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COMPLAINT OF FOR

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COMPLAINT OF FOR Powered By Docstoc
					 1   David R. Markham (SBN 071814)
     R. Craig Clark (SBN 129219)
 2   James M. Treglio (SBN 228077)
     Laura M. Cotter (SBN 259445)
 3
     CLARK & MARKHAM LLP
 4   600 B Street, Suite 2130
     San Diego, CA 92101
 5   Telephone: (619) 239-1321
     Facsimile: (619) 239-5888
 6

 7   Elana R. Levine (SBN 234155)
     Brian Levine (SBN 251416)
 8   LEVINE LAW GROUP, APC
     15760 Ventura Blvd., Suite 2030
 9   Encino, CA 91436
     Tel: (818) 990-3400
10   Facsimile: (818) 855-8040
11   Attorneys for Plaintiffs
12                        SUPERIOR COURT OF THE STATE OF CALIFORNIA
13                              IN AND FOR THE COUNTY OF LOS ANGELES
14                                                  )    Case No.: BC423185
     GERARDO TARANGO, BRYAN CHARTERS, )
15   and BRIAN HENRY, on behalf of themselves, )         FIRST AMENDED AND CONSOLIDATED
     and all others similarly situated,             )    CLASS ACTION COMPLAINT FOR:
16                                                  )    (1) FAILURE TO PAY WAGES
                             Plaintiff,             )    (2) FAILURE TO PAY OVERTIME
17                                                  )    (3) FAILURE TO PROVIDE MEAL AND
             v.                                     )    REST PERIODS
18                                                  )    (4) FAILURE TO ITEMIZE PAY
     AJILON COMMUNICATIONS OF                       )    STATEMENTS
19   CALIFORNIA, INC., a Delaware Corporation )          (5) PENALTIES PURSUANT TO LABOR
     authorized to do business in the State of      )    CODE § 203
20   California, and DOES 1 through 100, Inclusive. )    (6) UNFAIR COMPETITION IN
                                                    )    VIOLATION OF CAL. BUS. & PROF.
21                           Defendants.            )    CODE § 17200 et seq.;
22
                                                    )    (7) PENALTIES PURSUANT TO
                                                    )    LABOR CODE § 2699
                                                    )
23                                                  )
                                                    )    DEMAND FOR JURY TRIAL
24                                                  )
25           Plaintiffs GERARDO TARANGO, BRYAN CHARTERS, and BRIAN HENRY, on
26   behalf of themselves and all others similarly situated, complain of Defendants, and each of them,
27   as follows:
28

                                                     1
                      FIRST AMENDED AND CONSOLIDATED CLASS ACTION COMPLAINT
 1                                   JURISDICTION AND VENUE

 2          1.      This Court has jurisdiction over this action pursuant to Cal. Civ. Proc. Code

 3   § 410.10. The action is brought pursuant to Cal. Civ. Proc. Code § 382, Cal. Civ. Code § 1781 et

 4   seq. Plaintiffs bring this action on their own behalf, and on behalf of all persons within the sub-

 5   classes defined.

 6          2.      Venue is proper in this Court pursuant to Cal. Civ. Proc. Code §§ 395 and 395.5

 7   because the defendant conducts business in the County of Los Angeles and/or because Plaintiffs

 8   are informed and believe that during the relevant time period defendant maintained a regional

 9   headquarters for the State of California in the County of Los Angeles.

10                                             CLASS DEFINITION

11          3.      Pursuant to CCP § 382, Plaintiffs TARANGO, CHARTERS, and HENRY bring

12   this action on behalf of the following Sub-Class:

13                  All “Installation and Repair Technicians” or similar title who were employed

14                  by Defendants in California, at any time from October 9, 2005 through

15                  January 1, 2010 (collectively, the “Installation and Repair Technician Class”

16                  or “Installation and Repair Technician Class Members”).

17          4.      Pursuant to CCP § 382, Plaintiffs CHARTERS and HENRY bring this action on

18   behalf of the following Sub-Classes:

19                  (a) All hourly dispatchers or similar title who were employed by Defendants

20                  in California, at any time from October 19, 2005 through January 1, 2010

21                  (collectively, the “Dispatcher Sub-Class” or “Dispatcher Sub-Class

22                  Members”).

23                  (b) All trouble ticket personnel, quality control personnel or similar title who

24                  were employed by Defendants in California, at any time from October 19,

25                  2005 through January 1, 2010 (collectively, the “Quality Control Sub-Class”

26                  or “Quality Control Sub-Class Members”).

27          5.      The Installation and Repair Technician Sub-Class Members, Dispatcher

28   Sub-Class Members, and Quality Control Sub-Class Members are collectively referred to

                                                         2
                    FIRST AMENDED AND CONSOLIDATED CLASS ACTION COMPLAINT
 1   herein as the “CLASS” and “Class Members.”

 2           6.      The CLASS consists of all California residents who are current and former

 3   employees of AJILON who performed work for the Defendant and were not compensated or who

 4   worked more than eight (8) hours in any given day and/or more than forty (40) hours in any given

 5   week and who were not paid the overtime premium compensation pursuant to the applicable Cal.

 6   Lab. Code and Industrial Welfare Commission Wage Order Requirements during the periods

 7   commencing October 9, 2005 and on October 19, 2005, for the Installation and Repair Technician

 8   Class Members and the Hourly Class Members respectively. The Class Period ends on January 1,

 9   2010, which under information and belief, is the date that Defendant ceased operations in

10   California.     To the extent equitable tolling operates to toll claims by the CLASS against

11   Defendants, the Class Period should be adjusted accordingly.

12           7.      The CLASS also consists of all California residents who are current and former

13   employees of AJILON, who were not provided with compensation for missed meal and rest

14   periods as required by the applicable Labor Code and IWC Wage Order Requirements in any given

15   week commencing October 9, 2005 and on October 19, 2005, for the Installation and Repair

16   Technician Sub-Class Members and the Dispatcher and Quality Control Sub-Class Members

17   respectively. The Class Period ends on January 1, 2010, which under information and belief, is

18   the date that Defendant ceased operations in California.

19           8.      Plaintiffs reserve the right under California Rule of Court Rule 3.765 to amend or

20   modify the class descriptions with greater specificity or further division into subclasses or

21   limitation to particular issues.

22                                             CLASS ALLEGATIONS

23           9.      PLAINTIFFS GERARDO TARANGO, BRYAN CHARTERS, and BRIAN

24   HENRY (“PLAINTIFFS”) allege that at all material times mentioned herein, they:

25                   (a) Resided in Southern California;

26                   (b) Were employed as “Installation and Repair Technician” and/or other hourly job

27                   titles for Defendant in the State of California;

28                   (c) Were required to work more than eight (8) hours in any given day and/or more

                                                         3
                     FIRST AMENDED AND CONSOLIDATED CLASS ACTION COMPLAINT
 1                  than forty (40) hours in any given week without proper compensation;

 2                  (d) Were required to work without being compensated for all hours worked;

 3                  (e) Did not receive overtime and double time compensation for all hours worked

 4          over eight (8) and/or twelve (12) hours in a day and/or more than forty (40) hours in any

 5          given week;

 6                  (f) Were required to work in excess of five (5) hours per day without being

 7                  provided a meal period;

 8                  (g) Worked without being provided a minimum ten (10) minute rest period for every

 9                  four (4) hours or major fraction thereof; and

10                  (h) Did not receive compensation for missed meal and/or rest periods.

11          10.     Defendants willfully failed to compensate Plaintiffs and all similarly situated

12   CLASS members for wages at the termination of their employment for Defendants.

13          11.     This action is brought, and may properly be maintained, as a class action under

14   CCP § 382 because there is a well-defined community of interest in the litigation and the proposed

15   class is easily ascertainable. This action satisfies the predominance, typicality, numerosity,

16   superiority, and adequacy requirements of these provisions.

17                          (a) Numerosity: The Class is so numerous that the individual joinder of all

18                  members is impractical under the circumstances of this case. While the exact

19                  number of class members is unknown to Plaintiffs at this time, Plaintiffs are

20                  informed and believe, and based thereon allege, Defendants have employed more

21                  than 500 persons in hourly positions during the Class Period.

22                          (b) Commonality: Common questions of law and fact exist as to all

23                  members of the Class and predominate over any questions that affect only

24                  individual members of the class. The common questions of law and fact include, but

25                  are not limited to:

26                                  (i) Whether Defendants have had a policy and practice of failing to

27                          authorize and permit Class Members to leave the premises during a 10-

28                          minute rest break for every four (4) hours worked in a shift;

                                                        4
                    FIRST AMENDED AND CONSOLIDATED CLASS ACTION COMPLAINT
 1                  (ii) Whether Defendants have had a policy and practice of failing to

 2          provide Class Members with meal periods after five (5) hours;

 3                  (iii) Whether Defendants have had a policy of requiring that their

 4          hourly employees clock out for a meal break, even though they are not

 5          permitted to take the meal break;

 6                  (iv) Whether Defendants have had a policy and practice of requiring

 7          Class Members to work without compensation for all hours worked;

 8                  (v) Whether Defendants have had a policy and practice of failing to

 9          pay overtime and/or double time for shifts lasting longer than eight (8)

10          and/or twelve (12) hours;

11                  (vi) Whether Defendants’ policy and practice of not providing duty-

12          free meal periods, and of not paying proper wages for all hours worked

13          resulted in incorrect wage statements being provided to putative class

14          members;

15                  (vii) Whether Defendants’ policies and practices as alleged herein

16          violated B&P Code § 17200, et seq.;

17                  (viii) Whether Defendants violated Labor Code § 2698, et seq. by

18          engaging in the policies and practices alleged herein; and

19                  (ix) Whether penalties should be assessed for the alleged Labor Code

20          violations.

21          (c) Typicality: Plaintiffs’ claims are typical of the claims of the Class

22   Members. Plaintiffs and the members of the class sustained damages arising out of

23   Defendants’ common policies and practices as alleged herein.

24          (d) Adequacy: Plaintiffs will fairly and adequately protect the interests of

25   the members of the class. Plaintiffs have no interest that is adverse to the interests of

26   the other Class Members.

27          (e) Superiority: A class action is superior to other available means for the

28   fair and efficient adjudication of this controversy. Because individual joinder of all

                                         5
     FIRST AMENDED AND CONSOLIDATED CLASS ACTION COMPLAINT
 1   members of the class is impractical, class action treatment will permit a large

 2   number of similarly situated persons to prosecute their common claims in a single

 3   forum simultaneously, efficiently, and without unnecessary duplication of effort and

 4   expense that numerous individual actions would engender. The expenses and

 5   burdens of individual litigation would make it difficult or impossible for individual

 6   members of the class to redress the wrongs done to them, while important public

 7   interests will be served by addressing the matter as a class action. The cost to and

 8   burden on the court system of adjudication of individualized litigation would be

 9   substantial, and substantially more than the costs and burdens of a class action.

10   Class litigation would also prevent the potential for inconsistent or contradictory

11   judgments.

12          (f) Public Policy Considerations: When employers violate state wage and

13   hour laws as is the case here, current employees are often afraid to assert their rights

14   out of fear of direct or indirect retaliation. Former employees are fearful of bringing

15   actions because they perceive that their former employers can frustrate their efforts

16   to find future employment through negative references and other means. Class

17   actions provide the class members who are not named in the complaint with a type

18   of anonymity that allows for vindication of their rights. The members of the class

19   are so numerous that the joinder of all members would be impractical and the

20   disposition of their claims in a class action rather than in individual actions will

21   benefit the parties and the court. The individual damages suffered by Class

22   Members are less than $75,000.00 each so that individual actions or individual

23   remedies are impracticable. There is a well-defined community of interest in the

24   questions of law or fact affecting the Class in that the legal questions of violation of

25   the contractual agreements with its employees, the Wage Order, the Labor Code,

26   and the California Unfair Practices Act, are common to the Class Members. The

27   factual questions relating to the amount of wages which Defendants have deprived

28   Class Members and applicable penalties are also common to the Class Members.

                                         6
     FIRST AMENDED AND CONSOLIDATED CLASS ACTION COMPLAINT
 1          12.     A representative action pursuant to the Unfair Practices Act on behalf of the general

 2   public is appropriate and necessary because the trade practices of Defendants as alleged herein

 3   violated California law. Plaintiffs also request pursuant to the Unfair Practices Act that this Court

 4   exercise its ancillary jurisdiction over the sums unlawfully retained by Defendants as a result of the

 5   conduct alleged herein and order disgorgement of unpaid residuals to all affected Class Members.

 6                                             DEFENDANTS

 7          13.     Plaintiffs are informed and believe, and thereupon allege that at all times mentioned

 8   herein, defendant, AJILON, was a Delaware Corporation, licensed to do business and actually

 9   conducted business in the State of California.        Defendants owned and operated an industry,

10   business, and establishment in numerous separate geographic locations within the State of

11   California, including, but not limited to the County of Los Angeles. Thus, defendants are subject

12   to the applicable California Labor Codes; California Business and Professions Code § 17200 et

13   seq., (Unfair Practices Act) and the applicable wage order(s) issued by the Industrial Welfare

14   Commission of the State of California.

15          14.     The true names and capacities, whether individual, corporate, subsidiary,

16   partnership, associate or otherwise of defendant DOES 1 through 100, inclusive, are unknown to

17   the PLAINTIFFS who therefor sues these defendants by such fictitious names pursuant to Cal. Civ.

18   Proc. Code § 474. The PLAINTIFFS will seek leave to amend this Complaint to allege the true

19   names and capacities of DOES 1 through 100, inclusive, when they are ascertained.

20          15.     At all times herein mentioned, each of said defendants participated in the doing of

21   the acts hereinafter alleged to have been done by the named defendants; and furthermore, the

22   defendants, and each of them, were the agents, servants and employees of each and every one of

23   the other defendants, as well as the agents of all defendants, and at all times herein mentioned,

24   were acting within the course and scope of said agency and employment.

25          16.     At all times mentioned herein, the defendants, and each of them, were members of,

26   and engaged in, a joint venture, partnership and common enterprise, and acting within the course

27   and scope of said agency and employment.

28          17.     At all times herein mentioned, the acts and omissions of various defendants, and

                                                       7
                    FIRST AMENDED AND CONSOLIDATED CLASS ACTION COMPLAINT
 1   each of them, concurrently contributed to the various acts and omissions of each and every one of

 2   the other defendants in proximately causing the wrongful conduct, harm and damages alleged

 3   herein.

 4             18.   At all times herein mentioned, defendants, and each of them, approved of, condoned

 5   and/or otherwise ratified each and every one of the acts or omission complained of herein. At all

 6   times herein mentioned, the defendants, and each of them, aided and abetted the acts and omissions

 7   of each and every one of the other defendants thereby proximately causing the damages as herein

 8   alleged.

 9                                      FACTUAL BACKGROUND

10             19.   Defendant hired hourly employees who worked in California. These employees

11   worked in non-exempt positions.

12             20.   Plaintiffs and other CLASS members, on a regular basis, were not compensated for

13   all hours worked. Plaintiffs and other employees were regularly not compensated at overtime

14   and/or double time rates when they worked over eight (8) and/or twelve (12) hours per day.

15   Defendant also failed to provide itemized records reflecting those hours worked.

16             21.    Plaintiffs and other members of the CLASS were not provided with meal periods

17   for work days in excess of five (5) hours, rest periods for work periods of four (4) hours or major

18   fraction thereof, and were not compensated one hours’ wages in lieu thereof.

19             22.   Defendants have failed to comply with Industrial Welfare Commission (“IWC”)

20   Wage Order 4-2001(7) by failing to maintain time records showing when the employees began and

21   ended each work period, meal period, and total daily hours worked by itemizing in wage

22   statements all deductions from payment of wages accurately reporting total hours worked by

23   Plaintiffs and members of the proposed CLASS.

24                                             FIRST COUNT

25                              FOR FAILURE TO PAY WAGES OWED

26                              (By the CLASS and Against all Defendants)

27             23.   PLAINTIFFS, and the other members of the CLASS, reallege and incorporate by

28   this reference, as though fully set forth herein, the preceding paragraphs of this Complaint.

                                                       8
                     FIRST AMENDED AND CONSOLIDATED CLASS ACTION COMPLAINT
 1          24.     Cal. Lab. Code § 204 establishes the fundamental right of all employees in the State

 2   of California to be paid wages in a timely fashion for their work.

 3          25.     Pursuant to the IWC Wage Order(s), Defendant is required to pay PLAINTIFFS,

 4   and other members of the CLASS, for all hours worked, meaning the time that employees are

 5   subject to the control of an employer.

 6          26.     Defendants’ uniform policy and procedure required its employees to work “off the

 7   clock” without compensation for time spent working for Defendant and/or subject to the control of

 8   the Defendant. PLAINTIFFS seek unpaid wages and penalties therefore.

 9          27.     Defendant, as a matter of established company policy and procedure, in each and

10   every county of the State of California where Defendant conducted business, consistently:

11                  a.     Administered a uniform company policy and practice regarding the duties

12                         and responsibilities of PLAINTIFFS and other members of the CLASS;

13                  b.     Had and/or have numerous manuals, letters, correspondence, policy

14                         handbooks and the like which taken together constitute, created or comprise

15                         a written contract for employment for PLAINTIFFS and other members of

16                         the CLASS; and,

17                  c.     Scheduled to work and/or required, suffered or permitted PLAINTIFFS, and

18                         other members of the CLASS, to work without paying straight time for each

19                         and every hour worked.

20          28.     Defendant’s pattern, practice and uniform administration of corporate policy

21   regarding illegal employee compensation as described herein is unlawful and creates an

22   entitlement, to recovery by PLAINTIFFS, and other members of the CLASS, in a civil action, for

23   the unpaid balance of the full amount of the straight time compensation owing.

24          29.     Pursuant to Cal. Lab. Code §218.6 and the California Civil Code §3287 (b) and

25   §3289, PLAINTIFFS, and members of the CLASS, seek recovery of pre-judgment interest on all

26   amounts recovered herein.

27          30.     PLAINTIFFS, and other members of the CLASS, request that the Court award

28   reasonable attorneys’ fees and costs incurred by them in this action.

                                                       9
                    FIRST AMENDED AND CONSOLIDATED CLASS ACTION COMPLAINT
 1                                             SECOND COUNT

 2                     FOR FAILURE TO PAY OVERTIME COMPENSATION

 3                                (By CLASS and against All Defendants)

 4          31.     PLAINTIFFS, and the other members of the CLASS, reallege and incorporate by

 5   this reference, as though fully set forth herein, the preceding paragraphs of this Complaint.

 6          32.     Cal. Lab. Code § 510 provides that employees in California shall not be employed

 7   more than eight (8) hours in any workday or forty (40) hours in a workweek unless they receive

 8   additional compensation beyond their regular wages in amounts specified by law. Specifically,

 9   Cal. Lab. Code § 510 (a) requires that:

10          Any work in excess of eight hours in one workday and any work in excess of 40
11          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
12          one-half times the regular rate of pay for an employee. Any work in excess of 12
            hours in one day shall be compensated at the rate of no less than twice the regular
13          rate of pay for an employee.
            (Emphasis Added.)
14
            33.     Cal. Lab. Code § 1194 establishes an employee's right to recover unpaid overtime
15
     compensation, interest thereon, together with the costs of suit, and attorneys fees. Cal. Lab. Code §
16
     1198 states that the employment of an employee for longer hours than those fixed by the Industrial
17
     Welfare Commission is unlawful.
18
            34.     At all times relevant hereto, from time to time, the PLAINTIFFS, and other
19
     members of the CLASS, have worked more that eight hours in a workday, and/or more than forty
20
     hours in a work week.
21
            35.     At all times relevant hereto, Defendant failed to pay PLAINTIFFS, and other
22
     members of the CLASS, the overtime compensation premium for the hours they have worked in
23
     excess of the maximum hours permissible by law as required by Cal. Lab. Code §§ 510 and 1198.
24
     In fact, however, PLAINTIFFS, and other members of the CLASS, were regularly required to work
25
     overtime hours and were paid less than one and a half times their regular rate of pay, in violation of
26
     Cal. Lab. Code § 510.
27
            36.     By virtue of Defendants' unlawful failure to pay the lawful rate of compensation to
28

                                                      10
                    FIRST AMENDED AND CONSOLIDATED CLASS ACTION COMPLAINT
 1   the PLAINTIFFS, and other members of the CLASS, for their overtime hours, the PLAINTIFFS,

 2   and other members of the CLASS, have suffered, and will continue to suffer, damages in amounts

 3   which are presently unknown to them but which exceed the jurisdictional limits of this Court and

 4   which will be ascertained according to proof at trial.

 5           37.     AJILON acted and is acting intentionally, oppressively, and maliciously toward the

 6   PLAINTIFFS and other members of the CLASS, with a conscious disregard of their rights, or the

 7   consequences to them, with the intent of depriving them of property and legal rights and otherwise

 8   causing them injury.

 9           38.     PLAINTIFFS, and other members of the CLASS, request recovery of overtime

10   compensation according to proof, interest, attorney's fees and cost, as well as the assessment of any

11   statutory penalties against Defendants, in a sum as provided by the Cal. Lab. Code and/or other

12   statutes.

13           39.     Further, PLAINTIFFS, and other members of the CLASS, are entitled to seek and

14   recover reasonable attorneys' fees and costs.

15                                             THIRD COUNT

16                 FOR FAILURE TO PROVIDE MEAL PERIODS AND REST PERIODS

17                              (By The CLASS and Against All Defendants)

18           40.     PLAINTIFFS, and the other members of the CLASS, reallege and incorporate by

19   this reference, as though fully set forth herein, the preceding paragraphs of this Complaint.

20           41.     Cal. Lab. Code §§ 226.7 and 512 provide that no employer shall employ any person

21   for a work period of more than five (5) hours without a meal period of not less than 30 minutes.

22           42.     Cal. Lab. Code § 226.7 provides that if an employer fails to provide an employee a

23   meal period in accordance with this section, the employer shall pay the employee one (1) hour of

24   pay at the employee’s regular rate of compensation for each five (5) hours of work that the meal

25   period is not provided.

26           43.     AJILON has intentionally and improperly denied meal periods to PLAINTIFFS, and

27   other members of the CLASS, in violation of Cal. Lab. Code §§ 226.7 and 512.

28           44.     At all times relevant hereto, PLAINTIFFS, and other members of the CLASS, have

                                                       11
                     FIRST AMENDED AND CONSOLIDATED CLASS ACTION COMPLAINT
 1   worked more than five hours in a workday. At all relevant times hereto, AJILON has failed to

 2   provide meal periods as required by Cal. Lab. Code §§ 226.7 and 512.

 3           45.    Cal. Lab. Code § 226.7 provides that employers shall authorize and permit

 4   employees to take rest periods at the rate of ten (10) minutes net rest time per four (4) hours of

 5   work.

 6           46.    Cal. Lab. Code § 226.7 provides that if an employer fails to provide and employee

 7   rest periods in accordance with this section, the employer shall pay the employee one (1) hour of

 8   pay at the employee’s regular rate of compensation for each workday that the rest period is not

 9   provided.

10           47.    AJILON has intentionally and improperly denied rest periods to PLAINTIFFS, and

11   other members of the CLASS, in violation of Cal. Lab. Code §§ 226.7 and 512.

12           48.    At all times relevant hereto, the PLAINTIFFS, and other members of the CLASS,

13   worked more than four hours in a workday. At all times relevant hereto, AJILON failed to provide

14   rest periods as required by Cal. Lab. Code §§ 226.7 and 512.

15           49.    By virtue of AJILON’S unlawful failure to provide rest periods to them,

16   PLAINTIFFS, and other members of the CLASS, have suffered, and will continue to suffer,

17   damages in the amounts which are presently unknown to them, but which exceed the jurisdictional

18   limits of this Court and which will be ascertained according to proof at trial.

19           50.    PLAINTIFFS, and the other members of the CLASS, are informed and believe, and

20   based upon that information and belief allege, that AJILON knows or should have known that the

21   PLAINTIFFS, and the other members of the CLASS, were entitled to meal periods and rest periods

22   but purposely elected not to provide these mandated periods.

23           51.    PLAINTIFFS, and the other members of the CLASS, are entitled to seek and

24   recover reasonable attorneys’ fees and costs pursuant to Cal. Lab. Code §§ 226.7 and 512.

25                                            FOURTH COUNT

26                         FOR FAILURE TO ITEMIZE PAY STATEMENTS

27                              (By The CLASS and Against All Defendants)

28           52.    PLAINTIFFS, and other members of the CLASS, reallege and incorporate by this

                                                       12
                    FIRST AMENDED AND CONSOLIDATED CLASS ACTION COMPLAINT
 1   reference, as though fully set forth herein, the preceding paragraphs of this Complaint.

 2          53.     California Labor Code §226 provides:

 3                  (a)    Every employer shall, semimonthly or at the time of each payment of wages,
 4                         furnish each of his or her employees, either as a detachable part of the check,
                           draft, or voucher paying the employee’s wages, or separately when wages
 5                         are paid by personal check or cash, an accurate itemized statement in writing
                           showing (1) gross wages earned, (2) total hours worked by the employee,
 6                         except for any employee whose compensation is solely based on a salary and
                           who is exempt from payment of overtime under subdivision (a) of Section
 7                         515 or any applicable order of the Industrial Welfare Commission, (3) the
 8                         number of piece-rate units earned and any applicable piece rate if the
                           employee is paid on a piece rate basis, (4) all deductions, provided that all
 9                         deductions made on written orders of the employee may be aggregated and
                           shown as one item, (5) net wages earned, (6) the inclusive dates of the period
10                         for which the employee is paid, (7) the name of the employee and his or her
                           social security number, except that by January 1, 2008, only the last four
11                         digits of his or her social security number or an existing employee
12                         identification number other than a social security number may be shown on
                           the check, (8) the name and address of the legal entity that is the employer,
13                         and (9) all applicable hourly rates in effect during the pay period and the
                           corresponding number of hours worked at each hourly rate by the employee.
14                         The deductions made from payments of wages shall be recorded in ink or
                           other indelible form, properly dated, showing the month, day, and year, and
15
                           a copy of the statement or a record of the deductions shall be kept on file by
16                         the employer for at least three years at the place of employment or at a
                           central location within the State of California.
17                  (b)    An employer that is required by this code or any regulation adopted pursuant
                           to this code to keep the information required by subdivision (a) shall afford
18                         current and former employees the right to inspect or copy the records
                           pertaining to that current or former employee, upon reasonable request to the
19
                           employer. The employer may take reasonable steps to assure the identity of
20                         a current or former employee. If the employer provides copies of the
                           records, the actual cost of reproduction may be charged to the current or
21                         former employee.
                    (c)    An employer who receives a written or oral request to inspect or copy
22                         records pursuant to subdivision (b) pertaining to a current or former
                           employee shall comply with the request as soon as practicable, but not later
23
                           than 21 calendar days from the date of the request. A violation of this
24                         subdivision is an infraction. Impossibility of performance, not caused by or
                           a result of a violation of the law, shall be an affirmative defense for an
25                         employer in any action alleging a violation of this subdivision. An employer
                           may designate the person to whom a request under this subdivision will be
26                         made.
27                  (d)    This section does not apply to any employer of any person employed by the
                           owner or occupant of a residential dwelling whose duties are incidental to
28                         the ownership, maintenance, or use of the dwelling, including the care and
                           supervision of children, or whose duties are personal and not in the course of
                                                      13
                    FIRST AMENDED AND CONSOLIDATED CLASS ACTION COMPLAINT
 1                          the trade, business, profession, or occupation of the owner or occupant.
                    (e)     An employee suffering injury as a result of a knowing and intentional failure
 2                          by an employer to comply with subdivision (a) is entitled to recover the
                            greater of all actual damages or fifty dollars ($50) for the initial pay period
 3
                            in which a violation occurs and one hundred dollars ($100) per employee for
 4                          each violation in a subsequent pay period, not exceeding an aggregate
                            penalty of four thousand dollars ($4,000), and is entitled to an award of costs
 5                          and reasonable attorney’s fees.
                    (f)     A failure by an employer to permit a current or former employee to inspect
 6                          or copy records within the time set forth in subdivision (c) entitles the
 7                          current or former employee or the Labor Commissioner to recover a seven
                            hundred fifty dollars ($750) penalty from the employer.
 8                  (g)     An employee may also bring an action for injunctive relief to ensure
                            compliance with this section, and is entitled to an aware of costs and
 9                          reasonable attorney’s fees.
10          54.     Defendant has failed to maintain the records required by Labor Code § 226 making

11   it more difficult for PLAINTIFFS and other members of the CLASS to establish all actual hours

12   worked for Defendant over the Class Period.

13          55.     Accordingly, PLAINTIFFS and other members of the CLASS may be prejudiced in

14   their ability to establish the total amount of their actual damages.

15          56.     Therefore, PLAINTIFFS and other members of the CLASS seek the remedy set

16   forth in California Labor Code § 226(e).

17                                              FIFTH COUNT

18                        FOR PENALTIES PURSUANT TO LABOR CODE § 203
19                              (By The CLASS and against All Defendants)

20          57.     PLAINTIFFS, and other members of the CLASS, reallege and incorporate by this

21   reference, as though fully set forth herein, the preceding paragraphs of this Complaint.

22          58.     PLAINTIFFS and other CLASS members, who are former employees of Defendant,

23   are entitled to wages for all hours worked but unpaid, including overtime compensation, and wages

24   for the failure to provide meal and rest breaks.

25          59.     Labor Code § 201(a) provides that: “If an employer discharges an employee, the

26   wages earned and unpaid at the time of discharge are due and payable immediately.” Labor Code §
27   202(a) provides: “If an employee not having a written contract for a definite period quits his or her

28   employment, his or her wages shall become due and payable not later than 72 hours thereafter,

                                                        14
                    FIRST AMENDED AND CONSOLIDATED CLASS ACTION COMPLAINT
 1   unless the employee has given 72 hours previous notice of his or her intention to quit, in which

 2   case the employee is entitled to his or her wages at the time of quitting.”

 3           60.     More than thirty (30) days have passed since PLAINTIFFS and other members of

 4   the CLASS quit or were discharged from their positions with Defendants.

 5           61.     Defendants willfully failed to pay all wages due to former employees who have

 6   terminated their employment with AJILON, by the applicable deadlines set forth in the Labor

 7   Code.

 8           62.     As a consequence of Defendants’ willful failure to pay these former employees all

 9   wages due at the time of termination, PLAINTIFFS and others members of the CLASS are entitled

10   to thirty (30) days wages as penalty damages pursuant to Labor Code § 203.

11                                               SIXTH COUNT

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

13                               (By The CLASS and against All Defendants)

14            63.    PLAINTIFFS, and other members of the CLASS, reallege and incorporate by this

15   reference, as though fully set forth herein, the preceding paragraphs of this Complaint.

16            64.   This is a Representative Private Attorney General Action and Class Action for

17   Unfair Business Practices. Plaintiffs GERARDO TARANGO, BRYAN CHARTERS, and

18   BRIAN HENRY, on their own behalf and on behalf of the general public, and on behalf of

19   others similarly situated, bring this claim pursuant to Business & Professions Code § 17200, et

20   seq. The conduct of all defendants as alleged in this Complaint has been and continues to be unfair,

21   unlawful, and harmful to Plaintiffs, the general public, and the proposed class. Plaintiffs seek to

22   enforce important rights affecting the public interest within the meaning of Code of Civil

23   Procedure §1021.5.

24           65.    Plaintiffs are "persons" within the meaning of Business & Professions Code § 17204,

25   and therefore have standing to bring this cause of action for injunctive relief, restitution, and other

26   appropriate equitable relief.

27           66.    Business & Profession Code §17200, et seq. prohibits unlawful and unfair

28   business practices.

                                                         15
                     FIRST AMENDED AND CONSOLIDATED CLASS ACTION COMPLAINT
 1          67.     Wage and hour laws express fundamental public policies. Providing employees

 2   with wages, meal and/or rest breaks, and overtime are fundamental public policies of this State and

 3   of the United States. Labor Code §90.5(a) articulates the public policies of this State to enforce
     vigorously minimum labor standards, to ensure that employees are not required or permitted to work
 4
     under substandard and unlawful conditions, and to protect law-abiding employers and their
 5
     employees from competitors who lower their costs by failing to comply with minimum labor
 6
     standards.
 7
            68.     Defendants have violated statutes and public policies. Through the conduct alleged in
 8
     this Complaint, defendants, and each of them, have acted contrary to these public policies, have
 9   violated specific provisions of the Labor Code, and have engaged in other unlawful and unfair
10   business practices in violation of Business & Profession Code § 17200, et seq., depriving plaintiff,
11   and all persons similarly situated, and all interested persons of rights, benefits, and privileges
12   guarantees to all employees under law.

13          69.     Defendants' conduct, as alleged hereinabove, constitutes unfair competition in

14   violation of § 17200 et. seq. of the Business & Professions Code.
            70.     Defendants by engaging in the conduct herein alleged, by not providing proper breaks,
15
     either knew or in the exercise of reasonable care should have known that the conduct was unlawful.
16
     As such it is a violation of § 17200 et. seq. of the Business & Professions Code.
17
            71.     As a proximate result of the above mentioned acts of defendants, plaintiff and others
18
     similarly situated have been damaged in a sum as may be proven.
19
            72.     Unless restrained by this Court, defendants will continue to engage in the
20   unlawful conduct as alleged above. Pursuant to Business & Professions Code this Court should
21   make such orders or judgments, including the appointment of a receiver, as may be
22   necessary to prevent the use or employment, by defendants, their agents or employees, of any
23   unlawful or deceptive practice prohibited by the Business & Professions Code, and/or, including but

24   not limited to, disgorgement of profits which may be necessary to restore Plaintiff and the

25   proposed class members to the money defendants have unlawfully failed to pay.

26                                            SEVENTH COUNT

27                      FOR PENALTIES PURSUANT TO LABOR CODE § 2699

28                              (By The CLASS and against All Defendants)

                                                        16
                     FIRST AMENDED AND CONSOLIDATED CLASS ACTION COMPLAINT
 1          73.     PLAINTIFFS BRYAN CHARTERS AND BRIAN HENRY, and other members of

 2   the CLASS, reallege and incorporate by this reference, as though fully set forth herein, the

 3   preceding paragraphs of this Complaint.

 4          74.     As a result of the acts alleged above, PLAINTIFFS CHARTERS and HENRY seek

 5   penalties under California Labor Code §§ 201, 202, 203, 226, 226.7, 510, 512, 1194, and 1199.

 6          75.     Plaintiffs, as aggrieved employees, hereby seek recovery of civil penalties as

 7   prescribed by the Labor Code Private Attorneys General Act of 2004 on behalf of themselves and

 8   other Class members against whom one or more of the violations of the Labor Code were

 9   committed.

10          76.     On October 16, 2009, PLAINTIFFS CHARTERS and HENRY sent a certified letter

11   to the Labor Workforce and Development Agency (“LWDA”) and LONGS as prescribed by Labor

12   Code § 2699.3. More than thirty-three (33) days have passed since the postmark date of that notice

13   and the LWDA has provided PLAINTIFFS with no notice that it intends to investigate the alleged

14   violations. Instead, on December 8, 2009, the LWDA indicated that it did not intend to investigate

15   the alleged violations. Therefore, pursuant to Labor Code § 2699.3(a)(2)(A), Plaintiffs may

16   commence a civil action.

17          77.     Plaintiffs and the CLASS are entitled to penalties for the herein alleged violations,

18   to be proven at the time of trial, allocated 75% to the LWDA and 25% to the affected employees,

19   subject to the following formula:

20                         a.      $100.00 for the initial violation per employee per pay period; and

21                         b.      $200.00 for each subsequent violation per employee per pay period.

22                                        PRAYER FOR RELIEF

23          WHEREFORE, Plaintiffs, on their own behalf, and on behalf of the members of the Class

24   Members, as well as the general public, pray for judgment as follows:

25                                       CLASS CERTIFICATION:

26          1. For an order certifying the proposed Classes;

27          2. That Plaintiffs be appointed as the representatives of the Classes; and

28          3. That counsel for Plaintiffs be appointed as Class Counsel.

                                                      17
                    FIRST AMENDED AND CONSOLIDATED CLASS ACTION COMPLAINT
 1   1.   ON THE FIRST COUNT:

 2        A) For compensatory damages, including lost wages, commissions, bonuses, and other

 3        losses, according to proof;

 4        B) For general damages, according to proof;

 5        C) For an award of interest, including prejudgment interest at the legal rate;

 6        D) For statutory damages, including reasonable attorneys’ fees and cost of suit.

 7   2.   ON THE SECOND COUNT:

 8        A) For compensatory damages, including lost wages, commissions, bonuses, and other

 9        losses, according to proof;

10        B) For general damages, according to proof;

11        C) For an award of interest, including prejudgment interest at the legal rate;

12        D) For statutory damages, including reasonable attorneys’ fees and cost of suit.

13   3.   ON THE THIRD COUNT:

14        A) One hour of pay for each workday in which a rest period was not provided for each four

15        hours of work;

16        B) One hour of pay for each five (5) hours of work in which a meal period was not

17        provided;

18        C) For attorneys’ fees and costs.

19   4.   ON THE FOURTH COUNT:

20        A) For damages according to proof, as set forth in Cal. Lab. Code § 226(e), regarding wage

21        statement violations;

22        B) For penalties pursuant to Cal. Lab. Code § 226(e) which states fifty dollars ($50) for the

23        initial pay period in which a violation occurs and one hundred dollars ($100) per employee

24        for each violation in a subsequent pay period, not exceeding an aggregate penalty of four

25        thousand dollars ($4,000) per employee;

26        C) For reasonable attorney’s fees, and costs as provided by Cal. Lab. Code §226(e).

27   5.   ON THE FIFTH COUNT:

28        A) That the Court declare, adjudge, and decree that Defendants violated Labor Code §§

                                                    18
                 FIRST AMENDED AND CONSOLIDATED CLASS ACTION COMPLAINT
 1   201, 202, and 203 by willfully failing to pay all compensation owed at the time of termination of

 2   the employment of Plaintiffs and the Former Employee Sub-Class Members;

 3          B) For statutory wage penalties pursuant to Labor Code § 203 for Plaintiffs and all Former

 4   Employee Sub-Class Members; and

 5          C)   For pre-judgment interest on any unpaid wages from the date such amounts were due.

 6   6.     ON THE SIXTH COUNT:

 7          A) For restitution and disgorgement;

 8          B) For injunctive relief ordering the continuing unfair business acts and practices to cease,

 9          or as the Court otherwise deems just and proper;

10          C) For other injunctive relief ordering AJILON to notify the CLASS that they have not

11          been paid the proper amounts required in accordance with California law.

12   7.     ON THE SEVENTH COUNT:

13          A) That the Court declare, adjudge, and decree that Defendants’ payroll practices as to

14   Plaintiffs and the Class Members violated one or more sections of the Labor Code;

15          B) For civil penalties pursuant to Labor Code § 2699; and

16          C) Attorneys’ fees and costs of suit pursuant to Labor Code § 2699(g)(1).

17   8.     ON ALL CAUSES OF ACTION:

18          A) An Order certifying the CLASS, approving PLAINTIFFS as the Representatives of the

19          CLASS, and permitting this case to proceed as a class action; and,

20          B) For such other and further relief as the Court deem just and proper.

21   Dated: September 14, 2011                             CLARK & MARKHAM, LLP

22
                                                           By:   _________________________
23                                                                DAVID R. MARKHAM
                                                                  Attorney for Plaintiff
24

25
     Dated: September 14, 2011                             LEVINE LAW GROUP, APC
26
27                                                         By:   _________________________
                                                                  ELANA R. LEVINE
28                                                                Attorney for Plaintiff

                                                      19
                    FIRST AMENDED AND CONSOLIDATED CLASS ACTION COMPLAINT
 1                                  DEMAND FOR JURY TRIAL

 2         PLAINTIFFS demand a jury trial on issues triable to a jury.

 3

 4   Dated: September 14, 2011                          CLARK & MARKHAM, LLP

 5
                                                        By:    ________________________
 6                                                             DAVID R. MARKHAM
                                                               Attorneys for Plaintiffs
 7

 8
     Dated: September 14, 2011                          LEVINE LAW GROUP, APC
 9

10                                                      By:   _________________________
                                                               ELANA R. LEVINE
11                                                             Attorneys for Plaintiffs
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                                                   20
                  FIRST AMENDED AND CONSOLIDATED CLASS ACTION COMPLAINT

				
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