Trial BriefBriefCal. Super. - 4th Dist.December 15, 2017o Oo o o ~ aN w n c w No - E m d e md b e d mb b e t e e d e s 0 N O N n n pA W N 19 Edward W. Choi, State Bar No. 211334 Paul M. Yi, Esq. SBN 207867 LAW OFFICES OF CHOI & ASSOCIATES, APLC ELECTRONICALLY FILED 515 S. Figueroa St., Suite 1250 Superior Court of California, Los Angeles, CA 90071 County of Orange Telephone: (213) 381-1515 01/17/2019 at 02:06:00 PM Facsimile: (213) 465-4885 Clerk of the Superior Court By & Clerk, Deputy Clerk Attorneys for Plaintiff RAUL TOCOL SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE NORTH JUSTICE CENTER - UNLIMITED CIVIL Defendants. RAUL TOCOL, an individual, ) Case No.: 30-2017-00961727-CU-OE-NIC ) Plaintiff, Assigned for All Purposes to Honorable Craig ) Griffin in Department N17 vs. ) ) ’ GOOD HANDS SENIOR CARE, LLC, a ) PLAINTIFI’S TRIAL BRIEF Limited Liability Company, CYNTHIA B. ) TADEQO, an individual, DANIEL ) TRIAL DATE: January 22, 2019 JINWANG YOO, an individual, and DOES ) TIME: 9:00 a.m. 1 through 30, inclusive, ) DEPT: N17 ) ) ) ) 1 PLAINTIFFS TRIAL BRIEF O - © ~~ aN w n + wo t o - o N N N N N N e e em e m e m e m e e e e e e L INTRODUCTION This is a wage and hour action for failure to pay overtime wages, failure to provide meal breaks, and Labor Code statutory penalties. Plaintiff RAUL TOCOL was an employee of Defendants GOOD HANDS SENIOR CARE, LLC, a Limited Liability Company, CYNTHIA B. TADEOQ, an individual, and DANIEL JINWANG YOO, an individual (collectively "Defendants"). In 2016, Defendant GOOD HANDS SENIOR CARE LLC was an actively licensed RCFE with the California Department of Social Services. The RCFE was located at 13092, Newland Garden Grove, 92844. Defendant Daniel Yoo was the Licensee that was approved to operate the RCFE. Defendant CYNTHIA B. TADEO purchased the RCFE from GOOD HANDS SENIOR CARE LLC. Pursuant to the California Health and Safety Code §1569.191, Defendant CYNTHIA B. TADEO could not operate the RCFE as her own until the Department of Social Services issued a license for her to operate the RCFE. Therefore, after the escrow was closed, Defendant CYNTHIA B. TADEO entered into a management agreement with GOOD HANDS SENIOR CARE LLC wherein she would become the Administrator and Defendants GOOD HANDS SENIOR CARE and DANIEL YOO would continue to be the “Licensee” that was authorized under the Department of Social Services. It is undisputed that Plaintiff worked for Defendants as a caregiver from March 16, 2017 through December 1, 2017 (“RELEVANT TIME PERIOD”). lt is further undisputed that during the RELEVANT TIME PERIOD, Plaintiff was paid “per diem” wages for each day of work, instead of being paid on an hourly basis. Further, it is undisputed that Defendant did not maintain time records of the start and stop time of Plaintiff's shifts. Further, it is undisputed that regardless of the number of days worked per week, i.e. 7 days per week, Plaintiff was only paid a “per diem” rate and never paid overtime wages during the RELEVANT TIME PERIOD. Finally, it is undisputed that Plaintiff never received compliant wage statements. The matters that are disputed are the number of hours worked by Plaintiff and whether Plaintiff was provided with compliant meal breaks where he was fully relieved of his duties, as required under California law. However, given that it is undisputed that Defendants do not have contemporaneous time records, as required under Labor Code §1174, Plaintiff's time estimates are presumed to be true. Based on the foregoing, liability is clear and judgment should be entered in favor of Plaintiff. 2 PLAINTIFF'S TRIAL BRIEF NO 0 N N N Wn B R A W N No N o N o N o N Y N o N o - - - - - N t - - - - 8 ~ ON Wn 2 Ww N o - o Oo 0 ~ ) oN w n w o N o - oo IL. LITIGATION HISTORY On December 15, 2017, Plaintiff RAUL TOCOL filed the instant Complaint against Defendants GOOD HANDS SENIOR CARE, LLC, CYNTHIA B. TADEO and DANIEL JINWANG YOO, for (1) failure to pay overtime wages in violation of Labor Code §1194; (2) failure to provide meal and rest periods in violation of Labor Code §226.7; (3) violation of Labor Code §203; and (4) failure to keep accurate records in violation of Labor Code §226. On January 18, 2018, Defendant CYNTHIA B. TADEO ("TADEQ") filed her answer. On March, 9, 2018, default was entered for Defendants GOOD HANDS SENIOR CARE, LLC, a Limited Liability Company and DANIEL JINWANG YOO, an individual. Thus, the current trial, should it proceed, depending on the Court’s ruling on Plaintiff's Ex-Parte Application to Strike Defendant’s Answer and to Enter Default Pursuant to Local Rule 381 for Defendant’s Failure to Comply with Local Rule 317, this III. DISCUSSION A. PLAINTIFFS’ DUTIES Plaintiff was at all times during his employment, a non-exempt employee, employed as a caregiver. Specifically, Plaintiff's duties were to provide care giving, cleaning, bathing the elderly, and other tasks as assigned by Defendants. B. PLAINTIFFS’ OVERTIME CLAIM Labor Code §1194 requires that a non-exempt employee be paid minimum wages. For salaried workers like Plaintiff, Labor Code §515 mandates the base and OT rate calculations as follows: the monthly salary is multiplied by 12 months, divided by 52 weeks, and the legal hourly wage is determined by dividing the weekly pay by 40 hours. (Labor Code §515 (d)(1)) Further, “a payment of a fixed salary to a nonexempt employee shall be deemed to provide compensation only for the employee's regular, non-overtime hours, notwithstanding any private agreement to the contrary”. (Labor Code §515 (D2). It is well established that an employee's on-call or standby time may require compensation. Mendiola v. CPS Security Solutions, Inc. (2015) 60 Cal. 4th 833,840. Thus, for example, even if Plaintiff was sitting and watching tv while he was waiting to help a resident ask for assistance to go to the bathroom, the time spent waiting is compensable. 3 PLAINTIFF'S TRIAL BRIEF NO c e Jd O N n n B W No N N No No N o No N O - - p- - -_- - - -_- fi J & ~ RN wh E e ( 2 [g e] - oS N O oo ~) SN w n EN w o N o - o Non-exempt employee are entitled to payment of overtime wages for all hours worked over 40 hours per week and double the regular rate for all hours worked more than 8 hours on the seventh (7th) consecutive day of work. Mendiola v. CPS Security Solutions, Inc. at 840. Plaintiff alleges that during his employment, he regularly worked 6 to 7 days per week, 24 hours per day and was only paid a per diem for the days that he worked. Plaintiff also did not receive his double time wages for all hours over 8 hours worked on the seventh consecutive day of work. Defendant CYNTHIA TADEO admitted in her deposition that she did not have any time records regarding the number of hours that Plaintiff worked. Thus, pursuant to California’s long standing law holds that “Where the employer has failed to keep records required by statute, the consequences for such failure should fall on the employer, not the employee. In such a situation, imprecise evidence by the employee can provide a sufficient basis for damages.” Hernandez v. Mendoza (1988) 199 Cal. App. 3d 721, 727 “[A]n employee has carried out his burden if he proves that he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference. (/d) The burden then shifts to the employer to come forward with evidence of the precise amount of work performed or with evidence to negative the reasonableness of the inference to be drawn from the employee's evidence. (/d.) If the employer fails to produce such evidence, the court may then award damages to the employee, even though the result be only approximate.” (Id) The Hernandez ruling was recently upheld and applied in Furry v. East Bay Publishing, LLC (2018 Cal. App. Lexis 1230; California Court of Appeal (1st District, Division 1) Case No, A151986 Slip Opinion, December 12, 2018) The evidence will clearly show Defendants did not pay any of the overtime and double-time wages that were owed to Plaintiff and judgment should be entered in his favor. C. MEAL AND REST BREAKS Labor Code §226.7.: Plaintiff may recover damages equal to one additional hour’s pay per day, at his regular hourly pay rate including liquidated damages, for each work day that the meal periods was not provided to him. An employer’s duty is an obligation to provide a meal period to its employees. Brinker Restaurant Corporation v. Superior Court, (2012) 53 Cal. 4"™ 1004, 1040. The employer satisfies this obligation if it relieves its employees of all duty, relinquishes control over their activities 4 PLAINTIFF’S TRIAL BRIEF \O o o ~ nN w n ES wo N = N O N N N N N N N N = e m e m e m e m e m e s e m e m 0 ~3 RN wn RA wo No - o \O o o ~ J oN wn wh wo b o -_ o and permits them a reasonable opportunity to take an uninterrupted 30-minute break, and does not impede or discourage them from doing so. /d. The first meal period must start after no more than five hours worked. Id. at 1042 [emphasis added] Plaintiff alleges that he was not provided uninterrupted off-duty meal breaks during the entire duration of his employment with Defendant. Thus, Plaintiff alleges the following meal break damages. D. LABOR CODE STATUTORY PENALTIES Employers must pay, without abatement or reduction, and in accordance with Labor Code §§ 201, 201.5, 202 and 205.5, wages of any employee who quits or is discharged. Refusal to pay triggers statutory penalty of 30 days wages (See, also, C.A.C.I. Instruction No 2704; Labor Code §203). Violation of Labor Code § 203 does not require that Defendant’s refusal to pay be based on a deliberate evil purpose to defraud workmen of wages which the employer knows to be due. Gonzalez v. Downtown LA Motors, LP, 215 Cal. App. 4th 36, 54 (2013). As used in section 203, “willful” merely means that the employer intentionally failed or refused to perform an act which was required to be done.” “ Id. (Emphasis in original, citing Armenta v. Osmose, Inc., 135 Cal. App. 4th 314 (2005)). Labor Code § 226(a) states as follows: (a) Every employer shall, semimonthly or at the time of each payment of wages, furnish each of his or her employees, either as a detachable part of the check, draft, or voucher paying the employee's wages, or separately when wages are paid by personal check or cash, an accurate itemized statement in writing showing (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 on a piece-rate basis, (4) all deductions, (5) net wages earned, (6) the inclusive dates of the period for which the employee is paid, (7) the name of the employee and only the last four digits of his or her social security number or 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 of hours worked at each hourly rate by the employee In the present case, Defendant violated Labor Code §226(a)(2) and (9) on an independent basis because Plaintiff's wage statements did not list the total hours worked by Plaintiff and did not include the applicable hourly rates worked by Plaintiff. Further, on a derivative basis, each of Plaintiff’s wage statements violated Labor Code §226 (a)(1) and (5) because Plaintiff was not paid proper gross wages 5 PLAINTIFF'S TRIAL BRIEF O 0 0 N S N h h bs W N - that included overtime pay. E. INTEREST Labor Code section 1194 provides that Plaintiff may recover from Defendant not only Code penalties and damages and unpaid balances of overtime compensation discussed above, but also, in addition, interest thereon at the legal rate (10%). Dated: January 17, 2019 Respectfully Submitted, LAW OFFICES OF CHOI & ASSOCIATES By: Gd IW. Edward W. Choi, Attorneys for Plaintiff RAUL TOCOL 6 PLAINTIFF'S TRIAL BRIEF PROOF OF SERVICE I am employed in the County of Los Angeles; I am over the age of 18 years and not a party to the within action; my business address is 515 S. Figueroa St. Suite 1250, Los Angeles, California 90071. On January 17, 2019, I served the foregoing document(s) described as: PLAINTIFF'S TRIAL BRIEF, on the interested parties in this action by placing a true copy thereof, in a sealed envelope(s) addressed as follows: James Benedetto Benedetto Law Group 2372 Morse Ave., Suite 130 Irvine, CA 92614 BY MAIL _ As follows: Iam “readily familiar” with the practice of Choi & Associates, Attorneys at Law for collection and processing of correspondence for mailing with the United States Postal Service and that correspondence placed in the outgoing mail tray in my office for collection would be deposited in the United States Mail that same day in the ordinary course of business. _X BY ELECTRONIC SERVICE I caused such document to be uploaded to One Legal to be served on the offices of the addressees. __X _ (State) I declare under penalty of perjury that the foregoing is true and correct. (Federal) I declare under penalty of perjury that the foregoing is true and correct, and that I am employed in the office of a member of the bar of this Court at whose direction the service was made. Executed on January 17, 2019, at Los Angeles, California, pd Cina Kim PROOF OF SERVICE
