number exhibit tabs - class actions lawsuits · 2020. 2. 2. · notice of service of process null /...

EXHIBIT 1

Case 2:19-cv-00928-MCE-DB Document 1-1 Filed 05/22/19 of 36

Notice of Service of Processnull / ALL

Transmittal Number: 19699946Date Processed: 04/24/2019

Primary Contact: Amanda L. Riley*Panera, LLC3630 South Geyer RoadSte 100St. Louis, MO 63127

Electronic copy provided to: Geri Haight

Entity: Panera, LLCEntity ID Number 2788006

Entity Served: Panera, LLC

Title of Action: Debora Philpott, on Behalf of herself and Others Similarly Situated vs. Panera,LLC

Document(s) Type: Summons/Complaint

Nature of Action: Class Action

Court/Agency: Sacramento County Superior Court, CA

Case/Reference No: 34-2019-00254303

Jurisdiction Served: California

Date Served on CSC: 04/22/2019

Answer or Appearance Due: 30 Days

Originally Served On: CSC

How Served: Personal Service

Sender Information: David Yeremian818-875-208

Notes: Verified there are no missing pages and that document matches original image served.

Information contained on this transmittal form is for record keeping, notification and forwarding the attached document(s). It does notconstitute a legal opinion. The recipient is responsible for interpreting the documents and taking appropriate action.

To avoid potential delay, please do not send your response to CSC251 Little Falls Drive, Wilmington, Delaware 19808-1674 (888) 690-2882 | [email protected]


COPY SUMMONS r~RCoffRTusEONLY . usa neu cor~r.

{GrTACrON. JIJDI CJAL) ~P~?~~

NOTICE TO DEFENDANT: Cotari L't C:alii -jrllia, (AWS.D AL DEMA6UDAD0):

PANERA, LLC, a Delaware Limited Liability Co>iinpany;,andDOES l i ough 5, tnc usiv.c

YOU ARE BEING SUED BY PUo►1NTIFF: (LO ESTA DEMANDANDO EL DENIANDANTE): ~~' , Ck. puty

DEBORA PHILPOTT, an individual, onbehalfofherself and others similarlysituated

NOTICEI You havQ been sued. The court may dodde againsf,you withoutyour being heard unless you respond wllhfn 30 tlays. Read the Informetion below:

You'have 30;CALENDAR DAYS:after ihls summons and legat papers are served on you to file a wtitten rosponse at this court and have a eopy served on the plaintiff; A- fetler_or phone call wflt not protect you. Your written response must be In ptopet legat form tf you want the wurt to hear your case. There may bo a couit form that you can use'f6r yaut'lesponse. Yau'6an Qrsd Ahese court forrrss aritl more (rrforrimation at the Ci~lifornla Ccurts lZnftne Sell-Heip Cenler (sv►vw.covr(lnlo,ca.gov7sellhelp), your cwrnty law tlbrary, or the courthouse nearest you. If you, earinot pay the Gling fee, ask tite court derk for a fee waiver form. If you do riot ne your resporise on time, ybu may Idse the case by defaul t, and .your wages, mortay, and property may be laken %vllhout further warning,from the courl.

There are olher legal requirements. You inay want Io cafl an attomay right away. If you'do not know an atlorney: you may went to catl an attomey rererral service. If you_aannol afford an attomey, you may be el#giflla for free lega.l servfees fr~n a_ nonprofit legal services prograrts You ean locala Ihese nonprofd groups at the Califorrjia Legaf Servioes 1Neb sile (wwwaawhelpcalrlamla.org); the Callfomia'Courts Online Self-help Center (rvtnv.courtin/o.ca.eavlselllielp), orby contactirrtg your, local court or oounty bar associaGon. NOTE• The court has a.statutory tlen.for viaived rees antl costs on any settlemenl or artiitration award of $10,000 or more in a civil case. , rPs The cou lien must be paid bafore the court witl dismiss the case: IAYlSOJ Lo han demaniiado. Sl no fesponde dentno de'90 dias,, la corle puede deddiren su.con6a. sin bscuchar su verslbn:: Lea !e intormacldn a conunuacl6n. -

rtene 3i7 DIAS DE CALENDARlO despuc's de qare le eritrr:guen esta cttaclbri y pspelas legales para presenterana iesptteste porescrBo en esta obrta y haceiquo se entiogue urre eopia al demandanfe. t/na carte o una hamada tetefdnlca no lo protegen. Su respuesta por esLrito tiene'qup estar on fomrato fepal correcto st.desea que procesen su caso en la corie. Es posftile qua haya on forrrrutario que ustedpueda usar para su respuesta. Raede encontrar estos fannutario.s de la corte.y mSs informacfbn en el Cenfro de Ayuda de las Cortes de. Cal7tomia (vvww.sucorle_ca.gov), enla bibriatoca ds feyes d9 su condado o en fa corte que'le qpede inas cema. Sl n'o puede pagar la ctrota dr pn;sentaeidn,. pide al secretriria de 1a corie qvele d6 uh rormularro de raioricidn'tle pago.de cuotas. 51 rio m pnesenta su respuesta a tlepo, puede perderel caso porincump8mfento y`la corte le podra qui7ar su sueldo, dlnero y bienes sin mds advertencia.

Nay atras Rqulstros fegales. Es recomendable que uame a un abogado htmediatamente. Sirlo conoc® a un aoogado, puao'e 110marra un servicio tle ,remTsidn a abogadas. Si na puede pagar a un abogado, as posibra que cumpla,con los raqulsr'tos para obiener aervlr9os tagales gra(ttltos de un programa do servlclos /egales sin fnes de lucru, Puede enconfrarestos grupos 3lrt flnea do tucro en ol sitio web.de Cadlomla Legal Sorvices, (Iwrw.lawhelpcalifomfa.otg),.en e1.Centro de_Ayuda de /as Cortas da Carrfomia, (ivwnv.suoatte.ca.gov) oporllendoso on confacto con.la corte o.ef coleglo deabogadosJocalas. AV1S0= Por tey, la corte tlene-derecho a n;ciamrlas cuolas y tos costos exentos porlmponerungrevamen sabre cualquierrecuperaddn de $10,000 d mOs de valorreclbtda modiante un acuordo o ana concesidn de arbJtrdJe en un caso de daiecho_ dvll. Tkrne que pagar el gravamen de ta corte antes Ce que la corte pGeda desechar a) caso, .

The name and address of the courtis: cAse Nurrer:R: (E'lnombr® ydirecci6n de la corte es): Sacrametito Superior Court

720 9th Street, Sacramento, CA 95814

The name; ad.dress, arid tdlephone number of plaintifys attorriey, or plaintiff qiithout" an attomey, is: (El.nombre, fa direccidn y el n"urrrero de teldlono.del abogado del demandante, o del demandanfe que no frene abogado, es):

David Yeremian, 535 N. Brand Blv.d. Suite 705, Glendale, CA 91203 (818) N YO~ 80 i~!G

DATE: (Fecha) APR 1 1 2019

Clerk, by , Deputy

(Forproofofservice of this summons, use Proof of Service of Summons (form POS-070):) (Para prueba de enhega de esta citati6n use el formulario Proof of Senrice of Summons, (POS-010)).

NOTICE TO THE PERSON SERVED: You are served 1. = as an individual deferidant. 2. f--j as the person sued under the fictitious name of (specify):

3, ® on behalf o1 (specTfy): PANERA, LLC, a Defatvare Limited Liability Company

under. 0 CCP 416.10 (corporation) 0 ECP 4i6.60 (minor)

Q CCP 416.20 (defunct corporatir?n) CCP 416.70 (conservatee)

~] CCP 416:40 (association or partnership) CCP 416.90 (auttiorized person)

[] other (specify): 4. by personal delivery on (date); _

aWa,:wy ulm 5 UMfiAO NS codo ot Civa proocdum 5541220,465 orGNnornim' - ' wnw.eo~atfn7o.ee.pov juv 1, 200J


DAVID YEREMIAN & ASSOCIATES, 1NC. David Yeremian (SBN 226337) David(a~yeremianlaw.coin 535 N. Brand:Blvd.. Suite 705 Glendale, California 91203 Telephone: (818.) 230-8380 Facsimile: (818) 230-0308

DAVTYAN PROFESS.IONAL LAW CORP. Emil Davtyan (SBN 299363) [email protected] 5959 Topanga Canyon Blvd., Suite 130 Woodland Hills, CA 91367 Telephone: (818) 875-2Q08

Attorneys for Plaintiff DEBORA PHILPOTT, on belialf of herself and all others similarly situated

SUPERIOR COURT OF THE STATE.QF CALIFORNIA

FOR THE COUNTY OF SACRAMENTO

FILED Superior- Cour-t Of Dalifort Sjc;romp_ntQ

0411 -d1.2D12

nyou .-Ig By , Ltopu Case KLiatiLer•.

34-201 9-902543OU2

ia

t COPY

Case No.:

CLASS ACT10N ~ I

Assigned for All Purposes To: ~ I Non. Dept..

CLASS ACTION- COMPLAINT FOR:

l. Failure to Pay Minimum Wages in violation of Labor Code §.§ 1194, 1197.

2. Failure to Pay Wages and Overtime Under Labor Code § 510;

3. Meal Period Liability Under Labor Code §.§ 226.7, 512;

4. Rest-Break Liab.ility Under Labor Code § 226.7;

5. Violation of Labor Code §§ 226(a); 6. Violation of Labor Code.§ 203; and 7. Violation of Business & Professions. Code

§ 17200 el seq:

DEMAND FOR JURY TRIAL

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DEBOftA PHILPOTT, an individual, on belialf of herself and others similarly situated,

Plaintiff,

vs.

PANERA, LLC, a Delaware Limited Liability Company; and DOES l' through 50, inclusive,

Defendants.

CLASS ACTION COIutPLr1INT


1 Plaintiff Debora Philpott, (hereinafter "Plaintiff') on behalf of herself and all others

2 similarly situated (collectively, "Employees" or "Class Members") complains of Defendants, and

3 I each of them, as follows:

4 INTRODUCTION

5 1. Plaintiff brings this action on behalf of herself and all current and former

6 Employees within the State of California who, at any time four (4) years prior to the filing of this

7 lawsuit, are or were employed as non-exempt, hourly employees by Defendants PANERA, LLC, a

8 Delaware corporation, and DOES 1 through 50 (all defendants being collectively referred to herein

9 as "Defendants"). Plaintiff alleges that Defendants, and each of them, violated various provisions

10 of the California Labor Code, relevant orders of the Industrial Welfare Commission (IWC), and

11 California Business & Professions Code, and seeks redress for these violations.

12 2. Plaintiff is a resident of Riverside County in California and during the time period

13 relevant to this Complaint was employed by Defendants at two different locations, as a non-

14 exempt hourly employee, preparing food and catering orders for Defendants. Upon information

15 and belief, the same violations Plaintiff endured at Defendants' Riverside County, California,

16 locations were also experienced by all non-exempt hourly employees working for Defendants

17 throughout California. Plaintiff was employed by Defendants and (1) shared similar job duties and

18 responsibilities, (2) was subjected to the same policies and practices, and (3) endured similar

19 violations at the hands of Defendants as the other Employees who served in similar and related

20 positions.

21 3. Plaintiff and Class Members consistently worked at Defendants' behest without

22 being paid all wages due. Plaintiff and Class Members were employed by Defendants and worked

23 throughout California where the conduct giving rise to the allegations in this Class Action

24 Complaint occurred. More specifically, Defendants failed to accurately record time worked by

25 Plaintiff and Class Members by pressuring them into keeping time records that complied with

26 their shift schedule regardless of the hours they actually worked, failed to pay Class Members for

27 all hours worked and also provided inaccurate wage statements that prevented them from learning

28 of these unlawful pay practices. Defendants also failed to provide Class Members with all lawful

-2- CLASS ACTION COMPLAINT


1 I meal and rest breaks.

2 THE PARTIES

3 A. The Plaintiff

4 4. Plaintiff Debora Philpott has resided in Riverside County and, during the time

5 period relevant to this Complaint, was employed by Defendants as a non-exempt hourly employee

6 within the State of California, at Defendants' bakery-cafe restaurants in Temecula and Menifee,

7 I California.

8 B. The Defendants

9 5. Defendant PANERA, LLC is a Delaware limited liability company and describes

10 its type of business with the California Secretary of State as "Operator of Bakery-Cafes and Fresh

11 Dough Facilities." Defendant PANERA, LLC has been the employer listed on the wage statements

12 and employment records issued to Plaintiff during the relevant time period that Plaintiff was

13 employed with Defendants.

14 6. The true names and capacities, whether individual, corporate, associate, or

15 whatever else, of the Defendants sued herein as Does 1 through 50, inclusive, are currently

16 unknown to Plaintiff, who therefore sues these Defendants by such fictitious names under Code of

17 Civil Procedure § 474. Plaintiff is informed and believes, and thereon alleges, that Defendants

18 designated herein as Does 1 through 50, inclusive, are legally responsible in some manner for the

19 unlawful acts referred to herein. Plaintiff will seek leave of court to amend this Complaint to

20 reflect the true names and capacities of the Defendants designated herein as Does 1 through 50

21 , when their identities become known.

22 7. Plaintiff is informed and believes, and thereon alleges, that each Defendant acted in

23 all respects pertinent to this action as the agent of the other Defendants, that Defendants carried

24 out a joint scheme, business plan, or policy in all respects pertinent hereto, and that the acts of

25 each Defendant are legally attributable to the other Defendants. Furthermore, Defendants acted in

26 all respects as the employers or joint employers of Class Members. Defendants, and each of them,

27 exercised control over the wages, hours or working conditions of Class Members, issued policies

28 governing their employment, or suffered or permitted Class Members to work, or engaged Class



~

1 Members, thereby creating a common law employment relationship, with Class Members.

2 Therefore, Defendants, and each of them, employed or jointly employed Class Members.

3I 8. Whenever and wherever reference is made in this Complaint to any act by a

4 I Defendant or Defendants, such allegations and references shall also be deemed to mean the acts

5 I and failures to act of each Defendant acting individually, jointly, and severally.

6 9. Whenever and wherever reference is made to individuals who are not named as a

7 Defendant in this Complaint but were agents, servants, employees and/or supervisors of

8 Defendants, such individuals at all relevant times acted on behalf of Defendants within the scope

9 of their employment.

10 JURISDICTION AND VENUE

11 10. This Court has jurisdiction over this Action pursuant to California Code of Civil

12 Procedure § 410.10 and California Business & Professions Code § 17203. This Action is brought

13 as a Class Action on behalf of similarly situated Employees of Defendants pursuant to California

14 Code of Civil Procedure § 382. Venue as to Defendants is also proper in this judicial district

15 pursuant to California Code of Civil Procedure § 395 et seq. Defendants employ Plaintiff and

16 other Class Members throughout California, and maintain and operate at least four company

17 facilities in Sacramento, California..

18 FACTUAL BACKGROUND

19 11. The Employees who comprise the Class, including Plaintiff, are non-exempt

20 employees pursuant to the applicable Wage Order(s) of the IWC. Defendants hire hourly

21 employees who work in non-exempt positions at the direction of Defendants in the State of

22 California. Plaintiff and Class Members were either not paid by Defendants for all hours worked

23 or were not paid at the appropriate minimum, regular and overtime rates. Plaintiff also contends

24 that Defendants failed to pay Class Members all wages due and owing by compelling and

25 pressuring them to clock in and out each day as close as possible to their pre-designated shift

26 schedule, to their detriment. This practice resulted in Employees performing pre-shift and post-

27 shift work while off the clock, effectively under-recording the hours they actually worked.

28 Defendants also failed to provide timely and uninterrupted meal and rest breaks, and failed to



furnish accurate wage statements.

2 12. From four (4) years prior to the filing of this action and continuing through the

3 present and resolution of it, Defendants required Class Members to clock in and out using

4 Defendants' timekeeping system for the beginning and ending times of their work shifts and meal

5 periods. This timekeeping system was available and ready from the time Class Members started

6 and ended their daily shifts. However, instead of paying Class Members for all hours and minutes

7 they actually worked, Defendants pressured and compelled them to punch in and out for each shift

8 as close as possible to their pre-assigned shift schedule.

9 13. Defendants' uniformly applied practice resulted in Class Members remaining under

10 the control and authority of Defendants before and after they were required to punch out. As a

11 matter of practice, scheduled work shifts were rarely followed and changed daily, depending on

12 Defendants' staffing needs. For example, if Plaintiff was scheduled for a three (3) hour shift, she

13 might get called in the day before or a few hours before her shift were to start, and be asked to

14 arrive earlier to cover a co-worker's shift. Therefore Defendants' weekly schedules did not

15 accurately reflect the actual hours that were worked by Class Members. Furthermore, prior to

16 clocking in for their shift, for example, Class Members were required to put on their uniforms,

17 take inventory and/or prepare their work stations, or meet with the store supervisors or managers

18 to discuss issues pertaining to that day. After clocking out, Employees would spend an additional

19 five (5) to ten (10) minutes taking off their uniforms and storing them in their lockers, taking out

20 trash, and cleaning up their work area as well as the area outside of the restaurant. These necessary

21 tasks were often completed after clocking out, because Defendants discouraged Class Members

22 from receiving overtime pay, despite the fact that they required the work be completed after

23 clocking out.

24 14. Furthermore, Defendants also required Class Members to work off-the-clock

25 during their meal breaks. Specifically, while Employees were clocked out for a meal break,

26 supervisors and/or managers would interrupt the Employees' break to ask questions or to request

27 assistance, without the Employees clocking back in. Therefore, all of the off-the-clock work Class

28 Members performed resulted in overtime hours accruing earlier than when Defendants started



,

ll I paying them in a work shift.

2 15. This unlawful conduct by Defendants was done with the ostensible intent of paying

3 i I Class members only for the hours they were scheduled to work, rather than the hours they actually

4 worked under Defendants' control. By implementing policies, programs, practices, procedures and

5 protocols which resulted in the systematic under-recording of their actual hours worked, including

6 I off-the-clock work and overtime, Defendants' willful actions resulted in the systematic

7 I underpayment of wages to Class Members.

8 16. Plaintiff contends this policy is not neutral and results, over time, to the detriment

9 I of Class Members by systematically under-compensating them. The actual times when Plaintiff

10 and Class Members were under the control and direction of Defendants was under-reported in the

11 hours reflected on the timekeeping records.

12 17. Therefore, from at least four (4) years prior to the filing of this lawsuit and

13 continuing to the present, Defendants have had a consistent policy or practice of failing to pay

14 Class Members for all hours worked, and failing to pay at least minimum wages for all time they

15 worked for Defendants.

16 18. As a result of the above described post-shift work, off the clock work, the daily

17 I work demands and pressures to work through breaks, along with the other wage violations they

18 endured at Defendants' hands addressed herein, Class Members were not properly paid by

19 Defendants all wages earned and owed to them, and/or were not paid at the required rate of pay for

20 all hours worked, including when working more than eight (8) hours in any given day and more

21 than forty (40) hours in any given week, and including double-time wages for all hours over

22 twelve (12) worked on any given work shift.

23 19. As a result of Defendants' unlawful policies and practices, Class Members also

24 incurred overtime hours worked for which they were not adequately and completely compensated, .

25 in addition to the hours they were required to work off the clock. To the extent applicable,

26 Defendants also failed to accurately pay Class Members an overtime rate of 1.5 times the regular

27 rate for the first eight hours of the seventh consecutive work day in a week and overtime payments

28 i at the rate of two (2) times the regular rate for hours worked over eight (8) on the seventh



1 consecutive work day, as required by law.

2 20. Furthermore, Defendants similarly miscalculated Class Members' "regular rate of

3 pay" for purposes of paying meal premiums for missed or interrupted meal breaks.


5 continuing to the present, Defendants have had a consistent policy or practice of failing to pay

6 Employees for all hours worked. Also, from at least four (4) years prior to the filing of this lawsuit

7 and continuing to the present, Defendants also had a consistent policy or practice of failing to pay

8 Employees their true and correct overtime compensation at premium overtime rates for all hours

9 worked in excess of eight (8) hours a day and/or forty (40) hours a week, and double-time rates for

10 all hours worked in excess of twelve (12) hours a day.

11 22. Additionally, Defendants failed to provide all unpaid, off-duty meal periods and all

12 paid, off-duty rest periods to Class Members as required by the applicable laws. Defendants did

13 not have an accurate policy or practice which provided or recorded all the required meal and rest

14 periods. Specifically, Employees were required to perform work for more than five (5) hours

15 during a shift without receiving a timely meal or rest breaks, in order to keep up with the demands

16 and pressures from their managers and supervisors. In addition, upon information and belief,

17 Defendants followed a practice of under-reporting the hours Employees worked in a manner that

18 impacted when Employees received meal and off-duty rest breaks. This resulted in meal and rest

19 breaks that were provided late, generally after five (5) hours into the shift.

20 23. In addition to untimely meal and rest periods, Employees' meal and rest breaks

21 were regularly shortened or interrupted due to work demands. Specifically, Defendants often

22 required Employees to return from their meal or rest breaks to answer supervisor/manager

23 questions, help locate items, or attend to other work-related duties without clocking back in. This

24 resulted in Class Members often having to work through their scheduled meal and/or rest breaks,

25 or otherwise taking shortened ones, because the demands of the job would not avail them the

26 opportunity to take a full, uninterrupted, and off duty meal and/or rest break. Therefore, Class

27 Members remained under Defendants' control from before the time they clocked in for the day

28 until after the time they clocked out, without any reprieve from the demands of their job.



1 24. Upon information and belief, on the occasions when Employees worked more than

2 ten (10) hours in a shift, Defendants also failed to provide them with a second, uninterrupted,

3 timely and duty-free meal period, and with a second or third uninterrupted, timely and duty-free

4 I rest period. As a result, Defendants' failure to provide Class Members with all their legally

5 required off-duty, unpaid meal periods and all the legally required off-duty, paid rest periods is

6 and will be evidenced by Defendants' business records, or lack thereof.


8 continuing to the present, Defendants have regularly required Employees to work shifts in excess

9 of five (5) hours without providing them with uninterrupted meal periods of not less than thirty

10' (30) minutes, and shifts in excess of ten (10) hours without providing them with second meal

11 periods of not less than thirty minutes; nor did Defendants pay Employees "premium pay," i.e. one

12 hour of wages at each Employee's regular rate of pay, for each meal period that Defendants failed

13 to provide or deficiently provided. To the extent that Class Members were paid a meal "premium,"

14 Defendants failed to properly calculate the "regular rate" of pay. Meal period violations thus

15 occurred in one or more of the following manners:

16 a. Class members were not provided full thirty-minute duty free meal periods for.

17 work days in excess of five (5) hours and were not compensated one (1) hour's

18 wages in lieu thereof, all in violation of, among others, Labor Code §§ 226.7,

19 512, and paragraph 11 of the applicable Industrial Welfare Commission Wage

20 Order(s);

21 b. Class members were not provided second full thirty-minute duty free meal

22 periods for work days in excess of ten (10) hours;

23 c. Class members were required to work through at least part of their daily meal

24 period(s);

25 d. Meal periods were provided after five hours of continuous work during a shift

26 when Plaintiff and Class members worked over six (6) hours on any given shift;

27 and

28



1 e. Class members were restricted in their ability to take a full thirty-minute meal

2 period.

3' 26. Plaintiff and the similarly situated Class members were regularly required by

4 Defendants to work through or during their breaks; and were not provided with one hour's wages

5 in lieu thereof. Class members were also restricted in their ability to take their full ten (10) minutes

6 I net rest time or were otherwise not provided with duty-free rest periods. On occasions when Class

7 members worked over ten (10) hour shifts, they were, upon information and belief, not authorized

8 and permitted to take a third timely and uninterrupted, duty-free rest break. Therefore, from at

9 least four (4) years prior to the filing of this lawsuit and continuing to the present, Defendants

10 have consistently failed to provide Employees with paid rest breaks of not less than ten (10)

11 minutes for every work period of four (4) or more consecutive hours; or major fraction thereof,

12 nor did Defendant pay Employees premium pay for each day on which requisite rest breaks were

13 not provided or were deficiently provided. To the extent that Class Members were paid a meal

14 "premium," Defendants failed to_properly calculate the "regular rate" of pay.

15 27. Rest period violations therefore arose in one or more of the following manners:

16 a. Class members were required to work without being provided a minimum ten

17 (10) minute rest period for every four (4) hours or major fraction thereof

18 worked and were not compensated one (1) hour of pay at their regular rate of

19 compensation for each workday that a rest period was not provided;

20 b. Class.members, due to the busy work environment, were restricted in their

21 ability to take timely off-duty rest breaks which in turn were often provided at

22 the end of a shift instead of every four (4) hours worked, or major fraction

23 thereof;

24 c. Class members were not authorized and permitted to take timely rest periods

25 for every four hours worked, or major fraction thereof; and

26 d. Class members were required to remain on-duty during rest periods or

27 otherwise had their rest periods interrupted by work demands.

28



28. Defendants have also failed to comply with Labor Code § 226(a) by, among other

2 requirements, inaccurately reporting total hours worked, total wages earned by Class Niembers,

and the appropriate applicable rates. Specifically, the wage statements given to Class Members

H failed to accurately account for unpaid wages and overtime by under-reporting the hours Class

Members actually worked, due to off-the-clock work, as discussed above. Class Members were

6 required to work before clocking in and after clocking out, as well as during their meal breaks

7 while off-the-clock. Additionally, the wage statements facially violated the requirements of Labor

8 Code § 226(a) because they failed to accurately account the total number of hours worked and the

9 appropriate applicable rate in each period. Because the overtime hours are listed twice on the

10 statement, once for "Overtime Premium" and once for "Overtime Straight," the statement

11 overstates the actual hours worked, creating confusion as to how the overtime was calculated, how

12 the hours were computed, and whether Class Members received all wages owed. If a Class

13 Member added up all hours on the wage statement it would not accurately reflect the total hours

14 they worked, creating confusion. Class Members would thus have to resort to documents outside

15 of the wage statement to verify their total hours worked. Plaintiff and Class members are therefore

16 entitled to penalties not to exceed $4,000.00 for each employee pursuant to Labor Code § 226(e).

17 Defendants have also failed to comply with paragraph 7 of the applicable California lWC Wage

18 Orders by failing to maintain time records showing when the employee begins and ends each work

19 period, meal periods, wages earned pursuant to Labor Code § 226.7, and total daily hours worked

20 by itemizing in wage statements all deductions from payment of wages and accurately reporting

21 total hours worked by Class Members.

22 29. From at least four (4) years prior to filing this lawsuit and continuing to the present,

23 Defendants have also had a consistent policy of failing to pay all wages owed to Employees at the

24 time of their termination or within seventy-two (72) hours of their resignation, as required by

25 California wage-and-hour laws. Specifically, upon termination from the Temecula location,

26 Plaintiff was given a payroll debit card and told it would have funds within 24 hours. However,

27 the payroll card was not funded properly for several days. Even then, Plaintiff could only use the

28 card at certain locations and had to pay a$3 service charge to be able to withdraw cash from



1 certain automated teller machines ("ATM"). Similarly, when Plaintiff was terminated over the

2 I telephone from the Menifee location, she was instructed to return to the restaurant the following

3 day to receive her final paycheck. Again, however, Defendants gave her a blank payroll debit card

4 that was not funded for several days. Finally, more than one month after terminating Plaintiff,

5 Defendants paid for her accrued vacation time. Upon information and belief, Defendants similarly

6 I failed to pay Class Members all wages owed at the time of their termination or within seventy-two

7 1(72) hours of their resignation.

8 30. In light of the foregoing, Plaintiff bring this action on her behalf and on behalf of

9 all similarly situated Employees, pursuant to, inter alia, Labor Code §§ 201, 202, 203, 204, 218.5,

10 218.6, 226, 226.7, 510, 512, 558, 1174, 1185, 1194, 1194.2, 1197, and California Code of

11 Regulations, Title 8, section 11000 et seq.,

12 31. Furthermore, pursuant to Business and Professions Code §§ 17200-17208, Plaintiff

13 I and her fellow Employees seek injunctive relief, restitution, and disgorgement of all benefits

14 Defendants have enjoyed from their violations of Labor Code and the other unfair, unlawful, or

15 fraudulent practices alleged in this Complaint.

16 CLASS ALLEGATIONS

17 32. Plaintiff brings this class action on behalf of herself and all others similarly situated

18 pursuant to Code of Civil Procedure § 382. Plaintiff seeks to represent a Class (or "the Class,"

19 "Class Members," or "Employees") defined as follows: "All individuals employed by Defendants

20 at any time during the period of four (4) years prior to the filing of this lawsuit and ending on a

21 date as determined by the Court ("the Class Period"), who have been employed by Defendants as

22 non-exempt, hourly employees at Defendant's bakery-cafe restaurants within the State of

23 California."

24 33. Further, Plaintiff seeks to represent the following Subclasses composed of and

25 I defined as follows:

26 a. Subclass l. Minimum Wages Subclass. All Class Members who were not

27 compensated for all hours worked for Defendants at the applicable minimum

28 wage.



1 b. Subclass 2. Wages and Overtime Subclass. All Class Members who were not

2 compensated for all hours worked for Defendants at the required rates of pay,

3 including for all hours worked in excess of eight in a day and/or forty in a

4 week.

5 c. Subclass 3. Meal Period Subclass. All Class Members who were subject to

6 Defendants' policy and/or practice of failing to provide unpaid 30-minute

7 uninterrupted and duty-free meal periods or one hour of pay at the Employee's

8 correct regular rate of pay in lieu thereof.

9 d. Subclass 4. Rest Break Subclass. All Class Members who were subject to

10 Defendants' policy and/or practice of failing to authorize and permit Employees

11 to take uninterrupted, duty-free, 10-minute rest periods for every four hours

12 worked, or major fraction thereof, and failing to pay one hour of pay at the

13 Employee's correct regular rate of pay in lieu thereof.

14 e. Subclass 5. Wage Statement Subclass. All Class Members who, within the

15 applicable limitations period, were not provided with accurate itemized wage

16 statements.

17 f. Subclass 6. Termination Pay Subclass. All Class Members who, within the

18 applicable limitations period, either voluntarily or involuntarily separated from

19 their employment and were subject to Defendants' policy and/or practice of

20 failing to timely pay wages upon termination.

21 g. Subclass 7. UCL Subclass. All Class Members who are owed restitution as a

22 result of Defendants' business acts and practices, to the extent such acts and

23 practices are found to be unlawful, deceptive, and/or unfair.

24 34. Plaintiff reserves the right under California Rule of Court 3.765 to amend or

25 I modify the Class description with greater particularity or further division into subclasses or

26 limitation to particular issues. To the extent equitable tolling operates to toll claims by the Class

27 against Defendants, the Class Period should be adjusted accordingly.

28 35. Defendants, as a matter of company policy, practice and procedure, and in violation



1 of the applicable Labor Code, Industrial Welfare Commission ("IWC") Wage Order requirements,

2 and the applicable provisions of California law, intentionally, knowingly, and willfully, engaged

3 in a practice whereby Defendants failed to correctly calculate compensation for the time worked

4 by the Plaintiff and Class Members, even though Defendants enjoyed the benefit of this work,

5 required employees to perform this work and permitted or suffered to permit this work.

6 Defendants have uniformly denied these Class Members wages to which they are and were

7 entitled, and failed to provide meal periods or authorize and permit rest periods, in order to

8 unfairly cheat the competition and unlawfully profit.

9 36. This action has been brought and may properly be maintained as a class action

10 under the provisions of Code of Civil Procedure § 382 because there is a well-defined community

11 of interest in litigation and the proposed Class is easily ascertainable.

12 A. Numerosity

13 37. The potential members of the Class as defined are so numerous that joinder of all

14 the members of the Class is impracticable. While the precise number of Class Members has not

15 been determined at this time, Plaintiff is informed and believes that Defendants employ or, during

16 the time period relevant to this lawsuit, employed hundreds of Employees who satisfy the Class

17 defmition within the State of California.

18 38. Accounting for employee turnover during the relevant time period increases this

19 number substantially. Plaintiff alleges that Defendants' employment records will provide

20 information as to the number and location of all Class Members.

21 B. Commonality

22 39. There are questions of law and fact common to the Class that predominate over any

23 questions affecting only individual Class Members. These common questions of law and fact

24 include:

25 a. Whether Defendants failed to pay Employees minimum wages;

26 b. Whether Defendants failed to pay Employees wages for all hours worked;

27 C. Whether Defendants failed to pay Employees wages as required under

28 Labor Code § 510;



1 d. Whether Defendants violated Labor Code §§ 226.7 and 512, and the

2' applicable IWC Wage Orders, by failing to provide Employees with

3 requisite meal periods or premium pay in lieu thereof, when Employees

4 worked over six (6) hours on any given shift;

5 e. Whether Defendants violated Labor Code §§ 226.7, and the applicable IWC

6 Wage Orders, by failing to authorize and permit Employees to take requisite

7 rest breaks or provide premium pay in lieu thereof;

8 f. Whether Defendants violated Labor Code § 226(a) by providing Employees

9 with inaccurate wage statements;

10 g. Whether Defendants violated Labor Code § 204 by failing to timely pay

11 wages;

12 h. Whether Defendants violated Labor Code §§ 201, 202, and 203 by failing to

13 pay wages and compensation due and owing at the time of termination of

14 employment;

15 i. Whether Defendants' conduct was willful;

16 j. Whether Defendants violated Labor Code § 226 and § 1174 and the IWC

17 Wage Orders by failing to maintain accurate records of Class Members'

18 earned wages and work periods;

19 k. Whether Defendants violated Labor Code § 1194 by failing to compensate

20 all Employees during the relevant time period for all hours worked, whether

21 regular or overtime;

22 1. Whether Defendants violated Business and Professions Code § 17200 et

23 seq.; and

24 M. Whether Employees are entitled to equitable relief pursuant to Business and

25 Professions Code § 17200 et seq.

26 C. Typicality

27 40. The claims of the named Plaintiff are typical of those of the other Employees. The

28 Class Members all sustained injuries and damages arising out of and caused by Defendants'



1 common course of conduct in violation of statutes, as well as regulations that have the force and

2 I effect of law, as alleged herein.

3 D. Adequacy of Representation

4 41. Plaintiff will fairly and adequately represent and protect the interest of the Class

5 I Members. Counsel who represents the Employees are experienced and competent in litigating

6 I employment class actions.

7 E. Superiority of Class Action

8 42. A class action is superior to other available means for the fair and efficient

9 I adjudication of this controversy. Individual joinder of all Employees is not practicable, and

10 questions of law and fact common to all Employees predominate over any questions affecting only

11 individual Employees. Each Employee has been damaged and is entitled to recovery by reason of

12 Defendants' illegal policies or practices of failing to properly compensate Employees.

13 43. As to the issues raised in this case, a class action is superior to all other methods for

14 the fair and efficient adjudication of this controversy, as joinder of all Class Members is

15 impracticable and many legal and factual questions to be adjudicated apply uniformly to all Class

16 Members. Further, as the economic or other loss suffered by vast numbers of Class Members may

17 be relatively small, the expense and burden of individual actions makes it difficult for the Class

18 Members to individually redress the wrongs they have suffered. Moreover, in the event ,

.19 disgorgement is ordered, a class action is the only mechanism that will permit the employment of

20 a fluid fund recovery to ensure that equity is achieved. There will be relatively little difficulty in

21 managing this case as a class action, and proceeding on a class-wide basis will permit Employees

22 to vindicate their rights for violations they endured which they would otherwise be foreclosed

23 from receiving in a multiplicity of individual lawsuits that would be cost prohibitive to them.

24 44. Class action treatment will allow those persons sinularly situated to litigate their

25 claims in the manner that is most efficient and economical for the parties and the judicial system.

26 Plaintiff is unaware of any difficulties in managing this case that should preclude class treatment.

27 Plaintiff contemplates the eventual issuance of notice to the proposed Class Members that would

28 set forth the subject and nature of the instant action. The Defendants' own business records can be



1 utilized for assistance in the preparation and issuance of the contemplated notices. To the extent

2 that any further notice is required additional media and/or mailings can be used.

3 45. Defendants, as a prospective and actual employer of the Employees, had a special

4 fiduciary duty to disclose to prospective Class Members the true facts surrounding Defendants'

5 pay practices, policies and working conditions imposed upon the similarly situated Employees as

6 well as the effect of any alleged arbitration agreements that may have been forced upon them. In

7 addition, Defendants knew they possessed special knowledge about pay practices and policies,

8 most notably intentionally refusing to pay for all hours actually worked which should have been

9 recorded in Defendants' pay records and the consequence of the alleged arbitration agreements

10 and policies and practices on the Employees and Class as a whole.

11 46. Plaintiff and the Employees in the Class did not discover the fact that they were

12 entitled to all pay under the Labor Code until shortly before the filing of this lawsuit nor was there

13 ever any discussion about Plaintiff's and the Class' wavier of their Constitutional rights of trial by

14 jury, right to collectively organize and oppose unlawful pay practices under California and federal

15 law as well as obtain injunctive relief preventing such practices from continuing. As a result, the

16 applicable statutes of limitation were tolled until such time as Plaintiff and the Class Members

17 discovered their claims.

18 FIRST CAUSE OF ACTION

19 FAILURE TO PAY MINIMUM WAGES

20 (Against All Defendants)

21 47. Plaintiff re-alleges and incorporates all preceding paragraphs, as though set forth in

22 I I full herein.

23 48. In California, employees must be paid at least the then applicable state minimum

24 wage for all hours worked. (IWC Wage Order MW-2014). Additionally, pursuant to California

25 Labor Code § 204, other applicable laws and regulations, and public policy, an employer must

26 timely pay its employees for all hours worked.

27 49. California Labor Code § 1197, entitled "Pay of Less Than Minimum Wage" states:

28 "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."

ti 50. The applicable minimum wages fixed by the commission for work during the

relevant period is found in the Wage Orders. The minimum wage provisions of California Labor

4 Code are enforceable by private civil action pursuant to Labor Code § 1194(a) which states:

"Notwithstanding any agreement to work for a lesser wage, any employee receiving less than the

6 legal minimum wage or the legal overtime compensation applicable to the employee is entitled to

7 recover in a civil action the unpaid balance of the full amount of this minimum wage or overtime

8 compensation, including interest thereon, reasonable attorney's fees and costs of suit." The action

9 may be maintained directly against the employer in an employee's name without first filing a

10 claim with the Deparhnent of Labor Standards and Enforcement.

11 51. As described in California Labor Code §§ 1185 and 1194.2, any action for wages

12 incorporates the applicable Wage Order of the California lndustrial Welfare Commission. Also,

13 California Labor Code §§ 1194, 1197, 1197.1 and those Industrial Welfare Commission Wage

14 Orders entitle non-exempt employees to an amount equal to or greater than the minimum wage for

15 all hours worked. All hours must be paid at the statutory or agreed rate and no part of this rate may

16 be used as a credit against a minimum wage obligation.

17 52. Defendants failed to pay Class Members minimum wages for all hours worked

18 because of pre-shift and post-shift work they required Employees to perform. Defendants were

19 consistently understaffed during each shift, and consequently compelled the scheduled Class

20 Members to work longer hours than their scheduled shifts in order to prepare food for customer

21 orders, fulfill catering orders, and complete other work-related duties. In an effort to avoid paying

22 overtime, Defendants required Class Members to work before clocking in and after clocking out

23 for their shifts, resulting in time cards which reflected less time than actually worked. Class

24 Members also worked off-the-clock during their meal breaks, because their meal breaks were

25 often interrupted by managers and/or supervisors who sought assistance, without Class Members

26 clocking back in. Over time, this practice resulted in underpayment of wages owed to Class

27 Members, while benefiting Defendants. During the relevant time period, Defendants thus regularly

28 failed to pay minimum wages to Class Members. Defendants' uniform pattern of unlawful wage



1 and hour practices manifested as a result of implementing a uniform policy and practice that

2 denied accurate miniinum wage compensation to Class Members.

3 53. In committing these violations of the California Labor Code, Defendants

4 inaccurately recorded or calculated the time worked and consequently underpaid the actual time

5 worked by Plaintiff and Class Members. Defendants acted in an illegal attempt to avoid the

6 payment of all earned wages, and other benefits in violation of the California Labor Code, the

7 Industrial Welfare Commission requirements and other applicable laws and regulations. As a

8 result of these violations, Defendant also failed to timely pay all wages earned in accordance with

9 California Labor Code § 1194.

10 54. California Labor Code § 1194.2 also provides for the following remedies: "In any

11 action under Section 1194 ... to recover wages because of the payment of a wage less than the

12 minimum wages fixed by an order of the commission, an employee shall be entitled to recover

13 liquidated damages in an amount equal to the wages unlawfully unpaid and interest thereon."

14 55. In addition to restitution for all unpaid wages, pursuant to California Labor Code §

15 1197.1, Plaintiff and Class Members are entitled to recover a penalty of $100.00 for the initial

16 failure to timely pay each employee minimum wages, and $250.00 for each subsequent failure to

17 pay each employee minimum wages.

18 56. Pursuant to California Labor Code § 1194.2, Plaintiff and Class Members are

19 I further entitled to recover liquidated damages in an amount equal to wages unlawfully unpaid and

20 interest thereon.

21 57. Defendants have the ability to pay minimum wages for all time worked and have

22 willfully refused to pay such wages with the intent to secure for Defendants a discount upon this

23 indebtedness with the intent to annoy, harass, oppress, hinder, delay, or defraud Employees.

24 58. Wherefore, Plaintiff and Class Members are entitled to recover the unpaid

25 minimum wages (including double minimum wages), liquidated damages in an amount equal to

26 the minimum wages unlawfully unpaid, interest thereon and reasonable attorney's fees and costs

27 of suit pursuant to California Labor Code § 1194(a). Plaintiff and the other members of the Class

28 further request recovery of all unpaid wages, according to proof, interest, statutory costs, as well



1 as the assessment of any statutory penalties against Defendants, in a sum as provided by the

2 California Labor Code and/or other applicable statutes. To the extent minimum wage

3 compensation is determined to be owed to the Class Members who have terminated their

4 employment, Defendants' conduct also violates Labor Code §§ 201 and/or 202, and therefore

5 these individuals are also be entitled to waiting time penalties under California Labor Code § 203,

6 which penalties are sought herein on behalf of these Class Members. Defendants' failure to timely

7 pay all wages owed also violated Labor Code § 204 and resulted in violations of Labor Code §

8' 226 because they resulted in the issuance of inaccurate wage statements. Defendants' conduct as

9 alleged herein was willful, intentional and not in good faith. Further, Plaintiff and other Class

10 Members are entitled to seek and recover statutory costs.

11 SECOND CAUSE OF ACTION

12 FAILURE TO PAY WAGES AND OVERTIME UNDER LABOR CODE § 510



15 I full herein.

16 60. In California, "[a]ny work in excess of eight hours in one workday and any work in

17 excess of 40 hours in any one workweek and the first eight hours worked on the seventh day of

18 work in any one workweek shall be compensated at the rate of no less than one and one-half times

19 the regular rate of pay for an employee." California Labor Code § 510. In addition, "[a]ny work in

20 excess of 12 hours in one day" or "in excess of eight hours on any seventh day of a workweek

21 shall be compensated at the rate of no less than twice the regular rate of pay for an employee." Id.

22 The action may be maintained directly against the employer in an employee's name without first

23 filing a claim with the Deparhnent of Labor Standards and Enforcement.

24 61. By their conduct, as set forth herein, Defendants violated California Labor Code §

25 510 (and the relevant orders of the Industrial Welfare Commission) by failing to pay Employees:

26 (a) time and one-half their regular hourly rates for hours worked in excess of eight (8) hours in a

27 workday or in excess of forty (40) hours in any workweek or for the first eight (8) hours worked

28 on the seventh day of work in any one workweek; or (b) twice their regular rate of pay for hours



worked in excess of twelve (12) hours in any one (1) day or for hours worked in excess of eight

2 (8) hours on any seventh day of work in a workweek.

3 62. Upon information and belief, Defendants, and each of them, have intentionally and

4 improperly pressured Plaintiff and Class Members to change, adjust and/or modify their hours

5 worked in order to avoid paying all earned and owed straight time and overtime wages and other

6 benefits, in violation of the California Labor Code, the California Code of Regulations and the

7 IWC Wage Orders and guidelines set forth by the Division of Labor Standards and Enforcement.

Defendants have violated these provisions by requiring Plaintiff and other similarly situated non-

9 exempt Employees to work through meal periods when they were clocked out or to otherwise

10 work off—the-clock pre-shift and post-shift to complete their daily job. Employees were not

11 properly compensated, nor were they paid overtime rates for all hours worked in excess of eight

12 hours in a given day, and/or forty hours in a given week, as discussed above. Based on

13 information and belief, Defendants did not make available to Employees a reasonable protocol for

14 correcting time records when Employees worked overtime hours or to fix incorrect time entries, to

15 the Employee's detriment. Defendants have also violated these provisions by requiring Plaintiff

16 and other similarly situated Employees in the Class to work through meal periods when they were

17 required to be clocked out or to otherwise work off the clock to complete their daily job duties.

18 63. Defendants' failure to pay Plaintiff and Class Members the unpaid balance of

19 regular wages owed and overtime compensation, as required by California law, violates the

20 provisions of Labor Code §§ 510 and 1198, and is therefore unlawful.

21 64. Additionally, Labor Code § 558(a) provides "any employer or other person acting

22 on behalf of an employer who violates, or causes to be violated, a section of this chapter or any

23 provisions regulating hours and days of work in any order of the IWC shall be subject to a civil

24 penalty as follows: (1) For any violation, fifty dollars ($50) for each underpaid employee for each

25 pay period for which the employee was underpaid in addition to an amount sufficient to recover

26 underpaid wages. (2) For each subsequent violation, one hundred dollars ($100) for each

27 underpaid employee for each pay period for which the employee was underpaid in addition to an

28 amount sufficient to recover underpaid wages. (3) Wages recovered pursuant to this section shall



1 be paid to the affected employee." Labor Code § 558(c) states, "the civil penalties provided for in

2 this section are in addition to any other civil or criminal penalty provided by law." Defendants

3 have violated provisions of the Labor Code regulating hours and days of work as well as the IWC

4 Wage Orders. Accordingly, Plaintiff and Class Members seek the remedies set forth in Labor

5 I Code § 558.

6 65. Defendants' failure to pay compensation in a timely fashion also constituted a

7I violation of California Labor Code § 204, which requires that all wages shall be paid

81 semimonthly. From four (4) years prior to the filing of this lawsuit to the present, in direct

9 violation of that provision of the California Labor Code, Defendants have failed to pay all wages

10 and overtime compensation earned by Employees. Each such failure to make a timely payment of

11 compensation to Employees constitutes a separate violation of California Labor Code § 204.

12 66. Employees have been damaged by these violations of California Labor Code §§

13 204 and 510 (and the relevant orders of the Industrial Welfare Commission).

14 67. Consequently, pursuant to California Labor Code, including Labor Code §§ 204,

15 1 510, and 1194 (and the relevant orders of the Industrial Welfare Commission), Defendants are

16 liable to Employees for the full amount of all their unpaid wages and overtime compensation, with

17 interest, plus their reasonable attorneys' fees and costs, as well as the assessment of any statutory

18 penalties against Defendants, and each of them, and any additional sums as provided by the Labor

19 Code and/or other statutes.

20 THIRD CAUSE OF ACTION -

21 MEAL BREAK LIABILITY UNDER LABOR CODE §§ 226.7, 512

22 (Againsl All Defendants)


24 I I full herein.

25 69. Pursuant to Labor Code § 512 an employer may not employ someone for a shift of

26 more than five (5) hours without providing him or her with a meal period of not less than thirty

27 (30) minutes or for a shift of more than ten (10) hours without providing him or her with a second

28 meal period of not less than thirty (30) minutes. Section 226.7(b) of the Labor Code further



1 specifies that employers "not require an employee to work during a meal or rest or recovery

2 period. .." If, however, "an employer fails to provide an employee a meal or rest or recovery

3 period in accordance with a state law, including an ... order of the Industrial Welfare Conunission

4 ... the employer shall pay the employee one additional hour of pay at the employee's regular rate

5 of compensation for each workday that the meal or rest or recovety period is not provided." Labor

6 Code § 226.7(c).

7 70. Plaintiff and Class Members regularly worked shifts greater than five (5) hours and

8 in some instances, greater than ten (10) hours. However, meal periods were provided to

9 Employees like Plaintiff, if at all, later than five (5) hours into a work shift, in violation of Labor

10 Code § 512.

11 71. Defendants also required Employees to respond to work demands during meal

12 periods, or otherwise provided shortened meal periods, in violation of Labor Code § 226.7(b).

13 Defendants regularly pressured Class Members to place employment and business needs over their

14 lawful meal breaks. Specifically, supervisors and/or managers would often interrupt the

15 Employees' meal break to ask questions relating to work or otherwise request assistance, without

16 the Employees clocking back in. Therefore, Class Members regularly remained under Defendants'

17 control from before the time they clocked in for the day until after the time they clocked out,

18 without any reprieve from the demands of their job.

19 72. Furthermore, upon information and belief, on the occasions when Employees

20 worked more than ten (10) hours in a given shift, they did so without receiving a second

21 uninterrupted thirty (30) minute meal period as required by law.

22 73. Defendants thus failed to provide Plaintiff and Class Members with compliant meal

23 periods as required by the Labor Code, by failing to provide the opportunity to take meal breaks,

24 by providing the meal breaks late or for less than thirty (30) minutes, or by requiring them to

25 perform work during breaks.

26 74. Moreover, Defendants failed to compensate Class Members for all meal periods not

27 provided or inadequately provided, as required under Labor Code § 226.7(c) and paragraph 11 of

28 the applicable IWC Wage Orders. These sections provide that, if an employer fails to provide an



employee a meal period in accordance with state law, the employer shall pay the employee one (1)

2 hour of pay at the employee's regular rate of compensation for each workday that the meal period

is not provided. Defendants failed to compensate Employees for each meal period not provided or

0 inadequately provided, as required under Labor Code § 226.7(c). Furthermore, even if a meal

premium was paid, Defendants failed to properly calculate the Class Members' regular rate of pay.

6 75. Therefore, pursuant to Labor Code § 226.7, Class Members are entitled to damages

7 in an amount equal to one (1) hour of wages at their effective hourly rates of pay for each meal

8 period not provided or deficiently provided, a sum to be proven at trial, as well as the assessment

9 of any statutory penalties against the Defendants, and each of them, in a sum as provided by the

10 Labor Code and other statutes.

11 FOURTH CAUSE OF ACTION

12 REST BREAK LIABILITY UNDER LABOR CODE § 226.7



15 I full herein.

16 77. Labor Code §§ 226.7 and paragraph 12 of the applicable IWC Wage Orders

17 provide that employers must authorize and permit all employees to take paid, duty-free rest

18 periods at the rate of ten (10) minutes net rest time per four (4) work hours, or major fraction

19 thereo£ These sections further provide that if an employer fails to provide an employee rest period

20 in accordance with this section, the employer shall pay the employee one (1) hour of pay at the

21 employee's regular rate of compensation for each workday that the rest period is not provided.

22 78. Employees consistently worked consecutive shifts of at least eight (8) hours or

23 more, thus requiring Defendants to authorize and permit them to take rest periods. Pursuant to the

24 Labor Code and the applicable IWC Wage Order, Class Members were entitled to paid rest breaks

25 of not less than ten (10) minutes for each consecutive four (4) hour or longer shift. Defendants

26 failed to provide Class Members with timely rest breaks of not less than ten (10) minutes for each

27 consecutive four (4) hours of work, or major fraction thereof. Furthermore, upon information and

28 belief, on the occasions when Employees worked more than ten (10) hours in a given shift, they



1 did so without receiving a third uninterrupted ten (10) minute rest break as required by law.

2 79. More specifically, because of a shortage of staff inembers and the amount of work

3 required of Employees, Defendants required Employees to respond to work demands during rest

4 breaks by placing business needs over their rest breaks. Employees would often be required to

5 answer work-related questions or offer back-up assistance during their rest breaks. This resulted in

6 Class Members often having to work through their scheduled rest breaks, or otherwise taking

7 shortened ones, because the demands of the job would not avail them the opportunity to take a

8 lawfully uninterrupted and off duty rest break. Therefore, Class Members regularly remained

9 under Defendants' control from before the time they clocked in for the day until after the time they

10 clocked out, without any reprieve from the demands of their job.

11 80. Defendants, and each of them, have therefore intentionally and improperly denied

12 rest periods to Plaintiff and the Class Members in violation of Labor Code §§ 226.7 and paragraph

13 12 of the applicable IWC Wage Orders.

14 81. Defendants failed to authorize and permit Class Members to take rest periods, as

15 required by the Labor Code. Moreover, Defendants did not compensate Class Members with an

16 additional hour of pay at each Employee's regular rate of pay for each day that Defendants failed

17 to provide them with adequate rest breaks, as required under Labor Code § 226.7. To the extent

18 that rest break premiums were paid, Defendants miscalculated the Employees' regular rate of pay

19 by failing to include their bonuses as part of the regular rate of pay.

20 82. Therefore, pursuant to Labor Code § 226.7 and paragraph 12 of the applicable IWC

21 Wage Orders, Class Members are entitled to damages in an amount equal to one (1) hour of wages

22 at their effective hourly rates of pay for each day worked without the required rest breaks, a sum to

23 be proven at trial, as well as the assessment of any statutory penalties against Defendants, and each

24 of them, in a sum as provided by the Labor Code and/or other statutes.

25

26

27

28



1 FIFTH CAUSE OF ACTION

2 VIOLATION OF LABOR CODE § 226(a)



5 I full herein.

6 84. California Labor Code § 226(a) requires an employer to furnish each of his or her

7 employees with an accurate, itemized statement in writing showing pay period, the gross and net

8 earnings, total hours worked, and the corresponding number of hours worked at each hourly rate;

9 these statements must be appended to the detachable part of the check, draft, voucher, or whatever

10 else serves to pay the employee's wages; or, if wages are paid by cash or personal check, these

11 statements may be given to the employee separately from the payment of wages; in either case the

12 employer must give the employee these statements twice a month or each time wages are paid.

13 85. Pursuant to Labor Code § 226(e), Class Members who suffer injury as a result of an

14 employer's knowing and intentional failure to comply with the wage statement requirements are

15 entitled to recover the ~reater of all actual damages or fifty dollars ($50) for the initial pay period

16 in which a violation occurs and one hundred dollars ($100) for each violation in a subsequent pay

17 period, not exceeding an aggregate penalty of four thousand dollars ($4,000). They are also

18 entitled to an award of costs and reasonable attorneys' fees.

19 86. Class Members are deemed to suffer injury if the employer fails to provide accurate

20 and complete information specified in Labor Code § 226(a) and the employee cannot "promptly

21 and easily determine" one or more of the following: (i) the amount of the gross wages or net

22 wages paid to the employee during the pay period or any of the other information required to be

23 provided on the itemized wage statement pursuant to items (2) to (4), inclusive, (6), and (9) of

24 subdivision (a), (ii) which deductions the employer made from gross wages to determine the net

25 wages paid to the employee during the pay period, (iii) the name and address of the employer and,

26 (iv) the name of the employee and only the last four digits of his or her social security number or

27 an employee identification number other than a social security number. Labor Code §

28 226(e)(2)(B)•

-25- CLASS ACTION COIVIPLAINT


87. For purposes of Labor Code § 226(e) "promptly and easily determine" means an

2 objective standard, such that a reasonable person would be able to readily ascertain the

3 information without reference to other documents or information. Labor Code § 226(e)(2)(C).

4 88. Defendants failed to provide Class Members with accurate itemized wage

5 statements in writing, as required by the Labor Code. Specifically, the wage statements given to

6 Class Members failed to accurately account for unpaid wages and overtime by under-reporting the

7 hours Class Members actually worked, due to off-the-clock work. Class Members were required to

work before clocking in and after clocking out, as well as during their meal breaks, as discussed

9 above. Additionally, the wage statements facially violated the requirements of Labor Code §

10 226(a) because they failed to accurately account the total number of hours worked and the

11 appropriate applicable rate in each period. Because the overtime hours are listed twice on the

12 statements, once for "Overtime Premium" and once for "Overtime Straight," the statement

13 overstates the actual hours worked, creating confusion as to how the overtime was calculated, how

14 the hours were computed, and whether Class Members received all wages owed. If a Class

15 Member added up all hours on the wage statement, it would not accurately reflect the total hours

16 they worked, creating confusion and requiring a review of documents in addition to the wage

17 statement to verify their total hours worked.

18 89. Throughout the liability period, Defendants intentionally failed to furnish to Class

19 Members, upon each payment of wages, itemized statements accurately showing: (1) gross wages

20 earned, (2) total hours worked by the employee, (3) all deductions, (4) net wages earned, (5) the

21 inclusive dates of the period for which the employee is paid, (6) the name of the employee and

22 only the last four digits of his or her social security number or an employee identification number

23 other than a social security number, (7) the name and address of the legal entity that is the'

24 employer and (8) all applicable hourly rates in effect during the pay period and the corresponding

25 number of hours worked at each hourly rate by the employee pursuant to Labor Code § 226, '

26 amongst other statutory requirements. Defendants knowingly and intentionally failed to provide

27 Class Members with such timely and accurate wage and hour statements.

28



1 90. As a direct and proximate cause of Defendants' violation of Labor Code § 226(a),

2 Class Members suffered injuries, including among other things confusion over whether they

3 received all wages owed them, the difficulty and expense involved in reconstructing pay records,

4 and forcing them to make mathematical computations to analyze whether the wages paid in fact

5 compensated them correctly for all hours worked.

6 91. Therefore, Class Members are entitled to penalties under Labor Code § 226(e), as

7 Defendants have failed to provide wage statements with accurate and complete information as

8 required by one or more of items Labor Code § 226 (a)(1) to (9), inclusive.

9 SIXTH CAUSE OF ACTION

10 VIOLATION OF LABOR CODE § 203



13 I full herein.

14 93. Numerous Class Members are no longer employed by Defendants; they either quit

15 Defendants' employ or were fired.

16 94. Defendants failed to pay these Employees all wages due and certain at the time of

17 termination or within seventy-two (72) hours of resignation. Furthermore, even when Defendants

18 provided Class Member with a Payroll Card days after terminating her, the funds were not

19 immediately available.

20 95. The wages withheld from these Employees by Defendants remained due and owing

21 for more than thirty (30) days from the date of separation of employment.

22 96. Defendants failed to pay Class Members without abatement, all wages as defined

23 by applicable California law. Among other things, these Class Members were not paid all regular

24 and overtime wages at the time of their termination or within 72 hours of resignation, because

25 Defendants failed to pay for all hours worked, required off-the-clock work to the detriment of

26 Employees, and failed to pay premium wages owed for unprovided meal periods and rest periods,

27 as further detailed in this Complaint.

28



1 97. Defendants' failure to pay said wages within the required time was willful within

2 the meaning of Labor Code § 203. Specifically, Defendants knew wages were due but failed to

3 pay them, entitling Class Members to penalties under Labor Code § 203, which provides that an

4 employee's wages shall continue until paid for up to thirty (30) days from the date they were due.

5 SEVENTH CAUSE OF ACTION

6 VIOLATION OF BUSINESS & PROFESSIONS CODE § 17200 ET SEQ.



9 I full herein.

10 99. Plaintiff, on behalf of herself, Class Members, and the general public, brings this

11 claim pursuant to Business & Professions Code § 17200 et seq. Defendants' conduct, as alleged in

12 this Complaint, has been and continues to be unfair, unlawful, and harmful to Employees and the

13 general public. Plaintiff seeks to enforce important rights affecting the public interest within the

14 meaning of Code of Civil Procedure § 1021.5.

15 100. Plaintiff is a"person" within the meaning of Business & Professions Code

16 § 17204, has suffered injury, and therefore has standing to bring this cause of action for injunctive

17 relief, restitution, and other appropriate equitable relief.

18 101. Business & Professions Code § 17200 et seq. prohibits unlawful and unfair

19 business practices. By the conduct alleged herein, Defendants' practices were deceptive and

20 fraudulent in that Defendants' policy and practice failed to provide the required amount of

21 compensation for missed meal and rest breaks, and failed to adequately compensate Plaintiff and

22 Class members for all hours worked, due to systematic business practices as alleged herein that

23 cannot be justified, pursuant to the applicable California Labor Code and Industrial Welfare

24 Cominission requirements in violation of California Business and Professions Code §§ 17200, et

25 seq., and for which this Court should issue injunctive and equitable relief, pursuant to California

26 Business & Professions Code § 17203, including restitution of wages wrongfully withheld.

27 102. Wage-and-hour laws express fundamental public policies. Paying employees their

28 wages and overtime, providing them with meal periods and rest breaks, etc., are fundamental



1 public policies of California. Labor Code § 90.5(a) articulates the public policies of this State

2 vigorously to enforce minimum labor standards, to ensure that employees are not required or

3 permitted to work under substandard and unlawful conditions, and to protect law-abiding

4 employers and their employees from competitors who lower costs to themselves by failing to

5 comply with minimum labor standards.

6 103. Defendants have violated statutes and public policies. Through the conduct alleged

7 in this Complaint Defendants have acted contrary to these public policies, have violated specific

8 provisions of the Labor Code, and have engaged in other unlawful and unfair business practices in

9 violation of Business & Professions Code § 17200 et seq.; which conduct has deprived Plaintiff,

10 and all persons similarly situated, and all interested persons, of the rights, benefits, and privileges

11 guaranteed to all employees under the law.

12 104. Defendants' conduct, as alleged hereinabove, constitutes unfair competition in

13 violation of the Business & Professions Code § 17200 et seq.

14 105. Defendants, by engaging in the conduct herein alleged, by failing to pay wages and

15 I overtime, failing to provide meal periods and rest breaks, etc., either knew or in the exercise of

16 reasonable care should have known that their conduct was unlawful; therefore their conduct

17 violates the Business & Professions Code § 17200 et seq.

18 106. By the conduct alleged herein, Defendants have engaged and continue to engage in

19 a business practice which violates California and federal law, including but not limited to, the

20 applicable Industrial Wage Order(s), the Califomia Code of Regulations, and the California Labor

21 Code including Sections 204, 226, 226.7, 512, 1194, 1197, 1198, and 2802 for which this Court

22 should issue declaratory and other equitable relief pursuant to California Business & Professions

23 Code § 17203 as may be 'necessary to prevent and remedy the conduct held to constitute unfair

24 competition, including restitution of wages wrongfully withheld.

25 107. As a proximate result of the above-mentioned acts of Defendants, Employees have

26 been damaged, in a sum to be proven at trial.

27 108. Unless restrained by this Court Defendants will continue to engage in such

28 unlawful conduct as alleged above. Pursuant to the Business & Professions Code, this Court



1 should make such orders or judgments, including the appointment of a receiver, as may be

2 necessary to prevent the use by Defendants or their agents or employees of any unlawful or

3 deceptive practice prohibited by the Business & Professions Code, including but not limited to the

4 disgorgement of such profits as may be necessary to restore Employees to the money Defendants

5 have unlawfully failed to pay.

6 RELIEF REQUESTED

7 WHEREFORE, Plaintiff prays for the following relief:

8 l. For an order certifying this action as a class action;

9 2. For compensatory damages in the amount of the unpaid minimum wages for work

10 performed by Employees and unpaid overtime compensation from at least four (4)

11 years prior to the filing of this action, as may be proven;

12 3. For liquidated damages in the amount equal to the unpaid minimum wage and

13 interest thereon, from at least four (4) years prior to the filing of this action,

14 according to proof;

15 4. For compensatory damages in the amount of all unpaid wages, including overtime

16 and double-time pay, as may be proven;

17 5. For compensatory damages in the amount of the hourly wage made by Employees

18 for each missed or deficient meal period where no premium pay was paid therefor

19 from four (4) years prior to the filing of this action, as may be proven;

20 6. For compensatory damages in the amount of the hourly wage made by Employees

21 for each day requisite rest breaks were not provided or were deficiently provided

22 where no premium pay was paid therefor from at least four (4) years prior to the

23 filing of this action, as may be proven;

24 7. For penalties pursuant to Labor Code § 226(e) for Employees, as may be proven;

25 8. For penalties pursuant to Labor Code § 203 for all Employees who quit or were

26 fired in an amount equal to their daily wage times thirty (30) days, as may be

27 proven;

28



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9. For restitution for unfair competition pursuant to Business & Professions Code §

17200 et seq., including disgorgement or profits, as may be proven;

10. For an order enjoining Defendants and their agents, servants, and employees, and

all persons acting under, in concert with, or for them, from acting in derogation of

any rights or duties adumbrated in this Complaint;

11. For all general, special, and incidental damages as may be proven;

12. For an award of pre judgment and post judgment interest;

13. For an award providing for the payment of the costs of this suit;

14. For an award of attorneys' fees; and

15. For such other and further relief as this Court may deem proper and just.

DATED: April 11, 2019 DAVID YEREMIAN & ASSOCIATES, INC.

By t Davi 11 Attorney for intiff Debora Philpott, and all others simila situated



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DEMAND FOR JURY TRIAL

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

DATED: April 11, 2019 DAVID YEREM*N & ASSOCIATES, INC.

By t ~~---~ D a v i emi n Attorney for intiff Debora Philpott, and all others similarly situated



FRUED ~ ilj3311G4' CLtlrt O7' ~31

~~~ra~r:tgt,tfl

0411 1 1?C?q 9 t-; y S.L br. Y~l g

Gy Casd hlurttbEl':

lY

~ .~ Complex Case Designation `A'ar `i`

Q Counter Q Joinder

Filed wtth first appearance by defendant JUD4E. (Cal. Rules of Court, rule 3.402) DEPTt

w must be completed (see'instructio)

best describes thls.case: Contract Q Breach of contracUvrarranty (05)

Q Ru(e 3.740 collections (09)

71 Other collections (09)

~ Insurance caverage (18) Q Other contract (37) Roal Proporty Q Errdnent domainMverse

condemnatioo (14) Q Wrongful evictiori (33) Q Otfier real property (26)

Untawful Detainer Q

Q

Commercial (31)

Residehtial (32)

Q Driigs (38)

Judiclal Q

Reviow Asset forfeiture

Q (05)

Pelltion re: arbliration a►vard (11)

Q Writ of mandate (02)

n Other ludiotal review (39)

on

Provisionally Complex Civil Litigation (Cal. Rules of Couri, rules 3.400-3.403)

Q AnutrusUTrade regulatlon (03)

Q Conslruclion defect (10)

Q Mass ton (40)

Q Secudtles litigaqon (28) Q Environmentallroxic tort (30) Q Insurance coverage claims arising from the

above lisled provisionally oomplex case lypes (41)

Enforcemont of Judgment

= Enforcemenl of )udgment (20)

Mlscellaneous Clvll Complaint

Q RICO (27)

Q Other complaint (not specNled above) (42)

Mlscollaneous Clvil Potition

Q Partnership and corporate governance (21) Q Other pelilion (nof specirted above) (43)

COPY A David YerLm,an1(226337) RNev

pdame,slateat+rrr~rmti.~ enjoderessl:

David Yeremian & Associates Inc. 535 N. Brand Blvd. Suite 705 Glendale, CA 91201

TELEPHONE NO-' ~S 18) 230=8380 FAx r;o.. .(818)' 230-0308 ATToaNEY FOR rasmer laintiff. Debora Philpott

FOR COURT usF ONLv

suPERIOR COURT OF CALIFORNIA, COUNTY OF Sa srREEr A1mREss 720 9th Street 6SA!UN8 ADDRE.SS:

CnYANDZIPCODE Sacramento 95814 eru,NCH NAn!e Gordon D. Scliaber C

CASE NAME: Phil ott.v. Panera, LLC

CIVIL CASE COVER SliEET ✓Q Unlimited Q Umited

~ (Amount (Amourit demanded demandedis exceeds $25,000) 525,000 or less).

~ Iterns 1-8.befr ~ 1. Check one box beiow for the case type that ~yq Auto Tort

Q Auto (22) Q Uninsured motodst (46) Othor PIrPDlWD (Porsonal InjurylProperty D'amagelWrongful Death) Tort Q Asbestos (04) Q ProduCt liability (24) Q Medical malpractice (45)

Q Other PIIPDNIID (23) Non-PIIPDIYVD (Other) Tort = Business IaNunfair business pracllce (07) Q Civil rights (08)

Q DefamaUon (13) Q Fraud (16)

Q Intellectual property (19) Q Professional negllgence (25)

~ Q Other non-PIlPDM1D tort (35)

~Em loyment

Wrongful termination (36)

2. This case Lv(J is L.J is not complex under rule 3.400 of the California Rules of Court. If the case is complex, mark the factors requiring exceptional Juiiicial management:

a. Q Large number of separately represented parties d. Q Large nurnber of witnesses b. 0 Factensive motion practice raising difficult or novel e: Q Coordination wilh related actions pending in one or more courts

issues that will be time-consuming to resolve in other counties, states, or countries, or In a federal court c. © Substantial amount of documentary evidence f, Q Substantial posljudgment judicial supenasion

3. Remedies sought (c/reck all that apply)r a.© monetary b. Q nonmo.netary; declaratory or injunctive relief c. Qpunilive

4. Number of causes of action (specfly): Seven (7)

5. This case Q✓ is Q is not a class action suit. 6. If there are any known related cases, file and serve a notice of related case;{You may usel;lo CM-0•!5.)

Date.: April 11, 2019 ~~~ i.+f David Yeremian ~ ' ✓-r-- - ---

nYPE QR PAIhT NAME7 isl4':~~ URE f~,F PAR7Y-OR ATORNEY FOR PARTY)

. Plaintiff must file this cover sheet with the firsl paper filed in the action or proceeding (eicceF t small claims cases or cases filed under the Probate Code, Family Code, or Welfare and Institutions Code). (Cal. Rules of Court, rule 3.220.) Failure to fiie may result in sanctions.

• File this cover sheet in addition to any cover sheet required by local court rule. • If this case is complex under rule 3.400 et seq, of the California Rules of Court, you must serve a copy of this covei sheet on atl

other parties to the action or proceeding. • Unless this is a collections case under ruie 3.740 or a complex case, this cwver sheet will be used for statistical purposes on~r.

aoe 1 of 1

FormAdop'.odforLlandatoryUaa CIVILCASECOVERSHEET Ca!R~esafCourlrfos2.30,3120.3.4004.403,3.74P. Jud~oal Cancl or Ca6rorNa Ca'. Stae!dards of Juakial AdmirreValiorti at0 3.11) CM-010 (ReV. Ju!71. 70071 www.CauClnfb.tigov


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