Kang v. Wells Fargo Bank, N.A., No. 5:2017cv06220 - Document 63 (N.D. Cal. 2019)

Court Description: ORDER GRANTING 62 AMENDED JOINT MOTION STIPULATING TO AMENDMENT OF COMPLAINT,CERTIFICATION OF PLAINTIFF'S REST BREAK CLAIMS, AND STAY OF ACTION PENDING DECISION IN IBARRA MATTER. Signed by Judge Beth Labson Freeman on 2/27/2019.(blflc1S, COURT STAFF) (Filed on 2/27/2019)
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Kang v. Wells Fargo Bank, N.A. Doc. 63 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 NORTHERN DISTRICT OF CALIFORNIA 11 JAMES C. KANG, an individual, on behalf of himself and all others 12 similarly situated, Plaintiff, 13 14 v. 15 WELLS FARGO BANK, N.A. and DOES 1 through 10, inclusive, 16 Defendant. 17 Case No. 5:17-cv-06220-BLF Assigned to Hon. Beth Labson Freeman ORDER GRANTING AMENDED JOINT MOTION STIPULATING TO AMENDMENT OF COMPLAINT, CERTIFICATION OF PLAINTIFF’S REST BREAK CLAIMS, AND STAY OF ACTION PENDING DECISION IN IBARRA MATTER Complaint Filed: October 27, 2017 18 19 20 21 22 23 24 25 26 27 28 SMRH:489440834.3 Dockets.Justia.com 1 2 PURSUANT TO THE JOINT MOTION STIPULATING TO CLASS NOTICE, AND FOR GOOD CAUSE SHOWN, IT IS ORDERED that: 3 4 1. Consolidate the claims pleaded in the separate class action, Michael 5 Moses v. Wells Fargo Bank, N.A., Case No. 3:18 cv 6679 (“Moses”), into this 6 action, James C. Kang v. Wells Fargo Bank, N.A., Case No. 5:17-cv-06220 7 (“Kang”); 8 2. Enter an amended consolidated complaint, attached hereto as Exhibit 1, 9 which will proceed under the Kang case number following consolidation of the 10 Moses action, which will be closed; 11 3. Modify the Kang class certification order (Docket No. 54) to include as 12 a certified claim the rest period claim currently asserted in Moses. Thus, the parties 13 agree that 14 a. Pursuant to Rule 23(b)(3) of the Federal Rules of Civil Procedure, the 15 certification the Court ordered on February 6, 2016 is amended to certify 16 rest period, vacation pay, and minimum wage claims, and a derivative 17 waiting time penalties claim on behalf of the following class and 18 subclasses: 19 Overall Class All non-exempt employees for Wells Fargo who at any time during the period from October 27, 2013 to the date class notice is mailed (“the class period”) worked for Wells Fargo in California in the job titles of Home Mortgage Consultant, Home Mortgage Consultant, Jr., Private Mortgage Banker, or Private Mortgage Banker, Jr. (collectively “HMCs”) and were subject to the Home Mortgage Consultant or Private Mortgage Banker compensation plans in effect within this time period (“the Class”). HMCs who were hired or rehired on or after December 11, 2015 are excluded from the Class. 20 21 22 23 24 25 26 27 28 SMRH:489440834.3 -1- 1 2 3 4 5 6 7 8 9 10 Minimum Wage Subclass All class members who assert they performed non-productive work tasks for which they received no compensation under the applicable compensation plans in effect within the class period (“the Minimum Wage Subclass”). Vacation Pay Subclass All class members who utilized paid time off during the class period and whose employment with Wells Fargo terminated during that same class period (“the Vacation Pay Subclass”). Rest Period Subclass All class members who, during the period from August 2, 2017 to March 31, 2018, worked a shift of at least 3.5 hours in a HMC position (“the Rest Period Subclass”). 11 12 13 14 Waiting Time Penalties Subclass All class members whose employment with Wells Fargo terminated on or after October 27, 2014 (“the Waiting Time Penalties Subclass.”) 15 b. The Court finds that James Kang and Michael Moses are members of the 16 Class and the proposed subclasses and they can adequately represent the 17 class on the certified claims. 18 c. The Court finds there are no issues of adequacy of class counsel or the 19 class representative that would preclude the class certification agreed to 20 herein (should the Court require additional information as to Class 21 Counsel’s experience and qualifications, declarations of Joshua H. Haffner 22 and Paul D. Stevens will be provided). 23 d. The Court finds that, with the approval of this stipulation, they will meet 24 and confer on class notice, and will submit to the Court a stipulated class 25 notice within thirty (30) days of the date the Court approves this 26 stipulation. In the unlikely event the Parties cannot agree to the specific 27 language of the proposed class notice, they will submit competing 28 -2SMRH:489440834.3 1 proposed class notices to the Court. Plaintiff will pay the cost associated 2 with issuing class notice but the cost shall be treated as a recoverable cost 3 available to the class to recover if judgment is entered in favor of the class. 4 4. Stay this action until a final ruling is obtained in the action Jacqueline 5 Ibarra v. Wells Fargo Bank, N.A., Case No. 2:17-cv-4344 PA(ASx) (“Ibarra”).” 6 5. Because a decision in the Ibarra action is not expected until late 2019 7 or early 2020, the Court will vacate the current trial date, but will set a new trial date 8 pursuant to a Case Management Conference the Court will set after the stay in this 9 action is lifted. 10 6. Nothing in this Order should be read as a waiver of Wells Fargo’s 11 arguments concerning res judicata which it intends to assert in the event that the stay 12 is lifted in this action following the completion of the Ibarra litigation. 13 14 15 IT IS SO ORDERED. 16 Dated: February __, 27 2019 17 ______________________________________ 18 BETH LABSON FREEMAN United States District Judge 19 20 21 22 23 24 25 26 27 28 -3SMRH:489440834.3 EXHIBIT 1 1 2 3 4 5 6 7 8 9 Joshua H. Haffner, SBN 188652 (jhh@haffnerlawyers.com) Graham G. Lambert, Esq. SBN 303056 gl@haffnerlawyers.com HAFFNER LAW PC 445 South Figueroa Street, Suite 2325 Los Angeles, California 90071 Telephone: (213) 514-5681 Facsimile: (213) 514-5682 Paul D. Stevens, SBN 207107 (pstevens@stevenslc.com) STEVENS, LC 700 S. Flower Street, Suite 660 Los Angeles, California 90017 Telephone: (213) 270-1211 Facsímile: (213) 270-1223 Attorneys for Plaintiffs James C. Kang, Michael Moses and the 11 Certified Class 10 12 UNITED STATES DISTRICT COURT 13 NORTHERN DISTRICT OF CALIFORNIA 14 15 16 17 JAMES C. KANG, an individual, MICHAEL MOSES, an individual, on behalf of themselves and all others similarly situated, Plaintiffs, 18 19 v. 20 21 WELLS FARGO BANK, N.A.; and DOES 1 through 10, inclusive, 22 Defendant. 23 Case No. 17-cv-06220-BLF FIRST AMENDED CLASS ACTION COMPLAINT FOR: 1. FAILURE TO PAY MINIMUM WAGES; 2. FAILURE TO PAY VACATION TIME; 3. REST BREAK VIOLATIONS; 4. COMPLAINT FOR P.A.G.A. PENALTIES, Labor Code § 2698 et seq. 5. FAILURE TO PAY ALL WAGES UPON SEPARATION; 6. VIOLATION OF CALIFORNIA’S UNFAIR COMPETITION ACT, BUS. & PROF. CODE §17200, et seq. DEMAND FOR JURY TRIAL 24 25 26 27 Plaintiffs James C. Kang and Michael Moses (“Plaintiffs”) are informed and believe, and on that basis allege, as follows: 28 SMRH:489526703.2 -- 1 -- 1 NATURE OF THE ACTION 2 1. This is a California state-wide class and representative Private 3 Attorney General Act (“PAGA”) action for wage and labor violations arising out 4 of, among other things, Defendant Wells Fargo Bank, N.A.’s (“Defendant” or 5 “Wells Fargo”) failure to compensate their mortgage sales force in compliance 6 with California law. As more fully described herein, Defendant paid Plaintiffs and 7 class members based on a sales commission, and fails to pay them for all time 8 worked and for vacation pay, fails to compensate for rest breaks, and engages in 9 other Labor Code violations detailed below. 10 2. Plaintiffs seeks among other things, all wages, restitutionary 11 disgorgement, and statutory remedies. 12 PARTIES 13 3. Plaintiff James C. Kang was, at all relevant times, a resident and 14 citizen of the State of California. Plaintiff Kang was employed by Defendant as a 15 mortgage broker in Defendant’s Palo Alto Branch, in the State of California, 16 during the liability period as alleged herein. Plaintiff Kang started with Defendant 17 in approximately October 2000 and, other than a short break in employment in 18 2011, was employed by Defendant through May 2015. 19 4. Plaintiff Michael Moses was, at all relevant times, a resident and 20 citizen of the State of California. Plaintiff was employed by Defendant as a 21 mortgage broker in the County of Los Angeles, State of California, during the 22 liability period as alleged herein. 23 5. Defendant Wells Fargo Bank, N.A. is a bank, that is authorized to 24 conduct and is actually conducting business in the State of California, and that 25 designates its main office in South Dakota. 26 6. Plaintiffs are currently ignorant of the true names and capacities, 27 whether individual, corporate, associate, or otherwise, of the Defendants sued 28 herein under the fictitious names Does 1 through 10, inclusive, and therefore sue SMRH:489526703.2 -- 2 -- 1 such Defendants by such fictitious names. Plaintiffs will seek leave to amend this 2 complaint to allege the true names and capacities of said fictitiously named 3 Defendants when their true names and capacities have been ascertained. Plaintiffs 4 are informed and believes and thereon alleges that each of the fictitiously named 5 Defendants is legally responsible in some manner for the events and occurrences 6 alleged herein, and for the damages suffered by the Class. 7 7. Plaintiffs are informed and believes and thereon alleges that all 8 Defendants, including the fictitious Doe Defendants, were at all relevant times 9 acting as actual agents, conspirators, ostensible agents, alter egos, partners and/or 10 joint venturers and/or employees of all other Defendants, and that all acts alleged 11 herein occurred within the course and scope of said agency, employment, 12 partnership, and joint venture, conspiracy or enterprise, and with the express and/or 13 implied permission, knowledge, consent authorization and ratification of their co14 Defendant; however, each of these allegations are deemed “alternative” theories 15 whenever not doing so would result in a contradiction with other allegations. 16 JURISDICTION AND VENUE 17 8. This Court has jurisdiction over the entire action by virtue of the fact 18 that this is a civil action wherein the matter in controversy, exclusive of interest 19 and costs, exceeds the jurisdictional minimum of the Court. The acts and 20 omissions complained of in this action took place in part in the State of California. 21 At least one Defendant is a citizen of a state outside of California, and federal 22 diversity jurisdiction exists and/or jurisdiction under the Class Action Fairness Act 23 (“CAFA”). The class amount at issue exceeds $5,000,000 and the jurisdictional 24 minimum of this Court under CAFA. Venue is proper because this is a class 25 action, the acts and/or omissions complained of took place, in whole or in part 26 within the venue of this Court. 27 28 SMRH:489526703.2 -- 3 -- 1 FACTUAL ALLEGATIONS 2 9. Plaintiffs and the Class members worked as Home Mortgage 3 Consultants, Private Mortgage Bankers, Home Mortgage Consultant Jr.’s, and/or 4 Private Mortgage Banker, Jr.’s (collectively “HMCs”) for Defendant selling 5 mortgages. 6 10. Under Defendant’s pay plan, Plaintiffs and other Mortgage 7 Consultants were paid a monthly commission based on the amount of loans that 8 closed in a given month. Defendant paid Plaintiffs and other Mortgage Consultants 9 at approximately $12 per hour, but then deducted those advances from the 10 commissions. 11 11. In violation of Labor Code §§1194 and 1197, Defendant failed to pay 12 Plaintiffs and other HMC’s for non-sales work time, including mandatory 13 meetings, loan processing, training and coaching sessions, loan tracking, customer 14 surveys, attending open houses, attending events and galas, and working on “call 15 night.” 16 12. Defendant was also required to pay Plaintiffs and class members 17 vacation time, referred to as Paid Time Off. Defendant made transfers of monies 18 for that time to Class members, but also subtracted or clawed that back from Class 19 members’ commission. 20 13. In violation of Labor Code §226.7, Defendant failed to separately pay 21 Plaintiffs and HMCs for rest breaks, in violation of California law. Judgment was 22 entered against Defendant for rest break violations through August 1, 2017 in the 23 amount of $97,284,817.91, in the action entitled Ibarra v. Wells Fargo Bank, N.A., 24 United States District Court, Central District of California, Case No. CV 17-4344 25 PA (ASx). No compensation or damages has been awarded Plaintiffs or the 26 proposed class for rest break violations since August 1, 2017. 27 14. Defendant’s conduct violated, among other statutes, Labor Code §§ 28 201, 202, 203, 218.5, 226.7, 512, 1197, and 1198, as well as IWC Wage Order No. SMRH:489526703.2 -- 4 -- 1 4-2001. 2 15. Defendant’s conduct, as alleged herein, has caused Plaintiffs and 3 Class members damages including, but not limited to, loss of wages and 4 compensation. Defendant is liable to Plaintiffs and the Class for failing to pay 5 minimum wages and vacation pay, as well as failing to pay all wages owed on each 6 pay period, failure to pay all wages owed upon termination, and unfair 7 competition. 8 16. Plaintiffs are members of and seek to be the representatives for the 9 Class of similarly situated employees who all have been exposed to, have suffered, 10 and/or were permitted to work under, Defendant’s unlawful employment practices 11 as alleged herein. 12 17. Plaintiffs has provided the required notice of intent to bring this PAGA 13 action. Plaintiffs has complied with all conditions or requirements for bringing suit, 14 save those Defendants have waived, forfeited, and/or are estopped from asserting. 15 CLASS DEFINITIONS AND CLASS ALLEGATIONS 16 18. Plaintiffs bring this action on behalf of themselves, and on behalf of 17 all others similarly situated, and as members of the Class defined as follows: 18 All current or former California residents who worked for 19 Defendant as HMCs at any time beginning four (4) years prior 20 to the filing of the original Complaint in the Kang action 21 through the date notice is mailed to the Class (the “Class 22 period”). 23 24 REST BREAK SUBCLASS CLASS: All current or former 25 California residents who worked for Defendant as a Mortgage 26 Consultant at any time beginning August 2, 2017 through 27 March 31. 2018 (the “Class period”). 28 SMRH:489526703.2 -- 5 -- 1 19. Plaintiffs reserve the right to amend or otherwise alter the class 2 definitions presented to the Court at the appropriate time, or to propose or eliminate 3 sub-classes, in response to facts learned through discovery, legal arguments 4 advanced by Defendant or otherwise. 5 20. This action has been brought and may be properly maintained as a 6 class action pursuant to California Code of Civil Procedure § 382 and other 7 applicable law, as follows: 8 21. Numerosity of the Class: Members of the Class are so numerous 9 that their individual joinder is impracticable. The precise number of Class 10 members and their addresses are known to Plaintiffs or will be known to Plaintiffs 11 through discovery. Class members may be notified of the pendency of this action 12 by mail, electronic mail, the Internet, or published notice. 13 22. Existence of Predominance of Common Questions of Fact and 14 Law: Common questions of law and fact exist as to all members of the Class. 15 These questions predominate over any questions affecting only individual Class 16 members. These common legal and factual questions include: 17 a. Whether Defendant’s pay plan of advancing an hourly wage against 18 commissions is akin to an interest free loan against the commission. 19 b. Whether Plaintiffs and each member of the Class were not paid 20 minimum wage for each hour worked or part thereof during which they 21 were required to perform acts at the direction and for the benefit of 22 Defendant. 23 c. Whether Plaintiffs and each member of the Class were not paid 24 minimum wage for non-sales time worked during the Class period. 25 d. Whether Defendant failed to pay Plaintiffs and Class members for 26 vacation time, also referred to as Paid Time Off. 27 e. Whether Defendant violated IWC Wage Order No. 4-2001 and Labor 28 Code § 226.7 by engaging in a pattern or practice of failing to properly SMRH:489526703.2 -- 6 -- 1 compensate Plaintiffs and the members of the Class in California during 2 the Class period for rest periods by paying based on a commission, 3 without separately paying Plaintiffs and Class members for rest breaks. 4 f. Whether Defendants engaged in an unfair business practice in violation 5 of Business & Professions Code §17200, et seq., based on the labor 6 practices and Labor Code violations alleged herein. 7 g. The nature and extent of class-wide injury and the measure of damages 8 for the injury. 9 23. Typicality: Plaintiffs claims are typical of the claims of the members 10 of the subclasses they represent because Plaintiffs, as a mortgage consultants for 11 Defendant, were exposed and subjected to the same unlawful business practices as 12 other mortgage salespersons employed by Defendant during the liability period. 13 Plaintiffs and the members of the class they represent sustained the same types of 14 damages and losses. 15 24. Adequacy: Plaintiffs are adequate representatives of the Class they 16 seek to represent because their interests do not conflict with the interests of the 17 members of the subclasses Plaintiffs seeks to represent. Plaintiffs have retained 18 counsel competent and experienced in complex class action litigation and Plaintiffs 19 intend to prosecute this action vigorously. The interests of members of each Class 20 will be fairly and adequately protected by Plaintiffs and their counsel. 21 25. Superiority and Substantial Benefit: The class action is superior to 22 other available means for the fair and efficient adjudication of Plaintiffs and the 23 Class members’ claims. The violations of law were committed by Defendant in a 24 uniform manner and class members were exposed to the same unlawful practices. 25 The damages suffered by each individual Class member may be limited. Damages 26 of such magnitude are small given the burden and expense of individual 27 prosecution of the complex and extensive litigation necessitated by Defendant’s 28 conduct. Further, it would be virtually impossible for the Class members to redress SMRH:489526703.2 -- 7 -- 1 the wrongs done to them on an individual basis. Even if members of the Class 2 themselves could afford such individual litigation, the court system could not. 3 Individualized litigation increases the delay and expense to all parties and the court 4 system, due to the complex legal and factual issues of the case. By contrast, the 5 class action device presents far fewer management difficulties, and provides the 6 benefits of single adjudication, economy of scale, and comprehensive supervision 7 by a single court. 8 26. The Class should also be certified because: 9 a. The prosecution of separate actions by individual members of the 10 Class would create a risk of inconsistent or varying adjudications with respect to 11 individual Class members which would establish incompatible standards of 12 conduct for Defendant; 13 b. The prosecution of separate actions by individual members of the 14 Class would create a risk of adjudication with respect to them, which would, as a 15 practical matter, be dispositive of the interests of the other Class members not 16 parties to the adjudications, or substantially impair or impede their ability to 17 protect their interests; and 18 c. Defendant has acted or refused to act on grounds generally applicable 19 to the Class, and/or the general public, thereby making appropriate final and 20 injunctive relief with respect to the Classes as a whole. 21 22 23 24 25 26 27 28 SMRH:489526703.2 -- 8 -- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FIRST CAUSE OF ACTION FAILURE TO PAY MINIMUM WAGES (Violation of Labor Code §§ 510, 1194, 1194.2, 1197; Wage Order No. 42001, §4) (Against All Defendants) 27. Plaintiffs re-allege and incorporate all preceding paragraphs as if fully set forth herein. 28. Labor Code § 510 provides in relevant part: “[e]ight hours of labor constitutes a day’s work.” Labor Code §1197 provides: “The minimum wage for employees fixed by the commission is the minimum wage to be paid to employees, and the payment of a less wage than the minimum so fixed is unlawful.” 29. Labor Code § 1194, subdivision (a) provides: “Notwithstanding any agreement to work for a lesser wage, an employee receiving less than the legal minimum wage or the legal overtime compensation applicable to the employee is entitled to recover in a civil action the unpaid balance of the full amount of this minimum wage or overtime compensation, including interest thereon, reasonable attorney’s fees, and costs of suit.” 30. Labor Code § 1194.2 provides in relevant part: “In any action under Section 1193.6 or Section 1194 to recover wages because of the payment of a wage less than the minimum wage fixed by an order of the commission, an employee shall be entitled to recover liquidated damages in an amount equal to the wages unlawfully unpaid and interest thereon.” 31. Pursuant to IWC Wage Order No. 4-2001, at all times material hereto, “hours worked” includes “the time during which an employee is subject to the control of an employer, and includes all the time the employee is suffered or permitted to work, where or not required to do so.” 32. Plaintiffs and Class members were required to work non-selling time, for which they were not compensated, in violation of California’s minimum wage SMRH:489526703.2 -- 9 -- 1 laws. This includes, but is not limited to, including but not limited to, mandatory 2 meetings, loan processing, training and coaching sessions, loan tracking, customer 3 surveys, attending open houses, attending events and galas, and working on 4 certain nights or weekends. Plaintiffs engaged in such non-sales work through his 5 last date of employment in May 2015. 6 33. At all times relevant during the liability period, under the provisions 7 of Wage Order No. 4-2001, Plaintiffs and each Class member should have 8 received not less than the minimum wage in a sum according to proof for the time 9 worked, but not compensated. 10 34. For all hours that Plaintiffs and the Class members worked, they are 11 entitled to not less than the California minimum wage and, pursuant to Labor 12 Code § 1194.2(a) liquidated damages in an amount equal to the unpaid minimum 13 wages and interest thereon. Pursuant to Labor Code § 1194, Plaintiffs and the 14 Class members are also entitled to their attorneys’ fees, costs and interest 15 according to proof. 16 35. At all times relevant during the liability period, Defendants willfully 17 failed and refused, and continues to willfully fail and refuse, to pay Plaintiffs and 18 Class members the amounts owed. 19 36. Defendants’ unlawful conduct alleged herein occurred in the course of 20 employment of Plaintiffs and all other similarly situated drivers, and Defendants 21 has done so continuously throughout the filing of this complaint. 22 37. As a direct and proximate result of Defendants’ violation of Labor 23 Code §§ 510 and 1197, Plaintiffs and other Class members have suffered 24 irreparable harm and money damages entitling them to damages, injunctive relief 25 or restitution. Plaintiffs, on behalf of themselves and on behalf of the Class, seeks 26 damages and all other relief allowable including all wages due while working as 27 Defendants’ drivers, attorneys’ fees, liquidated damages, prejudgment interest, 28 and as to those employees no longer employed by Defendants, waiting time SMRH:489526703.2 -- 10 -- 1 penalties pursuant to Labor Code § 200 et seq. 2 38. Plaintiffs and the Class members are entitled to back pay, pre- 3 judgment interest, liquidated damages, statutory penalties, attorneys’ fees and 4 costs, and for Plaintiffs and the Class of members no longer employed, waiting 5 time penalties pursuant to Labor Code § 1194. 6 SECOND CAUSE OF ACTION FAILURE TO PAY VACATION TIME (Violation Of Labor Code § 227.3) 7 8 9 10 11 39. Plaintiffs re-allege and incorporate all preceding paragraphs as if fully set forth herein. 40. Labor Code § 227.3 requires employers to pay all vacation time owed 12 upon termination of employment. Defendant failed to provide or pay Plaintiffs 13 and Class members for vested vacation time in accordance with section 227.3. 14 41. Plaintiffs and Class members were not paid their vacation time, 15 because Defendant deducted it from their commission. Plaintiffs and Class 16 members were denied vested vacation pay, and were not provided it when they 17 ceased employment. 18 42. As a direct and proximate result of Defendant’s wrongful conduct, 19 Plaintiffs and Class members have been deprived of compensation in amounts to 20 be determined at trial. 21 22 23 24 25 26 27 28 THIRD CAUSE OF ACTION UNLAWFUL FAILURE TO PROVIDE REST PERIODS (Violation of Labor Code §§ 226.7, 512, and 1194; IWC Wage Order No. 4-2001, §12) 43. Plaintiffs re-allege and incorporate all preceding paragraphs as if fully set forth herein. 44. California Labor Code § 226.7(a) provides, “No employer shall require any employee to work during any meal or rest period mandated by an applicable order of the Industrial Welfare Commission.” SMRH:489526703.2 -- 11 -- 1 45. IWC Order No.4-2001(12)(A) provides, in relevant part: “Every 2 employer shall authorize and permit all employees to take rest periods, which 3 insofar as practicable shall be in the middle of each work period. The authorized 4 rest period time shall be based on the total hours worked daily at the rate of ten 5 (10) minutes net rest time per four hours or major fraction thereof. However, a 6 rest period need not be authorized for employees whose total daily work times is 7 less than three and one-half hours. Authorized rest period time shall be counted as 8 hours worked for which there shall be no deduction from wages.” 9 46. IWC Order No. 4-2001 (12)(B) further provides, “If an employer fails 10 to provide an employee with a rest period in accordance with the applicable 11 provisions of this order, the employer shall pay the employee one (1) hour of pay 12 at the employee’s regular rate of compensation for each workday that the rest 13 period is not provided.” 14 47. As alleged herein, Defendant failed to pay rest breaks during the Class 15 period. Defendant paid Plaintiffs and class members based on a commission, and 16 did not separately compensate them for their time. 17 48. By their actions, Defendant violated § 12 of IWC Wage Order No. 4- 18 2001 and California Labor Code § 226.7, and are liable to Plaintiffs and the Class. 19 49. Defendant’s unlawful conduct alleged herein occurred in the course of 20 employment of Plaintiffs and all others similarly situated and such conduct has 21 continued through the filing of this complaint. 22 50. As a direct and proximate result of Defendant’s unlawful action, 23 Plaintiffs and the Class have been deprived of timely rest periods and/or were not 24 paid for rest periods taking during the Class period, and are entitled to recovery under 25 Labor Code § 226.7(b) in the amount of one additional hour of pay at the employee’s 26 regular rate of compensation for each work period during each day in which 27 Defendant failed to provide employees with timely and/or paid rest periods. 28 SMRH:489526703.2 -- 12 -- 1 2 3 4 5 6 7 FOURTH CAUSE OF ACTION REPRESENTATIVE CLAIM PRIVATE ATTORNEY GENERAL ACT (Violation of California’s Labor Code §§ 2698 et seq.) (Against All Defendants) 51. Plaintiffs re-allege and incorporate by reference, the preceding paragraphs of this Complaint, as though fully set forth herein. 52. The claims alleged herein are appropriately suited for a Labor Code Private Attorneys General Act of 2004 (“PAGA”) action because: 8 a. Pursuant to California Labor Code § 2699(a), any provision of the Labor 9 Code “that provides for a civil penalty to be assessed and collected by 10 the Labor and Workforce Development Agency or any of its 11 departments, divisions, commissions, boards, agencies, or employees, 12 for a violation of this code, may, as an alternative, be recovered through 13 a civil action brought by an aggrieved employee on behalf of himself or 14 herself and other current or former employees pursuant to the procedures 15 specified in section 2699.3.” 16 b. This action involves allegations of violations of provisions of the 17 California Labor Code that provide or do not provide for a civil penalty to 18 be assessed and collected by the LWDA or any departments, divisions, 19 commissions, boards, agencies, or employees. 20 c. Plaintiffs are an “aggrieved employee” because they were employed by 21 the alleged violators and had one or more of the alleged violations 22 committed against them. 23 d. Plaintiffs satisfied the procedural requirements of section 2699.3 by 24 serving, via certified mail, the LWDA and Defendants with notice for 25 wage and hour violations and penalties, including the facts and theories to 26 support each violation. More than 65 days have passed since Plaintiff 27 Moses served via certified mail to LWDA and his former employer. 28 Therefore, Plaintiffs satisfied all the administrative requirements to pursue SMRH:489526703.2 -- 13 -- 1 civil penalties against Defendants pursuant to Labor Code section 2698 et 2 seq. 3 53. Plaintiffs filed this cause of action pursuant to Labor Code section 4 2699(a) and (f), on behalf of themselves and all other current and former aggrieved 5 employees of Defendants to recover civil penalties. Said civil penalties include 6 unpaid wages which are to be paid to the affected employees pursuant to Labor Code 7 section 558 subdivisions (a)(1) and (a)(3). 8 54. Defendants, including the Doe defendants, were Plaintiffs’ employers 9 or persons acting on behalf of Plaintiffs’ employer, within the meaning of California 10 Labor Code § 558, who violated or caused to be violated, a section of Part 2, Chapter 11 1 of the California Labor Code or any provision regulating hours and days of work 12 in any order of the Industrial Welfare Commission and, as such, are subject to 13 penalties for each underpaid employee, as set forth in Labor Code § 558, at all 14 relevant times 15 55. Plaintiffs, on behalf of themselves and all other non-exempt employees 16 of Defendants, seek to recover all applicable civil penalties under PAGA including, 17 but not limited to, all unpaid and/or underpaid wages. 18 FIFTH CAUSE OF ACTION FAILURE TO PAY ALL WAGES DUE AT SEPARATION (Violation of Labor Code § 203) 19 20 21 22 23 56. Plaintiffs re-allege and incorporate all preceding paragraphs as if fully set forth herein. 57. California Labor Code §§ 201 and 202 requires Defendant to pay all 24 compensation due and owing to former mortgage salespersons at or around the 25 time employment is terminated. Section 203 of the California Labor Code 26 provides that if an employer willfully fails to pay compensation promptly upon 27 discharge or resignation, as required by §§ 201 and 202, then the employer is 28 liable for penalties in the form of continued compensation up to thirty (30) work SMRH:489526703.2 -- 14 -- 1 days. 2 58. At all times relevant during the liability period, Plaintiffs and the other 3 members of the Class were employees of Defendant covered by Labor Code § 4 203. 5 59. Plaintiffs and the Class were not paid for their work performed, as set 6 forth herein, including minimum wage for non-sales time, overtime pay, vacation 7 pay, or their proper commission for certain loans. 8 60. Defendant willfully failed to pay Plaintiffs and other members of the 9 Class who are no longer employed by Defendant for their uncompensated hours, 10 uncompensated overtime, and for other items alleged herein upon their 11 termination or separation from employment with Defendant as required by 12 California Labor Code §§ 201 and 202. As a result, Defendant is liable to 13 Plaintiffs and other members of the Class who are no longer employed by 14 Defendant for all wages or compensation owed, as well as waiting time penalties 15 amounting to thirty days wages for Plaintiffs and each such Class member 16 pursuant to California Labor Code § 203. 17 18 19 20 SIXTH CAUSE OF ACTION VIOLATION OF CALIFORNIA’S UNFAIR COMPETITION ACT (Violation of California’s Unfair Competition Law, Bus. & Prof. Code §§ 17200 et seq.) 21 61. 22 set forth herein. 23 62. 24 Plaintiffs re-allege and incorporate all preceding paragraphs as if fully Section 17200 of the California Business and Professions Code (the “UCL”) prohibits any unlawful, unfair, or fraudulent business practices. 63. 25 Through its actions alleged herein, Defendant has engaged in unfair 26 competition within the meaning of the UCL. Defendant’s conduct, as alleged 27 herein, constitutes unlawful, unfair, and/or fraudulent business practices under the 28 UCL. SMRH:489526703.2 -- 15 -- 1 64. Defendant’s unlawful conduct under the UCL includes, but is not 2 limited to, violating the statutes and regulations alleged herein; failure to pay 3 Class members wages and compensation they earned through labor provided; 4 violating California Labor Code § 204 and employees fundamental right to be 5 paid wages in a timely fashion for their work; and failing to otherwise compensate 6 Class members, as alleged herein. Defendant’s fraudulent conduct includes, but is 7 not limited to, issuing wage statements containing false and/or misleading 8 information about the amount of wages or compensation due. 9 65. Plaintiffs has standing to assert this claim because she has suffered 10 injury in fact and has lost money as a result of Defendant’s conduct. 11 66. Plaintiffs and the Class seek restitutionary disgorgement from 12 Defendant, and an injunction prohibiting them from engaging in the unlawful, 13 unfair, and/or fraudulent conduct alleged herein. 14 PRAYER 15 WHEREFORE, Plaintiffs, on behalf of themselves and all others similarly 16 situated and also on behalf of the general public, pray for judgment against 17 Defendant as follows: 18 A. An order that this action may proceed and be maintained as a class 19 action; 20 B. For all unpaid minimum wages and liquidated damages due to Plaintiffs 21 and each Class member on their minimum wage claim 22 C. For all unpaid vacation pay or paid time off due to Plaintiffs and each 23 Class member on their vacation wage claim; 24 D. For all applicable statutory penalties under the Labor Code; 25 E. For restitutionary disgorgement pursuant to the UCL; 26 F. An order enjoining Defendant from further unfair and unlawful 27 business practices in violation of the UCL; 28 G. Prejudgment interest at the maximum legal rate; SMRH:489526703.2 -- 16 -- 1 H. Reasonable attorneys’ fees; 2 I. Accounting of Defendant’s records for the liability period; 3 J. General, special and consequential damages, to the extent allowed by 4 law; 5 K. Costs of suit; and 6 L. Such other relief as the Court may deem just and proper. 7 8 9 DATED: February 26, 2019 10 HAFFNER LAW PC By: 11 12 /s/ Joshua H. Haffner Joshua H. Haffner Attorneys for Plaintiffs James C. Kang, Michael Moses and the Certified Class 13 14 15 DATED: February 26, 2019 STEVENS LC 16 17 By: 18 19 /s/ Paul D. Stevens Paul D. Stevens Attorneys for Plaintiffs James C. Kang, Michael Moses and the Certified Class 20 21 22 23 24 25 26 27 28 SMRH:489526703.2 -- 17 -- 1 DEMAND FOR JURY TRIAL 2 Plaintiffs demand a trial by jury for herself and the Class members on all 3 claims so triable. 4 5 DATED: February 26, 2019 HAFFNER LAW PC 6 By: 7 8 9 /s/ Joshua H. Haffner Joshua H. Haffner Attorneys for Plaintiffs James C. Kang, Michael Moses and the Certified Class 10 11 12 DATED: February 26, 2019 STEVENS LC 13 By: 14 15 16 /s/ Paul D. Stevens Paul D. Stevens Attorneys for Plaintiffs James C. Kang, Michael Moses and the Certified Class 17 18 19 20 21 22 23 24 25 26 27 28 SMRH:489526703.2 -- 18 --