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MATTHEW RIGHETTI, ESQ. {121012} EDWARD J. WYNNE, ESQ {165819} RIGHETTI LAW FIRM 220 Montgomery Street, 16th
Floor STEVEN KESTEN, ESQ. {152376} CARRIE ANN COLTON, ESQ. {188104} KESTEN, COLTON & BRANDT 3100 Kerner Blvd., Ste. B-2 Attorneys for Plaintiffs SUPERIOR COURT OF CALIFORNIA MARIN COUNTY JAMES O'DONNELL, BERNARD NO. CV 004930 ZACHERY, and other members of the general public similarly situated, FIRST AMENDED COMPLAINT Plaintiffs, 1. Damages vs. 2. Injunction 3. Declaratory Relief STARVING STUDENTS, INC., and 4. Unfair Practices Act DOES 1 through 50 inclusive, Defendants. / CLASS ACTION FIRST CAUSE OF ACTION COME NOW, plaintiffs, individuals over the age of eighteen (18), and bring this challenge to Defendants' lucrative, repressive and unlawful business practices on behalf of themselves, the general public and a class of all others similarly situated and for a Cause of Action against Defendants, and each of them, alleges as follows: THE PARTIES, JURISDICTION AND VENUE 1. At least some of the acts complained of herein occurred in Marin County as defendant STARVING STUDENTS, INC., owns and operates a moving company in Marin County where plaintiff BERNARD ZACHERY was employed as a "mover." At all times herein mentioned, plaintiffs and the class identified herein worked as employees for STARVING STUDENTS, INC. and Does 1 through 50, inclusive, (hereinafter "DEFENDANTS") in hourly, non-exempt positions in DEFENDANTS' branch locations. DEFENDANTS' hourly "mover" and "driver" positions are not positions which involve work which falls within any exception to California Labor Code Section 1194 and/or California Industrial Welfare Commission orders applicable to DEFENDANTS' business. The acts complained of in this First Cause of Action occurred, at least in part, within the last three years preceding the filing of the complaint in this action. The class representative plaintiffs who have worked at one of DEFENDANTS' moving branches within the State of California are: 1. JAMES O'DONNELL; and, 2. BERNARD ZACHERY. 2. Plaintiffs are informed and believe and thereon allege that all times herein mentioned DEFENDANTS are and were corporations, business entities, individuals, and partnerships, licensed to do business and actually doing business in the State of California. Plaintiffs are informed and believe and thereon allege that all times herein mentioned DEFENDANTS are and were corporations, business entities, individuals, and partnerships, with their principal place of business in the State of California and incorporated within the State of California. DEFENDANTS own and operate an industry, business and establishment in numerous separate geographic locations within the State of California, including within Marin County, for the purpose of providing moving services to the general public. As such, and based upon all the facts and circumstances incident to DEFENDANTS' business in California, DEFENDANTS are subject to California Labor Code Section 1194, et seq., California Business and Professions Code Section 17200, et seq., (Unfair Practices Act) and the applicable wage order(s) issued by the Industrial Welfare Commission. 3. Plaintiffs do not know the true names or capacities, whether individual, partner or corporate, of the DEFENDANTS sued herein as DOES 1 through 50, inclusive, and for that reason, said DEFENDANTS are sued under such fictitious names, and plaintiffs pray leave to amend this complaint when the true names and capacities are known. Plaintiffs are informed and believe such DOE DEFENDANTS are responsible in some way for the matters alleged herein and proximately caused plaintiffs and members of the general public and class to be subject to the illegal employment practices, wrongs and injuries complained of herein. 4. At all times herein mentioned, each said DEFENDANTS participated in the doing of the acts hereinafter alleged to have been done by the named DEFENDANTS; and furthermore, the DEFENDANTS, and each of them, were the agents, servants employees, parent corporations, successor corporations, and subsidiaries of each of the other DEFENDANTS, as well as the agents of all DEFENDANTS, and at all times herein mentioned, were acting within the course and scope of said agency and employment. 5. At all times herein mentioned, DEFENDANTS, and each of them, were members of, and engaged in, a joint venture, partnership and common enterprise, and acting within the course and scope of, and in pursuance of, said joint venture, partnership and common enterprise. 6. At all times herein mentioned, the acts and omissions of the various DEFENDANTS, and each of them, concurred and contributed to the various acts and omissions of each and all of the other DEFENDANTS in proximately causing the injuries and damages as herein alleged. 7. At all times herein mentioned, DEFENDANTS, and each of them, ratified each and every act or omission complained of herein. At all times herein mentioned, the DEFENDANTS, and each of them, aided and abetted the acts and omissions of each and all of the other DEFENDANTS in proximately causing the damages as herein alleged. 8. Plaintiffs and all members of the class identified herein, were regularly required as a matter of uniform company policy and practice to work and in fact worked as hourly non-exempt movers and drivers for DEFENDANTS, and each of them, in excess of forty hours per workweek and eight hours per day without receiving overtime compensation for such overtime hours worked in violation of California Labor Code Section 1197 and the applicable California Industrial Welfare Commission wage order(s). Plaintiffs and the other members of the class who were designated as "drivers" were improperly and illegally mis-classified by DEFENDANTS, and each of them, as "exempt" employees when, in fact, they were "non-exempt" employees according to California law. Plaintiffs and the other members of the class have the right to be compensated by DEFENDANTS at the appropriate compensatory wage rate for said work heretofore performed, consisting of the straight time rate plus the appropriate overtime premium as mandated by California law. 9. Plaintiffs and all members of the class identified herein, were regularly required as a matter of uniform company policy and practice to work and in fact worked as hourly non-exempt movers and drivers for DEFENDANTS, and each of them, without receiving straight time compensation (at no less than the minimum wage) in violation of California Labor Code 1197 and the applicable California Industrial Welfare Commission wage order(s). Plaintiffs and all members of the class were, at all times relevant herein, under the control of DEFENDANTS, and each of them, and suffered or were permitted to work by DEFENDANTS, and each of them. Defendants' acts or omissions in failing to compensate plaintiffs and all members of the class their minimum wages was not in good faith nor were there reasonable grounds for DEFENDANTS and each of them to believe that their acts or omissions were not contrary to California law. Plaintiffs and the other members of the class have the right to be compensated by DEFENDANTS at an appropriate compensatory wage rate at or above the minimum wage rate for said work heretofore performed including liquidated damages as mandated by California law. 10. All Claims alleged herein arise under California law for which plaintiffs seek relief authorized under California law. This complaint is brought by plaintiffs pursuant to California Code for Civil Procedure section 382 on behalf of two subclasses of non-exempt personnel: (A) The first class ("Subclass A") is comprised of, and defined as, all current and former California based non-exempt drivers who worked and/or are working for DEFENDANTS within the last four (4) years of the filing of the original complaint in this action, up to and including the time that this action is certified, yet were not paid all of their wages due and owing; and, (B) the second subclass ("Subclass B") is comprised of, and defined as, all current and former California based non-exempt movers who worked and/or are working for DEFENDANTS within the last four (4) years of the filing of the original complaint in this action, up to and including the time that this action is certified, yet were not paid all of their wages due and owing . The members of the class are so numerous that joinder of all members would be impractical, if not impossible. The identity of the members of the class are readily ascertainable by review of DEFENDANTS' records. Further, the subject matter of this action both as to factual matters and as to matters of law, is such that there are questions of law and fact common to the class which predominate over questions affecting only individual members including, among other things, the following: a. DEFENDANTS have a uniform and consistent policy and practice of failing to pay each class member their overtime compensation for work accomplished in excess of forty hours per week or eight hours per day per California law. Further, DEFENDANTS dispensed misinformation amongst the class members to the effect that class members are not entitled to overtime compensation for all hours worked under DEFENDANTS' labor policies and practices and under California law. b. DEFENDANTS have a uniform and consistent policy and practice of failing to pay each member their minimum wages for all hours when plaintiffs and members of the class were working for DEFENDANTS. Further, DEFENDANTS dispensed misinformation amongst the class members to the effect that class members are not entitled to minimum wage compensation for all hours worked under DEFENDANTS' labor policies and practices and under California law. c. The duties and responsibilities of the drivers and movers are virtually identical from region to region, district to district, branch to branch, and, employee to employee. Further, any variations in job activities between the different individuals are legally insignificant to the issues presented by this action since the central facts remain, to wit, plaintiffs and the class members were non-exempt employees who worked in excess of 40 hours per week and/or 8 hours per work day and have not been paid minimum wage, overtime and straight time compensation for their work under California law. 11. Members of the class identified herein were discharged by DEFENDANTS or voluntarily quit, and did not have a written contract for employment. The DEFENDANTS, in violation of California Labor Code Sections 201, and 202, et seq., respectively, had a consistent and uniform policy, practice and procedure of willfully failing to pay the earned and unpaid wages of such individuals, including, but not limited to, regular time, overtime, vacation time, and other wages earned and remaining uncompensated according to amendment, or proof. Class members did not secret or absent themselves from DEFENDANTS nor refuse to accept the earned and unpaid wages from DEFENDANTS. Accordingly, DEFENDANTS are liable for waiting time penalties for the unpaid wages pursuant to California Labor Code § 203. 12. As a pattern and practice, in violation of the aforementioned labor laws and wage orders, DEFENDANTS did not maintain any records pertaining to when plaintiffs and the members of the class began and ended each work period, meal period, the total daily hours worked, and the total hours worked per pay period and applicable rates of pay in violation of California Labor Code § 1174. 13. There are predominant common questions of law and fact and a community of interest amongst plaintiffs and the claims of the class concerning whether DEFENDANTS' regular business custom and practice of requiring substantial work and not paying for said work according to the mandates of California law is, and at all times herein mentioned was, in violation of California Labor Code section 1194 and California Industrial Welfare commission wage orders. DEFENDANTS' employment policies and practices wrongfully and illegally failed to compensate plaintiffs and the other members of the class for substantial compensation earned as required by California law. 14. Plaintiffs' claims are typical of the claims of all members of the class. Plaintiffs, as representative parties, will fairly and adequately protect the interests of the class by vigorously pursuing this suit through attorneys who are skilled and experienced in handling civil litigation of this type. 15. The California Labor Code and Wage Order provisions upon which plaintiffs base their claims are broadly remedial in nature. These laws and labor standards serve an important public interest in establishing minimum working conditions and standards in California. These laws and labor standards serve an important public interest in establishing minimum working conditions and standards in California. These laws and labor standards protect the average working employee from exploitation by employers who may seek to take advantage of superior economic and bargaining power in setting onerous terms and conditions of employment. The nature of this action and the format of laws available to plaintiffs and members of the class identified herein make the class action format a particularly efficient and appropriate procedure to redress the wrongs alleged herein. Further, this case involves a large corporate employer and a large number of individual employees with many relatively small claims. If each employee were required to file an individual lawsuit, the corporate defendant would necessarily gain an unconscionable advantage since it would be able to exploit and overwhelm the limited resources of each individual plaintiff with its vastly superior financial and legal resources. Requiring each class member to pursue an individual remedy would also discourage the assertion of lawful claims by employees who would be disinclined to file an action against their former and/or current employer for real and justifiable fear of retaliation and permanent damage to their careers at current and subsequent employment. 16. The prosecution of separate actions by the individual class members, even if possible, would create a substantial risk of (1) inconsistent or varying adjudications with respect to individual class members against the DEFENDANTS and which would establish potentially incompatible standards of conduct for the DEFENDANTS, and/or (2) adjudications with respect to individual class members which would, as a practical matter, be dispositive of the interests of the other class members not parties to the adjuications or which would substantially impair or impede the ability of the class members to protect their interests. Further, the claims of the individual members of the class are not sufficiently large to warrant vigorous individual prosecution considering all of the concomitant costs and expenses. 17. Such a pattern, practice and uniform administration of corporate policy regarding illegal employee compensation as described herein is unlawful and creates an entitlement to recovery by the plaintiffs and the class identified herein, in a civil action, for the unpaid balance of the full amount of the straight time compensation and overtime premiums owing, including interest thereon, willful penalties, liquidated damages, reasonable attorneys fees, and costs of suit according to the mandate of California Labor Code Sections 1194, 1194.2, et seq. 18. Proof of a common business practice or factual pattern, of which the named plaintiffs' experiences are representative, will establish the right of each member of the plaintiff class to recovery on the causes of action alleged herein. 19. The plaintiff class is entitled in common to a specific fund with respect to the overtime compensation monies illegally and unfairly retained by DEFENDANTS. The plaintiff class is entitled in common to restitution and disgorgement of those funds being improperly withheld by DEFENDANTS. This action is brought for the benefit of the entire class and will result in the creation of a common fund. SECOND CAUSE OF ACTION COME NOW, plaintiffs and as a second, separate and distinct cause of action against DEFENDANTS, and each of them, allege as follows: 20. Plaintiffs herein repeat and re-allege as though fully set forth at length each and every paragraph of this Complaint, excepting those paragraphs which are inconsistent with this cause of action for an injunction. 21. DEFENDANTS' wrongful and illegal conduct in failing to pay overtime and minimum wage compensation to plaintiffs and the members of the class despite the clear legal obligation to do so, unless and until enjoined and restrained by order of this Court, will cause great and irreparable injury to plaintiffs and all members of the class in that the DEFENDANTS will continue to violate these California laws, represented by labor statutes and IWC Wage Orders, unless specifically ordered to comply with same. This expectation of future violations will require current and future employees to repeatedly and continuously seek legal redress in order to gain compensation to which they are entitled under California law. Plaintiffs have no other adequate remedy at law to insure future compliance with the California labor laws and wage orders alleged to have been violated herein. THIRD CAUSE OF ACTION COME NOW, plaintiffs and as a third, separate and distinct cause of action against DEFENDANTS, and each of them, allege as follows: 22. Plaintiffs herein repeat and re-allege as though fully set forth at length each and every paragraph of this Complaint, excepting those paragraphs which are inconsistent with this cause of action for declaratory relief. 23. An actual controversy has arisen, and a dispute now exists, between plaintiffs and the members of the class represented by them, and DEFENDANTS, and each of them, concerning the respective rights, duties, obligations and liabilities of the respective parties, both as to the past and as to the future, in that plaintiffs and the members of the class contend that the above-mentioned pattern, practice and uniform administration of corporate policy regarding their work requirements and scheduling both constitutes work in excess of forty (40) hours per week or eight (8) hours per day and is compensable at the applicable overtime and straight time rate pursuant to the laws of the State of California; whereas DEFENDANTS, and each of them, deny said contentions and in turn contend that the regular policy and procedure of work activities applicable to plaintiffs and members of the class are not subject to overtime or straight time compensation legal requirements and/or are not in excess of 40 hours per week and/or 8 hours per day. 24. Plaintiffs and the members of the class desire a declaration of their rights, and the duties and obligations of the DEFENDANTS, and each of them, in regard to this ongoing controversy and dispute which continues to this day. Such a declaration is necessary and appropriate in order that plaintiffs and the members of the class may ascertain their rights in reference to said work to be performed in the future, so that they may not be deprived of their just compensation. FOURTH CAUSE OF ACTION COME NOW, plaintiffs and as a fourth, separate and distinct cause of action against DEFENDANTS, and each of them, allege as follows: 25. Plaintiffs herein repeat and re-allege as though fully set forth at length each and every paragraph of this Complaint, excepting those paragraphs which are inconsistent with this cause of action for relief regarding DEFENDANTS' violations of California Business and Professions Code section 17200 et seq. (Unfair Practices Act). 26. DEFENDANTS, and each of them, have engaged and continue to engage in unfair business practices in California by practicing, employing and utilizing the employment practices outlined in Paragraphs 8-12, inclusive, to wit, by requiring plaintiffs and the members of the class to perform the labor services complained of herein without overtime or minimum wage compensation. DEFENDANTS' utilization of such unfair business practices constitutes unfair competition and provides an unfair advantage over DEFENDANTS' competitors. Plaintiffs seek, on their own behalf, on behalf of other members of the class similarly situated, and on behalf of the general public, full restitution and disgorgement of monies, as necessary and according to proof, to restore any and all monies withheld, acquired and/or converted by the DEFENDANTS by means of the unfair practices complained of herein. Plaintiffs seek, on their own behalf, on behalf of other members of the class similarly situated, and on behalf of the general public, the appointment of a receiver, as necessary. Plaintiffs seek, on their own behalf, on behalf of other members of the class similarly situated, and on behalf of the general public, an injunction to prohibit DEFENDANTS from continuing to engage in the unfair business practices complained of herein. The restitution includes all wages earned and unpaid, including interest thereon. The acts complained of herein occurred, at least in part, within the last four (4) years preceding the filing of the complaint in this action. 27. Plaintiffs are informed and believe and on that basis allege that at all times herein mentioned DEFENDANTS have engaged in unlawful, deceptive and unfair business practices, as proscribed by California Business and Professions Code section 17200 et seq., including those forth in Paragraphs 8-12 herein thereby depriving plaintiffs and other members of the general public the minimum working condition standards and conditions due to them under the California labor laws and Industrial Welfare Commission wage orders as specifically described herein. WHEREFORE, plaintiffs on their own behalf and on behalf of the members of the class and the general public, pray for judgment as follows: 1. For an order certifying the proposed subclasses; 2. Upon the First Cause of Action, for consequential damages according to proof as set forth in California Labor Code section 1194, et seq. (and the applicable California Industrial Welfare Commission wage orders) related to overtime wages due and owing; 3. Upon the First Cause of Action, for consequential damages according to proof as set forth in California Labor Code section 1194, et seq. (and the applicable California Industrial Welfare Commission wage orders) related to minimum wages due and owing; 4. Upon the First Cause of Action, for waiting time penalties according to proof pursuant to California Labor Code section 203; 5. Upon the First Cause of Action, for liquidated damages according to proof pursuant to California Labor Code section 1194.2; 6. Upon the Second and Fourth Causes of Action, that DEFENDANTS be ordered to show cause why they should not be enjoined and ordered to comply with the applicable California Industrial Welfare Commission wage orders related to payment of overtime and minimum wage compensation and record keeping for DEFENDANTS' non-exempt personnel; and for an order enjoining and restraining DEFENDANTS and their agents, servants and employees related thereto; 7. Upon the Third Cause of Action, for a declaratory judgment and a decree adjudging and decreeing that plaintiffs and the members of the class have regularly worked compensable overtime and straight time; further, that the work performed and to be performed by plaintiffs and the members of the class is subject to overtime and minimum wage compensation requirements and that plaintiffs and the members of the class are entitled to overtime and minimum wage compensation for said work; 8. Upon the Fourth Cause of Action, for restitution to plaintiffs and other similarly effected members of the general public (and disgorgement from DEFENDANTS) of all funds unlawfully acquired by DEFENDANTS by means of any acts or practices declared by this Court to be violative of the mandate established by California Business and Professions Code section 17200, et seq.; 9. Upon the Fourth Cause of Action, for the appointment of a receiver to receive, manage and distribute any and all funds disgorged from the DEFENDANTS determined to have been wrongfully acquired by the DEFENDANTS as a result of violations of California Business and Professions Code section 17200 et seq.; 10. For pre-judgment interest as allowed by California Labor Code section 1194 and California Civil Code section 3287; 11. For reasonable attorneys fees, expenses and costs as provided by California Labor Code section 1194, et seq.; and, 12. For such other and further relief the court may deem just and proper. DATED: March 5, 2001 RIGHETTI LAW FIRM
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