RequestCal. Super. - 6th Dist.November 19, 2018hUJN KOOONOUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 180V338479 Santa Clara - Civil Electronically Filed WORKMAN LAW FIRM, PC by superior court Of CA, Robin G. Workman (Bar #145810) County 0f Santa Clara, robin@workmanlawpc.com on 3/5/2020 3:55 PM Rachel E. Davey (Bar #316096) Reviewed By; R_ wa|ker rachel@w0rkmanlawpc.com 177 Post Street, Suite 800 case #1 8?V338479 San Francisco, CA 94108 EnveloPe' 41 28601 Telephone: (415) 782-3660 Facsimile: (415) 788-1028 Attorneysfor Plaintifif Thomas Villarreal 0n behalfofhimselfand all others similarly situated SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA THOMAS VILLAREAL, 0n behalf 0f himself and all others similarly situated, No. 18CV338479 Plaintiff, ASSIGNED FOR ALL PURPOSES TO THE HON. PATRICIA M. LUCAS, DEPT. 3 VS. REQUEST FOR JUDICIAL NOTICE IN MISSION TRAIL WASTE SYSTEMS, INC., SUPPORT OF PLAINTIFF’S and Does 1 through 50, inclusive, APPLICATION FOR ORDER: Defendants. a) GRANTING FINAL APPROVAL OF CLASS SETTLEMENT; b) APPROVING REQUEST FOR CLAIMS ADMINISTRATOR FEE; c) APPROVING REQUEST FOR ATTORNEYS’ FEES AND COSTS; AND, d) APPROVING REQUEST FOR INCENTIVE PAYMENT TO CLASS REPRESENTATIVE THOMAS VILLAREAL Date: March 27, 2020 Time: 9:00 am. Dept: 3 REQUEST FOR JUDICIAL NOTICE -1- 3280\SETTLEMENT/FINALAPPRJN hUJN KOOONOUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLEASE TAKE NOTICE that pursuant t0 California Evidence Code sections 452(h) and 453 and Rules 3.1 1 13(1) and 3.1306(0) of the California Rules of Court, Plaintiff hereby requests that the Court take judicial notice of the following pleadings 0n record in this matter: (1) (2) (3) (4) (5) (6) (7) (8) Plaintiff’ s Motion for Preliminary Approval 0f Class Action Settlement, And Request T0 File First Amended Complaint, et al., filed October 30, 2019 (“Prelim App Mot”); Declaration of Robin G. Workman In Support Of Plaintiff” s Motion for Preliminary Approval 0f Class Action Settlement, And Request To File First Amended Complaint, et a1., filed October 30, 2019 (“Workman Decl.”) and all exhibits thereto; Declaration 0f Thomas Villareal in Support of Plaintiff” s Motion for Preliminary Approval 0f Class Action Settlement, And Request T0 File First Amended Complaint, filed October 30, 2019 (“Villareal Decl.”); Declaration of Eric Bishop, of Rust Consulting, in Support of Plaintiff s Motion for Preliminary Approval 0f Class Action Settlement, And Request T0 File First Amended Complaint, filed October 30, 2019 (“Bishop Decl.”), and all exhibits thereto; Order RE: Motion For Preliminary Approval of Class Action Settlement, and Request T0 File First Amended Complaint, entered November 22, 2019 (“November 22, 2019 Order”); Plaintiff s First Amended Complaint, deemed filed November 22, 2019 (“FAC”); Plaintiff s Supplemental Memorandum 0f Points And Authorities in Support 0f Plaintiff’ s Motion for Preliminary Approval 0f Class Action Settlement, filed December 10, 2019 (“Suppl Prelim App Mot”); Supplemental Declaration of Robin G. Workman in Support of Plaintiff” s Motion for Preliminary Approval of Class Action Settlement, filed December 10, 2019 (“Workman Suppl. Decl.”), and the exhibit thereto; REQUEST FOR JUDICIAL NOTICE -2- 3280\SETTLEMENT/FINALAPPRJN hUJN KOOONOUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (9) Second Supplemental Declaration 0f Robin G. Workman in Support of Plaintiff’ s Motion for Preliminary Approval of Class Action Settlement, filed December 19, 2019 (“Workman 2d Suppl Decl.”), and the exhibit thereto; and (10) Order RE: Continued Motion For Preliminary Approval 0f Class Action Settlement, And Request T0 File First Amended Complaint, entered December 20, 2019 (“December 20, 2019 Order”). Date: March 5, 2020 REQUEST FOR JUDICIAL NOTICE WORKMAN LAW FIRM, PC /s/R0bin G. Workman Robin G. Workman Attorneysfor Thomas Villareal and all others similarly Situated 3280\SETTLEMENT/FINALAPPRJN EXHIBIT 1 hUJN KOOONOUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 180V338479 Santa Clara - Civil WORKMAN LAW FIRM, PC Robin G. Workman (Bar #145810) robin@workmanlawpc.com Rachel E. Davey (Bar #3 16096) rachel@w0rkmanlawpc.com 177 Post Street, Suite 800 San Francisco, CA 94108 Telephone: (415) 782-3660 Facsimile: (415) 788-1028 Attorneysfor Plaintifif Thomas Villarreal 0n behalfofhimselfand all others Similarly Situated Electronically Filed by Superior Court of CA, County of Santa Clara, on 10/30/2019 3:20 PM Reviewed By: R. Walker Case #1 8CV338479 Envelope: 3589120 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA THOMAS VILLAREAL, 0n behalf 0f himself and all others similarly situated, Plaintiff, vs. MISSION TRAIL WASTE SYSTEMS, INC., and Does 1 through 50, inclusive, Defendants. PRELIMINARY APPROVAL MOTION No. 18CV338479 ASSIGNED FOR ALL PURPOSES TO THE HON. THOMAS E. KUHNLE, DEPT. 5 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT, AND REQUEST TO FILE FIRST AMENDED COMPLAINT Date: November 22, 20 1 9 Time: 9:00 am. Dept: 5 3279\SETTLEMENT\PREL|MAPPMOTDOC hUJN KOOONOUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II. III. IV. IV. PRELIMINARY APPROVAL MOTION -2- TABLE OF CONTENTS flgflfl INTRODUCTION AND SUMMARY OF ARGUMENT ..................................................... 6 PROCEDURAL HISTORY AND CLAIMS PRESENTED ................................................. 8 1. First Issue: Meal Break Violations ............................................................................. 9 2. Second Issue: Rest Break Violations ......................................................................... 9 3. Third Issue: Failure T0 Pay All Wages When Due, And On Termination .............. 10 4.Fourth Issue: Inspection Of Payroll Records And Personnel Records ............................. 10 5. Fifth Issue: Failure T0 Provide Accurate Wage Statements And Maintain Accurate Payroll Records ........................................................................ 11 6. Miscellaneous Issues ................................................................................................ 11 INFORMAL DISCOVERY, THE MEDIATION, AND THE SETTLEMENT ................. 11 LEGAL ANALYSIS ............................................................................................................ 14 A. The Court Should Grant Preliminary Approval Of The Settlement ......................... 14 1. The Work Performed By Class Counsel Supports The Settlement ..................... 15 2. The Strengths and Weaknesses 0f the Claims Support The Settlement .............. 16 3. The Proposed Settlement Is Within The Range Of Reasonableness ................... 17 4. The Proposed Relief Is Free Of Significant Litigation Risks .............................. 18 5. The Parties Reached The Settlement Following Arms-Length Negotiations ...... 19 6. The Method of Handling Uncashed Checks Is Reasonable ................................. 19 7. Plaintiff and Class Counsel Will Fairly and Adequately Represent the Class 19 8. The Settlement Terms Do Not Provide A Basis To Doubt Its Fairness .............. 20 B. The Court Should Approve The Proposed Class Notice And Set Deadlines ........... 20 CONCLUSION .................................................................................................................... 20 3279\SETTLEMENT\PREL|MAPPMOTDOC hUJN KOOONOUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Page(s) Cases 7-Eleven Owners V. Southland Corp., 85 Cal. App. 4th 1135 (2000) .................................................................................................. 15 Baldera V. Massage Envy Franchise, LLC, 2014 U.S. Dist. LEXIS 99966 (N.D. Cal. July 21, 2014) ....................................................... 18 Beck-Ellman V. Kaz USA, Inc., 2013 U.S. Dist. LEXIS 60182 (S.D. Cal. Jan. 7, 2013) .......................................................... 15 Capital People First V. State Dept. of Developmental Services, 155 Cal. App. 4th 676 (2007) .................................................................................................. 19 Cellphone Termination Fee Cases 186 Cal. App. 4th 1380 (2010) .......................................................................................... 14, 15 Cho V. Seagate Tech. Holdings, Inc., 177 Cal. App. 4th 734 (2009) .................................................................................................. 20 Dunk V. Geer, 48 Cal. App. 4th 1794 (1996) ............................................................................................ 14, 15 Glass V. UBS Fin. Servs., 2007 S. Dist. LEXIS 8476 (N.D. Cal. Jan. 27, 2007) ............................................................. 17 Hammon V. Bag, 752 F. Supp. 1087 (D.D.C. 1990) ........................................................................................... 15 Hanlon V. Chrysler Corp., 150 F.3d 1011 (9th Cir. 1998) ................................................................................................. 15 High-Tech Employee Antitrust Litigation, 2015 U.S. Dist. LEXIS 118051, *23 (N.D. Cal. Sept. 2, 2015) .............................................. 17 Kullar V. Foot Locker Retail, Inc., 168 Cal. App. 4th 116 (2008) .................................................................................................. 14 Lilly V. Jamba Juice C0,, 2015 U.S. Dist. LEXIS 34498 (N.D. Cal. Mar. 18, 2015) ...................................................... 15 LinneV V. Cellular Alaska P’ship, 151 F.3d 1234 (9th Cir. 1998) ................................................................................................. 17 Mathien V. Pier 1 Imports (U.S.), Inc., 2017 U.S. Dist. LEXIS 204453 (ED. Cal. Dec. 11, 2017) ..................................................... 18 PRELIMINARY APPROVAL MOTION -3- 3279\SETTLEMENT\PREL|MAPPMOT.DOC hUJN KOOONOUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 McGhee V. Bank of America, 60 Cal. App. 3d 442 (1976) ..................................................................................................... 19 In re Mego Fin. Corp. Sec. Litig., 213 F.3d 454 (9th Cir. 2000) ................................................................................................... 18 In re Microsoft I-V Cases, 135 Cal. App. 4th 706 (2006) .................................................................................................. 14 In re Newbridge Networks Sec. Litig, 1998 U.S. Dist. LEXIS 23238 (D.D.C. 1998) ......................................................................... 18 North County Contractor’s Assn., Inc. V. Touchstone Ins. Svcs., 27 Cal. App. 4th 1085 (1994) .................................................................................................. 14 Potter V. Pacific Coast Lumber C0,, 37 Cal. 2d 592 (1951) .............................................................................................................. 14 Rodriguez V. West Pub. Corp., 563 F.3d 948 (9th Cir. 2009) ................................................................................................... 15 See’s Candy Shops, Inc. V. Superior Court, 210 Cal.App.4th 889 (2012) .................................................................................................... 16 Shames V. Hertz C0rp., 2012 U.S. Dist. LEXIS 158577 (SD. Cal. Nov. 5, 2012) ....................................................... 18 Steinberg V. Carey, 470 F. Supp. 471 (S.D.N.Y. 1979) .......................................................................................... 15 In re Toys R Us-Del., Inc. Fair & Accurate Credit Trans. Act Litig, 295 F.R.D. 438 (C.D. Cal. 2014) ............................................................................................ 18 Trombley V. Nat'l. City Bank, 759 F. Supp. 2d 20 (D.D.C. 201 1) .......................................................................................... 18 Van Bronkhorst V. Safeco Com, 529 F.2d 943 (9th Cir. 1976) ................................................................................................... 14 Wershba V. Apple Computer, Inc., 91 Cal. App. 4th 224 (2001) .............................................................................................. 14, 20 Statutes California Labor Code §§ 201-204 ............................................................................................... 10 California Labor Code § 204 ......................................................................................................... 10 California Labor Code §§ 226(a)(1), (2), (5), and (9) ................................................................... 11 PRELIMINARY APPROVAL MOTION -4- 3279\SETTLEMENT\PREL|MAPPMOT.DOC hUJN KOOONOUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 California Labor Code § 226(b) .................................................................................................... 10 California Labor Code § 226(0) .................................................................................................... 10 California Labor Code § 226(f) ..................................................................................................... 10 California Labor Code § 226.7 ............................................................................................ 9, 10, 11 California Labor Code § 510 ......................................................................................................... 10 California Labor Code § 5 12 ..................................................................................................... 9, 11 California Labor Code § 5 12(6) .................................................................................................... 16 California Labor Code § 558 ......................................................................................................... 10 California Labor Code § 1051 ....................................................................................................... 11 California Labor Code § 1052 ....................................................................................................... 11 California Labor Code § 1174(d) .................................................................................................. 11 California Labor Code § 1194 ....................................................................................................... 10 California Labor Code § 1198.5 .................................................................................................... 11 California Labor Code § 2802 ....................................................................................................... 18 Other Authorities Manual for Complex Litigation (“Manual”) (3d Ed.), § 30.41 ..................................................... 15 Newberg on Class Actions (4th Ed. 2002), § 11.25 ...................................................................... 15 Newberg 0n Class Actions (2d Ed. 1985), § 11.44 ....................................................................... 15 Newberg 0n Class Actions (4th Ed. 2002) § 11.47 ....................................................................... 14 Newberg on Class Actions (5th Ed. 2014) § 13.13 ....................................................................... 14 PRELIMINARY APPROVAL MOTION -5- 3279\SETTLEMENT\PREL|MAPPMOT.DOC hUJN KOOONOUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. INTRODUCTION AND SUMMARY OF ARGUMENT Plaintiff Thomas Villareal requests preliminary approval 0f a class action settlement reflected in the executed Joint Stipulation of Settlement and Release (“Settlement”) submitted with this motion.1 The Settlement is between Mr. Villareal and Defendant Mission Trail Waste Systems, Inc. (“Defendant” 0r “MTWS”), and resolves the claims brought by Mr. Villareal. MTWS is a provider 0f collection services for recyclables, organic materials, and garbage waste for single-family residential, multi-family residential, and commercial customers. Defendant provides these services to customers in California, specifically, t0 those in Santa Clara and Los Altos. Mr. Villareal, a current employee, works for Defendant as a refuse truck driver. Mr. Villareal drives an assigned route, collecting garbage at Northern California locations, which he then transports back t0 a designated dump, also in Northern California. Defendant employs Mr. Villareal as a non-exempt, hourly-paid driver. Mr. Villareal is a member 0f a Teamsters-affiliated Union, the Sanitary Truck Drivers & Helpers Union, Local N0. 350 (“Union”)? Plaintiff filed this action in Santa Clara County Superior Court on November 19, 2018. Plaintiff alleges, on behalf 0f himself and similarly situated MTWS drivers, that Defendant engaged in a myriad of California Labor Code Violations. Mr. Villareal alleges that Defendant requires drivers t0 work more than five hours per day, and often ten hours per day, Without providing drivers the opportunity to take off-duty meal and rest periods, or providing them premium payments for missed breaks. Mr. Villareal alleges that because Defendant did not pay drivers the meal and rest period premiums that Defendant did not pay drivers for all hours worked, including upon termination, and failed to provide drivers with accurate, itemized wage statements. Mr. Villareal also alleges that Defendant did not permit employees to inspect or copy their wage statements 0r personnel files.3 Based 0n time records produced by Defendant, Mr. Villareal also contends that Defendant employed a time rounding practice that disproportionately favored Defendant and thereby did not pay drivers for all hours worked, including at termination.4 1 Declaration 0f Robin G. Workman In Support Of Plaintiff’s Application for Preliminary Approval (“Workman Decl.”) 1] 8, Ex. C. 2 Declaration 0fTom Villareal In Support Of Plaintiff s Application for Preliminary Approval (“Villareal Decl.”) 1] 2. 3 Workman Decl. Ex. A, Plaintiff s Complaint. 4 Workman Decl. 1] 3. PRELIMINARY APPROVAL MOTION -6- 3279\SETTLEMENT\PREL|MAPPMOT.DOC hUJN KOOONOUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The parties agreed to an early mediation t0 explore settlement before a prominent wage/hour class action mediator, David A. Rotman. T0 facilitate settlement negotiations, the parties exchanged documents and other relevant data, including payroll and time records, and applicable collective bargaining agreements. The parties also exchanged mediation briefs. Although the parties were not able t0 reach a settlement 0n the day of the mediation, they reached a settlement thereafter with the assistance 0f the mediator. The Settlement includes the claims Mr. Villareal initially alleged, as well as the time rounding claim and derivative claims Mr. Villareal raised at the mediation. This Settlement provides relief for 63 drivers.5 As a result 0f the Settlement reached, with this motion, Mr. Villareal also requests permission to file a First Amended Complaint (“FAC”), Which adds the time rounding claim and derivative claims.6 As referenced in the Settlement, the Parties stipulate to the filing of a FAC, t0 include these additional claims.7 Pursuant t0 the Settlement, Defendant Will pay $750,000 to create a non-reversionary Gross Settlement Fund (“GSF”).8 Subj ect t0 Court approval, the following amounts Will be deducted from the GSF: attorneys’ fees (not t0 exceed $250,000); litigation costs (not to exceed $20,000)9; $5,000 t0 Mr. Villareal, as a Class representative service enhancement award“); a Labor Workforce Development Agency (“LWDA”) payment 0f $1 1,250“; and, administrative fees (not t0 exceed $15,000) t0 Rust Consulting.” The amount remaining, estimated to be at least $448,750, shall be the Net Settlement Fund (“NSF”) for distribution t0 Participating Class Members. Rust Consulting shall distribute the NSF among Participating Class Members based 0n the number of Qualifying Workweeks worked by class members (meaning each week, 0r fraction thereof, an individual worked for Defendant as a driver during the class period)” Each Class Member will be entitled to a Percentage Share 0f the NSF, calculated by dividing the number 0f Qualifying Workweeks worked by the Settlement Class Member by the aggregate number 0f 5 Workman Decl. 1] 8, EX. C, Settlement Agreement, 1] 4. 6 Workman Decl. 1] 8, EX. C, Settlement Agreement, 1H] 6, 39. 7 Workman Decl. 1] 3, Ex. B, Plaintiff s (Proposed) First Amended Complaint 8 Workman Decl. 1] 8, Ex. C, Settlement Agreement, 1] 32. 9 Workman Decl. 1] 8, EX. C, Settlement Agreement, 1] 35. 1° Workman Decl. 1] 8, Ex. C, Settlement Agreement, 1] 36. 11 Workman Decl. 1] 8, EX. C, Settlement Agreement, 1] 33. 12 Workman Decl. 1] 8, Ex. C, Settlement Agreement, 11 37. 13 Workman Decl. 1] 8, EX. C, the Settlement Agreement, 1N 24, 34. PRELIMINARY APPROVAL MOTION -7- 3279\SETTLEMENT\PREL|MAPPMOT.DOC hUJN KOOONOUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Qualifying Workweeks for the entire Class, and multiplying the resulting percentage by the value 0f the NSF.” Each class member will receive, 0n average, approximately $7,000.15 Given cash flow concerns of Defendant, Rust Consulting shall distribute the GSF in two separate payments, the first occurring in approximately April 2020, and the second occurring in approximately August 2020.16 Participating Class Members are entitled t0 100% of the NSF, as Defendant maintains n0 reversionary right t0 any part of the NSF.” This Settlement is not claims-made. Participating Class Members need not take any action t0 receive benefits from the Settlement. Rust Consulting shall allocate the amount paid t0 Participating Class Members as follows: 25% t0 unpaid wages, for which a W-2 shall be issued; and, 75% t0 penalties and interest, for Which a 1099 shall be issued. Defendant is solely responsible for paying the employer’s share 0f payroll taxes on amounts allocated as wages, Which Defendant shall pay separately from and in addition t0 the GSF.” The terms 0f the Settlement establish that the Settlement meets the requirements for preliminary approval. The monetary benefits it provides t0 Participating Class Members are well within the range 0f reasonableness, particularly in light of the legal and factual obstacles Plaintiff faced, and the risks and costs 0f further litigation. In addition, the proposed class notice obj ectively provides the notice required by due process,” and the proposed deadlines are fair and reasonable. Mr. Villareal therefore requests that the Court grant this motion. Mr. Villareal also requests that the Court approve the remaining Settlement provisions, including the proposed class notice, and settlement administration deadlines, appoint Rust Consulting as Settlement Administrator, order that Rust Consulting send notice to the Settlement Class Members, and set a final approval hearing date. II. PROCEDURAL HISTORY AND CLAIMS PRESENTED On November 19, 2018, Mr. Villareal filed the present class action against Defendant alleging, on behalf of himself and similarly situated drivers, the following ongoing labor code Violations by Defendant: (1) failure t0 provide meal periods; (2) failure t0 authorize and permit rest 14 Workman Decl. 1] 8, Ex. C, the Settlement Agreement, 1] 34. 15 Workman Decl. 1] 13. 16 Workman Decl. 1] 8, Ex. C. the Settlement Agreement, 1] 50. 17 Workman Decl. 1] 8, Ex. C, the Settlement Agreement, 1] 34. 18 Workman Decl. 1] 8, Ex. C, the Settlement Agreement, 1] 34. 19 Workman Decl. 1] 9, EX. D. PRELIMINARY APPROVAL MOTION -8- 3279\SETTLEMENT\PREL|MAPPMOT.DOC hUJN KOOONOUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 periods; (3) failure to maintain accurate payroll records; (4) failure t0 provide accurate wage statements; (5) failure t0 permit employees to inspect 0r copy their wage statements; (6) failure to permit employees to inspect their personnel records; (7) failure t0 timely pay all wages when due; (8) failure t0 pay all wages due at the time of termination; and, (9) illegally obtaining employees’ fingerprints as a prerequisite of their employment and furnishing these fingerprints t0 a third party.” Per the agreement among the Parties, the Settlement resolves all claims pleaded in the original complaint, and additional claims that will be pleaded in the FAC, specifically, claims that Plaintiff asserted at the mediation and formed part of the negotiations and ultimate Settlement, including, Plaintiff s time rounding claim and derivative claims.” There are five primary issues alleged in this action. 1. First Issue: Meal Break Violations The first issue pertains t0 Defendant’s meal period policies and practices. Plaintiff alleges that Defendant routinely requires drivers t0 work more than five hours per day without being provided the opportunity to take timely and full 30-minute off-duty meal periods. Plaintiff alleges that t0 complete the routes set by Defendant, Plaintiff and similarly situated drivers are prevented from taking such breaks in order t0 timely deliver their loads. Plaintiff also alleges that Plaintiff and similarly situated drivers regularly work in excess 0f 10 hours per day but are not provided the opportunity t0 take a second off-duty 30-minute meal period for the same reasons. Plaintiff alleges that whether 0r not Plaintiff and other drivers are able to take any meal break, 0r full meal break, Defendant auto-deducts one 30-minute period from their time records each work day. Plaintiff also alleges that Defendant failed to pay drivers premium wages for missed statutory meal breaks and that these actions violated Labor Code sections 226.7 and 5 12, and section 11 0f applicable Industrial Welfare Commission Wage Orders (“Wage Orders”).22 2. Second Issue: Rest Break Violations The second issue concerns Plaintiff’s assertion that Defendant fails to authorize and permit all legally required rest periods. Plaintiff alleges that Defendant regularly requires him and 2° Workman Decl. 1] 2, EX. A. 21 Workman Decl. 1] 8, Ex. C, Settlement Agreement, 1] 39. 22 Workman Decl. 1N 2 & 3, EXS. A & B. FAC 1] 6. PRELIMINARY APPROVAL MOTION -9- 3279\SETTLEMENT\PREL|MAPPMOT.DOC hUJN KOOONOUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 similarly situated drivers to work more than 3.5 hours per day without taking any efforts t0 make rest breaks available because, in order to meet the driving schedule set by Defendant, drivers are unable t0 take mandated rest breaks. In addition, Plaintiff alleges that Defendant failed to pay drivers premium wages for missed statutory rest breaks. Plaintiff alleges that the foregoing violated Labor Code section 226.7 and section 12 0f applicable Wage Orders.” 3. Third Issue: Failure T0 Pav All Wages When Due, And On Termination Plaintiff alleges that Defendant failed t0 pay drivers for all hours worked. In his initial complaint, Plaintiff alleges that because Defendant failed to pay drivers an extra hour 0fpay for missed meal breaks and rest breaks, and automatically deducts 30 minutes of time regardless 0f Whether a driver actually takes a meal break, Defendant failed t0 timely pay Plaintiff and similarly aggrieved drivers all wages When due, in Violation of Labor Code section 204. At the mediation and also in the FAC, Plaintiff also alleges that, instead 0fpaying Plaintiff and similarly situated drivers for all hours worked, Defendant engaged in a time rounding practice that disproportionately favored Defendant. Plaintiff alleges that given these practices, Defendant did not pay Plaintiff and similarly situated drivers for all time worked, including both minimum and overtime wages, When due, including 0n termination, in Violation of Labor Code sections 201-204, 510, 558, and 1194.24 4. Fourth Issue: Inspection Of Payroll Records And Personnel Records Plaintiff alleges that during his employment, Plaintiff requested Defendant t0 permit him to inspect his payroll records for the last three years, as allowed in Labor Code section 226 subsection (b). Plaintiff also alleges that Defendant failed t0 permit Plaintiff t0 inspect 0r copy all 0f the records he requested Within 21 days, in Violation of California Labor Code section 226 subsection (c). Plaintiff alleges that he and similarly situated drivers who were denied this request are therefore entitled to statutory penalties pursuant t0 section 226 subsection (f).25 In addition, Plaintiff alleges that during Plaintiff” s employment, Plaintiff requested that Defendant permit him to inspect his personnel records for the past three years, including records relating t0 his performance or t0 any grievance concerning him, maintained by Defendant, pursuant 23 Workman Decl. 1N 2 & 3, EXS. A & B. FAC 1] 7. 24 Workman Decl. 1H] 2 & 3, Exs. A & B. FACW 12, 44-46. 25 Workman Decl. 1H] 2 & 3, EXS. A & B. FAC 1W 12, 44-46. PRELIMINARY APPROVAL MOTION - 1 0- 3279\SETTLEMENnPRELIMAPPMOTDOC hUJN KOOONOUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 t0 California Labor Code section 1198.5. Plaintiff alleges that, after 30 days, Defendant failed to provide all the requested records in Violation 0f Labor Code section 1198.5.26 5. Fifth Issue: Failure T0 Provide Accurate Wage Statements And Maintain Accurate Pavroll Records Plaintiff also alleges that because Defendant failed to pay drivers premiums for missed rest and meal breaks, automatically deducted 30 minutes of time for meal periods, and engaged in a rounding practice that disproportionately favored Defendant, Defendant failed t0 provide accurate wage statements in Violation 0f Labor Code sections 226(a)(1), (2), (5), and (9).” Plaintiff also alleges that because Defendant did not keep records 0f Plaintiff s and similarly situated drivers’ meal breaks taken and not taken, as required by Labor Code sections 226.7 and 512, and due to Defendant’s rounding practice favoring Defendant, Defendant failed t0 maintain accurate and complete payroll records, as required by Labor Code section 1174(d).28 6. Miscellaneous Issues Plaintiff also alleges that Defendant violated California Labor Code section 105 1 because Defendant obtained Plaintiff s and all other hourly employees’ fingerprints 0n its ADP thumb scanning device, as a prerequisite 0f their employment. Plaintiff alleges that Defendant then shared these fingerprints with a third-party company in Violation 0f California Labor Code section 1052.29 III. INFORMAL DISCOVERY, THE MEDIATION, AND THE SETTLEMENT Prior t0 the mediation, Defendant produced Plaintiff” s personnel file, pay summaries, timecard report from January 1, 2016, t0 June 11, 2019, Defendant’s meal and rest break policies, collective bargaining agreements, Defendant’s biometric data policy, employee handbooks, Plaintiff’s record requests, applicable job description, and time and payroll records for all putative class members. Plaintiff retained an expert t0 conduct an analysis 0f the payroll data and time records t0 calculate the potential exposure for the alleged claims. This exchange 0f information allowed the parties to assess the merits and value 0f Plaintiff” s claims and defenses thereto, if a settlement was not reached. After conducting an analysis of the materials Defendant produced, Class Counsel also drew on her 26 Workman Decl. 1H] 2 & 3, Exs. A & B. FACW 47-49. 27 Workman Decl. 1N 2 & 3, EXS. A & B. FAC 1] 9. 28 Workman Decl. 1N 2 & 3, EXS. A & B. FAC 1] 8. 29 Workman Decl. 1N 2 & 3, Exs. A & B. FAC 1] 14. PRELIMINARY APPROVAL MOTION -1 1- 3279\SETTLEMENnPRELIMAPPMOTDOC hUJN KOOONOUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 experience in similar cases t0 assess the strengths and weaknesses 0f Plaintiff‘s claims.” On August 20, 2019, the parties participated in a filll day mediation, conducted by David Rotman, a well-respected mediator 0fwage and hour class actions. While the negotiations were professional, each party zealously advocated its positions. The Parties did not reach a settlement that day. With the mediator’s assistance, through further negotiations, the Parties thereafter agreed t0 basic settlement terms and executed a Memorandum 0f Understanding, reflecting the parties’ agreement. It was only through Mr. Rotman’s efforts that the parties reached the agreement reflected in the MOU.“ Following the mediation, the parties continued their negotiations and agreed to a long-form agreement, the Settlement the parties present to this Court for approval. The Settlement terms do not provide a basis t0 doubt its fairness. Those who will receive benefits under the Settlement, i.e., the Settlement Class, are Class Members Who d0 not exclude themselves from the Settlement.” The “Class Members” are all current and former non-exempt sanitation truck drivers employed by Defendant at any time during the Class Period, which Defendant represents t0 be 63 individuals as 0f October 2019.33 Rust Consulting Will allocate the NSF t0 Settlement Class Members according t0 their pro rata share 0f workweeks.34 Weighting individual settlements based on workweeks is fair and reasonable, as this gives Settlement Class Members Who worked more weeks a greater share of the .35 The Settlement gives Participating Class Members 45 days, a reasonable period ofSettlement time, to either opt out 0f 0r obj ect t0 the Settlement.36 The parties formalized the terms 0f the Settlement in an agreement that provides the following salient terms: a. The GSF Defendants shall pay is $750,000;37 b. “Settlement Class Members” means all current and former non-exempt sanitation truck drivers employed by Defendant at any time during the Class Period, Who do not submit a request for exclusion. Defendant represents that there are 63 Class Members; 38 30 Workman Decl. 1] 4. 31 Workman Decl. 11 5. 32 Workman Decl. 11 6. 33 Workman Decl. W 7 & 8, EX. C. Settlement Agreement, 11 4-5, 23. 34 Workman Decl. 1] 8, EX. C, the Settlement Agreement, 1N 24, 34. 35 Workman Decl. 11 10. 36 Workman Decl. 1] 8, EX. C, Settlement Agreement, 1] 43. 37 Workman Decl. 1] 8, Ex. C, Settlement Agreement, 1] 32. 38 Workman Decl. 1] 8, EX. C. Settlement Agreement, 1] 4-5, 23. PRELIMINARY APPROVAL MOTION - 1 2- 3279\SETTLEMENnPRELIMAPPMOTDOC hUJN KOOONOUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The NSF for distribution ls estimated to be $448,750 ($750,000- $250,000 for attorneys’ fees- litigation costs (not t0 exceed $20,000)39- $5,000 to Plaintiff Villareal, as class representative service enhancement awards“ -a Labor Workforce Development Agency (“LWDA”) payment of $11 ,4250 - an amount not t0 exceed $15,000 to Rust Consulting for claims administration services)“ . The Claims Administrator shall allocate Individual Settlement Payments as follows: 25% to unpaid wages, for which the Administrator shall issue a W-2, and 75% to penalties and interest, for Which the Administrator shall issue a 1099. Defendant is responsible for the employer’ s share 0f payroll taxes on any amounts allocated as wages, Which amount shall be paid separately from the GSF;43 Defendant shall pay the GSF in two installments, each constituting 50% 0f the GSF. 1. The First Installment Will constitute 50% of the GSF. Defendant Will pay the first installment within 10 days of the Class Release Date, or by April 30, 2020, Whichever is later. The First Installment, Which pays Participating Class Members the bulk 0f their recovery first, includes: (i) the 75% Non-Wage Portion of the Individual Settlement Payments to Class Members; (ii) the Incentive Award t0 the Named Plaintiff; (iii) 50% of the Administration Costs to the Claims Administrator; and, (iv) the PAGA Payment t0 the LWDA, with any remainder (“Remainder”) distributed With the Second Installment. 2. Defendant shall transmit the Second Installment, constituting the remaining 50% of the NSF, t0 the Claims Administrator within four (4) months after the Class Release Date, or 0n August 31, 2020, Whichever is later. The Second Installment includes: (i) the 25% Wage Portion of the Individual Settlement Payments t0 Class Members; (ii) the Fee and Expense Award to Class Counsel; 4and, (iii) the remaining 50% 0f Administration Costs t0 the Claims Administrator} Checks issued t0 Settlement Class Members shall remain valid and negotiable for 90 days. After this time, the Claims Administrator Will perform a second distribution of funds on apro rata basis t0 those Class Members who cashed their individual settlement checks if the amount 0f the funds remaining due to uncashed checks is at least $4,500.00. The funds associated With any void, uncashed checks after a second distribution, or if the funds remaining from the initial distribution are less than $4,500.00, shall be paid 0n a cy pres4basis t0 Legal Aid at Work, or other such charitable organization approved by the Court;45 g. Rust Consulting shall be the Settlement Administrator;46 . The Settlement Administrator will allocate Individual Settlement Payments as follows: the Administrator Will first calculate the number 0f the Qualifying Workweeks worked by each Settlement Class Member during the class period by reference to Defendant’s records. The Settlement Administrator Will then divide the number of Qualifying Workweeks worked by Settlement Class Members by the aggregate number 0f Qualifying Workweeks for the entire Class, and multiplying the resulting percentage by 39 Workman Decl. 1] 8, Ex. 40 Workman Decl. 1] 8, EX. 41 Workman Decl. 1] 8, Ex. 42 Workman Decl. 1] 8, Ex. 43 Workman Decl. 1] 8, Ex. 44 Workman Decl. 1] 8, EX. 45 Workman Decl. 1] 8, EX. 46 Workman Decl. 1] 8, EX. C, Settlement Agreement, 1] 35. C, Settlement Agreement, 1] 36. C, Settlement Agreement, 1] 33. C, Settlement Agreement, 1] 37. C, Settlement Agreement, 1] 34. C, Settlement Agreement, 1] 50. C, Settlement Agreement, 1] 56. C, Settlement Agreement, 1] 37. PRELIMINARY APPROVAL MOTION -13- 3279\SETTLEMENT\PREL|MAPPMOTDOC hUJN KOOONOUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the value of the NSF. Each Class Member’s Qualifying Workweeksg‘” and, i. Participating Class Members are entitled to 100% 0f the NSF. Defendant maintains n0 reversionary right t0 any portion 0f the NSF.48 The proposed class notice is attached as Exhibit D t0 the Workman Declaration.” IV. LEGAL ANALYSIS A. The Court Should Grant Preliminarv Approval Of The Settlement The law favors settlements. Potter V. Pacific Coast Lumber C0., 37 Cal. 2d 592, 602 (1951); Van Bronkhorst V. Safeco Com, 529 F.2d 943, 950 (9th Cir. 1976) (“there is an overriding public interest in settling and quieting litigation. This is particularly true in class actions ...”) When evaluating Whether to grant preliminary approval, the question is Whether the settlement is Within the range of possible approval, such that notice t0 the class of settlement terms and conditions and the scheduling 0f a formal fairness hearing is effective. Wershba V. Apple Computer, Inc., 91 Cal. App. 4th 224, 234-35 (2001); Newberg on Class Actions (“Newberg”) (5th Ed. 2014) § 13.13. To approve a settlement, the Court need find only that the settlement falls Within the range 0f possible final approval, or the range 0f reasonableness. North County Contractor’s Assn, Inc. V. Touchstone Ins. Svcs., 27 Cal. App. 4th 1085, 1089-90 (1994). A presumption 0f fairness exists when: (1) the parties reached a settlement through arms- length bargaining; (2) the parties conducted sufficient investigation to allow counsel and the court t0 act intelligently; (3) counsel are experienced in similar litigationgso and, (4) the percentage of objectors is small. In re Microsoft I-V Cases, 135 Cal. App. 4th 706, 723 (2006); Dunk V. Geer, 48 Cal. App. 4th 1794, 1802 (1996); Kullar V. Foot Locker Retail, Inc., 168 Cal. App. 4th 116, 127-28 (2008); Cellphone Termination Fee Cases, 186 Cal. App. 4th 1380 (2010). While the recommendations 0f counsel are not conclusive, the court may take them into account, particularly if they have been involved in the litigation for some time, appear competent, have experience With this type of litigation, and completed significant investigation. E, In re Microsoft I-V Cases, 135 Cal. App. 4th at 723 (“court should consider relevant factors,” including “the experience and Views 0f counsel. . .”); Newberg (4th Ed. 2002), § 11.47. Courts d0 not 47 Workman Decl. 1] 8, Ex. C, Settlement Agreement, 1] 34. 48 Workman Decl. 1] 8, EX. C, Settlement Agreement, 1] 34. 49 Workman Decl. 1] 9, EX. D, Proposed Class Notice. 5° Workman Decl. 1W 10 & 11. PRELIMINARY APPROVAL MOTION - 14- 3279\SETTLEMENnPRELIMAPPMOTDOC hUJN KOOONOUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 substitute their judgment for that 0f the proponents, particularly when experienced counsel familiar with the litigation reached the settlement. m, gg, 7-Eleven Owners V. Southland Com, 85 Cal. App. 4th 1135, 1145 (2000); Dunk, 48 Cal. App. 4th at 1802; Hammon V. Bag, 752 F. Supp. 1087, 1093 (D.D.C. 1990), quoting Newberg (2d Ed. 1985), § 11.44; Steinberg V. Carey, 470 F. Supp. 471, 474 (S.D.N.Y. 1979)(“functi0n of the Court in reviewing this application, ‘is not t0 reopen and enter into negotiations With the litigants in the hope of improving the terms 0f the settlement,’ nor is the court called upon t0 substitute its business judgment for that of the parties Who worked out the settlement”); Cellphone Termination Fee Cases, 186 Cal. App. 4th at 1390 (“[d]ue regard should be given to What is otherwise a private consensual agreement between the parties,” quoting L Eleven). As the Beck-Ellman V. Kaz USA, Inc., 2013 U.S. Dist. LEXIS 60182, *16 (S.D. Cal. Jan. 7, 2013), court explained, the courts favor “deference t0 the ‘private consensual decision of the [settling] parties,’ particularly where the parties are represented by experienced counsel and negotiation has been facilitated by a neutral party-in this instance, a private mediator. . .” (quoting Rodriguez V. West Pub. Com, 563 F.3d 948, 965 (9th Cir. 2009)). When an evaluation 0f the proposed settlement does not disclose grounds t0 doubt its fairness 0r other obvious deficiencies, “the court should direct that notice. .. be given t0 the class members of a formal fairness hearing, at Which arguments and evidence may be presented in support of and in opposition t0 the settlement.” Newberg (4th Ed. 2002), § 11.25, quoting Manual for Complex Litigation (“Manual”) (3d Ed.), § 30.41. “The question [the Court] address[es] is not whether the final product could be prettier, smarter 0r snazzier, but Whether it is fair, adequate and free from collusion.” Hanlon V. Chrysler Com, 150 F.3d 101 1, 1026 (9th Cir. 1998); Lilly V. Jamba Juice C0,, 2015 U.S. Dist. LEXIS 34498, *19 (N.D. Cal. Mar. 18, 2015) (quoting Hanlon). 1. The Work Performed BV Class Counsel Supports The Settlement Prior to the mediation, the parties exchanged a significant amount 0f documents and information relevant to the claims at issue, including the following: time and payroll records for the entire putative class, collective bargaining agreements, and relevant policies/procedures regarding meal and rest breaks, fingerprint scanning, and auto-deductions of meal break time from time records, and, job descriptions. The parties also exchanged detailed mediation briefs setting forth PRELIMINARY APPROVAL MOTION - 1 5- 3279\SETTLEMENT\PREL|MAPPMOT.DOC hUJN KOOONOUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 their respective claims and defenses. This exchange allowed Plaintiff to analyze the strength and weaknesses of the claims and the potential damages arising from them. To assist in this process, Plaintiff retained a class action damages expert, Berger Consulting Group (“Berger”).51 2. The Strengths and Weaknesses 0f the Claims Support The Settlement The GSF is $750,000. Berger’s analysis revealed the following: For the rounding claim, there were 855 hours unpaid due t0 rounding. The maximum value 0f this claim is $60,684. Assuming a Violation for every day that Defendant auto-deducted a 30-minute meal break for all shifts in excess of 5 hours, Berger calculated the maximum damages for this claim t0 be $1,382,755. For the rest period claim, assuming a Violation every week, the potential damages arising from this claim are $320,000. The exchange 0f materials revealed that the other claims alleged have n0 value. For example, it appears that Plaintiff is the only employee who did not receive a copy of his personnel file upon request. The materials also revealed that Defendant did not provide fingerprints t0 a third party. The only entity that used this data was an agent of Defendant, its payroll processor ADP. ADP only used an electronic signature, not the actual fingerprint. Hence, the maximum damages for the claims presented, total $1,783,439.52 Defendant asserted many defenses t0 these claims. Defendant asserted that it employed a permissible time rounding practice under See’s Candy Shops, Inc. V. Superior Court, 210 Ca1.App.4th 889 (2012), and therefore n0 damages flowed from this claim. Defendant also asserted that Plaintiff did not present Viable meal or rest period claims, arguing that n0 meal period claims existed because putative class members are union employees subject t0 a valid collective bargaining agreement. Based on this fact, Defendant asserted that putative class members are exempt from the meal period requirements 0f California law pursuant to Labor Code section 512(6). Defendant also presented evidence Which it asserted establishes that putative class members lost n0 pay due t0 the automatic 30-minute meal period deduction, as their union contract guaranteed eight hours ofpay and drivers generally completed their route work in less than 7.5 hours. Taking this fact into account, Defendant calculated that even assuming that putative class members were never able to take a 30-minute meal period, the maximum potential damages for this claim would be only about 51 Workman Decl. 1] 4. 52 Workman Decl. 1] 12. PRELIMINARY APPROVAL MOTION - 1 6- 3279\SETTLEMENnPRELIMAPPMOTDOC hUJN KOOONOUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 $425,000, further arguing that even this figure was subject t0 significant reduction as Defendant believes that putative class members took 30-minute meal breaks on most, if not all workdays. Defendant therefore asserted that a more reasonable potential liability figure would be less than $100,000. Defendant also asserted that rest breaks were covered by the applicable collective bargaining agreement and that putative class members had ample opportunity t0 take such breaks. With respect t0 both claims, Defendant asserted that the claims were not suitable for class determination, insisting that individual issues predominated with respect t0 1iability.53 3. The Proposed Settlement Is Within The Range Of Reasonableness The GSF 0f $750,000, Which represents 42% of the total maximum recovery as calculated by Plaintiff s expert, significantly more than Defendant’s estimate, and over 50% of what Plaintiff believes to be the strongest claim, the auto-deduction meal period claim, is a reasonable settlements‘ This is particularly true since the Settlement will result in an average payout 0f approximately $7,000 for each driver and because Defendant contends that it owes nothing t0 the drivers.55 To put this amount in perspective, in the High-Tech Employee Antitrust Litigation, 2015 U.S. Dist. LEXIS 118051, *23 (N.D. Cal. Sept. 2, 2015), a case brought by employees alleging that their employers conspired to depress their wages, which resulted in a $415,000,000 settlement, the class members received, on average, just $5,770 each. A settlement that provides class members With amounts much higher than the amount received by class members in one of the largest class action settlements t0 recover wages for employees militates in favor 0f a finding of reasonableness. Further, Defendant is adamant that it complied with all California Labor Code provisions, and also challenges all class certification elements.56 While the Settlement reflects a reduction of the maximum amount of potential available 6“ recovery, courts keep in mind, that: the very essence of a settlement is compromise, ‘a yielding 0f absolutes and an abandoning 0f highest h0pes.”’ LinneV V. Cellular Alaska P’ship, 151 F.3d 1234 (9th Cir. 1998). In Glass V. UBS Fin. Servs., 2007 S. Dist. LEXIS 8476 (N.D. Cal. Jan. 27, 2007), the court approved a settlement of an action claiming unpaid overtime wages Where the settlement 53 Workman Decl. 11 14. 54 Workman Decl. 1] 15. 55 Workman Decl. 11 13. 56 Workman Decl. 1W 13 & 14. PRELIMINARY APPROVAL MOTION - 1 7- 3279\SETTLEMENT\PREL|MAPPMOT.DOC hUJN KOOONOUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 amount constituted 25 to 35% 0f the estimated actual loss. I_d. at *28. As the court in Shames V. Hertz Cogp., 2012 U.S. Dist. LEXIS 158577, *6 (S.D. Cal. NOV. 5, 2012) (citing In re Mego Fin. Cogp. Sec. Litig., 213 F.3d 454, 454 (9th Cir. 2000) (Where the court approved a settlement constituting one-sixth 0f the potential recovery), explained: “While settlement amounts that are close to the plaintiff’ s estimate 0f damages provide strong support for approval 0f the settlement, settlement offers that constitute only a fraction of the potential recovery d0 not preclude a court from finding that the settlement is fair.” E also Tromblev V. Nat’l. CitV Bank, 759 F. Supp. 2d 20, 25 (D.D.C. 201 1)(approved settlement between 17 and 24% 0f possible recovery); In re Newbridge Networks Sec. Litig, 1998 U.S. Dist. LEXIS 23238, *7-8 (D.D.C. 1998)(approved settlement between 6 and 17% 0f potential recovery); Baldera V. Massage Envy Franchise, LLC, 2014 U.S. Dist. LEXIS 99966, *16-17 (N.D. Cal. July 21, 2014) (for reimbursement claims under Labor Code § 2802, approved settlement was 8% 0f total potential recovery); In re Toys R Us-Del., Inc. Fair & Accurate Credit Trans. Act Litig, 295 F.R.D. 438, 453-54 (C.D. Cal. 2014)(settlement was 30% of potential recovery). Per the In re Mego, court: “It is well-settled law that a cash settlement amounting t0 only a fraction 0f the potential recovery does not per se render the settlement inadequate 0r unfair.” 213 F.3d at 459. g also Mathien V. Pier 1 Imports (U.S.), Inc., 2017 U.S. Dist. LEXIS 204453, *17 (ED. Cal. Dec. 11, 2017) (quoting Mg.) The monetary consideration the Settlement provides, When coupled With the risks Plaintiff and the drivers face in prevailing in this action, and through a potential appellate process, meets the applicable standards and is entitled to preliminary approval. Rather than constituting “only a fraction” 0f the potential recovery, the $750,000 settlement constitutes approximately 42% of the $1,783,439 estimated potential value of the claims, an amount Defendant vociferously contests.” 4. The Proposed Relief Is Free Of Significant Litigation Risks The Settlement provides for payment t0 the drivers now, rather than a speculative payment years from now. If the litigation continued, and if Plaintiff was able t0 obtain class certification, and the class prevailed, payment would occur at some time in the future, as Defendant would n0 doubt appeal any adverse judgment. The Court of Appeal could disagree With a certification 57 Workman Decl. 1] 15. PRELIMINARY APPROVAL MOTION - 1 8- 3279\SETTLEMENnPRELIMAPPMOTDOC hUJN KOOONOUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 decision, or any part of a potential judgment. If the Court 0f Appeal overturned any part 0f the judgment, it could remand the matter to this Court for further proceedings that, again, could last indefinitely, including another appeal. This delay, and the risks inherent in continued litigation, led Plaintiff and Class Counsel to conclude that reaching this resolution is the best course 0f action.” 5. The Parties Reached The Settlement Following Arms-Length Negotiations As outlined above, the Settlement is a product 0f arms-length negotiations conducted between the parties facilitated through a day-long mediation assisted by David Rotman. While the negotiations were professional, each party zealously advocated their positions. It was only through the efforts of Mr. Rotman that the parties were able to reach an agreement.” 6. The Method 0f Handling Uncashed Checks Is Reasonable Subj ect t0 Court approval, after 90 days, uncashed settlement checks will be deemed void. After this time, the Claims Administrator will perform a second distribution 0f funds 0n a pro rata basis t0 those Class Members Who cashed their individual settlement checks if the amount of the funds remaining due to uncashed checks is at least $4,500.00. The funds associated with any void, uncashed checks after a second distribution, or if the funds remaining from the initial distribution are less than $4,500.00, shall be paid 0n a cy pres basis t0 Legal Aid at Work, or other such charitable organization approved by the Court.“ This method is reasonable. 7. Plaintiff and Class Counsel Will Fairlv and Adequatelv Represent the Class The adequacy requirement examines conflicts 0f interest between named parties and the class(es) they seek to represent. Capital People First V. State Dept. 0f Developmental Services, 155 Cal. App. 4th 676, 697 (2007). Plaintiff and his counsel Will adequately represent all the drivers. There are n0 conflicts between Plaintiff and the proposed Settlement Class and Plaintiff s claims are in line with those of the Settlement Class.“ Further, Class Counsel has extensive experience in wage and hour class action 1itigati0n.62 McGhee V. Bank 0f America, 60 Cal. App. 3d 442, 450-51 (1976) (adequacy met Where there was n0 indication that Class Counsel were not qualified and 58 Workman Decl. 1] 16. 59 Workman Decl. 11 5. 6° Workman Decl. 1] 8, EX. C, Settlement Agreement, 1] 56. 61 Villareal Decl. 1] 3-10, 14 & 14; Workman Decl. 1] 17. 62 Workman Decl. 1W 10 & 11. PRELIMINARY APPROVAL MOTION - 1 9- 3279\SETTLEMENnPRELIMAPPMOTDOC hUJN KOOONOUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 named plaintiff had n0 interests antagonistic to those 0f the proposed class). 8. The Settlement Terms D0 Not Provide A Basis T0 Doubt Its Fairness Those Who will receive benefits under the Settlement are the Class Members who have not excluded themselves. Defendant represents that the putative class has 63 individuals, currently. Class members have 45 days t0 object t0 0r opt out 0f the Settlement.63 The Settlement is not claims-made. Those who d0 not opt out 0f the Settlement need not take any action to receive benefits from the Settlement. If they do not opt-out, they Will receive a check. The release in the Settlement Agreement pertains solely t0 the claims alleged in this action.“ B. The Court Should Approve The Proposed Class Notice And Set Deadlines Courts prefer notice by mail, as such notice meets the requirement that the parties provide “meaningful” notice to the class. Cho V. Seagate Tech. Holdings, Inc., 177 Cal. App. 4th 734, 746 (2009) (notice “must fairly apprise the class members of the terms of the proposed compromise and 0f the options open t0 dissenting class members.”) (citing Wershba, at 25 1). Here, the Settlement Agreement provides for mailed notice. The proposed notice provides an accurate, objective, and understandable explanation 0f the terms of Settlement and the methods by which participants may file obj ections to 0r request exclusion from the Settlement.“ The proposed administrator, Rust Consulting, is experienced in class action settlement administration.“ IV. CONCLUSION Plaintiff requests that the Court grant the Preliminary Approval Application, allow Plaintiff t0 file the FAC, appoint Workman Law Firm as Class Counsel, appoint Plaintiff as Class Representative, approve the settlement documents, appoint Rust Consulting as the Settlement Claims Administrator, and set the following deadlines: December 12, 2019, for the notice mailing deadline (20 days after preliminary approval); January 27, 2020, objection/opt-out deadline (45 days after mailing class notices); and, February 28, 2020, for final approval. Date: October 30, 2019 WORKMAN LAW FIRM, PC By: /s/R0bin G. Workman Robin G. Workman; Attorneysfor Plaintifi’Tom Villareal 63 Workman Decl. 1] 8, Ex. C, Settlement Agreement, 1] 43. 64 Workman Decl. 1] 8, EX. C, Settlement Agreement, 1] 57. 65 Workman Decl. 11 9. 66 Workman Decl. 1] 18; Declaration 0f Rust, 1] 2, EX. A. PRELIMINARY APPROVAL MOTION -20- 3279\SETTLEMENnPRELIMAPPMOTDOC EXHIBIT 2 ©OONO\Ul-I>UJN>-‘ NNNNNNNNNr-tr-tr-tr-tr-tr-tr-tr-tr-tr-t OONONUl-hUJNF-‘OKDOOQQUI-bWNHO 180V338479 Santa Clara - Civil WORKMAN LAW FIRM, PC Robin G. Workman (Bar #145810) robin@workmanlawpc.com Rachel E. Davey (Bar #3 1 6096) rachel@workmanlawpc.com 177 Post Street, Suite 800 San Francisco, CA 94108 Telephone: (415) 782-3660 Facsimile: (415) 788-1028 Attorneysfor Plaintifif Thomas Villarreal 0n behalfofhimselfand all others similarly situated Electronically Filed by Superior Court of CA, County of Santa Clara, on 10/30/2019 3:20 PM Reviewed By: R. Walker Case #1 8CV338479 Envelope: 3589120 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA THOMAS VILLAREAL, 0n behalf 0f himself and all others similarly situated, Plaintiff, VS. MISSION TRAIL WASTE SYSTEMS, INC., and Does 1 through 50, inclusive, Defendants. 1 No. 18CV338479 ASSIGNED FOR ALL PURPOSES TO THE HON. THOMAS E. KUHNLE, DEPT. 5 DECLARATION OF ROBIN G. WORKMAN IN SUPPORT OF PLAINTIFF’S MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT, AND REQUEST TO FILE FIRST AMENDED COMPLAINT Date: November 22, 20 1 9 Time: 9:00 a.m. Dept: 5 DECLARATION OF ROBIN G. WORKMAN ©OONO\Ul-I>UJN>-‘ NNNNNNNNNr-tr-tr-tr-tr-tr-tr-tr-tr-tr-t OONONUl-hUJNF-‘OKDOOQQUI-bWNHO EXHIBIT A: EXHIBIT B: EXHIBIT C: EXHIBIT D: INDEX OF EXHIBITS Plaintiff” s Original Complaint Plaintiff s Proposed First Amended Class Action Complaint Settlement Agreement Proposed Class Notice 2 DECLARATION OF ROBIN G. WORKMAN ©OONO\Ul-I>UJN>-‘ NNNNNNNNNr-tr-tr-tr-tr-tr-tr-tr-tr-tr-t OONONUl-hUJNF-‘OKDOOQQUI-bWNHO I, Robin G. Workman, declare as follows: 1. I am an attorney at law, duly licensed t0 practice before all the courts of the State 0f California, and am principal owner 0f the Workman Law Firm, PC, attorneys of record herein for Plaintiff Thomas Villareal (“Plaintiff”). The following is based on my personal knowledge, and if called upon t0 do so, I could and would competently testify thereto. 2. On November 19, 2018, my firm filed this action, Villareal v. Mission Trail Waste Systems, Ina, Santa Clara Superior Court Case N0. 18CV338479, against Defendant Mission Trail Waste Systems, Inc., 0n behalf 0f Plaintiff Thomas Villareal and those similarly situated aggrieved drivers. In the Complaint, Plaintiff alleges the following claims: (1) failure t0 provide meal periods; (2) failure t0 authorize and permit rest periods; (3) failure t0 maintain accurate payroll records; (4) failure to provide accurate, itemized wage statements; (5) failure t0 permit employees to inspect 0r copy their wage statements; (6) failure to permit employees t0 inspect their personnel records; (7) failure t0 timely pay all wages when due; (8) failure to pay all wages due at the time 0f termination; and, (9) illegally obtaining employees’ fingerprints as a prerequisite 0f their employment and furnishing these fingerprints t0 a third party. In the Complaint, Plaintiff alleges that these Violations 0f the California Labor Code further constitute Violations 0f the Private Attorneys General Act 0f 2004 (“PAGA”), California Labor Code section 2698, et. seq., and are unfair business practices, in Violation of California Business and Professions Code section 17200, et. seq. Attached hereto as Exhibit A is a true and correct copy 0f Plaintiff” s Class Action Complaint. 3. As part 0f the Settlement herein, the parties agreed, and stipulated, to allow Plaintiff to file a First Amended Complaint (“FAC”) which Plaintiff seeks permission t0 file, in connection With Plaintiff’ s motion for preliminary approval 0f this Settlement. As explained in the motion, When evaluating the records provided by Defendant, Plaintiff became aware of Defendant’s rounding practice regarding time entry. This claim was discussed at the mediation, and was part 0f the claims resolved in the Settlement. This FAC sets forth the claims resolved by the global Settlement, including time rounding, for which approval is 3 DECLARATION OF ROBIN G. WORKMAN ©OONO\Ul-I>UJN>-‘ NNNNNNNNNr-tr-tr-tr-tr-tr-tr-tr-tr-tr-t OONONUl-hUJNF-‘OKDOOQQUI-bWNHO sought by the Court in this action. Attached hereto as Exhibit B is a true and correct copy of the (Proposed) First Amended Complaint. 4. Prior t0 the mediation, Defendant produced Plaintiff s personnel file, pay summaries, timecard report from January 1, 2016, to June 11, 2019, Defendant’s meal and rest break policies, collective bargaining agreements, Defendant’s biometric data policy, employee handbooks, Plaintiff” s record requests, applicable job description, and time and payroll records for all putative class members. After conducting an analysis of the materials Defendant produced, I drew on my experience in similar cases t0 assess the strengths and weaknesses of Plaintiff s claims. To assist in this process, my firm retained a class action damage expert, Berger Consulting Group (“BCG”). 5. On August 20, 2019, the parties participated in a full day mediation, conducted by David Rotman. Mr. Rotman is a well-respected wage and hour class action mediator. Although the Parties were unable t0 reach a settlement that day, through further negotiations, and additional assistance from Mr. Rotman, the parties ultimately agreed to the terms 0f a settlement. The parties thereafter executed a Memorandum of Understanding, memorializing the terms 0f the agreement. While the negotiations were professional, each party zealously advocated its positions. It was only through Mr. Rotman’s efforts that the parties reached this initial agreement. Following the mediation, the parties continued their negotiations t0 agree to a long-form agreement, the Settlement the parties present to this Court for approval. g paragraph 8 herein, Exhibit C. 6. The terms 0f the Settlement do not provide a basis to doubt its fairness. Those Who will receive benefits under the Settlement, 1.6., the Settlement Class, are Class Members Who do not exclude themselves from the Settlement. 7. The “Class Members” are all current and former non-exempt sanitation truck drivers employed by Defendant at any time during the Class Period from November 19, 2014, through the date of Preliminary Approval 0f the class action settlement. Defendant represents that there are 63 individuals Who are Class Members as 0f as of October, 2019. 4 DECLARATION OF ROBIN G. WORKMAN ©OONO\Ul-I>UJN>-‘ NNNNNNNNNr-tr-tr-tr-tr-tr-tr-tr-tr-tr-t OONONUl-hUJNF-‘OKDOOQQUI-bWNHO 8. The Settlement Administrator will allocate the Individual Settlement Payments to the Participating Class Members in accordance with each Participating Class Member’s pro rata share 0f workweeks. In my opinion, the weighting of individual settlements based 0n workweeks is fair and reasonable, as this gives the Participating Class Members Who worked more weeks a greater percentage 0f the Settlement. Attached hereto as Exhibit C is a true and correct copy of the Settlement Agreement. 9. The Settlement Agreement provides for mailed notice t0 class members. The proposed Class notice provides an accurate, obj ective, and understandable explanation 0f the terms of Settlement and the methods by which class members may file obj ections to or request exclusion from the Settlement. The Settlement gives participating Class members 45 days, a period of time that Plaintiff believes is reasonable, t0 decide whether to opt out of and/or obj ect to the Settlement. A true and correct copy 0f the proposed class notice is attached hereto as Exhibit D. 10. The Workman Law Firm, PC is well qualified to act as class counsel. Ihave extensive experience in wage and hour class action litigation. In recognition 0f this fact, this Court appointed my firm as class counsel in Stilwell, et a1. V. First Alarm, Santa Clara County Superior Court Case N0. 2015-CV-281763 (order filed December 9, 2016), Robinson et a1. V. Energy Remodeling, Inc., et al., Santa Clara County Superior Court Case N0. 115CV287674 (order filed March 24, 2017), and Oliver V. Konica Minolta, Santa Clara Superior Court, Case N0. 114cv263183 (order filed October 8, 2015). In 2014, I tried an exemption class action to decision in the Sacramento County Superior Court, obtaining an $8.3 million judgment for a class 0f 122 claims adjusters in York Claims Service Wage and Hour Cases, Sacramento County Superior Court Judicial Council Coordination Proceeding N0. 4560 (order filed May 27, 2015). I graduated from Texas Tech School ofLaw in 1989, after which I clerked for the Honorable Jack Hightower 0f the Texas Supreme Court. I then worked as an associate for the international firms of Sonnenschein Nath & Rosenthal and Russin & Vecchi. I started my predecessor firm, Qualls & Workman, LLP, in 1996, and my current firm, Workman Law Firm, PC, in January 0f 2014. At both firms, my practice has specialized in prosecuting wage 5 DECLARATION OF ROBIN G. WORKMAN ©OONO\Ul-I>UJN>-‘ NNNNNNNNNr-tr-tr-tr-tr-tr-tr-tr-tr-tr-t OONONUl-hUJNF-‘OKDOOQQUI-bWNHO and hour class action litigation. I routinely represent clients With respect t0 issues in this area of the law before both the California Courts 0f Appeal and the Ninth Circuit, as reflected in the published decisions of Alcantar V. Hobart, 800 F.3d 1047 (9th Cir. 2015), Reyes V. Macy’s, fl, 202 Cal. App. 4th 1119 (201 1); Kullar V. Foot Locker Retail, Inc., 191 Cal. App. 4th 1201 (201 1); and Bufil V. Dollar Financial Group, Inc., 162 Cal. App. 4th 1193 (2008). Rachel Davey, an associate at my firm, graduated from the University 0f San Francisco School ofLaw in 2016 and was admitted t0 the California Bar in 2017. Between 2005 and December 9, 2013, numerous courts appointed Qualls &Workman, LLP, With either Mr. Qualls, my former partner, 0r me as lead counsel, t0 act as class counsel in class action employment cases, including: Walsh V. IKON Office Solutions, Inc., San Francisco County Superior Court, Case N0. CGC 04 429428 (order filed April 21, 2006); Dell’Orfano V. IKON Office Solutions, Inc., United States District Court, Middle District Of Georgia, Case N0. 5:05-CV-00245 (order filed February 21, 2007); Lopez V. Market Wire, Inc., San Francisco County Superior Court, Case N0. CGC-O6-457732 (order filed August 15, 2007); Byrd V. Autotrader Publishing, et al., San Francisco County Superior Court, Case No. CGC 07-463062 (order filed March 21, 2008); Righetti V. Inside Track, Inc., San Francisco County Superior Court, Case N0. CGC-O6-456053 (order filed April 11, 2008); Dellmore V. Tovs “R” Us, et al., Alameda County Superior Court, Case N0. RG-O7-306616 (order filed May 30, 2008); Dudash V. Vamell Struck, et al., United States District Court, Central District of California, Case N0. C-04-02748 MHP, (order filed June 27, 2008); Garnica V. Wells Fargo Bank, NA, et a1., Santa Barbara County Superior Court, Case N0. D1264187 (order filed August 20, 2008); Louie V. Kaiser Permanente, et a1., United States District Court, Southern District 0f California, Case N0. 08CV0795 (order filed February 2, 2009); Ralston V. US-Reports, Inc., Alameda County Superior Court, Case N0. RG07328773 (order filed May 22, 2009); Wright V. Centerplate, Inc., Alameda County Superior Court, Case No. RG07356589 (order filed June 26, 2009); Tate V. Kaiser, Alameda County Superior Court, Case No. RG07318416 (order filed November 24, 2009); Maciel V. Vance Uniformed Protective Services, Inc., Garda Security, Inc., United States District Court, Northern District of California, Case N0. 3:09-CV-01498 (order filed December 18, 2009); 6 DECLARATION OF ROBIN G. WORKMAN ©OONO\Ul-I>UJN>-‘ NNNNNNNNNr-tr-tr-tr-tr-tr-tr-tr-tr-tr-t OONONUl-hUJNF-‘OKDOOQQUI-bWNHO Mike V. Kaiser Permanente, United States District Court, Northern District 0f California, Case N0. C 08-5374 PJH (order filed December 23, 2009); Wolfe, et a1. V. California Check Cashing Stores Inc et a1., San Francisco County Superior Court, Case No. CGC-08-479518 (order filed February 19, 2010); Bufil V. Dollar Financial Group, Inc., San Francisco County Superior Court, Case N0. CGC-06-456053 (order filed March 11, 2010); Garnica, et a1. V. Verizon Wireless Telecom, Inc., et a1., San Francisco County Superior Court, Case No. CGC-08- 476827 (order filed March 19, 2010); Mann V. NEC Electronics America, Inc., Santa Clara County Superior Court, Case N0. 1-09-CV-132089 (order filed April 28, 2010); Hendren V. USA Checks Cashed, et al., Los Angeles County Superior Court, Case N0. BC 413393 (order filed May 25, 2010); Rivera V. Riverstone Resid. Group, et al., Alameda County Superior Court, Case No. RG08402872 (order filed July 6, 2010); Gonzales V. Lime Energy, San Francisco County Superior Court, Case N0. CGC-09-484745 (order filed December 17, 2010); Green V. Greyhound Lines, Inc., San Francisco County Superior Court, Case N0. CGC-09- 484924 (order filed March 11, 201 1); Manulevu, et a1. V. Professional Security Consultants, Los Angeles County Superior Court, Case N0. BC409603 (order filed May 16, 2012); Amezquita V. Classic Beverage and Distributing Group, Inc., Los Angeles County Superior Court, Case N0. BC412216 (order filed May 17, 2012); Young V. World Courier Ground, Inc., Alameda County Superior Court, Case No. RG1 1603420 (order filed August 2, 2012); Nolan V. Kayo Oil, San Francisco County Superior Court, Case N0. CGC-10-497445 (order filed April 12, 2013); Hall V. O.C. Jones & Sons, Inc., San Francisco County Superior Court, Case N0. CGC-12-523668 (order filed May 10, 2013); McCormack V. WinCo Holdings, Inc., Riverside County Superior Court, Case N0. RIC1200516 (order filed July 5, 2013); Cooper, et a1. V. Eastwestproto, Inc., et a1., Orange County Superior Court, Case N0. 30-2012-00552236- CU-OE-CXC (order filed August 26, 2013); Bunton V. Sephora, San Francisco County Superior Court, Case N0. CGC-10-497025 (order filed August 30, 2013); Morris V. Liguidagents, Alameda County Superior Court, Case N0. RG12638618 (order filed August 30, 2013); Martin V. Kasel Enterprises, et a1., Riverside County Superior Court, Case N0. RIC1210 121 (order filed October 28, 20 1 3); Vega V. Sensient Dehydrated Flavors, LLC, 7 DECLARATION OF ROBIN G. WORKMAN ©OONO\Ul-I>UJN>-‘ NNNNNNNNNr-tr-tr-tr-tr-tr-tr-tr-tr-tr-t OONONUl-hUJNF-‘OKDOOQQUI-bWNHO Stanislaus County Superior Court, Case No. 684568 (order filed March 18, 2014); Nguyen V. JAG Footwear, et al., Alameda County Superior Court, Case N0. RG12649759 (order filed June 19, 2014); LaBoV V. Bare Escentuals, Inc., et a1, Alameda County Superior Court, Case N0. RG12638047 (order filed December 11, 2014). 11. Since I opened Workman Law PC, courts have continued t0 appoint my firm as class counsel. E Bennett V. Pride Bakeries, LLC, Orange County Superior Court, Case No. 30-2012-00595050-CU-OE-CXC (order filed April 22, 2014); Ambrus V. ACE Security, Riverside County Superior Court, Case N0. RIC1303852 (order filed November 14, 2014); Stokes V. CSE Holdings, Inc., et 211., San Francisco Superior Court, Case N0. CGC-13-530640 (order filed 0n December 15, 2014); Otts V. C.O.M.P.A.S.S., Alameda County Superior Court, Case No. RG1 1591441 (order filed January 9, 2015); Allen V. UtiliQuest, San Francisco County Superior Court, Case N0. CGC-12-525644 (order filed February 16, 2015); Stokes V. Interline, San Francisco County Superior Court, Case N0. CGC-12-523274 (order filed April 6, 2015); Battle V. Charming Charlie, San Diego Superior Court, Case N0. 37-2014-00005608 (order filed September 25, 2015); Oliver V. Konica Minolta, Santa Clara Superior Court, Case N0. 114cv263 1 83 (order filed October 8, 2015); Kissinger V. Foot Locker, San Francisco County Superior Court Case N0. CGC-09-487345 (order filed March 24, 2016); Fredrick V. ACE, Riverside Superior Court Case N0. RIC1505009 (order filed June 17, 2016); Alcantar V. Hobart Service, et a1., USDC Central District 0f California, EDCV 11-1600 PSG (SPX) (order filed June 22, 2016); Garnett V. ADT, USDC Eastern District 0f California Case N0. 2: 14-CV- 285 1 WBS (order filed June 28, 2016); Stilwell, et a1. V. First Alarm, Santa Clara County Superior Court Case N0. 2015-CV-281763 (order filed December 9, 2016); Murphy V. Care lst Health Plan, Alameda County Superior Court Case N0. RG15784123 (order filed January 13, 2017); Robinson, et a1. V. Energy Remodeling, Inc., et a1., Santa Clara County Superior Court Case N0. 115CV287674 (order filed March 24, 2017); Schuett V. ALLDATA, LLC, Alameda County Superior Court Case N0. RG15765228 (order filed April 7, 2017); Young V. World Courier Ground, Inc., et al., Alameda County Court Case Number RG1683 141 (Order filed May 26, 2017); Rvpka V. Volume Snacks, Inc., et a1., Sacramento County Superior Court Case 8 DECLARATION OF ROBIN G. WORKMAN ©OONO\Ul-I>UJN>-‘ NNNNNNNNNr-tr-tr-tr-tr-tr-tr-tr-tr-tr-t OONONUl-hUJNF-‘OKDOOQQUI-bWNHO N0. 34-2015-00184135 (Order filed December 5, 2017); and Williams, et a1. V. ETC Institute, et_a1., San Francisco Superior Court, Case No. CGC-17- 563308 (order filed February 19, 2019) 12. Pursuant to the Settlement, Defendant Will pay a gross amount, the Gross Settlement Fund (“GSF”) 0f $750,000. The average rate ofpay for the drivers was approximately $40.00 per hour. Berger analyzed the maximum potential damages from the claims presented. The analysis revealed the following: For the rounding claim, there were 855 hours unpaid due t0 rounding. The maximum value 0f this claim is $60,684. Assuming a Violation for every day that Defendant auto-deducted a 30-minute meal break for all shifts in excess of 5 hours, the maximum damages for the meal period claim is $1,382,755. For the rest period claim, assuming a Violation every week, the damages arising from this claim are $320,000. The exchange of materials and information revealed that the other claims Plaintiff alleged d0 not have value. For example, it appears that Plaintiff is the only employee Who asked for a copy of his personnel file and did not receive same. In like vein, the exchange of materials revealed that Defendant did not provide fingerprint data to a third party. The only entity that used this data was an agent of Defendant, its payroll processor ADP. Even ADP only used an electronic signature, not the actual fingerprint. As such, the maximum damages for the claims presented, based 0n the assumptions stated, total $1,783,439. 13. The GSF 0f $750,000 results in an average payout of $7,000 per driver. I believe that this amount is a reasonable settlement. To put this amount in perspective, in the High-Tech Employee Antitrust Litigation, 2015 U.S. Dist. LEXIS 11805 1, *23 (N.D. Cal. Sept. 2, 2015), a case brought by employees alleging that their employers conspired t0 depress their wages, Which resulted in a $415,000,000 settlement, the class members received, 0n average, just $5,770 each. This Settlement, that provides class members with amounts higher than the amount received by class members in one of the largest class action settlements t0 recover wages for employees, militates in favor of a finding 0f reasonableness. This is particularly true since Defendant contends that it owes nothing t0 the drivers. Defendant is adamant that it complied With all California Labor Code provisions. 9 DECLARATION OF ROBIN G. WORKMAN ©OONO\Ul-I>UJN>-‘ NNNNNNNNNr-tr-tr-tr-tr-tr-tr-tr-tr-tr-t OONONUl-hUJNF-‘OKDOOQQUI-bWNHO 14. Defendant asserted that it employed a permissible time rounding practice under See’s Candy Shops, Inc. V. Superior Court, 210 Cal.App.4th 889 (2012), and therefore no damages flowed from this claim. Defendant also asserted that Plaintiff did not present Viable meal 0r rest period claims, arguing that n0 meal period claims existed because putative class members are union employees subject t0 a valid collective bargaining agreement. Based on this fact, Defendant asserted that putative class members are exempt from the meal period requirements of California law pursuant t0 Labor Code section 512(6). Defendant also presented evidence which it asserted establishes that putative class members lost n0 pay due t0 the automatic 30-minute meal period deduction, as their union contract guaranteed eight hours 0fpay and drivers generally completed their route work in less than 7.5 hours. Taking this fact into account, Defendant calculated that even assuming that putative class members were never able t0 take a 30-minute meal period, the maximum potential damages for this claim would be only about $425,000, further arguing that even this figure was subj ect t0 significant reduction as Defendant believes that putative class members took 30-minute meal breaks on most, if not all workdays. Defendant therefore asserted that a more reasonable potential liability figure would be less than $100,000. Defendant also asserted that rest breaks were covered by the applicable collective bargaining agreement and that putative class members had ample opportunity to take such breaks. With respect t0 both claims, Defendant asserted that the claims were not suitable for class determination, insisting that individual issues predominated with respect t0 liability. 15. Ibelieve that the consideration, the GSF of $750,000, which represents 42% of the total maximum recovery as calculated by Plaintiff’ s expert, significantly more than Defendant’s estimate, and over 50% of What Plaintiff believes t0 be the strongest claim, the auto-deduction meal period claim, is a reasonable settlement. This is particularly true given the average amount Class Members Will receive is approximately $7,000. 16. The Settlement provides for payment t0 the drivers now, rather than a speculative payment years from now. If the litigation continued, and if Plaintiff were able to obtain class certification, and the class prevailed, payment would occur at some time in the 10 DECLARATION OF ROBIN G. WORKMAN \OWQONUI-PUJN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 future, as Defendant would no doubt appeal any adverse judgment. The same is true for representative claims. The Court of Appeal could disagree with a certification decision, 0r any part 0f a potential judgment. If the Court 0f Appeal overturned any part 0f the judgment, it could remand the matter t0 this Court for further proceedings that, again, could last indefinitely, including another appeal. This delay, and the risks inherent in continued litigation and the appellate process, led Plaintiff and Class Counsel t0 conclude that reaching this resolution is the best course 0f action. 17. The class representative enhancement sought for Mr. Villareal is reasonable given the risks he undertook t0 prosecute these claims and the work he performed t0 help obtain this recovery. Mr. Villareal agreed t0 prosecute this action despite 0f the significant risk of retaliation he faced. This is particularly true because Mr. Villareal, is a current employee. Mr. Villareal provided invaluable assistance in the prosecution 0f this case, obtained and provided documents, assisted in the preparation for mediation, met with me and others at my firm on numerous occasions, and timely responded to continual inquiries from me and others at my firm. T0 my knowledge, neither Mr. Villareal nor my firm have any conflicts 0f interest with any 0f the proposed class members. Mr. Villareal is also aware 0f his duties as class representative and actively participated in the prosecution 0f this case. 18. As set forth in the declaration of Eric Bishop of Rust Consulting, the proposed Settlement Administrator, Rust is experienced in class action settlement administration and is capable 0f handling the administration of this settlement. I declare under penalty 0f perjury under the laws; San Francisco, California. 11 DECLARATION OF ROBIN G. WORKMAN EXHIBIT A KOOONONUI-bwwu-A NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO WORKMAN LAW FIRM, PC Robin G. Workman (Bar # 145 8 1 0) robin@workmanlawpc.com Rachel E. Davey (Bar #3 16096) rachel@workmanlawpc.com 177 Post Street, Suite 800 San Francisco, CA 94108 Telephone: (415) 782-3660 Facsimile: (415) 788-1028 Attorneysfor Plaintifif Thomas Villarreal 0n behalfofhimselfand all other similarly situated E-FILED 11/19/2018 3:48 PM Clerk of Court Superior Court of CA, County of Santa Clara 180V338479 Reviewed By: S. Alvarez SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA THOMAS VILLAREAL, 0n behalf 0f himself and all others similarly situated, Plaintiff, VS. MISSION TRAIL WASTE SYSTEMS, INC., and Does 1 through 50, inclusive, Defendants. COMPLAINT -1- O 18CV338479 COMPLAINT Unlimited Civil Case The Amount Demanded Exceeds $25,000 3280\PLEADINGS\COMPLA|NT.DOC KOOONONUI-bwwu-A NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO Plaintiff Thomas Villarreal (“Plaintiff”) by his attorneys, brings this action 0n behalf 0f himself, all others similarly situated, and the general public, 0n information and belief, except those allegations that pertain t0 the named Plaintiff and his attorneys (which are alleged 0n personal knowledge), hereby alleges as follows: JURISDICTIONAL ALLEGATIONS 1. This class action lawsuit arises from ongoing wrongful conduct by Defendant Mission Trail Waste Systems, Inc. (“Defendant”), by its unlawful (1) failure t0 provide meal breaks, 0r provide compensation for missed meal breaks, t0 Plaintiff and proposed class members, as required by California Labor Code sections 226.7 and 512, and section 11 0f applicable Industrial Welfare Commission Wage Orders (“Wage Orders”); (2) failure t0 provide rest breaks, 0r provide compensation for missed rest breaks t0 Plaintiff and proposed class members, as required by California Labor Code section 226.7, and section 12 0f applicable Wage Orders; (3) failure t0 maintain accurate records 0f Plaintiff’s and proposed class members’ payroll records showing hours worked daily and wages earned in Violation 0f California Labor Code section 1174; (4) failure t0 provide accurate itemized wage statements t0 Plaintiff and proposed class members containing information as required by California Labor Code section 226; (5) failure t0 permit employees t0 inspect 0r copy wage statements in Violation 0f California Labor Code section 226(0); (6) failure t0 permit employees t0 inspect personnel records, in Violation 0f California Labor Code section 1198.5; (7) failure t0 timely pay Plaintiff and proposed class members all wages when due, in Violation 0f California Labor Code section 204; (8) failure t0 pay members 0f the proposed class all wages due at the time 0f termination in Violation 0f California Labor Code sections 201-203; and, (9) Violation 0f California Labor Code section 1051 in that Defendant obtained employees’ fingerprints as a prerequisite 0f their employment and shared these fingerprints with a third party. Said conduct violated each California Labor Code section as set forth in California Labor Code section 2699.5. Said conduct, in addition, constitutes Violations 0f California Labor Code sections 558 and 1198. The described conduct renders Defendant liable for civil penalties as set forth in California Labor Code sections 203, 210, 226(6), 226(f), 226.3, 558, 1054, 1174.5, 1198.5(k), 2699(a), 2699(f), and 2699.5. These failures further constitute unfair COMPLAINT -2- 3280\PLEADINGS\COMPLA|NT.DOC KOOONONUI-bwwu-A NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO business practices, in Violation 0f California Business and Professions Code section 17200, et. seq., and Violations 0f California Labor Code section 2698, et. seq., the Private Attorneys General Act of 2004 (“the PAGA”), through which Plaintiff seeks civil penalties. 2. Defendant Mission Trail Waste Systems, Inc., is and at all and at all relevant times was, a corporation doing business within the State 0f California and is an employer under applicable Industrial Welfare Commission Orders. Defendant’s headquarters are located in Santa Clara, California. GENERAL ALLEGATIONS 3. This action seeks relief for unremedied Violations 0f California law, including, inter alia; damages, reimbursements, restitution, penalties, interest and attorneys’ fees, as appropriate, t0 members 0f the proposed classes, aggrieved employees, and t0 Victims 0f the practices at issue, who have not been provided statutory meal breaks, 0r compensation for missed meal breaks, as required by California Labor Code sections 226.7, 512, and 558; who have not been provided statutory rest breaks, 0r compensation for missed rest breaks, as required by California Labor Code sections 226.7 and 558; who have not been timely paid for all wages earned, even upon termination, in Violation 0f California Labor Code sections 201-204; who have not been furnished with accurate wage statements in Violation 0f California Labor Code section 226; who were not allowed t0 review and/or obtain a copy 0f their personnel file in Violation of California Labor Code section 1198.5; and, who were required t0 submit their fingerprints as a prerequisite 0f whose employment, which were shared with a third party in Violation 0f California Labor Code section 105 1. Plaintiff is informed and believes that the damages, reimbursements, restitution, penalties, interest and attorneys’ fees d0 not exceed an aggregate 0f $4,999,999.99 and that Plaintiffs individual claims d0 not exceed $74,999.99. 4. The names and capacities 0f defendants sued herein under California Code 0f Civil Procedure section 474 as Does 1 through 50, inclusive, are presently not known to Plaintiff, who therefore sues these defendants by such fictitious names. Plaintiff will seek t0 amend this Complaint and include these Doe defendants’ names and capacities when they are ascertained. Each fictitiously named defendant is responsible in some manner for the conduct alleged herein COMPLAINT -3- 3280\PLEADINGS\COMPLA|NT.DOC KOOONONUI-bwwu-A NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO and for the injuries suffered by Plaintiff, the members 0f the class, aggrieved employees, and the general public. 5. At all times mentioned in the causes 0f action alleged herein, each and every Defendant was an agent and/or employee 0f each and every other Defendant. In doing the things alleged in the causes 0f action stated herein, each and every Defendant was acting within the course and scope 0f this agency 0r employment and was acting with the consent, permission and authorization 0f each 0f the remaining Defendants. A11 actions 0f each Defendant as alleged in the causes 0f action stated herein were ratified and approved by every other Defendant 0r their officers 0r managing agents. 6. Plaintiff is a current employee 0f Defendant. Defendant employs Plaintiff as an hourly-paid sanitary truck route driver in California. Plaintiff, and those similarly situated employees, drive routes t0 pick up waste in the Santa Clara, California, area. Defendant routinely requires Plaintiff, and similarly situated drivers, t0 work more than five hours per day without receiving mandated off-duty meal periods. Whether 0r not Plaintiff and similarly situated drivers indicate 0n their time sheets that they take statutory meal breaks, Defendant “auto-deducts” a 30- minute meal break from the daily hours worked by drivers, and does not pay drivers for that 30 minutes worked, 0r the one-hour 0fpremium pay at each driver’s regular rate 0f pay for forgoing the meal break. Although Defendant auto-deducts 30 minutes from Plaintiff’s, and similarly situated drivers’ wage statements for meal breaks, Plaintiff and similarly situated drivers routinely miss such meal breaks. This is because, t0 make it t0 all 0f the waste pick ups set by Defendant, and transport all 0f this waste t0 the dump Defendant designates before it closes, Plaintiff and similarly situated drivers cannot stop t0 take their statutory 30-minute uninterrupted meal breaks. Defendant is aware 0f this, because Defendant sets drivers’ route assignments. For these reasons, Defendant fails to provide Plaintiff and similarly situated drivers with uninterrupted 30-minute off-duty meal breaks. Plaintiff and similarly situated drivers sometimes also sometimes work “double shifts.” When this occurs, they often work in excess 0f 10 hours per day. When they d0 so, Defendant does not provide Plaintiff and those similarly situated drivers with a second meal period as required by Labor Code section 5 12 and the applicable Wage Order. When the drivers COMPLAINT -4- 3280\PLEADINGS\COMPLA|NT.DOC KOOONONUI-bwwu-A NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO d0 not receive statutory meal breaks, Defendant does not pay Plaintiff, 0r those similarly situated drivers, with the additional hour 0f compensation as required by Labor Code sections 226.7 and 558 and the applicable Wage Order. As a result, Defendant did not pay Plaintiff, 0r those similarly situated drivers, with all wages due as required by Labor Code sections 201-204. 7. Defendant routinely requires Plaintiff, and similarly situated drivers, t0 work more than 3.5 hours per day without receiving mandated off-duty, uninterrupted rest periods, in Violation 0f California Labor Code sections 226.7, 558, 1198, and applicable Wage Orders. In addition, Plaintiff and similarly situated drivers often work in excess 0f 8 hours per day, even exceeding 12 hours per day, but Defendant does not authorize and permit them t0 take a second 0r third statutory rest break, respectively. Plaintiff and similarly situated drivers cannot take mandated 10-minute rest breaks because they d0 not have time t0 d0 so in order t0 meet the driving schedules set by Defendant. When the drivers d0 not receive uninterrupted 10-minute off- duty rest breaks, Defendant does not pay Plaintiff, 0r those similarly situated drivers, with the additional hour 0f compensation as required by Labor Code section 226.7 and applicable Wage Orders. As a result, Defendant did not pay Plaintiff, 0r those similarly situated drivers, with all wages due as required by Labor Code sections 201-204. 8. Because Defendant did not adequately keep records 0f Plaintiff” s and similarly situated drivers’ meal breaks taken and not taken, as required by Labor Code sections 226.7 and 512, Defendant failed t0 maintain accurate and complete payroll records, as required by Labor Code section 1174(d). This failure gives rise t0 civil penalties under Labor Code section 1174.5. 9. Defendant also failed t0 furnish accurate itemized statements t0 Plaintiff, and other similarly situated drivers, containing information as required by California Labor Code section 226. Because Defendant “auto-deducts” 30-minute meal breaks from drivers’ hours worked, and because Defendant does not pay the additional hour 0f compensation when drivers are not provided meal and/or rest breaks as required by Labor Code section 226.7 and applicable Wage Orders, the wage statements d0 not reflect all hours worked, all gross 0r net wages earned, 0r the hours worked and the corresponding hourly rates in Violation 0f Labor Code sections 226(a)(1), (2), (5), and (9). COMPLAINT -5- 3280\PLEADINGS\COMPLA|NT.DOC KOOONONUI-bwwu-A NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO 10. During Plaintiff” s employment in either 2017 or 20 1 8, Plaintiff requested Defendant permit him t0 inspect his payroll records for the last three years. Defendant failed t0 permit Plaintiff t0 inspect 0r copy all 0f the records he requested within 21 days, in Violation 0f California Labor Code section 226 subsection (c). Defendant violated subsection (c) with respect t0 other drivers’ requests for the same, because Defendant admitted it n0 longer has access t0 the records from 2016 and prior, because it changed payroll companies in 2016. Plaintiff and similarly situated drivers who were denied this request are therefore entitled t0 statutory penalties pursuant t0 section 226 subsection (f). 11. During Plaintiff” s employment, Plaintiff requested Defendant permit him t0 inspect his personnel records for the past three years, including records relating t0 his performance 0r t0 any grievance concerning him, maintained by Defendant, pursuant t0 California Labor Code section 1198.5. After 30 days, Defendant had provided Plaintiff with some, but not all 0f the personnel records Defendant is required t0 keep pursuant t0 section 1198.5. Because Defendant failed t0 permit Plaintiff, and similarly situated drivers t0 review their complete personnel files in Violation 0f section 1198.5, they are entitled t0 penalties pursuant t0 section 1198.5 subsection (k). 12. Because Defendant failed t0 pay Plaintiff and similarly aggrieved drivers an extra hour at the regular rate for forgone meal breaks and rest breaks, Defendant failed t0 timely pay Plaintiff and similarly aggrieved drivers all wages when due, in Violation 0f Labor Code section 204. Plaintiff therefore seeks t0 recover civil penalties for this Violation as a representative 0f the State, pursuant t0 Labor Code sections 210, 2699.3 and 2699.5. 13. Defendant failed t0 pay Plaintiff and proposed class members an extra hour at the regular rate for their forgone meal breaks and rest breaks. During the relevant period, the employment 0f many proposed class members with Defendant ended and they were not paid all wages due either immediately 0r within 72 hours 0f termination or resignation, in Violation of Labor Code sections 201 and 202. Plaintiff therefore seeks wages as civil penalties 0n behalf 0f those proposed class members who were not paid all wages due either immediately 0r within 72 of termination 0r resignation, pursuant t0 Labor Code section 203. COMPLAINT -6- 3280\PLEADINGS\COMPLA|NT.DOC KOOONONUI-bwwu-A NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO 14. During Plaintiff” s employment, Defendant violated California Labor Code section 1051 because Defendant obtained Plaintiff’s and all other hourly employees’ fingerprints on its ADP thumb scanning device, as a prerequisite 0f their employment. Defendant then shared these fingerprints with a third-party company. Defendant knowingly permitted this practice, in Violation of California Labor Code section 1052. 15. Given the Violations 0f the aforementioned Labor Code sections and Wage Orders, Defendant is therefore liable for unfair business practices, in Violation 0f California Business & Professions Code section 17200, et. seq. 16. Given the Violations 0f the aforementioned Labor Code sections and Wage Orders, Defendant is therefore liable for civil penalties set forth within, and authorized by, the PAGA, California Labor Code section 2698, et. seq. CLASS ALLEGATIONS 17. Plaintiff is, and during all relevant times, was, a resident 0f the State 0f California. Plaintiff sues on behalf 0f himself and the following subclasses 0f employees 0f Defendant in California: (a) all drivers employed by Defendant in California during the four years preceding the filing of this complaint t0 present; (b) A11 persons in the employ of Defendant in California who, from the one year preceding the filing 0f this complaint t0 the present, made requests t0 copy 0r inspect their records containing information employers must keep pursuant t0 Labor Code section 226 subsection (a); (c) A11 persons in the employ of Defendant in California who, from the one year preceding the filing 0f this complaint t0 the present, made requests t0 copy 0r inspect their personnel records; and (d) A11 persons in the employ of Defendant in California, from the four years preceding the filing 0f this complaint t0 present, who, as a condition 0f their employment, were required t0 provide their fingerprints, and who are/were COMPLAINT -7- 3280\PLEADINGS\COMPLA|NT.DOC KOOONONUI-bwwu-A NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO required t0 use their fingerprints for the purposes 0f clocking in and out from work. 18. Because Plaintiff, in his employment with Defendant as a driver, was routinely required t0 work without statutory meal periods, for which Plaintiff was not properly compensated, was routinely required t0 work without statutory rest periods, for which Plaintiff was not properly compensated, was not permitted t0 inspect either his payroll records for the last three years 0r his complete personnel file for the past three years, failed t0 receive timely and accurate wage statements, and was not paid all wages earned when they were due, and was required t0 provide his fingerprints, which were used for time keeping purposes, as a condition of employment, Plaintiff’s claims are typical 0f the proposed class. 19. Plaintiff will fairly and adequately represent and protect the interests 0f the members 0f the proposed class in that he has n0 disabling conflict 0f interest that would be antagonistic t0 those 0f the other members 0f the proposed class. Plaintiff retained counsel who are competent and experienced in the prosecution 0f class action wage and hour Violations. 20. The proposed subclasses are sufficiently numerous and the class members are geographically dispersed throughout California, the joinder 0fwhom in one action is impracticable, such that the disposition 0fwhose claims in a class action will provide substantial benefits t0 both the parties and the Court. 21. There is a well-defined community 0f interest in the questions 0f law and fact involved affecting the parties t0 be represented. The questions 0f law and fact common t0 the proposed classes predominate over questions that may affect individual class members, include but are not limited t0 the following: (a) Whether Defendant implemented and engaged in a practice whereby Defendant unlawfully failed t0 provide meal breaks, 0r provide compensation for missed meal breaks, t0 Plaintiff and the proposed class members COMPLAINT -8- 3280\PLEADINGS\COMPLA|NT.DOC KOOONONUI-bwwu-A NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO (b) (C) (d) (e) (f) (g) (h) (i) (i) COMPLAINT Whether Defendant implemented and engaged in a practice whereby Defendant unlawfully failed t0 provide rest breaks, 0r provide compensation for missed rest breaks, t0 Plaintiff and the proposed class members Whether Defendant implemented and engaged in a practice whereby Defendant unlawfully failed t0 maintain accurate payroll records for Plaintiff and proposed class members Whether Defendant implemented and engaged in a practice whereby Defendant failed t0 provide Plaintiff and proposed class members accurate itemized wage statements; Whether Defendant implemented and engaged in a practice whereby Defendant failed t0 permit employees t0 inspect 0r copy their wage statements; Whether Defendant implemented and engaged in a practice whereby Defendant failed t0 permit employees t0 inspect personnel records; Whether Defendant implemented and engaged in a practice whereby Defendant failed to timely pay Plaintiff and proposed class members all wages when due; Whether Defendant implemented and engaged in a practice whereby Defendant failed t0 pay proposed class members all wages due at the time 0f termination in Violation 0f California Labor Code sections 201-203; Whether Defendant implemented and engaged in a practice whereby Defendant obtained Plaintiff’s and proposed class members’ fingerprints as a prerequisite 0f their employment and shared these fingerprints with a third party; Whether the practices 0f Defendant as alleged herein violated, inflm, applicable provisions 0f the California Labor Code, including but not limited t0 sections 201-204, 226, 226.7, 512, 1051, 1174, 1198, 1198.5, the Unfair Competition Law codified in California Business and Professions Code section 17200, e_tfl, and the Private Attorneys General Act 0f 2004 (the PAGA), California Labor Code section 2698, e_tm -9- 3280\PLEADINGS\COMPLA|NT.DOC KOOONONUI-bwwu-A NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO 22. Plaintiff and the proposed class members have all similarly suffered irreparable harm and damages as a result 0f Defendant’s unlawful and wrongful conduct, including but not limited t0 Defendant’s pattern and practice 0f failure t0 provide rest and meal periods and compensation for work without rest and meal periods; pattern and practice 0f failing t0 furnish accurate itemized wages statements; pattern and practice 0f failing t0 permit employees t0 inspect complete records for the past three years 0f their payroll records and their personnel files within the statutory time frames required; pattern and practice 0f failing t0 provide accurate wage statements; pattern and practice 0f requiring employees t0 provide their finger prints as a condition 0f employment, and pattern and practice 0f failing t0 pay its employees all wages when due. These issues are common t0 all proposed class members, making class treatment especially appropriate. Because the actions 0f Defendant toward proposed class members follow common patterns, all 0f which are reflected in the records possessed by Defendant, this action will provide substantial benefits t0 all proposed class members. Absent this action, Defendant’s unlawful conduct will continue unremedied and uncorrected. FIRST CAUSE OF ACTION (Applicable t0 Subclass (a)) (Meal Break Violations: Cal. Lab. Code §§ 226.7 & 512 & Applicable Industrial Welfare Commission Wage Orders §11) 23. Plaintiff and proposed class members incorporate by reference the allegations contained in the foregoing paragraphs 0f this complaint as if fully set forth herein. 24. Throughout the approximately 20 years 0f Plaintiff” s employment with Defendant, Defendant engaged in a pattern and practice 0f requiring Plaintiff, and similarly situated drivers, t0 work more than five hours per day without receiving statutory 30-minute off-duty meal periods. Defendant also engaged in a pattern and practice 0f requiring Plaintiff and proposed class members t0 work more than 10 hours a day without providing Plaintiff and proposed class members with a second, statutory 30-minute off-duty meal break. Defendant likewise did not pay Plaintiff 0r proposed class members an additional hour 0f compensation when Plaintiff or proposed class members did not receive their statutory 30-minute off-duty meal breaks. This COMPLAINT -10- 3280\PLEADINGS\COMPLA|NT.DOC KOOONONUI-bwwu-A NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO failure violated California Labor Code sections 226.7 and 5 12 and section 11 0f the applicable Wage Order. 25. Defendant requires Plaintiff and each 0f the proposed class members t0 adhere t0 a driving route for waste pick-ups. These routes often d0 not allow for off-duty 30-minute meal breaks. Additionally, in order t0 make it t0 all 0f the pick-up locations, while driving safely and within the speed limits, and make it t0 the dump by the designated time, drivers d0 not have time t0 take their statutory 30-minute off-duty meal breaks. As such, when Plaintiff and proposed class members drive these routes, they d0 not receive mandated 30-minute off-duty meal breaks. 26. Defendant is aware that drivers are often unable t0 take their statutory 30-minute off-duty meal breaks, but does not pay Plaintiff, 0r proposed class members, with the additional hour 0f compensation, as required by section 11 0f applicable Wage Orders and Labor Code sections 226.7 and 558. Instead, Defendant engages in the pattern and practice 0f “auto- deducting” 30 minutes 0f time worked for meal breaks. This Violation 0f section 11 0f applicable Wage Orders is also a Violation 0f Labor Code sections 558 and 1198, for which Defendant is liable for penalties under the PAGA, Labor Code section 2699 e_t fl. 27. As a result 0f Defendant’s failure t0 pay Plaintiff and proposed class members for missed meal periods, Defendant did not pay Plaintiff, 0r those similarly situated employees, with all wages due as required by Labor Code sections 201-204, for which Plaintiff seeks penalties pursuant t0 Labor Code sections 203, 210, 558, 1198, 2699.3, and 2699.5. 28. As Defendant augmented time sheets t0 reflect Plaintiff and proposed class members did not work during hours they did work, and did not pay Plaintiff 0r proposed class members the additional hour 0f compensation when they were not provided meal breaks as required by Labor Code sections 226.7 and 558, Defendant did not furnish Plaintiff 0r proposed class members with accurate wage statements, in Violation 0f Labor Code section 226 subsection (a), as the wage statements d0 not reflect all gross wages earned (§ 226(a)(1)), total hours worked (§ 226(a)(2)), 0r net wages earned (§ 226(a)(5)). COMPLAINT -1 1- 3280\PLEADINGS\COMPLA|NT.DOC KOOONONUI-bwwu-A NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO 29. As a result 0f Defendant’s failures, Plaintiff and the proposed class members are entitled t0 recover the additional hour 0f compensation as set forth in California Labor Code sections 226.7 and 558. 30. Plaintiff and proposed class members are therefore entitled t0 the relief requested below. SECOND CAUSE OF ACTION (Applicable t0 Subclass (a)) (Rest Break Violations: Cal. Lab. Code §§ 226.7 & Applicable Industrial Welfare Commission Wage Orders §12) 3 1. Plaintiff and the proposed class members incorporate by reference the allegations contained in the foregoing paragraphs 0f this complaint as if fully set forth herein. 32. During all relevant periods, Defendant routinely required Plaintiff and proposed class members t0 work more than 3.5 hours without providing Plaintiff and proposed class members with mandated 10-minute rest breaks. Defendant likewise did not pay Plaintiff or proposed class members an additional hour 0f compensation when Plaintiff 0r proposed class members did not receive the mandated 10-minute meal breaks. This failure violated section 12 0f applicable Wage Orders and California Labor Code section 226.7. This Violation 0f section 12 0f applicable Wage Orders is also a Violation 0f Labor Code section 1198, for which Defendant is liable for penalties under the PAGA, Labor Code section 2698 e_t fl. Plaintiff also seeks civil penalties for this Violation pursuant t0 Labor Code section 558, because Defendant violates “any provision regulating hours and days 0fwork in any order 0f the Industrial Welfare Commission,” here, section 12 0f applicable Wage Orders. 33. Defendant requires Plaintiff and each 0f the proposed class members t0 adhere t0 a driving route for waste pick-ups. These routes often d0 not allow for off-duty 10-minute rest breaks. Additionally, in order t0 make it t0 all 0f the pick-up locations, while driving safely and within the speed limits, and make it t0 the dump by the designated time, drivers d0 not have time t0 take their statutory 10-minute off-duty rest breaks. As such, when Plaintiff COMPLAINT -12- 3280\PLEADINGS\COMPLA|NT.DOC KOOONONUI-bwwu-A NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO and proposed class members drive these routes, they d0 not receive mandated 10-minute off- duty rest breaks. 34. Defendant is aware that drivers are often unable t0 take their statutory 10- minute off-duty rest breaks, but does not pay Plaintiff, 0r proposed class members, with the additional hour 0f compensation, as required by applicable Wage Orders and Labor Code section 226.7. 35. As a result 0f Defendant’s failure t0 pay Plaintiff and proposed class members for missed rest periods, Defendant also did not pay Plaintiff, 0r proposed class members, with all wages due as required by Labor Code sections 201-204, for which Plaintiff seeks penalties pursuant t0 Labor Code sections 203, 210, 558, 1198, and 2698 et seq. 36. Because Defendant did not pay Plaintiff 0r proposed class members the additional hour 0f compensation when they were not provided rest breaks as required by Labor Code sections 226.7 and section 12 0f applicable Wage Orders, Defendant did not furnish Plaintiff 0r proposed class members with accurate wage statements, in Violation 0f Labor Code section 226(a), as the wage statements d0 not reflect all gross wages earned (§ 226(a)(1)), total hours worked (§ 226(a)(2)), 0r net wages earned (§ 226(a)(5)). 37. As a result 0f Defendant’s failures, Plaintiff and proposed class members are entitled t0 recover the additional hour 0f compensation as set forth in California Labor Code sections 226.7 and 558. 38. Plaintiff and proposed class members are therefore entitled t0 the relief requested below. THIRD CAUSE OF ACTION (Applicable t0 Subclass (a)) (Inaccurate Wage Statements: Cal. Lab. Code § 226) 39. Plaintiff and proposed class members incorporate by reference the allegations contained in the foregoing paragraphs 0f this complaint as if fully set forth herein. 40. During the relevant time period, Defendant failed t0 pay Plaintiff, and proposed class members, with the additional hour 0f compensation owed when the class members did not COMPLAINT -13- 3280\PLEADINGS\COMPLA|NT.DOC KOOONONUI-bwwu-A NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO receive mandated off-duty meal 0r rest breaks. In addition, because Defendant auto-deducted time for meal periods for which Plaintiffs and class members did not receive, Defendant routinely issued wage statements that did not accurately reflect all hours worked, 0r all gross 0r net wages earned. As such, Defendant failed t0 furnish accurate itemized wage statements t0 Plaintiff and proposed class members containing information as required by California Labor Code section 226 subdivision (a) paragraphs (1) gross wages earned, (2) total hours worked, and (5) net wages earned. These failures caused Plaintiff and proposed class members t0 suffer injury as defined by California Labor Code section 226(e)(2)(B)(i). As a result 0f Defendant’s failures, Plaintiff and proposed class members are entitled t0 recover the penalties and attorneys’ fees as set forth in California Labor Code section 226(e)(1). 41. As a result 0f Defendant’s Violations 0f Labor Code section 226(a), Plaintiff and proposed class members are also entitled t0 recover the penalties, and interest thereon, as set forth in California Labor Code section 226.3. 42. Plaintiff also seeks penalties for Defendant’s Violations 0f Labor Code section 226 subsection (a), paragraphs (1), (2), and (5) pursuant t0 Labor Code sections 2699.3 and 2699.5, and attorneys’ fees pursuant t0 section 2699(g)(1). 43. Plaintiff and proposed class members are therefore entitled t0 the relief requested below. FOURTH CAUSE OF ACTION (Applicable t0 Subclass (b)) (Failure T0 Permit Employee Inspection Of Payroll Records: Cal. Lab. Code § 226(c)) 44. Plaintiff and proposed class members incorporate by reference the allegations contained in the foregoing paragraphs 0f this complaint as if fully set forth herein. 45 . During Plaintiff” s employment in either 2017 0r 2018, Plaintiff that requested Defendant permit him t0 inspect his payroll records for the last three years, as specified in Labor Code section 226 subsection (b). Defendant failed t0 permit Plaintiff t0 inspect 0r copy all of the records he requested within 21 days, in Violation 0f California Labor Code section 226 subsection (c). Defendant violated subsection (c) with respect t0 other drivers’ requests for the same, because COMPLAINT -14- 3280\PLEADINGS\COMPLA|NT.DOC KOOONONUI-bwwu-A NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO Defendant admitted it n0 longer has access t0 the records from 2016 and prior, because it changed payroll companies in 2016. Plaintiff and similarly situated drivers who were denied this request are therefore entitled t0 statutory penalties pursuant t0 section 226 subsection (f). 46. Plaintiff and proposed class members are therefore entitled t0 the relief requested below. FIFTH CAUSE OF ACTION (Applicable t0 Subclass (c)) (Failure T0 Permit Employee Inspection Of Personnel Records: Cal. Lab. Code § 1198.5) 47. Plaintiff and proposed class members incorporate by reference the allegations contained in the foregoing paragraphs 0f this complaint as if fully set forth herein. 48. During Plaintiff” s employment, Plaintiff requested that Defendant permit him t0 inspect his personnel records for the past three years, including records relating t0 his performance 0r t0 any grievance concerning him, maintained by Defendant, pursuant t0 California Labor Code section 1198.5. After 30 days, Defendant had provided Plaintiff with some, but not all 0f the personnel records Defendant is required t0 keep pursuant t0 section 1198.5. Because Defendant failed t0 permit Plaintiff, and similarly situated drivers t0 review their complete personnel files in Violation 0f section 1198.5, they are entitled t0 penalties pursuant t0 section 1198.5 subsection (k). 49. Plaintiff and proposed class members are therefore entitled t0 the relief requested below. SIXTH CAUSE OF ACTION (Applicable t0 Subclass (d)) (Improper Acquisition And Use Of Employees’ Fingerprints: Violation 0f Cal. Lab. Code §§ 1051 and 1054) 50. Plaintiff and the proposed class members incorporate by reference the allegations contained in the foregoing paragraphs 0f this complaint as if fully set forth herein. 5 1. During Plaintiff” s employment, Defendant obtained Plaintiff” s and proposed class members’ fingerprints 0n its thumb-scanning system, as a condition 0f their employment. Defendant shared these fingerprints with a third-party in Violation 0f California Labor Code section 105 1. COMPLAINT -15- 3280\PLEADINGS\COMPLA|NT.DOC KOOONONUI-bwwu-A NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO 52. Defendant is liable t0 Plaintiff, and proposed class members, for all recovery allowed by California Labor Code section 1054, including, but not limited t0, treble damages. 53. Plaintiff, and those similarly situated, are therefore entitled t0 the relief requested below. SEVENTH CAUSE OF ACTION (Applicable t0 all Subclasses) (Unlawful, Unfair And Fraudulent Business Practices: Business & Professions Code § 17200, e_tfl) 54. Plaintiff and proposed class members incorporate by reference the allegations contained in the foregoing paragraphs 0f this complaint as if fully set forth herein. 55. Business & Professions Code section 17200, e_tm, prohibits acts 0f unfair competition, defined as an “unlawful, unfair, 0r fraudulent business act 0r practice.” 56. The policies, acts and practices heretofore described were and are unlawful business acts 0r practices because Defendant’s (1) failure t0 provide meal breaks, 0r provide compensation for missed meal breaks, t0 Plaintiff and proposed class members, as required by California Labor Code sections 226.7, 5 12, 558, 1198, and section 11 0f applicable Industrial Welfare Commission Wage Orders (“Wage Orders”); (2) failure t0 provide rest breaks, 0r provide compensation for missed rest breaks t0 Plaintiff and proposed class members, as required by California Labor Code sections 226.7 558, 1198, and section 12 0f applicable Wage Orders; (3) failure t0 maintain accurate records 0f Plaintiff’s and proposed class members’ payroll records showing hours worked daily and wages earned in Violation 0f California Labor Code section 1174; (4) failure t0 provide accurate itemized wage statements t0 Plaintiff and proposed class members containing information as required by California Labor Code section 226; (5) failure t0 permit employees t0 inspect 0r copy wage statements in Violation 0f California Labor Code section 226(0); (6) failure t0 permit employees t0 inspect personnel records, in Violation 0f California Labor Code section 1198.5; (7) failure t0 timely pay Plaintiff and proposed class members all wages when due, in Violation 0f California Labor Code section 204; (8) failure t0 pay members 0f the proposed class all wages due at the time 0f termination in Violation 0f California Labor Code COMPLAINT -16- 3280\PLEADINGS\COMPLA|NT.DOC KOOONONUI-bwwu-A NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO sections 201-203; and, (9) Violation 0f California Labor Code section 1051 in that Defendant obtained employees’ fingerprints as a prerequisite 0f their employment and shared these fingerprints with a third party; Violate applicable Labor Code sections, Industrial Welfare Commission Wage Orders, the Private Attorneys General Act 0f 2004, Labor Code section 2698 e_tfl, and other provisions 0f California common and/or statutory law. Plaintiff reserves the right t0 allege additional statutory and common law Violations by Defendant. Such conduct is ongoing t0 this date. 57. Further, the policies, acts 0r practices described herein were and are an unfair business acts 0r practices because any justifications for Defendant’s illegal and wrongful conduct were and are vastly outweighed by the harm such conduct caused t0 Plaintiff, proposed class members, aggrieved employees, and the members 0f the general public. Such conduct is ongoing t0 this date. 58. As a result 0f its unlawful and/or unfair and/or fraudulent acts, Defendant reaps and continues t0 reap unfair benefits and illegal profits at the expense 0f Plaintiff and proposed class members. Defendant should be made t0 disgorge ill-gotten gains and provide restitution t0 Plaintiff and proposed class members for the wrongfully withheld wages pursuant t0 Business and Professions Code section 17203. 59. Accordingly, Plaintiff and proposed class members respectfully request that the Court award judgment and relief in their favor, t0 provide restitution, and other types 0f equitable relief. 60. Plaintiff and the proposed class members are therefore entitled t0 the relief requested below. EIGHTH CAUSE OF ACTION (Labor Code Private Attorneys General Act 0f 2004 (the “PAGA”): Cal. Lab. Code § 2698, et. seq.) 61. Plaintiff and the aggrieved employees incorporate by reference the allegations contained in the foregoing paragraphs 0f this complaint as if fully set forth herein. 62. The policies, acts and practices heretofore described were and are unlawful because Defendant’s (1) failure t0 provide meal breaks, 0r provide compensation for missed meal breaks, COMPLAINT -17- 3280\PLEADINGS\COMPLA|NT.DOC KOOONONUI-bwwu-A NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO t0 Plaintiff and proposed class members, as required by California Labor Code sections 226.7, 5 12, 558, 1198, and section 11 0f applicable Industrial Welfare Commission Wage Orders (“Wage Orders”); (2) failure t0 provide rest breaks, 0r provide compensation for missed rest breaks t0 Plaintiff and proposed class members, as required by California Labor Code sections 226.7, 558, 1198, and section 12 0f applicable Wage Orders; (3) failure t0 maintain accurate records 0f Plaintiffs and proposed class members’ payroll records showing hours worked daily and wages earned in Violation 0f California Labor Code section 1174; (4) failure t0 provide accurate itemized wage statements t0 Plaintiff and proposed class members containing information as required by California Labor Code section 226; (5) failure t0 permit employees t0 inspect 0r copy wage statements in Violation 0f California Labor Code section 226(0); (6) failure t0 permit employees t0 inspect personnel records, in Violation 0f California Labor Code section 1198.5; (7) failure t0 timely pay Plaintiff and proposed class members all wages when due, in Violation 0f California Labor Code section 204; (8) failure t0 pay members 0f the proposed class all wages due at the time of termination in Violation 0f California Labor Code sections 201-203; and, (9) Violation 0f California Labor Code section 1051 in that Defendant obtained employees’ fingerprints as a condition precedent t0 their securing and retaining employment and shared these fingerprints with a third party; Violate applicable Labor Code sections and gives rise t0 statutory and civil penalties as a result 0f such conduct, including but not limited t0 penalties as provided by Labor Code sections 203, 210, 226(6), 226(f), 226.3, 558, 1054, 1174.5, 1198.5(k), 2699(a), 2699(f), and 2699.5, and applicable Industrial Welfare Commission Wage Orders. Plaintiff, as an aggrieved employee, hereby seeks recovery 0f civil penalties as prescribed by the Labor Code Private Attorney General Act 0f 2004 0n behalf 0f himself and other current and former employees 0f Defendant against whom one 0r more 0f the Violations 0f the Labor Code was committed. Plaintiff further seeks attorneys’ fees t0 achieve the same, pursuant t0 Labor Code section 2699(g)(1). 63. On June 29, 2018, Plaintiff gave written notice t0 the California Labor and Workforce Development Agency by online submission through their website and by certified mail t0 Defendant, Mission Trail Waste Systems, Inc., 0f Labor Code Violations as prescribed by COMPLAINT -18- 3280\PLEADINGS\COMPLA|NT.DOC [\J \OOONQU‘I-hm 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 California Labor Code section 2699.3. Plaintiff has not received written notification by the LWDA 0f an intention t0 investigate the allegations set forth in Plaintiff s June 29, 2018, letter or written notice of cure by September 3, 201 8, 65 calendar days after the postmark date of the notice given t0 the LWDA, as prescribed by California Labor Code section 2699.3(a)(2)(A). PRAYER FOR RELIEF WHEREFORE Plaintiff prays for judgment and relief as follows: 1. An order certifying that the action may be maintained as a class action; 2. Compensatory and statutory damages, penalties and restitution, as appropriate and available under each cause of action, in an amount to be proven at trial based 0n, infl fig, the unpaid balance 0f compensation Defendant owes; 3. Reasonable attorneys’ fees pursuant to California Labor Code sections 218.5, 226(c)(1) and 2699(g)(1); 4. Costs 0fthis suit; 5 Pre- and post-judgment interest; and A 6. Such other and further relief as the Court deems just and proper. 7 Plaintiff is informed and believes that the damages, back wages, restitution, value 0f injunctive relief sought, penalties, interest and attorneys’ fees d0 not exceed an aggregate 0f $4,999,999.99 and that the pro-rata value 0f Plaintiff s individual claims, including damages, back wages, restitution, injunctive relief, interest, attorneys’ fees, and penalties, does not exceed $74,999.99. W Plaintiff hereby demands a trial by jury. Date: November 19, 201 8 WORKMAN LAW FIRM, c , / 0b . Wér‘ifnfa‘fi I Attorneysfor Thomas Villareal, and all others similarly situated COMPLAINT -19- 3280\PLEADINGS\COMPLAINT.Doc EXHIBIT B hUJN KOOONOUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WORKMAN LAW FIRM, PC Robin G. Workman (Bar #145810) robin@workmanlawpc.com Rachel E. Davey (Bar #3 16096) rachel@workmanlawpc.com 177 Post Street, Suite 800 San Francisco, CA 94108 Telephone: (415) 782-3660 Facsimile: (415) 788-1028 Attorneysfor Plaintifif Thomas Villarreal 0n behalfofhimselfand all other similarly situated SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA THOMAS VILLAREAL, 0n behalf 0f himself and all others similarly situated, Plaintiff, VS. MISSION TRAIL WASTE SYSTEMS, INC., and Does 1 through 50, inclusive, Defendants. FIRST AMENDED COMPLAINT No. 18CV33 8479 ASSIGNED FOR ALL PURPOSES TO THE HON. THOMAS E. KUHNLE, DEPT. 5 FIRST AMENDED COMPLAINT 3280\PLEADINGS\FAC.DOC hUJN KOOONOUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff Thomas Villarreal (“Plaintiff’) by his attorneys, brings this action 0n behalf of himself, all others similarly situated, and the general public, on information and belief, except those allegations that pertain to the named Plaintiff and his attorneys (Which are alleged 0n personal knowledge), hereby alleges as follows: JURISDICTIONAL ALLEGATIONS 1. This class action lawsuit arises from ongoing wrongful conduct by Defendant Mission Trail Waste Systems, Inc. (“Defendant”), by its unlawful (1) failure t0 provide meal breaks, 0r provide compensation for missed meal breaks, to Plaintiff and proposed class members, as required by California Labor Code sections 226.7 and 5 12, and section 11 0f applicable Industrial Welfare Commission Wage Orders (“Wage Orders”); (2) failure to provide rest breaks, 0r provide compensation for missed rest breaks t0 Plaintiff and proposed class members, as required by California Labor Code section 226.7, and section 12 0f applicable Wage Orders; (3) failure t0 maintain accurate records 0f Plaintiff s and proposed class members’ payroll records showing hours worked daily and wages earned in Violation of California Labor Code section 1174; (4) failure t0 provide accurate itemized wage statements to Plaintiff and proposed class members containing information as required by California Labor Code section 226; (5) failure t0 permit employees to inspect or copy wage statements in Violation 0f California Labor Code section 226(0); (6) failure t0 permit employees to inspect personnel records, in Violation 0f California Labor Code section 1198.5; (7) failure t0 timely pay Plaintiff and proposed class members all wages When due, in Violation 0f California Labor Code sections 204 and 510; (8) failure to pay members 0f the proposed class all wages due at the time of termination in Violation 0f California Labor Code sections 201-203; and, (9) Violation 0f California Labor Code section 105 1 in that Defendant obtained employees” fingerprints as a prerequisite 0f their employment and shared these fingerprints with a third party. Said conduct violated each California Labor Code section as set forth in California Labor Code section 2699.5. Said conduct, in addition, constitutes Violations 0f California Labor Code sections 558 and 1198. The described conduct renders Defendant liable for civil penalties as set forth in California Labor Code sections 203, 210, 226(6), 226(1), 226.3, 558, 1054, 1174.5, 1198.5(k), 2699(a), 2699(f), and 2699.5. These failures further constitute FIRST AMENDED COMPLAINT -2- 3280\PLEADINGS\FAC.DOC hUJN KOOONOUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 unfair business practices, in Violation 0f California Business and Professions Code section 17200, et. seq., and Violations 0f California Labor Code section 2698, et. seq., the Private Attorneys General Act of 2004 (“the PAGA”), through Which Plaintiff seeks civil penalties. 2. Defendant Mission Trail Waste Systems, Inc., is and at all and at all relevant times was, a corporation doing business within the State 0f California and is an employer under applicable Industrial Welfare Commission Orders. Defendant’s headquarters are located in Santa Clara, California. GENERAL ALLEGATIONS 3. This action seeks relief for unremedied Violations of California law, including, inter alia; damages, reimbursements, restitution, penalties, interest and attorneys’ fees, as appropriate, t0 members of the proposed classes, aggrieved employees, and t0 Victims 0f the practices at issue, Who have not been provided statutory meal breaks, 0r compensation for missed meal breaks, as required by California Labor Code sections 226.7, 5 12, and 558; Who have not been provided statutory rest breaks, 0r compensation for missed rest breaks, as required by California Labor Code sections 226.7 and 558; Who have not been timely paid for all wages earned, including for improper rounding of time, even upon termination, in Violation 0f California Labor Code sections 201-204; Who have not been furnished with accurate wage statements in Violation 0f California Labor Code section 226; Who were not allowed t0 review and/or obtain a copy 0f their personnel file in Violation 0f California Labor Code section 1198.5; and, Who were required t0 submit their fingerprints as a prerequisite 0fwhose employment, which were shared with a third party in Violation 0f California Labor Code section 105 1. Plaintiff is informed and believes that the damages, reimbursements, restitution, penalties, interest and attorneys’ fees d0 not exceed an aggregate of $4,999,999.99 and that Plaintiff’s individual claims d0 not exceed $74,999.99. 4. The names and capacities 0f defendants sued herein under California Code 0f Civil Procedure section 474 as Does 1 through 50, inclusive, are presently not known to Plaintiff, who therefore sues these defendants by such fictitious names. Plaintiff Will seek t0 amend this Complaint and include these Doe defendants’ names and capacities When they are ascertained. Each fictitiously named defendant is responsible in some manner for the conduct alleged herein FIRST AMENDED COMPLAINT -3- 3280\PLEADINGS\FAC.DOC hUJN KOOONOUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and for the injuries suffered by Plaintiff, the members of the class, aggrieved employees, and the general public. 5. At all times mentioned in the causes 0f action alleged herein, each and every Defendant was an agent and/or employee 0f each and every other Defendant. In doing the things alleged in the causes 0f action stated herein, each and every Defendant was acting Within the course and scope 0f this agency or employment and was acting with the consent, permission and authorization 0f each of the remaining Defendants. A11 actions 0f each Defendant as alleged in the causes 0f action stated herein were ratified and approved by every other Defendant 0r their officers or managing agents. 6. Plaintiff is a current employee 0f Defendant. Defendant employs Plaintiff as an hourly-paid sanitary truck route driver in California. Plaintiff, and those similarly situated employees, drive routes t0 pick up waste in the Santa Clara, California, area. Defendant routinely requires Plaintiff, and similarly situated drivers, t0 work more than five hours per day Without receiving mandated off-duty meal periods. Whether or not Plaintiff and similarly situated drivers indicate 0n their time sheets that they take statutory meal breaks, Defendant “auto-deducts” a 30- minute meal break from the daily hours worked by drivers, and does not pay drivers for that 30 minutes worked, 0r the one-hour ofpremium pay at each driver’s regular rate 0f pay for forgoing the meal break. Although Defendant auto-deducts 3O minutes from Plaintiff’ s, and similarly situated drivers’ wage statements for meal breaks, Plaintiff and similarly situated drivers routinely miss such meal breaks. This is because, t0 make it t0 all of the waste pick ups set by Defendant, and transport all 0f this waste t0 the dump Defendant designates before it closes, Plaintiff and similarly situated drivers cannot stop t0 take their statutory 30-minute uninterrupted meal breaks. Defendant is aware of this, because Defendant sets drivers’ route assignments. For these reasons, Defendant fails to provide Plaintiff and similarly situated drivers with uninterrupted 30-minute off-duty meal breaks. Plaintiff and similarly situated drivers sometimes also sometimes work “double shifts.” When this occurs, they often work in excess 0f 10 hours per day. When they d0 so, Defendant does not provide Plaintiff and those similarly situated drivers With a second meal period as required by Labor Code section 5 12 and the applicable Wage Order. When the drivers FIRST AMENDED COMPLAINT -4- 3280\PLEADINGS\FAC.DOC hUJN KOOONOUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 do not receive statutory meal breaks, Defendant does not pay Plaintiff, or those similarly situated drivers, with the additional hour 0f compensation as required by Labor Code sections 226.7 and 558 and the applicable Wage Order. As a result, Defendant did not pay Plaintiff, 0r those similarly situated drivers, with all wages due as required by Labor Code sections 201-204. 7. Defendant routinely requires Plaintiff, and similarly situated drivers, to work more than 3.5 hours per day without receiving mandated off-duty, uninterrupted rest periods, in Violation of California Labor Code sections 226.7, 558, 1198, and applicable Wage Orders. In addition, Plaintiff and similarly situated drivers often work in excess of 8 hours per day, even exceeding 12 hours per day, but Defendant does not authorize and permit them to take a second 0r third statutory rest break, respectively. Plaintiff and similarly situated drivers cannot take mandated 10-minute rest breaks because they do not have time t0 d0 so in order t0 meet the driving schedules set by Defendant. When the drivers do not receive uninterrupted 10-minute off- duty rest breaks, Defendant does not pay Plaintiff, or those similarly situated drivers, With the additional hour of compensation as required by Labor Code section 226.7 and applicable Wage Orders. As a result, Defendant did not pay Plaintiff, 0r those similarly situated drivers, With all wages due as required by Labor Code sections 201-204. 8. Because Defendant did not adequately keep records of Plaintiff” s and similarly situated drivers’ meal breaks taken and not taken, as required by Labor Code sections 226.7 and 5 12, Defendant failed to maintain accurate and complete payroll records, as required by Labor Code section 1174(d). This failure gives rise to civil penalties under Labor Code section 1174.5. 9. Defendant also failed t0 furnish accurate itemized statements to Plaintiff, and other similarly situated drivers, containing information as required by California Labor Code section 226. Because Defendant “auto-deducts” 30-minute meal breaks from drivers’ hours worked, and because Defendant does not pay the additional hour of compensation When drivers are not provided meal and/or rest breaks as required by Labor Code section 226.7 and applicable Wage Orders, the wage statements d0 not reflect all hours worked, all gross 0r net wages earned, or the hours worked and the corresponding hourly rates in Violation 0f Labor Code sections 226(a)(1), (2), (5), and (9). FIRST AMENDED COMPLAINT -5- 3280\PLEADINGS\FAC.DOC hUJN KOOONOUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10. During Plaintiff s employment in either 2017 or 2018, Plaintiff requested Defendant permit him to inspect his payroll records for the last three years. Defendant failed t0 permit Plaintiff to inspect 0r copy all 0f the records he requested within 21 days, in Violation 0f California Labor Code section 226 subsection (c). Defendant violated subsection (c) With respect t0 other drivers’ requests for the same, because Defendant admitted it n0 longer has access t0 the records from 2016 and prior, because it changed payroll companies in 2016. Plaintiff and similarly situated drivers Who were denied this request are therefore entitled to statutory penalties pursuant to section 226 subsection (f). 11. During Plaintiff s employment, Plaintiff requested Defendant permit him to inspect his personnel records for the past three years, including records relating t0 his performance 0r to any grievance concerning him, maintained by Defendant, pursuant to California Labor Code section 1198.5. After 30 days, Defendant had provided Plaintiff with some, but not all of the personnel records Defendant is required to keep pursuant to section 1198.5. Because Defendant failed to permit Plaintiff, and similarly situated drivers t0 review their complete personnel files in Violation of section 1198.5, they are entitled t0 penalties pursuant t0 section 1198.5 subsection (k). 12. Because Defendant failed to pay Plaintiff and similarly aggrieved drivers an extra hour at the regular rate for forgone meal breaks and rest breaks, Defendant failed t0 timely pay Plaintiff and similarly aggrieved drivers all wages when due, in Violation of Labor Code section 204. In addition, instead 0f paying Plaintiff and similarly situated drivers for all hours worked, Defendant engaged in a practice 0f rounding the time. This rounding practice was disproportionately in favor 0f Defendant. Given this practice, Defendant, for this additional reason, did not pay Plaintiff and similarly situated drivers for all hours worked in Violation 0f Labor Code sections 204, 510 and 1194. Plaintiff therefore seeks to recover civil penalties for this Violation as a representative 0f the State, pursuant to Labor Code sections 210, 2699.3 and 2699.5. 13. Defendant failed to pay Plaintiff and proposed class members an extra hour at the regular rate for their forgone meal breaks and rest breaks. During the relevant period, the employment 0fmany proposed class members With Defendant ended and they were not paid all wages due either immediately 0r Within 72 hours of termination or resignation, in Violation of FIRST AMENDED COMPLAINT -6- 3280\PLEADINGS\FAC.DOC hUJN KOOONOUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Labor Code sections 201 and 202. Plaintiff therefore seeks wages as civil penalties 0n behalf 0f those proposed class members Who were not paid all wages due either immediately or within 72 0f termination 0r resignation, pursuant t0 Labor Code section 203. 14. During Plaintiff s employment, Defendant violated California Labor Code section 1051 because Defendant obtained Plaintiff’ s and all other hourly employees’ fingerprints 0n its ADP thumb scanning device, as a prerequisite 0f their employment. Defendant then shared these fingerprints with a third-party company. Defendant knowingly permitted this practice, in Violation 0f California Labor Code section 1052. 15. Given the Violations 0f the aforementioned Labor Code sections and Wage Orders, Defendant is therefore liable for unfair business practices, in Violation of California Business & Professions Code section 17200, et. seq. 16. Given the Violations 0f the aforementioned Labor Code sections and Wage Orders, Defendant is therefore liable for civil penalties set forth Within, and authorized by, the PAGA, California Labor Code section 2698, et. seq. CLASS ALLEGATIONS 17. Plaintiff is, and during all relevant times, was, a resident of the State of California. Plaintiff sues on behalf 0f himself and the following subclasses 0f employees 0f Defendant in California: (a) all drivers employed by Defendant in California during the four years preceding the filing 0f this complaint t0 present; (b) A11 persons in the employ of Defendant in California who, from the one year preceding the filing of this complaint to the present, made requests t0 copy or inspect their records containing information employers must keep pursuant t0 Labor Code section 226 subsection (a); (c) A11 persons in the employ 0f Defendant in California who, from the one year preceding the filing of this complaint t0 the present, made requests t0 copy 0r inspect their personnel records; and FIRST AMENDED COMPLAINT -7- 3280\PLEADINGS\FAC.DOC hUJN KOOONOUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (d) A11 persons in the employ of Defendant in California, from the four years preceding the filing of this complaint t0 present, who, as a condition 0f their employment, were required t0 provide their fingerprints, and Who are/were required t0 use their fingerprints for the purposes 0f clocking in and out from work. 18. Because Plaintiff, in his employment With Defendant as a driver, was routinely required t0 work Without statutory meal periods, for which Plaintiff was not properly compensated, was routinely required t0 work Without statutory rest periods, for Which Plaintiff was not properly compensated, was subject to Defendant’s rounding system and was not paid for all hours worked, was not permitted t0 inspect either his payroll records for the last three years or his complete personnel file for the past three years, failed to receive timely and accurate wage statements, and was not paid all wages earned When they were due, and was required to provide his fingerprints, Which were used for time keeping purposes, as a condition of employment, Plaintiff s claims are typical of the proposed class. 19. Plaintiff Will fairly and adequately represent and protect the interests of the members 0f the proposed class in that he has no disabling conflict of interest that would be antagonistic to those of the other members of the proposed class. Plaintiff retained counsel Who are competent and experienced in the prosecution of class action wage and hour Violations. 20. The proposed subclasses are sufficiently numerous and the class members are geographically dispersed throughout California, the joinder ofwhom in one action is impracticable, such that the disposition 0fwhose claims in a class action Will provide substantial benefits t0 both the parties and the Court. 21. There is a well-defined community of interest in the questions 0f law and fact involved affecting the parties t0 be represented. The questions 0f law and fact common t0 the proposed classes predominate over questions that may affect individual class members, include but are not limited t0 the following: FIRST AMENDED COMPLAINT -8- 3280\PLEADINGS\FAC.DOC hUJN KOOONOUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (a) (b) (C) (d) (f) (g) (h) (i) (j) Whether Defendant implemented and engaged in a practice whereby Defendant unlawfully failed t0 provide meal breaks, 0r provide compensation for missed meal breaks, t0 Plaintiff and the proposed class members Whether Defendant implemented and engaged in a practice whereby Defendant unlawfully failed t0 provide rest breaks, 0r provide compensation for missed rest breaks, to Plaintiff and the proposed class members Whether Defendant implemented and engaged in a practice whereby Defendant unlawfully failed t0 maintain accurate payroll records for Plaintiff and proposed class members Whether Defendant implemented and engaged in a practice whereby Defendant failed t0 provide Plaintiff and proposed class members accurate itemized wage statements; Whether Defendant implemented and engaged in a practice whereby Defendant failed t0 permit employees to inspect or copy their wage statements; Whether Defendant implemented and engaged in a practice whereby Defendant failed t0 permit employees to inspect personnel records; Whether Defendant implemented and engaged in a practice whereby Defendant engaged in improper time rounding, thereby not paying employees for all time worked; Whether Defendant implemented and engaged in a practice whereby Defendant failed to timely pay Plaintiff and proposed class members all wages when due; Whether Defendant implemented and engaged in a practice whereby Defendant failed t0 pay proposed class members all wages due at the time of termination in Violation 0f California Labor Code sections 201-203; Whether Defendant implemented and engaged in a practice whereby Defendant obtained Plaintiff’ s and proposed class members’ fingerprints as a prerequisite of their employment and shared these fingerprints With a third party; FIRST AMENDED COMPLAINT -9- 3280\PLEADINGS\FAC.DOC hUJN KOOONOUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (k) Whether the practices of Defendant as alleged herein violated, inflfl, applicable provisions 0f the California Labor Code, including but not limited to sections 201-204, 226, 226.7, 510, 512, 1051, 1174, 1198, 1198.5, the Unfair Competition Law codified in California Business and Professions Code section 17200, e_tfl, and the Private Attorneys General Act of 2004 (the PAGA), California Labor Code section 2698, e_tfl 22. Plaintiff and the proposed class members have all similarly suffered irreparable harm and damages as a result 0f Defendant’s unlawful and wrongful conduct, including but not limited t0 Defendant’s pattern and practice 0f failure t0 provide rest and meal periods and compensation for work Without rest and meal periods; pattern and practice 0f failing t0 filmish accurate itemized wages statements; pattern and practice of failing t0 permit employees t0 inspect complete records for the past three years 0f their payroll records and their personnel files within the statutory time frames required; pattern and practice 0f failing t0 provide accurate wage statements; pattern and practice 0f requiring employees t0 provide their finger prints as a condition 0f employment; pattern and practice 0f not paying employees for all time worked; and, pattern and practice of failing t0 pay its employees all wages when due. These issues are common to all proposed class members, making class treatment especially appropriate. Because the actions 0f Defendant toward proposed class members follow common patterns, all 0f Which are reflected in the records possessed by Defendant, this action will provide substantial benefits to all proposed class members. Absent this action, Defendant’s unlawful conduct Will continue unremedied and uncorrected. FIRST CAUSE OF ACTION (Applicable to Subclass (a)) (Meal Break Violations: Cal. Lab. Code §§ 226.7 & 512 & Applicable Industrial Welfare Commission Wage Orders §11) 23. Plaintiff and proposed class members incorporate by reference the allegations contained in the foregoing paragraphs 0f this complaint as if fully set forth herein. 24. Throughout the approximately 20 years 0f Plaintiff s employment With Defendant, Defendant engaged in a pattern and practice 0f requiring Plaintiff, and similarly situated drivers, t0 FIRST AMENDED COMPLAINT -10- 3280\PLEADINGS\FAC.DOC hUJN KOOONOUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 work more than five hours per day without receiving statutory 30-minute off-duty meal periods. Defendant also engaged in a pattern and practice of requiring Plaintiff and proposed class members t0 work more than 10 hours a day without providing Plaintiff and proposed class members With a second, statutory 30-minute off-duty meal break. Defendant likewise did not pay Plaintiff or proposed class members an additional hour 0f compensation When Plaintiff 0r proposed class members did not receive their statutory 30-minute off-duty meal breaks. This failure violated California Labor Code sections 226.7 and 5 12 and section 11 0f the applicable Wage Order. 25. Defendant requires Plaintiff and each 0f the proposed class members t0 adhere to a driving route for waste pick-ups. These routes often d0 not allow for off-duty 30-minute meal breaks. Additionally, in order t0 make it to all 0f the pick-up locations, While driving safely and within the speed limits, and make it t0 the dump by the designated time, drivers d0 not have time t0 take their statutory 30-minute off-duty meal breaks. As such, When Plaintiff and proposed class members drive these routes, they do not receive mandated 30-minute off-duty meal breaks. 26. Defendant is aware that drivers are often unable to take their statutory 30-minute off-duty meal breaks, but does not pay Plaintiff, 0r proposed class members, with the additional hour of compensation, as required by section 11 0f applicable Wage Orders and Labor Code sections 226.7 and 558. Instead, Defendant engages in the pattern and practice 0f “auto- deducting” 30 minutes 0f time worked for meal breaks. This Violation 0f section 11 0f applicable Wage Orders is also a Violation of Labor Code sections 558 and 1198, for Which Defendant is liable for penalties under the PAGA, Labor Code section 2699 e_t fl. 27. As a result of Defendant’s failure to pay Plaintiff and proposed class members for missed meal periods, Defendant did not pay Plaintiff, 0r those similarly situated employees, With all wages due as required by Labor Code sections 201-204, for which Plaintiff seeks penalties pursuant to Labor Code sections 203, 210, 558, 1198, 2699.3, and 2699.5. 28. As Defendant augmented time sheets t0 reflect Plaintiff and proposed class members did not work during hours they did work, and did not pay Plaintiff or proposed class members the additional hour 0f compensation When they were not provided meal breaks as FIRST AMENDED COMPLAINT -1 1- 3280\PLEADINGS\FAC.DOC hUJN KOOONOUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 required by Labor Code sections 226.7 and 558, Defendant did not furnish Plaintiff or proposed class members with accurate wage statements, in Violation 0f Labor Code section 226 subsection (a), as the wage statements d0 not reflect all gross wages earned (§ 226(a)(1)), total hours worked (§ 226(a)(2)), 0r net wages earned (§ 226(a)(5)). 29. As a result 0f Defendant’s failures, Plaintiff and the proposed class members are entitled to recover the additional hour of compensation as set forth in California Labor Code sections 226.7 and 558. 30. Plaintiff and proposed class members are therefore entitled t0 the relief requested below. SECOND CAUSE OF ACTION (Applicable t0 Subclass (21)) (Rest Break Violations: Cal. Lab. Code §§ 226.7 & Applicable Industrial Welfare Commission Wage Orders §12) 3 1. Plaintiff and the proposed class members incorporate by reference the allegations contained in the foregoing paragraphs of this complaint as if fully set forth herein. 32. During all relevant periods, Defendant routinely required Plaintiff and proposed class members to work more than 3.5 hours without providing Plaintiff and proposed class members with mandated 10-minute rest breaks. Defendant likewise did not pay Plaintiff 0r proposed class members an additional hour 0f compensation when Plaintiff 0r proposed class members did not receive the mandated 10-minute meal breaks. This failure violated section 12 0f applicable Wage Orders and California Labor Code section 226.7. This Violation 0f section 12 0f applicable Wage Orders is also a Violation 0f Labor Code section 1198, for Which Defendant is liable for penalties under the PAGA, Labor Code section 2698 e_t fl. Plaintiff also seeks civil penalties for this Violation pursuant t0 Labor Code section 558, because Defendant violates “any provision regulating hours and days of work in any order 0f the Industrial Welfare Commission,” here, section 12 0f applicable Wage Orders. 33. Defendant requires Plaintiff and each 0f the proposed class members to adhere t0 a driving route for waste pick-ups. These routes often d0 not allow for off-duty 10-minute FIRST AMENDED COMPLAINT -12- 3280\PLEADINGS\FAC.DOC hUJN KOOONOUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 rest breaks. Additionally, in order t0 make it t0 all of the pick-up locations, while driving safely and within the speed limits, and make it t0 the dump by the designated time, drivers d0 not have time to take their statutory 10-minute off-duty rest breaks. As such, when Plaintiff and proposed class members drive these routes, they d0 not receive mandated 10-minute off- duty rest breaks. 34. Defendant is aware that drivers are often unable to take their statutory 10- minute off-duty rest breaks, but does not pay Plaintiff, or proposed class members, With the additional hour of compensation, as required by applicable Wage Orders and Labor Code section 226.7. 35. As a result 0f Defendant’s failure t0 pay Plaintiff and proposed class members for missed rest periods, Defendant also did not pay Plaintiff, or proposed class members, with all wages due as required by Labor Code sections 201-204, for which Plaintiff seeks penalties pursuant t0 Labor Code sections 203, 210, 558, 1198, and 2698 et seq. 36. Because Defendant did not pay Plaintiff 0r proposed class members the additional hour 0f compensation When they were not provided rest breaks as required by Labor Code sections 226.7 and section 12 of applicable Wage Orders, Defendant did not furnish Plaintiff or proposed class members With accurate wage statements, in Violation 0f Labor Code section 226(a), as the wage statements d0 not reflect all gross wages earned (§ 226(a)(1)), total hours worked (§ 226(a)(2)), 0r net wages earned (§ 226(a)(5)). 37. As a result of Defendant’s failures, Plaintiff and proposed class members are entitled to recover the additional hour of compensation as set forth in California Labor Code sections 226.7 and 558. 38. Plaintiff and proposed class members are therefore entitled t0 the relief requested below. THIRD CAUSE OF ACTION (Applicable to Subclass (a)) (Inaccurate Wage Statements: Cal. Lab. Code § 226) 39. Plaintiff and proposed class members incorporate by reference the allegations FIRST AMENDED COMPLAINT -13- 3280\PLEADINGS\FAC.DOC hUJN KOOONOUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 contained in the foregoing paragraphs 0f this complaint as if fully set forth herein. 40. During the relevant time period, Defendant failed to pay Plaintiff, and proposed class members, with the additional hour of compensation owed when the class members did not receive mandated off-duty meal or rest breaks. In addition, because Defendant auto-deducted time for meal periods for which Plaintiffs and class members did not receive, Defendant routinely issued wage statements that did not accurately reflect all hours worked, or all gross 0r net wages earned. As such, Defendant failed t0 furnish accurate itemized wage statements to Plaintiff and proposed class members containing information as required by California Labor Code section 226 subdivision (a) paragraphs (1) gross wages earned, (2) total hours worked, and (5) net wages earned. These failures caused Plaintiff and proposed class members t0 suffer injury as defined by California Labor Code section 226(c)(2)(B)(i). As a result 0f Defendant’s failures, Plaintiff and proposed class members are entitled to recover the penalties and attorneys’ fees as set forth in California Labor Code section 226(c)(1). 41. As a result of Defendant’s Violations 0f Labor Code section 226(3), Plaintiff and proposed class members are also entitled t0 recover the penalties, and interest thereon, as set forth in California Labor Code section 226.3. 42. Plaintiff also seeks penalties for Defendant’s Violations 0f Labor Code section 226 subsection (a), paragraphs (1), (2), and (5) pursuant t0 Labor Code sections 2699.3 and 2699.5, and attorneys’ fees pursuant t0 section 2699(g)(1). 43. Plaintiff and proposed class members are therefore entitled t0 the relief requested below. FOURTH CAUSE OF ACTION (Applicable t0 Subclass (b)) (Failure To Permit Employee Inspection Of Payroll Records: Cal. Lab. Code § 226(c)) 44. Plaintiff and proposed class members incorporate by reference the allegations contained in the foregoing paragraphs of this complaint as if fully set forth herein. 45. During Plaintiff” s employment in either 2017 0r 2018, Plaintiff that requested Defendant permit him to inspect his payroll records for the last three years, as specified in Labor FIRST AMENDED COMPLAINT -14- 3280\PLEADINGS\FAC.DOC hUJN KOOONOUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Code section 226 subsection (b). Defendant failed t0 permit Plaintiff t0 inspect or copy all of the records he requested Within 21 days, in Violation 0f California Labor Code section 226 subsection (c). Defendant violated subsection (c) with respect to other drivers’ requests for the same, because Defendant admitted it no longer has access t0 the records from 2016 and prior, because it changed payroll companies in 2016. Plaintiff and similarly situated drivers Who were denied this request are therefore entitled t0 statutory penalties pursuant t0 section 226 subsection (f). 46. Plaintiff and proposed class members are therefore entitled t0 the relief requested below. FIFTH CAUSE OF ACTION (Applicable t0 Subclass (c)) (Failure T0 Permit Employee Inspection Of Personnel Records: Cal. Lab. Code § 1198.5) 47. Plaintiff and proposed class members incorporate by reference the allegations contained in the foregoing paragraphs 0f this complaint as if fully set forth herein. 48. During Plaintiff” s employment, Plaintiff requested that Defendant permit him to inspect his personnel records for the past three years, including records relating t0 his performance 0r to any grievance concerning him, maintained by Defendant, pursuant t0 California Labor Code section 1198.5. After 30 days, Defendant had provided Plaintiff with some, but not all of the personnel records Defendant is required to keep pursuant t0 section 1198.5. Because Defendant failed to permit Plaintiff, and similarly situated drivers t0 review their complete personnel files in Violation of section 1198.5, they are entitled t0 penalties pursuant t0 section 1198.5 subsection (k). 49. Plaintiff and proposed class members are therefore entitled to the relief requested below. SIXTH CAUSE OF ACTION (Applicable t0 Subclass (d)) (Improper Acquisition And Use Of Employees’ Fingerprints: Violation 0f Cal. Lab. Code §§ 1051 and 1054) 50. Plaintiff and the proposed class members incorporate by reference the allegations contained in the foregoing paragraphs of this complaint as if fully set forth herein. 5 1. During Plaintiff” s employment, Defendant obtained Plaintiff” s and proposed class members’ fingerprints 0n its thumb-scanning system, as a condition of their employment. FIRST AMENDED COMPLAINT -15- 3280\PLEADINGS\FAC.DOC hUJN KOOONOUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendant shared these fingerprints with a third-party in Violation 0f California Labor Code section 105 1. 52. Defendant is liable to Plaintiff, and proposed class members, for all recovery allowed by California Labor Code section 1054, including, but not limited t0, treble damages. 53. Plaintiff, and those similarly situated, are therefore entitled t0 the relief requested below. SEVENTH CAUSE OF ACTION (Applicable to Subclass (a)) (Failure T0 PaV All Wages Due, Including At Termination: Violation of Cal. Lab. Code 88 201-204, 510, 558 and 1194) 54. Plaintiff and the proposed class members incorporate by reference the allegations contained in the foregoing paragraphs of this complaint as if fully set forth herein. 55. During the relevant time period, Defendant engaged in a pattern and practice of not paying Plaintiff, and those similarly situated employees, for all time worked, including at termination. Instead, Defendant automatically deducted 30 minutes for meal periods Whether 0r not such a meal period was actually taken and implemented a time rounding practice and policy that disproportionately favored Defendant. In addition, Defendant failed to pay Plaintiff, and those similarly situated employees, the one-hour premium due When meal and rest periods were not provided as required by law. As a result of these practices and policies, Defendant failed to pay all wages owed, including minimum wages and overtime, in Violation of California Labor Code sections 201-204, 5 10, 558, and 1194. 56. As a result 0f Defendant’s failures, Plaintiff and proposed class members are entitled to recover for all time worked pursuant to California Labor Code sections 201-202, 510 and 558. Plaintiff and the proposed class members are also entitled t0 recover waiting time penalties pursuant t0 California Labor Code section 203, and attorneys’ fees pursuant to California Labor Code section 218.5. 57. Plaintiff and proposed class members are therefore entitled t0 the relief requested below. FIRST AMENDED COMPLAINT -16- 3280\PLEADINGS\FAC.DOC hUJN KOOONOUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EIGHTH CAUSE OF ACTION (Applicable t0 all Subclasses) (Unlawful, Unfair And Fraudulent Business Practices: Business & Professions Code § 17200, e_t seg.) 58. Plaintiff and proposed class members incorporate by reference the allegations contained in the foregoing paragraphs 0f this complaint as if fully set forth herein. 59. Business & Professions Code section 17200, e_tfl, prohibits acts of unfair competition, defined as an “unlawful, unfair, 0r fraudulent business act 0r practice.” 60. The policies, acts and practices heretofore described were and are unlawful business acts or practices because Defendant’s (1) failure t0 provide meal breaks, 0r provide compensation for missed meal breaks, t0 Plaintiff and proposed class members, as required by California Labor Code sections 226.7, 5 12, 558, 1198, and section 11 0f applicable Industrial Welfare Commission Wage Orders (“Wage Orders”); (2) failure t0 provide rest breaks, or provide compensation for missed rest breaks t0 Plaintiff and proposed class members, as required by California Labor Code sections 226.7 558, 1198, and section 12 of applicable Wage Orders; (3) failure t0 maintain accurate records 0f Plaintiff s and proposed class members’ payroll records showing hours worked daily and wages earned in Violation of California Labor Code section 1174; (4) failure to provide accurate itemized wage statements to Plaintiff and proposed class members containing information as required by California Labor Code section 226; (5) failure t0 permit employees to inspect or copy wage statements in Violation 0f California Labor Code section 226(0); (6) failure t0 permit employees to inspect personnel records, in Violation 0f California Labor Code section 1198.5; (7) failure t0 timely pay Plaintiff and proposed class members all wages when due, including as a result 0f Defendant’s nonpayment of meal and rest period premiums, automatic 30-minute meal period time deductions, and time rounding policies and practices, in Violation of California Labor Code section 204, 510 and 1194; (8) failure to pay members of the proposed class all wages due at the time 0f termination in Violation of California Labor Code sections 201-203; and, (9) Violation 0f California Labor Code section 105 1 in that Defendant obtained employees’ fingerprints as a prerequisite 0f their employment and shared these fingerprints With a third party; Violate applicable Labor Code sections, Industrial Welfare FIRST AMENDED COMPLAINT -17- 3280\PLEADINGS\FAC.DOC hUJN KOOONOUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Commission Wage Orders, the Private Attorneys General Act of 2004, Labor Code section 2698 e_tfl, and other provisions of California common and/or statutory law. Plaintiff reserves the right t0 allege additional statutory and common law Violations by Defendant. Such conduct is ongoing to this date. 61. Further, the policies, acts 0r practices described herein were and are an unfair business acts 0r practices because any justifications for Defendant’s illegal and wrongful conduct were and are vastly outweighed by the harm such conduct caused t0 Plaintiff, proposed class members, aggrieved employees, and the members of the general public. Such conduct is ongoing to this date. 62. As a result 0f its unlawful and/or unfair and/or fraudulent acts, Defendant reaps and continues to reap unfair benefits and illegal profits at the expense 0f Plaintiff and proposed class members. Defendant should be made to disgorge ill-gotten gains and provide restitution to Plaintiff and proposed class members for the wrongfully Withheld wages pursuant t0 Business and Professions Code section 17203. 63. Accordingly, Plaintiff and proposed class members respectfully request that the Court award judgment and relief in their favor, t0 provide restitution, and other types 0f equitable relief. 64. Plaintiff and the proposed class members are therefore entitled to the relief requested below. NINTH CAUSE OF ACTION (Labor Code Private Attorneys General Act 0f 2004 (the “PAGA”): Cal. Lab. Code § 2698, et. seq.) 65. Plaintiff and the aggrieved employees incorporate by reference the allegations contained in the foregoing paragraphs 0f this complaint as if fully set forth herein. 66. The policies, acts and practices heretofore described were and are unlawful because Defendant’s (1) failure to provide meal breaks, or provide compensation for missed meal breaks, t0 Plaintiff and proposed class members, as required by California Labor Code sections 226.7, 5 12, 558, 1198, and section 11 of applicable Industrial Welfare Commission Wage Orders (“Wage Orders”); (2) failure to provide rest breaks, or provide compensation for missed rest breaks t0 FIRST AMENDED COMPLAINT -18- 3280\PLEADINGS\FAC.DOC hUJN KOOONOUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff and proposed class members, as required by California Labor Code sections 226.7, 558, 1198, and section 12 of applicable Wage Orders; (3) failure t0 maintain accurate records of Plaintiff” s and proposed class members’ payroll records showing hours worked daily and wages earned in Violation 0f California Labor Code section 1174; (4) failure t0 provide accurate itemized wage statements t0 Plaintiff and proposed class members containing information as required by California Labor Code section 226; (5) failure to permit employees to inspect or copy wage statements in Violation of California Labor Code section 226(0); (6) failure t0 permit employees t0 inspect personnel records, in Violation 0f California Labor Code section 1198.5; (7) failure t0 timely pay Plaintiff and proposed class members all wages when due, including but not limited t0 nonpayment 0f wages due t0 Defendant’s time rounding policy and practice, in Violation 0f California Labor Code section 204, 5 10, and 1194; (8) failure to pay members 0f the proposed class all wages due at the time of termination in Violation of California Labor Code sections 201- 203; and, (9) Violation 0f California Labor Code section 1051 in that Defendant obtained employees’ fingerprints as a condition precedent to their securing and retaining employment and shared these fingerprints With a third party; Violate applicable Labor Code sections and gives rise t0 statutory and civil penalties as a result 0f such conduct, including but not limited to penalties as provided by Labor Code sections 203, 210, 226(6), 226(f), 226.3, 558, 1054, 1174.5, 1198.5(k), 2699(a), 2699(f), and 2699.5, and applicable Industrial Welfare Commission Wage Orders. Plaintiff, as an aggrieved employee, hereby seeks recovery of civil penalties as prescribed by the Labor Code Private Attorney General Act 0f 2004 0n behalf of himself and other current and former employees 0f Defendant against whom one 0r more 0f the Violations 0f the Labor Code was committed. Plaintiff further seeks attorneys’ fees t0 achieve the same, pursuant t0 Labor Code section 2699(g)(1). 67. On June 29, 2018, Plaintiff gave written notice to the California Labor and Workforce Development Agency by online submission through their website and by certified mail t0 Defendant, Mission Trail Waste Systems, Inc., of Labor Code Violations as prescribed by California Labor Code section 2699.3. Plaintiff has not received written notification by the LWDA 0f an intention t0 investigate the allegations set forth in Plaintiff” s June 29, 2018, letter or FIRST AMENDED COMPLAINT -19- 3280\PLEADINGS\FAC.DOC ©WN©M$WNH NNNNNNNNNr-‘r-tt-It-nu-‘HHflHfi OONONMJ>WNHO©OONONUI4>WNHO written notice of cure by September 3, 201 8, 65 calendar days after the postmark date 0f the notice given t0 the LWDA, as prescribed by California Labor Code section 2699.3(a)(2)(A). PRAYER FOR RELIEF WHEREFORE Plaintiff prays for judgment and relief as follows: 1. An order certifying that the action may be maintained as a class action; 2. Compensatory and statutory damages, penalties and restitution, as appropriate and available under each cause of action, in an amount to be proven at trial based on, inflfl, the unpaid balance of compensation Defendant owes; 3. Reasonable attorneys’ fees pursuant t0 California Labor Code sections 218.5, 226(c)(1), 1194 and 2699(g)(1); 4. Costs 0fthis suit; 5 Pre- and post-judgment interest; and 6. Such other and further relief as the Court deems just and proper. 7 Plaintiff is informed and believes that the damages, back wages, restitution, value of injunctive relief sought, penalties, interest and attorneys’ fees d0 not exceed an aggregate of $4,999,999.99 and that the pro-rata value 0f Plaintiff s individual claims, including damages, back wages, restitution, injunctive relief, interest, attorneys’ fees, and penalties, does not exceed $74,999.99. JURY DEMAND Plaintiff hereby demands a trial by jury. Date: October 30, 2019 _ W AN LAW FIRM, P" By: - / 4’ Rbb’ufifi’. Wfififn‘hfi/ Y Attorneysfor Thomas Vfllareal, and all others similarly situated FIRST AMENDED COMPLAINT -20- 3280\PLEADINGS\FAC.DOC EXHIBIT C \OOOQOUI-RUJNy-t NNNNNNNNNr-‘r-tr-‘r-tr-tr-tr-tb-tr-H OOQQUI-PUJNHOKOOOflaUl-PWNHO WORKMAN LAW FIRM, PC Robin G. Workman (Bar #145810) robin@w0rkmanlawpc.com Rachel E. Davey (Bar #3 16096) rachel@w0rkmanlawpc.com 177 Post Street, Suite 800 San Francisco, CA 94108 Telephone: (415) 782-3660 Facsimile: (415) 788-1028 Attorneysfor Plaintifif Thomas Villarreal 0n behalfofhimselfand all others similarly Situated FELICIA R. REID (SBN 155481) freid@hkemp10vmentlaw.com MARGEAUX M. PELUSI (SBN 298724) mpelusi@hkemplovmentlaw.com HIRSCHFELD KRAEMER LLP 505 Montgomery Street, 13th Floor San Francisco, CA 941 11 T. 415-835-9000 F. 415-834-0443 Attorneysfor Defendant Mission Trail Waste Systems, Inc. SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA THOMAS VILLAREAL, on behalf of himself and all others similarly situated, Plaintiff, vs. MISSION TRAIL WASTE SYSTEMS, INC., and Does 1 through 50, inclusive, Defendants. Case N0.: 18CV338479 ASSIGNED FOR ALL PURPOSES TO THE HON. THOMAS E. KUHNLE, DEPT. 5 JOINT STIPULATION OF SETTLEMENT AND RELEASE IT IS HEREBY STIPULATED AND AGREED by and between Plaintiff Thomas Villareal (“Plaintiff”), on behalf of himself and all others similarly situated, and Defendant Mission Trail Waste Systems, Inc. (“Defendant”), subj ect t0 the approval 0f the Court, that this 1 JOINT STIPULATION OF SETTLEMENT AND RELEASE CASE NO. 18CV338479 \OOOQQUI-hUJNH NNNNNNNNNHr-tr-‘r-‘r-tr-Ar-‘r-tr-AH WQQM-waHOKOOOQONm-war-‘O litigation is compromised and settled pursuant t0 the terms and conditions set forth below. DEFINITIONS 1. “Action” shall mean the case entitled Thomas Villareal v. Mission Trail Waste Systems, Ina, Case No. 18CV338479, pending in the Superior Court of the State of California for the County of Santa Clara. 2. “Agreement” shall refer t0 this document. 3. “Claims Administrator” shall mean the third-party administrator appointed by the Court to administer the Settlement under the terms 0f this Agreement. 4. “Class” shall mean shall mean all current and former non-exempt sanitation truck drivers employed by Defendant at any time during the Class Period, Which Defendant represents t0 be 63 individuals as of October 2019. Members 0f the Class are referred t0 herein as “Class Member” 0r “Class Members.” 5. “Class Period” shall mean the period from November 19, 2014, through the date 0f Preliminary Approval 0f the class action settlement. 6. “Complaint” shall mean the Complaint filed by Plaintiff on November 19, 2018, and any amendments thereto. 7. “Court” shall mean the Superior Court 0f the State 0f California for the County 0f Santa Clara. 8. “Defendant” shall refer t0 Defendant Mission Trail Waste Systems, Inc. 9. “Defendant’s Counsel” shall mean the law firm of Hirschfeld Kraemer LLP. 10. “Employer Payroll Contributions” shall mean those payroll taxes and other monetary contributions required by state and federal law t0 be made by an employer on wage payments, including but not limited t0 FICA, Medicare, FUTA, and SUTA, and any federal and state unemployment taxes, payable by Defendant with respect to amounts treated as wages under this Agreement. 11. “Fee and Expense Award” shall mean such award 0f attorneys’ fees and costs as the Court may authorize t0 be paid t0 Plaintiff’s Counsel for the services rendered t0 Plaintiff and 2 JOINT STIPULATION OF SETTLEMENT AND RELEASE CASE NO. 18CV338479 \OOOQQUI-hUJNH NNNNNNNNNHr-tr-‘r-‘r-tr-Ar-‘r-tr-AH WQQM-waHOKOOOQONm-war-‘O the Class in the Action, and the actual costs incurred by Plaintiff’s Counsel in the prosecution 0f the Action. 12. “Final Approval Order and Judgment” means the Order Granting Final Approval of the Class Settlement and Judgment issued by the Court within the meaning and for purposes of Code of Civil Procedure Section 904.1(3), and Rule 3.769 0f the California Rules of Court. 13. “Individual Settlement Payment” shall mean the total gross amount each Settlement Class Member is entitled to receive from the Net Settlement Fund under the terms of this Agreement. 14. “Net Settlement Fund” shall mean the settlement funds available for distribution to Settlement Class Members after deducting from the $750,000 Gross Settlement Fund provided herein the following, as approved by the Court: (1) the Administration Costs; (2) the Fee and Expense Award; (3) the PAGA Payment; and (4) the Incentive Award. 15. “Notice” shall mean the Court-approved form 0f notice to Class Members that will notify Class Members 0f the conditional certification 0f the Settlement Class, Preliminary Approval 0f the Settlement, the procedures for obj ecting t0 the Settlement, and scheduling 0f the Final Approval Hearing. 16. “PAGA Payment” shall mean the payment made t0 the California Labor and Workforce Development Agency, in the amount of 75% of that portion of the GSF allocated to settle claims brought pursuant t0 the Private Attorneys General Act, California Labor Code Section 2698 ez‘ seq. 17. “Parties” shall collectively refer t0 Plaintiff and Defendant. 18. “Payment Obligation and Class Release Date” means (a) if n0 Class Member files any obj ections to the Settlement, then the date upon Which the Court grants Final Approval 0f the Settlement; (b) if any Class Member files an obj ection but it is subsequently Withdrawn, then the date upon which the Court grants Final Approval 0f the Settlement, 0r (c) if an obj ection is filed, then the date Which is sixty-five (65) days after (i) service 0f notice of entry 0f the Final Approval Order and Judgment 0n the Parties to the Action and all obj ectors to the Settlement, if any, without 3 JOINT STIPULATION OF SETTLEMENT AND RELEASE CASE NO. 18CV338479 \OOOQQUI-hUJNH NNNNNNNNNHr-tr-‘r-‘r-tr-Ar-‘r-tr-AH WQQM-waHOKOOOQONm-war-‘O any appeals 0r requests for review being taken, 0r (ii) orders affirming said Final Approval Order and Judgment or denying review after exhaustion 0f all appellate remedies, if appeals 0r requests for review have been taken. 19. “Plaintiff” shall mean Thomas Villareal, the Class Representative in the Action. 20. “Plaintiff’s Counsel” 0r “Class Counsel” shall mean Robin Workman 0f the Workman Law Firm, P.C. 21. “Preliminary Approval” shall mean that the entry 0f and Order by the Court preliminarily approving the terms and conditions 0f this Agreement, including the manner of providing notice t0 Class Members. 22. “Settlement” shall mean the terms and conditions set forth in this Agreement. 23. “Settlement Class Members” 0r “Settlement Class” shall mean Class Members who have not excluded themselves from the Settlement in accordance with the requirements set forth herein. 24. “Qualifying Workweek” shall mean each week, 0r fraction thereof, an individual worked for Defendant in a position covered by the definition 0f Class Member during the Class Period. RECITALS 25. The Pleadings. The original Complaint in this matter was filed 0n November 19, 2018, by Plaintiff, 0n behalf of himself and all others similarly situated, asserting various wage and hour claims, including claims for meal and rest period Violations, failure to pay all hours worked, inaccurate wage statements, failure to permit inspection of payroll and personnel records under Labor Code sections 225 and 1198.5, and improper use of employee fingerprints under Labor Code sections 1051 and 1054, among others. The original Complaint also alleged unfair competition under Business & Professions Code § 17200 et seq.; and civil penalties under the Private Attorneys General Act, Labor Code § 2699 et seq. (“PAGA”). 26. Defendant’s Denials. Defendant denies all of the claims and allegations in the Complaint. Defendant denies that it has engaged in any illegal conduct whatsoever. Defendant 4 JOINT STIPULATION OF SETTLEMENT AND RELEASE CASE NO. 18CV338479 \OOOQQUI-hUJNH NNNNNNNNNHr-tr-‘r-‘r-tr-Ar-‘r-tr-AH WQQM-waHOKOOOQONm-war-‘O contends that (i) its policies and practices fully comply with all applicable laws; and (ii) Plaintiff and other Class Members have been fully compensated for all hours worked, have been provided accurate wage statements, and have been provided all 0f the meal and rest periods t0 Which they are entitled. Defendant contends, among other things, that it has complied at all times With the California Labor Code, the California Business and Professions Code, and all other laws, statutes, orders 0r regulations alleged in the Complaint. 27. Investigation and Informal Discoverv. The Parties conducted significant investigation of the facts and law both before and after the Action was filed. This included informal discovery that included but was not limited t0 review and analysis 0f the Defendant’s policies and procedures; applicable collective bargaining agreements; time and payroll records; review and analysis 0f employment records by counsel and experts; and interviews of Class Members and potential Witnesses. Counsel for the Parties have further investigated the applicable law as applied t0 the facts discovered regarding Plaintiff’s claims, the defenses thereto, and the damages and penalties claimed by Plaintiff in the Action. The Parties also exchanged extensive data and information regarding the Class claims prior t0 the mediation and in negotiating the Settlement, including data relevant to damages and their respective mediation briefs detailing the Parties’ legal theories and defenses. 28. Mediation. On August 20, 2019, the Parties attended and participated in good faith, arms’ length settlement discussions at an all-day mediation before Mediator David Rotman (“Mediator”). At the mediation, Plaintiff asserted additional claims based 0n Defendant’s time rounding practices and Defendant’s alleged failure t0 pay all wages due at termination. The Parties continued settlement efforts following the mediation, eventually reaching a settlement Whose terms are memorialized in a written Memorandum 0f Understanding (“MOU”), which are encompassed and superseded by this Agreement. The Parties believe and agree that this Settlement is a fair, adequate, and reasonable resolution 0f the Action and have arrived at this Settlement in arms-length negotiations, taking into account all relevant factors, present and potential, each side recognizing the risks of an adverse result should litigation continue. 5 JOINT STIPULATION OF SETTLEMENT AND RELEASE CASE NO. 18CV338479 \OOOQQUI-hUJNH NNNNNNNNNHr-tr-‘r-‘r-tr-Ar-‘r-tr-AH WQQM-waHOKOOOQONm-war-‘O 29. Non-Admissibilitv. This Agreement represents the compromise and settlement of highly disputed claims. Plaintiff claimed, and continues to claim, that his contentions have merit and give rise t0 Defendant’s liability, and Defendant claims and continues t0 claim that the claims lack factual and legal merit and that class certification is unwarranted. Nothing in this Agreement, the documents referenced in this Agreement, 0r any action taken to carry out this Agreement is, may be construed as, 0r may be used as, an admission, concession 0r other indication by or against Defendant 0f any fault, wrongdoing, or liability whatsoever, nor construed or used against the Plaintiff as t0 the merits 0r lack thereof 0f the claims he has asserted. Therefore, Whether 0r not the Settlement is finally approved, and except and t0 the extent that this Agreement becomes a release of claims as 0f the Payment Obligation and Class Release Date, as provided for herein, neither the Settlement, nor any 0f its terms, nor any document, statement, proceeding or conduct related t0 this Agreement, nor any reports 0r accounts thereof, shall be admissible in evidence for any purpose except for purposes 0f settling the Action, obtaining Preliminary and Final Approval 0r enforcing the terms 0f this Agreement. 30. No Publicigx. As a material term 0f the settlement, neither Plaintiff nor Plaintiff” s counsel will publicize this settlement by name (i.e. identifying Mission Trail Waste Systems, Inc.), 0r its industry and location (refuse and recycling collection and/or sanitation company operating in Santa Clara County), through a press release, posting 0n counsels’ website, in social media 0r by any other public means, other than Court filings and proceedings associated with the Settlement. Nothing in this provision is intended t0 prohibit (i) Plaintiff from discussing this Settlement With his spouse, attorneys or tax advisor; (ii) Plaintiff from discussing this Settlement with other Class Members after the Settlement has been preliminarily approved by the Court; (iii) Plaintiff” s Counsel from citing the Settlement in this case as evidence supporting her competence as counsel in wage/hour and/or class action matters in public court filings; 0r (iv) Plaintiff’s counsel from communicating With Class Members in this case 0r the Court in which this action is pending. SETTLEMENT COMPONENTS 6 JOINT STIPULATION OF SETTLEMENT AND RELEASE CASE NO. 18CV338479 \OOOQQUI-hUJNH NNNNNNNNNHr-tr-‘r-‘r-tr-Ar-‘r-tr-AH WQQM-waHOKOOOQONm-war-‘O 31. Conditional Certification 0f the Class. Solely for purposes of Settlement, the Parties agree t0 the certification of the following Class: all current and former non-exempt sanitation truck drivers employed by Defendant at any time during the period between November 18, 2014 through the date of Preliminary Approval, Which Defendant represents to be 63 employees as 0f October 2019. If, for whatever reason, the Settlement does not become final, the Parties’ stipulation t0 conditional class certification shall become null and void. 32. Gross Settlement Fund. Subject to the terms and conditions of this Agreement, and in full settlement 0f the Class claims and all Released Claims, the Defendant shall pay the total amount of Seven Hundred Fifty Thousand Dollars ($750,000.00) t0 create a Gross Settlement Fund (“GSF”). The GSF shall fully cover: (1) all Individual Settlement Payments; (2) the PAGA Payment; (3) the Fee and Expense Awards to Class Counsel; (4) all Administration Costs; and (5) the Incentive Award. The GSF does not include Employer Payroll Contributions 0n the wage portion of Individual Settlement Payments, Which Defendant shall pay separately, and there shall be no reversion t0 the Defendant. 33. PAGA Payment. Fifteen Thousand Dollars ($15,000.00) 0f the GSF is allocated to settle civil penalty claims pursuant t0 the Private Attorneys General Act of 2004, Cal. Lab. Code section 2699, et seq. The PAGA Payment shall consist 0f 75% 0f this allocation ($1 1,250.00), which shall be paid t0 the Labor & Workforce Development Agency (“LWDA”) as required by PAGA. The $3,750.00 remainder of the PAGA allocation shall become part 0f the Net Settlement Fund and distributed t0 the Class as part 0f the Individual Settlement Payments. 34. Individual Settlement Pavments to Class Members. The Net Settlement Fund (NSF), representing that part of the GSF remaining after deduction of court-approved Administration Costs, Fee and Expense Award, Incentive Award and the PAGA Payment, shall be distributed t0 Settlement Class Members through Individual Settlement Payments. The entire NSF shall be allocated to the payment of Individual Settlement Payments t0 Settlement Class Members. (i) Reasonable Allocation Formula. The Parties recognize and agree that the precise amounts 0f compensation claimed in this Action are difficult t0 7 JOINT STIPULATION OF SETTLEMENT AND RELEASE CASE NO. 18CV338479 \OOOQQUI-hUJNH NNNNNNNNNHr-tr-‘r-‘r-tr-Ar-‘r-tr-AH WQQM-waHOKOOOQONm-war-‘O 35. (ii) (iii) determine. The Parties agree that the formula for allocating the Individual Settlement Payments to Class Members provided herein is reasonable and that the payments provided herein are designed t0 provide a fair settlement for the Class as a whole, in light of the uncertainties regarding the calculation 0f alleged compensation to each Settlement Class Member Calculation 0f Individual Settlement Pavments. The Individual Settlement Payment Will be calculated based on the number of the Qualifying Workweeks worked by each Settlement Class Member. Each Class Member shall be entitled to a Percentage Share 0f the NSF, calculated by dividing the number 0f Qualifying Workweeks worked by the Settlement Class Member by the aggregate number of Qualifying Workweeks for the entire Class, and multiplying the resulting percentage by the value 0f the NSF. Each Class Member’s Qualifying Workweeks will be determined by reference t0 the Defendant’s records. Allocation and Taxes. The Individual Settlement Payments shall be allocated for tax purposes as follows: 25% t0 unpaid wages, which shall be subj ect to required state, federal and local Withholdings, and reported on Forms W-2 (“Wage Portion”); and 75% to interest, and penalties, not subj ect t0 withholding and reported 0n Forms 1099 (“Non-Wage Portion”). Employer Payroll Contributions shall be paid by Defendant 0n the wage portion of the Individual Settlement Payments separately and outside of the GSF. Fee and Expense Award. Defendant Will not object t0 an application by Plaintiff for an award 0f attorney’s fees not more than one-third of the GSF ($250,000.00) and for an award 0f costs and expenses not t0 exceed Twenty Thousand Dollars ($20,000.00) (collectively the “Fee and Expense Award”). 36. Incentive Award. Defendant will not object t0 an application by Plaintiff for an 8 JOINT STIPULATION OF SETTLEMENT AND RELEASE CASE NO. 18CV338479 \OOOQQUI-hUJNH NNNNNNNNNHr-tr-‘r-‘r-tr-Ar-‘r-tr-AH WQQM-waHOKOOOQONm-war-‘O award of not more than Five Thousand Dollars ($5,000.00) as an Incentive Award, in addition to any Individual Settlement Payment that Plaintiff is entitled t0 under this Agreement. The Incentive Award is in consideration of Plaintiff having initiated and pursued the Action, undertaking the risk 0f liability for attorneys’ fees and expenses in the event he was unsuccessful in the prosecution 0f the Action, and granting Defendant a general release of claims. The Incentive Award is not wages, shall not be subj ect t0 payroll Withholdings, and shall be reported on IRS Forms 1099. 37. Administration Costs. Rust Consulting shall serve as the Claims Administrator, subject t0 the Court’s approval. Administration Costs not t0 exceed $15,000.00 shall be paid from the GSF to the Claims Administrator for administering the settlement and otherwise performing duties under this Agreement. PRELIMINARY APPROVAL AND CLASS NOTICE 38. Preliminarv Approval. Class Counsel shall request a hearing before the Court to seek Preliminary Approval of the Settlement on the earliest practical date, currently anticipated t0 be November 22, 2019. In conjunction With such hearing, Class Counsel shall prepare a motion for preliminary approval to be submitted to the Court along with this Agreement, and any other documents necessary to implement the Settlement. The motion will request that the Court enter a Preliminary Approval Order, preliminarily approving the proposed Settlement, conditionally certifying the Class for settlement purposes only, conditionally appointing Plaintiff” s Counsel as Class Counsel, approving the Claims Administrator, and setting a date for the Final Approval Hearing. The Preliminary Approval Order shall also provide for Notice of the Settlement to be disseminated to Class Members as specified herein or as may otherwise by ordered by the Court, provided that such order is also acceptable to the Parties and consistent with the terms of this Agreement. Class Counsel shall submit a draft 0f the motion t0 Defendant’s Counsel at least five (5) business days prior t0 the filing deadline for review and input. 39. Amendment 0f Complaint. As part of or in advance of the Preliminary Approval motion, the Parties will stipulate t0 the filing 0f an amended complaint (“First Amended 9 JOINT STIPULATION OF SETTLEMENT AND RELEASE CASE NO. 18CV338479 \OOOQQUI-hUJNH NNNNNNNNNHr-tr-‘r-‘r-tr-Ar-‘r-tr-AH WQQM-waHOKOOOQONm-war-‘O Complaint”) expressly asserting claims that were asserted at the mediation and formed part 0f the negotiations and ultimate Settlement, including: (i) claims for waiting time penalties under Labor Code section 203; and (ii) claims for unpaid wages, including minimum wages and overtime, based on deductions due to time rounding and automatic deduction of a 30-minute meal period. 40. Notice t0 LWDA. At the same time the Preliminary Approval motion is filed, Plaintiff shall submit a copy 0f this Agreement t0 the LWDA pursuant t0 California Labor Code section 2699(1)(2). Plaintiff shall be responsible for any and all filing fees associated with notice to the LWDA, which shall be recoverable as part 0f the Fee & Expense Award. 41. Class List. Within ten (10) business days 0f the date 0f Preliminary Approval, the Defendant will provide the Claims Administrator with the names, most recent known mailing address, social security number, and the total number 0f Qualifying Workweeks 0f each Class Member during the Class Period (collectively the “Class List”). Each Class Member’s total Qualifying Workweeks will be derived from Defendant’s records. The Class List Will be treated as confidential by the Claims Administrator and Will not be disclosed by the Claims Administrator t0 anyone, except as may be required t0 applicable tax authorities, pursuant t0 the express written consent 0f the Defendant, by order of the Court, 0r as may be necessary to carry out the reasonable steps described in this Settlement t0 locate missing Class Members. 42. Notice t0 Class. Within twenty (20) calendar days after Preliminary Approval, the Claims Administrator shall mail a copy 0f the Notice in the form approved by the Court in its Preliminary Approval Order t0 all persons shown by Defendant’s records t0 be Class Members, Via first class U.S. mail, using the most current mailing address available. The Notice shall state the total number of Qualifying Workweeks for each Class Members, the total approximate amount each Class Member is estimated to be entitled to receive as their Individual Settlement Payment under the Settlement, and a procedure for disputing the number of Qualifying Workweeks (“Notice Packet”). (a) Returns and Remailing. Any Notices returned to the Claims Administrator as undelivered and bearing a forwarding address shall be re-mailed by the 10 JOINT STIPULATION OF SETTLEMENT AND RELEASE CASE NO. 18CV338479 \OOOQQUI-hUJNH NNNNNNNNNHr-tr-‘r-‘r-tr-Ar-‘r-tr-AH WQQM-waHOKOOOQONm-war-‘O Claims Administrator Within three (3) business days following receipt of the returned mail. For any Notices returned to the Claims Administrator Without a forwarding address, the Claims Administrator shall first conduct a National Change of Address search as required for undeliverable notices, followed by a computer/SSN and “skip trace” search t0 obtain an updated address, and shall promptly re-mail the Notices to any newly-found address or addresses Within three (3) business days. The re-mailed Notice shall be identical t0 the original Notice. The Claims Administrator shall undertake all reasonable efforts t0 locate and verify the addresses 0f Class Members and send a copy of the Notice t0 all Class Members. (b) Disputes as t0 Qualifying Workweeks. Class Members may dispute the number of Qualifying Workweeks listed 0n their Notices by producing evidence establishing the dates that the Class Member contends t0 have worked during the Class Period. The Claims Administrator shall notify counsel for the Parties of any disputes. If there is a dispute, the Defendant shall review its records and provide further information t0 the Claims Administrator, as necessary. Defendant’s records will be presumed t0 be determinative. Unless the Court orders otherwise, the Claims Administrator shall resolve any disputes and notify counsel for the Parties 0f its decision. (c) Informational Website. The Claims Administrator shall also set up a website, the URL for which is t0 be included in the Notice, containing this Agreement and related documents. Any costs incurred by having the Claims Administrator handle these administrative tasks shall be included in the Administration Costs approved by the Court. 43. Procedure for Obiecting to or Requesting Exclusion from the Settlement. Any Class Member or other person(s) purporting t0 act 0n behalf 0f a Class Member Who Wishes t0 obj ect t0 the Settlement, 0r t0 be excluded (opt-out) from the Settlement Class, must submit timely written obj ections and/or a request for exclusion and/or dispute information from the Settlement Class within forty-five (45) calendar days from the date Notice Packet is mailed (“Class Member Deadline”), using the following procedures: 11 JOINT STIPULATION OF SETTLEMENT AND RELEASE CASE NO. 18CV338479 \OOOQQUI-hUJNH NNNNNNNNNHr-tr-‘r-‘r-tr-Ar-‘r-tr-AH WQQM-waHOKOOOQONm-war-‘O (a) Obj ections. The Notice shall provide that any Class Member(s) and person(s) purporting t0 act 0n behalf 0f any Class Member(s) who wish t0 obj ect t0 the Settlement may submit to the Claims Administrator a written statement obj ecting t0 the Settlement, and any supporting briefs or other materials, on or before the Class Member Deadline. The Claims Administrator shall promptly provide copies 0f all such submissions t0 counsel for the Parties. Such obj ection shall state Whether the Class Member intends t0 appear at the Final Approval Hearing, and if it does not, the objecting Class Member shall not be permitted to appear. A Class Member who fails t0 submit a timely written obj ection shall be deemed to have waived any obj ections and shall be foreclosed from making any obj ection t0 the Settlement. (b) Exclusions. The Notice shall also provide that Class Members Who wish t0 exclude themselves (opt-out) from the Settlement must mail t0 the Claims Administrator n0 later than the Class Member Deadline a written statement requesting exclusion from the Settlement Class. The request must contain the name, address, and telephone number of the Class Member requesting exclusion, a statement that they wish to exclude themselves from the settlement and understand that by doing so they will not receive any settlement proceeds. Any request for exclusion postmarked later than forty-five (45) calendar days from the date the Notice is mailed by the Claims Administrator shall not be effective. In addition, any request for exclusion 0f a Class Member Who also submits an obj ection shall be deemed invalid. For any Class Member Who submits a deficient request for exclusion, the Claims Administrator shall notify the Class Member and give him or her fifteen (15) calendar days t0 cure any deficiency. The Claims Administrator will provide Plaintiff” s Counsel and Defendant’s Counsel the names 0f individuals who make timely, valid requests for exclusion. (c) Effect 0f Requesting 0r Failing t0 Request Exclusion. Class Members who submit a timely and valid request for exclusion (opt-out) shall not be part of the Settlement Class, will not receive a pro rata distribution from the NSF and Will not be allowed t0 obj ect t0 this Settlement. Class Members Who fail t0 submit a timely and valid request for exclusion in the manner described herein shall be Settlement Class Members, and shall be bound by all terms 0f 12 JOINT STIPULATION OF SETTLEMENT AND RELEASE CASE NO. 18CV338479 \OOOQQUI-hUJNH NNNNNNNNNHr-tr-‘r-‘r-tr-Ar-‘r-tr-AH WQQM-waHOKOOOQONm-war-‘O the Settlement and the Judgment, if the Settlement is approved by the Court. 44. Claims Administrator Reports. The Claims Administrator shall provide weekly status reports t0 counsel for the Parties, including (a) the number 0fNotice Packets mailed; (b) the number of obj ections received; and (c) the number of requests for exclusion received. At least ten (10) calendar days prior to the Final Approval Hearing, the Claims Administrator will provide a declaration showing due diligence setting forth its compliance With its obligations under this agreement, including with regard to: (i) mailing 0f the Notice; (ii) receipt 0f any valid requests for exclusion; and (iii) any inability t0 deliver the Notice to Class Members due t0 invalid addresses. Prior t0 the Final Approval Hearing, the Claims Administrator Will prepare and submit for filing in support of the motion a supplemental declaration as may be necessary 0r requested by counsel for the Parties. FINAL APPROVAL AND JUDGMENT 45. Motion for Final Approval and Hearing. After Preliminary Approval, notice t0 the Class and an opportunity for objection, a Final Approval Hearing shall be held 0n a date set by the Court t0 consider Final Approval 0f the Settlement, Whether and in What amount a Fee and Expense Award should be awarded t0 Plaintiff” s Counsel, whether and in what amount an Incentive Award should be awarded t0 the Plaintiff, and the merits 0f any objections t0 this Agreement and the Settlement set forth herein 0r any of its terms. In connection with the Final Approval Hearing, Class Counsel shall prepare and file a motion for final approval, which shall include the Report 0f the Claims Administrator. The motion shall be submitted in draft form t0 counsel for Defendants at least five (5) business days prior to the filing deadline for review and input. 46. Plaintiff’s Application for Fee and Expense Award and Incentive Award. Concurrent with the filing of the Motion for Final Approval, Plaintiff shall file with the Court any application for a Fee and Expense Award and Incentive Award authorized by this Agreement. 47. Judgment. Concurrent With Final Approval 0f the Settlement, the Parties shall obtain entry 0f a Final Approval Order and Judgment. The Judgment shall become final upon the 13 JOINT STIPULATION OF SETTLEMENT AND RELEASE CASE NO. 18CV338479 \OOOQQUI-hUJNH NNNNNNNNNHr-tr-‘r-‘r-tr-Ar-‘r-tr-AH WQQM-waHOKOOOQONm-war-‘O Payment Obligation and Class Release date, after which the Court shall retain jurisdiction: (i) to enforce the terms of this Agreement; (ii) address any Claims Administration matters that may arise; and (iii) address such post-Judgment matters as may be appropriate under the Court’s rules or applicable law. 48. LWDA Notice. Class Counsel shall submit a copy 0f the Court’s Final Approval Order and Judgment t0 the LWDA Within ten (10) business days 0f entry and shall pay all filing fees associated with such submissions, Which shall be recoverable as part 0f the Fee and Expense Award. EFFECTUATION OF SETTLEMENT 49. Computation 0f GSF Distribution and Employer Pavroll Contributions. Plaintiff shall immediately submit the Order of Final Approval and Judgment to the Claims Administrator, who shall calculate forthwith the amount 0f the NSF, the Individual Settlement Payments t0 the Settlement Class, and the amount 0f Employer Payroll Contributions on the wage portion of the Individual Settlement Payments. Within five (5) business days after the Payment Obligation and Class Release Date, the Claims Administrator shall provide such information t0 the Defendant, along with wiring instructions for submitting sufficient funds to cover the GSF and the Employer Payroll Contributions due. 50. Deposit 0f Settlement Funds. The GSF shall be paid in two installments. Within ten (10) business days of the Payment Obligation and Class Release Date 0r by April 30, 2020, Whichever is later, Defendant shall Wire 50% of the GSF t0 the Claims Administrator (“First Installment”). The remaining 50% shall be Wired to the Claims Administrator within four (4) months thereafter or 0n August 3 1 , 2020, whichever is later (“Second Installment”). This First Installment shall be distributed as follows: (i) the 75% Non-Wage Portion 0f the Individual Settlement Payments to Class Members; (ii) the Incentive Award to the Named Plaintiff; (iii) 50% 0f the Administration Costs t0 the Claims Administrator; and (iv) the PAGA Payment t0 the LWDA, With any remainder (“Remainder”) distributed with the Second Installment. The Remainder plus the Second Installment shall be distributed as follows: (i) the 25% Wage Portion 14 JOINT STIPULATION OF SETTLEMENT AND RELEASE CASE NO. 18CV338479 \OOOQQUI-hUJNH NNNNNNNNNHr-tr-‘r-‘r-tr-Ar-‘r-tr-AH WQQM-waHOKOOOQONm-war-‘O of the Individual Settlement Payments to Class Members; (ii) the Fee and Expense Award to Class Counsel; and (iii) the remaining 50% of Administration Costs t0 the Claims Administrator. 5 1. Individual Settlement Pavments. The Non-Wage portion (75%) 0f the Individual Settlement Payments shall be distributed by the Claims Administrator to Settlement Class Members no later than ten (10) business days from the date the Defendant pays the First Installment. The Wage Portion (25%) 0f the Individual Settlement Payments shall be distributed t0 Settlement Class Members no later than ten (10) business days from the date the Defendant pays the Second Installment. The Claims Administrator shall mail all Individual Settlement Payments t0 Settlement Class Members Via first class mail. 52. Pavment 0f Incentive Award t0 Plaintiff. Not later than ten (10) business days from Defendant’s payment of the First Installment, the Claims Administrator shall forward t0 Plaintiff, care 0f Class Counsel, a check reflecting any Incentive Award approved by the Court for Plaintiff. The Incentive Award shall be reported 0n an IRS 1099 Form t0 the appropriate taxing authorities, With a copy t0 Plaintiff. 53. PAGA Payment. Not later than ten (10) business days from Defendant’s payment 0f the First Installment, the Claims Administrator shall forward the PAGA Payment to the LWDA. 54. Administration Costs. Fifty percent (50%) of the Administration Costs as authorized by the Court shall be paid from the GSF to the Claims Administrator Within ten (10) days 0fpayment of the First Installment by Defendant, with the remaining 50% paid t0 the Claims Administrator upon completion 0f all duties required t0 be performed by the Claims Administrator under the terms of this Agreement, or as otherwise required by the Court. 55. Pavment 0f Fee and Expense Award. Not later than ten (10) business days from Defendant’s payment 0f the Second Installment, the Claims Administrator shall transmit Via wire transfer t0 Class Counsel the amount of the Court-approved Fee and Expense Award. The Fee and Expense Award shall be reported on an IRS 1099 Form to the appropriate taxing authorities, with a copy t0 Plaintiff” s Counsel. 56. Uncashed Checks. Any check issued t0 any Settlement Class Member shall 15 JOINT STIPULATION OF SETTLEMENT AND RELEASE CASE NO. 18CV338479 \OOOQQUI-hUJNH NNNNNNNNNHr-tr-‘r-‘r-tr-Ar-‘r-tr-AH WQQM-waHOKOOOQONm-war-‘O remain valid and negotiable for ninety (90) calendar days from the date of its issuance, but if not cashed within that time Will be void. Settlement Class Members Who failed t0 cash their checks Within the timelines provided shall nevertheless remain members 0f the Settlement Class and shall be bound by all the terms 0f this Agreement and the Court’s Final Approval Order and Judgment. The Claims Administrator shall perform a second distribution 0f funds 0n a pro rata basis to those Class Members Who cashed their individual settlement checks if the amount of the funds remaining due t0 uncashed checks is at least $4,500.00. Consistent With California Code of Civil Procedure section 384, the funds associated With any void, uncashed checks after a second distribution, 0r if the fimds remaining from the initial distribution are less than $4,500.00, shall be paid on a cypres basis to Legal Aid at Work, or such other charitable organization as approved by the Court. Upon completion 0f administration 0f the Settlement, the Claims Administrator shall provide written confirmation 0f such completion t0 the Court, Class Counsel and Defendant’s Counsel. RELEASES 57. Release bv the Settlement Class Members. As of the Payment Obligation and Class Release Date, Plaintiff and all Settlement Class Members (on behalf of each of them and each of their heirs, executors, administrators, and assigns) irrevocably and unconditionally fully release and forever discharge Defendant, and its past, present, and future parents, subsidiaries, divisions, and affiliates, and their respective past, present, and future officers, directors, employees, partners, shareholders, owners, agents, vendors, affiliates, insurers, legal representatives, and all 0f their successors (including persons or entities who may acquire it in the future), assigns, representatives, heirs, executors, and administrators and all other persons acting by, though, under 0r in concert with them (collectively, the “Released Parties”), from any and all claims, debts, rights, demands, obligations 0r liabilities 0f every nature and description, whether known 0r unknown, for wages, damages, penalties, liquidated damages, punitive damages, interest, attorneys’ fees, litigation costs, restitution, or equitable relief arising out 0f the allegations set forth in the Action and Complaint t0 the extent that such claims arise 16 JOINT STIPULATION OF SETTLEMENT AND RELEASE CASE NO. 18CV338479 \OOOQQUI-hUJNH NNNNNNNNNHr-tr-‘r-‘r-tr-Ar-‘r-tr-AH WQQM-waHOKOOOQONm-war-‘O from Settlement Class Members’ employment with Defendant (the “Released Claims”). The Released Claims include, for example, any and all claims for: (a) failure t0 provide meal periods under Labor Code §§ 226.7, 5 12 and Wage Order 9-2001 section 11, or other applicable Wage Order; (b) failure to provide paid rest periods under Labor Code § 226.7, and Wage Order 9-2001; (c) failure to pay overtime wages under Labor Code §§ 5 10, 1194, and the Fair Labor Standards Act; (d) failure to pay all hours worked; (e) failure t0 provide or maintain accurate wage statements pursuant t0 California Labor Code § 226; (f) waiting time penalties under Labor Code § 203; (g) failure t0 permit inspection 0f payroll records under Labor Code section 226; (h) failure t0 permit inspection of personnel records under Labor Code section 1 198.5; (i) improper acquisition and use 0f employee fingerprints under Labor Code sections 1051 and 1054; (j) unfair business practices pursuant to California Business and Professions Code § 17200 based upon the foregoing alleged Violations; (k) associated civil penalties based 0n the foregoing alleged Violations under Labor Code §2699 et seq.; and (1) any additional claims that were 0r could have been asserted arising out of 0r based on the allegations set forth in the First Amended Complaint t0 the extent such claims and allegations arise from Class Members’ employment with Defendant during the Class Period. 58. Additional General Release 0f All Claims bv Named Plaintiff (a) As 0f the Payment Obligation and Class Release Date, and for the duration of the Class Period, Plaintiff (0n his own behalf and on behalf of his heirs, executors, 17 JOINT STIPULATION OF SETTLEMENT AND RELEASE CASE NO. 18CV338479 \OOOQQUI-hUJNH NNNNNNNNNHr-tr-‘r-‘r-tr-Ar-‘r-tr-AH WQQM-waHOKOOOQONm-war-‘O administrators, and assigns) knowingly and voluntarily releases and forever discharges the Released Parties from any and all claims, known and unknown, asserted and unasserted, that he has 0r may have had against Defendant 0r any 0f the Released Parties as defined in paragraph 57 above. Such claims include, but are not limited t0: breach 0f contract, whether written, oral or implied; Violation 0f public policy; tort claims, including but not limited t0 intentional infliction of emotional distress and negligent infliction 0f emotional distress, defamation, misrepresentation, and fraud; retaliation claims; common law claims; any other claims for damages, costs, fees, 0r other expenses, including attorneys’ fees; and any Violations 0f the following statutes, laws, and regulations: Title VII 0f the Civil Rights Act 0f 1964, as amended; The Civil Rights Act 0f 1991; Sections 1981 through 1988 0f Title 42 0f the United States Code, as amended; The Americans with Disabilities Act 0f 1990, as amended; The Age Discrimination in Employment Act of 1967, as amended; the Older Workers Benefit Protection Act; the Employment Retirement Income Security Act 0f 1974, as amended; the Occupational Safety and Health Act, as amended; the Sarbanes-Oxley Act 0f 2002; the Family and Medical Leave Act 0f 1993, as amended; the Fair Labor Standards Act; the California Fair Employment and Housing Act - Cal. Gov’t Code § 12900 et seq.; the California Family Rights Act - Cal. Govt. Code §12945.2 et seq.; the California Unruh Civil Rights Act - CiV. Code §51 et seq.; the California Whistleblower Protection Law - Cal. Lab. Code §1102-5(a) to (c); the California Occupational Safety and Health Act, as amended, California Labor Code § 6300 et seq., and any applicable regulations thereunder; the California Labor Code; the Labor Code Private Attorneys General Act 0f 2004 - Cal. Lab. Code § 2698 et seq.; California Labor Code § 132a; and any other federal, state, or local civil employment law, statute, regulation, or ordinance capable 0f being released by Plaintiff, excluding any claims that cannot be released as a matter 0f law. (b) T0 effect a full and complete general release as of all claims, Plaintiff expressly waives and relinquishes all rights and benefits of California Civil Code section 1542, and does s0 understanding and acknowledging the significance and consequence of specifically waiving rights under Civil Code section 1542, Which states as follows: 18 JOINT STIPULATION OF SETTLEMENT AND RELEASE CASE NO. 18CV338479 \OOOQQUI-hUJNH NNNNNNNNNHr-tr-‘r-‘r-tr-Ar-‘r-tr-AH WQQM-waHOKOOOQONm-war-‘O A general release does not extend t0 claims that the creditor 0r releasing party does not know 0r suspect to exist in his or her favor at the time of executing the release and that, if known by him or her would have materially affected his 0r her settlement With the debtor or released party. Thus, notwithstanding the provisions 0f Civil Code section 1542, and t0 implement a full and complete release and discharge, Plaintiff expressly acknowledges this Settlement is intended t0 include in its effect, without limitation, all known and unknown claims, including any claims that he does not know or suspect t0 exist in his favor against the Released Parties at the time 0f signing this Agreement, and that this Settlement contemplates the extinguishment 0f any such claim 0r claims. Plaintiff acknowledges that he may later discover facts different from 0r in addition t0 those now know 0r believe t0 be true regarding the matters released or described in this Agreement, and nonetheless agree that the releases and agreements contained in this Agreement shall remain fully effective in all respects notwithstanding any later discovery of any different or additional facts. TAXES AND OTHER CONSEQUENCES OF SETTLEMENT PAYMENTS 59. Tax Payments and Reporting Obligations. The Claims Administrator shall be responsible for making all necessary tax payments to governmental agencies, including but not limited t0 income taxes, required deductions and Withholdings, and Employer Payroll Contributions, as well as all tax reports and filings in connection with all payments made under this Agreement, including but not limited t0 issuance 0f Forms W-2 and 1099. 60. N0 Tax Advice. Neither Plaintiff s Counsel nor Defendant’s Counsel intend anything contained herein t0 constitute legal advice regarding the taxability of any amount paid hereunder, nor shall it be relied upon as such. The tax issues for each Settlement Class Member are unique, and each Settlement Class Member is advised t0 obtain tax advice from his 0r their own tax advisor With respect t0 any payments resulting from the Individual Settlement Payments. In addition, Defendant makes n0 representations 0r warranties 0r promises 0f any kind 0r nature regarding the taxability of any sums paid to Plaintiff and Plaintiff’s Counsel in settlement pursuant t0 this Agreement, the risk 0f which rests entirely with Plaintiff and Plaintiffs Counsel. 19 JOINT STIPULATION OF SETTLEMENT AND RELEASE CASE NO. 18CV338479 \OOOQQUI-hUJNH NNNNNNNNNHr-tr-‘r-‘r-tr-Ar-‘r-tr-AH WQQM-waHOKOOOQONm-war-‘O 61. Tax Obligations 0f Plaintiff and Plaintiff’s Counsel. Plaintiff and Plaintiff’s Counsel acknowledge and agree that they are and Will be responsible for the payment 0f any and all Federal, State, and Local taxes 0r penalties associated With their respective allocated portions 0f the payments described herein. The Parties acknowledge and agree that Plaintiff’s Counsel is not responsible for the payment 0f any 0r all Federal, State, and local taxes 0r penalties associated With the Incentive Award to Plaintiff and Individual Settlement Payments t0 Settlement Class Members. The Parties further acknowledge and agree that Plaintiff’s Counsel has n0 duty t0 indemnify, defend, or hold the Released Parties harmless from any and all claims by any Federal, State, 0r Local taxing authority that Plaintiff 0r Settlement Class Members failed t0 pay 0r underpaid their share 0f taxes associated With the payments set forth in this Agreement. In the event that the Defendant 0r any Released Party receives any notice 0r demand regarding a claim by a taxing authority that Plaintiff 0r Plaintiff” s Counsel has failed t0 pay 0r underpaid their share 0f any taxes associated With payments they received under this Agreement, the Defendant agrees to notify Plaintiff and Plaintiff’s Counsel so as t0 provide each 0f them with an opportunity t0 defend, at their expense, the Released Parties from any such claim based 0n their respective payments; provided, however, that the opportunity to defend the Released Parties shall not relieve Plaintiff or Plaintiff’s Counsel (or both, as applicable) 0f their obligation t0 indemnify and defend the Defendant and/or the Released Parties for their respective share. 62. Settlement Class Member Tax Obligations. Each Settlement Class Member will be responsible for paying all applicable state, local, and federal income taxes 0n all amounts the Settlement Class Member receives pursuant to this Agreement and shall not seek indemnification from Defendant or Plaintiff” s counsel in this regard. Should any taxing authority or agency determine that any Settlement Class Member owes additional personal income taxes and/or employee contributions on any portion of his or her Individual Settlement Payment based 011 a challenge t0 the allocation of wage and non-wage portions set forth in paragraph 34(iii) of this Agreement, such Settlement Class Member shall be solely responsible for the payment 0f his 0r her personal income taxes and/or employee contributions. Accordingly, if any taxing authority or 20 JOINT STIPULATION OF SETTLEMENT AND RELEASE CASE NO. 18CV338479 \OOOQQUI-hUJNH NNNNNNNNNHr-tr-‘r-‘r-tr-Ar-‘r-tr-AH WQQM-waHOKOOOQONm-war-‘O agency seeks such amounts from Defendant based on a challenge to the allocation 0fwage and non-wage portions 0f the Individual Settlement Payment, the Settlement Class Member shall reimburse Defendant for any of his 0r her personal income taxes and/or employee contributions that Defendant has actually made t0 any such taxing authority or agency. 63. N0 Effect 0n Emplovee Benefits. The Individual Settlement Payments available t0 Settlement Class Members and the Incentive Award paid to Plaintiff shall not be deemed t0 be “pensionable” earnings and shall not have any effect 0n the eligibility for, 0r calculation 0f, any 0f the employee benefits (e.g., vacations, holiday pay, retirement plans, etc.) of the Plaintiff 0r Class Members. The Parties agree that any Individual Settlement Payment 0r Incentive Award paid under the terms 0f this Agreement does not represent any modification 0f Settlement Class Members’ previously credited hours 0f service 0r other eligibility criteria under any employee pension benefit plan 0r employee welfare benefit plan sponsored by the Defendant, and any union- sponsored plan in Which Class Members participate(d) as a consequence of their employment by Defendant. Further, any Individual Settlement Payment or the Incentive Award paid hereunder shall not be considered “compensation” in any year for purposes of determining eligibility for, or benefit accrual within, an employee retirement benefit plan, employee welfare benefit plan, employee bonuses, or employee past, current, 0r future compensation levels. The Parties further agree that Plaintiff and all Settlement Class Members Will be deemed t0 have waived any claims 0r benefits under the Employee Retirement Income Security Act of 1974 (29 U.S.C §1001 et seq.) premised upon any and all amounts they receive under this Settlement as part of their Released Claims under this Agreement. CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION AND TERMINATION 64. Nullification 0f Agreement. The Parties expressly agree that this Agreement shall be null and void, and shall not be enforceable, in the event: (i) the Court does not enter any order specified herein; or 21 JOINT STIPULATION OF SETTLEMENT AND RELEASE CASE NO. 18CV338479 \OOOQQUI-hUJNH NNNNNNNNNHr-tr-‘r-‘r-tr-Ar-‘r-tr-AH WQQM-waHOKOOOQONm-war-‘O (ii) the Court does not enter a Final Approval and Judgment order finally approving the Settlement as provided herein 0r as otherwise acceptable to the Parties; or (iii) The Judgment does not otherwise become final due to the non- occurrence 0f the Payment Obligation and Class Release Date. (a) The Defendant shall have the sole and exclusive right to rescind this Agreement and the Settlement if Class Members representing more than twenty percent (20%) of all Qualifying Workweeks opt-out of the Settlement. If the Defendant rescinds this Agreement pursuant t0 this provision, the Defendant shall be solely responsible for any and all costs incurred by the Claims Administrator. (b) If the Settlement does not become final for any reason, this Agreement shall be null and void ab initio, n0 Party shall be bound by the terms thereof, neither this Agreement nor the MOU shall be admissible 0r offered into evidence in the litigation or any other action for any purpose whatsoever, and any order or judgment entered by the Court in furtherance of this Settlement shall be treated as Withdrawn 0r vacated by stipulation 0f the Parties. In such case, the Parties shall be returned t0 their respective positions as 0f the date immediately prior t0 the execution 0f this Agreement and the MOU, the Parties shall proceed in all respects as if this Agreement had not been executed, and the Defendant shall have n0 obligation to make any payments provided in this Agreement. (c) Notwithstanding the foregoing, an appeal of, a modification 0f, a reversal 0n appeal, or the reduction of any Fee and Expense Award or Incentive Award shall not constitute grounds for cancellation and termination 0f this Agreement. GENERAL PROVISIONS 65. Cooperation. The Parties agree t0 cooperate in the settlement administration process, t0 use their best efforts to carry out the terms 0f this Settlement, and t0 make all reasonable efforts t0 control and minimize the costs and expenses in settlement administration. 66. N0 Solicitation 0f Obiections 0r Exclusions. Neither the Parties nor their counsel 22 JOINT STIPULATION OF SETTLEMENT AND RELEASE CASE NO. 18CV338479 \OOOQQUI-hUJNH NNNNNNNNNHr-tr-‘r-‘r-tr-Ar-‘r-tr-AH WQQM-waHOKOOOQONm-war-‘O or agents will contact Class Members for the purpose of attempting t0 influence them t0 not participate in this Settlement. If contacted by a Class Member, Counsel for the Parties and representatives 0f the Defendant may provide information or assistance regarding any aspect 0f the Settlement requested by the Class Member. At n0 time shall any of the Parties or their counsel, agents, or representatives solicit 0r otherwise encourage Class Members 0r any other persons (including but not limited t0 the State 0f California Labor & Workforce Development Agency) to submit written obj ections to the Settlement 0r requests for exclusion from the Settlement, 0r encourage Class Members or any other person t0 appeal from the Judgment. 67. General Duties 0f Claims Administrator. In addition to those obligations detailed elsewhere in this Agreement, the Clams Administrator shall consult With counsel for the Parties concerning any relevant issue, shall keep counsel for the Parties apprised of the status of the distributions 0f Individual Settlement Payments, and shall perform such other tasks as the Parties mutually agree or the Court orders the Claims Administrators t0 perform, including responding t0 questions from Class Members. 68. No Liabilitv for Carrving Out Settlement Terms. N0 person shall have any claim against the Parties based 0n mailings, distributions, and payments made, 0r any other action taken, in accordance With, or pursuant t0, this Agreement or any order 0f the Court. In addition, no person shall have any claim against the Parties or the Claims Administrator based 0n mailings, distributions, and payments made in accordance With this Agreement 0r any order 0f the Court. The Claims Administrator shall not be deemed t0 be an employee 0r agent of any Party. 69. Headings and Captions. The headings and captions contained in this Agreement are inserted for convenience and in no way define, limit, extend, or describe the scope of this Agreement 0r the intent 0f any provision thereof. 70. Interim Stav 0f Proceedings. Pending the Final Approval Hearing to be conducted by the Court, or earlier if for any reason the settlement contemplated by this Agreement Will not occur, the Parties agree t0 hold in abeyance all proceedings in the Action, except such proceedings as are necessary t0 implement and complete the Settlement, or t0 comply with any 23 JOINT STIPULATION OF SETTLEMENT AND RELEASE CASE NO. 18CV338479 \OOOQQUI-hUJNH NNNNNNNNNHr-tr-‘r-‘r-tr-Ar-‘r-tr-AH WQQM-waHOKOOOQONm-war-‘O Court Order. 71. Amendment 0r Modification. This Agreement may not be amended 0r modified in any respect except by a written instrument duly executed by all 0f the Parties t0 this Agreement or their counsel and approved by the Court. 72. Entire Agreement. This Agreement constitute the entire Agreement of the Parties With respect t0 the matters discussed herein, and n0 oral 0r written representations, warranties, 0r inducements have been made to any Party concerning this Agreement other than the representations, warranties, and covenants contained and memorialized in such documents. A11 prior or contemporaneous negotiations, agreements, understandings, and representations, Whether written 0r oral, are expressly superseded and are 0f no further force and effect. Each 0f the Parties acknowledges that it has not relied 0n any promise, representation, 0r warranty, express or implied, not contained in this Agreement. 73. Authorization t0 Enter into Settlement Agreement. Each signatory t0 this Agreement warrants and represents that he 0r they have the authority t0 execute this Agreement, thereby binding the respective party t0 take all appropriate action required 0r permitted t0 be taken by the Parties pursuant t0 this Agreement t0 effectuate its terms and to execute any other documents required t0 effectuate the terms of this Agreement. The Parties and their counsel agree to cooperate with each other and to use their best efforts to effect the implementation 0f this Agreement. 74. Binding Effect of the Agreement. This Agreement shall be binding upon, and inure to the benefit of, the Parties and their respective heirs, legal representatives, executors, administrators, successors, and assigns. 75. Choice 0f Law. In determining the rights 0f the Parties hereto, this Agreement shall be governed by, construed, and interpreted in accordance with the laws of the State of California, without regard t0 the conflict 0f laws principles thereof. 76. Counterparts. This Agreement may be executed in one 0r more counterparts, each 0f which shall be an original, provided that counsel for the Parties shall exchange among 24 JOINT STIPULATION OF SETTLEMENT AND RELEASE CASE NO. 18CV338479 \OOOfloUl-RUJNy-A NNNNNNNNNHr-tr-‘r-tr-tr-tr-tr-tr-H OOQQUI-PUJNHOKOOOQONUI-PWNHO themselves original signed counterparts. 77. Representation bv Counsel and Cooperation in Drafting. A11 of the Parties acknowledge that they have been represented by counsel throughout negotiations and in the execution 0f this Agreement, and that this Agreement has been executed With the consent and advice 0f counsel. Each of the Parties has cooperated in the drafting and preparation of this Agreement. Hence, any rule Which construes ambiguities against the drafter shall have n0 force 0r effect. 78. Invaliditv 0f Anv Provision. If any provision 0f this Agreement is held to be invalid, void, 0r unenforceable, the remaining provisions shall continue in full force and effect. 79. Terminologv and Construction. A11 personal pronouns used in this Agreement, whether used in the masculine, feminine, or neutral gender, shall include all other genders, and the singular shall include the plural and Vice versa. 80. NLices. Any notices 0r other documents that must or may be transmitted to Plaintiff” s Counsel and/or Defendant’s Counsel, pursuant to any provision of this Agreement, shall be transmitted t0 each 0f the following: For documents to Defendant’s (301111531: For documents to Plaintiff’ counsel: L FeliCia R- Reid Robin G. Workman HIRSCHFELD KRAEMER LLP WORKMAN LAW FIRM P.C. 505 Montgomery Street, 13th Floor 177 Post Street, Suite 800 San Francisco, CA 941 11 5311 FfanCiSCO, CA 94108 Telephone: (415)835-9000 gelephfi’lnéi figflggiggg Facsimile: (415) 834-0443 mm“ 6- ( ) ‘ 81. The Parties and all counsel acknowledge and agree that for the purposes 0f any claims, actions, and/or proceedings arising out of this Agreement, notice provided t0 Plaintiff s Counsel shall be deemed to be notice to the Plaintiff. 82. The Parties and their Counsel will fully cooperate with each other and use their best efforts, including all efforts contemplated by this Settlement and any other efforts that may 25 JOINT STIPULATION OF SETTLEMENT AND RELEASE CASE NO. 18CV338479 IN.) CQWQQU‘IAL‘J .-.-n-._._-_.p--.-_. W‘MJONLJ‘I-KUJNL-A become neaessary or ordered by the Court, 0r otherwise, to accomplish the terms of this Settlement, including but not limited to, executing such documents am] taking such other action as may reasonably be necessary lo obtain preliminary and final approval Ofthis Settlement and 1,0 implement its terms. 83. 1t is agreed that, because the Class Members art: so numerous, it is impossil'fle 0r impractical to have each Class Member who does not timely and validly opt-out cxecuic this Agreement. Therefore, the Notice Packet will inform all Class Members 0f the binding nature 0f: the releases contained in this Agreement will have the same force and effect as i'l'this Agreement were executed by each Class Member who does not timely and validly opt-out. EXECUTION BY PARTIES AND COUNSEL The Parties and their counsel hereby execute this document to evidence their acceptance of and agreement to the Settlement memorialized i'n this Agreement. LLAREALTHOMASDate: October I 772019 Date: October 201.9 MISSION TRAIL. WASTE SYSTEMS, INC.HM: By: Louis Pcilcgrini Date: October {6/3019 Date: October” , 20l9 HIRSCHFBLD KRAEMER, LIP By: Felicia R. Reid Attorneysfor Dgféndam Mms‘ion Trail Wasie vatcms. Inc. 26 JOINT STIPULATION OF SETTLEMENT AND RELEASE CASE NO‘ ISC'V33 8479 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 become necessary or ordered by the Court, or otherwise, to accomplish the terms of this Settlement, including but not limited to, executing such documents and taking such other action as may reasonably be necessary to obtain preliminary and final approval of this Settlement and to implement its terms. 83. It is agreed that, because the Class Members are so numerous, it is impossible or impractical to have each Class Member who does not timely and validly opt-out execute this Agreement. Therefore, the Notice Packet will inform all Class Members of the binding nature of the releases contained in this Agreement will have the same force and effect as if this Agreement were executed by each Class Member who does not timely and validly opt-out. EXECUTION BY PARTIES AND COUNSEL The Parties and their counsel hereby execute this document to evidence their acceptance of and agreement to the Settlement memorialized in this Agreement. Date: October ,2019 THOMAS VILLAREAL Date: October 28, 2019 MISSION TRAIL WASTE SYSTEMS, INC Date: October , 2019 Louis Pellegrini WORKMAN LAW FIRM, PC By: Date: October 2019 Robin G. Workman Attorneys for Thomas Villarreal and all others similarly situated HIRSCHFERD :RA T>LP^ By: Felicia R. Reid Attorneys for Defendant Mission Trail Waste Systems, Inc. 26 JOINT STIPULATION OF SETTLEMENT AND RELEASE CASE NO. I8CV338479 EXHIBIT D NOTICE OF PENDENCY OF CLASS ACTION SETTLEMENT AND FINAL APPROVAL HEARING Thomas Villareal v. Mission Trail Waste System, Inc., et al. SUPERIOR COURT OF CALIFORNIA, COUNTY OF SANTA CLARA (CASE NO. CGC-18CV338479) IF YOU WORKED FOR MISSION TRAIL WASTE SYSTEMS AS A SANITATION TRUCK DRIVER, YOU COULD GET A PAYMENT FROM A CLASS ACTION SETTLEMENT. This is a court-authorized notice. This is not a solicitationfrom a lawyer. If approved, a proposed Settlement will provide up to $750,000 to resolve a class action lawsuit filed against Mission Trail Waste Systems, Inc. (“Mission Trail” or “Defendant”) involving claims under California’s labor laws for alleged failure to provide meal and rest breaks and pay the extra hour 0f compensation for missed meal and rest breaks, failure t0 provide accurate wage statements, failure to pay all wages owed, failure to allow inspection of payroll and personnel records, and improper use of employees’ fingerprints for timekeeping purposes, 0n behalf of all current and former sanitation truck drivers who worked for Defendant in California from November 19, 2014 t0 date the Court grants preliminary approval of the Settlement (the “Class Period”). o The Settlement is a compromise. The two sides disagree 0n how much money, if any, might have been awarded if the lawsuit went to trial. The Court did not find that Defendant violated the law. Defendant denies that it did anything wrong and maintains that it complied at all times With applicable laws, rules, and regulations. 0 There is n0 money available now. Your legal rights are affected Whether you act 0r don't act. Read this notice carefully. 0 N0 RETALIA TION: Defendant will notfire, punish, retaliate, or otherwise discriminate against any employee because he 0r she chooses t0 participate in this Settlement, chooses not t0 participate, 0r objects t0 the Settlement. i YOUR LEGAL RIGHTS AND OPTIONS IN THIS LAWSUIT i Stay in this lawsuit. Await the outcome. Give up certain rights. DO NOTHING By doing nothing, you keep the possibility of getting money or benefits that may come from the Settlement. But, you give up any rights t0 sue Defendant separately about the same legal claims in this lawsuit. Get out 0f this lawsuit. Get no benefits from it. Keep your rights. ASK TO BE EXCLUDED If you ask to be excluded and money or benefits are later awarded, you won't share in those. But, you keep any rights to sue Defendant separately, at your own expense, about the same legal claims in this lawsuit. o This Notice explains your options - and the deadlines that you must meet. Questions? Call [Phone Number] Page 1 of 8 o The Court in charge 0f this case still must decide whether to grant final approval of the Settlement. Payments will be made if the Court approves the Settlement and after any appeals are resolved. Please be patient. o Any questions? Read 0n 0r call the Settlement Administrator, Rust Consulting, at (000) 000-0000 WHAT THIS NOTICE CONTAINS BASIC INFORMATION ............................................................................................................... Page 3 1. Why did I get this notice package? 2. What is this lawsuit about? 3. What is a class action and who is involved? WHO IS IN THE CLASS SETTLEMENT ............................................................................. Pages 3-4 4. How do I know if I am part of the Settlement? 5. Are there exceptions t0 being included? 6. I’m still not sure if I am included. THE SETTLEMENT BENEFITS - WHAT YOU GET ..................................................................... Pages 4-5 7. What does the Settlement provide? 8. What am I giving up t0 get a payment or stay in the Class? 9. How d0 I get a payment? 10. When would I get my payment? 1 1. How much Will my payment be? EXCLUDING YOURSELF FROM THE SETTLEMENT ........................................................ Page 5 12. How d0 I get out of the Settlement? 13. If I don't exclude myself, may I sue Defendant for the same thing later? 14. If I exclude myself, may I get money from this lawsuit? OBJECTING TO THE SETTLEMENT ...................................................................................... Page 6 15. How d0 I tell the Court that I don't like the Settlement? 16. What's the difference between obj ecting and excluding? IF YOU DO NOTHING ................................................................................................................. Page 6 17. What happens if I d0 nothing at all? THE LAWYERS REPRESENTING YOU ............................................................................. Pages 6-7 18. D0 I have a lawyer in this case? 19. Should I get my own lawyer? 20. How will the lawyers be paid? THE COURT'S FAIRNESS HEARING ...................................................................................... Page 7 21. When and where will the Court decide whether to approve the Settlement? 22. D0 I have to come t0 the hearing? 23. May I speak at the hearing? GETTING MORE INFORMATION ...................................................................................... Pages 7-8 24. Are more details available? Questions? Call [Phone Number] Page 2 of 8 BASIC INFORMATION .F Why did I get this notice package? - Defendant’s records show that you either currently work for Defendant, or previously worked for Defendant, as a sanitation truck driver in California during the Class Period. The Court authorized this Notice because you have a right to know about the proposed Settlement of this class action lawsuit, and about all of your options, before the Court decides whether to approve the Settlement. This Notice explains the lawsuit, the Settlement, your legal rights, what benefits are available, who is eligible for them, and how t0 get them. E What is this lawsuit about? j The Santa Clara County Superior Court is in charge of the case. The lawsuit is known as Thomas Villareal v. Mission Trail Waste Systems, Ina, Case N0. 18CV338479. The lawsuit alleges that Defendants failed t0 maintain and provide accurate wage statements to employees; failed t0 provide meal and rest periods, 0r compensation for same; failed t0 pay all wages due; failed to allow inspection 0fpersonnel and payroll records; improperly used fingerprints for timekeeping; and, committed other Violations of California law. On November 22, 2019, at 9:00 a.m., in Department 5 0f the Superior Court 0f California, County of Santa Clara, the Court held a hearing where it provisionally approved the terms of the proposed Settlement, found that this case can fairly be settled 0n a class basis, approved this Notice, and scheduled a hearing where the Court will consider whether t0 grant “final approval” of the proposed Settlement. Further information about that hearing is set forth in section 21, below. L What is a class action and Who is involved? _ In a class action lawsuit, a person called a “Class Representative” (in this case Thomas Villareal) sues on behalf of other people Who have similar claims. The people together are a “Class” or “Class Members.” The individual who sues is called the Plaintiff. The company he 0r she sues (in this case Mission Trail Waste Systems, Inc.) is called the Defendant. One court resolves the issues for everyone in the Class-except for those people who exclude themselves from the Class, as described in Question 12 below. WHO IS IN THE CLASS SETTLEMENT?j How do I knowif I am part of the Settlement? i The Court decided that all current and former sanitation truck drivers 0f Defendant in California from November 19, 2018 to preliminary approval, are Class Members. E Are there exceptions to being included? I Only those employees 0f Defendant who meet the requirements of Question 4 are a part 0f the Settlement. If you exclude yourself from the Settlement pursuant to the instructions in Question 12, you will n0 longer be included in the Settlement. Questions? Call [Phone Number] Page 3 of 8 t’ I'm still not,- sme ifI am included. I If you are still not sure Whether you are included, you can get free help by calling or writing to the Settlement Administrator or lawyers in this case using the contact information provided in Questions 15 and 24. THE SETTLEMENT BENEFITS - WHAT YOU GETt What does the Settlement provide? j Under the proposed Settlement, Defendant agrees t0 pay $750,000 (the “Gross Settlement Amount”) to resolve Settlement Class Members’ claims. The Gross Settlement Amount includes: (a) expenses and fees 0f the Settlement Administrator up to $15,000; (b) an Incentive Award of up to $5,000 t0 Class Representative Villareal; (c) attorneys’ fees ofup to $250,000 and litigation costs not to exceed $20,000, to Class Counsel; and, (d) a PAGA payment to the State Labor & Workforce Development Agency (LWDA) 0f up t0 $ 1 5,000. The Court must approve these payments at the Final Approval Hearing. E What am I giving up to get a payment or stay in the Class? Z Unless you exclude yourself, you are staying in the Class, and that means that you can't sue, continue t0 sue, or be part of any other lawsuit against Defendant about the legal issues in this case. It also means that all of the Court's orders will apply t0 you and legally bind you. See Question 12 ifyou want t0 find out how to exclude yourself from the Class. Unless you exclude yourself, you will release all claims, demands, rights, liabilities, and any causes 0f action, whether known 0r unknown, arising from the claims alleged in this lawsuit, including, the failure to provide meal and rest breaks, the failure t0 pay for all wages owed, the failure t0 allow a review ofpersonnel files and payroll records, the use of fingerprints for timekeeping, and the failure to provide accurate itemized pay statements in violation 0f the California Labor Code, applicable Wage Order(s), the California Private Attorneys General Act, and the California Business and Professions Code section 17200 et seq. E How do I get a payment? To receive a settlement payment, you d0 not need t0 take any action. You must however keep a current address 0n file with the Settlement Administrator to ensure that you receive your settlement payment should the Court order final approval of the Settlement. If you move and the Settlement Administrator cannot locate a current address for you, you will not receive a payment. E0. When would I get my payment? i The Settlement Administrator Will send Individual Settlement Awards after the Court enters an order granting final approval 0f the Settlement. If there is an appeal 0f an order granting final approval 0f the Settlement, payments will be delayed until all appeals are resolved in favor of the Settlement. Please be patient. Bl. How much will my payment be? v! The distribution formula in the Settlement is based 0n the number 0f work weeks that you worked for Defendant as a sanitation truck driver during the Class Period as compared to the total number of work Questions? Call [Phone Number] Page 4 of 8 weeks worked by all Class Members for the same period. According t0 Defendant’s records, you worked a total 0f ## workweeks during the Class Period. Based on the settlement distribution formula, your estimated minimum Individual Settlement Payment under the terms of the Settlement Will be: $ Your Individual Settlement Payment may be higher or lower depending 0n a number of factors. Your Individual Settlement Payment will be paid in two installments. It is anticipated that the first payment would occur 0n 0r about April 30, 2020, and the second payment would occur on or about August 3 1 , 2020. Ifyou disagree with the number ofwork weeks, you may complete Section B of the Form and submit any records t0 the Settlement Administrator t0 support your claim. The amount 0f your individual settlement award reflected in this notice is just an estimate. Your payment may be higher or lower, depending on the Court’s rulings. EXCLUDING YOURSELF FROM THE SETTLEMENT If you don't want a payment from this Settlement, but you want to keep the right to sue or continue t0 sue Defendants, at your own expense about the legal issues in this case, then you must take steps to get out. This is called excluding yoursalf7 0r is sometimes referred to as opting out 0f the Settlement. E. How do I get out of the Settlement? _ To exclude yourself from the Settlement, you must send a letter stating that you want to be excluded from the Villareal v. Mission Trail Waste Systems Class Action settlement and that you understand that by doing so you will not receive any money from the settlement. Be sure t0 include your name, address, telephone number, and your signature. You must mail your exclusion request postmarked no later than <> to: Villareal v. Mission Trail Waste Systems Class Action Rust Consulting [ADDRESS] [TELEPHONE NUMBER] IRE” I don't exclude myself, may] sue Defendant for the same thing later? g No. Unless you exclude yourself, you give up any right t0 sue Defendant for the claims this Settlement resolves. If you have a pending lawsuit against Defendant, speak to your lawyer in that case immediately. Remember, the exclusion deadline is <>. If you start your own lawsuit against Defendant after you exclude yourself, you’ll have to hire and pay your own lawyer for that lawsuit, and you’ll have to prove your claims. No. If you exclude yourself, you will not receive any money from this Settlement. But, you may sue, continue to sue, or be part of a different lawsuit against Defendant. E If I exclude myself, may I get money from this Settlement? Questions? Call [Phone Number] Page 5 of 8 OBJECTING TO THE SETTLEMENTt How d0 I‘tell the Court that I don't like the Settlement? _ As a Class Member, you may obj ect to the Settlement ifyou don't like any part 0f it. You must sign the obj ection and state the following: (1) your full name; (2) the dates of your employment; (3) the last four digits of your Social Security number or your Employee ID number; (4) your factual and legal basis for the obj ection with any supporting documents and evidence; and, (5) ifyou intend to appear at the Final Approval/Fairness Hearing. You must state that you obj ect t0 the Settlement in Thomas Villareal v. Mission Trail Waste Systems Class Action, Case No. 18CV338479. You must mail your objection postmarked n0 later than <> t0 the Settlement Administrator at the following address: Villareal v. Mission Trail Waste Systems Class Action Rust Consulting [ADDRESS] [TELEPHONE NUMBER] r What is the difference between objecting and excluding? j Obj ecting is simply telling the Court that you don't like something about the Settlement. You can obj ect only if you stay in the Class. Excluding yourself is telling the Court that you don't want to be part of the Class. Ifyou exclude yourself, you cannot object because the case n0 longer affects you. You have 45 days from <> to obj ect or exclude yourself from the class. In other words, the deadline to mail your objection or request for exclusion is <>. IF YOU DO NOTHING I What happens ‘if I do nothing at all? I By doing nothing you choose to stay in the Class. If you stay in and the Court approves the Settlement, you Will receive a portion 0f the Settlement proceeds. Keep in mind that ifyou do nothing now, you Will not be able to sue, or continue t0 sue Defendant about the same legal claims that are the subj ect 0f this lawsuit. You will also be legally bound by all orders and judgments of the Court in this class action. THE LAWYERS REPRESENTING YOU l Do I have a lawyer in this case? l- The Court decided that the Workman Law Firm, PC, 177 Post Street, Suite 800, San Francisco, CA, 415-782- 3660, is qualified to represent you and all Class Members. You Will not be charged for these lawyers. The law firm is referred to as “Class Counsel.” They are experienced in handling similar cases against other employers. More information about the Workman Law Firm, PC, their practices, and their experience is available at www.workmanlawpc.com. You can also find the most important documents in this case, this notice, the complaint, etc., at this website. Questions? Call [Phone Number] Page 6 of 8 i Should I get my own lawyer‘é j You d0 not need t0 hire your own lawyer because Class Counsel is working for you. But, ifyou want your own lawyer, you will have to pay that lawyer. For example, you can ask him or her to appear in Court for you ifyou want someone other than Class Counsel to speak for you. m. How will the lawyers be paid? Class Counsel Will ask the Court to approve payment of attorneys’ fees not to exceed $250,000 and litigation costs not to exceed $20,000. THE COURT'S FAIRNESS HEARING The Court will hold a Final Approval Hearing to decide whether t0 approve the Settlement. You may attend and you may ask t0 speak, although you don't have to. l1 When and where will the court decide whether to approve- the- settlement? ----§ The Final Approval Hearing is scheduled t0 occur 0n , 2019,_ am. in Dept. 5 0f the Superior Court of California, County 0f Santa Clara, located at 191 N. First St, San Jose, California. The Court may continue 0r adjourn the final approval hearing without further notice to the Class. At this hearing the Court will consider Whether the Settlement is fair, reasonable and adequate. If there are objections, the Court will consider them. The Court Will listen t0 people who have asked t0 speak at the hearing. The Court may also decide how much to pay Class Counsel. After the hearing, the Court will decide whether to approve the Settlement. We do not know how long these decisions will take. g Do I have to come to the Final Approval Hearing? _ No. Class Counsel will answer any questions the Court may have. But, you are welcome t0 come at your own expense. If you file an obj ection, you do not need t0 come t0 Court t0 talk about it. As long as you filed and mailed your written objection, the Court will consider your objection 0r may allow you t0 speak at the hearing. You may also pay your own lawyer to attend, but it's not necessary. E May I speak at the Final Approval Hearing? - You may ask the Court for permission t0 speak at the Final Approval Hearing. Unless the Court allows it, you cannot speak at the hearing ifyou excluded yourself. GETTING MORE INFORMATION I Meme details available? The Court-appointed Settlement Administrator for this Settlement is as follows: Villareal v. Mission Trail Waste Systems Class Action Rust Consulting [ADDRESS] [TELEPHONE NUMBER] Questions? Call [Phone Number] Page 7 of 8 If you have questions, you may call the Settlement Administrator toll free at [TELEPHONE NUMBER]. Ask about the Villareal v. Mission Trail Waste Systems Class Action. You may also contact Class Counsel using the contact information provided in Question 15. PLEASE DO NOT CALL THE COURT. You may also View documents filed in this case, including the complete Settlement Agreement, on the Rust Consulting web site (fill in cite) website or the Court’s website at:www.scscourtorg/online services/case info.shtml. You may also review documents in person at the Office of the Clerk at the Superior Court of California, City and County of Santa Clara, 191 N. First St., San Jose, California 951 13, between the hours of 8:30 am. and 3:00 p.m., Monday through Friday, excluding Court holidays. Questions? Call [Phone Number] Page 8 of 8 EXHIBIT 3 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 180V338479 Santa Clara - Civil WORKMAN LAW FIRM, PC Robin G. Workman (Bar #145810) robin@workmanlawpc.com Rachel E. Davey (Bar #3 1 6096) rachel@workmanlawpc.com 177 Post Street, Suite 800 San Francisco, CA 94108 Telephone: (415) 782-3660 Facsimile: (415) 788-1028 Attorneysfor Plaintifif Thomas Villarreal 0n Electronically Filed by Superior Court of CA, County of Santa Clara, on 10/30/2019 3:20 PM Reviewed By: R. Walker Case #1 8CV338479 Envelope: 3589120 behalfofhimselfand all others similarly situated SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA THOMAS VILLAREAL, 0n behalf 0f himself and all others similarly situated, Plaintiff, VS. MISSION TRAIL WASTE SYSTEMS, INC., and Does 1 through 50, inclusive, Defendants. No. 18CV338479 ASSIGNED FOR ALL PURPOSES TO THE HON. THOMAS E. KUHNLE, DEPT. 5 DECLARATION OF THOMAS VILLAREAL IN SUPPORT OF PLAINTIFF’S MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT, AND REQUEST TO FILE FIRST AMENDED COMPLAINT Date: November 22, 20 1 9 Time: 9:00 am. Dept: 5 -1- DECLARATION OF THOMAS VILLAREAL 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I, Thomas Villareal, declare as follows: 1. I am the Plaintiff in the matter 0f Villareal v. Mission Trail Waste Systems, Ina, Santa Clara Superior Court Case No. 18CV338479, Which was filed 0n November 19, 2018, against Defendant Mission Trail Waste Systems, Inc. The following is based 0n my personal knowledge, and if called upon t0 do so, I could and would competently testify thereto. 2. I currently work for Defendant as a non-exempt, hourly-paid refuse truck driver. Defendant provides collection services for recyclables, organic materials, and garbage waste for single-family residential, multi-family residential, and commercial customers. Defendant provides these services to customers in California, specifically, t0 those in the surrounding areas 0f its two primary locations: Santa Clara and Los Altos. 3. Throughout my employment at Defendant, Defendant required me, and to my knowledge, other drivers, to work more than five hours per day, and often 10 hours per day, Without providing us the opportunity t0 take complete, off-duty meal periods. Defendant assigned me, and other drivers, the routes we were t0 take, and which dump to drop off the waste after completing our routes. However, some dumps closed at earlier times, so that, in order t0 deliver the waste collected without speeding and/or driving dangerously, there was no time to take any breaks. In addition, traffic and other outside circumstances, preclude drivers from taking timely, uninterrupted, off-duty meal periods. Defendant knew this. Defendant also knew that I, and t0 my knowledge, other drivers, regularly missed meal breaks because we did not indicate that we took any breaks on our hand written time sheets. However, whether or not I got a meal break (and indicated the same on my time sheet), Defendant automatically deducted 30- minutes from my time worked per work day for one meal break. I understand this to be a uniform practice, as I have heard from other drivers that Defendant did the same auto-deduct practice to them. 4. Throughout my employment at Defendant, I, and other drivers, routinely worked shifts in excess 0f 3.5 hours per day. However, due t0 the reasons described above, I, and t0 my knowledge, other drivers, regularly missed 10-minute rest breaks required by law. However, Defendant never provided me or, t0 my knowledge, any other drivers, premium payments When this happened. -2- DECLARATION OF THOMAS VILLAREAL 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5. I often work in excess 0f 10 hours per day. Even though I work these hours, I am not provided the opportunity t0 take a second off-duty meal period of at least 30 minutes. In my observation, this is true for all drivers. The same is true for the additional rest periods. 6. During my employment, because Defendant did not pay me 0r other drivers, to my knowledge, an extra hour at the regular rate for missed meal breaks and rest breaks, Defendant did not pay me and similarly aggrieved drivers all of our wages 0n time. In addition, Defendant uses a time rounding policy, instead of using our actual clock in and clock out times. Due to this, Defendant did not pay me and other drivers for all time worked. I am not aware of Defendant ever paying these unpaid wages t0 anyone When they quit or are fired. 7. Around 2017 01' 2018, I requested that Defendant provide me With a copy of all 0f my payroll records for the last three years. In response, Defendant informed me that it could not provide me complete information because it n0 longer had access to records before 2016, because it changed payroll companies in 2016. 8. During my employment, I also requested that Defendant provide me With a copy 0fmy personnel file for the past three years, including records relating t0 my performance and any grievances concerning me. After the 30 day time limit, Defendant had provided me With some, but not all 0f the personnel records that Defendant is required t0 keep. 9. Because Defendant did not pay me for missed meal periods, and use my actual clock in times, I believe that Defendant did not accurately list all hours worked, all gross 0r net wages earned (including meal/rest premiums), or the hours worked and the corresponding hourly rates ofpay 0n my wage statements. Ihave informed Defendant about the inaccuracies on several occasions. For these same reasons, Defendant does not keep accurate payroll records. 10. During my employment, Defendant required me, and all other drivers to provide Defendant our fingerprints, for Defendant’s use 0f the prints on its ADP thumb scanning device. Defendant told all of the drivers that we had t0 d0 this, as a prerequisite 0f our employment. 11. Even before this lawsuit was filed, I worked closely With my lawyers on this case. I answered all 0f their questions about my employment and made myself available Wheneverl was needed. Prior to filing the lawsuit, I met With my attorneys 0n many occasions and spoke with my attorneys to g0 over whatever topics they wished to discuss. I answered the questions -3- DECLARATION OF THOMAS VILLAREAL 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the attorneys had regarding the duties and responsibilities of the drivers and the employment policies and practices applied t0 drivers, including meal and rest breaks, payroll, and time recording practices and forms. Iprovided my attorneys With all 0f the documents I had and answered their questions With respect to those documents. I spent many hours talking to my attorneys 0n the phone t0 prepare this case before they filed it on the other drivers’ and my behalf. 12. After we filed this lawsuit, I continued t0 work closely With my lawyers. I continually searched through my documents to locate anything that could be of use or that pertained to my employment and was in routine contact with Ms. Workman, Ms. Davey, and others at the firm by both telephone and email. I continued to personally meet With my attorneys and made a point 0f staying updated about what is happening with the case. I also spent significant time discussing the information that Defendants provided t0 my lawyers. I worked with my lawyers t0 prepare for the mediation and was available that day for any questions that arose. When my attorneys told me that we had finally reached a settlement in this case, I spent time reading and reviewing the settlement agreement in person With my attorneys. I wanted to understand everything before I signed it. I have done everything in my ability to represent the class the best that I can. I estimate that I have spent 50-70 hours 0n this case. 13. I am not involved in any other lawsuits. As far as I am aware, I have n0 conflicts with any of the other class members. 14. Even though I am a current employee, I felt it was important for me t0 be a Plaintiff in this lawsuit. I did so because I do not believe it is right for Defendant to not provide drivers With off-duty meal and rest periods, not pay us for missed rest 0r meal periods, and not pay us for all the time we work. In bringing this action, I did my best t0 put the best interests of the class members ahead 0fmy own interests, and t0 obtain compensation for the class members. I declare under penalty 0f perjury under the laws of the State of California that the 10/30/2019foregoing is true and correct and that this Declaration was executed 0n , in Santa ?LWGWA Thomas Villareal Clara, CA. -4- DECLARATION OF THOMAS VILLAREAL Doc ID: 6561 5ffba5673304e8a2a9ab71 ca 3f2a2a1 9b083 EXHIBIT 4 AWN KOOONONUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 180V338479 Santa Clara - Civil WORKMAN LAW FIRM, PC Robin G. Workman (Bar #145810) robin@workmanlawpc.com Rachel E. Davey (Bar #3 16096) rachel@w0rkmanlawpc.com 177 Post Street, Suite 800 San Francisco, CA 94108 Telephone: (415) 782-3660 Facsimile: (415) 788-1028 Attorneysfor Plaintifif Thomas Villarreal 0n behalfofhimselfand all others similarly situated Electronically Filed by Superior Court of CA, County of Santa Clara, on 10/30/2019 3:20 PM Reviewed By: R. Walker Case #1 8CV338479 Envelope: 3589120 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA THOMAS VILLAREAL, 0n behalf 0f himself and all others similarly situated, Plaintiff, vs. MISSION TRAIL WASTE SYSTEMS, INC., and Does 1 through 50, inclusive, Defendants. -1- N0. 18CV338479 ASSIGNED FOR ALL PURPOSES TO THE HON. THOMAS E. KUHNLE, DEPT. 5 DECLARATION OF ERIC BISHOP IN SUPPORT OF PLAINTIFF’S MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT, AND REQUEST TO FILE FIRST AMENDED COMPLAINT Date: November 22, 2019 Time: 9:00 am. Dept: 5 DECLARATION OF ERIC BISHOP AWN KOOONONUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I, Eric Bishop, declare as follows: 1. I am a resident 0f the United States of America, and am over the age of 18. I am a Senior Vice President for Rust Consulting, Inc., (“Rust”) a professional class action settlement services provider. Iprepared this declaration at the request 0f Class Counsel t0 file in support 0f the motion for preliminary approval. Ihave personal knowledge of the facts herein, and, if called upon t0 testify, I could and would testify competently t0 such facts. 2. Rust has extensive experience in administering Class Action Settlements, including direct mail services, telephone and web-based support, database management, claims processing and settlement fund distribution services for Class Actions 0f all sizes, from less than 30 class members t0 millions 0f Class Members. Attached hereto, as Exhibit A, is a true and correct copy of Rust’s current CV, reflecting our primary competencies as they relate to class action settlement administration. 3. Iunderstand that if appointed by the Court, Rust’s duties as the settlement administrator for this matter will include, but are not limited t0: (a) conducting address traces t0 locate class members as necessary; (b) mailing the class notice and other related materials t0 the class members; (c) handing inquiries from class members concerning the class notice; (d) calculating the individual settlement amounts; (e) preparing, administrating and distributing settlement award checks t0 class members; and (f) performing other such duties as the parties and/or the Court directs. 4. Iunderstand that the parties will request to appoint Rust as the class action settlement administrator for Villareal V. Mission Train Waste Systems, Inc., Santa Clara Superior Court Case N0. 1 8CV338479. Based on the anticipated work Rust expects t0 perform in this case in connection with the tasks outlined for the anticipated 63 class members, Rust estimates administration fees in this case t0 be $15,000. If additional work is performed, and additional costs are incurred, Rust Will outline those additional costs for the Court at final approval. 5. As the settlement claims administrator in this case, Rust would provide notice of the settlement and claim processing services. In this capacity, Rust expects t0 be charged with -2- DECLARATION OF ERIC BISHOP AWN KOOONONUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the following duties: (a) preparing, printing, and mailing to class member the class notice; (b) establishing and dedicating a toll free 800 number Where class members are able t0 speak to a live representative regarding their claim and case information; (c) processing undeliverable mail and locating updated addresses for class members; (d) receiving and validating requests for exclusion submitted by class members; (e) receiving other communications about the settlement; (f) filing any required reports with the court; (g) establishing a fund for authorized claimants; (h) calculating the amounts due t0 each class member pursuant t0 the settlement; (i) making payments t0 class members through the established fund and filing all applicable tax returns; and (j) the Claims Administrator shall also set up a website, the URL for Which is t0 be included in the Notice, containing this Agreement and related documents. Any costs incurred by having the Claims Administrator handle these administrative tasks shall be included in the Administration Costs approved by the Court. 6. In preparation 0f the mailing list for this case, Rust will perform a National Change 0f Address (NCOA) search in attempt to update the class list 0f addresses as accurately as possible prior t0 mailing. A search of this database provides updated addresses for any individual who has moved in the previous four years and notified the U.S. Postal Service 0f a forwarding address. Rust Will send the mailing with “Return Service Requested” printed on the envelope. This indicates to the post office that any mail pieces with a forwarding address or that cannot be delivered are returned to Rust for fithher processing. 7. With respect t0 item “(c)” in paragraph 4 above, when a notice packet is returned undeliverable from the post office without a forwarding address, using the social security number provided by Defendants, Rust Will run a skip trace using TransUnion, one 0f the most comprehensive address databases available. TransUnion, utilizes hundreds of different databases including credit records, public records and a variety 0f other national database resources. Rust will then re-mail the notice packet t0 any new addresses located as a result of this skip tracing process. 8. Based 0n my significant experience managing hundreds ofwage and hour class action settlements, the various steps described above (NCOA before mailing, re-mailing t0 -3- DECLARATION OF ERIC BISHOP AWN KOOONONUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 forwarding addressed provided by the Post Office, skip-tracing returns for those Notice packets returned Without forwarding addresses, re-mailing t0 those new addresses, etc.) is the most effective and accepted method t0 locate class members in wage and hour class action settlements. I declare, under penalty of perjury under the laws 0f the State 0f California that the foregoing is true and correct. Executed this 30th day 0f October, 2019, at Minneapolis, Minnesota. g2) é. a ERIC BISHOP -4- DECLARATION OF ERIC BISHOP EXHIBIT A Qualifications Summary This document outlines Rust Consulting’s qualifications to serve as the administrator for class action, mass tort, and regulatory settlements, as well as to perform other similar, complex and time-sensitive matters. It includes summary information categorized as follows: Firm Overview Practice Area Organization Personnel Services Representative Case Experience Data and System Security Firm Overview Rust Consulting, Inc., an Exela Technologies brand, is a consulting and administration firm that ranks among the industry leaders in the class action field. Rust provides public and private sector clients a full complement of services required to administer legal settlements and other complex or time-sensitive programs. These services include consulting; project management; data management; notification; contact centers and websites; claims processing; and fund management, distribution, and tax reporting. Rust grew out of the Rust Consulting Group, which was founded in 1976 by Ron Rust as a litigation support firm that pioneered the use of computer technology in litigation support. In 1988, the Group administered its first class action settlement; in 1995, Rust Consulting, Inc. was established as a separate operating entity to focus on legal settlement administration. Since then, Rust has administered more than 6,500 settlements and projects. Headquartered in Minneapolis, Rust also has offices in Faribault, Minn., and Los Angeles. Our subsidiary Kinsella Media maintains a Washington, D.C., location. Practice Area Organization Rust administers programs spanning diverse subject matter. The depth and breadth of our legal settlement administration experience spans all practice areas, with teams focused on antitrust, consumer, finance, insurance and healthcare, labor and employment, product liability, and securities matters. We work with governmental agencies at all levels - federal, state, and local - on matters often involving private and sensitive data. Our services also lend themselves to our clients’ non-settlement needs, including data breach responses, recalls, and remediation programs. Our leadership and certain operations and client services personnel focus on specific practice areas relevant to our clients, deepening their subject matter expertise and directly relevant experience. Personnel Our permanent staff of approximately 200 includes professionals with backgrounds and disciplines including project management, information technology, finance, law, and operations. This cross-functional, innovative team includes experts in their respective disciplines, such as CPAs, Ph.D.s, attorneys, and PMPs. Rust’s team includes some of the most experienced practitioners in the industry, with much of that experience Rust-specific. Our executive leadership team averages 20 years of Rust experience, our senior vice presidents average 13 years, and our functional directors average more than 15 years. Services The Rust team provides high quality administrative services for matters of any size and scope. Specific approaches may vary depending upon the requirements of each individual matter; however, the below services are typical of our engagements. Preliminary Consulting Rust consults with clients prior to settlement to help anticipate otherwise identified issues that may arise in the management of complex data sets, providing notice, processing claims, and distributing funds, leading to delays and additional costs. Project Management Our project management personnel prepare plans of notice and administration, create or customize project tracking tools and reports, and oversee the creation of project-specific databases designed to house and capture appropriate information for use in claims administration. Throughout the administration process, project management personnel coordinate all activities between the parties, vendors, and internal Rust departments to ensure work is completed accurately and according to any service level agreements, internal standards, settlement documents, etc. We provide regular and on-demand reports and statistics to the appropriate parties and raise potential issues requiring their attention, as necessary. Upon completion of each major phase of administration, or as required, we prepare declarations or affidavits attesting to the scope and results of our work. Data Management The secure and efficient handling of data underlies all aspects of claims administration; Rust creates and customizes data management processes, databases, applications to meet the unique needs of each settlement or project. Tasks associated with data management throughout administration may include: Intaking original client data. Normalizing data for cross-platform usability, such as meeting mailing or other outreach requirements. Consolidating and deduplicating data from multiple sources. Extracting data for standard or customized trace services. Extracting data for mailing or other outreach. Calculating awards. Notification Rust disseminates hundreds of millions of notices annually by mail and email. We also work with our subsidiary Kinsella Media, the leading provider of notice to unidentified audiences and the only firm in the nation with two qualified, court-recognized notice experts, to develop and implement notice plans. With respect to legal settlements, these notice programs notify class members or other affected individuals of their legal rights and options. With respect to data breach responses, recalls, or remediation, these programs inform affected individuals about the situations and any options those affected individuals may have. Among our notification-related services are: Designing notice programs (through Kinsella Media). Drafting plain language materials (through Kinsella Media). Designing and proofreading notice materials. Locating unidentified individuals and updated addresses. Printing and mailing. Processing and forwarding undeliverable mail. Opining about notice program adequacy (through Kinsella Media). Contact Center Rust supports the programs we administer through an assortment of contact center services including call center, websites, and email support up to 24/7 and for class members and other affected individuals worldwide. Our call center services include inbound and outbound calls in our own domestic, in-house call center. The call center is located in our Minneapolis headquarters, typically contains approximately 800 workstations, and is readily expandable to meet the needs of specific programs. In 2013, our call center supported several large programs by simultaneously staffing well over 1,000 customer service representatives (CSRs). To provide high levels of service on complex matters to class members and our clients’ customers, Rust maintains a robust, permanent core group of call center employees, comprising managerial, supervisory, and customer service resources. We engage additional call center staff on a project basis as required. All CSRs-permanent or temporary- undergo background checks and training on Rust’s policies and technology, customer service fundamentals, and project-specific information. Typical engagements include English- and Spanish-speaking CSRs, while we provide support in additional languages, as required. In one case, Rust CSRs took live inbound calls in 10 languages. In lieu of or in conjunction with live customer service, Rust builds and maintains automated Interactive Voice Response (IVR) systems. These systems provide 24/7 service to toll-free numbers and include menus of prerecorded options such as program overviews, frequently asked questions and answers, and options for requesting forms or filing claims. Rust’s IVR systems regularly support English- and Spanish-language speakers and can be programmed to support other languages, as required. In one case, Rust managed IVR support including translations of information pre-recorded by native speakers in 67 languages. Claims Processing Rust develops or executes claims processing or adjudication programs as required by the diverse terms of our engagements. We use several proprietary software applications and tested, streamlined processes to provide the most appropriate solutions for each engagement’s needs, whether for paper or online claims. Our systems automate the claims administration process: - Receipt. - Link to class member database record. - Data capture. - Review of supporting documentation. - Initial adjudication. - Deficiency processing. I Final adjudication. - Rejection letters. - Reporting/affidavits. To meet the needs of each engagement, our systems can be configured to give clients or authorized parties secure online access to claimant data and reporting, or to class members to facilitate online claims filing. Fund Management, Distribution, and Tax Reporting Rust annually distributes billions of dollars associated with settlements and similar programs. Our Bank and Tax group is responsible for day-to-day banking and tax reporting functions for all settlement funds. Banking Services Tax Reporting Services - Account setup. - Tax identification numbers (federal and state). - Online bank reporting. - Qualified Settlement Fund (QSF) determination. - Escrow, investment and distribution accounts. - Claimant award taxability and reporting. - Escrow agent services. - W-9 review. - Positive Pay - all claimant checks are issued - Annual 1120 SF tax returns and quarterly tax with Positive Pay verification. deposits. - Check images. - IRS and state 1099 and 10428 reporting and - Wire transfers. transmiSSion. . Account reconciliation (daily, weekly 0r - Backup withholding deposits and 945 annual monthly)_ reporting. - Balance inquiry and reporting. - Employment payroll taxes: 941, 940, SUTA, SIT, and local income taxes. l 625 MAROUETTE AVENUE,SU|TE 900 MINNEAPOLIS,MN 55402 T612.359.2000 F612.359.2050 RUSTCONSULTING.COM Representative Case Experience Having administered more than 6,500 projects, a complete listing of our experience is voluminous. However, the below tables demonstrate the scope of our experience and capacity. Note: AII numbers are rounded 183 million In re Domestic Airline Travel Antitrust Litigation, MDL 2656 (D.D.C.). 83 million In re Target Corporation Customer Data Security Breach Litigation, MDL 2522 (D. Minn.). 31 million In re Lawnmower Engine Horsepower Marketing and Sales Practices Litigation, No. 2:08-md-01 999 (E.D. Wis.). 24 million Microsoft I-V Cases, J.C.C.P. No. 4106 (Cal. Super. Ct. San Francisco County). 15.7 million Blessing v. Sirius XM Radio, No. 09-cv-10035 (S.D.N.Y.). $3.6 billion Independent Foreclosure Review $1 .5 billion National Mortgage Settlement $800 million Naef v. Masonite Corp., No. CV 944033 (Ala. Cir. Ct. Mobile County). $800 million Microsoft I-V Cases, J.C.C.P. No. 4106 (Cal. Super. Ct. San Francisco County). $762 million In re American International Group, Inc. Securities Litigation, No. 04 Civ. 8141 (S.D.N.Y.). (PwC, Company, Starr, and Gen Re Settlements) Claims Case 3.5 million In re Compact Disc Minimum Advertised Price Antitrust Litigation, MDL No. 1361 (D. Me.). 3.2 million In re American International Group, Inc. Securities Litigation, No. 04-cv-8141 (S.D.N.Y.) (Company, PwC, Starr, and Gen Re settlements). 3 million Abbott Infant Formula Settlements 2.8 million Fogel v. Farmers Group, Inc., No. BC300142 (Cal. Super. Ct. Los Angeles County). 1.2 million National Mortgage Settlement 3.6 million Independent Foreclosure Review 1.5 million Dyson v. Flagstar Corp., No. DKC93-1503 (D. Md.). 1.4 million National Mortgage Settlement 1.3 million Abbott Infant Formula Settlements 1 million Naef v. Masonite Corp., No. CV 94-4033 (Ala. Cir. Ct. Mobile County). l 625 MAROUETTE AVENUE,SU\TE 900 MINNEAPOLIS,MN 55402 T612.359.2000 F612.359.205O RUSTCONSULTING.COM Data and System Security The secure handling of data, systems, and applications is of utmost importance to Rust and its clients. As such, Rust actively mitigates potential threats by adhering to a complex set of best practices, including documented and audited processes and a business continuity plan to ensure uninterrupted, secure service. As part of this “unified compliance posture,” Rust: Has received system Certification & Accreditation under the Federal Information Security Management Act (“FISMA”) for two federal agencies. The framework for FISMA compliance is driven by the National Institute of Standards and Technology (“NIST”), which provides a unified security framework spanning three major security control classes (technical, operational, and management) and 18 control areas with more than 250 security controls. Complies with and adheres to Privacy Shield Principles, which cover notice and choice, disclosures and transfers, data security, data integrity, access to and removal of personal information, and enforcement and dispute resolution. Undergoes an annual SSAE18 SOC 2 Type II Report audit of our data and system security controls and protocols. Complies with applicable laws, such as the Gramm-Leach-Bliley Act (GLBA), also known as the Financial Modernization Act of 1999, which controls how financial institutions deal with individuals’ private information. Has implemented controls to prevent unauthorized access or disclosure, maintain data accuracy, and ensure the appropriate use and confidentiality of information, either for its own purposes or on behalf of our clients. Has put in place appropriate physical, electronic, and managerial procedures to safeguard and secure the information we process. Processes personal information only in ways compatible with the purpose for which it was collected or subsequently authorized to do. EXHIBIT 5 \DOOflQUl-bUJNH NNNNNNNNNr-KHr-tr-tr-tr-KHr-tr-tr-t OOQQUI-PUJNHOKDOOQQUI-bUJNHO Electronically Filed by Superior Court of CA, County of Santa Clara, on 11/22/2019 9:10 AM Reviewed By: R. Walker Case #1 8CV338479 Envelope: 3685982 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA THOMAS VILLAREAL, 0n behalf 0f himself Case No. 2018-1-CV-338479 and all others similarly situated, ORDER RE: MOTION FOR Plaintiff, PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT, AND VS. REQUEST TO FILE FIRST AMENDED COMPLAINT MISSION TRAIL WASTE SYSTEMS, INC., and DOES 1 through 50, inclusive, Defendants. The above-entitled matter came 0n for hearing 0n Friday, November 22, 2019, at 9:00 am. in Department 5, the Honorable Thomas E. Kuhnle presiding. The Court reviewed and considered the written submissions filed by the parties and issued a tentative ruling 0n Thursday, November 21, 2019. N0 party contested the tentative ruling; therefore, the Court orders the tentative ruling be adopted as the Order of the Court, as follows: I. INTRODUCTION This is a putative class action arising out 0f various alleged Labor Code Violations. The Complaint, filed on November 19, 2018, sets forth causes 0f action titled: (1) Meal Break Violations; (2) Rest Break Violations; (3) Inaccurate Wage Statements; (4) Failure to Permit Employee Inspection 0f Payroll Records; (5) Failure t0 Permit Employee Inspection 0f Personnel 1 ORDER RE: MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT \DOOflQUl-bUJNH NNNNNNNNNr-KHr-tr-tr-tr-KHr-tr-tr-t OOQQUI-PUJNHOKDOOQQUI-bUJNHO Records; (6) Improper Acquisition and Use of Employees’ Fingerprints; (7) Unlawful, Unfair, and Fraudulent Business Practices; and (8) Labor Code Private Attorneys General Act 0f 2004. The parties have reached a settlement. Plaintiffnow moves for preliminary approval 0f the settlement. II. LEGAL STANDARD Generally, “questions Whether a settlement was fair and reasonable, whether notice to the class was adequate, Whether certification of the class was proper, and whether the attorney fee award was proper are matters addressed t0 the trial court’s broad discretion.” (Wershba v. Apple Computer, Inc. (2001) 91 Ca1.App.4th 224, 234-235, citing Dunk v. Ford Motor C0. (1996) 48 Ca1.App.4th 1794.) In determining whether a class settlement is fair, adequate and reasonable, the trial court should consider relevant factors, such as “the strength 0f plaintiffs’ case, the risk, expense, complexity and likely duration of further litigation, the risk of maintaining class action status through trial, the amount offered in settlement, the extent 0f discovery completed and the stage 0f the proceedings, the experience and Views of counsel, the presence of a governmental participant, and the reaction of the class members to the proposed settlement.” (Wershba v. Apple Computer, Ina, supra, 91 Cal.App.4th at pp. 244-245, citing Dunk, supra, 48 Cal.App.4th at p. 1801 and Officersfor Justice v. Civil Service Com ’n, etc. (9th Cir. 1982) 688 F.2d 615, 624.) “The list 0f factors is not exclusive and the court is free to engage in a balancing and weighing 0f factors depending on the circumstances 0f each case.” (Wershba v. Apple Computer, Ina, supra, 91 Cal.App.4th at p. 245.) The court must examine the “proposed settlement agreement t0 the extent necessary to reach a reasoned judgment that the agreement is not the product 0f fraud 0r overreaching by, 0r collusion between, the negotiating parties, and that the settlement, taken as a whole, is fair, reasonable and adequate t0 all concerned.” (Ibid., quoting Dunk, supra, 48 Cal.App.4th at p. 1801 and Oflicersfor Justice v. Civil Service Com ’n, eta, supra, 688 F.2d at p. 625, internal quotation marks omitted.) The burden is 0n the proponent 0f the settlement to show that it is fair and reasonable. However “a presumption 0f fairness exists where: (1) the settlement is reached through arm’s-length bargaining; (2) investigation and discovery are sufficient t0 allow counsel and the court to act intelligently; (3) counsel is experienced in similar litigation; and (4) the percentage of objectors is small.” 2 ORDER RE: MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT \DOOflQUl-bUJNH NNNNNNNNNr-KHr-tr-tr-tr-KHr-tr-tr-t OOQQUI-PUJNHOKDOOQQUI-bUJNHO (Wershba v. Apple Computer, Ina, supra, 91 Cal.App.4th at p. 245, Citing Dunk, supra, 48 Cal.App.4th at p. 1802.) III. DISCUSSION A. Provisions of the Settlement The case has been settled on behalf of the following class: [A]11 current and former non-exempt sanitation truck drivers employed by Defendant at any time during the Class Period, Which Defendant represents t0 be 63 individuals as 0f October 2019. (Declaration 0f Robin G. Workman in Support 0f Plaintiff s Motion for Preliminary Approval 0f Class Action Settlement, and Request to File First Amended Complaint (“Workman Decl.”), EX. C (“Settlement Agreement”), 11 4.) The “Class Period” is November 19, 2014, through the date of preliminary approval. (Settlement Agreement, 1] 5.) Pursuant to the settlement, defendant Mission Trail Waste Systems, Inc. (“Defendant”) will pay a total non-reversionary amount 0f $750,000. (Settlement Agreement, 1] 32.) This includes allocations 0f $250,000 for attomeys’ fees, up to $20,000 in costs, $5,000 for an incentive award, $15,000 for PAGA ($1 1,250 0f which will be paid to the California Labor and Workforce Development Agency), and settlement administration costs 0f $15,000. (Id. atW 33, 35-37.) The Settlement Agreement provides that checks not cashed within 9O days shall be void. (Settlement Agreement, 1] 56.) Funds from those checks Will be distributed pro rata to class members Who cashed the initial checks. (Ibid.) Funds from uncashed checks after the second distribution, or if the funds remaining from the initial distribution are less than $4,500, will be paid 0n a cy pres basis t0 Legal Aid at Work. (Ibid.) B. Fairness 0f the Settlement Plaintiff states the settlement resulted from arm’s-length negotiations facilitated through a day-long mediation. Plaintiff asserts the gross settlement payment 0f $750,000 represents 42% 0f the total maximum recovery as calculated by Plaintiff s expert and the settlement Will result in an average payout 0f approximately $7,000 for each class member. 3 ORDER RE: MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT \DOOflQUl-bUJNH NNNNNNNNNr-KHr-tr-tr-tr-KHr-tr-tr-t OOQQUI-PUJNHOKDOOQQUI-bUJNHO Overall, the Court finds the settlement is fair. It provides for some recovery for each class member and eliminates the risk and expense 0f further litigation. C. Incentive Award, Fees, and Costs Plaintiff requests a class representative incentive award of $5,000. The rationale for making enhancement 0r incentive awards t0 named plaintiffs is that they should be compensated for the expense 0r risk they have incurred in conferring a benefit 0n other members of the class. An incentive award is appropriate if it is necessary to induce an individual t0 participate in the suit. Criteria courts may consider in determining whether to make an incentive award include: 1) the risk to the class representative in commencing suit, both financial and otherwise; 2) the notoriety and personal difficulties encountered by the class representative; 3) the amount 0f time and effort spent by the class representative; 4) the duration of the litigation and; 5) the personal benefit (0r lack thereof) enjoyed by the class representative as a result of the litigation. These “incentive awards” t0 class representatives must not be disproportionate t0 the amount 0f time and energy expended in pursuit of the lawsuit. (Cellphone Termination Fee Cases (2010) 186 Cal. App. 4th 1380, 1394-1395, quotation marks, brackets, ellipses, and citations omitted.) Plaintiff submits a declaration stating he worked closely with class counsel, searching for documents and discussing information provided t0 Class counsel. (Declaration 0f Thomas Villareal in Support 0f Plaintiff” s Motion for Preliminary Approval 0f Class Action Settlement, and Request t0 File First Amended Complaint, 11 12.) Plaintiff estimates he spent 50-70 hours 0n the case. (Ibid.) The Court finds the incentive payment is warranted. The incentive award of $5,000 is approved. The Court also has an independent right and responsibility t0 review the requested attorneys” fees and only award so much as it determines reasonable. (See Gambedian v. Los Angeles Cellular Telephone C0. (2004) 118 Cal.App.4th 123, 127-128.) Plaintiffs counsel requests attorneys’ fees in the amount of $250,000 (1/3 0f the total settlement) and costs up to $20,000. Plaintiff s counsel shall submit lodestar information (including hourly rates and hours worked) prior t0 the final approval hearing so the Court can compare the lodestar information With the requested fees. Plaintiff s counsel shall also submit information regarding actual costs incurred. 4 ORDER RE: MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT \DOOflQUl-bUJNH NNNNNNNNNr-KHr-tr-tr-tr-KHr-tr-tr-t OOQQUI-PUJNHOKDOOQQUI-bUJNHO D. Conditional Certification of Class Plaintiff has not requested conditional certification of the putative class. Plaintiff must provide a basis for conditionally certifying the class for purposes of the settlement. Accordingly, Plaintiff shall file supplemental papers t0 this effect. The papers shall be filed no later than 4:00 p.m. 0n December 11, 2019, and the hearing 0n this motion Will be CONTINUED t0 December 20, 2019 at 9:00 am. in Department 5. E. Class Notice The content 0f a class notice is subject to court approval. “If the court has certified the action as a class action, notice of the final approval hearing must be given t0 the class members in the manner specified by the court.” (Cal. Rules of Court, rule 3.769(f).) The proposed notice generally complies With the requirements for class notice. (See Workman Decl., EX. D.) It provides basic information about the settlement, including the settlement terms, and procedures t0 object 0r request exclusion. However, the notice states obj ections must be in writing and must state Whether a class member intends t0 appear at the final approval hearing. The notice must be Changed t0 state that class members may appear at the final approval hearing to obj ect Without mailing any written obj ection and without providing any advance notice. The amended notice shall be provided t0 the Court for approval prior t0 mailing. F. Filing 0f First Amended Complaint As part 0f the settlement, the parties have stipulated t0 the filing of a First Amended Complaint, which adds a time rounding claim, and Plaintiff requests permission to file it. The request is GRANTED, and the First Amended Complaint is DEEMED FILED. /// /// /// /// /// 5 ORDER RE: MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT \DOOflQUl-bUJNH NNNNNNNNNr-KHr-tr-tr-tr-KHr-tr-tr-t OOQQUI-PUJNHOKDOOQQUI-bUJNHO G. Conclusion As stated above, Plaintiff shall file supplemental papers regarding conditional certification 0f the class. The papers shall be filed no later than 4:00 pm. on December 11, 2019, and the hearing 0n this motion is CONTINUED t0 December 20, 2019 at 9:00 a.m. in Department 5. Dated: November 22, 2019 \j/iW 6 gmda- Thomas E. Kuhnle Judge of the Superior Court 6 ORDER RE: MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT EXHIBIT 6 hUJN KOOONOUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WORKMAN LAW FIRM, PC Robin G. Workman (Bar #145810) robin@workmanlawpc.com Rachel E. Davey (Bar #3 16096) rachel@workmanlawpc.com 177 Post Street, Suite 800 San Francisco, CA 94108 Telephone: (415) 782-3660 Facsimile: (415) 788-1028 Attorneysfor Plaintifif Thomas Villarreal 0n behalfofhimselfand all other similarly situated SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA THOMAS VILLAREAL, 0n behalf 0f himself and all others similarly situated, Plaintiff, VS. MISSION TRAIL WASTE SYSTEMS, INC., and Does 1 through 50, inclusive, Defendants. FIRST AMENDED COMPLAINT No. 18CV33 8479 ASSIGNED FOR ALL PURPOSES TO THE HON. THOMAS E. KUHNLE, DEPT. 5 FIRST AMENDED COMPLAINT 3280\PLEADINGS\FAC.DOC hUJN KOOONOUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff Thomas Villarreal (“Plaintiff’) by his attorneys, brings this action 0n behalf of himself, all others similarly situated, and the general public, on information and belief, except those allegations that pertain to the named Plaintiff and his attorneys (Which are alleged 0n personal knowledge), hereby alleges as follows: JURISDICTIONAL ALLEGATIONS 1. This class action lawsuit arises from ongoing wrongful conduct by Defendant Mission Trail Waste Systems, Inc. (“Defendant”), by its unlawful (1) failure t0 provide meal breaks, 0r provide compensation for missed meal breaks, to Plaintiff and proposed class members, as required by California Labor Code sections 226.7 and 5 12, and section 11 0f applicable Industrial Welfare Commission Wage Orders (“Wage Orders”); (2) failure to provide rest breaks, 0r provide compensation for missed rest breaks t0 Plaintiff and proposed class members, as required by California Labor Code section 226.7, and section 12 0f applicable Wage Orders; (3) failure t0 maintain accurate records 0f Plaintiff s and proposed class members’ payroll records showing hours worked daily and wages earned in Violation of California Labor Code section 1174; (4) failure t0 provide accurate itemized wage statements to Plaintiff and proposed class members containing information as required by California Labor Code section 226; (5) failure t0 permit employees to inspect or copy wage statements in Violation 0f California Labor Code section 226(0); (6) failure t0 permit employees to inspect personnel records, in Violation 0f California Labor Code section 1198.5; (7) failure t0 timely pay Plaintiff and proposed class members all wages When due, in Violation 0f California Labor Code sections 204 and 510; (8) failure to pay members 0f the proposed class all wages due at the time of termination in Violation 0f California Labor Code sections 201-203; and, (9) Violation 0f California Labor Code section 105 1 in that Defendant obtained employees” fingerprints as a prerequisite 0f their employment and shared these fingerprints with a third party. Said conduct violated each California Labor Code section as set forth in California Labor Code section 2699.5. Said conduct, in addition, constitutes Violations 0f California Labor Code sections 558 and 1198. The described conduct renders Defendant liable for civil penalties as set forth in California Labor Code sections 203, 210, 226(6), 226(1), 226.3, 558, 1054, 1174.5, 1198.5(k), 2699(a), 2699(f), and 2699.5. These failures further constitute FIRST AMENDED COMPLAINT -2- 3280\PLEADINGS\FAC.DOC hUJN KOOONOUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 unfair business practices, in Violation 0f California Business and Professions Code section 17200, et. seq., and Violations 0f California Labor Code section 2698, et. seq., the Private Attorneys General Act of 2004 (“the PAGA”), through Which Plaintiff seeks civil penalties. 2. Defendant Mission Trail Waste Systems, Inc., is and at all and at all relevant times was, a corporation doing business within the State 0f California and is an employer under applicable Industrial Welfare Commission Orders. Defendant’s headquarters are located in Santa Clara, California. GENERAL ALLEGATIONS 3. This action seeks relief for unremedied Violations of California law, including, inter alia; damages, reimbursements, restitution, penalties, interest and attorneys’ fees, as appropriate, t0 members of the proposed classes, aggrieved employees, and t0 Victims 0f the practices at issue, Who have not been provided statutory meal breaks, 0r compensation for missed meal breaks, as required by California Labor Code sections 226.7, 5 12, and 558; Who have not been provided statutory rest breaks, 0r compensation for missed rest breaks, as required by California Labor Code sections 226.7 and 558; Who have not been timely paid for all wages earned, including for improper rounding of time, even upon termination, in Violation 0f California Labor Code sections 201-204; Who have not been furnished with accurate wage statements in Violation 0f California Labor Code section 226; Who were not allowed t0 review and/or obtain a copy 0f their personnel file in Violation 0f California Labor Code section 1198.5; and, Who were required t0 submit their fingerprints as a prerequisite 0fwhose employment, which were shared with a third party in Violation 0f California Labor Code section 105 1. Plaintiff is informed and believes that the damages, reimbursements, restitution, penalties, interest and attorneys’ fees d0 not exceed an aggregate of $4,999,999.99 and that Plaintiff’s individual claims d0 not exceed $74,999.99. 4. The names and capacities 0f defendants sued herein under California Code 0f Civil Procedure section 474 as Does 1 through 50, inclusive, are presently not known to Plaintiff, who therefore sues these defendants by such fictitious names. Plaintiff Will seek t0 amend this Complaint and include these Doe defendants’ names and capacities When they are ascertained. Each fictitiously named defendant is responsible in some manner for the conduct alleged herein FIRST AMENDED COMPLAINT -3- 3280\PLEADINGS\FAC.DOC hUJN KOOONOUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and for the injuries suffered by Plaintiff, the members of the class, aggrieved employees, and the general public. 5. At all times mentioned in the causes 0f action alleged herein, each and every Defendant was an agent and/or employee 0f each and every other Defendant. In doing the things alleged in the causes 0f action stated herein, each and every Defendant was acting Within the course and scope 0f this agency or employment and was acting with the consent, permission and authorization 0f each of the remaining Defendants. A11 actions 0f each Defendant as alleged in the causes 0f action stated herein were ratified and approved by every other Defendant 0r their officers or managing agents. 6. Plaintiff is a current employee 0f Defendant. Defendant employs Plaintiff as an hourly-paid sanitary truck route driver in California. Plaintiff, and those similarly situated employees, drive routes t0 pick up waste in the Santa Clara, California, area. Defendant routinely requires Plaintiff, and similarly situated drivers, t0 work more than five hours per day Without receiving mandated off-duty meal periods. Whether or not Plaintiff and similarly situated drivers indicate 0n their time sheets that they take statutory meal breaks, Defendant “auto-deducts” a 30- minute meal break from the daily hours worked by drivers, and does not pay drivers for that 30 minutes worked, 0r the one-hour ofpremium pay at each driver’s regular rate 0f pay for forgoing the meal break. Although Defendant auto-deducts 3O minutes from Plaintiff’ s, and similarly situated drivers’ wage statements for meal breaks, Plaintiff and similarly situated drivers routinely miss such meal breaks. This is because, t0 make it t0 all of the waste pick ups set by Defendant, and transport all 0f this waste t0 the dump Defendant designates before it closes, Plaintiff and similarly situated drivers cannot stop t0 take their statutory 30-minute uninterrupted meal breaks. Defendant is aware of this, because Defendant sets drivers’ route assignments. For these reasons, Defendant fails to provide Plaintiff and similarly situated drivers with uninterrupted 30-minute off-duty meal breaks. Plaintiff and similarly situated drivers sometimes also sometimes work “double shifts.” When this occurs, they often work in excess 0f 10 hours per day. When they d0 so, Defendant does not provide Plaintiff and those similarly situated drivers With a second meal period as required by Labor Code section 5 12 and the applicable Wage Order. When the drivers FIRST AMENDED COMPLAINT -4- 3280\PLEADINGS\FAC.DOC hUJN KOOONOUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 do not receive statutory meal breaks, Defendant does not pay Plaintiff, or those similarly situated drivers, with the additional hour 0f compensation as required by Labor Code sections 226.7 and 558 and the applicable Wage Order. As a result, Defendant did not pay Plaintiff, 0r those similarly situated drivers, with all wages due as required by Labor Code sections 201-204. 7. Defendant routinely requires Plaintiff, and similarly situated drivers, to work more than 3.5 hours per day without receiving mandated off-duty, uninterrupted rest periods, in Violation of California Labor Code sections 226.7, 558, 1198, and applicable Wage Orders. In addition, Plaintiff and similarly situated drivers often work in excess of 8 hours per day, even exceeding 12 hours per day, but Defendant does not authorize and permit them to take a second 0r third statutory rest break, respectively. Plaintiff and similarly situated drivers cannot take mandated 10-minute rest breaks because they do not have time t0 d0 so in order t0 meet the driving schedules set by Defendant. When the drivers do not receive uninterrupted 10-minute off- duty rest breaks, Defendant does not pay Plaintiff, or those similarly situated drivers, With the additional hour of compensation as required by Labor Code section 226.7 and applicable Wage Orders. As a result, Defendant did not pay Plaintiff, 0r those similarly situated drivers, With all wages due as required by Labor Code sections 201-204. 8. Because Defendant did not adequately keep records of Plaintiff” s and similarly situated drivers’ meal breaks taken and not taken, as required by Labor Code sections 226.7 and 5 12, Defendant failed to maintain accurate and complete payroll records, as required by Labor Code section 1174(d). This failure gives rise to civil penalties under Labor Code section 1174.5. 9. Defendant also failed t0 furnish accurate itemized statements to Plaintiff, and other similarly situated drivers, containing information as required by California Labor Code section 226. Because Defendant “auto-deducts” 30-minute meal breaks from drivers’ hours worked, and because Defendant does not pay the additional hour of compensation When drivers are not provided meal and/or rest breaks as required by Labor Code section 226.7 and applicable Wage Orders, the wage statements d0 not reflect all hours worked, all gross 0r net wages earned, or the hours worked and the corresponding hourly rates in Violation 0f Labor Code sections 226(a)(1), (2), (5), and (9). FIRST AMENDED COMPLAINT -5- 3280\PLEADINGS\FAC.DOC hUJN KOOONOUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10. During Plaintiff s employment in either 2017 or 2018, Plaintiff requested Defendant permit him to inspect his payroll records for the last three years. Defendant failed t0 permit Plaintiff to inspect 0r copy all 0f the records he requested within 21 days, in Violation 0f California Labor Code section 226 subsection (c). Defendant violated subsection (c) With respect t0 other drivers’ requests for the same, because Defendant admitted it n0 longer has access t0 the records from 2016 and prior, because it changed payroll companies in 2016. Plaintiff and similarly situated drivers Who were denied this request are therefore entitled to statutory penalties pursuant to section 226 subsection (f). 11. During Plaintiff s employment, Plaintiff requested Defendant permit him to inspect his personnel records for the past three years, including records relating t0 his performance 0r to any grievance concerning him, maintained by Defendant, pursuant to California Labor Code section 1198.5. After 30 days, Defendant had provided Plaintiff with some, but not all of the personnel records Defendant is required to keep pursuant to section 1198.5. Because Defendant failed to permit Plaintiff, and similarly situated drivers t0 review their complete personnel files in Violation of section 1198.5, they are entitled t0 penalties pursuant t0 section 1198.5 subsection (k). 12. Because Defendant failed to pay Plaintiff and similarly aggrieved drivers an extra hour at the regular rate for forgone meal breaks and rest breaks, Defendant failed t0 timely pay Plaintiff and similarly aggrieved drivers all wages when due, in Violation of Labor Code section 204. In addition, instead 0f paying Plaintiff and similarly situated drivers for all hours worked, Defendant engaged in a practice 0f rounding the time. This rounding practice was disproportionately in favor 0f Defendant. Given this practice, Defendant, for this additional reason, did not pay Plaintiff and similarly situated drivers for all hours worked in Violation 0f Labor Code sections 204, 510 and 1194. Plaintiff therefore seeks to recover civil penalties for this Violation as a representative 0f the State, pursuant to Labor Code sections 210, 2699.3 and 2699.5. 13. Defendant failed to pay Plaintiff and proposed class members an extra hour at the regular rate for their forgone meal breaks and rest breaks. During the relevant period, the employment 0fmany proposed class members With Defendant ended and they were not paid all wages due either immediately 0r Within 72 hours of termination or resignation, in Violation of FIRST AMENDED COMPLAINT -6- 3280\PLEADINGS\FAC.DOC hUJN KOOONOUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Labor Code sections 201 and 202. Plaintiff therefore seeks wages as civil penalties 0n behalf 0f those proposed class members Who were not paid all wages due either immediately or within 72 0f termination 0r resignation, pursuant t0 Labor Code section 203. 14. During Plaintiff s employment, Defendant violated California Labor Code section 1051 because Defendant obtained Plaintiff’ s and all other hourly employees’ fingerprints 0n its ADP thumb scanning device, as a prerequisite 0f their employment. Defendant then shared these fingerprints with a third-party company. Defendant knowingly permitted this practice, in Violation 0f California Labor Code section 1052. 15. Given the Violations 0f the aforementioned Labor Code sections and Wage Orders, Defendant is therefore liable for unfair business practices, in Violation of California Business & Professions Code section 17200, et. seq. 16. Given the Violations 0f the aforementioned Labor Code sections and Wage Orders, Defendant is therefore liable for civil penalties set forth Within, and authorized by, the PAGA, California Labor Code section 2698, et. seq. CLASS ALLEGATIONS 17. Plaintiff is, and during all relevant times, was, a resident of the State of California. Plaintiff sues on behalf 0f himself and the following subclasses 0f employees 0f Defendant in California: (a) all drivers employed by Defendant in California during the four years preceding the filing 0f this complaint t0 present; (b) A11 persons in the employ of Defendant in California who, from the one year preceding the filing of this complaint to the present, made requests t0 copy or inspect their records containing information employers must keep pursuant t0 Labor Code section 226 subsection (a); (c) A11 persons in the employ 0f Defendant in California who, from the one year preceding the filing of this complaint t0 the present, made requests t0 copy 0r inspect their personnel records; and FIRST AMENDED COMPLAINT -7- 3280\PLEADINGS\FAC.DOC hUJN KOOONOUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (d) A11 persons in the employ of Defendant in California, from the four years preceding the filing of this complaint t0 present, who, as a condition 0f their employment, were required t0 provide their fingerprints, and Who are/were required t0 use their fingerprints for the purposes 0f clocking in and out from work. 18. Because Plaintiff, in his employment With Defendant as a driver, was routinely required t0 work Without statutory meal periods, for which Plaintiff was not properly compensated, was routinely required t0 work Without statutory rest periods, for Which Plaintiff was not properly compensated, was subject to Defendant’s rounding system and was not paid for all hours worked, was not permitted t0 inspect either his payroll records for the last three years or his complete personnel file for the past three years, failed to receive timely and accurate wage statements, and was not paid all wages earned When they were due, and was required to provide his fingerprints, Which were used for time keeping purposes, as a condition of employment, Plaintiff s claims are typical of the proposed class. 19. Plaintiff Will fairly and adequately represent and protect the interests of the members 0f the proposed class in that he has no disabling conflict of interest that would be antagonistic to those of the other members of the proposed class. Plaintiff retained counsel Who are competent and experienced in the prosecution of class action wage and hour Violations. 20. The proposed subclasses are sufficiently numerous and the class members are geographically dispersed throughout California, the joinder ofwhom in one action is impracticable, such that the disposition 0fwhose claims in a class action Will provide substantial benefits t0 both the parties and the Court. 21. There is a well-defined community of interest in the questions 0f law and fact involved affecting the parties t0 be represented. The questions 0f law and fact common t0 the proposed classes predominate over questions that may affect individual class members, include but are not limited t0 the following: FIRST AMENDED COMPLAINT -8- 3280\PLEADINGS\FAC.DOC hUJN KOOONOUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (a) (b) (C) (d) (f) (g) (h) (i) (j) Whether Defendant implemented and engaged in a practice whereby Defendant unlawfully failed t0 provide meal breaks, 0r provide compensation for missed meal breaks, t0 Plaintiff and the proposed class members Whether Defendant implemented and engaged in a practice whereby Defendant unlawfully failed t0 provide rest breaks, 0r provide compensation for missed rest breaks, to Plaintiff and the proposed class members Whether Defendant implemented and engaged in a practice whereby Defendant unlawfully failed t0 maintain accurate payroll records for Plaintiff and proposed class members Whether Defendant implemented and engaged in a practice whereby Defendant failed t0 provide Plaintiff and proposed class members accurate itemized wage statements; Whether Defendant implemented and engaged in a practice whereby Defendant failed t0 permit employees to inspect or copy their wage statements; Whether Defendant implemented and engaged in a practice whereby Defendant failed t0 permit employees to inspect personnel records; Whether Defendant implemented and engaged in a practice whereby Defendant engaged in improper time rounding, thereby not paying employees for all time worked; Whether Defendant implemented and engaged in a practice whereby Defendant failed to timely pay Plaintiff and proposed class members all wages when due; Whether Defendant implemented and engaged in a practice whereby Defendant failed t0 pay proposed class members all wages due at the time of termination in Violation 0f California Labor Code sections 201-203; Whether Defendant implemented and engaged in a practice whereby Defendant obtained Plaintiff’ s and proposed class members’ fingerprints as a prerequisite of their employment and shared these fingerprints With a third party; FIRST AMENDED COMPLAINT -9- 3280\PLEADINGS\FAC.DOC hUJN KOOONOUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (k) Whether the practices of Defendant as alleged herein violated, inflfl, applicable provisions 0f the California Labor Code, including but not limited to sections 201-204, 226, 226.7, 510, 512, 1051, 1174, 1198, 1198.5, the Unfair Competition Law codified in California Business and Professions Code section 17200, e_tfl, and the Private Attorneys General Act of 2004 (the PAGA), California Labor Code section 2698, e_tfl 22. Plaintiff and the proposed class members have all similarly suffered irreparable harm and damages as a result 0f Defendant’s unlawful and wrongful conduct, including but not limited t0 Defendant’s pattern and practice 0f failure t0 provide rest and meal periods and compensation for work Without rest and meal periods; pattern and practice 0f failing t0 filmish accurate itemized wages statements; pattern and practice of failing t0 permit employees t0 inspect complete records for the past three years 0f their payroll records and their personnel files within the statutory time frames required; pattern and practice 0f failing t0 provide accurate wage statements; pattern and practice 0f requiring employees t0 provide their finger prints as a condition 0f employment; pattern and practice 0f not paying employees for all time worked; and, pattern and practice of failing t0 pay its employees all wages when due. These issues are common to all proposed class members, making class treatment especially appropriate. Because the actions 0f Defendant toward proposed class members follow common patterns, all 0f Which are reflected in the records possessed by Defendant, this action will provide substantial benefits to all proposed class members. Absent this action, Defendant’s unlawful conduct Will continue unremedied and uncorrected. FIRST CAUSE OF ACTION (Applicable to Subclass (a)) (Meal Break Violations: Cal. Lab. Code §§ 226.7 & 512 & Applicable Industrial Welfare Commission Wage Orders §11) 23. Plaintiff and proposed class members incorporate by reference the allegations contained in the foregoing paragraphs 0f this complaint as if fully set forth herein. 24. Throughout the approximately 20 years 0f Plaintiff s employment With Defendant, Defendant engaged in a pattern and practice 0f requiring Plaintiff, and similarly situated drivers, t0 FIRST AMENDED COMPLAINT -10- 3280\PLEADINGS\FAC.DOC hUJN KOOONOUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 work more than five hours per day without receiving statutory 30-minute off-duty meal periods. Defendant also engaged in a pattern and practice of requiring Plaintiff and proposed class members t0 work more than 10 hours a day without providing Plaintiff and proposed class members With a second, statutory 30-minute off-duty meal break. Defendant likewise did not pay Plaintiff or proposed class members an additional hour 0f compensation When Plaintiff 0r proposed class members did not receive their statutory 30-minute off-duty meal breaks. This failure violated California Labor Code sections 226.7 and 5 12 and section 11 0f the applicable Wage Order. 25. Defendant requires Plaintiff and each 0f the proposed class members t0 adhere to a driving route for waste pick-ups. These routes often d0 not allow for off-duty 30-minute meal breaks. Additionally, in order t0 make it to all 0f the pick-up locations, While driving safely and within the speed limits, and make it t0 the dump by the designated time, drivers d0 not have time t0 take their statutory 30-minute off-duty meal breaks. As such, When Plaintiff and proposed class members drive these routes, they do not receive mandated 30-minute off-duty meal breaks. 26. Defendant is aware that drivers are often unable to take their statutory 30-minute off-duty meal breaks, but does not pay Plaintiff, 0r proposed class members, with the additional hour of compensation, as required by section 11 0f applicable Wage Orders and Labor Code sections 226.7 and 558. Instead, Defendant engages in the pattern and practice 0f “auto- deducting” 30 minutes 0f time worked for meal breaks. This Violation 0f section 11 0f applicable Wage Orders is also a Violation of Labor Code sections 558 and 1198, for Which Defendant is liable for penalties under the PAGA, Labor Code section 2699 e_t fl. 27. As a result of Defendant’s failure to pay Plaintiff and proposed class members for missed meal periods, Defendant did not pay Plaintiff, 0r those similarly situated employees, With all wages due as required by Labor Code sections 201-204, for which Plaintiff seeks penalties pursuant to Labor Code sections 203, 210, 558, 1198, 2699.3, and 2699.5. 28. As Defendant augmented time sheets t0 reflect Plaintiff and proposed class members did not work during hours they did work, and did not pay Plaintiff or proposed class members the additional hour 0f compensation When they were not provided meal breaks as FIRST AMENDED COMPLAINT -1 1- 3280\PLEADINGS\FAC.DOC hUJN KOOONOUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 required by Labor Code sections 226.7 and 558, Defendant did not furnish Plaintiff or proposed class members with accurate wage statements, in Violation 0f Labor Code section 226 subsection (a), as the wage statements d0 not reflect all gross wages earned (§ 226(a)(1)), total hours worked (§ 226(a)(2)), 0r net wages earned (§ 226(a)(5)). 29. As a result 0f Defendant’s failures, Plaintiff and the proposed class members are entitled to recover the additional hour of compensation as set forth in California Labor Code sections 226.7 and 558. 30. Plaintiff and proposed class members are therefore entitled t0 the relief requested below. SECOND CAUSE OF ACTION (Applicable t0 Subclass (21)) (Rest Break Violations: Cal. Lab. Code §§ 226.7 & Applicable Industrial Welfare Commission Wage Orders §12) 3 1. Plaintiff and the proposed class members incorporate by reference the allegations contained in the foregoing paragraphs of this complaint as if fully set forth herein. 32. During all relevant periods, Defendant routinely required Plaintiff and proposed class members to work more than 3.5 hours without providing Plaintiff and proposed class members with mandated 10-minute rest breaks. Defendant likewise did not pay Plaintiff 0r proposed class members an additional hour 0f compensation when Plaintiff 0r proposed class members did not receive the mandated 10-minute meal breaks. This failure violated section 12 0f applicable Wage Orders and California Labor Code section 226.7. This Violation 0f section 12 0f applicable Wage Orders is also a Violation 0f Labor Code section 1198, for Which Defendant is liable for penalties under the PAGA, Labor Code section 2698 e_t fl. Plaintiff also seeks civil penalties for this Violation pursuant t0 Labor Code section 558, because Defendant violates “any provision regulating hours and days of work in any order 0f the Industrial Welfare Commission,” here, section 12 0f applicable Wage Orders. 33. Defendant requires Plaintiff and each 0f the proposed class members to adhere t0 a driving route for waste pick-ups. These routes often d0 not allow for off-duty 10-minute FIRST AMENDED COMPLAINT -12- 3280\PLEADINGS\FAC.DOC hUJN KOOONOUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 rest breaks. Additionally, in order t0 make it t0 all of the pick-up locations, while driving safely and within the speed limits, and make it t0 the dump by the designated time, drivers d0 not have time to take their statutory 10-minute off-duty rest breaks. As such, when Plaintiff and proposed class members drive these routes, they d0 not receive mandated 10-minute off- duty rest breaks. 34. Defendant is aware that drivers are often unable to take their statutory 10- minute off-duty rest breaks, but does not pay Plaintiff, or proposed class members, With the additional hour of compensation, as required by applicable Wage Orders and Labor Code section 226.7. 35. As a result 0f Defendant’s failure t0 pay Plaintiff and proposed class members for missed rest periods, Defendant also did not pay Plaintiff, or proposed class members, with all wages due as required by Labor Code sections 201-204, for which Plaintiff seeks penalties pursuant t0 Labor Code sections 203, 210, 558, 1198, and 2698 et seq. 36. Because Defendant did not pay Plaintiff 0r proposed class members the additional hour 0f compensation When they were not provided rest breaks as required by Labor Code sections 226.7 and section 12 of applicable Wage Orders, Defendant did not furnish Plaintiff or proposed class members With accurate wage statements, in Violation 0f Labor Code section 226(a), as the wage statements d0 not reflect all gross wages earned (§ 226(a)(1)), total hours worked (§ 226(a)(2)), 0r net wages earned (§ 226(a)(5)). 37. As a result of Defendant’s failures, Plaintiff and proposed class members are entitled to recover the additional hour of compensation as set forth in California Labor Code sections 226.7 and 558. 38. Plaintiff and proposed class members are therefore entitled t0 the relief requested below. THIRD CAUSE OF ACTION (Applicable to Subclass (a)) (Inaccurate Wage Statements: Cal. Lab. Code § 226) 39. Plaintiff and proposed class members incorporate by reference the allegations FIRST AMENDED COMPLAINT -13- 3280\PLEADINGS\FAC.DOC hUJN KOOONOUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 contained in the foregoing paragraphs 0f this complaint as if fully set forth herein. 40. During the relevant time period, Defendant failed to pay Plaintiff, and proposed class members, with the additional hour of compensation owed when the class members did not receive mandated off-duty meal or rest breaks. In addition, because Defendant auto-deducted time for meal periods for which Plaintiffs and class members did not receive, Defendant routinely issued wage statements that did not accurately reflect all hours worked, or all gross 0r net wages earned. As such, Defendant failed t0 furnish accurate itemized wage statements to Plaintiff and proposed class members containing information as required by California Labor Code section 226 subdivision (a) paragraphs (1) gross wages earned, (2) total hours worked, and (5) net wages earned. These failures caused Plaintiff and proposed class members t0 suffer injury as defined by California Labor Code section 226(c)(2)(B)(i). As a result 0f Defendant’s failures, Plaintiff and proposed class members are entitled to recover the penalties and attorneys’ fees as set forth in California Labor Code section 226(c)(1). 41. As a result of Defendant’s Violations 0f Labor Code section 226(3), Plaintiff and proposed class members are also entitled t0 recover the penalties, and interest thereon, as set forth in California Labor Code section 226.3. 42. Plaintiff also seeks penalties for Defendant’s Violations 0f Labor Code section 226 subsection (a), paragraphs (1), (2), and (5) pursuant t0 Labor Code sections 2699.3 and 2699.5, and attorneys’ fees pursuant t0 section 2699(g)(1). 43. Plaintiff and proposed class members are therefore entitled t0 the relief requested below. FOURTH CAUSE OF ACTION (Applicable t0 Subclass (b)) (Failure To Permit Employee Inspection Of Payroll Records: Cal. Lab. Code § 226(c)) 44. Plaintiff and proposed class members incorporate by reference the allegations contained in the foregoing paragraphs of this complaint as if fully set forth herein. 45. During Plaintiff” s employment in either 2017 0r 2018, Plaintiff that requested Defendant permit him to inspect his payroll records for the last three years, as specified in Labor FIRST AMENDED COMPLAINT -14- 3280\PLEADINGS\FAC.DOC hUJN KOOONOUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Code section 226 subsection (b). Defendant failed t0 permit Plaintiff t0 inspect or copy all of the records he requested Within 21 days, in Violation 0f California Labor Code section 226 subsection (c). Defendant violated subsection (c) with respect to other drivers’ requests for the same, because Defendant admitted it no longer has access t0 the records from 2016 and prior, because it changed payroll companies in 2016. Plaintiff and similarly situated drivers Who were denied this request are therefore entitled t0 statutory penalties pursuant t0 section 226 subsection (f). 46. Plaintiff and proposed class members are therefore entitled t0 the relief requested below. FIFTH CAUSE OF ACTION (Applicable t0 Subclass (c)) (Failure T0 Permit Employee Inspection Of Personnel Records: Cal. Lab. Code § 1198.5) 47. Plaintiff and proposed class members incorporate by reference the allegations contained in the foregoing paragraphs 0f this complaint as if fully set forth herein. 48. During Plaintiff” s employment, Plaintiff requested that Defendant permit him to inspect his personnel records for the past three years, including records relating t0 his performance 0r to any grievance concerning him, maintained by Defendant, pursuant t0 California Labor Code section 1198.5. After 30 days, Defendant had provided Plaintiff with some, but not all of the personnel records Defendant is required to keep pursuant t0 section 1198.5. Because Defendant failed to permit Plaintiff, and similarly situated drivers t0 review their complete personnel files in Violation of section 1198.5, they are entitled t0 penalties pursuant t0 section 1198.5 subsection (k). 49. Plaintiff and proposed class members are therefore entitled to the relief requested below. SIXTH CAUSE OF ACTION (Applicable t0 Subclass (d)) (Improper Acquisition And Use Of Employees’ Fingerprints: Violation 0f Cal. Lab. Code §§ 1051 and 1054) 50. Plaintiff and the proposed class members incorporate by reference the allegations contained in the foregoing paragraphs of this complaint as if fully set forth herein. 5 1. During Plaintiff” s employment, Defendant obtained Plaintiff” s and proposed class members’ fingerprints 0n its thumb-scanning system, as a condition of their employment. FIRST AMENDED COMPLAINT -15- 3280\PLEADINGS\FAC.DOC hUJN KOOONOUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendant shared these fingerprints with a third-party in Violation 0f California Labor Code section 105 1. 52. Defendant is liable to Plaintiff, and proposed class members, for all recovery allowed by California Labor Code section 1054, including, but not limited t0, treble damages. 53. Plaintiff, and those similarly situated, are therefore entitled t0 the relief requested below. SEVENTH CAUSE OF ACTION (Applicable to Subclass (a)) (Failure T0 PaV All Wages Due, Including At Termination: Violation of Cal. Lab. Code 88 201-204, 510, 558 and 1194) 54. Plaintiff and the proposed class members incorporate by reference the allegations contained in the foregoing paragraphs of this complaint as if fully set forth herein. 55. During the relevant time period, Defendant engaged in a pattern and practice of not paying Plaintiff, and those similarly situated employees, for all time worked, including at termination. Instead, Defendant automatically deducted 30 minutes for meal periods Whether 0r not such a meal period was actually taken and implemented a time rounding practice and policy that disproportionately favored Defendant. In addition, Defendant failed to pay Plaintiff, and those similarly situated employees, the one-hour premium due When meal and rest periods were not provided as required by law. As a result of these practices and policies, Defendant failed to pay all wages owed, including minimum wages and overtime, in Violation of California Labor Code sections 201-204, 5 10, 558, and 1194. 56. As a result 0f Defendant’s failures, Plaintiff and proposed class members are entitled to recover for all time worked pursuant to California Labor Code sections 201-202, 510 and 558. Plaintiff and the proposed class members are also entitled t0 recover waiting time penalties pursuant t0 California Labor Code section 203, and attorneys’ fees pursuant to California Labor Code section 218.5. 57. Plaintiff and proposed class members are therefore entitled t0 the relief requested below. FIRST AMENDED COMPLAINT -16- 3280\PLEADINGS\FAC.DOC hUJN KOOONOUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EIGHTH CAUSE OF ACTION (Applicable t0 all Subclasses) (Unlawful, Unfair And Fraudulent Business Practices: Business & Professions Code § 17200, e_t seg.) 58. Plaintiff and proposed class members incorporate by reference the allegations contained in the foregoing paragraphs 0f this complaint as if fully set forth herein. 59. Business & Professions Code section 17200, e_tfl, prohibits acts of unfair competition, defined as an “unlawful, unfair, 0r fraudulent business act 0r practice.” 60. The policies, acts and practices heretofore described were and are unlawful business acts or practices because Defendant’s (1) failure t0 provide meal breaks, 0r provide compensation for missed meal breaks, t0 Plaintiff and proposed class members, as required by California Labor Code sections 226.7, 5 12, 558, 1198, and section 11 0f applicable Industrial Welfare Commission Wage Orders (“Wage Orders”); (2) failure t0 provide rest breaks, or provide compensation for missed rest breaks t0 Plaintiff and proposed class members, as required by California Labor Code sections 226.7 558, 1198, and section 12 of applicable Wage Orders; (3) failure t0 maintain accurate records 0f Plaintiff s and proposed class members’ payroll records showing hours worked daily and wages earned in Violation of California Labor Code section 1174; (4) failure to provide accurate itemized wage statements to Plaintiff and proposed class members containing information as required by California Labor Code section 226; (5) failure t0 permit employees to inspect or copy wage statements in Violation 0f California Labor Code section 226(0); (6) failure t0 permit employees to inspect personnel records, in Violation 0f California Labor Code section 1198.5; (7) failure t0 timely pay Plaintiff and proposed class members all wages when due, including as a result 0f Defendant’s nonpayment of meal and rest period premiums, automatic 30-minute meal period time deductions, and time rounding policies and practices, in Violation of California Labor Code section 204, 510 and 1194; (8) failure to pay members of the proposed class all wages due at the time 0f termination in Violation of California Labor Code sections 201-203; and, (9) Violation 0f California Labor Code section 105 1 in that Defendant obtained employees’ fingerprints as a prerequisite 0f their employment and shared these fingerprints With a third party; Violate applicable Labor Code sections, Industrial Welfare FIRST AMENDED COMPLAINT -17- 3280\PLEADINGS\FAC.DOC hUJN KOOONOUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Commission Wage Orders, the Private Attorneys General Act of 2004, Labor Code section 2698 e_tfl, and other provisions of California common and/or statutory law. Plaintiff reserves the right t0 allege additional statutory and common law Violations by Defendant. Such conduct is ongoing to this date. 61. Further, the policies, acts 0r practices described herein were and are an unfair business acts 0r practices because any justifications for Defendant’s illegal and wrongful conduct were and are vastly outweighed by the harm such conduct caused t0 Plaintiff, proposed class members, aggrieved employees, and the members of the general public. Such conduct is ongoing to this date. 62. As a result 0f its unlawful and/or unfair and/or fraudulent acts, Defendant reaps and continues to reap unfair benefits and illegal profits at the expense 0f Plaintiff and proposed class members. Defendant should be made to disgorge ill-gotten gains and provide restitution to Plaintiff and proposed class members for the wrongfully Withheld wages pursuant t0 Business and Professions Code section 17203. 63. Accordingly, Plaintiff and proposed class members respectfully request that the Court award judgment and relief in their favor, t0 provide restitution, and other types 0f equitable relief. 64. Plaintiff and the proposed class members are therefore entitled to the relief requested below. NINTH CAUSE OF ACTION (Labor Code Private Attorneys General Act 0f 2004 (the “PAGA”): Cal. Lab. Code § 2698, et. seq.) 65. Plaintiff and the aggrieved employees incorporate by reference the allegations contained in the foregoing paragraphs 0f this complaint as if fully set forth herein. 66. The policies, acts and practices heretofore described were and are unlawful because Defendant’s (1) failure to provide meal breaks, or provide compensation for missed meal breaks, t0 Plaintiff and proposed class members, as required by California Labor Code sections 226.7, 5 12, 558, 1198, and section 11 of applicable Industrial Welfare Commission Wage Orders (“Wage Orders”); (2) failure to provide rest breaks, or provide compensation for missed rest breaks t0 FIRST AMENDED COMPLAINT -18- 3280\PLEADINGS\FAC.DOC hUJN KOOONOUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff and proposed class members, as required by California Labor Code sections 226.7, 558, 1198, and section 12 of applicable Wage Orders; (3) failure t0 maintain accurate records of Plaintiff” s and proposed class members’ payroll records showing hours worked daily and wages earned in Violation 0f California Labor Code section 1174; (4) failure t0 provide accurate itemized wage statements t0 Plaintiff and proposed class members containing information as required by California Labor Code section 226; (5) failure to permit employees to inspect or copy wage statements in Violation of California Labor Code section 226(0); (6) failure t0 permit employees t0 inspect personnel records, in Violation 0f California Labor Code section 1198.5; (7) failure t0 timely pay Plaintiff and proposed class members all wages when due, including but not limited t0 nonpayment 0f wages due t0 Defendant’s time rounding policy and practice, in Violation 0f California Labor Code section 204, 5 10, and 1194; (8) failure to pay members 0f the proposed class all wages due at the time of termination in Violation of California Labor Code sections 201- 203; and, (9) Violation 0f California Labor Code section 1051 in that Defendant obtained employees’ fingerprints as a condition precedent to their securing and retaining employment and shared these fingerprints With a third party; Violate applicable Labor Code sections and gives rise t0 statutory and civil penalties as a result 0f such conduct, including but not limited to penalties as provided by Labor Code sections 203, 210, 226(6), 226(f), 226.3, 558, 1054, 1174.5, 1198.5(k), 2699(a), 2699(f), and 2699.5, and applicable Industrial Welfare Commission Wage Orders. Plaintiff, as an aggrieved employee, hereby seeks recovery of civil penalties as prescribed by the Labor Code Private Attorney General Act 0f 2004 0n behalf of himself and other current and former employees 0f Defendant against whom one 0r more 0f the Violations 0f the Labor Code was committed. Plaintiff further seeks attorneys’ fees t0 achieve the same, pursuant t0 Labor Code section 2699(g)(1). 67. On June 29, 2018, Plaintiff gave written notice to the California Labor and Workforce Development Agency by online submission through their website and by certified mail t0 Defendant, Mission Trail Waste Systems, Inc., of Labor Code Violations as prescribed by California Labor Code section 2699.3. Plaintiff has not received written notification by the LWDA 0f an intention t0 investigate the allegations set forth in Plaintiff” s June 29, 2018, letter or FIRST AMENDED COMPLAINT -19- 3280\PLEADINGS\FAC.DOC ©WN©M$WNH NNNNNNNNNr-‘r-tt-It-nu-‘HHflHfi OONONMJ>WNHO©OONONUI4>WNHO written notice of cure by September 3, 201 8, 65 calendar days after the postmark date 0f the notice given t0 the LWDA, as prescribed by California Labor Code section 2699.3(a)(2)(A). PRAYER FOR RELIEF WHEREFORE Plaintiff prays for judgment and relief as follows: 1. An order certifying that the action may be maintained as a class action; 2. Compensatory and statutory damages, penalties and restitution, as appropriate and available under each cause of action, in an amount to be proven at trial based on, inflfl, the unpaid balance of compensation Defendant owes; 3. Reasonable attorneys’ fees pursuant t0 California Labor Code sections 218.5, 226(c)(1), 1194 and 2699(g)(1); 4. Costs 0fthis suit; 5 Pre- and post-judgment interest; and 6. Such other and further relief as the Court deems just and proper. 7 Plaintiff is informed and believes that the damages, back wages, restitution, value of injunctive relief sought, penalties, interest and attorneys’ fees d0 not exceed an aggregate of $4,999,999.99 and that the pro-rata value 0f Plaintiff s individual claims, including damages, back wages, restitution, injunctive relief, interest, attorneys’ fees, and penalties, does not exceed $74,999.99. JURY DEMAND Plaintiff hereby demands a trial by jury. Date: October 30, 2019 _ W AN LAW FIRM, P" By: - / 4’ Rbb’ufifi’. Wfififn‘hfi/ Y Attorneysfor Thomas Vfllareal, and all others similarly situated FIRST AMENDED COMPLAINT -20- 3280\PLEADINGS\FAC.DOC EXHIBIT 7 hUJN KOOONOUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WORKMAN LAW FIRM, PC Robin G. Workman (Bar #145810) robin@workmanlawpc.com Rachel E. Davey (Bar #3 16096) rachel@w0rkmanlawpc.com 177 Post Street, Suite 800 San Francisco, CA 94108 Telephone: (415) 782-3660 Facsimile: (415) 788-1028 Attorneysfor Plaintifif Thomas Villarreal 0n behalfofhimselfand all others similarly Situated SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA THOMAS VILLAREAL, 0n behalf 0f himself and all others similarly situated, No. 18CV338479 Plaintiff, ASSIGNED FOR ALL PURPOSES TO THE HON. THOMAS E. KUHNLE, DEPT. 5 vs. SUPPLEMENTAL MEMORANDUM OF MISSION TRAIL WASTE SYSTEMS, INC., POINTS AND AUTHORITIES IN and Does 1 through 50, inclusive, SUPPORT OF PLAINTIFF’S MOTION FOR PRELIMINARY APPROVAL OF CLASS Defendants. ACTION SETTLEMENT, AND REQUEST TO FILE FIRST AMENDED COMPLAINT Date: December 20, 2019 Time: 9:00 a.m. Dept: 5 SUPPLE TO PRELIMINARY APPROVAL MOT - 1 - 3279\SETTLEMENT\PREL|MAPPSUPPLTOMOT.DOC hUJN KOOONOUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. THE CLASS IS PROPERLY CERTIFIABLE FOR SETTLEMENT PURPOSES As set forth in the moving papers filed in support 0f Plaintiff” s request for preliminary approval, for settlement purposes only, the parties agree that the Court may certify the following settlement class: “all current and former non-exempt sanitation truck drivers employed by Defendant at any time during the Class Period, Who d0 not submit a request for exclusion.” Defendant represents that there are 63 Class Members.1 Given, as explained below, the proposed class is appropriate for conditional certification for settlement purposes only, Plaintiff requests that the Court grant conditional certification of the proposed Settlement Class, grant Plaintiff s motion for preliminary approval 0f the class action settlement reflected in the executed Joint Stipulation 0f Settlement and Release (“Settlement”) submitted With the original moving papers} approve the revised class notice, appoint the Workman Law Firm as class counsel, appoint Plaintiff Thomas Villareal as class representative, appoint RG/2 Claims Administration, LLC, as Settlement Administrator, and set the following deadlines: January 3, 2020, for Defendant t0 provide the Claims Administrator the Class List; January 13, 2020 for the notice mailing deadline; February 27, 2020, objection/opt-out deadline; and, March 27, 2020, for final approval. II. PERTINENT FACTS As outlined in the moving papers, Mission Trail Waste Systems, Inc. (“Defendant” or “MTWS”), is a provider 0f collection services for recyclables, organic materials, and garbage waste for single-family residential, multi-family residential, and commercial customers. Defendant provides these services to customers in California, specifically, t0 those in Santa Clara and Los Altos. Mr. Villareal, a current employee, works for Defendant as a refuse truck driver. Mr. Villareal drives an assigned route, collecting garbage at Northern California locations, which he then transports back t0 a designated dump, also in Northern California. Defendant employs Mr. Villareal, and the other drivers in the Settlement Class, as non-exempt, hourly-paid drivers. Mr. Villareal, and the other drivers in the Settlement Class, are members 0f a Teamsters-affiliated 1 Declaration 0f Robin G. Workman In Support Of Plaintiff’s Application for Preliminary Approval (“Workman Decl.”) 1] 8, Ex. C. Settlement Agreement, 1] 4-5, 23, 3 1. 2 Workman Decl., 1] 8, EX. C. SUPPLE TO PRELIMINARY APPROVAL MOT -2- 3279\SETTLEMENT\PREL|MAPPSUPPLTOMOT.DOC hUJN KOOONOUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Union, the Sanitary Truck Drivers & Helpers Union, Local No. 350 (“Union”).3 Mr. Villareal filed this action in Santa Clara County Superior Court on November 19, 2018, alleging on behalf 0f himself, and similarly situated MTWS drivers, that Defendant engaged in uniform conduct that applied t0 all drivers in the Settlement Class. Mr. Villareal alleges that Defendant requires drivers t0 work more than five hours per day, and often ten hours per day, without providing drivers the opportunity to take off-duty meal and rest periods, and, When this occurred, Defendant uniformly did not pay drivers premium payments for missed breaks. Mr. Villareal alleges that because Defendant did not pay drivers the meal and rest period premiums that Defendant did not pay drivers for all hours worked, including upon termination due to automatic time deductions for 30-minute meal periods, and failed to provide drivers with accurate, itemized wage statements. Mr. Villareal also alleges that Defendant did not permit employees to inspect or copy their wage statements 0r personnel files.4 Based on time records produced by Defendant, Mr. Villareal also contends that Defendant employed a uniform time rounding practice that disproportionately favored Defendant and thereby did not pay drivers for all hours worked, including at terminations III. LEGAL ARGUMENT A. Public Policv Favors The Class Action Device In Wage And Hour Cases The court in Martinez V. Joe’s Crab Shack Holdings, 231 Cal. App. 4th 362 (2014), explained that it understood from three California Supreme Court decisions, Brinker Rest. Corp. V. Superior Court, 53 Cal. 4th 1004 (2012), Duran V. U.S. Bank Nation Assn, 59 Cal. 4th 1 (2014), and Ayala V. Antelope Valley Newspapers, Inc., 59 Cal. 4th 522 (2014), “that class-wide relief remains the preferred method 0f resolving wage and hour claims, even those in Which the facts appear to present difficult issues 0f proof.” 231 Cal. App. 4th at 384. Based 0n this understanding, Martinez reversed the trial court’s order denying certification and remanded the matter, instructing the court t0 refocus “its analysis 0n the policies and practices 0f the employer and the effect those policies and practices have 0n the putative class, . . .” Martinez, at 384. This instruction mirrors 3 Declaration 0fTom Villareal In Support Of Plaintiff s Application for Preliminary Approval (“Villareal Decl.”) 1] 2. 4 Workman Decl. Ex. A, Plaintiff s Complaint. 5 Workman Decl. 1] 3. SUPPLE TO PRELIMINARY APPROVAL MOT -3- 3279\SETTLEMENT\PREL|MAPPSUPPLTOMOT.DOC hUJN KOOONOUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 that articulated decades ago, where the Richmond V. Dart Industries, Inc., 29 Cal. 3d 462, 473 (1981), court stated: “this state has a public policy which encourages the use of the class action device. . .” Giving context t0 this basic pronouncement,m explained: “[c]laims alleging that a uniform policy consistently applied to a group 0f employees is in Violation 0f the wage and hour laws are 0f the sort routinely, and properly, found suitable for class treatment.” 53 Cal. 4th at 1033. The appellate courts, some of which reversed previous class certification denials in the wake of Lnkcr, confirm this fundamental tenet of California class action law. For example, in Faulkinbury V. Boyd & Assocs., Inc., 216 Ca1.App.4th 220 (2013), the court reversed an order denying certification for 4,000 security guards’ meal period claims, stating: “m teaches that we must focus on the policy itselfand address the issue Whether the legality 0f the policy can be resolved on a class-wide basis.” 216 Cal. App. 4th at 641 (emphasis supplied). Faulkinbugy iterated, “[t]he theory 0f liability-that [the employer] has a uniform policy, and that that policy, measured against wage order requirements, allegedly violates the law-is by its nature a common question eminently suited for class treatment.” I_d. at 642 (quotingm, at 1033). Faulkinbugy cited t0 Bradley V. Networkers Internat, LLC, 211 Cal. App. 4th 1129 (2012), a decision it held “interpreted Brinker in a fashion similar t0 our analysis.” 216 Cal. App. 4th at 643. BLdley also initially held that certification was inappropriate for overtime, meal, and rest break claims. “After reexamining the record in light ofm,” however,m concluded: “the trial court erred in refusing to certify the class with respect t0” all but one 0f the claims. I_d. at 1134. BLdley held: “[u]nder Lnlccr, plaintiffs’ legal challenge to these uniform practices involve common factual and legal issues that are amendable t0 class treatment.” 211 Cal. App. 4th at 1149. The impact 0f Brinker continued in Benton V. Telecom Network Specialists, 220 Cal. App. 4th 701 (2013). The plaintiff inm alleged Telecom misclassified cell phone tower technicians as independent contractors, and did not comply with rest and meal break and overtime requirements. The trial court denied certification. Reversing,m “summarized”m, BLdley, and Faulkinbugy at length and held that the trial court erred in denying Plaintiff” s certification motion. 220 Cal. App. 4th at 718-24. Regarding the overtime claims,m explained that the “diversity of working conditions among class members,” was not a proper basis SUPPLE TO PRELIMINARY APPROVAL MOT -4- 3279\SETTLEMENT\PREL|MAPPSUPPLTOMOT.DOC hUJN KOOONOUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 0n which to deny certification. I_d. at 730-3 1. Brinker, Faulkinburv, Bradley, and Benton all cite to Jaimez V. Daiohs USA, Inc., 181 Cal. App. 4th 1286 (2010). In Jaimez, the plaintiff sought certification ofwage statement, overtime, rest, and meal break claims. Jaifl explained that the trial court erred when denying certification by “focusing on the potential conflicting issues of fact 0r law 0n an individual basis, rather than evaluating ‘Whether the theory of recovery advanced by the plaintiff is likely t0 prove amenable t0 class treatment.” I_d. at 1289 (citation omitted). Jaifl emphasized that “plaintiff s theory of recovery, focused on uniform policies and practices applicable t0 [all class members] Within the relevant time period, as compared t0 individual claims, was and is more amenable t0 class treatment than individual disposition.” I_d. at 1289, 1300. Examining “Brinker and its progeny in detail,” the court in Hall V. Rite Aid Com, 226 Cal. App. 4th 278 (2014), reversed a trial court’s order granting a motion for decertification. Citing Faulkinbury, Benton, and Bradley, the court in Hall explained that, post-Brinker: “Where the theory of liability asserts the employer’s uniform policy violated California’s labor laws, factual distinctions concerning Whether or how employees were or were not adversely impacted by the allegedly illegal policy d0 not preclude certification.” 226 Cal. App. 4th at 288. Thefl court stated that “Brinker’s significance lies in its statements 0n the extent t0 which a trial court may 0r must reach the merits 0f a plaintiff” s claim When deciding whether t0 certify a 79 ‘6case.” I_d. Its “review 0fm compel[ed] the conclusion the trial court erroneously based its decertification order on its assessment of the merits of Hall’s claim rather than 0n the theory of liability advanced by Hall.” 226 Cal. App. 4th at 292. The Hill court “read Lnlccr t0 hold that, at the class certification stage, as long as the plaintiff’s posited theory of liability is amenable t0 resolution 0n a classwide basis, the court should certifi/ the actionfor class treatment even if plaintiffs theory is ultimately incorrect at its substantive level. . . .” 226 Cal. App. 4th at 293. 6“ (Emphasis in original.) Courts continue to adhere t0 this approach, confirming that this state has a public policy Which encourages the use of the class action device.’” ABM Indus. Overtime Cases, 19 Cal. App. 5th 277, 299 (2017), as modified (Jan. 10, 2018) (citing SaV-On Drug Stores, Inc. V. Superior Court, 34 Cal. 4th 3 19, 340 (2004)). E also Lubin V. The Wackenhut C0rp., 5 Cal. App. SUPPLE TO PRELIMINARY APPROVAL MOT -5- 3279\SETTLEMENT\PREL|MAPPSUPPLTOMOT.DOC hUJN KOOONOUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5th 926, 941 (2016), reh'g denied (Dec. 14, 2016), review denied (Mar. 15, 2017) (citingm, 220 Cal. App. 4th at 725)(reversing decertification, and finding that common questions predominated over individual questions with respect t0 security guards’ claims for Violation of California labor laws, the court 0f appeal explained that the: “trial court employed improper criteria by focusing 0n Whether individualized inquiry required t0 determine Which technicians missed meal and rest periods, rather than focusing on plaintiffs’ theory 0f liability, that employer violated wage and hour requirements by failing to adopt a meal and rest period policy”) In addition t0 routinely certifying rest and meal period claims such as Plaintiff asserts, the courts also routinely grant certification ofwage statement claims. In Lu_b1'n, 5 Cal. App. 5th 926, the court reversed the trial court’s decertification of a 226(a) claim. The court inm explained that “because plaintiffs’ meal and rest period claims are suitable for class treatment, their theory that the wage statements failed t0 include premium wages earned for missed meal and rest periods also is suitable for class treatment.” I_d. at 960. fl also Sandoval V. M1 Auto Collisions Centers, 309 F.R.D. 549, 568 (N.D. Cal. 2015) (whether employers provided inaccurate wage statements and injured employees in Violation 0f California law, presented common questions t0 all potential class members, as would support class certification); Schulz V. Qualxserv, LLC and Worldwide Techservices, LLC, 2012 U.S. Dist. LEXIS 58561, *25 (S.D. Cal. Apr. 26, 2012); Bradley V. Networkers Internat, LLC, 211 Cal. App. 4th 1129, 1156 (2012); McKenzie V. Federal Express Cogp., 275 F.R.D. 290, 296-99 (C.D. Cal. 201 1); Jaimez, 181 Cal. App. 4th at 1307; Adoma V. Univ. 0f Phoenix, Inc., 270 F.R.D. 543, 553 (ED. Cal. 2010); Ortega V. J.B. Hunt Transn, Inc., 258 F.R.D. 361, 373-74 (C.D. Cal. 2009). Plaintiff bases his claims 0n Defendant’s uniform policies and practices that apply to all Settlement Class Members. As such, following the tenets set forth by the uniform consensus of the California appellate courts, the claims that are the subject of the Settlement presented to this Court are appropriate for conditional certification for settlement purposes. B. Plaintiff’s Claims Meet the Requirements For Conditional Certification Plaintiff asserts that Defendant’s “uniform p01ic[ies] consistently applied t0 [the putative class]” are “in Violation 0f the wage and hour laws.” Brinker, 53 Cal. 4th at 1033. As such, SUPPLE TO PRELIMINARY APPROVAL MOT -6- 3279\SETTLEMENT\PREL|MAPPSUPPLTOMOT.DOC hUJN KOOONOUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 conditional certification 0f the Settlement Class is appropriate. Plaintiffs asserts that a review of the specific class action requirements confirms this truism. As theM, 34 Cal. 4th at 326, court explains: “[t]he certification question is esentially a procedureal one that does not ask Whether an action is legally or factually meritorious.”m also instructs courts t0 100k to Code 0f Civil Procedure section 382 When making certificaiton decisions. I_d. Section 382 states two prerequisites t0 certification: (1) the existence of an ascertainable class; and, (2) “a well-defined community of interest in the questions of law and fact involved affecting the parties to be represented.” Daar V. Yellow Cab C0., 67 Cal. 2d 695, 704 (1967). Brinker affirmed these requirements. 53 Cal. 4th at 1021. As section 382 does not establish a procedural framework for adjudication 0f class actions, the California Supreme Court directs trial courts t0 utilize procedures in the Consumer Legal Remedies Act (“CLRA”) (Cal. Civil Code § 1750, e_t seq.). Vasquez V. Superior Court, 4 Cal. 3d 800, 820 (1971). Trial courts are also insructed t0 100k t0 Rule 23 0f the Federal Rules 0f Civil Procedure and the cases decided thereunder for guidance. Trotsky V. Los Angeles Federal SaV. & Loan Assn, 48 Cal. App. 3d 134, 140 (1975). The CLRA and Rule 23 requirements provide: [T]he Court shall permit the suit to be maintained 0n behalf 0f all members of the representative class if all 0f the following conditions exist: (1) it is impracticable t0 bring all members of the class before the court; (2) the questions 0f law 0r fact common to the class are substantially similar and predominate over the questions affecting the individual members; (3) the claims 0r defenses of the representative plaintiff are typical of the claims 0r defenses 0f the class; and, (4) the representative plaintiff Will fairly and adequately protect the interest 0f the class. Cal. CiV. Code § 1781(b); F.R.C.P. 23(a). m, Brinker, 53 Cal. 4th at 1021. Class certification merely presents a procedural question that is not conditioned 0n a showing that the class claims are likely t0 succeed on the merits. I_d. at 1023; Linder V. Thrifty Oil C0., 23 Cal. 4th 429, 439-40 (2000). A plaintiff is not required to prove her case,Q at 438-39, but rather need only demonstrate that the claim is suitable for class-Wide resolution. I_d. at 443. This is particularly true for conditional certification for settlement purposes. 1. The Proposed Class Is Ascertainable And Numerous “Class members are ‘ascertainable’ where they may be readily identified Without unreasonable expense 0r time by reference to official records.” Rose V. City 0f Hayward, 126 Cal. App. 3d 926, 932 (1981). “While there is no bright-line rule as to how many class members are SUPPLE TO PRELIMINARY APPROVAL MOT -7- 3279\SETTLEMENT\PREL|MAPPSUPPLTOMOT.DOC hUJN KOOONOUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 required to be sufficiently numerous, various courts have found that the numerosity factor is satisfied if the class comprises 40 0r more members and have found it not satisfied When the class comprises 21 or fewer.” Californians for Disability Rights, Inc. V. Californians Dep’t 0f Transn, 249 F.R.D. 334, 346 (N.D. Cal. 2008) (internal citations omitted);m, at 934 (42 class members quantitatively sufficient). Here, the class members are ascertainable, as Defendant identified them from its records. Defendant identified 63 drivers who worked for Defendant during the proposed class period. As the proposed class is sufficiently numerous, it would be impracticable t0 bring all before the Court. 126 Cal. App. 3d at 934. 2. Common Issues OfLaw And Fact Predominate Perm: “[t]he ‘ultimate question’ the element 0fpredominance presents is Whether ‘the issues which may be jointly tried, When compared with those requiring separate adjudication, are so numerous or substantial that the maintenance 0f a class action would be advantageous to the judicial process and to the litigants.’ [citations] The answer hinges 0n ‘Whether the theory 0f recovery advanced by the proponents of certification is, as an analytical matter likely to prove amenable to class treatment.” 53 Cal. 4th at 1021 (citing SaV-On, 34 Cal. 4th at 327-327, and Jaimez, 181 Cal. App. 4th at 1299, (quoting Ghazarvan V. Diva Limousine, Ltd., 169 Cal. App. 4th 1524, 1531 (2008)). Certification is appropriate when: [T]he issues Which [are] common among the class members would be the principal issues in any individual action, both in terms of time t0 be expended 0n their proof and 0f their importance, and that if a class suit were not permitted, a multiplicity of legal actions dealing With identical basic issues would be required in order t0 permit recovery by each [absent class member]. Vasquez, 4 Cal. 3d at 810.M explained: “[p]red0minance is a comparative concept, and ‘the necessity for class members t0 individually establish eligibility and damages does not mean individual fact questions predominate.’” 34 Cal. 4th at 334. Class certification does not require that claims be identical, just that common questions predominate. I_d. at 338. Here, Plaintiff asserts that the answer t0 the questions Plaintiff presents apply With equal force to all of the Settlement Class Members. Plaintiff alleges that, due to Defendant’s policies and procedures, specifically the routes that Defendant sets and assigns, that Plaintiff, and similarly situated drivers, are not provided timely, legally-Compliant, meal and rest breaks. Plaintiff also SUPPLE TO PRELIMINARY APPROVAL MOT -8- 3279\SETTLEMENT\PREL|MAPPSUPPLTOMOT.DOC hUJN KOOONOUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 alleges that Defendant’s records reflect this policy and practice, and that Defendant uniformly does not pay the additional hour 0f compensation owed When drivers are not provided With the required rest and meal breaks. Plaintiff also alleges that Defendant has a uniform practice 0f automatically deducting 3O minutes 0f time for unpaid meal periods, Whether 0r not such breaks are taken, employs a uniform time-rounding practice, both 0f Which apply t0 all of the drivers. Given the foregoing, Plaintiff asserts that a well-defined community of interest exists such that conditional certification for settlement purposes is appropriate, as the questions 0f law and fact common t0 the Settlement Class Members predominate over questions that may affect individual Class Members. m Jaifl, 181 Cal. App. 4th at 1306. 3. Plaintiff’s Claims Are Tvpical Of Those Of The Settlement Class The interests 0f a class representative need not be identical to other class members to be typical, they only need to be similarly situated. B.W.I. Custom Kitchen V. Owens-Illinois, Inc., 191 Cal. App. 3d 1341, 1347 (1987). Typicality does not focus 0n a plaintiff” s personal characteristics 0r his individual circumstances, but rather 0n the typicality 0f his claims as they relate to the defendant’s conduct. Classen V. Weller, 145 Cal. App. 3d 27, 46 (1983). A plaintiff’s claim is typical if it arises from the same event, practice, 0r course 0f conduct that gives rise to the Claims of other class members, and if his claims are based 0n the same legal theory. I_d. “Most courts have looked t0 the elements 0f the cause 0f action that the class representative must prove in order to establish the defendant’s liability. If they are substantially the same as those needed t0 be proved by class members, the representative’s claim is typical.” (1 Newberg on Class Actions (4th Ed.), section 3.15, p. 359-60.) In wage and hour class actions, courts find the named plaintiff” s claims are typical where the plaintiff alleges that all class members were subj ect to the same compensation policies that caused injury. E, gg, Morales V. Greater Omaha Packing Co., 266 F.R.D. 294, 301- 02 (D. Neb. 2010). Courts emphasize: that class members may have differing amounts 0f damages does not impact typicality 0r defeat certification. Bell V. Farmers Ins. Exchange, 115 Cal. App. 4th, 715 at 743 (2004); Jaimez, 181 Cal. App. 4th at 1300-01 (citing SaV-On, 34 Cal. 4th at 329-30). Plaintiff” s claims are typical of those of the Settlement Class because Plaintiff operated under the same scheduling policy that applied to all of the drivers during the pertinent time period, SUPPLE TO PRELIMINARY APPROVAL MOT -9- 3279\SETTLEMENT\PREL|MAPPSUPPLTOMOT.DOC hUJN KOOONOUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 alleges that he did not receive meal and rest breaks, did not receive the additional hour of compensation for missed breaks, and operated under Defendant’s uniform time rounding policy. Because Plaintiff” s claims arise from the same remedial and legal theories as those 0f the proposed class, he meets the typicality requirement and conditional certification for settlement purposes is appropriate. Arnold V. United Artists Theatre Circuit, Inc., 158 F.R.D. 439, 449 (N.D. Cal. 1994). 4. Plaintiff Has Fairlv And Adequatelv Represented the Class Adequacy of representation depends 0n whether Plaintiff s attorney is qualified t0 conduct the litigation and whether Plaintiff s interests are antagonistic those of the class. McGhee V. Bank m, 60 Cal. App. 3d 442, 450 (1976). Plaintiff satisfies both requirements. As outlined in the moving papers, both Plaintiff and his counsel have adequately represented the class.6 The Settlement Class whom Plaintiff seeks t0 represent is comprised 0f the 63 drivers employed by Defendant in California during the pertinent time period, all 0fwhom Defendant classified as non-exempt drivers, drove in Northern California, were subj ect to the same policies and practices, and were members 0f the same union.7 Plaintiff has fairly and adequately represented and protected the interests 0f the Settlement Class. Plaintiff has no disabling conflict 0f interest that is antagonistic to the Settlement Class Membersg “Only a conflict that goes t0 the very subj ect matter 0f the litigation will defeat a party’s claim 0f representative status.” Richmond, 29 Cal. 3d at 470. “Most differences in situation or interest among class members. .. should not bar class suit.” Wershba V. Apple Computer, 91 Cal. App. 4th 224, 238 (2001). Plaintiff s claims present no possibility 0f such a conflict9 and he is aware 0f his obligations as a class representative.” E Soderstedt V. CBIZ Southern California, LLC, 197 Cal. App. 4th 133, 155-56 (201 1). Plaintiff also retained counsel 11Who is competent and experienced in the prosecution 0f class action wage and hour Violations. 6 Workman Decl., 1H] 2-5; Villareal Decl. 1N 11-14. 7 Workman Decl., 1] 7; Villareal Decl. 1N 3-6, 10. 8 Villareal Decl., 1] 14. 9 Workman Decl., 1] 7; Villareal Decl. 1N 3-6, 10. 10 Villareal Decl., 14. 11 Workman Decl., 1m 10, 11. SUPPLE TO PRELIMINARY APPROVAL MOT - 1 0- 3279\SETTLEMENT\PREL|MAPPSUPPLTOMOT.DOC hUJN KOOONOUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5. For Purposes 0f Settlement, In This Case A Class Action Is Superior t0 Other Methods 0f Resolution Weighing in favor 0f conditional class certification is the fact that conditional certification 0f the Settlement Class is the only economically realistic method for the fair and efficient resolution of this controversy. Lder, 23 Cal. 4th at 445-46. The class action device exists t0 allow for the adjudication and resolution 0f these types 0f claims. I_d. Perm, these wage and hour claims are the types 0f claims routinely, and appropriately, certified for class resolution. 53 Cal. 4th at 1033. Conditional certification in this case allows the claims 0f all the Settlement Class Members t0 be resolved once, 0n behalf 0f all. Blue Chip Stamps V. Superior Court, 18 Cal. 3d 381, 385 (1976). IV. CONCLUSION Given the foregoing, Plaintiff requests that the Court grant preliminary approval 0f the Settlement, appoint the Workman Law Firm, PC, as class counsel, appoint Thomas Villareal as class representative, approve the revised class notice and related settlement administration documents and settlement administration deadlines, and appoint RG/2 Claims Administration, LLC as the Settlement Administrator. Date: December 10, 2019 WORKMAN LAW FIRM, PC By: /s/R0bin G. Workman Robin G. Workman Attorneysfor Plaintifi’Tom Villareal SUPPLE TO PRELIMINARY APPROVAL MOT -1 1- 3279\SETTLEMENT\PREL|MAPPSUPPLTOMOT.DOC EXHIBIT 8 Electronically Filed by Superior Court of CA, County of Santa Clara, on 12/10/2019 1:24 PM Reviewed By: R. Walker Case #18CV338479 Envelope: 3751362 18CV338479 Santa Clara - Civil H \OOOQONUl-bUJN NNNNNNNNNHHHr-lr-Ar-AHHr-tp-A WNQm-PWNHOQWflQm-PWNHO WORKMAN LAW FIRM, PC Robin G. Workman (Bar #145810) robin@w0rkmanlawpc.com Rachel E. Davey (Bar #3 16096) rachel@workmanlawpc.com 177 Post Street, Suite 800 San Francisco, CA 94108 Telephone: (415) 782-3660 Facsimile: (415) 788-1028 Attorneysfor Plaintifif Thomas Villarreal 0n behalfofhimselfand all others similarly situated SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA THOMAS VILLAREAL, 0n behalf 0f himself and all others similarly situated, N0. 18CV338479 Plaintiff, ASSIGNED FOR ALL PURPOSES TO THE HON. THOMAS E. KUHNLE, DEPT. 5 VS. SUPPLEMENTAL DECLARATION OF MISSION TRAIL WASTE SYSTEMS, INC., ROBIN G. WORKMAN IN SUPPORT OF and Does 1 through 50, inclusive, PLAINTIFF’S MOTION FOR PRELIMINARY APPROVAL OF CLASS Defendants. ACTION SETTLEMENT, AND REQUEST TO FILE FIRST AMENDED COMPLAINT Date: November 22, 20 1 9 Time: 9:00 am. Dept: 5 1 DECLARATION OF ROBIN G. WORKMAN \OOONQ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1, Robin G. Workman, declare as follows: 1. I am an attorney at law, duly licensed t0 practice before all the courts of the State of California, and am principal owner of the Workman Law Firm, PC, attorneys of record herein for Plaintiff Thomas Villareal (“Plaintiff’). The following is based on my personal knowledge, and if called upon to d0 so, I could and would competently testify thereto. 2. The parties have revised the Class Notice pursuant t0 the Court’s November 22, 2019 Order Re: Motion for Prelmiinary Approval 0f Class Action Settlement. A true and correct copy 0f a redlined version of the Class Notice is attached hereto as Exhibit A. I declare under penalty 0f perjury under the laws of the State of California that the foregoing is true and correct and that this Declar ' n as e ccuted 0n December 0, 2019, in San Francisco, California. I 11% f ' ROB G. WORKMA'N 2 DECLARATION OF ROBIN G. WORKMAN EXHIBIT A NOTICE OF PENDENCY OF CLASS ACTION SETTLEMENT AND FINAL APPROVAL HEARING Thomas Villareal v. Mission Trail Waste System, Inc., et al. SUPERIOR COURT OF CALIFORNIA, COUNTY OF SANTA CLARA (CASE NO. CGC-18CV338479) IF YOU WORKED FOR MISSION TRIAL AS A SANITATION TRUCK DRIVER, YOU COULD GET A PAYMENT FROM A CLASS ACTION SETTLEMENT. This is a court-authorized notice. This is not a solicitationfrom a lawyer. If approved, a proposed Settlement will provide up to $750,000 to resolve a class action lawsuit filed against Mission Trail Waste Systems, Inc. (“Mission Trail” or “Defendant”) involving claims under California’s labor laws for Defendant’s alleged failure t0 provide meal and rest breaks and pay the extra hour of compensation for missed meal and rest breaks, failure t0 provide accurate wage statements, failure t0 pay all wages owed, failure to allow inspection of payroll and personnel records, and improper use 0f employees’ fingerprints for timekeeping purposes, on behalf of all current and former sanitation truck drivers who worked for Defendant in California from November 19, 2014 to date the Court grants preliminary approval of the Settlement (the “Class Period”). 0 The Settlement is a compromise. The two sides disagree 0n how much money, if any, might have been awarded if the lawsuit went to trial. The Court did not find that Defendant violated the law. Defendant denies that it did anything wrong and maintains that it complied at all times With applicable laws, rules, and regulations. 0 There is no money available now. Your legal rights are affected Whether you act 0r don't act. Read this notice carefully. N0 RETALIA TION: Defendant will notfire, punish, retaliate, 0r otherwise discriminate against any employee because he 0r she chooses t0 participate in this Settlement, chooses not t0 participate, 0r objects t0 the Settlement. i YOUR LEGAL RIGHTS AND OPTIONS IN THIS LAWSUIT i Stay in this lawsuit. Await the outcome. Give up certain rights. DO NOTHING By doing nothing, you keep the possibility of getting money or benefits that may come from the Settlement. But, you give up any rights to sue Defendant separately about the same legal claims in this lawsuit. Get out 0f this lawsuit. Get no benefits from it. Keep your rights. ASK TO BE EXCLUDED Ifyou ask to be excluded and money or benefits are later awarded, you won't share in those. But, you keep any rights to sue Defendant separately, at your own expense, about the same legal claims in this lawsuit. o This Notice explains your options - and the deadlines that you must meet. Questions? Call [Phone Number] Page 1 of 8 o The Court in charge 0f this case still must decide whether to grant final approval of the Settlement. Payments Will be made if the Court approves the Settlement and after any appeals are resolved. Please be patient. o Any questions? Read 0n or call the Settlement Administrator, Rust Consulting, at (000) 000-0000 WHAT THIS NOTICE CONTAINS BASIC INFORMATION ............................................................................................................... Page 3 1. Why did I get this notice package? 2. What is this lawsuit about? 3. What is a class action and who is involved? WHO IS IN THE CLASS SETTLEMENT ............................................................................. Pages 3-4 4. How do Iknow if I am part 0f the Settlement? 5. Are there exceptions t0 being included? 6. I’m still not sure if I am included. THE SETTLEMENT BENEFITS - WHAT YOU GET ..................................................................... Pages 4-5 7. What does the Settlement provide? 8. What am I giving up to get a payment or stay in the Class? 9. How d0 I get a payment? 10. When would I get my payment? 1 1. How much will my payment be? EXCLUDING YOURSELF FROM THE SETTLEMENT ........................................................ Page 5 12. How do I get out 0f the Settlement? 13. If I don't exclude myself, may I sue Defendant for the same thing later? 14. If I exclude myself, may I get money from this lawsuit? OBJECTING TO THE SETTLEMENT ...................................................................................... Page 6 15. How do I tell the Court that I don't like the Settlement? 16. What's the difference between objecting and excluding? IF YOU DO NOTHING ................................................................................................................. Page 6 17. What happens if I do nothing at all? THE LAWYERS REPRESENTING YOU ............................................................................. Pages 6-7 18. D0 I have a lawyer in this case? 19. Should I get my own lawyer? 20. How Will the lawyers be paid? THE COURT'S FAIRNESS HEARING ...................................................................................... Page 7 21. When and where will the Court decide whether to approve the Settlement? 22. Do I have to come t0 the hearing? 23. May I speak at the hearing? GETTING MORE INFORMATION ...................................................................................... Pages 7-8 24. Are more details available? Questions? Call [Phone Number] Page 2 0f 8 BASIC INFORMATION .F Why did I get this notice package? - Defendant’s records show that you either currently work for Defendant, or previously worked for Defendant, as a sanitation truck driver in California during the Class Period. The Court authorized this Notice because you have a right t0 know about the proposed Settlement 0f this class action lawsuit, and about all of your options, before the Court decides whether to approve the Settlement. This Notice explains the lawsuit, the Settlement, your legal rights, what benefits are available, who is eligible for them, and how t0 get them. E What is this lawsuit about? § The Santa Clara County Superior Court is in charge 0f the case. The lawsuit is known as Thomas Villareal v. Mission Trail Waste Systems, Inc, Case No. 18CV338479. The lawsuit alleges that Defendants failed to maintain and provide accurate wage statements to employees; failed to provide meal and rest periods, 0r compensation for same; failed to pay all wages due; failed to allow inspection of personnel and payroll records; improperly used fingerprints for timekeeping; and, committed other Violations 0f California law. On November 22, 2019, at 9:00 a.m., in Department 5 0f the Superior Court 0f California, County of Santa Clara, the Court held a hearing Where it provisionally approved the terms of the proposed Settlement, found that this case can fairly be settled on a class basis, approved this Notice, and scheduled a hearing where the Court will consider whether to grant “final approval” of the proposed Settlement. Further information about that hearing is set forth in section 21, below. E What is a class action and who is involved? - In a class action lawsuit, a person called a “Class Representative” (in this case Thomas Villareal) sues on behalf of other people Who have similar claims. The people together are a “Class” or “Class Members.” The individual who sues is called the Plaintiff. The company he or she sues (in this case Mission Trail Waste Systems, Inc.) is called the Defendant. One court resolves the issues for everyone in the Class-except for those people who exclude themselves from the Class, as described in Question 12 below. WHO IS IN THE CLASS SETTLEMENT? I How do Iknow if I am part of the Settlement? I The Court decided that all current and former sanitation truck drivers of Defendant in California from November 19, 201 8 to preliminary approval, are Class Members. E: Are there exceptions to being included? _ Only those employees 0f Defendant Who meet the requirements 0f Question 4 are a part 0f the Settlement. Questions? Call [Phone Number] Page 3 of 8 If you exclude yourself from the Settlement pursuant to the instructions in Question 12, you will no longer be included in the Settlement. f I'm still not sure if I am included. i If you are still not sure whether you are included, you can get free help by calling or writing to the Settlement Administrator or lawyers in this case using the contact information provided in Questions 15 and 24. THE SETTLEMENT BENEFITS - WHAT YOU GET rWhatdoes’ the Settlement provide? _ Under the proposed Settlement, Defendant agrees t0 pay $750,000 (the “Gross Settlement Amount”) to resolve Settlement Class Members’ claims. The Gross Settlement Amount includes: (a) expenses and fees of the Settlement Administrator up to $15,000; (b) an Incentive Award 0f up to $5,000 t0 Class Representative Villareal; (c) attorneys’ fees ofup t0 $250,000 and litigation costs not to exceed $20,000, t0 Class Counsel; and, (d) a PAGA payment 0f up to $15,000. The Court must approve these payments at the Final Approval Hearing. fl What am I giving up to get a payment or stay in the Class? . Unless you exclude yourself, you are staying in the Class, and that means that you can't sue, continue to sue, or be part of any other lawsuit against Defendant about the legal issues in this case. It also means that all 0f the Court's orders will apply t0 you and legally bind you. See Question 12 ifyou want to find out how to exclude yourself from the Class. Unless you exclude yourself, you will release all claims, demands, rights, liabilities, and any causes of action, whether known 0r unknown, arising from the claims alleged in this lawsuit, including, the failure t0 provide meal and rest breaks, the failure to pay for all wages owed, the failure to allow a review of personnel files and payroll records, the use of fingerprints for timekeeping, and the failure to provide accurate itemized pay statements in Violation 0f the California Labor Code, applicable Wage Order(s), the California Private Attorneys General Act, and the California Business and Professions Code section 17200 et seq. E How do Iget apayment? T0 receive a settlement payment, you d0 not need to take any action. You must however keep a current address 0n file with the Settlement Administrator to ensure that you receive your settlement payment should the Court order final approval of the Settlement. If you move and the Settlement Administrator cannot locate a current address for you, you will not receive a payment. EEG. When would I get my payment? I The Settlement Administrator Will send Individual Settlement Awards after the Court enters an order granting final approval 0f the Settlement. If there is an appeal 0f an order granting final approval 0f the Settlement, payments will be delayed until all appeals are resolved in favor of the Settlement. Please be patient. Questions? Call [Phone Number] Page 4 of 8 |_‘-lmlm-l. The distribution formula in the Settlement is based on the number 0f work weeks that you worked for Defendant as a sanitation truck driver during the Class Period as compared to the total number of work weeks worked by all Class Members for the same period. Your work weeks were determined from Defendant’s records. Based on the settlement distribution formula, your estimated minimum Individual Settlement Payment under the tenns of the Settlement will be: $ Your Individual Settlement Payment may be higher or lower depending 0n a number of factors. Your Individual Settlement Payment will be paid in two installments. It is anticipated that the first payment would occur on or about April 30, 2020, and the second payment would occur on or about August 3 1, 2020. If you disagree with the number of work weeks, you may complete Section B of the Form and submit any records to the Settlement Administrator to support your claim. The amount of your individual settlement award reflected in this notice is just an estimate. Your payment may be higher or lower, depending on the Court’s rulings. EXCLUDING YOURSELF FROM THE SETTLEMENT If you don't want a payment from this Settlement, but you want to keep the right to sue or continue to sue Defendants, at your own expense about the legal issues in this case, then you must take steps t0 get out. This is called excluding yourself- 0r is sometimes referred to as opting out 0f the Settlement. E How do I get out of the Settlement? Z T0 exclude yourself from the Settlement, you must send a letter stating that you want to be excluded from the Villareal v. Mission Trail Waste Systems Class Action settlement and that you understand that by doing so you will not receive any money from the settlement. Be sure to include your name, address, telephone number, and your signature. You must mail your exclusion request postmarked n0 later than <> to: Villareal v. Mission Trail Waste Systems Class Action Rust Consulting [ADDRESS] [TELEPHONE NUMBER] rfidon't exclude myself; may I sue Defendant for the same thing later? t No. Unless you exclude yourself, you give up any right to sue Defendant for the claims this Settlement resolves. If you have a pending lawsuit against Defendant, speak to your lawyer in that case immediately. Remember, the exclusion deadline is <>. If you start your own lawsuit against Defendant after you exclude yourself, you’ll have to hire and pay your own lawyer for that lawsuit, and you’ll have t0 prove your claims. E. If I exclude myself, may I get money from this Settlement? _ No. Ifyou exclude yourself, you Will not receive any money from this Settlement. But, you may sue, continue to sue, or be part of a different lawsuit against Defendant. Questions? Call [Phone Number] Page 5 of 8 OBJECTING TO THE SETTLEMENT iHow d0 I tefl the Court that I don't like the Settlement? - As a Class Member, you may obj ect to the Settlement if you don't like any part of it. T0 submit your obiections in writing, y¥0u must sign the objection and state the following: (1) your full name; (2) the dates of your employment; (3) the last four digits 0f your Social Security number or your Employee ID number; ELM) your factual and legal basis for the obj ection with any supporting documents and evidencefiafid- 99-1-fiyea-1-mefld-Ee appear-a{-th%FmahAjap¥e¥aMFa+mess-Hea¥mg. You may also appear in person at the final approval hearing t0 inform the Court of vour obiections. You must state that you object t0 the Settlement 1n Thomas Villareal v Mission Trail Waste Systems Class Action, Case N0. 18CV338479. You must mail your objection postmarked n0 later than <> to the Settlement Administrator at the following address: Villareal v. Mission Trail Waste Systems Class Action Rust Consulting [ADDRESS] [TELEPHONE NUMBER] (What is the difference between obj BCting and excmding? - Objecting is simply telling the Court that you don't like something about the Settlement. You can obj ect only if you stay in the Class. Excluding yourself is telling the Court that you don't want to be part of the Class. Ifyou exclude yourself, you cannot object because the case n0 longer affects you. You have 45 days from <> to obj ect or exclude yourself from the class. IF YOU DO NOTHING I Whappens ifI do nothing atau? ’g By doing nothing you choose t0 stay in the Class. If you stay in and the Court approves the Settlement, you will receive a portion of the Settlement proceeds. Keep in mind that if you do nothing now, you will not be able to sue, or continue to sue Defendant about the same legal claims that are the subj ect of this lawsuit. You will also be legally bound by all orders and judgments of the Court in this class action. THE LAWYERS REPRESENTING YOU I Do Ihave a lawyer in this case? The Court decided that the Workman Law Firm, PC, 177 Post Street, Suite 800, San Francisco, CA, 415-782- 3660, is qualified to represent you and all Class Members. You Will not be charged for these lawyers. The law firm is referred to as “Class Counsel.” They are experienced in handling similar cases against other employers. More information about the Workman Law Firm, PC, their practices, and their experience is available at www.workmanlawpc.com. You can also find the most important documents in this case, this notice, the complaint, etc., at this website. Questions? Call [Phone Number] Page 6 of 8 i Should I get my own lawyer? - You do not need to hire your own lawyer because Class Counsel is working for you. But, ifyou want your own lawyer, you Will have t0 pay that lawyer. For example, you can ask him or her t0 appear in Court for you ifyou want someone other than Class Counsel t0 speak for you. E How will the lawyers be paid? 7 i , 7 W N ; Class Counsel will ask the Court to approve payment of attorneys’ fees not to exceed $250,000 and litigation costs not to exceed $20,000. THE COURT'S FAIRNESS HEARING The Court will hold a Final Approval Hearing to decide whether t0 approve the Settlement. You may attend and you may ask t0 speak, although you don't have to. EL When and where Will the court decide whether to approve the settlement? g The Final Approval Hearing is scheduled t0 occur on , 2019,_ a.m. in Dept. 5 0f the Superior Court of California, County of Santa Clara, located at 191 N. First St., San Jose, California. The Court may continue or adjourn the final approval hearing without fithher notice to the Class. At this hearing the Court will consider whether the Settlement is fair, reasonable and adequate. If there are objections, the Court Will consider them. The Court will listen to people who have asked to speak at the hearing. The Court may also decide how much to pay Class Counsel. After the hearing, the Court Will decide Whether t0 approve the Settlement. We do not know how long these decisions will take. Ea Do Ihave to come to the Final Approval Hearing? - ---- u-uu .7 . w...nt No. Class Counsel will answer any questions the Court may have. But, you are welcome to come at your own expense. Ifyou file an objection, you do not need to come t0 Court to talk about it. As long as you filed and mailed your written objection, the Court will consider your obj ection 0r may allow you t0 speak at the hearing. You may also pay your own lawyer to attend, but it's not necessary. E May I speak at the Final Approval Hearing? ‘- You may ask the Court for permission t0 speak at the Final Approval Hearing. Unless the Court allows it, you cannot speak at the hearing ifyou excluded yourself. GETTING MORE INFORMATION 1 More details available? The Court-appointed Settlement Administrator for this Settlement is as follows: Villareal v. Mission Trail Waste Systems Class Action Rust Consulting [ADDRESS] [TELEPHONE NUMBER] Questions? Call [Phone Number] Page 7 of 8 If you have questions, you may call the Settlement Administrator toll free at [TELEPHONE NUMBER]. Ask about the Villareal v. Mission Trail Waste Systems Class Action. You may also contact Class Counsel using the contact information provided in Question 15. PLEASE DO NOT CALL THE COURT. You may also View documents filed in this case, including the complete Settlement Agreement, on the Rust Consulting web site (fill in cite) website 0r the Court’s website at:www.scscourt.org/online services/case inf0.shtml. You may also review documents in person at the Office of the Clerk at the Superior Court of California, City and County of Santa Clara, 191 N. First St, San Jose, California 95 1 13, between the hours of 8:30 a.m. and 3:00 p.m., Monday through Friday, excluding Court holidays. Questions? Call [Phone Number] Page 8 of 8 EXHIBIT 9 Electronically Filed by Superior Court of CA, County of Santa Clara, on 12/19/2019 3:34 PM Reviewed By: R. Walker Case #18CV338479 Envelope: 3794614 18CV338479 Santa Clara - Civil N \OOONQUIAUJ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WORKMAN LAW FIRM, PC Robin G. Workman (Bar #145810) robin workmanlawpc.com r Rache E. Davey (Bar #3 16096) rachel@w0rkmanlawpc.com 177 Post Street, Suite 800 San Francisco, CA 94108 Telephone: (415) 782-3660 Facsimile: (415) 788-1028 Attorneysfor Plaintiff Thomas Villarreal 0n behalfofhimselfand all others similarly situated SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA THOMAS VILLAREAL, 0n behalf 0f himself and all others similarly situated, N0. 18CV338479 Plaintiff, ASSIGNED FOR ALL PURPOSES TO THE HON. THOMAS E. KUHNLE, DEPT. 5 vs. SECOND SUPPLEMENTAL MISSION TRAIL WASTE SYSTEMS, INC., DECLARATION OF ROBIN G. and Does 1 through 50, inclusive, WORKMAN IN SUPPORT OF PLAINTIFF’S MOTION FOR Defendants. PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT, AND REQUEST TO FILE FIRST AMENDED COMPLAINT Date: December 20, 2019 Time: 9:00 am. Dept: 5 1 DECLARATION OF ROBIN G. WORKMAN \OOONONU‘I-war- NNNNNNNNNHt-Ir-AHr-tr-t-‘r-np-Ar-A OONQU‘IAUJNHOOOONONUI-PWNHO I, Robin G. Workman, declare as follows: 1. I am an attorney at law, duly licensed to practice before all the courts of the State 0f California, and am principal owner 0f the Workman Law Finn, PC, attorneys 0f record herein for Plaintiff Thomas Villareal (“Plaintiff”). The following is based on my personal knowledge, and if called upon to do so, I could and would competently testify thereto. 2. The parties have revised the Class Notice pursuant t0 the Court’s December 19, 201 9 Order Re: Motion for Preliminary Approval 0f Class Action Settlement. A true and correct copy 0f a redlined version of the Class Notice is attached hereto as Exhibit A. I declare under penalty 0f perjury under the laws 0f the State 0f California that the foregoing is true and correct and that this Declara .' a ' a - er 19, 201 9, in San Francisco, California. 2 DECLARATION OF ROBIN G. WORKMAN EXHIBIT A NOTICE OF PENDENCY OF CLASS ACTION SETTLEMENT AND FINAL APPROVAL HEARING Thomas Villareal v. Mission Trail Waste System, Inc., et al. SUPERIOR COURT OF CALIFORNIA, COUNTY OF SANTA CLARA (CASE NO. CGC-18CV338479) IF YOU WORKED FOR MISSION TRIAL AS A SANITATION TRUCK DRIVER, YOU COULD GET A PAYMENT FROM A CLASS ACTION SETTLEMENT. This is a court-authorized notice. This is not a solicitationfrom a lawyer. If approved, a proposed Settlement will provide up to $750,000 to resolve a class action lawsuit filed against Mission Trail Waste Systems, Inc. (“Mission Trail” or “Defendant”) involving claims under California’s labor laws for Defendant’s alleged failure t0 provide meal and rest breaks and pay the extra hour of compensation for missed meal and rest breaks, failure t0 provide accurate wage statements, failure t0 pay all wages owed, failure to allow inspection of payroll and personnel records, and improper use of employees’ fingerprints for timekeeping purposes, on behalf of all current and former sanitation truck drivers who worked for Defendant in California from November 19, 2014 to date the Court grants preliminary approval of the Settlement (the “Class Period”). o The Settlement is a compromise. The two sides disagree 0n how much money, if any, might have been awarded if the lawsuit went to trial. The Court did not find that Defendant violated the law. Defendant denies that it did anything wrong and maintains that it complied at all times With applicable laws, rules, and regulations. o There is no money available now. Your legal rights are affected whether you act 0r don't act. Read this notice carefully. N0 RETALIA TION: Defendant will notfire, punish, retaliate, 0r otherwise discriminate against any employee because he 0r she chooses t0 participate in this Settlement, chooses not t0 participate, or objects t0 the Settlement. E YOUR LEGAL RIGHTS AND OPTIONS IN THIS LAWSUIT i Stay in this lawsuit. Await the outcome. Give up certain rights. DO NOTHING By doing nothing, you keep the possibility 0f getting money or benefits that may come from the Settlement. But, you give up any rights to sue Defendant separately about the same legal claims in this lawsuit. Get out of this lawsuit. Get no benefits from it. Keep your rights. ASK TO BE EXCLUDED Ifyou ask to be excluded and money 0r benefits are later awarded, you won't share in those. But, you keep any rights to sue Defendant separately, at your own expense, about the same legal claims in this lawsuit. o This Notice explains your options - and the deadlines that you must meet. Questions? Call [Phone Number] Page 1 of 8 o The Court in charge 0f this case still must decide whether to grant final approval of the Settlement. Payments will be made if the Court approves the Settlement and after any appeals are resolved. Please be patient. o Any questions? Read 0n 0r call the Settlement Administrator, Rust Consulting, at (000) 000-0000 WHAT THIS NOTICE CONTAINS BASIC INFORMATION ............................................................................................................... Page 3 1. Why did I get this notice package? 2. What is this lawsuit about? 3. What is a class action and who is involved? WHO IS IN THE CLASS SETTLEMENT ............................................................................. Pages 3-4 4. How do I know if I am part of the Settlement? 5. Are there exceptions t0 being included? 6. I’m still not sure if I am included. THE SETTLEMENT BENEFITS - WHAT YOU GET ..................................................................... Pages 4-5 7. What does the Settlement provide? 8. What am I giving up t0 get a payment or stay in the Class? 9. How d0 I get a payment? 10. When would I get my payment? 1 1. How much Will my payment be? EXCLUDING YOURSELF FROM THE SETTLEMENT ........................................................ Page 5 12. How d0 I get out of the Settlement? 13. If I don't exclude myself, may I sue Defendant for the same thing later? 14. If I exclude myself, may I get money from this lawsuit? OBJECTING TO THE SETTLEMENT ...................................................................................... Page 6 15. How d0 I tell the Court that I don't like the Settlement? 16. What's the difference between obj ecting and excluding? IF YOU DO NOTHING ................................................................................................................. Page 6 17. What happens if I d0 nothing at all? THE LAWYERS REPRESENTING YOU ............................................................................. Pages 6-7 18. D0 I have a lawyer in this case? 19. Should I get my own lawyer? 20. How will the lawyers be paid? THE COURT'S FAIRNESS HEARING ...................................................................................... Page 7 21. When and where will the Court decide whether to approve the Settlement? 22. D0 I have to come t0 the hearing? 23. May I speak at the hearing? GETTING MORE INFORMATION ...................................................................................... Pages 7-8 24. Are more details available? Questions? Call [Phone Number] Page 2 of 8 BASIC INFORMATION i7Why did I getthis noticepackage? 7:- Defendant’s records show that you either currently work for Defendant, or previously worked for Defendant, as a sanitation truck driver in California during the Class Period. The Court authorized this Notice because you have a right t0 know about the proposed Settlement of this class action lawsuit, and about all 0f your options, before the Court decides whether to approve the Settlement. This Notice explains the lawsuit, the Settlement, your legal rights, what benefits are available, who is eligible for them, and how t0 get them. f What is this lawsuit about? i The Santa Clara County Superior Court is in charge 0f the case. The lawsuit is known as Thomas Villareal v. Mission Trail Waste Systems, Ina, Case No. 18CV338479. The lawsuit alleges that Defendants failed to maintain and provide accurate wage statements to employees; failed t0 provide meal and rest periods, 0r compensation for same; failed to pay all wages due; failed to allow inspection ofpersonnel and payroll records; improperly used fingerprints for timekeeping; and, committed other Violations of California law. On November 22, 2019, at 9:00 a.m., in Department 5 0f the Superior Court 0f California, County of Santa Clara, the Court held a hearing where it provisionally approved the terms of the proposed Settlement, found that this case can fairly be settled 0n a class basis, approved this Notice, and scheduled a hearing where the Court will consider whether to grant “final approval” of the proposed Settlement. Further information about that hearing is sat forth in section 21, below. l What is a class action and who is involved? _ In a class action lawsuit, a person called a “Class Representative” (in this case Thomas Villareal) sues on behalf of other people who have similar claims. The people together are a “Class” or “Class Members.” The individual who sues is called the Plaintiff. The company he 0r she sues (in this case Mission Trail Waste Systems, Inc.) is called the Defendant. One court resolves the issues for everyone in the Class-except for those people who exclude themselves from the Class, as described in Question 12 below. WHO IS IN THE CLASS SETTLEMENT? I How d0 I know if I am pan 0f the Settlement? I The Court decided that all current and former sanitation truck drivers of Defendant in California from November 19, 2018 to preliminary approval, are Class Members. E Are there exceptions to being included? I Only those employees 0f Defendant who meet the requirements of Question 4 are a part of the Settlement. Questions? Call [Phone Number] Page 3 of 8 If you exclude yourself from the Settlement pursuant t0 the instructions in Question 12, you will n0 longer be included in the Settlement. é I‘m still not sure if I am included. ; If you are still not sure whether you are included, you can get free help by calling 0r writing t0 the Settlement Administrator or lawyers in this case using the contact information provided in Questions 15 and 24. THE SETTLEMENT BENEFITS - WHAT YOU GET -' What does the Settlement provide? I Under the proposed Settlement, Defendant agrees t0 pay $750,000 (the “Gross Settlement Amount”) to resolve Settlement Class Members’ claims. The Gross Settlement Amount includes: (a) expenses and fees of the Settlement Administrator up t0 $15,000; (b) an Incentive Award of up to $5,000 t0 Class Representative Villareal; (c) attorneys’ fees ofup t0 $250,000 and litigation costs not t0 exceed $20,000, to Class Counsel; and, (d) a PAGA payment 0fup t0 $15,000. The Court must approve these payments at the Final Approval Hearing. j What am I giving up to get a payment or stay in the Class? a Unless you exclude yourself, you are staying in the Class, and that means that you can't sue, continue to sue, or be part 0f any other lawsuit against Defendant about the legal issues in this case. It also means that all 0f the Court's orders will apply to you and legally bind you. See Question 12 ifyou want t0 find out how to exclude yourself from the Class. Unless you exclude yourself, you Will release all claims, demands, rights, liabilities, and any causes of action, whether known 0r unknown, arising from the claims alleged in this lawsuit, including, the failure t0 provide meal and rest breaks, the failure to pay for all wages owed, the failure to allow a review ofpersonnel files and payroll records, the use of fingerprints for timekeeping, and the failure t0 provide accurate itemized pay statements in Violation 0f the California Labor Code, applicable Wage Order(s), the California Private Attorneys General Act, and the California Business and Professions Code section 17200 et seq. i How do I apaymems» - e T0 receive a settlement payment, you d0 not need to take any action. You must however keep a current address on file with the Settlement Administrator to ensure that you receive your settlement payment should the Court order final approval of the Settlement. If you move and the Settlement Administrator cannot locate a current address for you, you will not receive a payment. FM). When would I get my payment? i The Settlement Administrator Will send Individual Settlement Awards after the Court enters an order granting final approval of the Settlement. If there is an appeal of an order granting final approval 0f the Settlement, payments will be delayed until all appeals are resolved in favor 0f the Settlement. Please be patient. Questions? Call [Phone Number] Page 4 of 8 The distribution formula in the Settlement is based 011 the number of work weeks that you worked for Defendant as a sanitation truck driver during the Class Period as compared to the total number of work weeks worked by all Class Members for the same period. Your work weeks were determined from Defendant’s records. Based on the settlement distribution formula, your estimated minimum Individual Settlement Payment under the terms of the Settlement will be: $ Your Individual Settlement Payment may be higher or lower depending 0n a number of factors. Your Individual Settlement Payment Will be paid in two installments. It is anticipated that the first payment would occur 0n 0r about April 30, 2020, and the second payment would occur on or about August 3 1 , 2020. If you disagree with the number of work weeks, you may complete Section B of the Form and submit any records to the Settlement Administrator to support your claim. The amount of your individual settlement award reflected in this notice is just an estimate. Your payment may be higher or lower, depending 0n the Court’s rulings. EXCLUDING YOURSELF FROM THE SETTLEMENT If you don't want a payment from this Settlement, but you want to keep the right to sue 0r continue t0 sue Defendants, at your own expense about the legal issues in this case, then you must take steps t0 get out. This is called excluding yourself- 0r is sometimes referred t0 as opting out 0f the Settlement. E How do I get out of the Settlement? § To exclude yourself from tha Settlement, you must send a letter stating that you want to be excluded from the Villareal v. Mission Trail Waste Systems Class Action settlement and that you understand that by doing so you will not receive any money from the settlement. Be sure to include your name, address, telephone number, and your signature. You must mail your exclusion request postmarked n0 later than <> to: Villareal v. Mission Trail Waste Systems Class Action Rust Consulting [ADDRESS] [TELEPHONE NUMBER] ilfl don't exolude myself, mayI sue Defendant for the same thing later? i No. Unless you exclude yourself, you give up any right to sue Defendant for the claims this Settlement resolves. If you have a pending lawsuit against Defendant, speak t0 your lawyer in that case immediately. Remember, the exclusion deadline is <>. If you start your own lawsuit against Defendant after you exclude yourself, you’ll have to hire and pay your own lawyer for that lawsuit, and you’ll have to prove your claims. E If I exclude myself, may I get money from this Settlement? No. If you exclude yourself, you Will not receive any money from this Settlement. But, you may sue, continue to sue, or be part of a different lawsuit against Defendant. Questions? Call [Phone Number] Page 5 of 8 OBJECTING TO THE SETTLEMENT .fl How do I tell the Court that I don't like the Settlement? - As a Class Member, you may object to the Settlement if you don't like any part of it. To submit vour objections in writing, y¥ou must sign the objection and state the following: (1) your full name; (2) the dates of your employment; (3) the last four digits 0f your Social Security number 0r your Employee ID number; ELM) your factual and legal basis for the obj ection with any supporting documents and evidencefafld;Wage appear-at-t-he-F-i-Hal-Appfeamaess-Heafi-ng. You may also appear in person at the final approval hearing to inform the Court 0f your objections whether or not you submit a written objection. You must state that you object to the Settlement in Thomas Villareal v. Mission Trail Waste Systems Class Action, Case No. 18CV338479. You must mail your obj ection postmarked no later than <> to the Settlement Administrator at the following address: Villareal v. Mission Trail Waste Systems Class Action Rust Consulting [ADDRESS] [TELEPHONE NUMBER] F What is the difference between objecting and, excluding? i" W I Obj ecting is simply telling the Court that you don't like something about the Settlement. You can obj ect only if you stay in the Class. Excluding yourself is telling the Court that you don't want to be part of the Class. Ifyou exclude yourself, you cannot object because the case n0 longer affects you. You have 45 days from <> to obj ect or exclude yourself from the class. IF YOU DO NOTHING t Whathappens if I do nothing at all? a I By doing nothing you choose to stay in the Class. If you stay in and the Court approves the Settlement, you Will receive a portion 0f the Settlement proceeds. Keep in mind that ifyou do nothing now, you Will not be able to sue, or continue to sue Defendant about the same legal claims that are the subj ect of this lawsuit. You will also be legally bound by all orders and judgments of the Court in this class action. THE LAWYERS REPRESENTING YOU I Do I have a lawyer in this case? ‘- The Court decided that the Workman Law Firm, PC, 177 Post Street, Suite 800, San Francisco, CA, 415-782- 3660, is qualified t0 represent you and all Class Members. You will not be charged for these lawyers. The law firm is referred to as “Class Counsel.” They are experienced in handling similar cases against other employers. More information about the Workman Law Firm, PC, their practices, and their experience is available at www.workmanlawpc.com. You can also find the most important documents in this case, this notice, the complaint, etc., at this website. Questions? Call [Phone Number] Page 6 of 8 t7 Should I get my ownlam? You d0 not need to hire your own lawyer because Class Counsel is working for you. But, ifyou want your own lawyer, you will have t0 pay that lawyer. For example, you can ask him 0r her t0 appear in Court for you ifyou want someone other than Class Counsel to speak for you. E. How Will the lawyers be paid? N ii, 1 Class Counsel will ask the Court t0 approve payment of attorneys’ fees not t0 exceed $250,000 and litigation costs not t0 exceed $20,000. THE COURT'S FAIRNESS HEARING The Court will hold a Final Approval Hearing to decide whether t0 approve the Settlement. You may attend and you may ask to speak, although you don't have to. E When and where Will the court decide Whether to approve the- settlement‘?‘ g The Final Approval Hearing is scheduled to occur on , 2019,_ am. in Dept. 5 of the Superior Court 0f California, County of Santa Clara, located at 191 N. First St., San Jose, California. The Court may continue or adjourn the final approval hearing Without further notice to the Class. At this hearing the Court will consider whether the Settlement is fair, reasonable and adequate. If there are obj ections, the Court will consider them. The Court Will listen t0 people Who have asked t0 speak at the hearing. The Court may also decide how much t0 pay Class Counsel. After the hearing, the Court will decide whether t0 approve the Settlement. We do not know how long these decisions will take. E D0 I have to come to the Final Approval Hearing? Z N0. Class Counsel Will answer any questions the Court may have. But, you are welcome t0 come at your own expense. Ifyou file an obj ection, you do not need to come t0 Court to talk about it. As long as you filed and mailed your written objection, the Court will consider your objection or may allow you to speak at the hearing. You may also pay your own lawyer to attend, but it's not necessary. E MayI speak at the Final Approval Hearing? J You may ask the Court for permission t0 speak at the Final Approval Hearing. Unless the Court allows it, you cannot speak at the hearing ifyou excluded yourself. GETTING MORE INFORMATIONI Are more details available? The Court-appointed Settlement Administrator for this Settlement is as follows: Villareal v. Mission Trail Waste Systems Class Action Rust Consulting [ADDRESS] Questions? Call [Phone Number] Page 7 of 8 [TELEPHONE NUMBER] If you have questions, you may call the Settlement Administrator toll free at [TELEPHONE NUMBER]. Ask about the Villareal v. Mission Trail Waste Systems Class Action. You may also contact Class Counsel using the contact information provided in Question 15. PLEASE DO NOT CALL THE COURT. You may also View documents filed in this case, including the complete Settlement Agreement, 0n the Rust Consulting web site (fill in cite) website or the Court’s website at:www.scscourt.org/online services/case info.shtml. You may also review documents in person at the Office of the Clerk at the Superior Court 0f California, City and County of Santa Clara, 191 N. First St., San Jose, California 951 13, between the hours 0f 8:30 am. and 3:00 p.m., Monday through Friday, excluding Court holidays. Questions? Call [Phone Number] Page 8 of 8 EXHIBIT 10 \DOOflQUl-bUJNH NNNNNNNNNr-KHr-tr-tr-tr-KHr-tr-tr-t OOQQUI-PUJNHOKDOOQQUI-bUJNHO Electronically Filed by Superior Court of CA, County of Santa Clara, on 12/20/2019 2:34 PM Reviewed By: R. Walker Case #1 8CV338479 Envelope: 3799782 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA THOMAS VILLAREAL, 0n behalf 0f himself Case No. 2018-1-CV-338479 and all others similarly situated, ORDER RE: CONTINUED MOTION Plaintiff, FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT, AND VS. REQUEST TO FILE FIRST AMENDED COMPLAINT MISSION TRAIL WASTE SYSTEMS, INC., and DOES 1 through 50, inclusive, Defendants. The above-entitled matter came 0n for hearing 0n Friday, December 20, 2019, at 9:00 am. in Department 5, the Honorable Thomas E. Kuhnle presiding. The Court reviewed and considered the written submissions filed by the parties and issued a tentative ruling on Thursday, December 19, 2019. N0 party contested the tentative ruling; therefore, the Court orders the tentative ruling be adopted as the Order 0f the Court, as follows: I. INTRODUCTION This is a putative class action arising out 0f various alleged Labor Code Violations. The Complaint, filed 0n November 19, 2018, sets forth causes of action titled: (1) Meal Break Violations; (2) Rest Break Violations; (3) Inaccurate Wage Statements; (4) Failure to Permit Employee Inspection 0f Payroll Records; (5) Failure t0 Permit Employee Inspection 0f Personnel 1 ORDER RE: CONTINUED MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT \DOOflQUl-bUJNH NNNNNNNNNr-KHr-tr-tr-tr-KHr-tr-tr-t OOQQUI-PUJNHOKDOOQQUI-bUJNHO Records; (6) Improper Acquisition and Use of Employees’ Fingerprints; (7) Unlawful, Unfair, and Fraudulent Business Practices; and (8) Labor Code Private Attorneys General Act 0f 2004. The parties have reached a settlement. Plaintiff previously moved for preliminary approval of the settlement, and the Court ruled on a portion 0f the motion, but found supplemental briefing was needed regarding conditional certification 0f the class. Plaintiff has filed a supplemental memorandum 0f points and authorities in connection With that issue. Plaintiff has also filed a supplemental declaration addressing the Court’s concerns With the class notice. These are the only two remaining issues before the Court for preliminary approval. II. DISCUSSION A. Conditional Certification 0f Class Plaintiff requests the putative class be conditionally certified for purposes of the settlement. Rule 3.769(d) 0f the California Rules of Court states that “[t]he court may make an order approving or denying certification of a provisional settlement class after [a] preliminary settlement hearing.” California Code of Civil Procedure Section 382 authorizes certification of a class “when the question is one 0f a common 0r general interest, 0fmany persons, 0r When the parties are numerous, and it is impracticable t0 bring them all before the court . . . .” As interpreted by the California Supreme Court, Section 382 requires: (1) an ascertainable class; and (2) a well-defined community 0f interest among the class members. (Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 326.) The “community-of- interest” requirement encompasses three factors: (1) predominant questions of law 0r fact; (2) class representatives With claims or defenses typical of the class; and (3) class representatives Who can adequately represent the class. (Sav-On Drug Stores, Inc. v. Superior Court, supra, 34 Cal.4th at p. 326.) “Other relevant considerations include the probability that each class member Will come forward ultimately to prove his 0r her separate claim t0 a portion 0f the total recovery and whether the class approach would actually serve t0 deter and redress alleged wrongdoing.” (Linder v. Thrifty Oil C0. (2000) 23 Cal.4th 429, 435.) The plaintiff has the burden of 2 ORDER RE: CONTINUED MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT \DOOflQUl-bUJNH NNNNNNNNNr-KHr-tr-tr-tr-KHr-tr-tr-t OOQQUI-PUJNHOKDOOQQUI-bUJNHO establishing that class treatment Will yield “substantial benefits” t0 both “the litigants and to the court.” (Blue Chip Stamps v. Superior Court (1976) 18 Cal.3d 381, 385.) As explained by the California Supreme Court, The certification question is essentially a procedural one that does not ask Whether an action is legally or factually meritorious. A trial court ruling 0n a certification motion determines Whether the issues which may be jointly tried, When compared With those requiring separate adjudication, are so numerous 0r substantial that the maintenance 0f a class action would be advantageous t0 the judicial process and t0 the litigants. (Sav-On Drug Stores, Inc. v. Superior Court, supra, 34 Ca1.4th at p. 326, internal quotation marks, ellipses, and citations omitted.) There are 63 class members. Class members can be ascertained from Defendant’s records. There are common issues in this case regarding Defendant’s allegedly uniform practices 0f failing t0 provide legally-compliant meal and rest breaks, failing to pay additional compensation for missed breaks, and automatically deducting time for unpaid meal periods. N0 issue has been raised regarding the typicality 0r adequacy of Plaintiff as class representative. The Court conditionally certifies the proposed class. B. Class Notice The content of a class notice is subj ect to court approval. “If the court has certified the action as a class action, notice of the final approval hearing must be given t0 the class members in the manner specified by the court.” (Cal. Rules of Court, rule 3.769(f).) The Court previously found the notice must be changed to state that class members may appear at the final approval hearing to obj ect Without mailing any written obj ection and without providing any advance notice. The amended notice now states: “You may also appear in person at the final approval hearing to inform the Court 0f your objections.” The tentative ruling stated the sentence must be modified t0 state: “You may also appear in person at the final approval hearing to inform the Court 0f your objections Whether 0r not you submit a written obj ection.” After issuing the tentative ruling, the Court received a red-line class notice showing the required change has been made. (Second Supplemental Declaration 0f Robin G. Workman in Support 0f 3 ORDER RE: CONTINUED MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT \DOOflQUl-bUJNH NNNNNNNNNr-KHr-tr-tr-tr-KHr-tr-tr-t OOQQUI-PUJNHOKDOOQQUI-bUJNHO Plaintiff s Motion for Preliminary Approval 0f Class Action Settlement, and Request to File First Amended Complaint. EX. A.) The class notice is now approved. C. Conclusion The motion for preliminary approval 0f Class action settlement is GRANTED (this order incorporates the content 0f the Court’s prior order 0n the motion). The final approval hearing is set for March 27, 2020, at 9:00 a.m. in Department 5. Dated: December 20, 2019 JAM é guM/J... Thomas E. Kuhnle Judge of the Superior Court 4 ORDER RE: CONTINUED MOTION FOR PRELIMINARY APPROVAL 0F CLASS ACTION SETTLEMENT
