain on premises during their meal and rest periods.” 19. Defendants did not permit Plaintiff, the Rest Period Subclass Members, or the Rest Period Aggrieved Employees to leave the premises during rest periods as required by Labor Code § 226.7 and Wage Order 5-2001. Augustus, 2 Cal. 5th at 269. In fact, Defendants required that Plaintiff, the Rest Period Subclass Members, and the Rest Period Aggrieved Employees remain on-duty and on-site through their rest periods. Accordingly, as a result of its faulty rest period policies, Defendants regularly and consistently failed to authorize and permit Plaintiff, the Rest Period Subclass Members, and all Rest Period Aggrieved Employees to take compliant rest periods.

20. The Brinker Court explained in the context of rest breaks that employer liability

attaches from adopting an unlawful policy:

An employer is required to authorize and permit the amount of rest break time called for under the wage order for its industry. If it does not—if, for example, it adopts a uniform policy authorizing and permitting only one rest break for employees working a seven-hour shift when two are required—it has violated the wage order and is liable.

(Brinker Rest. Corp. v. Sup. Ct. (2012) 53 Cal.4th 1004, 1033.) [emphasis added]. 21. Following Brinker, the Courts of Appeal have confirmed that liability for on-duty

breaks arises when an employer adopts a uniform policy that fails to provide off-duty breaks. For example, in Faulkinbury vs. Boyd & Associates, Inc., the California Court of Appeal applied Brinker: “In Faulkinbury I, we concluded that even if [defendant]’s on-duty meal break policy was unlawful, [defendant] would be liable only when it actually failed to provide a required off- duty meal break. Brinker leads us now to conclude [defendant] would be liable upon a determination that [defendant]’s uniform on-duty meal break policy was unlawful.” (Faulkinbury v. Boyd & Associates, Inc. (2013) 216 Cal.App.4th 220 The Court further explained: “the employer's liability arises by adopting a uniform policy that violates the wage and hour laws. Whether or not the employee was able to take the required break goes to damages...” (/bid. [citations omitted]; see also Benton v. Telecom Network Specialists, Inc. (2013) 220 Cal. App. 4th 701, 728.)

22. Since Defendants did not offer Plaintiff, Rest Period Subclass Members, and the Rest Period Aggrieved Employees the opportunity to receive a compliant off-duty rest period, “the court may not conclude employees voluntarily chose to skip...breaks.” Alberts v. Aurora Behavioral Health Care, 241 Cal. App. 4th 388, 410 (2015) (“[1]f an employer fails to provide legally compliant meal or rest breaks, the court may not conclude employees voluntarily chose to skip those breaks.”); accord Brinker 53 Cal. 4th at 1033 (“No i1ssue of waiver ever arises for a rest break that was required by law but never authorized; if a break is not authorized, an employee has no opportunity to decline to take it.”).

23. Further, even an employer who maintains an otherwise compliant rest period policy, “reminded their employees of their availability—and the importance—of taking breaks on a daily basis, and even went so far as to conduct regular audits to ensure that employees were being offered rest breaks” will still be liable for rest period violations if the employees were provided non-compliant rest periods. Amaro v. Gerawan Farming, Inc., 2016 U.S. Dist. LEXIS 66842 * (E.D. Cal. May 19, 2016) aff'd Amaro v. Gerawan, 2016 U.S. Dist. LEXIS 112540, 2016 WL 4440966, at *11 (E.D. Cal. Aug. 22, 2016); rev. denied by 9th Cir. Case No. 0:16-23f-80120 (9th Cir. Nov. 16, 2016).

24. Here, again, Plaintiff, Rest Period Subclass Members, and the Rest Period Aggrieved Employees were subject to common policies that required them to stay on premises throughout their shifts. As a result, neither Plaintiff, nor the Rest Period Subclass Members, nor the Rest Period Aggrieved Employees were ever provided with a rest period free from all duties, in violation of the Wage Order.

25. Further, as noted above, pursuant to Defendant’s policies, Plaintiff, the Meal Period Subclass Members, and the Meal Period Aggrieved Employees were required to take on- duty meal periods.

26. “An on-duty meal period is permitted only when the nature of the work prevents an employee from being relieved of all duty and the parties agree in writing to an on-duty paid meal break.” Lubin v. The Wackenhut Corp. (2016) 5 Cal. App. 5th 926, 932.) The written agreement must include a provision allowing the employee to revoke it at any time. Id. Here, Plaintiff and the Class Members were never asked to sign any such on-duty meal period

agreement. 27. Generally, the DLSE and courts have “found that the nature of the work exception applies: ‘(1) where the work has some particular external force that requires the employee to be on duty at all times, and (2) where the employee is the sole employee of a particular employer.” Id. at p. 945; Abdullah v. U.S. Security Associates, Ifenc. (9th Cir. 2013) 731 F.3d 952, 958-959.) “[I]t 1s the employer’s obligation to determine whether the nature of the work prevents an employee from being relieved before requiring an employee to take an on-duty meal period.” Lubin, 5 Cal. App. 5th at p. 946.) Nor may an employer “discharge its duty by arguing that its clients who requested on-duty meal periods determined that the nature of the work prevented officers from being relieved of all duty.” Id. at p. 947; Benton, 220 Cal. App. 4th at p. 729.)

28. Here, there was no “nature of the work” exception. Plaintiff, the Meal Period Subclass Members, and Meal Period Aggrieved Employees are employed by ESA, which owns and operates over sixty hotels throughout the State of California, and employs hundreds of employees. In short, there is no reason why ESA could not overlap employee schedules such that Plaintiff, the Meal Period Aggrieved Employees, and the Meal Period Subclass Members could take meal periods free and be relieved of all duties.

29. Labor Code § 226.7 provides “an employer shall not require an employee to work during a meal or rest or recovery period mandated pursuant to an applicable statute, or applicable regulation, standard, or order of the Industrial Welfare Commission (“IWC”). Similarly, under IWC Wage Order 5-2001 prohibits an employer from “employ[ing] any person for a work period of more than five (5) hours without a meal period of not less than 30 minutes. IWC Wage Order 5-2001 further obligates employers to provide an employee to “pay the employee one (1) hour of pay at the employee’s regular rate of compensation for each workday that the meal period 1s not provided. Accordingly, for each day that Plaintiff, the Meal Period Aggrieved Employees, and the Meal Period Subclass Members did not receive compliant meal periods, they are entitled to receive meal period premiums pursuant to Labor Code § 226.7 and Wage Order 5-2001.

30. During the Class Period and the PAGA Period, Plaintiff, the Meal Period Subclass Members, and all Meal Period Aggrieved Employees were not compensated with one (1) hours’

worth of pay at their regular rate of compensation when they were not provided with a compliant rest period or a compliant meal period or at the proper rate based upon Defendants’ unlawful compensation policies detailed above.

31. Labor Code § 226(a)(1), (2), and (5), requires employers semimonthly or at the time or each payment of wages, furnish each of his or her employees, an accurate itemized statement in writing showing the gross wages earned, the total hours worked by the employee, and the net wages earned during the pay period.

32. From at least May 23, 2017 through the present, Defendants knowingly and intentionally failed to issue accurate and complete itemized wage statements in writing to Plaintiff, the Class Members, and all Aggrieved Employees that accurately indicate the gross wages earned, total hours worked by the employee and the net wages earned during the pay period because those wage statements did not include compensation for rest break premiums and meal break premiums, as required by Cal. Labor Code § 226.7.

33. Due to Defendants’ failure to provide employees with lawful off-duty rest periods, lawful off-duty meal periods, and its improper on-duty meal and rest period policy as detailed above, the wage statements issued by the Defendants to Plaintiff, the Class Members and the Aggrieved Employees further do not indicate the correct amount of gross wages earned, total hours worked or the net wages earned the pay period in violation of Labor Code § 226(a)(1), (2) and (5). Thus, Plaintiff 1s an aggrieved employee within the meaning of PAGA and Defendants have violated Labor Code § 226(a)(1), (2), and (5) with respect to Plaintiff, the Class, and all aggrieved employees.

34. Plaintiff fully and completely exhausted her administrative remedies under PAGA prior to proceeding with this action. On May 23, 2018, Plaintiff filed her PAGA Notice online with the Labor Workforce Development Agency (“LWDA™) and sent a letter by certified mail to Defendants setting forth the facts and theories of the violations alleged against Defendants, as prescribed by Labor Code § 2698 et seq. On August 15, 2018, Plaintiff filed her amended PAGA Notice online with the Labor workforce Development Agency (“LWDA™) and sent a letter by certified mail to Defendants setting forth further facts and theories of the violations alleged

against Defendants, as prescribed by Labor Code § 2698 ef seq. As required by PAGA, Plaintiff submitted the $75.00 filing fee with the LWDA by regular mail. Pursuant to Labor Code § 2699.3(a)(2)(A), no notice was received by Plaintiff from the LWDA evidencing its intention to investigate within sixty-five (65) calendar days of the postmark date of the PAGA notice. Plaintiff is therefore, entitled to commence and proceed with a civil action pursuant to Labor Code § 2699. III. CLASS ACTION ALLEGATIONS

35. Plaintiff brings this action, on behalf of herself and all others similarly situated, as a class action pursuant to Code of Civil Procedure § 382. Plaintiff seeks to represent Class

composed of and defined as:

all non-exempt hourly individuals who are or were employed by ESA Management, LLC or its predecessor or merged entities in the State of California, at any time from four years prior to the filing of this Complaint and ongoing.

In addition, Plaintiff seeks to represent the following subclasses:

Rest Period Subclass: all Class Members who worked a shift that lasted longer than 3.5 hours at any time from four years prior to the filing of this Complaint and ongoing.

Meal Period Subclass: all Class Members who worked a shift that lasted longer than 5 hours at any time from four years prior to the filing of this Complaint and ongoing.

Waiting Time Sublcass: all Class Members whose employment with Defendant ends within the last 3 years.

36. This action has been brought and may properly be maintained as a class action under Code of Civil Procedure § 382 because there is a well-defined community of interest in the litigation, the proposed class 1s easily ascertainable, and Plaintiff, is a proper representative of the Class:

a. Numerosity: The potential members of the Class and Subclasses as defined are so numerous that joinder of all the members of the Class and Subclasses is impracticable. While the precise number of Class Members and Subclass Members have not been determined at this time, Plaintiff is informed and believe that Defendants has, on average, during the Class Period employed over 500 Class Members and Subclass Members in California subject to

Defendants’ on-duty meal and rest period policy. Due to employee turnover, the total number of Class Members who are no longer employed by Defendants 1s estimated to be more than 1,000. The Class Members are dispersed throughout California. Joinder of all members of the proposed classes 1s therefore not practicable.

b. Commonality: There are questions of law and fact common to Plaintiff and the Class that predominate over any questions affecting only individual members of the Class. These common questions of law and fact include, without limitation:

1. Whether Defendants violated Labor Code section 226.7 and Section 12 of Wage Order 5-2001 by not relieving the Rest Period Subclass Members of all duties during their statutorily mandated rest periods;

1. Whether Defendants violated Labor Code section 226.7 failing to pay one hour of premium pay to each member of the Rest Period Subclass for each day that an off-duty rest break was not provided in California during the Class Period;

111. Whether Defendants violated Labor Code section 226.7, 512, and Section 11 IWC Wage Order 5-2001 by not relieving the Meal Period Sublass Members of all duties during the statutorily mandated meal periods;

iv. Whether Defendants violated Labor Code section 226.7 failing to pay one hour of premium pay to each member of the Meal Period Subclass for each day that an off-duty meal period was not provided in California during the Class Period;

v. Whether Defendants failed to provide Plaintiff and the members of the Class complete wage statements with information included about their total hours worked, the gross wages earned, the net wages paid and premium payments for non-compliant meal and rest periods 1n violation of Labor Code Section 226(a) and 226.3;

vi. Whether Defendants failed to pay all wages owed to Plaintiff and the members of the Waiting Time Penalty Class upon termination in violation of Cal. Labor Code §§201-203.

vil. Whether Defendants engaged in an unfair practice and violated section 17200 of the California Business and Professions Code by failing to provide Plaintiff and the Rest

Period Subclass Members with rest periods free of all duties; viii. Whether Defendants engaged in an unfair practice and violated section 17200 et seq. of the California Business and Professions Code by failing to provide pay rest break premiums for all on-duty rest breaks taken by members of the Rest Period Subclass in violation of Section 12 of IWC Wage Order No. 5; ix. Whether Defendants engaged in an unfair practice and violated section 17200 of the California Business and Professions Code by failing to provide Plaintiff and the Meal Period Subclass Members with meal periods free of all duties; X. Whether Defendants engaged in an unfair practice and violated section 17200 et seq. of the California Business and Professions Code by failing to provide pay meal period premiums for all on-duty meal periods taken by members of the Meal Period Subclass in violation of Section 11 of IWC Wage Order No. 5; x1. Whether Plaintiff and the Class are entitled to restitution under Business and Professions Code § 17200 et seq.; xi1. The proper formula(s) for calculating damages, interest, and restitution owed to Plaintiff and the Class Members; and xi1i. The nature and extent of class-wide damages.

C. Typicality: Plaintiff’s claims are typical of the claims of the Class. Both Plaintiff and Class Members sustained injuries and damages, and were deprived of property rightly belonging to them, arising out of and caused by Defendants’ common course of conduct in violation of law as alleged herein, in similar ways and for the same types of expenses.

d. Adequacy of Representation: Plaintiff 1s a member of the Class and will fairly and adequately represent and protect the interests of the Class and Class Members. Plaintiff’s interests do not conflict with those of Class and Class Members. Counsel who represents Plaintiff are competent and experienced in litigating large wage and hour class actions, including numerous cases virtually i1dentical to this one, and other employment class actions, and will devote sufficient time and resources to the case and otherwise adequately represent the Class and Class Members.

e. Superiority of Class Action: A class action is superior to other available means for the fair and efficient adjudication of this controversy. Individual joinder of all Class Members 1s not practicable, and questions of law and fact common to the Class predominate over any questions affecting only individual members of the Class. Each Class Member has been damaged or may be damaged in the future by reason of Defendants’ unlawful policies and/or practices as described herein. Certification of this case as a class action will allow those similarly situated persons to litigate their claims in the manner that is most efficient and economical for the parties and the judicial system. Certifying this case as a class action 1s superior because it allows for efficient and full disgorgement of the ill-gotten gains Defendants have enjoyed by maintaining its unlawful compensation policies and will thereby effectuate California’s strong public policy of protecting employees from deprivation or offsetting of compensation earned in their employment. If this action 1s not certified as a Class Action, it will be impossible as a practical matter, for many or most Class Members to bring individual actions to recover monies unlawfully withheld from their lawful compensation due from Defendants, due to the relatively small amounts of such

individual recoveries relative to the costs and burdens of litigation.

FIRST CAUSE OF ACTION FAILURE TO PROVIDE OFF-DUTY REST PERIODS AND PAY MISSED REST PERIOD PREMIUMS

[Cal. Labor Code §§ 226.7; Section 12 OF IWC Wage Order No. 5-2001] On behalf of Plaintiff and the Rest Period Subclass Against All Defendants

37. Plaintiff re-alleges and incorporates by reference each and every allegation set forth in the preceding paragraphs.

38. The actionable period for this cause of action is three years prior to the filing of this Complaint through the present, and on-going until the violations are corrected, or the class is certified.

39. Under IWC Wage Order 5-2001 an employer must authorize and permit all employees to take ten (10) minute duty free rest periods for every major fraction of four hours worked. Labor Code § 226.7 provides “an employer shall not require an employee to work during a meal or rest or recovery period mandated pursuant to an applicable statute, or applicable regulation, standard, or order of the Industrial Welfare Commission.” By operation of law, Defendants had a duty to provide Plaintiff and Rest Period Subclass Members with rest periods completely free of all duties, and enable Plaintiff and the Rest Period Subclass Members to leave the worksite during those rest periods if they so desired. See Augustus v. ABM Security Services, Inc. (2016) 2 Cal. 5th 257, 269 (concluding that “during rest periods employers must relieve employees of all duties and relinquish control over how employees spend their time.”). In Augustus, the court expressly rejected the employer’s assertion that it could provide an on-duty rest period to employees who worked as security guards and further explained “that employers [must] relinquish any control over how employees spend their break time, and relieve their employees of all duties.” Id. at 273. But in violation of §226.7, and Wage Order 5-2001, Defendants did not provide Plaintiff, Rest Period Subclass Members with rest periods completely free of all duties, nor did Defendants enable Plaintiff or the Rest Period Subclass Members to leave the worksite during any rest period.

40. By way of their policies requiring employees to stay on site during their shifts, and stay on-call during their rest periods, Defendants failed to provide Plaintiff and the Rest Period Subclass Members with duty-free rest periods of not less than ten (10) minutes for every major fraction of four (4) hours worked. Specifically, Defendant failed to have a lawful rest period policy in place that informed Plaintiff and the Rest Period Subclass Members of their right to take duty-free rest periods for shifts that were a major fraction of a four (4) hour work period and to make duty-free rest breaks available to these employees. Further, Defendants did not permit Plaintiff or the Rest Period Subclass Members to leave the premises during rest periods as required by Labor Code § 226.7 and Wage Order 5-2001 and in violation of Augustus, 2 Cal. 5th at 269. Accordingly, as a result of its rest period policies, Defendants regularly and consistently failed to authorize and permit Plaintiff and the Rest Period Subclass Members to take compliant off duty rest periods.

41. Moreover, it was often impossible for Plaintiff and the Rest Period Subclass Members to take a rest period because of Defendants’ policy and practice of understaffing worksites. As a result of Defendants’ understaffing policies and practices, Plaintiff and the Rest Period Subclass Members were required to work shifts where they were the sole employee on-

duty, and thus were required to remain on-duty to assist Defendants’ customers, housekeeping staff, or management. On these shifts, in accordance with Defendants’ policies, Plaintiff and the Rest Period Subclass Members were not relieved of their duties and were required to stay onsite at all times during their shifts.

42. In addition to failing to authorize and permit compliant rest periods, and instead requiring on-premises rest breaks, Plaintiff and the Rest Period Subclass Members were not compensated with one (1) hours’ worth of pay at their regular rate of compensation when they were not provided with a compliant rest period in accordance with Labor Code § 226.7(b) and IWC Wage Order 5-2001 Section 12(B).

43. As a result of the unlawful acts of Defendants, Plaintiff and the Rest Period Subclass Members were not provided off duty rest periods, and are entitled to recovery under Cal. Labor Code §226.7 in the amount of one additional hour of pay at the employee’s regular rate of compensation for each work period during each day in which Defendants failed to provide duty-

free rest periods as required by California law.

SECOND CAUSE OFACTION FAILURE TO PROVIDE OFF-DUTY MEAL BREAKS AND PAY MISSED MEAL BREAK PREMIUMS

[Cal. Labor Code §§ 226.7, 512; Section 11 Of IWC Wage Order No. 5)] On Behalf of Plaintiff and the Meal Period Subclass Against All Defendants

44. Plaintiff incorporates all paragraphs above as though fully set forth herein. 45. 64. At all times relevant herein, Section 11050 of 8 California Code of

Regulations provided in relevant part:

A. No employer shall employ any person for a work period of more than five (5) hours without a meal period of not less than 30 minutes, except that when a work period of not more than six (6) hours will complete the day's work the meal period may be waived by mutual consent of the employer and the employee.

B. An employer may not employ an employee for a work period of more than ten (10) hours per day without providing the employee with a second meal period of not less than 30 minutes, except that if the total hours worked is no more than 12 hours, the second meal period may be waived by mutual consent of the employer and the employee only if the first meal period was not waived.

C. Unless the employee is relieved of all duty during a 30-minute meal period, the meal period shall be considered an "on duty" meal period and counted as time worked. An "on duty" meal period shall be permitted only when the nature of the work prevents an employee from being relieved of all duty and when by written agreement between the parties an on-the-job paid meal period i1s agreed to. The written agreement shall state that the employee may, in writing, revoke the agreement at any time.

D. If an employer fails to provide an employee a meal period in accordance with the applicable provisions of this order, the employer shall pay the employee one (1) hour of pay at the employee's regular rate of compensation for each workday that the meal period is not provided.

46. Likewise, California Labor Code Section 512(a): An employer may not employ an employee for a work period of more than five hours per day without providing the employee with a meal period of not less than 30 minutes, except that if the total work period per day of the employee 1s no more than six hours, the meal period may be waived by mutual consent of both the employer and employee. An employer may not employ an employee for a work period of more than 10 hours per day without providing the employee with a second meal period of not less than 30 minutes, except that if the total hours worked is no more than 12 hours, the second meal period may be waived by mutual consent of the employer and the employee only if the first meal period was not waived.

47. California Labor Code Section 226.7 requires an employer to pay an additional hour of compensation for each meal period the employer fails to provide in accordance with the applicable statute or Industrial Welfare Commission Wage Order.

48. During Plaintiff's employment, Defendants failed to provide Plaintiff and other members of the Meal Period Subclass with meal periods in accordance with the applicable Industrial Welfare Commission Wage Order and California Labor Code Sections 226.7 and 512. Specifically, Defendants violated Labor Code § 512 and IWC Wage Order 5-2001 § 11 by requiring Plaintiff and the Meal Period Subclass Members to take their meal periods on-site and on-call, and thus were not relieved of all duties during their meal periods.

49. Pursuant to California Labor Code Section 226.7, Plaintiff and other members of the Meal Period Subclass are entitled to damages in an amount equal to one (1) hour of wages per missed meal period,proven at trial.

//

THIRD CAUSE OF ACTION FAILURE TO ISSUE ACCURATE ITEMIZED WAGE STATEMENTS

[Cal. Labor Code §§ 226 And 226.3]

On Behalf of Plaintiff and Wage Statement Subclass Members Against All Defendants

50.

Plaintiff re-alleges and incorporates by reference each and every allegation set

forth in the preceding paragraphs.

51.

The actionable period for this cause of action is one year prior to the filing of this

Complaint through the present, and on-going until the violations are corrected, or the subclass is

certified.

52.

Section 226(a) of the California Labor Code provides, in relevant part:

Every employer shall.... furnish each of his or her employees...an accurate statement in writing showing (1) gross wages earned, (2) total hours worked by the employee, except for any employee whose compensation is solely based in a salary and who 1s exempt from payment of overtime under subdivision (a) of Section 515 or any applicable order of the Industrial Welfare Commission, (3) the number of piece-rate units earned, and any applicable piece rate if the employee 1s paid on a piece-rate basis, (4) all deductions, provided that all —.deductions made on written orders of the employee may be aggregated and shown as one item, (5) net wages earned, (6) the inclusive dates of the period for which the employee 1s paid, (7) the name of the employee and only the last four digits of his or her social security number or an employee identification number other than a social security number, (8) the name and address of the legal entity that 1s the employer, and (9) all applicable hourly rates in effect during the pay period and the corresponding number of the hours worked at each hourly rate by the employee...

53.

Section 226(e) provides that an employee is entitled to recover $50 for initial pay

period in which a violation of Section 226 occurs and $100 for each subsequent pay period, not to

exceed $4,000, as well as an award of costs and reasonable attorney’s fees, for all pay periods in

which the employer fails to provide accurate itemized statements to the employee causing the

employee to suffer injury.

54.

Due to Defendants’ failure to provide employees with lawful off-duty rest periods,

lawful off-duty meal periods, or pay Plaintiff and the Class Members rest period premiums and

meal period premiums, as detailed above, the wage statements issued by Defendants do not

indicate the correct amount of gross wages earned, total hours worked or the net wages earned in

violation of Labor Code § 226(a)(1), (2) and (5). 55. Defendants’ failure to provide Plaintiff and Class Members with accurate itemized wage statements during the Class Period has caused Plaintiff and Class Members who worked within the actionable period for this cause of action (the “Wage Statement Subclass Members”) to incur economic damages in that they were not aware that they were owed and not paid compensation for their time spent on statutory rest breaks. See Cicairos v. Summit Logistics, 133 Cal. App. 4th 949, 954 (“If 1t 1s left to the employee to add up the daily hours shown on the time cards or other records so that the employee must perform arithmetic computations to determine the total hours worked during the pay period, the requirements of section 226 would not be met”); McKenzie v. Federal Express Corp., 765 F. Supp. 2d 1222 (C.D. Cal. 2011) (wage statements violated California Labor Code by not including, inter alia, total hours worked giving rise to claims under both Section 226 and for PAGA penalties); Cicairos v. Summit Logistics, Inc., 133 Cal. App. 4th 949, 960-961 (2005) (reversing summary judgment for defendants where wage statements did not “give an accurate report of the hours plaintiff worked, at least not on its face™); Cal. Labor Code § 226(¢e)(2)(B) (clarifying that injury is established where the wage statement violated Section 226(a)(1), (2), or (5), among other provisions, and where employees cannot casily determine the gross or net wages earned by the employee during the pay period).

56. As a result of Defendants’ failure to issue accurate and complete itemized wage statements to Plaintiff and Class Members in violation of section 226(a) of the California Labor Code, Plaintiff Class Members who worked for Defendants within the one year preceding the filing of this Complaint are each entitled to recover an initial penalty of $50, and subsequent penalties of $100, up to an amount not exceeding an aggregate penalty of $4,000 for each member of the Class, including Plaintiff, from Defendants pursuant to section 226(e) of the

California Labor Code.

FOURTH CAUSE OF ACTION WAITING TIME PENALTIES FOR FAILURE TO PAY WAGES DUE ON TERMINATION

[Cal. Labor Code §§ 201-203] On Behalf of Plaintiff and the Waiting Time Penalty Subclass Against All Defendants

57. Plaintiff re-alleges and incorporates by reference each and every allegation set forth in the preceding paragraphs.

58. The actionable period for this cause of action is three years prior to the filing of this Complaint through the present, and on-going until the violations are corrected, or the class is certified.

59. Sections 201 and 202 of the California Labor Code require Defendants to pay all compensation due and owing to former sales representatives in the Class during the actionable period for this cause of action at or around the time that their employment 1s or was terminated or ended.

60. Section 203 of the California Labor Code provides that if an employer willfully fails to pay compensation promptly upon discharge or resignation, as required by Sections 201 and 202, then the employer is liable for penalties in the form of continued compensation up to thirty (30) work days.

61. Defendant willfully failed to pay Plaintiff and other members of the Waiting Time Penalty Subclass (i.e. those members of the Class whose employment with Defendant ended during the actionable period for this cause of action) who are no longer employed by Defendants, rest period premiums for their on-duty rest periods and meal period premiums for their on-duty meal periods, upon termination or separation from employment with Defendant as required by California Labor Code §§ 201 and 202.

62. Further, Plaintiff and the Waiting Time Penalty Subclass are entitled to waiting time penalties for Defendants’ failure to pay rest period premiums and meal period premiums. See e.g. In re Autozone, Inc., 2016 U.S. Dist. LEXIS 105746 *23 (N.D. Cal. Aug. 10, 2016) (denying the CPS’s motion for summary judgment on the plaintiff’s claim for waiting time penalties based upon the failure to provide rest period premiums and finding that the California Court of Appeals decision in Ling vs. P.F. Chang’s China Bistro, Inc. 245 Cal. App. 4th 1242 (2016) “concerned only whether ‘a section 203 waiting time claim based on section 226.7 premium pay is an action

299

brought for the non-payment of wages under section 218.5°”); Brewer v. Gen. Nutrition Corp.

(N.D. Cal. Aug. 27, 2015) 2015 WL 5072039, at *19 [denying CPS’s motion for summary

judgment because “the premium payments due under section 226.7 are to be considered “wages” for purposes of sections 203 and 226.”]; Abad v. Gen. Nutrition Centers, Inc. (C.D. Cal. Mar. 7, 2013) 2013 WL 4038617, at *3—4 [distinguishing Kirby, and finding “Plaintiff' section 203 claim for failure to pay wages...can be based on amounts owed under section 226.7.”.)

63. As a result, Defendants are liable to Plaintiff and other members of the Waiting Time Penalty Subclass for waiting time penalties amounting to thirty (30) days wages for Plaintiff and each such Class member pursuant to California Labor Code § 203. See, e.g., DLSE Manual, 4.3.4 (Failure to pay any sort of wages due upon termination entitles an employee to recover

waiting time penalties).

FIFTH CAUSE OF ACTION UNFAIR COMPETITION LAW VIOLATIONS

[Bus. & Prof. Code §§ 17200] On Behalf of Plaintiff and the Class Against All Defendants

64. Plaintiff re-alleges and incorporates by reference each and every allegation set forth in the preceding paragraphs.

65. Section 17200 of the California Business & Professions Code prohibits any unlawful, unfair, or fraudulent business practices. Business & Professions Code § 17204 allows “any person who has suffered injury in fact and has lost money or property” to prosecute a civil action for violation of the UCL. Such a person may bring such an action on behalf of herself and others similarly situated who are affected by the unlawful, unfair, or fraudulent business practice.

66. Under section 17208 of the California Business and Professions Code, the statute of limitations for a claim under Section 17200 1s four years. Accordingly, the actionable period for this cause of action is four years prior to the filing of this Complaint through the present, and on-going until the violations are corrected, and/or the class is certified.

67. Section 90.5(a) of the Labor Code states that it 1s the public policy of California to enforce vigorously minimum labor standards in order to ensure employees are not required to work under substandard and unlawful conditions, and to protect employers who comply with the law from those who attempt to gain competitive advantage at the expense of their workers by failing to comply with minimum labor standards.

68. As a direct and proximate result of Defendants’ unlawful business practices, Plaintiff and the Class Members have suffered economic injuries. Defendants have profited from its unlawful, unfair, and/or fraudulent acts and practices.

69. Plamtiff and similarly situated Class Members are entitled to monetary relief pursuant to Business & Professions Code § 17203 and 17208 for all unpaid wages due and interest thereon, from at least four years prior to the filing of this Complaint through the date of such restitution, at rates specified by law. Defendants should be required to disgorge all the profits and gains 1t has reaped and restore such profits and gains to Plaintiff and Class Members, from whom they were unlawfully taken.

70. Through its action alleged herein, Defendants have engaged in unfair competition within the meaning of section 17200 of the California Business & Professions Code, because Defendants’ conduct, as herein alleged has damaged Plaintiff and the Class Members by wrongfully denying them wages and/or penalties due for rest period premiums and meal period premiums and therefore was substantially injurious to Plaintiff and the Class Members.

71. Defendants engaged in unfair competition in violation of Section 17200 et seq. of the California Business & Professions Code by violating sections 226.7 and 512 of the California Labor Code, as well as SectionsWage Order No. 5-2001.

72. Defendants’ course of conduct, act and practice in violation of the California laws mentioned above constitute independent violations of Sections 17200 et seq. of the California Business & Professions Code.

73. Plaintiff and similarly situated Class Members are entitled to enforce all applicable penalty provisions of the Labor Code pursuant to Business & Professions Code § 17202.

74. Plaintiff has assumed the responsibility of enforcement of the laws and public policies specified herein by suing on behalf of themselves and other similarly situated Class Members previously or presently employed by Defendants. Plaintiff’s success in this action will enforce important rights affecting the public interest. Plaintiff will incur a financial burden in pursuing this action in the public interest. Therefore, an award of reasonable attorneys’ fees to

SIXTH CAUSE OF ACTION

FOR PENALTIES PURSUANT TO LABOR CODE § 2699, ET SEQ. FOR VIOLATIONS OF LABOR CODE §§201, 202, 203, 226, 226.3, 226.7, 512; WAGE ORDER

5-2001

On Behalf of Plaintiff and All Aggrieved Employees Against Defendant ESA Management LL.C

75. Plantiff, on behalf of herself and all aggrieved employees, realleges and incorporates by reference all previous paragraphs.

76. Based on the above allegations incorporated by reference, Defendant violated Labor Code §§ 201, 202, 203, 226, 226.3, 226.7, 512, as well as IWC Wage Order 5-2001.

77. Under Labor Code §§ 2699(f)(2) and 2699.5, for each such violation, Plaintiff and all other aggrieved employees are entitled to penalties in an amount to be shown at the time of trial subject to the following formula:

$100 for the initial violation per employee per pay period; and

$200 for each subsequent violation per employee per pay period.

These penalties will be allocated 75% to the Labor Workforce Development Agency and 25% to the affected employees.

78. Labor Code § 558 imposes a penalty upon employers “who violates, or causes to be violated...any provision regulating hours and days of work in any order of the Industrial Welfare Commission shall be subject to a civil penalty as follows: (1) For any initial violation, fifty dollars ($50) for each underpaid employee for each pay period for which the employee was underpaid in addition to an amount sufficient to recover underpaid wages; (2) For each subsequent violation, one hundred dollars ($100) for each underpaid employee for each pay period for which the employee was underpaid in addition to an amount sufficient to recover underpaid wages; and (3) Wages recovered pursuant to this section shall be paid to the affected employee.” As a result of the faulty rest period policies and practices described in detail in the paragraphs above, Plaintiff and the other aggrieved employees are entitled to recover penalties and wages under Labor Code § 558. See Thurman v. Bayshore Transit Mgmt., Inc., 203 Cal. App. 4th 1112 (2012). 79. As aresult, Plaintiff, as an Aggrieved Employee, may seek, in addition to any civil penalty allowable under the law, rest period premiums, and any wages associated with working off-the-clock related to ESA’s policy of only providing on-duty rest periods and on-duty meal periods, in violation of Labor Code sections 226.7 and 512, and IWC Wage Order No. 5-2001, sections 11 and 12.

0. In addition, as set forth above, ESA failed to provide Plaintiff and all aggrieved employees with accurate itemized wage statements in compliance with Labor Code § 226(a). Labor Code § 226.3 provides that “[ajny employer who violates subdivision (a) of Section 226 shall be subject to a civil penalty in the amount of two hundred fifty dollars ($250) per employee per violation in an initial violation and one thousand dollars ($1,000) per employee for each violation in a subsequent citation, for which the employer fails to provide the employee a wage deduction statement or fails to keep the required in subdivision (a) of Section 226.”

81. Further, Plaintiff, as an aggrieved employee, need not demonstrate or prove that ESA’s conduct in refusing to provide accurate and itemized wage statements was knowing, intentional, or willful. Lopez v. Friant & Assocs., LLC, (2017) 15 Cal. App. 5th 773, 788, (“Consistent with the PAGA statutory framework and the plain language and legislative history of section 226(e), we hold a plaintiff seeking civil penalties under PAGA for a violation of section 226(a) does not have to satisfy the “injury” and “knowing and intentional” requirements of section 226(e)(1).”); see Willner v. Manpower Inc. 35 F. Supp. 3d 1116, 1136 (N.D. Cal. 2014) (To obtain judgment on a PAGA claim, “all [plaintiff] needs to establish is a violation of section 226(a), which she has done, as discussed above.”); McKenzie v. Fed. Exp. Corp. 765 F.Supp.2d 1222, 1232 (C.D. Cal. 2011) (holding that “for the purposes of recovering PAGA penalties, one need only prove a violation of Section 226(a), and need not establish a Section 226(e) injury.”); Aguirre v. Genesis Logistics, 2013 U.S. Dist. LEXIS 189815, at *28 (C.D. Cal. July 3, 2013) (“Plaintiff do not need to establish a Cal. Lab. Code § 226(e) injury to recover penalties under §

2699(f) of PAGA.”).!

' See also York v. Starbucks Corp., No. CV 08-07919 GAF PJWX, 2012 WL 10890355, at *2 (C.D. Cal. Nov. 1,

2012) (granting summary adjudication to the plaintiff on his PAGA claim based upon violations of Lab. Code §

226(a) because “the presence or absence of injury is irrelevant to the standing inquiry under PAGA.”) Pelton v. 82. As a result of the acts alleged above, Plaintiff and the aggrieved employees seek penalties under Labor Code § 2699, et seq. because of ESA’s violation of Labor Code §§ 226, 226.3,226.7, as well as IWC Wage Order 5-2001.

83. Pursuant to Labor Code § 2699.3 (a), on May 23, 2018, Plaintiff gave written notice by certified mail to Defendant, and to the Labor and Workforce Development Agency (“LWDA”) of her claims, including the facts and theories supporting all claims outlined in this Complaint. Accordingly, Plaintiff will have fulfilled all administrative prerequisites to the pursuit of her PAGA claim on behalf of herself and all other current and former aggrieved employees of Defendant after 65 days have elapsed from May 23, 2018.

84. On August 15, 2018, Plaintiff filed her amended PAGA Notice online with the Labor workforce Development Agency (“LWDA”) and sent a letter by certified mail to Defendants setting forth further facts and theories of the violations alleged against Defendants, as prescribed by Labor Code § 2698 et seq. Accordingly, Plaintiff will have fulfilled all administrative prerequisites to the pursuit of her PAGA claim on behalf of herself and all other current and former aggrieved employees of Defendant.

RELIEF REQUESTED

Wherefore, Plaintiff, on behalf of herself and the members of the Class, pray for

judgment against Defendants as follows:

1. An Order than this action may proceed and be maintained as a class action; 2. On the First Cause of Action: a. A declaratory judgment that Defendants have violated California Labor

(continued...)

rejects CPS’s argument that plaintiff ‘lacks any PAGA injury.” Pursuant to Cal. Labor Code § 2699, ‘any provision of this code that provides for a civil penalty to be assessed and collected by the Labor and Workforce Development Agency ... may, as an alternative, be recovered through a civil action brought by an aggrieved employee on behalf of herself or herself and other current or former employees.” Sections 2699.5 and 2699.3(a) provide that such a claim may be brought for a violation of § 226(a) . . .”); accord Lopez v. G.A.T. Airline Ground Support, Inc. (S.D. Cal., July 19, 2010, 09-CV-2268-1EG) 2010 WL 2839417, *5-6 (“It is undisputed that GAT’s paychecks do not indicate the applicable hourly rate of pay for the employee’s regular rate, overtime rate, or double-time rate of pay...The failure to provide this information violates Section 226(a)... Because Section 226 does not provide a penalty, Section 2699(f) penalties are available.”). Code § 226.7, and Section 12 of IWC Wage Order No. 5-2001;

b. Pursuant to Cal. Labor Code § 226.7, an award to Plaintiff and the Rest Period Subclass Members for an hour of pay for each day that an off-duty rest period was not provided in California during the Class Period;

3. On the Second Cause of Action:

a. A declaratory judgment that Defendants have violated California Labor Code §§ 226.7 and 512, and Section 11 of IWC Wage Order No. 5-2001;

b. Pursuant to Cal. Labor Code § 226.7 and IWC Wage Order No. 5, Section 11, an award to Plaintiff, and Meal Period Subclass Members, for a hour of pay at their regular rate of pay, for each day that a meal period was not provided in California during the period from four years prior to the filing of this Complaint;

4. On the Third Cause of Action:

a. A declaratory judgment that Defendants violated California Labor Code § 226 and 226.3 by issuing inaccurate and/or incomplete wage statements;

b. An award to Plaintiff and Wage Statement Subclass Members of $50 for each initial pay period in which a violation of Section 226 occurred and $100 for each subsequent pay period in which a violation of Section 226 occurred, not to exceed $4,000 for cach member of the Class, as well as an award of costs and reasonable attorney’s fees, pursuant to Labor Code § 226(e).

5. On the Fourth Cause of Action

a. A declaratory judgment that Defendant violated California Labor Code §§ 201 - 203;

b. Pursuant to Cal. Labor Code §§ 201 through 203, an award to Plaintiff and the Waiting Time Penalty Subclass members for waiting time penalties in the amount of 30 days’ wages per waiting time penalty subclass Class Member.

6. On the Fifth Cause of Action: a. That the Court find and declare that Defendants violated the UCL and

committed unfair and unlawful business practices by failing to provide Plaintiff and the Class members with off-duty rest periods, and/or rest period premiums, as required by Cal. Labor Code § 226.7 and 512;

b. Restitution, including, but not limited to, the relief permitted by sections 226.7 and 512 of the California Labor Code and the applicable wage order penalties (i.e., rest and meal period premiums);

7. On the Sixth Cause of Action:

a. A civil penalty against Defendant in the amount of $100 for the initial violation and $200 for each subsequent violation as specified in section 2699(f)(2) of the California Labor Code for Plaintiff and for the Aggrieved Employees during all of the pay periods in the PAGA Period;

b. All penalties available under Section 558 of the California Labor Code and the Labor Code Private Attorneys General Act of 2004;

C. An award of reasonable attorney’s fees against Defendant as specified in Labor Code § 2699(g)(1), for all the work performed by the undersigned counsel in connection with the PAGA claims;

d. An award of all costs incurred by the undersigned counsel for Plaintiff in connection with Plaintiff’s and aggrieved employees’ PAGA claim against Defendant ESA Management LLC as provided for in Labor Code § 2699(g)(1);

8. All other relief as this Court deems proper.

DEMAND FOR JURY TRIAL

Plaintiff hereby demands a trial of his claims by jury to the extent authorized by law.

Dated: August 22, 2018 ACKERMANN & TILAJEF, P.C. MELMED LAW GROUP P.C.

Craig J. Ackermann, Esq.

Jonathan Melmed, Esq.