This case was last updated from Santa Clara County Superior Courts on 05/26/2020 at 12:39:37 (UTC).

Smith v. Homeguard, Inc.

Case Summary

On 08/30/2018 Smith filed a Labor - Other Labor lawsuit against Homeguard, Inc. This case was filed in Santa Clara County Superior Courts, Downtown Superior Court located in Santa Clara, California. The Judges overseeing this case are Kuhnle, Thomas and Lucas, Patricia M. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ******3804

  • Filing Date:

    08/30/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Labor - Other Labor

  • Court:

    Santa Clara County Superior Courts

  • Courthouse:

    Downtown Superior Court

  • County, State:

    Santa Clara, California

Judge Details

Judges

Kuhnle, Thomas

Lucas, Patricia M

 

Party Details

Plaintiff

Smith, Shawn Edward

Defendant

Homeguard, Inc.

Not Classified By Court

Superior Court of California

Attorney/Law Firm Details

Plaintiff Attorneys

Rist, Thomas Anthony

Clark, James A

Humphrey, Christina Ann

Defendant Attorneys

Garrity, Ronald Fox

Chan, Jocelyn May

Burton, Kendall Marie

Cutbirth, Robert Andrew

McCurdy, Charles J

Not Classified By Court Attorney

Superior Court of CA, County of Santa Clara

 

Court Documents

Notice

Notice CMC 2-1-19 at 10am in D5: Comment: CMC set for 2/1/19 at 10am in D5

Notice: Appearance

Notice of Appearance of Counsel: Comment: Notice of Appearance of Robert A Cutbirth and Charles J McCurdy

Proof of Service: Summons DLR (Civil)

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

Notice: Appearance

Notice of Appearance and Complex Fee Payment:

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/

Civil Lawsuit Notice

Civil Lawsuit Notice: Comment: 1st CMC set for 12/7/18 at 10am in D5; assigned to Hon. Thomas E. Kuhnle

Civil Case Cover Sheet

2018-08-30 - Civil Case Cover Sheet.pdf: Comment: COMPLEX

Summons: Issued/Filed

Summons Issued Filed:

Complaint (Unlimited) (Fee Applies)

Complaint (Unlimited) (Fee Applies):

Substitution: Attorney

Substitution of Attorneys: Comment: Old: Humphrey & Rist LLP; New: Christina Humphrey SBC 226326

Notice

Notice CMC reset from 2-1-19 to 3-22-19: Comment: CMC reset from 2/1/19 to 3/22/19

Stipulation and Order

Stipulation and Order re Scheduling of Motion to Compel Arbitration: Comment: Stipulation & Order re Scheduling of Motion to Compel Arbitration - signed/TEK

Stipulation and Order

Stipulation and Proposed Order: Comment: Stipulation and Order

Notice

Notice Of Errata re Time of Hearing 2-1-19: Comment: Notice Of Errata

Proof of Service

Proof of Service HRG 2-1-19: Comment: HRG 2/1/19

Declaration

Nicole Mersereau Declaration HRG 2-1-19: Comment: HRG 2/1/19

Motion: Compel

Motion Compel Arbitration HRG 2-1-19: Comment: HRG 2/1/19

Answer/Response (No Fee)

Answer to Complaint: Comment: Answer to Complaint

23 More Documents Available

 

Docket Entries

  • 06/12/2020
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  • DocketConference: Case Management - Joint CMC Statement: Joint CMC Statement HRG 1-10-20: Judicial Officer: Lucas, Patricia M; Hearing Time: 10:00 AM; Comment: (4th CMC) PAGA * Discovery and responsive pleading deadline stayed, as of 9/5/18, when the case was deemed complex. Responsive pleadings due by 12/31/18. Deft Homeguard, Inc.'s Answer to Complaint filed 1/4/19. Discovery stay was lifted on 4/5/19. Mediation set for 9/3/19 and 12/18/19 with Henry J. Bongiovi.

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  • 01/06/2020
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  • DocketNotice - Notice CMC reset from 1-10-20 to 6-12-20: Comment: CMC reset from 1/10/20 to 6/12/20

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

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  • 01/03/2020
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  • DocketStatement: Case Management Conference - Joint CMC Statement HRG 1-10-20: Comment: Case Management Statement

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  • 12/23/2019
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  • DocketProof of Service - Proof of Service: Comment: Proof of Service telephonic appearance

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  • 09/30/2019
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  • DocketNotice - Notice CMC reset from 10-4-19 to 1-10-20: Comment: CMC reset from 10/4/19 to 1/10/20

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  • 09/25/2019
  • DocketStatement: Case Management Conference - Comment: Joint Civil Case Cover Sheet

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  • 09/09/2019
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  • DocketProof of Service - Proof of Service: Comment: Proof of Service of Court Call

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  • 08/20/2019
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  • DocketNotice - Notice CMC reset from 8-30-19 to 10-4-19: Comment: CMC reset from 8/30/19 to 10/4/19

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  • 08/14/2019
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  • DocketStatement: Case Management Conference - Joint CMC Statement: Comment: Hearing on 08/30/19 - JOINT CASE MANAGEMENT CONFERENCE STATEMENT AND REQUEST TO CONTINUE CMC UNTIL AFTER MEDIATION IS COMPLETED

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20 More Docket Entries
  • 12/07/2018
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  • DocketMinute Order - Minutes Non-Criminal:

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  • 12/04/2018
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  • DocketStatement: Case Management Conference - Joint Case Management Conference Statement: Comment: Joint Case Management Conference Statement

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  • 12/03/2018
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  • DocketNotice: Appearance - Notice of Appearance of Counsel: Comment: Notice of Appearance of Robert A Cutbirth and Charles J McCurdy

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  • 09/21/2018
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  • DocketProof of Service: Summons DLR (Civil) - Proof of Service of Summons: Comment: Proof of Service of Summons/Complaint

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  • 09/18/2018
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  • DocketNotice: Appearance - Notice of Appearance and Complex Fee Payment:

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  • 09/05/2018
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  • DocketOrder: Deeming Case Complex - Order Deeming Case Complex and Staying Discovery and Responsive Pleading Deadline: Comment: Order Deeming Case Complex and Staying Discovery and Responsive Pleading Deadline - signed/TEK

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  • 08/30/2018
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  • DocketCivil Lawsuit Notice - Civil Lawsuit Notice: Comment: 1st CMC set for 12/7/18 at 10am in D5; assigned to Hon. Thomas E. Kuhnle

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  • 08/30/2018
  • View Court Documents
  • DocketCivil Case Cover Sheet - Civil Case Cover Sheet: Comment: COMPLEX

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  • 08/30/2018
  • View Court Documents
  • DocketSummons: Issued/Filed - Summons Issued Filed:

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  • 08/30/2018
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  • DocketComplaint (Unlimited) (Fee Applies) - Complaint (Unlimited) (Fee Applies):

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Complaint Information

HUMPHREY & RISTLLP

Christina A. Humphrey (SBN 226326) Thomas A. Rist (SBN 238090)

4612 Park Boulevard

San Diego, CA 92116

(619) 488-6400

christina@ humphreyrist.com

tom@ humphreyrist.com

TOWER LEGAL GROUP

James Clark (SBN 278372) 1510 J. Street; Suite 125 Sacramento, CA 95814

(916) 361-6009

james.clark@ towerlegalgroup.com Attorneys for Plaintiff

E-FILED

8/30/2018 3:14 PM Clerk of Court

Superior Court of CA, County of Santa Clara

18CV333804

Reviewed By: R. Walker

SUPERIOR COURT FOR THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA

SHAWN EDWARD SMITH, an individual, CASE NO. 18c V333804

and other aggrieved employees, Plaintiffs,

VS.

COMPLAINT FOR CIVIL PENALTIES UNDER THE PRIVATE ATTORNEY

GENE;(AL ACT OF 2004 (Labar Code §§26098, el. seq.

HOMEGUARD, INC. and DOES 1 through DEMAND FOR JURY TRIAL

10, inclusive,

Defendants.

Plaintiff SHAWN SMITH, on behalf of himself and all other aggrieved employees (“Plaintiff”), hereby files this Complaint against Defendant HOMEGUARD, INC. (“Homeguard”) and DOES 1 through 10, inclusive (collectively “Defendants”). Plaintiff is informed and believes, and on the basis of that information and belief, alleges as follows:

INTRODUCTION

1. This action is brought by Plaintiff on behalf of all non-exempt aggrieved employees in California and challenges Defendants’ employment practices with respect to payment of wages and provisions for meal and rest periods applicable to non-exempt employees, including Defendants’ policies and practices of (a) failing to pay for every hour worked, including minimum wages, designated wages, and overtime; (b) failing to provide meal and rest breaks that comply with California law; and (c) failing to pay premium wages and/or restitution for on-duty, missed, short, and/or late meal and rest breaks; (d) failing to provide accurate itemized pay stubs; and (e) failing to pay all wages owed upon termination.

2. Defendants have failed to pay for all hours worked including minimum wages, designated wages, and overtime. Specifically, but not exclusively, Defendant failed to pay Plaintiff and other non-exempt employees for all time worked for Defendant, including any time spent travelling to their first appointment at the beginningtime travelling home from their last appointmentday. Defendant additionally required Plaintiff and other non- exempt employees to clock out at night and complete inspection reports. A dditionally, as a result of the substantial workload placed on Plaintiff and other aggrieved employees, Defendant failed to provide compliant meal periods to Plaintiff and other non-exempt employees that relieved the employees of all duties. Defendant additionally failed to pay premium pay for meal periods that were not provided.

3. Moreover, by failing to relinquish control over employees’ job duties and responsibilities, Defendants have failed to provide employees a reasonable opportunity to take a break such that Plaintiff and employees are either unable to take a meal or rest break all together, and/or are unable to leave the premises, unable to take a duty-free meal or rest break, and/or are

interrupted during their meal or rest break, and/or take a short or late meal or rest period. Defendants further failed to pay compensation or premium wages for on-duty, missed, short, and/or late meal and rest breaks.

4, In this case, Plaintiff, on behalf of himself and other aggrieved employees, seeks civil penalties for Defendants’ violations of the California Labor Code, including failure to pay minimum wages and overtime for all hours worked (Labor Code §§ 1182.12, 1194, 1194.2, 1197); failure to pay wages in accordance with the designated wage scale (Labor Code §§ 221-223), failure to pay premium wages (Labor Code §§ 226.7, 512, 516); failure to timely furnish accurate, itemized wage statements (Labor Code § 226); and failure to pay wages due on termination (Labor Code §§ 201- 203).

. In this action Plaintiff, on behalf of himself and aggrieved employees, seeks penalties established by Labor Code section 2699, the Private Attorney General’s Act (“PAGA”) and other provisions in the Labor Code, against Defendants for their unlawful employment practices.

0. The acts complained of herein have occurred, are presently occurring, and are expected to continue occurring, within the time period from one year prior to the filing of this complaint up to and through the time of trial for this matter (hereinafter, the “Relevant Time Period”).

PARTIES

Plaintiff SHAWN SMITH

7. Plaintiff SHAWN SMITH is an individual over the age of eighteen (18) and is now and/or at all relevant times mentioned in this Complaint was a resident and domiciliary of Solano County, State of California. Mr. Smith worked for Defendants as a non-exempt employee out of their San Jose, CA office.

Defendants

8. Plaintiff is informed and believes, and based thereon alleges, that Defendant Homeguard is now and/or at all times mentioned in this Complaint was headquartered in San Jose, Santa Clara County, California, and qualified and registered to do business in the State of Califomnisa, and actually performs substantial business in California.

9. DOES 1 through 10 inclusive are now and/or at all times mentioned in this Complaint were, licensed to do business and/or actually doing business in the State of California. Plaintiff does not know the true names or capacities, whether individual, partner, or corporate, of DOES 1 through 10, inclusive and for that reason, DOES 1 through 10 are sued under such fictitious names pursuant to California Code of Civil Procedure, section 474. Plaintiff will seek leave of court to amend this Complaint to allege such names and capacities as soon as they are ascertained. DOES 1 through 5 are believed to be business entities who were also co-employers of the Plaintiff and the putative class herein.

10. Plaintiff is informed and believes and based thereon alleges that at all times herein mentioned, all Defendants, and each of them, were and are the agents, servants, employees, joint venturers, and/or partners of each of the other Defendants, and were, at all such times, acting within the course and scope of said employment and/or agency; furthermore, that each and every Defendant herein, while acting as a high corporate officer, director and/or managing agent, principal and/or employer, expressly directed, consented to, approved, affirmed and ratified each and every action taken by the other co-Defendant, as herein alleged and was responsible in whole or in part for the matters referred to herein.

11. Plaintiff is informed and believes and based thereon alleges that at all times herein mentioned, all Defendants, and each of them, were and are the agents, servants, employees, joint venturers, and/or partners of each of the other Defendants, and were, at all such times, acting within the course and scope of said employment and/or agency; furthermore, that each and every Defendant herein, while acting as a high corporate officer, director and/or managing agent, principal and/or employer, expressly directed, consented to, approved, affirmed and ratified each and every action taken by the other co-Defendant, as herein alleged and was responsible in whole or in part for the matters referred to herein.

12. Plaintiff is informed and believes and based thereon alleges that at all times herein mentioned, Defendants, and each of them, proximately caused Plaintiff, all others similarly situated and the general public to be subjected to the unlawful practices, wrongs, complaints, injuries and/or damages alleged in this Complaint.

13. Plaintiff is informed and believes and based thereon alleges that D efendants, and each of them, are now and/or at all times mentioned in this Complaint were members of and/or engaged in a joint venture, partnership and common enterprise, and were acting within the course and scope of, and in pursuit of said joint venture, partnership and common enterprise and, as such were co- employers of the Plaintiff and the putative class herein.

14. Plaintiff is informed and believes and based thereon alleges that D efendants, and each of them, at all times mentioned in this Complaint, concurred with, contributed to, approved of, aided and abetted, condoned and/or otherwise ratified, the various acts and omissions of each and every one of the other Defendants in proximately causing the injuries and/or damages alleged in this Complaint.

JURISDICTION AND VENUE

15. The California Superior Court has jurisdiction in the matter because the claims exceed the jurisdictional minimum of this court and Plaintiff is a resident of the state of California and Defendants perform substantial business in the State of California. Further, the issues herein are based on California statutes, specifically the Private Attorney General A ct of 2004.

16. Venue is proper in the County of Santa Clara because Defendants transact substantial business in this County, Plaintiff’s claims arose in this County, and because Defendants maintain a corporate office in this county.

FACTUAL ALLEGATIONS

Background

17. Defendants operate a business that conducts home inspections, termite inspections, roof inspections, and natural hazard disclosure inspections throughout the State of California.

18. Plaintiff and the other aggrieved employees worked for Defendants as non-exempt employees.

19. The primary work duties of Plaintiff included, among others, conducting termite inspections. This included scheduling inspections, traveling to and from customer locations, performing inspections and preparing reports.

20. Defendants failed to pay Plaintiff and other aggrieved employees for any time travelling to their first appointment or home from their last appointment, no matter how far away or how long it took.

21. Defendants additionally required Plaintiff and other aggrieved employees to clock out at night and complete inspection reports.

22. By failing to relinquish control over employees’ job duties and responsibilities, Defendants failed to provide Plaintiff and aggrieved employees a reasonable opportunity to take a break such that Plaintiff and employees were either unable to take a meal or rest break all together, and/or were unable to leave the premises, unable to take a duty-free meal or rest break, and/or were interrupted during their meal or rest break, and/or took a short or late meal or rest period. There were occurrences where Plaintiff and aggrieved employees reported missed, short, or late meal breaks and/or Defendant knew that they incurred missed, short, and/or late meal breaks and Defendants did not pay premium wages as a result.

23. There were occurrences where Plaintiff and aggrieved employees reported missed, short, or late rest breaks and/or Defendants knew that they incurred missed, short, or late rest breaks and Defendants did not pay premium wages as a result.

Defendants’ F ailure to Pay Minimum Wages and Designated Rates

24, IWC Wage Order, No. 4 defines “hours worked” to mean “the time during which an employee is subject to the control of an employer, and includes all the time the employee is suffered or permitted to work, whether or not required to do so.”

25. Labor Code § 1182.12 and IWC Wage Order, No. 4-2001, § 4 formerly provided that on and after January 1, 2008, the minimum wage shall be not less than eight dollars ($8.00) per hour.

26. Labor Code § 1182.12 and IWC Wage Order, No. 4-2001, § 4 provide that on and after July 1, 2014, the minimum wage for all industries shall be not less than nine dollars ($9) per hour, and on and after January 1, 2016, the minimum wage for all industries shall be not less than ten dollars ($10) per hour.

27. Labor Code § 1182.12 and IWC Wage Order, No. 4-2001, § 4 provide that on and after January 1, 2018, the minimum wage for all industries shall be not less than ten dollars ($10) per hour, and on and after January 1, 2017, the minimum wage for all industries shall be not less than ten dollars and fifty cents ($10.50) per hour. 28. Labor Code § 1182.12 and IWC Wage Order, No. 4-2001, § 4 provide that on and after January 1, 2018, the minimum wage for all industries shall be not less than ten dollars and fifty cents ($10.50) per hour, and on and after January 1, 2018, the minimum wage for all industries shall be not less than eleven dollars ($11) per hour.

29. Labor Code § 1194(a) provides in relevant part: “Notwithstanding any agreement to work for a lesser wage, any employee receiving less than the legal minimum wage [] is entitled to recover in a civil action the unpaid balance of the full amount of this minimum wage [], including interest thereon, reasonable attorney’s fees, and costs of suit.”

30. Labor Code § 1194.2(a) provides in relevant part: “In any action under Section 1193.6 or Section 1194 to recover wages because of the payment of a wage less than the minimum wage fixed by an order of the commission, an employee shall be entitled to recover liquidated damages in an amount equal to the wages unlawfully unpaid and interest thereon.”

31. Labor Code § 1197 provides: “The minimum wage for employees fixed by the commission is the minimum wage to be paid to employees, and the payment of a less wage than the minimum so fixed is unlawful.”

32. Defendant classified Plaintiff and aggrieved employees as non-exempt and paid them on an hourly basis. Hours worked include, but are not limited to, all hours that an employee is permitted or suffered to work including, but not limited to, off-the-clock work that an employer either knew or should have known that an employee was performing.

33. As a matter of policy and/or practice, Defendant routinely suffered or permitted Plaintiff and aggrieved employees to work portions of the day during which they were subject to Defendants’ control, but Defendants failed to compensate them.

34. Throughout the Relevant Time Period, Plaintiff, and aggrieved employees, were subject to Defendants’ uniform policy and/or practice of failing to pay minimum wages and/or designated rates for hours worked off-the-clock. As a result, Plaintiff and aggrieved employees were routinely denied compensation for all hours worked.

35. Additionally, Defendant did not maintain adequate records of all wages earned, hours worked, and meal and rest breaks taken. Defendants’ F ailure to Pay Overtime C ompensation

36. Labor Code § 1194 provides that an employee receiving less than the legal overtime compensation is entitled to recover in a civil action the unpaid balance of the full amount of this minimum wage or overtime compensation, including interest thereon, reasonable attorney’s fees, and costs of suit.

37. Labor Code § 510(a) states: “Any work in excess of eight hours in one workday and any work in excess of 40 hours in any one workweek and the first eight hours worked on the seventh day of work 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.” Labor Code § 510(a) further states: “Any work in excess of 12 hours in one day shall be compensated at the rate of no less than twice the regular rate of pay for an employee.” Labor Code § 510(a) further states: “[ Alny work in excess of eight hours on any seventh day of a workweek shall be compensated at the rate of no less than twice the regular rate of pay of an employee.”

38. Throughout the Relevant Time Period, Wage Order No. 4-2001 provided for payment of overtime wages equal to one and one-half (1 1/2) times an employee’s regular rate of pay for all hours worked over eight (8) hours per day and/or forty (40) hours in a workweek, and/or for payment of overtime wages equal to double the employee’s regular rate of pay for all hours worked in excess of twelve (12) hours in any workday and/or for all hours worked in excess of eight (8) hours on the seventh (7th) day of work in any one workweek.

39. Defendants classified Plaintiff and aggrieved employees as non-exempt, therefore they were entitled to overtime compensation for all hours worked in excess of the hours and time specified in the Wage Order, statutes and regulations identified herein.

40. As a matter of policy and/or practice, Defendants routinely suffered or permitted Plaintiff and aggrieved employees to work portions of the day during which they were subject to Defendants’ control and failed to compensate them. Accordingly, Defendants failed to properly record the actual hours worked by Plaintiff and aggrieved employees, and thus failed to pay overtime

wages for the actual amount of overtime hours worked. D efendants’ F ailure to Provide Meal Breaks

41. Atall times relevant hereto, Labor Code § 226.7 and IWC Wage Order, No. 4-2001, § 11, required employers to authorize, permit, and provide a meal period of not less than thirty (30) minutes when the employee is completely relieved of all duty.

42. Plaintiffs and the members of the class did not waive their meal periods, by mutual consent with Defendants or otherwise. Plaintiff is informed and believes, and based thereon alleges, that Defendants failed to effectively communicate California meal period requirements to Plaintiff and aggrieved employees.

43. Plaintiff is further informed and believes, and based thereon alleges, that as a matter of policy and/or practice, Defendants’ routinely failed to provide Plaintiff and aggrieved employees, with meal periods during which they were relived of all duties by requiring them to perform duties such as responding to customer inquiries and/or travelling to the next customer’s home.

44, Specifically, throughout the Relevant Time Period, Defendants regularly:

a. Failed to provide Plaintiff and aggrieved employees with a first meal period of not less than thirty (30) minutes during which they are relieved of all duty before working more than five (5) hours;

b. Failed to provide Plaintiff and aggrieved employees with a second meal period of not less than thirty (30) minutes during which they are relieved of all duty before working more than ten (10) hours per day; and

c. Failed to pay Plaintiff and aggrieved employees one hour of pay at their reqular rate of compensation for each workday that a meal period was not provided; and

d. Failed to accurately record all meal periods.

Defendants’ F ailure to Provide Rest Breaks

45. Atall times relevant hereto, Labor Code § 226.7 and IWC Wage Order, No. 4-2001, § 12, required employers to authorize, permit, and provide a ten (10) minute paid rest for each four (4) hours of work, during which employees are relieved of all duty.

46. At all times relevant hereto, Labor Code § 226.7(b) and IWC Wage Order, No. 4- 2001, § 12 required employers to pay one hour of additional pay at the regular rate of compensation for each employee and each workday that a proper rest period is not provided.

47. Plaintiff is informed and believes, and based thereon alleges, that Defendants failed to effectively communicate California rest period requirements to Plaintiff and aggrieved employees. Plaintiff is further informed and believes and based thereon alleges that throughout the Relevant Time Period Defendants failed to provide rest periods.

48. Throughout the Relevant Time Period, Plaintiff and aggrieved employees were routinely denied the rest breaks they were entitled to under California law.

49, Specifically, throughout the Relevant Time Period, Defendant regularly:

a. Failed to provide paid rest periods of ten (10) minutes during which Plaintiff and aggrieved employees were relieved of all duty for each four (4) hours of work and able to take rest periods within the middle of the shift;

b. Failed to pay Plaintiff and aggrieved employees one (1) hour of pay at their regular rate of compensation for each workday that a rest period was not permitted.

Defendants’ Failure to Pay All Wages Due at Termination of Employment

50. At all times relevant hereto, Labor Code § 201 required an employer that discharges an employee to pay compensation due and owing to said employee immediately upon discharge. Labor Code § 202 requires an employer to pay an employee who quits any compensation due and owing to said employee within seventy-two (72) hours of an employee’s resignation. Labor Code § 203 provides that if an employer willfully fails to pay compensation promptly upon discharge or resignation, as required under Sections 201 and 202, then the employer is liable for waiting time penalties in the form of continued compensation for up to thirty (30) work days.

51. Defendants willfully and knowingly failed to pay Plaintiff and aggrieved employees, upon termination of employment, all accrued compensation including payment of minimum wage compensation, agreed wages, overtime, and/or premium wages.

Defendants’ F ailure to Provide A ccurate, Itemized Wage Statements

52. Atall times relevant hereto, Labor Code § 226 and IWC Wage Order, No. 4-2001, § 7 required employers to maintain adequate employment records and provide employees with accurate itemized wage statements showing gross wages, total hours worked, all applicable hourly rates worked during each pay period, the corresponding number of hours worked at each hourly rate, and meal breaks taken.

53. Wage statements provided to Plaintiff and aggrieved employees by Defendant do not show all wages earned, all hours worked, or all applicable rates, in violation of Labor Code § 226, IWC Wage Order, No. 4-2001, § 7, and the UCL.

54. Moreover, Defendants did not maintain adequate records of all wages earned, hours worked and breaks taken.

FIRST CAUSE OF ACTION CIVIL PENALTIES UNDER THE PRIVATE ATTORNEY S GENERAL ACT

(Lab. Code §8§ 2698 et seq.)

55. Plaintiff incorporates by reference the allegations set forth above.

56. Pursuant to California Labor Code § 2698 et seq., Plaintiff is entitled to act as a private attorney general to assess and recover civil penalties against D efendants on behalf of Plaintiff and any other current or former employees of Defendants for violations of the California Labor Code.

57. In this case, Plaintiff, on behalf of himself and all other Aggrieved Employees, seeks relief for Defendant’s unlawful employment policies, practices and procedures, which have resulted in the failure of Defendant to pay Plaintiff and members of the putative class all wages due to them including, minimum wages and overtime for all hours worked (Labor Code §§ 510, 512, 558, 1174.5, 1182.12, 1194, 1194.2, 1197, 1197.1, 1198 and Wage Order 4); premium wages (Labor Code §§ 226.7, 512, 516, 558, and Wage Order 4); penalties for failure to timely furnish accurate, itemized wage statements (Labor Code §§ 226, 226.3, 558); and penalties for wages due on termination (Labor Code §§ 201-203).

58. Plaintiff asserts claims on behalf of the following “Aggrieved Employees”:

a. Aggrieved Employee Group: All persons employed in non-exempt positions at Homeguard who, at any time from one year prior to the filing of this complaint to present, worked one or more shifts.

b. Former Aggrieved Employee Group: All persons formerly employed in non-exempt positions at Homeguard who, at any time from one year prior to the filing of this complaint to present, worked one or more shifts.

59. Pursuant to Labor Code § 2699.3, an aggrieved employee, may commence a civil

action arising under Labor Code § 2699 after the following requirements have been met: a. The aggrieved employee shall give written notice (hereinafter “Notice”) by certified mail to the Labor and Workforce Development Agency (hereinafter “Agency”’) and the employer of the specific provisions of the Labor Code alleges to have been violated, including the facts and theories to support the alleges violation. b. The agency shall notify the employer and the aggrieved employee or representative by certified mail that it does not intend to investigate the alleged violation within sixty (60) calendar days of the postmark date of the notice received. Upon receipt of that notice or if no notice is provided within sixty-five (65) calendar days of the postmark date of the notice, the aggrieved employee may commence a civil action pursuant to Section 2699. 60. Plaintiffs has complied with the procedures for bringing suit specified in California Labor Code Section 2699.3. Within the statutory time frame, Plaintiff, on behalf of himself and the other Aggrieved Employees, gave the required notice to the Labor and Workforce Development Agency (“LWDA”) and Defendant of the specific provisions of the California Labor Code alleged to have been violated, including the facts and theories to support the alleged violations. Plaintiff also paid the $75.00 fee to the LWDA pursuant to SB 836. More than sixty-five (65) days have passed and the LWDA has not responded to Plaintiff’s letter. Furthermore, a copy of the original complaint of this action was provided to the LWDA. Section 558 Penalties

61. The PAGA claims are also brought against Defendants pursuant to provisions of the California Labor Code including § 558 which permits liability of persons who violate or cause to be violated Labor Code and IW C regulations. California Labor Code Section 2699.

62. The PAGA states: Notwithstanding any other provision of law, any provision of this code that provides for a civil penalty to be assessed and collected by the Labor and Workforce Development Agency or any of its departments, divisions, commissions, boards, agencies, or employees, for a violation of this code, may, as an alternative, be recovered through a civil action brought by an aggrieved employee on behalf of himself or herself and other current or former employees...

One provision of law enforceable through PAGA is Labor Code § 558, which states the following:

(a) Any employer or other person acting on behalf of an employer who violates, or causes to be violated, a section of this chapter or 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 any 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....

63. The viability of obtaining liability of individuals by this method was discussed by the California Supreme Court in Reynolds v. Bement (2005) 36 Cal.4™ 1075, 1089, where the court noted that liability against non-employers could be obtained through the use of the PAGA and § 558:

Imposition of individual civil liability under the IWC employer definition is not the only means by which an employee can seek recovery against a corporate agent....[PJursuant to section 558, subdivision (a), any “person acting on behalf of an employer who violates, or causes to be violated” a statute or wage order relating to working hours is subject to a civil penalty, payable to the affected employee, equal to the amount of any underpaid wages. As noted earlier, the Legislature has provided that aggrieved employees may under certain circumstances maintain civil actions to recover such penalties. (§ 2699, subd. (a).)

64. As such, Defendants are liable pursuant to PAGA, even without finding Defendants to be the employer where, as here, Defendants caused the violations at issue. Penalties Authorized by PAGA 65. Defendant violated Labor Code §§ 225.5, 221-223, 510, 512, 558, 1174.5, 1182.12, 1194, 1194.2, 1197, 1197.1, 1198 and Wage Order 4 when it required Plaintiff and Aggrieved Employees to clocktheir respective shifts and then fill out inspection reports. As a employees for all work hours and thus, failed to pay minimum wage and/or the agreed wage for each hour Plaintiff and other aggrieved employees worked in violation of California law.

66. Defendant violated Labor Code §§ 226.7, 512, 558, 1174.5 and IWC Wage Order No. 4-2001, section 11, by failing to provide Plaintiff and other aggrieved employees a meal period of at least 30 minutes when the work period is more than five hours and a second meal period of at least 30 minutes when the work period is more than 10 hours. Defendant also failed to relieve Plaintiff and other aggrieved employees of all duties during this meal period. Similarly, IWC Wage Order No. 4-2001, § 12 requires employers to “authorize and permit” employees to take a 10-minute rest break every four hours of work, during which they must be relieved of all duties. Defendant failed to do so, entitling Plaintiff and other aggrieved employees to a premium of one hour’s worth of pay at the employee’s regular rate for each day that Defendant failed to provide a meal or period, pursuant to Labor Code section 226.7(c). Defendant further failed to pay premium pay when a meal or rest break was reported late, missed, short, or on-duty in violation of the same Labor Code sections and failed to properly record meal periods.

67. Defendant violated Labor Code §§ 226 and 226.3 by knowingly and intentionally providing Plaintiff and other aggrieved employees with wage statements that, among others items required, do not show all applicable wage rates, the number of hours worked, and the applicable rate for those hours, and all wages earned.

68. Defendant violated Labor Code §§ 1174, 1174.5 and IWC Wage Order No. 4 by failing to maintain documentation of the actual hours worked each day by Plaintiff and other aggrieved employees, all wages earned, hourly rates applicable, and meal breaks taken.

69. Defendant violated Labor Code §§ 201-203 by failing to timely pay all earned and unpaid wages, including unpaid minimum wage, at the time of separation from employment, for those aggrieved employees no longer employed by D efendant.

70. Plaintiff is entitled to recover 25% of any civil penalties assessed against Defendant for such violations, with the remaining 75% of the recover being paid to the Labor and W orkforce Development A gency.

71. Accordingly, Plaintiff seeks to recover any and all civil penalties otherwise capable of being collected under the law, including any statutes applicable under section 2699.5, and any penalty provisions provided for by §§ 203, 226(e), 226.3, 226.7, 256, 558, 1174.5, 1194, 1194.2(a), 1197.1, and 2699; CA Civil Code 3287(b); and Wage Order 4-2001.

72.

Labor Code section 2699(g) also provides for the payment of reasonable attorneys’

fees and costs to a prevailing party seeking recovery under the Private Attorney General Act.

Accordingly, Plaintiff seeks to recover civil penalties, attorneys’ fees, and costs in an amount to be

proven at trial pursuant to any applicable provisions of the law.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs pray for judgment against Defendants as follows:

a. b. C. d.

e.

Civil penalties;

Other penalties and fines permitted by law; Costs of suit;

Reasonable attorneys’ fees; and

Such other relief as the Court deems just and proper.

DATED: August 30, 2018 HUMPHREY & RIST, LLPAND

TOWER LEGAL GROUP

By: /s/ ThomasA. Rist Christina A. Humphrey Tom Rist James Clark Attorneys for Plaintiffs

JURY DEMAND

Plaintiffs demands a trial by jury on all issues so triable as a matter of right.

DATED: August 30, 2018 HUMPHREY & RIST, LLPAND

TOWER LEGAL GROUP