Amended Complaint Filed No Fee

Cal. Super. - 6th Dist.April 2, 2021

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21 CV379043 Santa Clara - Civil AEGIS LAW FIRM, PC KASHIF HAQUE, State Bar No. 218672 SAMUEL A. WONG, State Bar N0. 2 1 7104 JESSICA L. CAMPBELL, State Bar N0. 280626 KRISTY R. CONNOLLY, State Bar N0. 328477 9811 Irvine Center Drive, Suite 100 Irvine, California 92618 Telephone: (949) 379-6250 Facsimile: (949) 379-6251 Email: kconnolly@aegislawfirm.com Electronically Filed by Superior Court of CA, County of Santa Clara, on 7/26/2021 10:50 AM Reviewed By: R. Walker Case #21 CV379043 Envelope: 6921 156 Attorneys for Plaintiff Jason Amyx, individually, and 0n behalf of all others similarly situated. SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA JASON AMYX, individually and 0n Case N0.: 21CV379043 behalf of all others similarly situated, Assigned For A11 Purposes To: Plaintiff, Hon. Sunil R. Kulkarni; Department 1 V, [Amended as a matter 0f right, pursuant t0 BOARDWALK AUTO CENTER, INC.; and DOES 1 through 20, inclusive, Labor Code section 2699.3(a)(2)(C)] FIRST AMENDED COMPLAINT FOR Defendants. VIOLATION OF THE CALIFORNIA LABOR CODE PRIVATE ATTORNEYS GENERAL ACT 0F 2004 (CAL. LAB. CODE §§ 2698, ETSEQ.) FIRST AMENDED COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff Jason Amyx, individually, and 0n behalf of all other aggrieved employees, alleges as follows: NATURE OF ACTION AND INTRODUCTORY STATEMENT 1. Plaintiff Jason Amyx (“Plaintiff”) brings this representative action against defendant Boardwalk Auto Center, Inc., and DOES 1 through 20, inclusive (collectively, “Defendants”), 0n behalf of himself and all other aggrieved employees employed by Defendants throughout California 2. Defendants are in the business of operating an automotive dealership. 3. Through this action, Plaintiff alleges that Defendants engaged in a systematic pattern 0f wage and hour Violations under the California Labor Code and Industrial Welfare Commission (“IWC”) Wage Orders. 4. Plaintiff is informed and believes, and thereon alleges, that Defendants have increased their profits by Violating state wage and hour laws by, among other things: (a) failing to pay all wages (including minimum wages and overtime wages); (b) failing to pay wages for non-productive time, including time spent in rest breaks; (c) failing to provide lawful meal periods 0r compensation in lieu thereof; (d) failing to authorize 0r permit lawful rest breaks or provide compensation in lieu thereof; (e) failing to pay wages t0 commission or piece-rate workers for time spent in rest breaks and/or recovery periods; (f) failing to reimburse necessary business-related costs; (g) failing to provide accurate itemized wage statements; and (h) failing t0 pay all wages due upon separation 0f employment. 5. Plaintiff is informed and believes, and thereon alleges, that Defendants violated Labor Code §§ 201, 202, 203, 204, 210, 223, 226, 226.2, 226.3, 226.7, 510, 512, 558, 1174, 1174.5, 1182.12, 1194, 1194.2, 1197, 1197.1, 1198, 2800, and 2802, and all applicable Wage Orders and applicable law. _ 1 _ FIRST AMENDED COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6. Plaintiff brings this representative action against Defendants 0n behalf of himself and other aggrieved employees to recover, among other things, civil penalties, attorney’s fees and costs and expenses pursuant t0 the Private Attorneys General Act 0f 2004, Cal. Lab. Code. § 2698 et seq. (“PAGA”). JURISDICTION AND VENUE 7. This is a representative action brought under the Private Attorneys General Act 0f 2004, Cal. Lab. Code. § 2698 et seq. (“PAGA”). The monetary damages and restitution sought by Plaintiff exceeds the minimal jurisdictional limits of the Superior Court and Will be established according t0 proof at trial. 8. This Court has jurisdiction over this action pursuant to the California Constitution, Article VI, § 10, Which grants the Superior Court original jurisdiction in all causes except those given by statutes to other courts. The statutes under which this action is brought do not specify any other basis for jurisdiction. 9. This Court has jurisdiction over all Defendants because, upon information and belief, they are citizens of California, have sufficient minimum contacts in California, or otherwise intentionally avail themselves 0f the California market s0 as t0 render the exercise 0f jurisdiction over them by the California courts consistent with traditional notions of fair play and substantial justice. 10. Venue is proper in this Court because, upon information and belief, Defendants reside, transact business, 0r have offices in this county, and the acts and omissions alleged herein took place in this county. THE PARTIES 11. Plaintiff is a resident of California and worked for Defendants during the relevant time periods as alleged herein. 12. Plaintiff is informed and believes, and thereon alleges, that at all times hereinafter mentioned, Defendants were and are subject t0 the Labor Code and IWC Wage Orders as employers, Whose employees were and are engaged throughout this county and the State 0f California. -2- FIRST AMENDED COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13. Plaintiff is unaware of the true names 0r capacities of the defendants sued herein under the fictitious names DOES 1 through 20, but Will seek leave 0f this Court t0 amend this Complaint and serve such fictitiously named defendants once their names and capacities become known. 14. Plaintiff is informed and believes, and thereon alleges, that DOES 1 through 20 are or were the partners, agents, owners, shareholders, managers, or employees 0f Defendants at all relevant times. 15. Plaintiff is informed and believes, and thereon alleges, that each defendant acted in all respects pertinent to this action as the agent of the other defendant, carried out a joint scheme, business plan, or policy in all respects pertinent hereto, and the acts of each defendant are legally attributable to the other defendant. Furthermore, defendants in all respects acted as the employer and/or joint employer 0f Plaintiff and other aggrieved employees. 16. Plaintiff is informed and believes, and thereon alleges, that each and all of the acts and omissions alleged herein were performed by, 0r are attributable to, Defendants and/or DOES 1 through 20, acting as the agent or alter ego for the other, With legal authority to act 0n the other’s behalf. The acts 0f any and all Defendants were in accordance With, and represent, the official policy 0f Defendants. 17. At all relevant times, Defendants, and each 0f them, acted within the scope 0f such agency 0r employment, 0r ratified each and every act 0r omission complained 0f herein. At all relevant times, Defendants, and each of them, aided and abetted the acts and omissions of each and all the other Defendants in proximately causing the damages herein alleged. 18. Plaintiff is informed and believes, and thereon alleges, that each 0f said Defendants is in some manner intentionally, negligently, 0r otherwise responsible for the acts, omissions, occurrences, and transactions alleged herein. GENERAL ALLEGATIONS 19. At all relevant times mentioned herein, Defendants employed Plaintiff and other aggrieved employees as non-exempt employees 0r employees paid in Whole or in part on a -3- FIRST AMENDED COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 commission 0r piece rate basis throughout California at Defendants’ California business location(s). 20. Defendants continue to employ non-exempt employees 0r employees paid in Whole 0r in part 0n a commission 0r piece rate basis Within California. 21. Plaintiff is informed and believes, and thereon alleges, that at all times herein mentioned, Defendants were advised by skilled lawyers, employees, and other professionals who were knowledgeable about California’s wage and hour laws, employment and personnel practices, and the requirements of California law. 22. Plaintiff is informed and believes, and thereon alleges, that Defendants knew 0r should have known that Plaintiff and other aggrieved employees were entitled to receive wages for all time worked (including minimum wages and overtime wages) and that they were not receiving all wages earned for work that was required t0 be performed. In Violation 0f the Labor Code and IWC Wage Orders, Plaintiff and other aggrieved employees were not paid all wages (including minimum wages and overtime wages) for all hours worked, including, but not limited t0, non-productive time, as well as when Defendants required Plaintiff and other aggrieved employees t0 work off-the-clock, through meal periods, and during off-duty hours, but failed t0 compensate Plaintiff and other aggrieved employees for these hours. Further Defendants failed t0 properly calculate the overtime rate owed t0 Plaintiff and other aggrieved employees due t0 failure to properly included commissions, bonuses, and/or piece rate. 23. Plaintiff is informed and believes, and thereon alleges, that Defendants knew 0r should have known that Plaintiff and other aggrieved employees were entitled t0 receive all required meal periods 0r payment 0f one (1) additional hour 0f pay at Plaintiff’s and other aggrieved employees’ regular rate of pay when they did not receive a timely, uninterrupted meal period. In Violation 0f the Labor Code and IWC Wage Orders, Plaintiff and other aggrieved employees did not receive all meal periods or payment of one (1) additional hour of pay at Plaintiffs and other aggrieved employees’ regular rate 0fpay when they did not receive a timely, uninterrupted meal period. -4- FIRST AMENDED COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 24. Plaintiff is informed and believes, and thereon alleges, that Defendants knew 0r should have known that Plaintiff and other aggrieved employees were entitled t0 receive all rest breaks 0r payment of one (1) additional hour of pay at Plaintiff” s and other aggrieved employees’ regular rate of pay When a rest break was late, missed, 0r interrupted. In Violation of the Labor Code and IWC Wage Orders, Plaintiff and other aggrieved employees did not receive all rest breaks or payment of one (1) additional hour of pay at Plaintiff” s and other aggrieved employees’ regular rate of pay When a rest break was missed, late, 0r interrupted. 25. Plaintiff is informed and believes, and thereon alleges, that Defendants knew or should have known they had a duty to separately compensate Plaintiff and other aggrieved employees Who were commission 0r piece-rate workers for time spent during rest breaks, When rest breaks were taken. In Violation 0f the Labor Code, Defendants did not pay commission or piece-rate workers for time spent during rest breaks, when rest breaks were taken. 26. Plaintiff is informed and believes, and thereon alleges, that Defendants knew 0r should have known that Plaintiff and other aggrieved employees were entitled to reimbursement and/or indemnification for all necessary business expenditures 0r losses as a direct consequence 0f the discharge 0f their duties, 0r 0f their obedience t0 the directions 0f Defendants. In Violation 0f the Labor Code and IWC Wage Orders, Plaintiff and other aggrieved employees incurred necessary business expenses 0r losses, but were not reimbursed nor indemnified of such expenses 0r losses that were incurred as a direct consequence 0f the discharge 0f their duties, or 0f their obedience to the directions of Defendants. 27. Plaintiff is informed and believes, and thereon alleges, that Defendants knew or should have known that Plaintiff and other aggrieved employees were entitled t0 receive itemized wage statements that accurately showed the following information pursuant to the Labor Code: (1) gross wages earned; (2) total hours worked by the employee; (3) the number of piece-rate units earned and any applicable piece rate if the employee is paid 0n a piece-rate basis; (4) all deductions, provided that all deductions made 0n written orders of the employee may be aggregated and shown as one item; (5) net wages earned; (6) the inclusive dates of the period for Which the employee is paid; (7) the name 0f the employee and only the last four digits of his or -5- FIRST AMENDED COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 her social security number 0r an employee identification number other than a social security number; (8) the name and address of the legal entity that is the employer; and (9) all applicable hourly rates in effect during the pay period and the corresponding number 0f hours worked at each hourly rate by the employee. In Violation of the Labor Code, Plaintiff and other aggrieved employees were not provided with accurate itemized wage statements. 28. Defendants knew 0r should have known that Plaintiff and other aggrieved employees were entitled t0 timely payment 0f wages due upon separation of employment. In Violation of the Labor Code, Plaintiff and other aggrieved employees did not receive payment 0f all wages Within the permissible time periods. 29. Plaintiff is informed and believes, and thereon alleges, that Defendants knew 0r should have known they had a duty to compensate Plaintiff and other aggrieved employees, and Defendants had the financial ability t0 pay such compensation but willfully, knowingly, and intentionally failed t0 d0 so in order t0 increase Defendants’ profits. FIRST CAUSE OF ACTION ENFORCEMENT OF LABOR CODE $8 2698 ETSEO. (“PAGA”) 30. Plaintiff hereby re-alleges and incorporate by reference the previous paragraphs as though fully set forth herein. 31. Pursuant t0 Labor Code § 2699(a), any provision of the Labor Code that provides for a civil penalty t0 be assessed and collected by the Labor and Workforce Development Agency (“LWDA”) 0r any 0f its departments, divisions, commissions, boards, agencies, 0r employees for Violation of the Labor Code may, as an alternative, be recovered through a civil action brought by an aggrieved employee 0n behalf 0f himself 0r herself and other current 0r former employees pursuant to the procedures specified in Labor Code § 2699.3. 32. For all provisions 0f the Labor Code except those for which a civil penalty is specifically provided, Labor Code § 2699(f) imposes upon Defendants a penalty of one hundred dollars ($100.00) for each aggrieved employee per pay period for the initial Violation and two hundred dollars ($200.00) for each aggrieved employee per pay period for each subsequent pay period in which Defendants violated these provisions 0f the Labor Code. -6- FIRST AMENDED COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 33. Defendants’ conduct violates numerous Wage Order and Labor Code sections, including, but not limited to, the following: 34. a. Violation 0f Labor Code §§ 201-203, 204, 210, 510, 1182.12, 1194, 1194.2, 1197, 1197.1, and 1198 for failure t0 timely pay all earned wages (including minimum wage and overtime wages) owed to Plaintiff and other aggrieved employees during employment and upon separation of employment as herein alleged; Violation 0f Labor Code §§ 226.7 and 512 for failure to provide meal periods to Plaintiff and other aggrieved employees and failure to pay premium wages for missed meal periods as herein alleged; Violation of Labor Code § 226.7 for failure to permit rest breaks t0 Plaintiff and other aggrieved employees and failure t0 pay premium wages for missed rest periods as herein alleged; Violation 0f Labor Code § 226.2 for failure to pay wages to commission 0r piece-rate workers for time spent in rest breaks and/or recovery periods t0 Plaintiff and other aggrieved employees as herein alleged; Violation 0f Labor Code §§ 2800 and 2802 for failure to reimburse all necessary business expenses t0 Plaintiff and other aggrieved employees as herein alleged; Violation of Labor Code §§ 226 and 226.3 for failure to provide accurate itemized wage statements t0 Plaintiff and other aggrieved employees as herein alleged; and Violation 0f Labor Code §§ 1174 and 1174.5 for failure to maintain accurate and complete records showing, among other things, the hours worked daily by and the wages paid t0 aggrieved employees. Plaintiff is an “aggrieved employee” because he was employed by the alleged Violator and had one or more 0f the Violations committed against him, and therefore is properly suited to represent the interests 0f all other aggrieved employees. -7- FIRST AMENDED COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 35. Plaintiff has exhausted the procedural requirements under Labor Code § 2699.3 as t0 Defendants and is therefore able t0 pursue a claim for penalties on behalf of himself and all other aggrieved employees under PAGA. 36. Pursuant t0 Labor Code §§ 2699(a), 2699.3 and 2699.5, Plaintiff is entitled t0 recover civil penalties, in addition to other remedies, for Violations of the Labor Code sections cited above. 37. For bringing this action, Plaintiff is entitled t0 attorney’s fees and costs incurred herein. PRAYER FOR RELIEF Plaintiff, on his own behalf and on behalf of all other aggrieved employees, prays for relief and judgment against Defendants as follows: 1. For civil penalties against Defendants on behalf 0f all other aggrieved employees; 2. For reasonable attorneys’ fees and costs of suit to the extent permitted by law, including pursuant to Code 0f Civil Procedure § 1021.5 and Labor Code §§ 2698, et seq.; and 3. For such other relief as the Court deems just and proper. Dated: July 22, 2021 AEGIS LAW FIRM, PC Kristy R. Connolly Attorneys for Plaintiff Jason Amyx -8- FIRST AMENDED COMPLAINT \OOOQONUI-PUJNH NNNNNNNNNt-I-Ht-I-Ht-I-Ht- OONQM$UJNHOKOOOQONMJ>WNHO CERTIFICATE OF SERVICE I, the undersigned, am employed in the County 0f Orange, State 0f California. I am over the age of 18 and not a party t0 the Within action; am employed With Aegis Law Firm PC and my business address is 9811 Irvine Center Drive, Suite 100, Irvine, California 92618. On July 26, 2021, I served the foregoing document entitled: o [Amended as a matter of right, pursuant to Labor Code section 2699.3(a)(2)(C)] FIRST AMENDED COMPLAINT FOR VIOLATION OF THE CALIFORNIA LABOR CODE PRIVATE ATTORNEYS GENERAL ACT OF 2004 (CAL. LAB. CODE §§ 2698, ET SEQ.) on all the appearing and/or interested parties in this action by delivering D the originalg a true copy thereof on the party(ies) addressed below as follows: Collin Cook Adam Sloustcher Haylee Saathoff FISHER & PHILLIPS LLP One Embarcadero Center, Suite 2050 San Francisco, CA 941 11 Telephone: (415) 490-9000 Facsimile: (415) 490-9001 ccook@fisherphillips.com asloustcher@fisherphillips.com hsaathoff@fisherphillios.com Attorneysfor Defendant: BOARDWALK AUTO CENTER, INC. D (BY MAIL) I am readily familiar with the firm’s practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service 0n that same day With postage thereon fully prepaid at Irvine, California in the ordinary course of business. I am aware that 0n motion 0f the party served, service is presumed invalid if postage cancellation date or postage meter date is more than one day after date of deposit for mailing this affidavit. (Cal Code Civ. Proc. § 1013(a); Fed. R. Civ. Proc. 5(a); Fed. R. Civ. Proc. 5(0).) D (BY OVERNIGHT MAIL) I am personally and readily familiar With the business practice of Aegis Law Firm PC for collection and processing correspondence for overnight delivery, and I caused such document(s) described herein t0 be deposited for delivery to a facility regularly maintained Federal Express for overnight delivery. (Cal Code Civ. Proc. § 1013(0); Fed. R. Civ. Proc. 5(0).) g (BY ELECTRONIC TRANSMISSION) I caused said document(s) to be served Via electronic transmission Via the above listed email addresses on the date below. (Cal. Code Civ. Proc. § 1010.6(6); Fed. R. Civ. Proc. 5(b)(2)(E); Fed. R. Civ. Proc. 5(b)(3).) D (BY PERSONAL SERVICE) I delivered the foregoing document by hand delivery to the addressed named above. (Cal Code Civ. Proc. § 1011; Fed. R. Civ. Proc. M 5(b)(2)(A)-) /// CERTIFICATE 0F SERVICE \OOOQONUI-PUJNH NNNNNNNNNt-I-Ht-I-Ht-I-Ht- OONQM$UJNHOKOOOQONMJ>WNHO I declare under penalty of peljury under the laws 0f the State of California that the foregoing is true and correct. Executed on July 26, 2021, at Irvine, California. Andr rocco -2- CERTIFICATE OF SERVICE