MATTHEW RIGHETTI, ESQ.     {121012}

EDWARD J. WYNNE, ESQ.          {165819}

RIGHETTI LAW FIRM

220 Montgomery Street, 16th Floor

San Francisco, CA  94104

(415) 983-0900

Attorneys for Plaintiffs

SUPERIOR COURT OF CALIFORNIA

LOS ANGELES COUNTY

FREDDY GAVARRETE and other,                       NO.                                        

members of the general public similarly

 situated,                                                                    CLASS ACTION

                                                                                   

                        Plaintiffs,                                           COMPLAINT

                                                                                   

vs.                                                                              

                                                                                    1.  Damages

CEC ENTERTAINMENT, INC., dba                     2.  Injunction

CHUCK E. CHEESE'S and DOES 1 thru               3.  Declaratory Relief

50, inclusive,                                                             4.  Unfair Practices Act

                                                                                    5.  Conversion

                        Defendants.                                      

                                                                        /         

FIRST CAUSE OF ACTION

            COMES NOW, plaintiff, an individual over the age of eighteen (18), and brings this challenge to defendants' lucrative, repressive and unlawful business practices on behalf of himself, 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 Los Angles County as defendant CEC ENTERTAINMENT, INC., owns and operates restaurants in Los Angeles County where plaintiff FREDDY GAVARRETE was employed and improperly classified as an exempt salaried manager.  At all times herein mentioned, plaintiff and the class identified herein worked as employees for CEC ENTERTAINMENT INC. and DOES 1 through 50 (hereinafter "DEFENDANTS") in salaried restaurant positions in DEFENDANTS' restaurants named "CHUCK E. CHEESE'S."  The salaried restaurant positions of DEFENDANTS' employees are not positions which involve work which falls within an exception to California Labor Code Section 1194 and/or California Industrial Welfare Commission orders applicable to DEFENDANTS' business.  The titles of DEFENDANTS' salaried restaurant personnel include, but are not limited to, "General Manager," "Manager," and "Assistant Manager."  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 plaintiff who worked in a salaried position at  a DEFENDANTS' restaurant within the State of California is FREDDY GAVARRETE.

2.

            Plaintiff is informed and believes and thereon alleges that at all times herein mentioned DEFENDANTS and DOES 1 through 10, are and were corporations, business entities, individuals, and partnerships, licensed to do business and actually doing business in the State of California.  DEFENDANTS own and operate an industry, business and establishment in approximately 60 separate geographic locations within the State of California, including Los Angeles County, for the purpose of making and selling pizzas and related food items.  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. 

            Plaintiff does 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 plaintiff prays leave to amend this complaint when the true names and capacities are known.  Plaintiff is informed and believes and thereon alleges that each of said fictitious DEFENDANTS was responsible in some way for the matters alleged herein and proximately caused plaintiff 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 of 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 and employees 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 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.

FACTUAL ALLEGATIONS

8.

            Plaintiff and all members of the class identified herein, were regularly scheduled as a matter of uniform company policy to work and in fact worked as salaried restaurant personnel for DEFENDANTS, and each of them, in excess of forty hours per workweek without receiving straight time or 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).  Plaintiff and the other members of the class were improperly and illegally mis-classified by DEFENDANTS, and each of them, as "exempt" managerial employees when, in fact, they were "non-exempt," non-managerial employees according to California law.  Plaintiff 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.

            This complaint is brought by plaintiff pursuant to California Code of Civil Procedure section 382 on behalf of a class.  All claims alleged herein arise under California law for which plaintiff seeks relief authorized under California law.  The class is comprised of, and defined as, all current and former California based salaried non-exempt restaurant personnel who worked and/or are working overtime for DEFENDANTS within the last four (4) years of the filing of the Complaint in this action up to and including the time that this action is certified as a class, yet were not paid overtime.  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 is 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.         Statistically, one hundred percent of the class members were paid on a salary basis with no overtime compensation paid for work accomplished in excess of forty hours per week per California law.  Plaintiff is informed and believes and based thereon alleges that all class members regularly performed non-exempt work in excess of 50% of their workday and workweek and were not exempt from the overtime requirements of California law for that reason;

            b.         DEFENDANTS uniformly administered a corporate policy concerning both staffing levels and duties and responsibilities of the class members which required that the class members both work overtime without appropriate pay and regularly spend more than 50% of their time performing non-exempt tasks.  This included a uniform corporate pattern and practice of allocating and authorizing inadequate staffing levels at the individual restaurants.  The inadequate staffing levels were enforced and ensured through the uniform and mandated corporate policy of a minimal "labor budget" applicable to each restaurant location.  This corporate conduct is accomplished with the advance knowledge and designed intent to place customer service and other clerical "non-management" duties and responsibilities onto the shoulders of the class members who were customarily and regularly caused to work far in excess of forty hours in a week without pay.  Thus, plaintiff and all other members of the class routinely, regularly and customarily (i.e., well in excess of 50% of their work time) performed non-exempt and non-managerial work.  Thus, such employees are entitled to overtime compensation under California law.  Further, DEFENDANTS dispensed misinformation amongst the restaurant employees to the effect that salaried restaurant personnel are not entitled to overtime compensation under DEFENDANTS' labor policies and practices and under California law. 

            c.         The duties and responsibilities of the salaried restaurant personnel were virtually identical from region to region, area to area, restaurant to restaurant, 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 performed non-exempt work in excess of 50% of the time in their workday, that their workday routinely included work in excess of 40 hours per week and/or 8 hours per work day and they were not, and have never been, paid overtime compensation for their work per California law.

10.

            Plaintiff and 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 all such former employees.  The DEFENDANTS have willfully failed 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.  Plaintiff and other members of the class 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.

11.

            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.

12.

            There are predominant common questions of law and fact and a community of interest amongst plaintiff and the claims of the class concerning whether DEFENDANTS' regular business custom and practice of requiring substantial "overtime" work and not paying for said work according to the overtime 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 plaintiff and the other members of the class for substantial overtime compensation earned as required by California law.

13.

            The claims of plaintiff are typical of the claims of all members of the class.  Plaintiff, as a representative party, 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.

14.

            The California Labor Code and Wage Order provisions upon which plaintiff bases his 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 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 one 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 DEFENDANTS would necessarily gain an unconscionable advantage since it would be able to exploit and overwhelm the limited resources of each individual plaintiff with their 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 subsequent employment.

15.

            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 adjudications 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.

16.

            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 plaintiff 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, reasonable attorneys fees, and costs of suit according to the mandate of California Labor Code Section 1194, et seq.

17.

            Proof of a common business practice or factual pattern, of which the named plaintiff's experiences are representative, will establish the right of each of the members of the plaintiff class to recovery on the causes of action alleged herein.

18.

            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

            COMES NOW, plaintiff and as a second, separate and distinct cause of action against DEFENDANTS, and each of them, allege as follows:

19.

            Plaintiff herein repeats and re-alleges 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.

20.

            DEFENDANTS' wrongful and illegal conduct in failing to pay overtime compensation to the plaintiff 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 plaintiff 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.  Plaintiff has 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

            COMES NOW, plaintiff and as a third, separate and distinct cause of action against DEFENDANTS, and each of them, allege as follows:

21.

            Plaintiff herein repeats and re-alleges 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.

22.

            An actual controversy has arisen, and a dispute now exists, between plaintiff and the members of the class represented by him, 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 plaintiff and the members of the class represented by him 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 and is compensable at the applicable overtime rate pursuant to the laws of the State of California notwithstanding the fact that plaintiff and the class members are paid a salary; whereas DEFENDANTS, and each of them, deny said contentions and in turn contend that the regular policy and procedure of work activities applicable to plaintiff and members of the class are not subject to overtime compensation legal requirements and/or are not in excess of 40 hours per week and/or 8 hours per day, and further contend that plaintiff and the members of the class represented by him are not entitled to any further compensation whatsoever for said work since they are paid a salary.

23.

            Plaintiff and the members of the class represented by him, 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 plaintiff and the members of the class represented by him, 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 for work to be performed in the future.

FOURTH CAUSE OF ACTION

            COMES NOW, plaintiff and as a fourth, separate and distinct cause of action against DEFENDANTS, and each of them, alleges as follows:

24.

            Plaintiff herein repeats and re-alleges 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).

25.

            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 8-11, inclusive, to wit, by requiring plaintiff and the members of the class to perform the labor services complained of herein without overtime compensation.  DEFENDANTS' utilization of such unfair business practices constitutes unfair competition and provides an unfair advantage over DEFENDANTS' competitors.  Plaintiff seeks, on his 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.  Plaintiff seeks, on his 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.  Plaintiff seeks, on his 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.

26.

            Plaintiff is informed and believes and on that basis alleges 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 8-11 herein thereby depriving plaintiff 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.

FIFTH CAUSE OF ACTION

            COMES NOW, plaintiff and as a fifth, separate and distinct cause of action against DEFENDANTS, and each of them, alleges as follows:

27.

            Plaintiff herein repeats and re-alleges 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 conversion.

28.

            At the time DEFENDANTS refused to pay the wages due to plaintiff, as alleged herein, plaintiff had earned, owned and had the right to possess the withheld wages.  DEFENDANTS willfully and without legal justification interfered with plaintiff's right to own and possess his wages.  The exact amount of those wages is capable of being made certain from a review of either the information from plaintiff and class members, or from the records of DEFENDANTS.

29.

            In refusing to pay wages to the plaintiff and the class members, DEFENDANTS unlawfully  and intentionally took and converted the property of plaintiff and the class to their own use.  At the time the conversion took place, plaintiff and the class were entitled to immediate possession of the amounts of wages payable.  This conversion was oppressive, malicious and fraudulent.  This conversion was concealed by the DEFENDANTS from the plaintiff and the class.


30.

            The plaintiff and the class have been injured by this conversion and are entitled to:  (1) all monies converted by the DEFENDANTS with interest thereon; (2) any and all profits, whether direct or indirect, the DEFENDANTS acquired by their conversion; and, (3) punitive and exemplary damages.

            WHEREFORE, plaintiff on his 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 class;

            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 waiting time penalties according to proof pursuant to California Labor Code section 203;

            4.         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 compensation and record keeping for DEFENDANTS' salaried restaurant personnel who are primarily engaged in non-exempt work and work more than 40 hours per week or 8 hours per day; and for an order enjoining and restraining DEFENDANTS and their agents, servants and employees related thereto;

            5.         Upon the Third Cause of Action, for a declaratory judgment and a decree adjudging and decreeing that the plaintiff and the members of the class represented by him, have regularly worked compensable overtime; further, that the work performed and to be performed by plaintiff and the members of the class is subject to overtime compensation requirements and/or is in excess of 40 hours per week and/or 8 hours a day, and that plaintiff and the members of the class represented by him are entitled to overtime compensation for said work;

            6.         Upon the Fourth Cause of Action, for restitution to plaintiff 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.;

            7.         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.;

            8.         Upon the Fifth Cause of Action, for (a) all monies converted by the DEFENDANTS with interest thereon; (b) any and all profits whether direct or indirect, the DEFENDANTS acquired by their conversion; and, (c) punitive and exemplary damages;

            9.         For pre-judgment interest as allowed by California Labor Code section 1194 and California Civil Code section 3287, and for liquidated damages on the straight time portion of uncompensated hours of work (not including the overtime portion thereof), as authorized by California Labor Code Section 1194.2 (a);

            10.       For reasonable attorneys fees, expenses and costs as provided by California Labor Code section 1194, et seq.; and,

            11.       For such other and further relief the court may deem just and proper.

DATED:         May 23, 2000                         RIGHETTI LAW FIRM

                                                                                                                                                           

                                                                                    EDWARD J. WYNNE, ESQ.

                                                                                    Attorneys for Plaintiffs