NoticeCal. Super. - 6th Dist.August 21, 2018LITTLER MENDELSON, P.C. 3 3 3 B u sh S t r e e t 3 4 t h F l o o r S a n F r a n c i s co , C A 9 4 1 0 4 4 1 5 . 4 3 3 . 1 9 40 Case No. 18CV333342 NOTICE TO STATE COURT AND ADVERSE PARTIES OF REMOVAL OF ACTION TO FEDERAL COURT 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 LINDBERGH PORTER, Bar No. 100091 KURT R. BOCKES, Bar No. 171647 DEBORAH OLALEYE, Bar No. 315838 LITTLER MENDELSON, P.C. 333 Bush Street, 34th Floor San Francisco, CA 94104 Telephone: 415.433.1940 Fax No.: 415.399.8490 Email: lporter@littler.com kbockes@littler.com dolaleye@littler.com Attorneys for Defendant ESA MANAGEMENT, LLC SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA SANDRA ARIZMENDI, an individual, on behalf of the State of California, as a private attorney general, and on behalf of all others similarly situated, Plaintiff, v. ESA Management, LLC, a Delaware Limited Liability Company, and DOES 1 to 50, inclusive,, Defendants. Case No. 18CV333342 ASSIGNED FOR ALL PURPOSES TO THE HON. BRIAN C. WALSH-DEPT. 1 NOTICE TO STATE COURT AND ADVERSE PARTIES OF REMOVAL OF ACTION TO FEDERAL COURT Electronically Filed by Superior Court of CA, County of Santa Clara, on 9/24/2018 2:22 PM Reviewed By: R. Walker Case #18CV333342 Envelope: 1982696 18CV333342 Santa Clara - Civil TO THE CLERK OF THE SUPERIOR COURT IN THE STATE OF CALIFORNIA, 2 COUNTY OF SANTA CLARA AND TO PLAINTIFF SANDRA ARIZMENDI AND HER 3 COUNSEL OF RECORD: 4 PLEASE TAKE NOTICE THAT on September 24,2018, Defendant ESA MANAGEMENT, 5 LLC filed a Notice of Removal to Federal Court pursuant to 28 U.S.C. §§ 1332, 1441 and 1446 6 ("Notice") in the United States District Court for the Northern District of California, a copy of which 7 is attached as Exhibit 1. 8 PLEASE TAKE FURTHER NOTICE that, by the filing of such Notice and by the filing 9 herein of this Notice to State Court of Removal to Federal Court, the above-entitled action has been 10 removed from this Court to the United States District Court for the Northern District of California. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LI TTL ER MENDEL SO N, P.C. J33BII1h5 tree t 34th Floor S9n Francrsco . CA 94 104 415,331940 Dated: September 24, 2018 FIRM WIDE: 157070092.1 052026.1166 2 LINDilliRGH PORTER KURT R. BOCKES DEBORAH OLALEYE LITTLER MENDELSON, P.C. Attorneys for Defendant ESA MANAGEMENT, LLC Case No. 18CV333342 NOTICE TO STATE COURT AND ADVERSE PARTIES OF REMOVAL OF ACTION TO FEDERAL COURT EXHIBIT 1 LITTLER MENDELSON, P.C. 3 3 3 B u sh S t r e e t 3 4 t h F l o o r S a n F r a n c i s co , C A 9 4 1 0 4 4 1 5 . 4 3 3 . 1 9 40 NOTICE TO FEDERAL COURT OF REMOVAL 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 LINDBERGH PORTER, Bar No. 100091 KURT R. BOCKES, Bar No. 171647 DEBORAH OLALEYE, Bar No. 315838 LITTLER MENDELSON, P.C. 333 Bush Street, 34th Floor San Francisco, CA 94104 Telephone: 415.433.1940 Fax No.: 415.399.8490 Email: lporter@littler.com kbockes@littler.com dolaleye@littler.com Attorneys for Defendant ESA MANAGEMENT, LLC UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SANDRA ARIZMENDI, an individual, on behalf of the State of California, as a private attorney general, and on behalf of all others similarly situated, Plaintiff, v. ESA Management, LLC, a Delaware Limited Liability Company, and DOES 1 to 50, inclusive, Defendants. Case No. NOTICE TO FEDERAL COURT OF REMOVAL OF CIVIL ACTION FROM STATE COURT BY DEFENDANT ESA MANAGEMENT, LLC [28 U.S.C. §§ 1332, 1441, 1446] Santa Clara County Superior Court Case No. 18V333342 Complaint Filed: August 21, 2018 Case 3:18-cv-05821 Document 1 Filed 09/21/18 Page 1 of 15 LITTLER MENDELSON, P.C. 3 3 3 B u sh S t r e e t 3 4 t h F l o o r S a n F r a n c i s co , C A 9 4 1 0 4 4 1 5 . 4 3 3 . 1 9 40 2 Case No. 18CV333342 NOTICE TO FEDERAL COURT OF REMOVAL 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 TO THE CLERK AND HONORABLE JUDGES OF THE UNITED STATES DISTRICT COURT IN AND FOR THE NORTHERN DISTRICT OF CALIFORNIA: PLEASE TAKE NOTICE that Defendant ESA MANAGEMENT, LLC (hereinafter “ESA” or “Defendant”), hereby notices the removal of the above-captioned suit from the Santa Clara County Superior Court (“Superior Court”) to the United States District Court for the Northern District of California, San Jose Division (the “District Court”). This removal is based on 28 U.S.C. §§ 1441 and 1446. This Notice is based upon the original jurisdiction of this Court over the parties under 28 U.S.C § 1332(d) (Class Action Fairness Act or “CAFA”). As required by 28 U.S.C. § 1446(d), Defendant is filing in the Superior Court of the State of California, County of Santa Clara, and serving upon Plaintiff and her counsel of record, a Notice To State Court and Adverse Parties of Removal of Civil Action to Federal Court (with these removal papers attached). A true and correct copy of said Notice without its attachments is attached hereto as Exhibit A. In support of this Notice of Removal, Defendant states the following: I. STATE COURT PROCEEDINGS 1. On or about August 21, 2018, Plaintiff Sandra Arizmendi (“Plaintiff” or “Arizmendi”) filed a putative class action Complaint in the Superior Court of California, County of Santa Clara, which is captioned as follows: Sandra Arizmendi, an individual, on behalf of the State of California, as a private attorney general, and on behalf of all others similarly situated v. ESA Management, LLC, and Does 1 through 50, inclusive, designated as Case No. 18CV333342. A true and correct copy of the Complaint served on Defendant on August 23, 2018 is attached hereto as Exhibit B (hereinafter the “Complaint”) and incorporated herein by reference. A true and correct copy of the Proof of Service of Summons is attached hereto as Exhibit C. 2. Plaintiff’s Complaint alleges six causes of action for: (1) Failure to Provide Off-Duty Rest Periods To and Pay Rest Break Premiums; (2) Failure to Provide Off-Duty Meal Periods To and Pay Meal Period Premiums; (3) Failure to Provide Complete/Accurate Wage Statements in Violation of Labor Code Section 226(a); (4) Failure to Pay All Wages Owed Upon Termination; (5) UCL Violations; and (6) PAGA and Other Penalties. Case 3:18-cv-05821 Document 1 Filed 09/21/18 Page 2 of 15 LITTLER MENDELSON, P.C. 3 3 3 B u sh S t r e e t 3 4 t h F l o o r S a n F r a n c i s co , C A 9 4 1 0 4 4 1 5 . 4 3 3 . 1 9 40 3 Case No. 18CV333342 NOTICE TO FEDERAL COURT OF REMOVAL 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 3. In addition to her own claims, Plaintiff seeks to represent various classes. (See Complaint ¶¶ 7-9.) a. Non-exempt Hourly Employee Class: Plaintiff seeks to represent a proposed class that consists of and is defined as: “[A]ll non-exempt hourly individuals who are or were employed by ESA Management, LLC or its predecessor or merged entities in the State of California, who are or were classified as non-exempt at any time from four years prior to the filing of this Complaint and ongoing.” b. Rest Period Subclass: Plaintiff seeks to represent a subclass defined as “all Class Members who worked at least one shift which lasted more than 3.5 hours.” c. Meal Period Subclass: Plaintiff seeks to represent a subclass defined as “all Class Members who worked at least one shift which lasted more than 5 hours.” d. Plaintiff also seeks to represent the State of California and two groups collectively referred to as “Aggrieved Employees.” i. Rest Period Aggrieved Employees: Plaintiff seeks to represent “all hourly non-exempt individuals, who are or were employed by ESA Management, LLC, or its predecessor or merged entities in California who worked at least one shift longer than 3.5 hours at any time from May 23, 2017 and ongoing.” ii. Meal Period Aggrieved Employees: Plaintiff seeks to represent “all hourly non-exempt individuals, who are or were employed by ESA Management, LLC, or its predecessor or merged entities in California who worked at least one shift longer than 5 hours at any time from August 17, 2017 and ongoing.” 4. In her Complaint, Plaintiff states that she is a resident of the State of California and was employed by Defendant in the State of California. (See Complaint ¶ 6.) 5. Plaintiff seeks actual damages, restitution, declaratory relief, statutory penalties, civil penalties, attorneys’ fees and costs of suit, among other damages. (See Complaint, Relief Requested.) Plaintiff’s Complaint is otherwise silent as to the value of relief sought by way of this action. 6. On August 23, 2018, Defendant was served with a Notice of Case Management Case 3:18-cv-05821 Document 1 Filed 09/21/18 Page 3 of 15 LITTLER MENDELSON, P.C. 3 3 3 B u sh S t r e e t 3 4 t h F l o o r S a n F r a n c i s co , C A 9 4 1 0 4 4 1 5 . 4 3 3 . 1 9 40 4 Case No. 18CV333342 NOTICE TO FEDERAL COURT OF REMOVAL 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 Conference. A true and correct copy of the Notice of Case Management Conference is attached hereto as Exhibit D. 7. Defendant filed a timely Answer to the Complaint on September 21, 2018. A true and correct copy of Defendant’s Answer is attached hereto as Exhibit E. 8. To the best of Defendant’s knowledge, no further proceedings have been filed in the State Court Action, and the papers described above constitute all process, pleadings and orders served in the State Court Action. II. TIMELINESS OF REMOVAL 9. The instant Notice of Removal of Civil Action has been timely filed because it is made within thirty (30) days after the receipt by Defendant of a copy of the initial pleading which sets forth the removable claim. See 28 U.S.C. § 1446(b); Federal Rule of Civil Procedure, Rule 6(a)(1)(C); (See Exhibits B-C). III. JURISDICTION AND VENUE 10. This is a suit of a wholly civil nature brought in a California court. Venue is appropriate in this Court for purposes of this removal because the action was removed from the Superior Court of California for the County of Santa Clara to the District embracing the place where the action is pending pursuant to 28 U.S.C. §§ 84(a), 1391, 1441(a) and 1446. 11. The District Court also has original jurisdiction under the CAFA, 28 U.S.C. section 1332(d), and the action may be removed pursuant to 28 U.S.C. section 1446, in that this action is brought on behalf of greater than one hundred (100) persons, at least one of whom is a citizen of a state different from any defendant, wherein the amount in controversy exceeds the sum of five million dollars ($5,000,000), exclusive of interest and costs. 28 U.S.C. § 1332(d)(2). IV. INTRADISTRICT ASSIGNMENT 12. All civil actions that arise in the county of Santa Clara shall be assigned to the San Jose Division. Northern District Local Rule 3-2(e), 3-5(b). Therefore, assignment to the San Jose Division is proper. V. REMOVAL JURISDICTION PURSUANT TO CAFA 13. This Court has original jurisdiction over this action pursuant to the Class Action Case 3:18-cv-05821 Document 1 Filed 09/21/18 Page 4 of 15 LITTLER MENDELSON, P.C. 3 3 3 B u sh S t r e e t 3 4 t h F l o o r S a n F r a n c i s co , C A 9 4 1 0 4 4 1 5 . 4 3 3 . 1 9 40 5 Case No. 18CV333342 NOTICE TO FEDERAL COURT OF REMOVAL 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 Fairness Act of 2005 (“CAFA”). The CAFA grants federal district courts original jurisdiction over civil class action lawsuits filed under federal or state law in which there are greater than 100 members of the class, and any member of a class of plaintiffs is a citizen of a state different from any defendant and the matter in controversy exceeds five million dollars ($5,000,000), exclusive of interest and costs. 28 U.S.C. § 1332(d). The CAFA authorizes removal of qualifying actions in accordance with 28 U.S.C. § 1446. This case meets each of the CAFA requirements for removal because, as is set forth more particularly below: (1) the proposed class contains at least 100 members; (2) there is diversity between at least one putative class member and the only named defendant; (3) the total amount in controversy exceeds $5,000,000; and (4) Defendant is not a state, state official, or other governmental entity. A. Plaintiff’s Action is Pled as a Class Action. 14. Under CAFA, “class action” means any civil action filed under Rule 23 of the Federal Rules of Civil Procedure or similar State statute or rule of judicial procedure authorizing an action to be brought by one or more representative persons as a class action.” 28 U.S.C. § 1332(d)(1)(B). 15. Plaintiff’s Complaint asserts that she is attempting to represent a class of former and current employees of Defendant during a time period starting from four years before the filing of the action. (See Complaint ¶ 8.) B. Plaintiff Brought This Action on Behalf of More Than 100 Persons. 16. The CAFA provides that “the number of members of all proposed plaintiff classes in the aggregate [not be] less than 100.” 28 U.S.C. § l332(d)(5)(B). CAFA defines “class members” as those “persons (named or unnamed) who fall within the definition of the proposed or certified class in a class action.” 28 U.S.C. § 1332(d)(l)(D). 17. Here, the putative class Plaintiff purports to represent significantly exceeds one hundred (100) members. Plaintiff seeks to certify a class consisting of “all non-exempt hourly individuals who are or were employed by ESA Management, LLC or its predecessor or merged entities in the State of California, who are or were classified as non-exempt at any time from four years prior to the filing of this Complaint and ongoing.” (See Complaint ¶ 8.) Defendant’s records indicate that between August 21, 2014 and April 24, 2018, it employed approximately 4,330 non- Case 3:18-cv-05821 Document 1 Filed 09/21/18 Page 5 of 15 LITTLER MENDELSON, P.C. 3 3 3 B u sh S t r e e t 3 4 t h F l o o r S a n F r a n c i s co , C A 9 4 1 0 4 4 1 5 . 4 3 3 . 1 9 40 6 Case No. 18CV333342 NOTICE TO FEDERAL COURT OF REMOVAL 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 exempt employees in California during this period.1 (See Exhibit F [Declaration of Alvaro Castillo (hereinafter “Castillo Decl.”)], ¶ 4.) 18. Plaintiff’s proposed class significantly exceed one hundred (100) members. Thus, CAFA’s numerosity requirement is satisfied. See 28 U.S.C. § 1332(d)(5)(B). C. Plaintiff Is a Citizen of California And Defendant Is Not. 19. CAFA diversity jurisdiction exists if “any member of a class of plaintiffs is a citizen of a state different from any defendant.” 28 U.S.C. § 1332(d)(2)(A). 20. For diversity purposes, an individual is a “citizen” of the state in which he or she is domiciled. Kantor v. Wellesley Galleries, Ltd., 704 F.2d 1088, 1090 (9th Cir. 1983). A party’s residence is prima facie evidence of domicile. See Lew v. Moss, 797 F.2d 747,751 (9th Cir. 1986) (holding that residency can create a rebuttable presumption of domicile supporting diversity of citizenship); see also State Farm Mut. Auto. Ins. Co. v. Dyer, 19 F.3d 514, 519 (10th Cir. 1994) (holding that allegation in state court complaint of residency “create[s] a presumption of continuing residence in [state] and put[s] the burden of coming forward with contrary evidence on the party seeking to prove otherwise”). Per Plaintiff’s Complaint, “Plaintiff Sandra Arizmendi is a citizen of California.” (See Complaint ¶ 6.) Defendant’s employment records reflect that Plaintiff informed the Company that her home address was in Hayward, California. (Castillo Decl., ¶ 3.) 21. For diversity purposes, a corporation is deemed to be a “citizen” of the state in which it has been incorporated and the state where it has its principal place of business. 28 U.S.C. § 1332(c)(1). In Hertz Corp. v. Friend, 559 U.S. 77, 92-93 (2010), the United States Supreme Court clarified the test that is to be applied to determine a corporation’s principal place of business. The Court concluded that “principal place of business” is best read as referring to the place where a corporation’s officers direct, control, and coordinate the corporation’s activities. It is the place that Courts of Appeals have called the corporation’s “nerve center.” In practice, it should normally be the place where the corporation maintains its headquarters-provided that the headquarters is the actual center of direction, control, and coordination, i.e., the “nerve center,” and not simply an office 1 Please note that the calculations and estimates used throughout and in support of this Notice are based on the number of employees during the respective start date until the end of April 2018. Case 3:18-cv-05821 Document 1 Filed 09/21/18 Page 6 of 15 LITTLER MENDELSON, P.C. 3 3 3 B u sh S t r e e t 3 4 t h F l o o r S a n F r a n c i s co , C A 9 4 1 0 4 4 1 5 . 4 3 3 . 1 9 40 7 Case No. 18CV333342 NOTICE TO FEDERAL COURT OF REMOVAL 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 where the corporation holds its board meetings.” Id. 22. Defendant is a limited liability company organized under the laws of the State of Delaware. (Castillo Decl., ¶ 2.) Defendant’s corporate and executive offices are located in Charlotte, North Carolina. (Id.) Defendant’s chief executives, including but not limited to the Chief Executive Officer, Chief Financial Officer, Chief Accounting Officer, Chief Human Resources Officer, and Chief Asset Merchant are based in Charlotte, North Carolina. (Id.) Additionally, Charlotte, North Carolina is where all of Defendant’s primary administrative functions and operations, including but not limited to payroll, human resources, and talent management are performed. (Id.) 23. As a result, Defendant’s principal place of business is in Charlotte, North Carolina. 24. Does 1 through 50, inclusive, are wholly fictitious (See Complaint ¶ 13.) Plaintiff’s Complaint does not set forth the identity or status of any said fictitious defendants, nor does it set forth any charging allegation against any fictitious defendants. The citizenship of these doe defendants is to be disregarded for the purposes of determining diversity jurisdiction, and therefore cannot destroy the diversity of citizenship between the parties in this action. 28 U.S.C. § 1441(a); Newcombe v. Adolf Coors Co., 157 F.3d 686, 690-91 (9th Cir. 1998). 25. Accordingly, Plaintiff is a citizen of California, Defendant is organized and has its principal place of business outside California, and the minimum diversity requirement of 28 U.S.C. § 1332(d)(2)(A) is satisfied. D. More Than $5,000,000 Lies In Controversy. 26. CAFA requires the “matter in controversy” to exceed “the sum or value of $5,000,000, exclusive of interest and costs.” 28 U.S.C. § 1332(d)(2). The claims of the individual class members “shall be aggregated” to determine whether the matter in controversy exceeds this amount. 28 U.S.C. § 1332(d)(6). 27. Plaintiff has not alleged a specific amount in controversy in her Complaint. “Where the complaint does not specify the amount of damages sought, the removing defendant must prove by a preponderance of the evidence that the amount in controversy has been met.” See Guglielmino v. McKee Foods Corp., 506 F.3d 696, 699 (9th Cir. 2007); Abrego Abrego v. Dow Chemical Co., 443 F. 3d 676, 683 (9th Cir. 2006). That is, the defendant need only provide evidence establishing Case 3:18-cv-05821 Document 1 Filed 09/21/18 Page 7 of 15 LITTLER MENDELSON, P.C. 3 3 3 B u sh S t r e e t 3 4 t h F l o o r S a n F r a n c i s co , C A 9 4 1 0 4 4 1 5 . 4 3 3 . 1 9 40 8 Case No. 18CV333342 NOTICE TO FEDERAL COURT OF REMOVAL 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 that it is “more likely than not” that the amount in controversy exceeds CAFA’s $5 million requirement. See Guglielmino, 506 F. 3d at 699; accord, Rodriguez v. AT & T Mobility Serv. LLC, 728 F.3d 975 (9th Cir. 2013). 28. While Defendant denies Plaintiff’s claims of wrongdoing and denies her request for relief thereon, the facial allegations in Plaintiff’s Complaint and the total amount of statutory damages and attorneys’ fees at issue in this action, when viewed in the light most favorable to Plaintiff, is in excess of the jurisdictional minimum. Luckett v. Delta Airlines, Inc., 171 F.3d 295, 298 (5th Cir. 1999) (facts presented in notice of removal, combined with plaintiffs’ allegations, sufficient to support finding that jurisdictional limits satisfied). “In measuring the amount in controversy, a court must assume that the allegations of the complaint are true and that a jury will return a verdict for the plaintiff on all claims made in the complaint.” Kenneth Rothschild Trust v. Morgan Stanley Dean Witter, 199 F. Supp. 2d 993, 1001 (C.D. Cal. 2002) (internal quotations omitted). See also Schere v. Equitable Life Assurance Soc’y of the U.S., 347 F.3d 394, 399 (2d Cir. 2003) (recognizing that the ultimate or provable amount of damages is not what is considered in the removal analysis; rather, it is the amount put in controversy by plaintiff’s complaint). The estimate of the amount in controversy should not be based on the “low end of an open-ended claim,” but rather on a “reasonable reading of the value of the rights being litigated.” Werwinski v. Ford Motor Co., 286 F.3d 661, 666 (3d Cir. 2002) (citation omitted). 29. Further, as one district court held, “[u]nder this standard, the removing party’s burden is not daunting,” and defendants are not obligated to “research, state, and prove the plaintiff’s claims for damages.’” Cagle v. C & S Wholesale Grocers, Inc., No. 2:13-cv-02134-MCE-KJN, 2014 U.S. Dist. LEXIS 21571, at *19-20 (E.D. Cal. Feb. 19, 2014) (citations omitted) (denying remand motion). That court noted that “[w]hen a ‘(d)efendant’s calculations (are) relatively conservative, made in good faith, and based on evidence whenever possible,’ the court may find that the ‘(d)efendant has established by a preponderance of the evidence that the amount in controversy is met.’” Id. at *20, quoting Behrazfar v. Unisys Corp., 687 F.Supp.2d 1199, 1204-05 (E.D. Cal. 2008) (citations omitted). Importantly, Defendant need not provide summary judgment-type evidence. Cagle, 2014 U.S. Dist. LEXIS 21571, at *21. Case 3:18-cv-05821 Document 1 Filed 09/21/18 Page 8 of 15 LITTLER MENDELSON, P.C. 3 3 3 B u sh S t r e e t 3 4 t h F l o o r S a n F r a n c i s co , C A 9 4 1 0 4 4 1 5 . 4 3 3 . 1 9 40 9 Case No. 18CV333342 NOTICE TO FEDERAL COURT OF REMOVAL 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 30. Plaintiff seeks statutory and actual damages, attorneys’ fees and declaratory relief. (See Complaint, Relief Requested.) 31. With respect to her wage and hour claims alone, without adding potential PAGA penalties, Plaintiff’s claimed damages exceed $5,000,000. Plaintiff seeks to represent a class of all of Defendant’s hourly paid employees who have been employed in California over a four-year period prior to the filing of the Complaint. (See Complaint ¶ 8.) Plaintiff alleges causes of action for: (1) Failure to Provide Off-Duty Rest Periods To and Pay Rest Break Premiums; (2) Failure to Provide Off-Duty Meal Periods To and Pay Meal Period Premiums; (3) Failure to Provide Complete/Accurate Wage Statements in Violation of Labor Code Section 226(a); (4) Failure to Pay All Wages Owed Upon Termination; (5) UCL Violations; and (6) PAGA and Other Penalties. 32. California Code of Civil Procedure section 338(a) provides that the statute of limitations for actions to recover wages is three (3) years. However, Plaintiff’s Complaint asserts that Defendant’s alleged Labor Code violations predicate a claim under California Business and Professions Code sections 17200, et seq. (the “UCL”). A four-year statute of limitations applies to UCL claims, including recovery of wages and related damages. Cal. Bus. & Prof. Code § 17208; Cortez v. Purolator Air Filtration Prods. Co., 23 Cal. 4th 163, 177-179 (2000) (holding actions for unpaid wages pursuant to the UCL are subject to a four-year statute of limitations). 33. Defendant’s records indicate that the Company has employed approximately 4,330 individuals as non-exempt hotel employees during this time. (Castillo Decl., ¶ 4.) To assist in determining the amount in controversy, Defendant determined the average number of workweeks that each non-exempt employee worked at a California location during the putative four-year statute of limitations. (Castillo Decl., ¶ 4.) The average number of workweeks worked by each hourly employee at a California location during the putative four-year statute of limitations is 73. (Id.) The current average hourly rate earned by non-exempt hotel employees in California during is $13.35. (Castillo Decl., ¶ 5.) 34. Defendant denies the validity and merit of Plaintiff’s claims, the legal theories upon which they are purportedly based, and the claims for monetary and other relief that flow from them. Nevertheless, assuming Plaintiff’s claims to be true for purposes of this removal only, it is apparent Case 3:18-cv-05821 Document 1 Filed 09/21/18 Page 9 of 15 LITTLER MENDELSON, P.C. 3 3 3 B u sh S t r e e t 3 4 t h F l o o r S a n F r a n c i s co , C A 9 4 1 0 4 4 1 5 . 4 3 3 . 1 9 40 10 Case No. 18CV333342 NOTICE TO FEDERAL COURT OF REMOVAL 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 that Plaintiff seeks monetary relief exceeding the CAFA jurisdictional minimum. 1. Failure to Provide Off-Duty Meal Periods. 35. Plaintiff alleges that pursuant to Defendant’s policy, Plaintiff and the members of the class were not provided with meal periods in accordance with applicable Industrial Welfare Commission Wage Order and the California Labor Code sections 226.7 and 512, whereby they were relieved of all duties during their meal periods. (See Complaint ¶¶ 1, 25, 28, 33, 44-49.) The Complaint does not specify the frequency of missed meal periods. Based on the far-reaching allegations in Plaintiff’s Complaint, Defendant calculated the amount in controversy on Plaintiff’s Meal Period Claim by conservatively estimating one missed meal period violation per employee per week. 36. California Labor Code section 226.7 imposes a penalty of one hour of pay for each meal break that the employer does not provide. Therefore, although Defendant denies the validity of this claim, assuming just one meal period violation per employee per week, the amount at issue for Plaintiff’s meal period claim, without considering whether Plaintiff or putative class members were not provided with a second meal period, is: $4,219,801.50 [1 meal period * 4,330 putative class members * 73 workweeks * 13.35 average rate of pay] 2. Failure to Provide Off-Duty Rest Periods. 37. Plaintiff alleges that she and other putative class members were not authorized or permitted to take rest periods. (See Complaint ¶¶ 1, 22, 24, 33, 37-43.) The Complaint does not specify the frequency of missed rest periods. Based on the far-reaching allegations in Plaintiff’s Complaint, Defendant calculated the amount in controversy on Plaintiff’s Rest Period Claim by conservatively estimating one rest period violation per employee per week. See Quintana v. Claire’s Stores, 2013 U.S. Dist. LEXIS 58289, *21 (N.D. Cal., Apr. 22, 2013) (“estimates of one meal or rest break violation per week is an acceptable method to calculate possible damages for these claims”). California Labor Code section 226.7 imposes a penalty of one hour of pay for each rest break that the employer does not provide. Therefore, assuming just one rest period violation per employee per week, the amount at issue for Plaintiff’s Rest Period Claim for hotel employees in California is: $4,219,801.50 [1 rest period * 4,330 putative class members * 73 workweeks * 13.35 average rate of Case 3:18-cv-05821 Document 1 Filed 09/21/18 Page 10 of 15 LITTLER MENDELSON, P.C. 3 3 3 B u sh S t r e e t 3 4 t h F l o o r S a n F r a n c i s co , C A 9 4 1 0 4 4 1 5 . 4 3 3 . 1 9 40 11 Case No. 18CV333342 NOTICE TO FEDERAL COURT OF REMOVAL 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 pay] (Castillo Decl., ¶¶ 4-5.) 3. Failure to Issue Accurate Itemized Wage Statements. 38. Plaintiff alleges Defendant failed to issue accurate itemized wage statements to her and the putative class members and is subject to civil penalties as a result. (See Complaint ¶¶ 1, 32, 50-56.) Labor Code section 226(c) provides for penalties in the amount of “fifty dollars ($50) for the initial pay period in which a violation occurs and one hundred dollars ($100) per employee for each violation in a subsequent pay period, not exceeding an aggregate penalty of four thousand dollars ($4,000).” Plaintiff’s Wage Statement Claim is limited by the statute of limitations to the one year prior to the filing of the Complaint, i.e. August 21, 2017. See Singer v. Becton, Dickinson & Co., Med-Safe Sys., 2008 U.S. Dist. LEXIS 56326, *11-14 (S.D. Cal. July 23, 2008). 39. Between August 21, 2017 and April 24, 2018, when the data was pulled, Defendant employed approximately 1,726 non-exempt employees in California. (Castillo Decl., ¶ 7.) These employees worked an average of 32 workweeks in that period. (Id.) The Company pays employees on a bi-weekly basis. (Castillo Decl., ¶ 9.) As such, each employee was issued an average of 16 wage statements. Defendant provided approximately 27,616 wage statements during the statutory period [1,726 employees * 16 pay periods]. 1,726 of these wage statements would be assessed at the “initial pay period” rate of $50, yielding, $86,300. The remaining 25,890 wage statements would be assessed at the “subsequent pay period” rate of $100, yielding $2,589,000. Accordingly, the total potential exposure for allegedly non-compliant wage statements exceeds $2,675,300. 4. Waiting Time Penalties. 40. Plaintiff and the putative class members seek waiting time penalties pursuant to Labor Code section 203. (See Complaint ¶¶ 57-63.) Labor Code section 203 provides for penalties in an amount up to 30 days’ wages for failure to timely pay wages to employees upon their termination. Cal. Lab. Code § 203. The statute of limitations on a claim for waiting time penalties is three years and is not increased by the UCL. See Pineda v. Bank of America, N.A., 50 Cal.4th 1389 (2010) (statute of limitations not increased for penalties pursuant to Labor Code section 203 because these penalties cannot be recovered as restitution under the Unfair Competition law). Between August 21, 2015 and April 24, 2018, when the data was pulled, there were approximately 2,445 non-exempt Case 3:18-cv-05821 Document 1 Filed 09/21/18 Page 11 of 15 LITTLER MENDELSON, P.C. 3 3 3 B u sh S t r e e t 3 4 t h F l o o r S a n F r a n c i s co , C A 9 4 1 0 4 4 1 5 . 4 3 3 . 1 9 40 12 Case No. 18CV333342 NOTICE TO FEDERAL COURT OF REMOVAL 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 hotel employees in California terminated. (Castillo Decl., ¶ 6.) Defendant’s non-exempt employees in California may work on either a part-time or full-time basis. (Castillo Decl., ¶ 8.) Full time employees typically work 7.5 to 8 hours per day while part-time employees’ hours vary from 4-8 hours per day. (Id.) Assuming conservatively that each of the terminated non-exempt hotel employees worked only 4 hours per day, the amount at issue for Plaintiff’s Waiting Time Penalty Claim is $3,916,890 [$13.35 average rate of pay * 4 hours * 30 days * 2,445 putative class members]. 5. PAGA Claim. 41. In addition to the above, Plaintiff seeks to recover penalties under PAGA for Defendant’s “failure to provide accurate and itemized wage statements,” as well as for the other alleged claims in her Complaint. (See Complaint, ¶¶ 75-84.) 42. The Complaint is silent as to the value of the penalties and other relief Plaintiff claims in the aggregate. Plaintiff does not allege the number of “aggrieved employees” or pay periods at issue. Because the total amount in controversy pled in Plaintiff’s Complaint is “unclear or ambiguous” on its face, the “preponderance of the evidence standard” applies to determine the amount in controversy in this case for purposes of removal. See Guglielmino, supra, 506 F. 3d at 699; Abrego, supra, 443 F. 3d at 683. 43. The PAGA allows “aggrieved employees” to recover civil penalties for violations of the Labor Code. See Arias v. Superior Court, 46 Cal. 4th 969, 980 (2009). For provisions of the Labor Code that specifically provide for a civil penalty, the PAGA allows aggrieved employees to collect such penalties. See Lab. Code § 2699(a). For Labor Code provisions that do not provide for civil penalties, PAGA provides a default penalty as follows: If, at the time of the alleged violation, the person employs one or more employees, the civil penalty is one hundred dollars ($100) for each aggrieved employee per pay period for the initial violation and two hundred dollars ($200) for each aggrieved employee per pay period for each subsequent violation. Lab. Code §2699(f)(2). 44. Courts have recognized that when an action alleges a PAGA claim, the amount in controversy includes the alleged relief sought on behalf of all aggrieved employees, not just the Case 3:18-cv-05821 Document 1 Filed 09/21/18 Page 12 of 15 LITTLER MENDELSON, P.C. 3 3 3 B u sh S t r e e t 3 4 t h F l o o r S a n F r a n c i s co , C A 9 4 1 0 4 4 1 5 . 4 3 3 . 1 9 40 13 Case No. 18CV333342 NOTICE TO FEDERAL COURT OF REMOVAL 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 named plaintiff. Further, for the purposes of calculating the amount in controversy in the CAFA context, courts in this jurisdiction have held that 100% of PAGA penalties (as opposed to only the 25% that is paid to the putative class members) may be included in the aggregation of the value of the claims at issue. See e.g., Pagel v. Dairy Farmers Of America, Inc., 2013 U.S. Dist. LEXIS 176273 (C.D. Cal. Dec. 11, 2013); Brooks v. Life Care Centers of America, Inc., et al., 214 U.S. Dist. LEXIS 27539 (C.D. Cal. Feb. 21, 2014). 45. The statute of limitations for PAGA actions is one year. See Code Civ. Proc. § 340; Lab. Code § 2699.3(d). Plaintiff’s PAGA action was pled in her Complaint, filed August 21, 2018. Plaintiff seeks to represent one group of “aggrieved employees,” defined as hourly non-exempt individuals, who are or were employed by ESA in California who worked at least one shift longer than 3.5 hours at any time from May 23, 2017 and ongoing. (See Complaint ¶ 7.) Plaintiff also seeks to represent another group of “aggrieved employees,” defined as “hourly non-exempt individuals, who are or were employed by ESA in California who worked at least one shift longer than 5 hours at any time from August 15, 2017 and ongoing.” (Id.) As quoted above, the default penalty under PAGA is calculated on a per-pay-period basis. Lab. Code §2699(f)(2). Defendant paid putative class members on a bi-weekly basis. (Castillo Decl., ¶ 9.) 46. Plaintiff’s PAGA claim alleges violation of each of the above-discussed meal and rest period, wage statement and waiting time claims on behalf of herself and “aggrieved employees.” (See Complaint ¶¶ 75-84.) 47. The PAGA civil penalties on each alleged PAGA violation would be in addition to the statutory penalty amounts already calculated above. 6. Attorneys’ Fees. 48. Plaintiff seeks attorneys’ fees in her Complaint pursuant to all her causes of action. It is well settled that, in determining whether a complaint meets the amount in controversy requirement, the Court should consider the aggregate value of claims for damages as well as attorneys’ fees. See, e.g., Galt GIS v. JSS Scandinavia, 142 F.3d 1150, 1155-1156 (9th Cir. 1998) (attorneys’ fees may be taken into account to determine jurisdictional amounts). In California, it is not uncommon for an attorneys’ fees award to be 25 to 33 percent of the recovery. See, e.g., Chavez Case 3:18-cv-05821 Document 1 Filed 09/21/18 Page 13 of 15 LITTLER MENDELSON, P.C. 3 3 3 B u sh S t r e e t 3 4 t h F l o o r S a n F r a n c i s co , C A 9 4 1 0 4 4 1 5 . 4 3 3 . 1 9 40 14 Case No. 18CV333342 NOTICE TO FEDERAL COURT OF REMOVAL 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 v. Netflix, Inc., 162 Cal. App. 4th 43, 66 n.l1 (2008), quoting Shaw v. Toshiba Am. Info. Sys., Inc., 91 F. Supp. 2d 942, 972 (E.D. Tex. 2000) (“Empirical studies show that, regardless whether the percentage method or the lodestar method is used, fee awards in class actions average around one- third of the recovery.”). 49. Plaintiff seeks attorneys’ fees for Defendant’s alleged California Labor Code violations. (See Complaint, Relief Requested.) Sizeable fee awards are recognized in class actions involving asserted violations of the Labor Code, including Labor Code sections 203 and 226.7. See e.g., Amaral v. Cintas Corp. No. 2, 163 Cal. App. 4th 1157, 1216-18 (2008) (affirming award of $757,000 in attorneys’ fees in a Labor Code section 203 matter); Vasquez v. California, 45 Cal. 4th 243, 249 (2008) (noting award of $435,000 in attorneys’ fees for class claims seeking waiting time penalties)); Pellegrino v. Robert Half Int’l, Inc., 182 Cal. App. 4th 278, 287, 296 (2010) (affirming $558,926 in attorneys’ fees for an overtime and meal/rest period class). Defendant has calculated that Plaintiff has placed in excess of $15,031,793 in damages in controversy under the CAFA. Twenty-five (25) percent of Plaintiff’s alleged damages is $3,757,948.25. 7. The Total Amount In Controversy Exceeds $5,000,000.00. 50. Defendant has taken the sum total of the amount in controversy for each alleged violation set forth in Section D(1)-(5), above: Alleged Violation Total Amount in Controversy Calculated for Alleged Violation Failure to Provide Off-Duty Meal Periods $ 4,219,801.50 Failure to Provide Off-Duty Rest Periods $ 4,219,801.50 Failure to Issue Accurate Itemized Wage Statements $ 2,675,300.00 Waiting Time Penalties $ 3,916,890.00 Attorneys’ Fees for the Above-Listed Alleged Violations (25%) $ 3,757,948.25 PAGA Penalties* $ Total: $ 18,789,741.25 *Civil Penalties at $100/$200 pay period per employee per claim. Case 3:18-cv-05821 Document 1 Filed 09/21/18 Page 14 of 15 LITTLER MENDELSON, P.C. 3 3 3 B u sh S t r e e t 3 4 t h F l o o r S a n F r a n c i s co , C A 9 4 1 0 4 4 1 5 . 4 3 3 . 1 9 40 15 Case No. 18CV333342 NOTICE TO FEDERAL COURT OF REMOVAL 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 51. Accordingly, although ESA denies Plaintiff’s claims of wrongdoing, based on the foregoing, Plaintiff’s claims for damages, attorneys’ fees, and other monetary relief conservatively exceed the jurisdictional minimum under CAFA. Particularly given the assertion by Plaintiff that she is seeking “all available” remedies, the amount in controversy clearly exceeds $5 million. E. Defendant Is Not A State, State Official, or Other Governmental Entity. 52. Defendant is a Limited Liability Company. It is not a state, state official, or other government entity. VI. CONCLUSION 53. Based upon the foregoing, Defendant submits that it has proven by more than a preponderance of evidence that the District Court may exercise original jurisdiction over this action. NOTICE TO PLAINTIFF AND THE STATE COURT 54. Contemporaneously with the filing of this Notice of Removal, as required by 28 U.S.C. § 1446(b), Defendant is providing Plaintiff, through her counsel, with written notice of the removal. 55. Further, Defendant is also concurrently filing a copy of the Notice of Removal with the Clerk of the Superior Court of the State of California, in and for the County of Santa Clara, pursuant to 28 U.S.C. §1446(d). Dated: September 21, 2018 /s/ Kurt R. Bockes LINDBERGH PORTER KURT R. BOCKES DEBORAH OLALEYE LITTLER MENDELSON, P.C. Attorneys for Defendant ESA MANAGEMENT, LLC FIRMWIDE:157070154.1 052026.1166 Case 3:18-cv-05821 Document 1 Filed 09/21/18 Page 15 of 15 EXHIBIT A Case 3:18-cv-05821 Document 1-1 Filed 09/21/18 Page 1 of 3 LITTLER MENDELSON, P.C. 3 3 3 B u sh S t r e e t 3 4 t h F l o o r S a n F r a n c i s co , C A 9 4 1 0 4 4 1 5 . 4 3 3 . 1 9 40 Case No. 18CV333342 NOTICE TO STATE COURT AND ADVERSE PARTIES OF REMOVAL OF ACTION TO FEDERAL COURT 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 LINDBERGH PORTER, Bar No. 100091 KURT R. BOCKES, Bar No. 171647 DEBORAH OLALEYE, Bar No. 315838 LITTLER MENDELSON, P.C. 333 Bush Street, 34th Floor San Francisco, CA 94104 Telephone: 415.433.1940 Fax No.: 415.399.8490 Email: lporter@littler.com kbockes@littler.com dolaleye@littler.com Attorneys for Defendant ESA MANAGEMENT, LLC SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA SANDRA ARIZMENDI, an individual, on behalf of the State of California, as a private attorney general, and on behalf of all others similarly situated, Plaintiff, v. ESA Management, LLC, a Delaware Limited Liability Company, and DOES 1 to 50, inclusive,, Defendants. Case No. 18CV333342 ASSIGNED FOR ALL PURPOSES TO THE HON. BRIAN C. WALSH-DEPT. 1 NOTICE TO STATE COURT AND ADVERSE PARTIES OF REMOVAL OF ACTION TO FEDERAL COURT Case 3:18-cv-05821 Document 1-1 Filed 09/21/18 Page 2 of 3 Case 3:18-cv-05821 Document 1-1 Filed 09/21/18 Page 3 of 3 TO THE CLERK OF THE SUPERIOR COURT IN THE STATE OF CALIFORNIA, 2 COUNTY OF SANTA CLARA AND TO PLAINTIFF SANDRA ARIZMENDI AND HER 3 COUNSEL OF RECORD: 4 PLEASE TAKE NOTICE THAT on September 24,2018, Defendant ESA MANAGEMENT, 5 LLC filed a Notice of Removal to Federal Court pursuant to 28 U.S.C. §§ 1332, 1441 and 1446 6 ("Notice") in the United States District Court for the Northern District of California, a copy of which 7 is attached as Exhibit 1. 8 PLEASE TAKE FURTHER NOTICE that, by the filing of such Notice and by the filing 9 herein of this Notice to State Court of Removal to Federal Court, the above-entitled action has been 10 removed from this Court to the United States District Court for the Northern District of California. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LI TTL ER MENDEL SO N, P.C. J33BII1h5 tree t 34th Floor S9n Francrsco . CA 94 104 415,331940 Dated: September 24, 2018 FIRM WIDE: 157070092.1 052026.1166 2 LINDilliRGH PORTER KURT R. BOCKES DEBORAH OLALEYE LITTLER MENDELSON, P.C. Attorneys for Defendant ESA MANAGEMENT, LLC Case No. 18CV333342 NOTICE TO STATE COURT AND ADVERSE PARTIES OF REMOVAL OF ACTION TO FEDERAL COURT EXHIBIT B Case 3:18-cv-05821 Document 1-2 Filed 09/21/18 Page 1 of 29 Case 3:18-cv-05821 Document 1-2 Filed 09/21/18 Page 2 of 29 SUMMONS (CIT A CION JUDICIAL) NOTICE TO DEFENDANT: (AVISO AL DEMANDADO): ESA Management, LLC, a Delaware Limited Liability Company, and DOES I to 50, inclusive, YOU ARE BEING SUED BY PLAINTIFF: (LO ESTA DEMANDANDO EL DEMANDANTE): Sandra Arizmendi, an individual, on behalf of the State of California, as a private attorney general, and on behalf of all others similarly situated SUM-100 FOR COURT USE ONLY (SOLO PARA USO DE LA CORTE) E-FlLED 8/21/2018 5:27PM Clerk of Court Superior Court of CA, County of Santa Clara 18CV333342 Reviewed By: R. Walker Envelope: 1860159 NOT1CEI You have been sued. The court may decide against you without your being heard unless you respond within 30 days. Read the information below. You have 30 CALENDAR DAYS after this summons and legal papers are served on you to file a written response at this court and have a copy served on the plaintiff. A letter or phone call will not protect you. Your written response must be in proper legal form if you want the court to hear your case. There may be a court form that you can use for your response. You can find these court forms and more information at the California Courts Online Self-Help Center (www.courtinfo.ca.gov/selfhelp), your county law library, or the courthouse nearest you. If you cannot pay the filing fee, ask the court derk for a fee waiver form. If you do not file your response on time, you may lose the case by default, and your wages, money, and property may be taken without further warning from the court. There are other legal requirements. You may want to call an attorney right away. If you do not know an attorney, you may want to call an attorney referral service. If you cannot afford an attorney, you may be eligible for free legal services from a nonprofit legal services program. You can locate these nonprofit groups at the California Legal Services Web site (www.fawhelpcalifomia.org), the California Courts Online Self-Help Center (www.courlinfo.ca.gov/selfhelp), or by contacting your local court or county bar association. NOTE: The court has a statutory lien for waived fees and costs on any settlement or arbitration award of $10,000 or more in a civil case. The court's lien must be paid before the court will dismiss the case. tA VI SOl Lo han demandado. Sino responde dentro de 30 dies, Ia corle puede decidir en su contra sin escuchar su versi6n. Lea Ia informaci6n a continuaci6n. Tiene 30 DIAS DE CALENDAR/0 despu(Js de que le entreguen esta citaci6n y papeles legales para presenter una respuesta por escrito en esta corle y hacer que sa entregue una copia a/ demandante. Una carla o una llamada telef6nica no lo protegen. Su respuesta por escrito tiene que ester en formato legal conecto si desea que procesen su caso en Ia corle. Es posib/e que haya un formulario que usted pueda ussr para su respuesta. Puede encontrar estos formularies de Ia corle y mas informaci6n en e/ Centro de Ayuda de las Corles de California (www .sucorte.ca.gov}, en Ia bibfioteca de /eyes de su condado o en Ia corle que Ia quede mas ceres. Sino puede pager Ia cuota de presentaci6n, pida al secretario de Ia corle que le d(J un formulario de exenci6n de pago de cuotas. Sino presents su respuesta a tiempo, puede perder el caso por incumplimiento y Ia corle le podrtJ quitar su sue/do, dinero y bienes sin m~s advertencia. Hay otros requisites legales. Es recomendable que llama a un abogado inmediatamente. Sino conoce a un abogado, puede llamar a un setVicio de remisi6n a abogados. Sino puede pagar a un abogado, es posible que cumpla con los requisites para obtener servicios legales gratuitos de un programs de servicios legales sin fines de lucre. Puede encontrar estos grupos sin fines de Iuera en el sitio web de California Legal Services, {www.lawhelp~lifomia.org), en e/ Centro de Ayuda de las Cortes de California, (www.sucorte.ca.gov) o poni(Jndose en contacto con Ia corte o el co/agio de abogados locales. AVISO: Por ley, Ia corte tiene derecho a reclamar las cuotas y los costas exentos por imponer un gravamen sabre cua/quier recuPeraci6n de $10,000 6 mas de valor recibida mediante un acuerdo o una concesi6n de arbitraje en un caso de derecho civil. Tiene que pagar ef gravamen de Ia corle antes de que Ia corle pueda desechar el caso. The name and address of the court is: (EI nombre y direcci6n de Ia corte es): Santa Clara County Superior Court 191 North First Street San Jose, CA 95113 The name, address, and telephone number of plaintiffs attorney, or plaintiff without an attorney, is: (EI nombre, Ia direcci6n y el nUmero de telf:Jfono del abogado del demandante, o del demandante que no tiene abogado, es): Jonathan Melmed, 1180 S. Beverly Dr. Suite 610, Los Angeles, CA 90035; (310) 824-3828 DATE: Att~ttst 22, 29 18 (Fecha) 81 1/2018 5:27PM Clerk of Court Clerk, by (Secretario) (For proof of service of this summons, use Proof of Service of Summons (form POS-010).) R. Walker , Deputy (Adjunto) (Para prueba de entrega de esta citati6n use el formulario Proof of Service of Summons, (POS-Q10)). FomJ Adopted for Mandatory Use Judicial Council oS California SUM· H)() [Rev. July 1. 20091 NOTICE TO THE PERSON SERVED: You are served 1. c=J as an individual defendant. 2. c=J as the person sued under the fictitious name of (specify): 3. 1XJ on behalf of (specify): ESA Management, LLC, a Delaware Limited Liability Company under: D CCP 416.10 (corporation) D CCP 416.20 (defunct corporation) DO CCP 416.40 (association or partnership) D other (specify): 4. DO by personal delivery on (date): SUMMONS D D D CCP 416.60 (minor) CCP 416.70 (conservalee) CCP 416.90 (authorized person) Po o 1 of 1 Code of Civil Procedure§§ 412.20.465 www.rouflinfo.co.gov Case 3:18-cv-05821 Document 1-2 Filed 09/21/18 Page 3 of 29 CM 010 - ~TTORNEY OR PAR"TY WITHOUT ATTORNEY ramo. Sttlto Bar number, tJnd Bddross): Jonathan Melmed (SBN 29021 ) FOR COURT USE ONLY Melmed Law Group P.C. 1180 S. Beverly Drive, Suite 610 Los Angeles, California 90035 ~ lectronically Filed TElEPHONE NO.: f;110) 824-3828 FAX NO.: (3JO) 862-6851 ATTORNEYFORfNsmeJ: laintiff Sandra Arizmendi y Superior Court of CA, SUPERIOR COURT OF CALIFORNIA, COUNTY OF Santa Clara l ounty of Santa Clara, sTREET ADDREss: 191 North First Street ~ n 8/21/2018 5:27PM MAJLINGADDREss: 191 North First Street eviewed By: R. Walker cnY AND z•• COGE: San Jose, CA 95113 BRANCH NAMEo Downtown Superior Court ( ase #18CV333342 CASE NAME: t nvelope: 1860159 Arizmendi v. ESA Management LLC CIVIL CASE COVER SHEET Complex Case Designation rae'V333342 0 Unlimited D Limited D Counter D Joinder (Amount (Amount demanded demanded is Filed with first appearance by defendant JUDGE: exceeds $25,000) $25,000 or less) (Cal. Rules of Court, rule 3.402) DEPT: Items 1 6 below must be completed (see mstruct10ns on page 2). 1. Check one box below for the case type that best describes this case: Auto Tort Contract D Auto (22) D Breach of contract/warranty (06) D Uninsured motorist (46) D Rule 3.740 collections (09) Other PI/PD/WO (Personal Injury/Property 0 Other collections (09) Damage/Wrongful Death} Tort 0 Insurance coverage (16} D Asbestos (04) D D Product liability (24) Other contract (37) 0 Medical malpractice (45} D Other PIIPD/WD (23) Non-PI/PD/WD (Other) Tort Real Property D Eminent domain/Inverse condemnation (14) D Wrongful eviction (33) D Other real property (26) D Business tort/unfair business practice (07) 0 Civil rights (08) Unlawful Detainer D Defamation (13) D Commercial (31) D Fraud (16) D Residential (32) D Intellectual property (19) D Drugsp8) 0 Professional negligence (25) Judicial Review D Other non-PIIPD/WD tort (35) D Asset forteiture (05) Employment 0 Petition re: arbitration award (11) 0 Wrongful termination (36) 0 Writ of mandate (02) 0 Other employment (15) 0 Other judicial review (39) Provisionally Complex Civil Litigation (Cal. Rules of Court. rules 3.400-3.403) 0 Antitrust/Trade regulation (03) D Construction defect(10) D Mass tort (40) 0 Securities litigation (28) 0 EnvironmentalfToxic tort (30) D Insurance coverage claims arising from the above listed provisionally complex case types (41) Enforcement of Judgment 0 Enforcement of judgment (20) Miscellaneous Civil Complaint D RIC0(27) 0 Other complaint (not specified above) (42) Miscellaneous Civil Petition D Partnership and corporate governance (21) 0 Other petition (not specified above) (43} 2. This case W is U is not complex under rule 3.400 of the California Rules of Court. If the case is complex, mark the factors requiring exceptional judicial management: a. 0 Large number of separately represented parties b.D Extensive motion practice raising difficult or novel issues that will be time-consuming to resolve c. 0 Substantial amount of documentary evidence d. 0 Large number of witnesses e. D Coordination with related actions pending in one or more courts in other counties, states, or countries, or in a federal court f. D Substantial postjudgment judicial supervision 3. Remedies sought {check all that apply): a.0 monetary b.D nonmonetary; declaratory or injunctive relief c. D punitive 4. Number of causes of action (specify): 6 5. This case 0 is D is not a c.lass action suit. 6. If there are any known related cases, file and serve a notice of related case. (You may use form CM·015.) Date: August 22.2018 !Jonathan Melmed, Esg. (lYPE OR PRINT NAME) NOTICE • Plaintiff must file this cover sheet with the first paper filed in the action or proceeding (except small claims cases or cases filed under the Probate Code, Family Code, or Welfare and Institutions Code). (Cal. Rules of Court, rule 3.220.) Failure to file may result in sanctions. • File this cover sheet in addition to any cover sheet required by local court rule. • If this case is complex under rule 3.400 et seq. of the California Rules of Court, you must serve a copy of this cover sheet on all other parties to the action or proceeding. • Unless this is a collections case under rule 3.740 or a complex case, this cover sheet will be used for statistical purposes onlv. P'a o 1 of2 Form Adopted lot Mandatory Use Judicial Council of Qllilomia CM-010 !Rev. July 1. 20071 CIVIL CASE COVER SHEET Cal. Rules of Coon. rules 2.30. 3.220. 3.400-3.403, 3.740: Cal. Standards of Judicial Administmtion. std. 3.1 0 www.courtinfo.cn.gov Case 3:18-cv-05821 Document 1-2 Filed 09/21/18 Page 4 of 29 2 3 4 5 6 7 8 9 10 II 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ACKERMANN & TILAJEF, P.C. Craig J. Ackermann, CA Bar No. 229832 cja@ackermanntilajef.com 1180 South Beverly Drive, Suite 610 Los Angeles, California 90035 Phone: (310) 277-0614 Fax: (310) 277-0635 MELMED LAW GROUP P.C. Jonathan Melmed, CA Bar No. 290218 jm@melmedlaw.com 1180 South Beverly Drive, Suite 610 Los Angeles, California 90035 Phone: (31 0) 824-3828 Fax: (310) 862-6851 E-FILED 8/21/2018 5:27PM Clerk of Court Superior Court of CA, County of Santa Clara 18CV333342 Reviewed By: R. Walker Attorneys for Plaintiff, the Class and the Aggrieved Employees SUPERJOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA SANDRA ARIZMENDI, an i11dividual, on CASE NO. 18CVJJJJ42 behalf of the State of California, as a private attorney general, and on behalf of all others similarly situated Plaintiff, v. ESA Management, LLC, a Delaware Limited Liability Company, and DOES I to 50, inclusive, Defendants. CLASS ACTION AND PAGA REPRESENTATIVE ACTION COMPLAINT FOR (1) FAILURE TO PROVIDE OFF- DUTY REST PERJODS TO AND PAY REST BREAK PREMIUMS (LABOR CODE§ 226.7 AND IWC WAGE ORDER NO. 5); (2) FAILURE TO PROVIDE OFF- DUTY MEAL PERJODS TO AND PAY MEAL PERJOD PREMIUMS (LABOR CODE§§ 226.7, 512, AND IWC WAGE ORDER NO. 5); (3) FAILURE TO PROVIDE COMPLETE/ACCURATE WAGE STATEMENTS IN VIOLATION OF LABOR CODE § 226(a); (4) FAILURE TO PAY ALL WAGES OWED UPON TERMINATION (LABOR CODE§§ 201-203) (5) UCL VIOLATIONS (BUS. & PROF. CODE§§ 17200-17204); (6) PAGA AND OTHER PENALTIES (LABOR CODE §§ 2699, et seq., and 558). DEMAND FOR JURY TRJAL REPRESENTATIVE ACTION COMPLAINT Case 3:18-cv-05821 Document 1-2 Filed 09/21/18 Page 5 of 29 2 3 4 5 6 7 8 9 10 II 12 Plaintiff Sandra Arizmendi ("Plaintiff'), on behalf of herself, the State of California as a private attorney general, and all others similarly situated (hereinafter "Class Members" or "aggrieved employees" as defined below), complains and alleges as follows: I. INTRODUCTION I. Plaintiff brings this action on behalf of herself and all others similarly situated, as a class action pursuant to California Code of Civil Procedure § 382 and as a PAGA representative action pursuant to Labor Code § 2699, et seq., and on behalf of the California general public, against Defendant ESA Management, LLC, and DOES I to 50 (collectively, "Defendants") for Defendants' (I) failure to provide off-duty rest breaks and/or pay missed rest break premiums; (2) failure to provide off-duty meal periods and/or pay missed meal period premiums; (3) failure to provide complete and accurate wage statements; (4) failure to pay all wages owed upon termination; (5) unfair business practices based on the foregoing; and (6) PAGA and other 13 penalties based on the foregoing. As a result of the foregoing, Defendants have violated 14 California statutory laws as described below. 15 2. The "Class Period" is designated as the period from four years prior to the filing of 16 this action through the trial date. The PAGA period for the Rest Period Aggrieved Employees is 17 the period from May 23, 2017 and ongoing. The PAGA period for the Meal Period Aggrieved 18 Employees is the period from August 15, 2017 and ongoing. Defendants' violations of 19 California's wage and hour laws and unfair competition laws, as described more fully below, 20 have been ongoing throughout the Class Period and throughout the PAGA period and are 21 ongoing. 22 II. JURSIDICTION AND VENUE 23 3. This Court has subject matter jurisdiction over any and all causes of action 24 asserted herein pursuant to Article VI,§ 10 of the California Constitution and Califomia Code of 25 Civil Procedure§ 410.10 by virtue of the fact that this is a civil action in which the matter in 26 controversy, exclusive of interest, exceeds $25,000, and because each cause of action asserted 27 arises under the laws of the State of Califomia or is subject to adjudication in the courts of the 28 State of California. CLASS AND REPRESENTATIVE ACTION COMPLAINT Case 3:18-cv-05821 Document 1-2 Filed 09/21/18 Page 6 of 29 4. This Court has personal jurisdiction over Defendants because Defendants have 2 caused injuries in the County of Santa Clara and State of California through their acts, and by 3 their violation of the California Labor Code and California state common law. Defendants 4 transact millions of dollars of business within the state of California. 5 5. Venue as to Defendants is proper in this judicial district, pursuant to Code of Civil 6 Procedure § 395. Defendants operate within California and do business within Santa Clara 7 County, California. The unlawful acts alleged herein have a direct effect on Plaintiff and all of 8 Defendants' employees within Santa Clara County. Plaintiff is informed and believes that 9 Defendants keep and maintain a regional headquarters in the County of Santa Clara. I 0 III. II 12 THE PARTIES A. 6. PLAINTIFF Plaintiff Sandra Arizmendi is a citizen of California, , and, at all times pertinent 13 hereto, worked for Defendants in California. During the Class Period and PAGA period, Plaintiff 14 was employed by Defendants as an hourly, nonexempt employee. 15 7. Plaintiff represents the state of California as well as two (2) groups of aggrieved 16 employees defined as: (I) all hourly non-exempt individuals, who are or were employed by ESA 17 Management, LLC or its predecessor or merged entities in California who worked at least one 18 shift longer than 3.5 hours at any time from May 23, 2017 and ongoing (the "Rest Period 19 Aggrieved Employees"); (2) all hourly non-exempt individuals, who are or were employed by 20 ESA Management, LLC, or its predecessor or merged entities in California who worked at least 21 one shift longer than 5 hours at any time from August 15, 2017 and ongoing (the "Meal Period 22 Aggrieved Employees"). Collectively, the Rest Period Aggrieved Employees and the Meal Period 23 Aggrieved Employees are referred to as the "Aggrieved Employees." 24 8. Plaintiff also seeks to represent a Class of employees defined as: all non-exempt 25 hourly individuals who are or were employed by ESA Management, LLC or its predecessor or 26 merged entities in the State of California, who are or were classified as non-exempt at any time 27 from four years prior to the filing of this Complaint and ongoing ("Class Members"). 28 2 CLASS AND REPRESENTATIVE ACTION COMPLAINT Case 3:18-cv-05821 Document 1-2 Filed 09/21/18 Page 7 of 29 9. Plaintiff also seeks to represent two subclasses, the Rest Period Subclass and the 2 Meal Period Subclass. The Rest Period Subclass is defmed as all Class Members who worked at 3 least one shift which lasted more than 3.5 hours. The Meal Period Subclass is defined as all Class 4 Members who worked at least one shift which lasted more than 5 hours. 5 10. Plaintiff, Class Members, and the Aggrieved Employees at all times pertinent 6 hereto, are, or were, employees of Defendants. 7 II. Upon information and belief, Plaintiff, Class Members and the Aggrieved 8 Employees are covered by California Industrial Welfare Commission Occupational Wage Order 9 No. 5-2001. 10 II B. 12. DEFENDANTS .Defendant ESA Management, LLC ("ESA") is a North Carolina limited liability 12 company that does business throughout the State of California under the brand name of Extended 13 Stay America. ESA owns and operates approximately 60 hotels throughout the State of 14 California. ESA employed Plaintiff, Class Members and the Aggrieved Employees within 15 California. ESA has done and does business throughout the State of California including Santa 16 Clara County, where it keeps and maintains a regional headquarters. 17 13. The true names and capacities, whether individual, corporate, associate, or 18 otherwise, of Defendants sued herein as DOES I to 50, inclusive, are currently unknown to 19 Plaintiff, who therefore sues Defendants by such fictitious names under Code of Civil Procedure 20 § 474. Plaintiff is informed and believes, and based thereon alleges, that each of the Defendants 21 designated herein as a DOE is legally responsible in some manner for the unlawful acts referred 22 to herein. Plaintiff will seek leave of court to amend this Complaint to reflect the true names and 23 capacities of the Defendants designated hereinafter as DOES when such identities become 24 known. 25 14. Plaintiff is infonned and believes, and based thereon alleges, that each Defendant 26 acted in all respects pertinent to this action as the agent of the other Defendants, can·ied out a joint 27 scheme, business plan or policy in all respects pertinent hereto, and the acts of each Defendant are 28 3 CLASS AND REPRESENTATIVE ACTION COMPLAINT Case 3:18-cv-05821 Document 1-2 Filed 09/21/18 Page 8 of 29 legally attributable to the other Defendants. Furthermore, Defendants in all respects acted as the 2 employer and/or joint employer of Plaintiff and the other aggrieved employees. 3 4 IV. FACTUAL BACKGROUND 15. Plaintiff, Class Members, and the Aggrieved Employees are, and were at all times 5 pertinent hereto, classified as non-exempt employees by Defendants. 6 16. Plaintiff, Class Members, and the Aggrieved Employees consistently worked shifts 7 more than four (4) hours or a major fraction thereof, including shifts up to and in excess of eight 8 9 (8) hours. 17. Under IWC Wage Order 5-2001 an employer must authorize and permit all 10 employees to take ten {10) minute duty free rest periods for every major fraction offour (4) hours II worked. Labor Code § 226.7 provides "an employer shall not require an employee to work during 12 a meal or rest or recovery period mandated pursuant to an applicable statute, or applicable 13 regulation, standard, or order of the Industrial Welfare Commission ("IWC"). See Auguslus v. 14 ABM Securily Services, Inc. (2016) 2 Cal. 5th 257, 269 (concluding that "during rest periods 15 employers must relieve employees of all duties and relinquish control over how employees spend 16 their time."). In Auguslus, the court expressly rejected the employer's assertion that it could 17 provide an on-duty rest period to employees who worked as security guards and further explained 18 "that employers (must) relinquish any control over how employees spend their break time, and 19 relieve their employees of all duties." !d. at 273. 20 18. At all times pertinent hereto, and throughout the Class Period and the PAGA 21 Period, Defendants failed to have a lawful rest period policy in place that informed Plaintiff, the 22 Rest Period Subclass Members, and the Rest Period Aggrieved Employees of their right to take 23 rest periods for shifts that were a major fraction of a four (4) hour work period and to make rest 24 breaks available to these employees. Instead, Defendants' rest period policy advised Plaintiff, the · 25 Rest Period Subclass Members, and the Rest Period Aggrieved Employees to take rest breaks on- 26 site and to remain on duty during their rest periods. Per the ESA Employee Handbook, page 19, 27 "All food and beverage items should be eaten in the break room or other Company designated 28 area only. Associates may be required to remain on premises during their meal and rest periods." 4 CLASS AND REPRESENTATIVE ACTION COMPLAINT Case 3:18-cv-05821 Document 1-2 Filed 09/21/18 Page 9 of 29 19. Defendants did not permit Plaintiff, the Rest Period Subclass Members, or the Rest 2 Period Aggrieved Employees to leave the premises during rest periods as required by Labor Code 3 § 226.7 and Wage Order 5-2001. Augustus, 2 Cal. 5th at 269. In fact, Defendants required that 4 Plaintiff, the Rest Period Subclass Members, and the Rest Period Aggrieved Employees remain 5 on-duty and on-site through their rest periods. Accordingly, as a result of its faulty rest period 6 policies, Defendants regularly and consistently failed to authorize and permit Plaintiff, the Rest 7 Period Subclass Members, and all Rest Period Aggrieved Employees to take compliant rest 8 periods. 9 10 II 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20. The Brinker Court explained in the context of rest breaks that employer liability attaches from adopting an unlawful policy: An employer is required to authorize and pennit the amount of rest break time called for under the wage order for its industry. If it does not-if, for example, it adopts a uniform policy authorizing and permitting only one rest break for employees working a seven-hour shift when two are required~it has violated the wage order and is liable. (Brinker Rest. Corp. v. Sup. Ct. (2012) 53 Cal.4th 1004, 1033.) [emphasis added]. 21. Following Brinker, the Courts of Appeal have confirmed that liability for on-duty breaks arises when an employer adopts a uniform policy that fails to provide off-duty breaks. For example, in Faulkinbury vs. Boyd & Associates, Inc., the California Court of Appeal applied Brinker: "In Faulkinbury I, we concluded that even if [defendant]'s on-duty meal break policy was unlawful, (defendant] would be liable only when it actually failed to provide a required off- duty meal break. Brinker leads us now to conclude [defendant] would be liable upon a determination that (defendant]'s unifonn on-duty meal break policy was unlawful." (Faulkinbury v. Boyd & Associates, Inc. (20 13) 216 Cai.App.4th 220 The Court further explained: "the employer's liability arises by adopting a unifonn policy that violates the wage and hour laws. Whether or not the employee was able to take the required break goes to damages ... " (Ibid. [citations omitted]; see also Benton v. Telecom Network Specialists, Inc. (2013) 220 Cal. App. 4th 701, 728.) 22. Since Defendants did not offer Plaintiff, Rest Period Subclass Members, and the Rest Period Aggrieved Employees the opportunity to receive a compliant off-duty rest period, 5 CLASS AND REPRESENTATIVE ACTION COMPLAINT Case 3:18-cv-05821 Document 1-2 Filed 09/21/18 Page 10 of 29 I "the court may not conclude employees voluntarily chose to skip ... breaks." Alberts v. Aurora 2 Behavioral Health Care, 241 Cal. App. 4th 388, 410 (2015) ("[i]f an employer fails to provide 3 legally compliant meal or rest breaks, the court may not conclude employees voluntarily chose to 4 skip those breaks."); accord Brinker 53 Cal. 4th at 1033 ("No issue of waiver ever arises for a rest 5 break that was required by law but never authorized; if a break is not authorized, an employee has 6 no opportwllty to decline to take it."). 7 23. Further, even an employer who maintains an otherwise compliant rest period 8 policy, "reminded their employees of their availability-and the importance--of taking breaks on 9 a daily basis, and even went so far as to conduct regular audits to ensure that employees were I 0 being offered rest breaks" will still be liable for rest period violations if the employees were II provided non-compliant rest periods. Amaro v. Gerawan Farming, Inc., 2016 U.S. Dist. LEXIS 12 66842 * (E.D. Cal. May 19, 2016) aff'd Amaro v. Gerawan, 2016 U.S. Dist. LEXIS 112540,2016 13 WL 4440966, at *II (E.D. Cal. Aug. 22, 2016); rev. denied by 9th Cir. Case No. 0:16-23f-80120 14 (9th Cir. Nov. 16, 2016). 15 24. Here, again, Plaintiff, Rest Period Subclass Members, and the Rest Period 16 Aggrieved Employees were subject to common policies that required them to stay on premises 17 throughout their shifts. As a result, neither Plaintiff, nor the Rest Period Subclass Members, nor 18 the Rest Period Aggrieved Employees were ever provided with a rest period free from all duties, 19 in violation of the Wage Order. 20 25. Further, as noted above, pursuant to Defendant's policies, Plaintiff, the Meal 21 Period Subclass Members, and the Meal Period Aggrieved Employees were required to take on- 22 duty meal periods. 23 26. "An on-duty meal period is pennitted only when the nature of the work prevents 24 an employee from being relieved of all duty and the parties agree in writing to an on-duty paid 25 meal break." Lubin v. The Wackenhut Cotp. (2016) 5 Cal. App. 5th 926, 932.) The written 26 agreement must include a provision allowing the employee to revoke it at any time. !d. Here, 27 Plaintiff and the Class· Members were never asked to sign any such on-duty meal period 28 agreement. 6 CLASS AND REPRESENTATIVE ACTION COMPLAINT Case 3:18-cv-05821 Document 1-2 Filed 09/21/18 Page 11 of 29 27. Generally, the DLSE and courts have "found that the nature of the work exception 2 . applies: '(I) where the work has some particular external force that requires the employee to be 3 on duty at all times, and (2) where the employee is the sole employee of a particular employer." 4 Jd. at p. 945; Abdullah v. U.S. Security Associates, lfenc. (9th Cir. 2013) 731 F.3d 952, 958-959.) 5 "[I]t is the employer's obligation to detennine whether the nature of the work prevents an 6 employee from being relieved before requiring an employee to take an on-duty meal period." 7 Lubin, 5 Cal. App. 5th at p. 946.) Nor may an employer "discharge its duty by arguing that its 8 clients who requested on-duty meal periods determined that the nature of the work prevented 9 officers from being relieved of all duty." Jd. at p. 947; Benton, 220 Cal. App. 4th at p. 729.) 10 28. Here, there was no "nature of the work" exception. Plaintiff, the Meal Period II Subclass Members, and Meal Period Aggrieved Employees are employed by ESA, which owns 12 and operates over sixty hotels throughout the State of California, and employs hundreds of 13 employees. In short, there is no reason why ESA could not overlap employee schedules such that 14 Plaintiff, the Meal Period Aggrieved Employees, and the Meal Period Subclass Members could 15 take meal periods free and be relieved of all duties. 16 29. Labor Code§ 226.7 provides "an employer shall not require an employee to work 17 during a meal or rest or recovery period mandated pursuant to an applicable statute, or applicable 18 regulation, standard, or order of the Industrial Welfare Commission ("IWC"). Similarly, under 19 IWC Wage Order 5-2001 prohibits an employer from "employ[ing] any person for a work period 20 of more than five (5) hours without a meal period of not less than 30 minutes. IWC Wage Order 21 5-200 I further obligates employers to provide an employee to "pay the employee one (I) hour of 22 pay at the employee's regular rate of compensation for each workday that the meal period is not 23 provided. Accordingly, for each day that Plaintiff, the Meal Period Aggrieved Employees, and the 24 Meal Period Subclass Members did not receive compliant meal periods, they are entitled to 25 receive meal period premiums pursuant to Labor Code § 226.7 and Wage Order 5-200 I. 26 30. During the Class Period and the PAGA Period, Plaintiff, the Meal Period Subclass 27 Members, and all Meal Period Aggrieved Employees were not compensated with one (I) hours' 28 worth of pay at their regular rate of compensation when they were not provided with a compliant 7 CLASS AND REPRESENTATIVE ACTION COMPLAINT Case 3:18-cv-05821 Document 1-2 Filed 09/21/18 Page 12 of 29 rest period or a compliant meal period or at the proper rate based upon Defendants' unlawful 2 compensation policies detailed above. 3 31. Labor Code § 226(a)(J), (2), and (5), requires employers semimonthly or at the 4 time or each payment of wages, furnish each of his or her employees, an accurate itemized 5 statement in writing showing the gross wages earned, the total hours worked by the employee, 6 and the net wages earned during the pay period. 7 32. From at least May 23, 2017 through the present, Defendants knowingly and 8 intentionally failed to issue accurate and complete itemized wage statements in writing to 9 Plaintiff, the Class Members, and all Aggrieved Employees that accurately indicate the gross I 0 wages earned, total hours worked by the employee and the net wages earned during the pay II period because those wage statements did not include compensation for rest break premiums and 12 meal break premiums, as required by Cal. Labor Code§ 226.7. 13 33. Due to Defendants' failure to provide employees with lawful off-duty rest periods, 14 lawful off-duty meal periods, and its improper on-duty meal and rest period policy as detailed 15 above, the wage statements issued by the Defendants to Plaintiff, the Class Members and the 16 Aggrieved Employees further do not indicate the correct amount of gross·wages earned, total 17 hours worked or the net wages earned the pay period in violation of Labor Code § 226(a)(J), (2) 18 and (5). Thus, Plaintiff is an aggrieved employee within the meaning of PAGA and Defendants 19 have violated Labor Code § 226(a)( I), (2), and (5) with respect to Plaintiff, the Class, and all 20 aggrieved employees. 21 34. Plaintiff fully and completely exhausted her administrative remedies under PAGA 22 prior to proceeding with this action. On May 23, 2018, Plaintiff filed her PAGA Notice online 23 with the Labor Workforce Development Agency ("LWDA'') and sent a letter by certified mail to 24 Defendants setting forth the facts and theories of the violations alleged against Defendants, as 25 prescribed by Labor Code§ 2698 el seq. On August 15,2018, Plaintiff filed her amended PAGA 26 Notice online with the Labor workforce Development Agency ("LWDA") and sent a letter by 27 certified mail to Defendants setting forth further facts and theories of the violations alleged 28 against Defendants, as prescribed by Labor Code§ 2698 et seq. As required by PAGA, Plaintiff 8 CLASS AND REPRESENTATIVE ACTION COMPLAINT Case 3:18-cv-05821 Document 1-2 Filed 09/21/18 Page 13 of 29 submitted the $75.00 filing fee with the LWDA by regular mail. Pursuant to Labor Code § 2 2699.3(a)(2)(A), no notice was received by Plaintiff from the LWDA evidencing its intention to 3 investigate within sixty-five (65) calendar days of the postmark date of the PAGA notice. Plaintiff 4 is therefore, entitled to commence and proceed with a civil action pursuant to Labor Code § 2699. 5 6 7 8 9 10 II 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 III. CLASS ACTION ALLEGATIONS 35. Plaintiff brings this action, on behalf of herself and all others similarly situated, as a class action pursuant to Code of Civil Procedure § 382. Plaintiff seeks to represent Class composed of and defined as: all non-exempt hourly individuals who are or were employed by ESA Management, LLC or its predecessor or merged entities in the State of California, at any time from four years prior to the filing of this Complaint and ongoing. In addition, Plaintiff seeks to represent the following subclasses: Rest Period Subclass: all Class Members who worked a shift that lasted longer than 3.5 hours at any time from four years prior to the filing of this Complaint and ongoing. Meal Period Subclass: all Class Members who worked a shift that lasted longer than 5 hours at any time from four years prior to the filing of this Complaint and ongoing. Waiting Time Sublcass: all Class Members whose employment with Defendant ends within the last 3 years. 36. This action has been brought and may properly be maintained as a class action under Code of Civil Procedure§ 382 because there is a well-defined community of interest in the litigation, the proposed class is easily ascertainable, and Plaintiff, is a proper representative of the Class: a. Numerosity: The potential members of the Class and Subclasses as defined are so numerous that joinder of all the members of the Class and Subclasses is impracticable. While the precise number of Class Members and Subclass Members have not been detennined at this time, Plaintiff is infonned and believe that Defendants has, on average, during the Class Period employed over 500 Class Members and Subclass Members in California subject to Defendants' on-duty meal and rest period policy. Due to employee turnover, the total number of 9 CLASS AND REPRESENTATIVE ACTION COMPLAINT Case 3:18-cv-05821 Document 1-2 Filed 09/21/18 Page 14 of 29 Class Members who are no longer employed by Defendants is estimated to be more than I ,000. 2 nie Class Members are dispersed throughout California. Joinder of all members of the proposed 3 classes is therefore not practicable. 4 b. Commonality: There are questions of law and fact common to Plaintiff and 5 the Class that predominate over any questions affecting only individual members of the Class. 6 These common questions of law and fact include, without limitation: 7 i. Whether Defendants violated Labor Code section 226.7 and Section 12 of 8 Wage Order 5-200 I by not relieving the Rest Period Subclass Members of all duties during their 9 statutorily mandated rest periods; 10 ii. Whether Defendants violated Labor Code section 226.7 failing to pay one II hour of premium pay to each member of the Rest Period Subclass for each day that an off-duty rest 12 break was not provided in California during the Class Period; 13 iii. Whether Defendants violated Labor Code section 226.7, 512, and Section II 14 IWC Wage Order 5-2001 by not relieving the Meal Period Sublass Members of all duties during the 15 statutorily mandated meal periods; 16 iv. Whether Defendants violated Labor Code section 226.7 failing to pay one I 7 hour of premium pay to each member of the Meal Period Subclass for each day that an off-duty meal 18 period was not provided in California during the Class Period; 19 v. Whether Defendants failed to provide Plaintiff and the members of the 20 Class complete wage statements with infonnation included about their total hours worked, the 21 gross wages earned, the net wages paid and premium payments for non-compliant meal and rest 22 periods in violation of Labor Code Section 226(a) and 226.3; 23 vi. Whether Defendants failed to pay all wages owed to Plaintiff and the 24 members of the Waiting Time Penalty Class upon tennination in violation of Cal. Labor Code 25 §§201-203. 26 VII. Whether Defendants engaged in an unfair practice and violated section 27 17200 of the California Business and Professions Code by failing to provide Plaintiff and the Rest· 28 Period Subclass Members with rest periods free of all duties; 10 CLASS AND REPRESENTATIVE ACTION COMPLAINT Case 3:18-cv-05821 Document 1-2 Filed 09/21/18 Page 15 of 29 I vn1. Whether Defendants engaged in an unfair practice and violated section 2 17200 et seq. of the California Business and Professions Code by failing to provide pay rest break 3 premiums for all on-duty rest breaks taken by members of the Rest Period Subclass in violation of 4 Section 12 ofiWCWage Order No.5; 5 ix. Whether Defendants engaged m an unfair practice and violated section 6 17200 of the California Business and Professions Code by failing to provide Plaintiff and the 7 Meal Period Subclass Members with meal periods free of all duties; 8 x. Whether Defendants engaged in an unfair practice and violated section 9 17200 et seq. of the California Business and Professions Code by failing to provide pay meal 10 period premiums for all on-duty meal periods taken by members of the Meal Period Subclass in II violation of Section II of!WC Wage Order No. 5; 12 xi. Whether Plaintiff and the Class are entitled to restitution under Business 13 and Professions Code § 17200 et seq.; 14 xii. The proper formula(s) for calculating damages, interest, and restitution 15 owed to Plaintiff and the Class Members; and 16 17 xn1. The nature and extent of class-wide damages. c. Typicality: Plaintiffs claims are typical of the claims of the Class. Both 18 Plaintiff and Class Members sustained injuries and damages, and were deprived of property 19 rightly belonging to them, arising out of and caused by Defendants' common course of conduct in 20 violation of law as alleged herein, in similar ways and for the same types of expenses. 21 d. Adequacy of Representation: Plaintiff is a member of the Class and will 22 fairly and adequately represent and protect the interests of the Class and Class Members. 23 Plaintiffs interests do not conflict with those of Class and Class Members. Counsel who 24 represents Plaintiff are competent and experienced in litigating large wage and hour class actions, 25 including numerous cases virtually identical to this one, and other employment class actions, and 26 will devote sufficient time and resources to the case and otherwise adequately represent the Class 27 and Class Members. 28 e. Superiority of Class Action: A class action is superior to other available II CLASS AND REPRESENTATIVE ACfiON COMPLAINT Case 3:18-cv-05821 Document 1-2 Filed 09/21/18 Page 16 of 29 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 means for the fair and efficient adjudication of this controversy. Individual joinder of all Class Members is not practicable, and questions of law and fact common to the Class predominate over any questions affecting only individual members of the Class. Each Class Member has been damaged or may be damaged in the future by reason of Defendants' unlawful policies and/or practices as described herein. Certification of this case as a class action will allow those similarly situated persons to litigate their claims in the manner that is most efficient and economical for the parties and the judicial system. CertifYing this case as a class action is superior because it allows for efficient and full disgorgement of the ill-gotten gains Defendants have enjoyed by maintaining its unlawful compensation policies and will thereby effectuate California's strong public policy of protecting employees from deprivation or offsetting of compensation earned in their employment. If this action is not certified as a Class Action, it will be impossible as a practical matter, for many or most Class Members to bring individual actions to recover monies unlawfully withheld from their lawful compensation due from Defendants, due to the relatively small amounts of such individual recoveries relative to the costs and burdens oflitigation. FIRST CAUSE OF ACTION FAILURE TO PROVIDE OFF-DUTY REST PERIODS AND PAY MISSED REST PERIOJ> PREMIUMS (Cal. Labor Code§§ 226.7; Section 12 OF IWC Wage Order No. 5-2001] On behalf of Plaintiff and the Rest Period Subclass Against All Defendants 37. Plaintiff re-alleges and incorporates by reference each and every allegation set 19 forth in the preceding paragraphs. 20 38. The actionable period for this cause of action is three years prior to the filing of 21 this Complaint through the present, and on-going until the violations are corrected, or the class is 22 certified. 23 39. Under IWC Wage Order 5-200 I an employer must authorize and permit all 24 employees to take ten (I 0) minute duty free rest periods for every major fraction of four hours 25 worked. Labor Code § 226.7 provides "an employer shall not require an employee to work 26 during a meal or rest or recovery period mandated pursuant to an applicable statute, or applicable 27 regulation, standard, or order of the Industrial Welfare Commission." By operation of law, 28 Defendants had a duty to provide Plaintiff and Rest Period Subclass Members with rest periods 12 CLASS AND REPRESENTATIVE ACTION COMPLAINT Case 3:18-cv-05821 Document 1-2 Filed 09/21/18 Page 17 of 29 I completely free of all duties, and enable Plaintiff and the Rest Period Subclass Members to leave 2 the worksite during those rest periods if they so desired. See Augustus v. ABM Security Services, 3 Inc. (2016) 2 Cal. 5th 257, 269 (concluding that "during rest periods employers must relieve 4 employees of all duties and relinquish control over how employees spend their time."). In 5 Augustus, the court expressly rejected the employer's assertion that it could provide an on-duty 6 rest period to employees who worked as security guards and further explained "that employers 7 [must] relinquish any control over how employees spend their break time, and relieve their 8 employees of all duties." /d. at 273. But in violation of §226.7, and Wage Order 5-2001, 9 Defendants did not provide Plaintiff, Rest Period Subclass Members with rest periods completely I 0 free of all duties, nor did Defendants enable Plaintiff or the Rest Period Subclass Members to ll leave the worksite during any rest period. 12 40. By way of their policies requiring employees to stay on site during their shifts, and 13 stay on-call during their rest periods, Defendants failed to provide Plaintiff and the Rest Period 14 Subclass Members with duty-free rest periods of not less than ten (10) minutes for every major 15 fraction of four (4) hours worked. Specifically, Defendant failed to have a lawful rest period 16 policy in place that informed Plaintiff and the Rest Period Subclass Members of their right to take 17 duty-free rest periods for shifts that were a major fraction of a four (4) hour work period and to 18 make duty-free rest breaks available to these employees. Further, Defendants did not permit 19 Plaintiff or the Rest Period Subclass Members to leave the premises during rest periods as 20 required by Labor Code§ 226.7 and Wage Order 5-2001 and in violation of Augustus, 2 Cal. 5th 21 at 269. Accordingly, as a result of its rest period policies, Defendants regularly and consistently 22 failed to authorize and penn it Plaintiff and the Rest Period Subclass Members to take compliant 23 off duty rest periods. 24 41. Moreover, it was often impossible for Plaintiff and the Rest Period Subclass 25 Members to take a rest period because of Defendants' policy and practice of understaffing 26 worksites. As a result of Defendants' understaffing policies and practices, Plaintiff and the Rest 27 Period Subclass Members were required to work shifts where they were the sole employee on- 28 duty, and thus were required to remain on-duty to assist Defendants' customers, housekeeping 13 CLASS AND REPRESENTATIVE ACTION COMPLAINT Case 3:18-cv-05821 Document 1-2 Filed 09/21/18 Page 18 of 29 staff, or management. On these shifts, in accordance with Defendants' policies, Plaintiff and the 2 Rest Period Subclass Members were not relieved of their duties and were required to stay onsite 3 at all times during their shifts. 4 42. In addition to failing to authorize and pennit compliant rest periods, and instead 5 requiring on-premises rest breaks, Plaintiff and the Rest Period Subclass Members were not 6 compensated with one (I) hours' worth of pay at their regular rate of compensation when they 7 were not provided with a compliant rest period in accordance with Labor Code § 226.7(b) and 8 IWC Wage Order 5-2001 Section 12(8). 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 43. As a result of the unlawful acts of Defendants, Plaintiff and the Rest Period Subclass Members were not provided off duty rest periods, and are entitled to recovery under Cal. Labor Code §226.7 in the amount of one additional hour of pay at the employee's regular rate of compensation for each work period during each day in which Defendants failed to provide duty- free rest periods as required by California law. SECOND CAUSE OF ACTION FAILURE TO PROVIDE OFF-DUTY MEAL BREAKS AND PAY MISSED MEAL BREAK PREMIUMS (Cal. Labor Code §§ 226. 7, 512; Section 11 Of IWC Wage Order No. 5)) On Behalf of Plaintiff and the Meal Period Subclass Against All Defendants 44. Plaintiff incorporates all paragraphs above as though fully set forth herein. 45. 64. At all times relevant herein, Section II 050 of 8 California Code of Regulations provided in relevant part: A. No employer shall employ any person for a work period of more than five (5) hours without a meal period of not less than 30 minutes, except that when a work period of not more than six (6) hours will complete the day's work the meal period may be waived by mutual consent of the employer and the employee. B. An employer may not employ an employee for a work period of more than ten (I 0) hours per day without providing the employee with a second meal period of not less than 30 minutes, except that if the total hours worked is no more than 12 hours, the second meal period may be waived by mutual consent of the employer and the employee only if the first meal period was not waived. C. Unless the employee is relieved of all duty during a 30-minute meal period, the meal period shall be considered an "on duty" meal period and counted as time worked. An "on duty" meal period shall be pennitted only when the nature of the work prevents an employee from being relieved of all duty and when by written 14 CLASS AND REPRESENTATIVE ACTION COMPLAINT Case 3:18-cv-05821 Document 1-2 Filed 09/21/18 Page 19 of 29 I 2 3 4 5 6 agreement between the parties an on-the-job paid meal period is agreed to. The written agreement shall state that the employee may, in writing, revoke the agreement at any time. D. If an employer fails to provide an employee a meal period in accordance with the applicable provisions of this order, the employer shall pay the employee one (I) hour of pay at the employee's regular rate of compensation for each workday that the meal period is not provided. 46. Likewise, California Labor Code Section 512(a): An employer may not employ an 7 employee for a work period of more than five hours per day without providing the employee with 8 a meal period of not less than 30 minutes, except that if the total work period per day of the 9 employee is no more than six hours, the meal period may be waived by mutual consent of both 10 the employer and employee. An employer may not employ an employee for a work period of II more than I 0 hours per day without providing the employee with a second meal period of not less 12 than 30 minutes, except that if the total hours worked is no more than 12 hours, the second meal 13 period may be waived by mutual consent of the employer and the employee only if the first meal 14 period was not waived. 15 47. California Labor Code Section 226.7 requires an employer to pay an additional 16 hour of compensation for each meal period the employer fails to provide in accordance with the 17 applicable statute or Industrial Welfare Commission Wage Order. 18 48. During Plaintiffs employment, Defendants failed to provide Plaintiff and other 19 members of the Meal Period Subclass with meal periods in accordance with the applicable 20 Industrial Welfare Commission Wage Order and California Labor Code Sections 226.7 and 512. 21 Specifically, Defendants violated Labor Code § 512 and IWC Wage Order 5-2001 § II by 22 requiring Plaintiff and the Meal Period Subclass Members to take their meal periods on-site and 23 on-call, and thus were not relieved of all duties during their meal periods. 24 49. Pursuant to California Labor Code Section 226.7, Plaintiff and other members of 25 the Meal Period Subclass are entitled to damages in an amount equal to one (I) hour of wages per 26 missed meal period, in a sum to be proven at trial. 27 II 28 II 15 CLASS AND REPRESENTATIVE ACTION COMPLAINT Case 3:18-cv-05821 Document 1-2 Filed 09/21/18 Page 20 of 29 2 3 4 5 6 7 8 9 10 II 12 13 14 15 16 17 18 19 THIRD CAUSE OF ACTION FAILURE TO ISSUE ACCURATE ITEMIZED WAGE STATEMENTS [Cal. Labor Code§§ 226 And 226.3[ On Behalf of Plaintiff and Wage Statement Subclass Members Against All Defendants 50. Plaintiff re-alleges and incorporates by reference each and every allegation set forth in the preceding paragraphs. 51. The actionable period for this cause of action is one year prior to the filing of this Complaint through the present, and on-going until the violations are corrected, or the subclass is certified. 52. Section 226(a) of the California Labor Code provides, in relevant part: Every employer shall.... furnish each of his or her employees ... an accurate statement in writing showing (I) gross wages earned, (2) total hours worked by the employee, except for any employee whose compensation is solely based in a salary and who is exempt from payment of overtime under subdivision (a) of Section 515 or any applicable order of the Industrial Welfare Commission, (3) the 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- Local Civil Rules and use proper forms. You can obtain legal information, view the rules and receive forms, free of charge, from the Self-Help Center at 201 North First Street, San Jose (408-882-2900 x-2926). • State Rules and Judicial Council Forms: .www.courtinfo.ca.govlforms and www.courtinfo.ca.govlrules • Local Rules and Forms: http://www.sccsuoeriorcourt.orglcivillrule1toc.htm CASE MANAGEMENT CONFERENCE (CMC): You must meet with the other parties and discuss the case, in person or by telephone at least 30 calendar days before the CMC. You must also fill out, file and serve a Case Management Statement (Judicial Council form CM-11 0) at least 15 calendar days before the CMC. You or your attorney must appear at the CMC. You may ask to appear by telephone- see Local Civil Rule 8. Your Case Management Judge is: Hon. Brian C. Walsh Department:_1 ______ _ The 1~ CMC is scheduled for: (Completed by Clerk of Court) Date: 12/14/18 Time: 10:00am in Department: __ 1_____ _ The next CMC is scheduled for: (Completed by party if the 1" CMC was continued or has passed) Date: _______ Time: ______ in Department: ______ _ ALTERNATIVE DISPUTE RESOLUTION (ADR): If all parties have appeared and filed a completed ADR Stipulation Form (local form CV-5008) at least 15 days before the CMC, the Court will cancel the CMC and mail notice of an ADR Status Conference. Visit the Court's website at www.sccsuperiorcourt.orglcivii/ADRI or call the ADR Administrator (408-882-2100 x-2530) for a list of ADR providers and their qualifications, services, and fees. WARNING: Sanctions may be imposed if you do not follow the California Rules of Court or the Local Rules of Court. CV-5012 REV 08/01116 CIVIL LAWSUIT NOTICE Page 1 of 1 EXHIBIT E Case 3:18-cv-05821 Document 1-5 Filed 09/21/18 Page 1 of 13 Case 3:18-cv-05821 Document 1-5 Filed 09/21/18 Page 2 of 13 1 LINDBERGH PORTER, Bar No. 100091 KURT R. BOCKES, Bar No. 171647 2 DEBORAH OLALEYE, BarNo. 315838 LITTLER MENDELSON, P.C. 3 333 Bush Street 34th Floor 4 San Francisco, CA 94104 Telephone: 415.433.1940 5 Fax No.: 415.399.8490 6 Attorneys for Defendant ESA MANAGEMENT, LLC 7 8 9 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA 10 11 12 13 14 SANDRA ARIZMENDI, an individual, on behalf of the State of California, as a private attorney general, and on behalf of all others similarly situated, Plaintiff, v. ESA Management, LLC, a Delaware 15 Limited Liability Company, and DOES 1 to 50, inclusive, 16 17 18 19 20 21 22 23 24 25 26 27 28 LITTLER MENDELSON, P.C. 3J3SustJStreet 34th Floor Defendants. Case No. 18CV333342 DEFENDANT ESA MANAGEMENT, LLC'S ANSWER TO PLAINTIFF'S COMPLAINT ASSIGNED FOR ALL PURPOSES TO JUDGE HON. BRIAN C. WALSH-DEPT. 1 Case No. 18CV333342 San Franc1sco. CA 94104 4154331940 DEFENDANT'S ANSWER TO COMPLAINT Case 3:18-cv-05821 Document 1-5 Filed 09/21/18 Page 3 of 13 1 Defendant ESA MANAGEMENT, LLC ("Defendant") hereby answers the 2 Complaint filed by Plaintiff Sandra Arizmendi ("Plaintiff') in the above-referenced action as 3 follows: 4 I. 5 GENERAL DENIAL 6 Pursuant to section 431.30(b) of the California Code of Civil Procedure, Defendant 7 denies, generally and specifically, each and every allegation contained in Plaintiffs Complaint. 8 Defendant further denies, generally and specifically, that Plaintiff is entitled to the relief requested, 9 or that Plaintiff has been or will be damaged in any sum, or at all, by reason of any act or omission 10 on the pmi of Defendant or on the part of Defendant's agents, representatives or employees. 11 Defendant further denies that this case is appropriate for class treatment. 12 II. 13 AFFIRMATIVE AND OTHER DEFENSES 14 In further answer to the Complaint, and as separate and distinct affirmative and other 15 defenses, Defendant alleges the following defenses. In asserting these defenses, Defendant does not 16 admit any of the allegations of the Complaint and does not assume the burden of proof as to any 17 matter that, as a matter of law, is Plaintiffs burden to prove. Defendant intends to rely upon any 18 additional defenses that become available or apparent during pretrial proceedings and discovery in 19 this action and hereby reserves the right to amend this Answer to assert all such further defenses. 20 Defendant also expressly denies the existence of any alleged putative class of individuals that 21 Plaintiff purports to represent in this lawsuit. Defendant thus expressly denies the existence of any 22 such group each and every time it references "Plaintiff' as if fully set forth therein. All defenses 23 asserted are also asserted against the putative class, except where the claim is asserted only on behalf 24 of the named Plaintiff. 25 FIRST AFFIRMATIVE DEFENSE 26 AS A FIRST, SEPARATE AND AFFIRMATIVE DEFENSE, Defendant asserts that 27 Plaintiffs Complaint fails to state facts sufficient to constitute any cause of action against 28 Defendant. LITTLER MENDELSON, P.C. 333BushS!reel 341hF!oor San Fran~1sco, CA 94104 4154331940 2. Case No. 18CV333342 DEFENDANT'S ANSWER TO COMPLAINT Case 3:18-cv-05821 Document 1-5 Filed 09/21/18 Page 4 of 13 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 LITTLER MENDELSON, P.C. 333 Bu~h Street 341hF!oor San FHinCISCO, CA 94104 4154331940 SECOND AFFIRMATIVE DEFENSE AS A SECOND, SEPARATE AND AFFIRMATIVE DEFENSE, Plaintiff's Complaint, and each and every claim for relief therein, are barred in whole or in part by the applicable statutes of limitations, including but not limited to, California Code of Civil Procedure sections 338 and 340, California Labor Code section 203(b), and California Business and Professions Code § 17208. THIRD AFFIRMATIVE DEFENSE AS A THIRD, SEPARATE AND AFFIRMATIVE DEFENSE, Plaintiff's claims are barred, in whole or in part, because Plaintiff, and/or the members of the putative class she purports to represent, failed to exhaust their administrative remedies. FOURTH AFFIRMATIVE DEFENSE AS A FOURTH, SEPARATE AND AFFIRMATIVE DEFENSE, Plaintiff's claims are barred, in whole or in part, because a representative action of the claims alleged in the Complaint would violate due process under the United States and California Constitutions. FIFTH AFFIRMATIVE DEFENSE AS A FIFTH, SEPARATE AND AFFIRMATIVE DEFENSE, Defendant alleges that some or all of the disputed time for which Plaintiff seeks to recover wages purportedly owed is not compensable pursuant to the doctrine of de minimis non curat lex. SIXTH AFFIRMATIVE DEFENSE AS A SIXTH, SEPARATE AND AFFIRMATIVE DEFENSE, Plaintiff's claims under California Business and Professions Code § 17200, et seq., are barred because Plaintiff has an adequate remedy at law. SEVENTH AFFIRMATIVE DEFENSE AS A SEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE, pursuant to California Business and Professions Code§ 17200, et seq., Plaintiff's claims for restitution are barred to the extent that these claims constitute damages and/or penalties. EIGHTH AFFIRMATIVE DEFENSE AS AN EIGHTH, SEPARATE AND AFFIRMATIVE DEFENSE, Defendant alleges 3. Case No. 18CV333342 DEFENDANT'S ANSWER TO COMPLAINT Case 3:18-cv-05821 Document 1-5 Filed 09/21/18 Page 5 of 13 1 that Plaintiffs prayer for restitution under California Business and Professions Code § 17200 et seq., 2 is batTed with respect to any alleged violations that have discontinued, ceased, or are not likely to 3 reoccur. 4 NINTH AFFIRMATIVE DEFENSE 5 AS A NINTH, SEPARATE AND AFFIRMATIVE DEFENSE, Plaintiffs claim for 6 statutory penalties under California Labor Code §203 must fail because any failure to pay wages 7 allegedly due was not willful. 8 TENTH AFFIRMATIVE DEFENSE 9 AS A TENTH, SEPARATE AND AFFIRMATIVE DEFENSE, Plaintiffs claim for 10 statutory penalties under California Labor Code §203 must fail because any nonpayment of wages 11 alleged in the Complaint is the result of a good faith dispute. 12 ELEVENTH AFFIRMATIVE DEFENSE 13 AS AN ELEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE, any recovery 14 on Plaintiffs Complaint is barred, in whole or in part, to the extent that Plaintiff and/or members of 15 the putative class she purports to represent, by reason of their acts, conduct, and/or omissions, have 16 waived their rights, if any, to obtain the relief sought in the Complaint. 17 TWELFTH AFFIRMATIVE DEFENSE 18 AS A TWELFTH, SEPARATE AND AFFIRMATIVE DEFENSE, any recovery on 19 Plaintiff's Complaint is barred, in whole or in part, to the extent that Plaintiff and/or members of the 20 putative class she purports to represent, by reasons of their acts, conduct, and/or omissions, are 21 estopped from obtaining the relief sought in the Complaint. 22 THIRTEENTH AFFIRMATIVE DEFENSE 23 AS A THIRTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE, Defendant is 24 informed and believes that a reasonable opportunity for investigation and discovery will reveal, and 25 on that basis alleges, that Plaintiffs claims are barred, in whole or in part, by the doctrine of laches. 26 FOURTEENTH AFFIRMATIVE DEFENSE 27 AS A FOURTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE, Defendant is 28 informed and believes that a reasonable opportunity for investigation and discovery will reveal, and umE~,~~~.~~~~!'.?N, P c 4. Case No. 18CV333342 34th Floor San FranCI~Co, CA 94104 ''"'""' DEFENDANT'S ANSWER TO COMPLAINT Case 3:18-cv-05821 Document 1-5 Filed 09/21/18 Page 6 of 13 1 on that basis alleges, that Plaintiff and/or the members of the putative class she purports to represent 2 would be unjustly enriched if allowed to recover anything from Defendant. 3 FIFTEENTH AFFIRMATIVE DEFENSE 4 AS A FIFTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE, Defendant 5 alleges that all or portions of the claims of Plaintiff and the putative class members are barred by the 6 defense of release, or accord and satisfaction. 7 SIXTEENTH AFFIRMATIVE DEFENSE 8 AS A SIXTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE, Defendant is 9 informed and believes that a reasonable opportunity for investigation and discovery will reveal, and 10 on that basis alleges, that Plaintiffs and the putative class members' claims are barred and/or their 11 right to recovery is reduced by their failure to mitigate their damages. 12 SEVENTEENTH AFFIRMATIVE DEFENSE 13 AS A SEVENTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE, Defendant 14 alleges that each purpmied cause of action contained in the Complaint, or some of the causes of 15 action, are barred, or any recovery should be reduced pursuant to the avoidable consequences 16 doctrine because Plaintiff, and/or the members of the alleged putative class she seeks to represent, 17 unreasonably failed to pursue the preventive and corrective oppmiunities provided to them by 18 Defendant and the reasonable use of Defendant's procedures would have prevented some or all of 19 the harm she or they allegedly suffered. 20 EIGHTEENTH AFFIRMATIVE DEFENSE 21 AS AN EIGHTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE, Plaintiff 22 and the putative class members lack standing to bring their claims as to all or a portion of the claims 23 alleged in the Complaint. 24 NINETEENTH AFFIRMATIVE DEFENSE 25 AS A NINETEENTH, SEPARATE AND AFFIRMATIVE DEFENSE, Defendant 26 asserts that all of Plaintiffs claims on behalf of absent putative class members fail because Plaintiff 27 cannot meet her burden of demonstrating that each requirement of class certification, including but 28 not limited to ascertainability, adequacy, typicality, commonality, predominance, and superiority, is LITTLER MENDELSON, P.C. JJJBushStreat J~!h Floo1 s~n FranCISCO, CA 94104 4154331940 5. Case No. 18CV333342 DEFENDANT'S ANSWER TO COMPLAINT Case 3:18-cv-05821 Document 1-5 Filed 09/21/18 Page 7 of 13 1 met here, and because certifying a class in the circumstances of this case would violate Defendant's 2 rights to due process under the law. To the extent that class certification is nonetheless granted at a 3 future date, Defendant alleges and asserts each of the defenses previously stated herein against each 4 and every putative class member. 5 TWENTIETH AFFIRMATIVE DEFENSE 6 AS A TWENTIETH, SEPARATE AND AFFIRMATIVE DEFENSE, Adjudication 7 of this action on a class-wide basis, as applied to the facts and circumstances of this case, would 8 constitute a denial of Defendant's rights to trial by jury and to substantive and procedural due 9 process, in violation ofthe Fourteenth Amendment of the United States Constitution. See, e.g., Wal- 10 Martv. Dukes, 131 S. Ct. 2541 (2011). 11 TWENTY-FIRST AFFIRMATIVE DEFENSE 12 AS A TWENTY-FIRST, SEPARATE AND AFFIRMATIVE DEFENSE, Defendant 13 is informed and believes that a reasonable opportunity for investigation and discovery will reveal, 14 and on that basis alleges, that the Complaint and each cause of action set forth therein, or some of 15 them, cannot be maintained against Defendant because the losses or harms alleged by Plaintiff or 16 any putative class member resulted from the acts or omissions of Plaintiff or the putative class 17 member. 18 TWENTY -SECOND AFFIRMATIVE DEFENSE 19 AS A TWENTY-SECOND, SEPARATE AND AFFIRMATIVE DEFENSE, 20 Defendant alleges that Plaintiff lacks standing to bring claims for any civil penalties on behalf of 21 others because she is not an "aggrieved employee," pursuant to the Private Attorneys General Act, 22 Labor Code section 2698 et seq. 23 TWENTY-THIRD AFFIRMATIVE DEFENSE 24 AS A TWENTY-THIRD, SEPARATE AND AFFIRMATIVE DEFENSE, Defendant 25 alleges that Plaintiff failed to provide the Labor Workforce Development Agency proper notification 26 of the claims and/or the names of all of the "aggrieved employees" on whose behalf she intends to 27 seek penalties, pursuant to the Private Attorneys General Act, Labor Code section 2698 et seq. and 28 failed to identify them in her Complaint. LITTLER MENDELSON, P.C. 333Bush51fee1 34th Floor San Franc,~co. CA 94104 4154331940 6. DEFENDANT'S ANSWER TO COMPLAINT Case No. l8CV333342 Case 3:18-cv-05821 Document 1-5 Filed 09/21/18 Page 8 of 13 1 TWENTY-FOURTH AFFIRMATIVE DEFENSE 2 AS A TWENTY-FOURTH, SEPARATE AND AFFIRMATIVE DEFENSE, 3 Defendant alleges that any penalties awarded against it pursuant to the Private Attorneys General 4 Act, Labor Code section 2698 et seq., would be unjust, arbitrary, oppressive or confiscatory. 5 TWENTY-FIFTH AFFIRMATIVE DEFENSE 6 AS A TWENTY-FIFTH, SEPARATE AND AFFIRMATIVE DEFENSE, Defendant 7 alleges that it has substantially complied with all statutory obligations alleged in the Complaint and, 8 therefore, imposition of civil penalties under the Private Attorneys General Act, Labor Code section 9 2698, et seq., would be improper. 10 TWENTY -SIXTH AFFIRMATIVE DEFENSE 11 AS A TWENTY -SIXTH, SEPARATE AND AFFIRMATIVE DEFENSE, Defendant 12 alleges that, insofar as Defendant has never been cited by the Labor Commissioner, or received a 13 judgment against it in a court of law, with respect to any of Plaintiff's Labor Code claims, any civil 14 penalties awarded to Plaintiff under the Private Attorneys General Act, Labor Code section 2698, et 15 seq., must be limited to those penalties applicable to an initial violation. 16 TWENTY -SEVENTH AFFIRMATIVE DEFENSE 17 AS A TWENTY-SEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE, 18 Defendant alleges that to the extent Plaintiff seeks civil penalties pursuant to the Private Attorneys 19 General Act, Labor Code section 2698, et seq., such claims violate the Fifth, Fourteenth and Eighth 20 Amendments of the United States Constitution and also violate Article 1, sections 7 and 8 of the 21 California Constitution, including the prohibition against excessive fines. People ex rel Lockyer v. 22 R.J Reynolds Tobacco Co., 37 Cal. 4th 707 (2005). 23 TWENTY-EIGHTH AFFIRMATIVE DEFENSE 24 AS A TWENTY-EIGHTH, SEPARATE AND AFFIRMATIVE DEFENSE, 25 Defendant alleges that Plaintiff is not entitled to recovery of default civil penalties under California 26 Labor Code section 2699(±) for alleged violations of California Labor Code sections for which civil 27 penalties specifically are provided. 28 LITTLER MENDELSON, P.C. 3336ushS!reet 341hFioor San Fn1n~1SCO, CA 94104 4154331940 7. DEFENDANT'S ANSWER TO COMPLAINT Case No. I 8CV333342 Case 3:18-cv-05821 Document 1-5 Filed 09/21/18 Page 9 of 13 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 LITTLER MENDELSON, P.C. JJJBushStreel 34th Floor San Frane1~eo. CA 94104 4154331940 TWENTY -NINTH AFFIRMATIVE DEFENSE AS A TWENTY-NINTH, SEPARATE AND AFFIRMATIVE DEFENSE, Defendant alleges that the Complaint is barred because Plaintiff is not an adequate and proper representative of the allegedly "aggrieved employees" she seeks to represent. THIRTIETH AFFIRMATIVE DEFENSE AS A THIRTIETH, SEPARATE AND AFFIRMATIVE DEFENSE, Defendant alleges that the Complaint is barred because Plaintiff failed to satisfy a condition precedent to commencement of a civil claim under Labor Code section 2698 et seq. THIRTY-FIRST AFFIRMATIVE DEFENSE AS A THIRTY-FIRST, SEPARATE AND AFFIRMATIVE DEFENSE, Defendant alleges that the Complaint is barred because Plaintiff failed to adequately and properly exhaust administrative remedies required by Labor Code section 2699.3. THIRTY-SECOND AFFIRMATIVE DEFENSE AS A THIRTY-SECOND, SEPARATE AND AFFIRMATIVE DEFENSE, Defendant alleges that the Complaint is barred because neither Plaintiff and/or the allegedly "aggrieved employees" she seeks to represent suffered any actual injury. THIRTY-THIRD AFFIRMATIVE DEFENSE AS A THIRTY-THIRD, SEPARATE AND AFFIRMATIVE DEFENSE, Defendant alleges that the Complaint is barred because P AGA is unconstitutionally vague and overbroad as applied to the facts and circumstances of this case, and Plaintiffs Complaint is barred because the prosecution of this action by Plaintiff as a representative of other allegedly "aggrieved employees" would constitute a denial of Defendant's due process rights, both procedural and substantive, in violation of the Fourteenth Amendment of the United States Constitution and the Constitution and laws of the State of California. See, e.g., State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003); People ex rel Lockyer v. R.J Reynolds Tobacco Co., 37 Cal. 4th 707 (2005). THIRTY-FOURTH AFFIRMATIVE DEFENSE AS A THIRTY-FOURTH, SEPARATE AND AFFIRMATIVE DEFENSE, Defendant alleges that the Complaint is barred because P AGA is unconstitutional on the basis that it 8. Case No. 18CV333342 DEFENDANT'S ANSWER TO COMPLAINT Case 3:18-cv-05821 Document 1-5 Filed 09/21/18 Page 10 of 13 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 LITTLER MENDELSON, P.C. 333 Bu~h SHeet 341hF!oor San Francisco, CA 94104 4154331940 violates the separation of powers doctrine by empowering private attorneys to prosecute public claims, thereby impairing the judiciary's inherent power to regulate attorney conduct. THIRTY-FIFTH AFFIRMATIVE DEFENSE AS A THIRTY-FIFTH, SEPARATE AND AFFIRMATIVE DEFENSE, Defendant alleges that the Complaint is barred because P AGA authorizes recovery of penalties only for the violation of enumerated statutes within P AGA, the applicable Wage Order is not therein enumerated; and, therefore, no P AGA recovery should be allowed. THIRTY -SIXTH AFFIRMATIVE DEFENSE AS A THIRTY-SIXTH, SEPARATE AND AFFIRMATIVE DEFENSE, Plaintiff fails to properly state a claim for recovery of costs and attorneys' fees under California Code of Civil Procedure section 1021.5, or any other basis. THIRTY -SEVENTH AFFIRMATIVE DEFENSE AS A THIRTY-SEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE, Defendant alleges that that some or all of Plaintiffs claims, and those of certain putative class members are barred, in whole or in part, on the grounds of res judicata, issue preclusion, or judicial estoppel. THIRTY-EIGHTH AFFIRMATIVE DEFENSE AS A THIRTY-EIGHTH, SEPARATE AND AFFIRMATIVE DEFENSE, Defendant is informed and believes that further investigation and discovery will reveal, and on that basis alleges, that to the extent Plaintiff or putative class members are entitled to any additional compensation, which Defendant denies, such additional compensation must be offset by the amount of any compensation or other monies Plaintiff or putative class members received from Defendant in excess of the compensation owed them or previously paid to Plaintiff or putative class members for the same or similar claims. THIRTY-NINTH AFFIRMATIVE DEFENSE AS A THIRTY-NINTH, SEPARATE AND AFFIRMATIVE DEFENSE, Defendant alleges that to the extent Plaintiff or any putative class member failed to take their meal or rest breaks, it was because they: (1) voluntarily elected not to take meal periods provided to them by 9. Case No. 18CV333342 DEFENDANT'S ANSWER TO COMPLAINT Case 3:18-cv-05821 Document 1-5 Filed 09/21/18 Page 11 of 13 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 LITTLER MENDELSON, P.C. 333 Bu~h Street 341hFioor SBn F1anc1sco. CA 94104 4154331940 Defendant, (2) voluntarily chose not to take rest breaks that were authorized and permitted by Defendant, or (3) waived their right to meal periods or rest breaks. FORTIETH AFFIRMATIVE DEFENSE AS A FOFTIETH, SEPARATE AND AFFIRMATIVE DEFENSE, Defendant is informed and believes that a reasonable opportunity for investigation and discovery will reveal, and on that basis alleges, any damages suffered were the result of failure by Plaintiff or the putative class to comply with the reasonable expectations of Defendant or follow Defendant's reasonable instructions or policies. FORTY-FIRST AFFIRMATIVE DEFENSE AS A FORTY-FIRST, SEPARATE AND AFFIRMATIVE DEFENSE, Defendant alleges that any alleged failure to provide Plaintiff and/or any other putative class members with wage statements in conformity with California Labor Code section 226(a) or any other alleged violation of the California Labor Code was not knowing, intentional, or willful and was not brought to the attention of management, if any. FORTY-SECOND AFFIRMATIVE DEFENSE AS A FIRTY-SECOND, SEPARATE AND AFFIRMATIVE DEFENSE, Defendant alleges that Plaintiff and/or any of the other putative class members sustained no injury, as defined by California Labor Code section 226( e )(2), from any alleged failure to provide wage statements in conformity with Labor Code section 226(a) or from any other alleged violation of the California Labor Code. FORTY-THIRD AFFIRMATIVE DEFENSE AS A FORTY-THIRD, SEPARATE AND AFFIRMATIVE DEFENSE, Defendant alleges that the Complaint and each cause of action set forth therein, or some of them, cannot be maintained against Defendant to the extent the causes of action must be abated pursuant to California Code of Civil Procedure sections 430.10(c) and 430.30, and/or pursuant to the doctrine of exclusive and continuing jurisdiction and the federal first-to-file rule, until such time as all necessarily related matters have been resolved. Defendant asserts that because Plaintiffs Complaint is couched in conclusive terms, 10. Case No. 18CV333342 DEFENDANT'S ANSWER TO COMPLAINT Case 3:18-cv-05821 Document 1-5 Filed 09/21/18 Page 12 of 13 1 all affirmative defenses that may be applicable to the within action cannot be fully anticipated. 2 Accordingly, the right to assert additional affirmative defenses, if and to the extent that such 3 affirmative defenses are applicable, is reserved. 4 III. 5 PRAYER FOR RELIEF 6 WHEREFORE, Defendant prays that: 7 1. Plaintiff take nothing by this action; 8 2. The Complaint, and each purported cause of action alleged therein, be 9 dismissed in its entirety with prejudice; 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LITTLER MENDEL SO N, P.C. JJ3Su s ii S ir U 1 34t11Fioo • San FranCI SCO , CA 9~ 1 o• 415 4331940 3. 4. 5. Defendant be awarded its costs of suit incurred herein; Defendant be awarded its attorneys' fees pursuant to law; and The Court award Defendant such further relief as it deems just and proper. Dated: September 21 , 2018 Firm wide: 157017429.1 052026.1166 LINDBERGH PORTER KURT R. BOCKES DEBORAH OLALEYE LITTLER MENDELSON, P.C. Attorneys for Defendant ESA MANAGEMENT, LLC 11. Case No. 18CV333342 DEFENDANT'S ANSWER TO COMPLAfNT 9’2 1/201 3 Case *EPiBEWCWEQCOWEE/fiwqug33M?66909ETP2889P§g€413b9?-¥W1 9dd098 NATIONWIDE (StatusOnLine.aspx?sessionid=07c25f89-e03c-4f4d-abb9-a9c6f19dd0e8) Display Order Number 37654 (Subsequent Filing 1976564 ) court case: 18CV333342 - Arizmendi v. ESA Management, LLC court Location: Santa Clara Civil V Fee Name Amount c c t Filing Fee 435.00 ase a egory: . .I _ l. .t VCM un Iml ed Total Sewice Fees 3.50 Case Type: Other Employment V Convenience Fee 13.22 Total Court Service Fees 2.05 Filing Attorney: ‘ “ndbergh Porter ' Total Fees 453.77 Parties I“ case: Party Type Party Name Lead Attorney Plaintiff Sandra Arizmendi Jonathan Melmed Defendant ESA Management, LLC Notice Superior Court Of California *************** *************** Filings I“ order: Filing Code Reference Number Description Filing Status Cancel Proof of Service 57017 Proof of Service Submitting Cancel Answer/Response/Denial/Demurrer - First Appearance 57017 Defendant ESA Manage... Submitting Cancel< eserves: Servee Name Firm Name Servee Email Party Responsible For Payment: ESA Management LLC VI Payment Account: Nationwide , Back To Completed Orders hfips://ef.cacourtfi|ing.com/efiling/DisplayOrder.aspx?sessionid=07c25f89-e03c-4f4d-abb9-a906f1 9dd0e8 1/11 EXHIBIT F Case 3:18-cv-05821 Document 1-6 Filed 09/21/18 Page 1 of 4 L ITTLER MENDELSON, P .C. 3 3 3 Bu sh St r ee t 3 4 t h F lo or Sa n F ra n c i s co , C A 94 1 0 4 4 1 5 . 43 3 . 19 4 0 DECLARATION OF ALVARO CASTILLO 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 LINDBERGH PORTER, Bar No. 100091 KURT R. BOCKES, Bar No. 171647 DEBORAH OLALEYE, Bar No. 315838 LITTLER MENDELSON, P.C. 333 Bush Street, 34th Floor San Francisco, CA 94104 Telephone: 415.433.1940 Fax No.: 415.399.8490 Email: lporter@littler.com kbockes@littler.com dolaleye@littler.com Attorneys for Defendant ESA MANAGEMENT, LLC UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SANDRA ARIZMENDI, an individual, on behalf of the State of California, as a private attorney general, and on behalf of all others similarly situated, Plaintiff, v. ESA Management, LLC, a Delaware Limited Liability Company, and DOES 1 to 50, inclusive, Defendants. Case No. DECLARATION OF ALVARO CASTILLO IN SUPPORT OF DEFENDANT ESA MANAGEMENT, LLC’S NOTICE TO FEDERAL COURT OF REMOVAL OF CIVIL ACTION [28 U.S.C. §§ 1332, 1441, 1446] Santa Clara County Superior Court Case No. 18V333342 Complaint Filed: August 21, 2018 Case 3:18-cv-05821 Document 1-6 Filed 09/21/18 Page 2 of 4 L ITTLER MENDELSON, P .C. 3 3 3 Bu sh St r ee t 3 4 t h F lo or Sa n F ra n c i s co , C A 94 1 0 4 4 1 5 . 43 3 . 19 4 0 2 Case No. 18CV333342 DECLARATION OF ALVARO CASTILLO 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 I, ALVARO CASTILLO, declare and state: 1. I am the Director-Compensation & Strategy and former Human Resources Director- West Division for ESA Management LLC (“ESA”), the Defendant in this action. I have personal knowledge of the facts set forth in this declaration, or I have knowledge of such facts based on my review and knowledge of the business records and files of ESA and could testify to the same if called as a witness in this matter. 2. ESA is a limited liability company organized under the laws of the state of Delaware. ESA’s corporate and executive offices are located in Charlotte, North Carolina. ESA’s chief executives, including but not limited to the Chief Executive Officer, Chief Financial Officer, Chief Accounting Officer, Chief Human Resources Officer, and Chief Asset Merchant are based in Charlotte, North Carolina. Additionally, Charlotte, North Carolina is where all of Defendant’s primary administrative functions and operations, including but not limited to payroll, human resources, and talent management are performed. 3. As Director-Compensation & Strategy and former Human Resources Director-West Division, I have access to and periodically review data concerning ESA’s employees. ESA’s records reflect that Plaintiff Sandra Arizmendi’s last known address is in Hayward, California. 4. ESA’s data shows that from August 21, 2014 until April 24, 2018, when the data was pulled, ESA has employed approximately 4,330 individuals in non-exempt positions in the State of California. These non-exempt California employees were employed for an average of approximately 73 workweeks. 5. ESA’s current average hourly rate of pay for non-exempt California employees is $13.35/hr. 6. ESA’s data shows that between August 21, 2015 and April 24, 2018, when the data was pulled, ESA has terminated the employment of approximately 2,445 individuals who worked in non-exempt positions in the State of California. 7. ESA’s data shows that between August 21, 2017 and April 24, 2018, when the data was pulled, ESA has employed approximately 1,726 individuals in non-exempt positions in the State Case 3:18-cv-05821 Document 1-6 Filed 09/21/18 Page 3 of 4 L ITTLER MENDELSON, P .C. 3 3 3 Bu sh St r ee t 3 4 t h F lo or Sa n F ra n c i s co , C A 94 1 0 4 4 1 5 . 43 3 . 19 4 0 3 Case No. 18CV333342 DECLARATION OF ALVARO CASTILLO 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 of California. During that time period, those employees were employed for an average of approximately 32 workweeks in that period. 8. Non-exempt employees at ESA may be employed either on a full-time or a part-time basis. Full time employees typically work 7.5 to 8 hours per day. Part-time employees’ hours vary from 4-8 hours per day. 9. ESA pays employees on a bi-weekly basis. There are 26 pay periods each year. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed this ______ day of September, 2018 at ______________, California. ALVARO CASTILLO FIRMWIDE:157071603.1 052026.1166 21st Long Beach Case 3:18-cv-05821 Document 1-6 Filed 09/21/18 Page 4 of 4
