WILLIAMS v. S.C. (MARSHALLS OF CA)Real Party in Interest, Marshalls of CA, LLC, Request for Judicial NoticeCal.February 16, 2016Case No. §227228 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA MICHAEL WILLIAMS,anindividual, Petitioner, Vv. SUPERIOR COURT OF CALIFORNIA _ FOR THE COUNTY OF LOS ANGELES, #78 28.) Outs Goats Respondent. Court ofAppeal of the State of California 2nd Civil No. B259967 Superior Court of the State of California County of Los Angeles __TheHonorableWilliamF.Highberger,Judge Presiding Civil Case No. BC503806 REAL PARTYIN INTEREST MARSHALLSOF CA, LLC’S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF ANSWER BRIEF ON THE MERITS; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF AMY TODD-GHER; PROPOSED ORDER ROBERT G. HULTENG AMY TODD-GHER Bar No. 071293 Bar No. 208581 rhulteng@littler.com atodd-gher@littler.com Littler Mendelson,P.C. KYLE W. NAGEOTTE 650 California Street, 20th Floor Bar No. 285599 San Francisco, CA 94108.2693 knageotte@littler.com Telephone: 415.433.1940 Littler Mendelson, P.C. Facsimile: 415.399.8490 501 West Broadway,Suite 900 San Diego, CA 92101 Telephone: 619.232.0441 Facsimile: 619.232.4302 Attorneys for Real Party In Interest MARSHALLS OF CA, LLC Case No. 8227228 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA MICHAEL WILLIAMS,anindividual, Petitioner, V. SUPERIOR COURT OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES, Respondent. Court of Appeal of the State of California 2nd Civil No. B259967 Superior Court of the State of California County of Los Angeles TheHonorableWilliamF. Highberger, Judge Presiding Civil Case No. BC503806 REAL PARTY IN INTEREST MARSHALLSOF CA, LLC’S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF ANSWER BRIEF ON THE MERITS; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF AMY TODD-GHER; PROPOSED ORDER ROBERT G. HULTENG AMY TODD-GHER Bar No. 071293 Bar No. 208581 rhulteng@littler.com atodd-gher@littler.com Littler Mendelson, P.C. KYLE W. NAGEOTTE 650 California Street, 20th Floor Bar No. 285599 San Francisco, CA 94108.2693 knageotte@littler.com Telephone: 415.433.1940 Littler Mendelson,P.C. Facsimile: 415.399.8490 501 West Broadway, Suite 900 San Diego, CA 92101 Telephone: 619.232.0441 Facsimile: 619.232.4302 Attorneys for Real Party In Interest MARSHALLS OF CA, LLC TO THE HONORABLE TANI GORRE CANTIL-SAKAUYE, CHIEF JUSTICE; THE HONORABLE ASSOCIATE JUSTICES OF THE CALIFORNIA SUPREME COURT; APPELLANT MICHAEL WILLIAMSAND HIS ATTORNEYS OF RECORD: Pursuant to California Evidence Code sections 450, et seg., and California Rules of Court, Rules 8.252 and 8.520, Real Party in Interest Marshalls of CA, LLC (“Marshalls”) respectfully moves this Court to take judicial notice of the following documents: Exhibit A: Exhibit B: Exhibit C: Exhibit D: Legislative History of Senate Bill 796 (Dunn — 2003). Legislative History of Senate Bill 1809 (Dunn — 2004). Second Amended Class Action Complaint, Sebastian Rodriguez and Jose Luis Mosqueda on behalf of themselves and all other similarly situated v. Belaire-West Landscape,_ Inc., Superior Court of the State of California, County of Los Angeles, Case No. BC321310, filed July 7, 2006. Ruling on Submitted Matter; Plaintiffs’ Motion to Compel Defendant Belaire To Provide The Names, Addresses, and Telephone Numbers of Putative Class Members, Superior Court of the State of California, County of Los Angeles, Case No. BC321310, filed September 13, 2006. This request is made onthe following grounds: (1) The Evidence Code authorizes this Court to take judicial notice ofthese materials offered by Marshalls; and (2) The materials offered by Marshalls are directly relevant to the issues raised in Marshalls’ Answer Brief on The Merits. The documents are described, and indicated, under penalty of perjury to be true and correct copies of the originals in the declaration of Marshalls’ counsel, Amy Todd-Gher, included herein. The documents were not presented to the trial court, nor do they relate to proceedings occurring after the order that is the subject of the appeal. This requestis based upon the instant motion; the memorandum of points and authorities; and the declaration of Marshalls’ counsel, Amy Todd-Gher, included herein. Dated: February 16, 2016 LITTLER MENDELSON,P.C. 650 California Street, 20th Floor San Francisco, CA 94108.2693 By: Rr»rXA ROBERT G. HULTENG rhulteng@littler.com AMY TODD-GHER atodd-gher@littler.com KYLE W. NAGEOTTE knageotte@littler.com Attorneys for Real Party In Interest MARSHALLSOF CA, LLC MEMORANDUMOF POINTS AND AUTHORITIES IN SUPPORT OF REAL PARTYIN INTEREST MARSHALLS’ REQUEST FOR JUDICIAL NOTICE Evidence Code section 459 provides reviewing courts the power to take judicial notice of documents, just as a trial court may under Evidence Code sections 450, et seg. (Cal. Evid. Code, § 459.) California Rules of Court, Rules 8.252 and 8.520 provide that a reviewing court may take judicial notice of documents relevant to the issues under review. (Cal. Rules of Court, Rules 8.252(a)(2)(A), 8.520(g).) The Court has granted review of the following general issues: “(1) Is the plaintiff in a representative action under the Labor Code Private Attorneys General Act of 2004 (Lab. Code § 2698, et seq. (“PAGA”)) entitled to discovery of the names and contact information of other “aggrieved employees”at the beginning of the proceedingoristhe plaintiff ‘first required to. show good cause in order to have access to such information? and (2) In ruling on such a request for employee contact information, should the trial court first determine whether the employees have a protectable privacy interest and, if so, balance that privacy interest against competing or countervailing interests, or is a protective privacy interest assumed? (See Hill v. National Collegiate Athletic Association (1994) 7 Cal. 4th 1; Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 Cal. 4th 360.)” Resolution of these issues depends, in part, on an evaluation of a plaintiff's scope of authority under PAGA,as determined by the language of PAGA and its legislative history. Because Appellant Michael Williams relies on the Belaire-West Landscape, Inc. class action case to seek to establish his own broad authority to discovery private non- party employee information, the limited scope of the putative class at issue in the Belaire-West case is also instructive, and may be useful to this Court in its analysis. Legislative history is relevant to statutory interpretation. (S.B. Beach Properties v. Berti (2006) 39 Cal.4th 374, 379; Cal. Code Civ. Proc. §1859; Cal. Gov. Code §9080.) In an effort to discern legislative intent, this Court may take judicial notice of the various legislative materials underlying the enactment of a statute. (DiCampli-Mintz v. County ofSanta Clara (2012) 55 Cal.4th 983, 992 (“statute must be given a reasonable and common sense interpretation consistent with the apparent purpose and intention of the lawmakers...”); Hale v. Southern Cal. IPA Med. Grp. Inc. (2001) 86 Cal.App.4th 919, 927 (California Law Revision Commission reports, and Legislative Committee reports).) This Court may take judicial notice of official acts of the executive and legislative branches. (Cal. Evid. Code §452(c).) And, Evidence Code section 451 requires this Court take judicial notice of any relevant, public statutory laws or constitutional provisions of California and the United States. (Cal. Evid. Code, § 451(a).) Additionally, Evidence Code section 452(d)(1) permits this Court to take judicial notice of the records of “any court of this state.” (Cal. Evid. Code § 452(d)(1); see also Duggal v. G.E. Capital Communications Services, Inc. (2000) 81 Cal.App.4th 81, 86 (holding that courts may take judicial notice of the records of a California court).) Evidence Code section 452(d)(2) also permits this Court to take judicial notice of “any court of record of the United States or of any state of the United States.” Finally, this Court may properly take notice of facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy. (Cal. Evid. Code §452(h).) In conclusion, the legal authority for this Court to grant judicial notice of each of the above-listed documentsis as follows: Exhibit A: Analysis of Senate Bill 796, Assembly Committee on Labor and Employment, July 9, 2003; and Analysis of Senate Bill 796, Senate Judiciary Committee, April 29, 2003. Legislative history is relevant to statutory interpretation. (S.B. Beach, supra, 39 Cal.4th at p. 379; Code Civ. Proc., § 1859; Gov. Code, § 9080.) In an effort to discern legislative intent, this Court may take judicial notice of the various legislative materials underlying the enactment of a statute. (DiCampli-Mintz, supra, 55 Cal.4th at p.992 [California Law Revision Committee reports]; Hale, supra, 86 Cal.App.4th at p.927 [Law Revision Commission reports and Legislative Committee reports]; Martin, supra, 32 Cal.4th at p.450 [Legislative Committee reports).) Exhibit A isa true and correct copy of an analysis of Senate Bill 796 by the Assembly Committee on Labor and Employment (July 9, 2003), and an analysis of Senate Bill 796 by the Senate Judiciary Committee (April 29, 2003) bill. The Court should take judicial notice of the analyses marked as Exhibit A in this matter. Exhibit B: Analysis of Senate Bill 1809, Assembly Committed on Labor and Employment, May 26, 2004: and Analysis of Senate Bill 1809. Senate Rules Committee, July27, 2014. Legislative history is relevant to statutory interpretation. (S.B. Beach, supra, 39 Cal.4th at p. 379; Code Civ. Proc., § 1859; Gov. Code, § 9080.) In an effort to discern legislative intent, this Court may take judicial notice of the various legislative materials underlying the enactment of a statute. (DiCampli-Mintz, supra, 55 Cal.4th at p.992 [California Law Revision Committee reports]; Hale, supra, 86 Cal.App.4th at p.927 [Law Revision Commission reports and Legislative Committee reports]; Martin, supra, 32 Cal.4th at p.450 [Legislative Committee reports].) Exhibit B is a true and correct copy of an analysis of Senate Bill 1809, Assembly Committed on Labor and Employment (May 26, 2004), and an analysis of Senate Bill 1809, Senate Rules Committee (July 27, 2014). The Court should take judicial notice of the analyses marked as Exhibit B in this matter. Exhibit C: Second Amended Class Action Complaint in Rodriguez et al. y. v. Belaire-West Landscape, Inc. (Super. Ct. Los Angeles County, July 7, 2006, Case No. No. BC321310). This Court may properly take judicial notice of the records of any court of this state. (Evid. Code, § 452(d); Flores v. Arroyo (1961) 56 Cal.2d 492, 496-97.) Appellant relies on the Belaire-West Landscape appeal, Belaire —West Landscape, Inc. v. Superior Court, (2007) 149 Cal. App. 4th 554, for the proposition that non-party employees’ names and contact information should be generally discoverable. (Appellant’s Opening Brief (“App. Op. Br.”) at 14-15.) However, the trial court’s decision in Belaire-West was limited to a putative class of “’Landscapers, or persons with equivalent position, however titled, who worked and/or are working for Defendants...” (See Exhibit C, 9 31.) Whereas Exhibit C is a true and correct copy of a record from the Superior Court of the State of California for the County of Los Angeles, the Court should take judicial notice of the documentin this matter. Exhibit D: Ruling on Submitted Matter; Plaintiffs’ Motion to Compel Defendant Belaire To Provide The Names, Addresses, and Telephone Numbers of Putative Class Members in Rodriguez et al. v. v. Belaire-West Landscape, Inc. (Super. Ct. Los Angeles County, July 7, 2006, Case No. No. BC321310). This Court may properly take judicial notice of the recordsof: any court of this state. (Evid. Code, § 452(d); Flores v. Arroyo (1961) 56 Cal.2d 492, 496-97.) Appellant relies on the Belaire-West Landscape appeal, Belaire —West Landscape, Inc. v. Superior Court, (2007) 149 Cal. App. 4th 554, for the proposition that non-party employees’ names and contact information should be generally discoverable. (Appellant’s Opening Brief (““App. Op. Br.”) at 14-15.) However, the trial court’s decision in Belaire-West was limited to a putative class of “’Landscapers, or persons with equivalent position, however titled, who worked and/or are working for Defendants...” (See Exhibit C, 9 31.) The trial court ordered that the proposed notice be sent to the putative class members, specifically, “all Lead = current and former landscaping employees of Belaire-West Landscape, Inc...” (See Exhibit D, at 3:6-15.) Whereas Exhibit D is a true and correct copy of a record from the Superior Court of the State of California for the County of Los Angeles, the Court should take judicial notice of the documentin this matter. CONCLUSION For the reasons set forth herein, this Court should grant judicial notice of each ofthe exhibits listed above. Dated: February 16, 2016 LITTLER MENDELSON,P.C. 650 California Street, 20th Floor San Francisco, CA 94108.2693 By: je4, Ho ROBERT G. HULTENG rhulteng@littler.com AMY TODD-GHER atodd-gher@littler.com KYLE W. NAGEOTTE knageotte@littler.com Attorneys for Real Party In Interest MARSHALLSOF CA, LLC DECLARATION OF AMY TODD-GHER IN SUPPORT OF MARSHALLS’ MOTION FOR JUDICIAL NOTICE I, AMY TODD-GHER,declare: 1. I am an attorney admitted to practice in the State of California, and am one of the attorneys of record representing the Real Party in Interest, Marshalls of CA, LLC,in this matter. 2. I have personal knowledge of the facts stated herein, and if called as a witness, I would testify competently thereto. 3. I makethis declaration in support of Real Party in Interest, Marshalls of CA, LLC’s Motion for Judicial Notice in Support of Answer Brief on the Merits. 4, Attached as Exhibit A is a true and correct copy of the Legislative History and Analysis of Senate Bill 796 of 2003. We obtained these documents from Filomena Ms. Yeroshek of Legislative Intent Service, Inc. A true andcorrect copy of Ms. Yeroshek’s declaration — regarding these documents, authenticating these documents by source and defining the scope of the project, thereby meeting the requirements of Evidence Code Section 453(b), is attached hereto as Exhibit 1 (referenced in Ms. Yeroshek’s declaration under Items 6 and 9, Ex. 1). 5. Attached as Exhibit B is a true and correct copy of the Legislative History and Analysis of Senate Bill 1809 of 2004. Weobtained these documents from Filomena M. Yeroshek of Legislative Intent Service, Inc. A true and correct copy of Ms. Yeroshek’s declaration regarding these documents, authenticating these documents by source and defining the scope of the project, thereby meeting the requirements of Evidence Code Section 453(b), is attached hereto as Exhibit2 (referenced in Ms. Yeroshek’s declaration under Items 8 and 14, Ex. 2). 6. Attached as Exhibit C is a true and correct copy of the Second Amended Class Action Complaint, Sebastian Rodriguez and Jose Luis Mosqueda on behalf of themselves and all other similarly situated v. Belaire-West Landscape, Inc., Superior Court of the State of California, County of Los Angeles, Case No. BC321310, filed July 7, 2006. We obtained this document from Roberto Recenios of Nationwide Legal. A true and correct copy of Mr. Recenios’ declaration regarding this document, authenticating the document by source, thereby meeting the requirements of Evidence Code Section 453(b), is attached hereto as Exhibit 3. 7. Attached as Exhibit D is a true and correct copy of the Ruling on Submitted Matter; Plaintiffs’ Motion to Compel Defendant Belaire To Provide The Names, Addresses, and Telephone Numbersof Putative Class Members, Superior Court of the State of California, County of Los Angeles, Case No. BC321310, filed September 13, 2006. We obtained this document from Mario Rios of Nationwide Legal. A true and correct copy of Mr. Rios’ declaration regarding this document, authenticating the document by source, thereby meeting the requirements of Evidence Code Section 453(b), is attached hereto as Exhibit 4. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this 16th day of February, 2016, at San Diego, California. Cowlok -CheW AMY TODD-GHER. 10 [PROPOSED ORDER] IN SUPPORT OF REAL PARTYIN INTEREST’S MOTION FOR JUDICIAL NOTICE Good cause appearing, therefore, IT IS HEREBY ORDERED that the Supreme Court will take judicial notice of the following documents: Exhibit A: Exhibit B: Exhibit C: Exhibit D: DATED: Legislative History of Senate Bill 796 (Dunn — 2003). Legislative History of Senate Bill 1809 (Dunn — 2004). Second Amended Class Action Complaint, Sebastian Rodriguez and Jose Luis Mosqueda on behalf of themselves and all other similarly situated v. Belaire-West Landscape, Inc., Superior Court ofthe State of California, County of Los Angeles, Case No. BC321310, filed July 7, 2006. Ruling on Submitted Matter; Plaintiffs’ Motion to Compel Defendant Belaire To Provide The Names, Addresses, and Telephone Numbers of Putative Class Members, Superior Court of the State of California, County of Los Angeles, Case No. BC321310, filed September 13, 2006. The Honorable Chief Justice or Associate Justice of the California Supreme Court Firmwide:138627797.1 053070.1106 11 Bi ce R e R E e e EXHIBIT A SENATE JUDICIARY COMMITTEE MarthaM.Escutia, Chair 2003-2004 Regular Session SB 796 S Senator Dunn B As AmendedApril 22, 2003 Hearing Date: April 29, 2003 7Labor Code 9CJw 6 SUBJECT Employment DESCRIPTION This bill would allow employeesto sue their employers for civil penalties for employmentlaw violations, and uponprevailing, to recover costs and attorneys’fees. Thebill is intended to augmentthe enforcementabilities of the Labor Commissioner bycreating an alternative “private attorney general”system for _ This analysis reflects author’s amendments to be offered in Committee. BACKGROUND California’s Labor Codeis enforced by the state Labor andWorkforce Development Agency (LWDA)andits various boards and departments, whichmayassessandcollect civil penalties for specified violations of the code. Some Labor Codesections also providefor criminal sanctions, which may be obtainedthrough actions by the Attorney General and other public prosecutors. In 2001, the Assembly Committee on Labor and Employmentheld hearingsaboutthe effectiveness and efficiency of the enforcementof wageand hour lawsby the Departmentof Industrial Relations (DIR), one of four subdivisions of theLWDA. The Committee reported thatin fiscal year 2001-2002, the Legislatureappropriatedover $42 million to the State Labor Commission for the | enforcementof over 300 laws underits jurisdiction. The DIR’s authorizedstaffnumbered over460, makingit the largest state labor law enforcement organizationin the country. Nevertheless, evidence received by the Committee indicated that the DIR was failing to effectively enforce labor law violations. Estimatesof the size (more) LIS - 5 Marshalls RJN 001 (8 00 ) 66 6- 19 17 4/ LE GI SL AT IV E IN TE NT SE RV IC E .t ¢ SB 796 (Dunn) Page 2 California’s “underground economy”- businesses operating outside thestate's tax and licensing requirements —- ranged from 60 to 140 billion dollars a year, representinga tax loss to the state of three to six billion dollars annually. Further, a U.S. Departmentof Labor study of the garment industry in Los Angeles, which employs over 100,000 workers, estimated the existence of over 33,000 serious and ongoing wageviolations by thecity’s garment industry employers, but the DIR wascurrently issuing fewer than 100 wagecitations per year forall industries throughoutthestate. Asa result of these hearings, the Legislature enacted AB 2985 (Ch.662,Stats. of 2002), requiring the LWDAto contract with an independentresearch organizationto study the enforcement of wage and hour laws, and to identify state and federal resources that maybe utilized to enhance enforcement. The completed studyis to be submitted to the Legislature by December 31, 2003. This bill would propose to augment the LWDA’s civil enforcementefforts by allowing employees to sue employers for civil penalties for labor law violations,- andto collect attorneys’ fees and a portion of the penalties upon prevailing in these actions, as specified below. CHANGES TO EXISTING LAW _ Existing law authorizes the LWDA(comprised ofthe DIR,the Employment = _DevelopmentDepartment, the Agricultural Labor Relations Board, and the Workforce Investment Board) to assess and collectcivil penalties for violations of the Labor Code, where specified. [Labor Code Secs. 201 et seq.] Existing law authorizes the Attorney General and other public prosecutors to pursue misdemeanorchargesagainstviolators of specified provisions of the code. [Labor Code Sec. 215 et seq.] Existing law authorizes an individual employeetofile a claim with the Labor Commissioneralleging that his or her employer has violated specified provisions of the code, andto sue the employer directly for damages, reinstatement, and other appropriate relief if the Commissioner declines to bring an action based on: the employee’s complaint. [Labor CodeSec. 98.7.] Existing law further provides that any person actingforitself, its members, or the general public, may sueto enjoin any unlawful, unfair, or fraudulent business act or practice, and to recoverrestitution and disgorgementof any profits from the unlawful activity. [Bus. & Profs. Code Sec. 17200 et seq.] This bill would provide that any Labor Code violation for which specific civil penalties have not previously been established shall be subject to a civil penalty - of $100 for each aggrieved employee per pay periodfor an initial violation, and Marshalls RUN 002 (8 00 ) 66 6- 19 17 < e ¢ a e oh if L E G I S L A T I V E I N T E N T S E R V I C E SB 796 (Dunn) Page 3 $200 for each aggrieved employee per pay period for continuing violations. (The penalty would be $500 perviolation for a violator whois not an employer.) This bill further would providethat, for any Labor Code violation for which the LWDAdoesnot pursue a complaint, any aggrieved employee maysue to recover civil penalties in an action brought on behalf of himself or herself or other current or former employees. This bill would define “aggrieved employee” as “any person employed by the alleged violator within the period covered by the applicable statute of limitation against whom oneor moreofthe violations alleged in the action was committed.” This bill further would provide that an aggrieved employee whoprevails in such an actionshall be entitled to an award of reasonable attorney’s fees andcosts. This bill further would provide that any penalties recovered in an action by an aggrieved employee shall be distributed as follows: 50 percent to the General Fund, 25 percent to the LWDAfor employer education, and 25 percentto the aggrieved employees. (Penalties recovered against a violator who is not an employer, which underthis bill could be pursued only by a public prosecutor or the LWDA,would be divided evenly between the General Fund and the LWDA.) This bill further would providethat nothinginthis section shall limit an employee's right to pursue other remedies available understate or federal law. This bill further would provide that no action may be maintained by an aggrieved employee underthis section where the LWDAinitiates proceedings againstthe alleged violator on the samefacts and underthe same section or sections of the Labor Code. COMMENT 1. Stated need for legislation The California Labor Federation, co-sponsor,states thatthis bill would “attack the underground economyand enhanceourstate’s revenues” by allowing. workersto crack down onlaborviolators: In the last decade, as California has grown to becomeone of the world’s largest economies, state government labor law enforcementfunctions havefailed to keep pace. . . . The state’s current inability to enforce our existing laborlawseffectively is due to inadequate staffing and to the continued growth of the underground economy. This inability coupled Marshalls RJN 003 (8 00 ) 66 6- 19 17 4 J f L E G I S L A T I V E I N T E N T S E R V I C E e o . 6 SB 796 (Dunn) Page 4 with our severe state budget shortfall calls for a creative solution that will’ help the state crack down on those who chooseto flout our laws. The California Rural Legal Assistance (CRLA) Foundation,also a co-sponsor, states that violations of minimum or overtime wage violations are common, and manyotherviolations for which only rarely enforced criminal penalties exist are increasing: For example, “company store” arrangements in which workers are required to cash their checks with their employer,fora fee, allegedly are widespread in the agricultural industry. The CRLA Foundation notes that the bill’s proposed penalty structure is “nominal” and is based on existing provisions of the Labor Code. Protection & Advocacy, Inc., which supports the rights of people with disabilities, asserts that SB 796 will assist disabled employees “by providing some mechanism by whichto get an employer to comply with the Labor Code.” . SB 796 would attachcivil penalties to existing provisions The sponsorsstate that many Labor Codeprovisions are unenforced because they are punishableonly as criminal misdemeanors, with nocivil penalty or other sanction attached. Since district attorneys tend to direct their resources to violentcrimesand otherpublic priorities, Labor Codeviolations rarely _ result in criminal investigations and prosecutions. Accordingly, this bill would attach a civil penalty of $100 for each aggrieved employee per pay period (increasing to $200 for each aggrieved employee per pay periodfor continuingviolations) to any Labor Codeprovision that does " notalready contain a financial penalty forits violation. The sponsorsstate that this proposed penalty is “on the low end”of existing civil penalties attached to other Labor Codeprovisions, but should be significant enoughto deter violations. . The bill would allow “aggrieved employees”to bring private actions to recoverthe civil penalties The sponsorsstate that private actions to enforce the Labor Code are needed because LWDAsimply does not have the resources to pursueall of the labor violations occurring in the garment industry, agriculture, and other industries. Although the Unfair Competition Law (UCL), Section 17200of the Business & Professions Code, permits private actions to enjoin unlawful businessacts, the sponsors assert thatit is an inadequate toolfor correcting Labor Code violations. First, the UCL only permits private litigants to obtain injunctive relief and restitution, which the sponsorssay is not a sufficient deterrent to Marshalls RJN 004 (8 00 ) 6 6 6 - 1 9 1 7 L E G I S L A T I V E I N T E N T S E R V I C E SB 796 (Dunn) Page 5 labor violations. Second, since the UCL does not awardattorneys’ fees to aprevailing plaintiff, few aggrieved employeescan afford to bring an action toenjoin the violations. Finally, since most employeesfear they will be fired orsubject to hostile treatmentif they file complaints againsttheir employers, theyare discouragedfrom bringing UCL actions. Generally, civil enforcementstatutes allow civil penalties to be recovered onlyby prosecutors, not by private litigants. Private plaintiffs who have beendamaged bya statutory violation usually arerestricted to traditional damage" suits, or where damagesaredifficult to prove, to “statutory damages”ina specified amountor range. [See, e.g., Unruh Civil Rights Act, Civ. Code Sec.91 et seq, allowing statutory damagesin a minimum amountof $4,000 perviolation to prevailing private litigants in actions alleging denial of equal access or other forms of discrimination.] In this bill, allowingprivate recovery of civil penalties as opposed to statutorydamages would allow the penalty to be dedicated in part to public use(to theGeneral Fund and the LWDA)instead of being awardedentirely to a privateplaintiff, as would occur with a damage award. Recovery ofcivil penalties by.private litigants does have some precedentin existing law: The Unruh CivilRights Act allowseither the victim of a hate crimeor a public prosecutor to bring an action for a civil penalty of $25,000 against the perpetrator of the crime. (Civ.CodeSecs. 51.7,52.). 4. Opponents’ concerns The employer groups opposingthebill argue that SB 796 will encouragePrivate attorneys to “act as vigilantes” pursuing any andall types of Labor Codeviolations on behalf of different employees, and thatthis incentive willbe increased by allowing employeesto recover both attorneys’ fees and a portion of the penalties. A representative letter states: There is a major concern that this type of statute could be abused ina mannersimilar to the legal community’s abuse of Business and Professions CodeSection 17200 whenit sued thousands of small businesses for minor violations and demandedsettlements in order to avoid costly litigation. The California Chamber of Commerce arguesthat, since the bill would awardattorneys’ fees to prevailing employees, but not to employers when theyprevail, SB 796 wouldclog already-overburdenedcourts because there wouldbe no disincentive to pursue meritless claims. The California Employment Law Council states that the the Labor Code contains “innumerable penalty provisions, many of which would be Marshalls RJN 005 (8 00 ) 66 6- 19 17 if L E G I S L A T I V E I N T E N T S E R V I C E x7 SB 796 (Dunn) Page 6 applicable to minor and inadvertent actions.” Undercurrent law, however,the prospectof excessive penalties is mitigated by prosecutorial discretion,which would disappear under SB 796: If, for example,a large employer inadvertently omitted a piece ofinformation on a paycheck, a “private attorney general” could sue forpenalties that could reach staggering amounts if. . . the inadvertentdeletion of information ona paycheck wenton for sometime. 5. Sponsorssay bill has been drafted to avoid abuseofprivate actions The sponsors are mindful of the recent, well-publicized allegations of privateplaintiff abuse of the UCL, and have attemptedto craft a private right of actionthat will not be subject to such abuse. First, unlike the UCL,this bill wouldNot openprivate actions up to persons who suffered no harm from the allegedwrongful act. Instead, private suits for Labor Code violations could bebrought only by an “agerieved employee” - an employee of the allegedviolator against whom the alleged violation was committed. (Labor Codeviolators who are not employers would be subject to suit only by the LWDAor by public prosecutors.) Second,a private action underthis bill would be brought by the employee “onbehalf of himself or herself or others” - thatis,fellow employeesalsoharmed~ by the alleged violation - instead of “on behalf of the general public,” asPrivate suits are brought under the UCL. This would dispense with theissueof res judicata (“finality of the judgment”) thatis the subject of somecriticismof private UCL actions. An action on behalf of other aggrieved employeeswould be final as to those plaintiffs, and an employer would not have to beconcernedwith future suits on the same issues by someoneelse “on behalf ofthe general public.” Third, the proposedcivil penalties are relatively low, mostof the penaltyrecovery would be divided between the LWDA (25 percent) and the GeneralFund (50 percent), and the remaining 25 percent would be divided between allidentified employees aggrieved by the violation, instead of being retained by a_ single plaintiff. This distribution of penalties would discourage any potentialplaintiff from bringing suit over minor violations in orderto collect a “bounty”in civil penalties. Finally, the bill provides that no private action may be brought when theLWDAoranyofits subdivisions initiates proceedings to collect penalties onthe same facts and under the same code provisions. Marshalls RJN 006 if L E G I S L A T I V E I N T E N T S E R V I C E (8 00 ) 6 6 6 - 1 9 1 7 2 0 4 = a w o a n e ? SB 796 (Dunn) Page 7 6. Author’s amendments In order to address concerns thatthebill might invite frivolous suits or imposeexcessive penalties, and pursuantto discussions betweenthe sponsors and Committeestaff, the author has agreed to acceptthe following amendments to clarify thebill’s intended scopeofits private right of action and the assessmentand distributionofits civil penalties: (a) To clarify who would qualify as an “aggrieved employee”entitled to bring a private action underthis section, the authorwill define the term as follows(at page2,line 38): “For purposesofthis part, an aggrieved employee means any person employed by thealleged violator within the period covered by the _ applicablestatute of limitations against whom oneor moreof the violations alleged in the action was committed.” The bill would further be amendedtoreflect that any civil penalty recoverable by the LWDAunder existing law may be recovered through acivil action “brought by an aggrieved employee on behalf of himself or herself or other current or former employees”(at page2, lines 31-36). (b) To clarify thatcivil penaltieswould beassessedonlywithrespectto the- _ numberof employees aggrieved by the violation, as opposedto thetotal number ofan alleged violator’s employees, the author will amend thebill to reflect that penalties will be determined “for each aggrieved employee” insteadof “per employee”(at page3, lines 7 and 8). (c) To allay opponents’ concerns that res judicata issues mayariseif all knownpotential plaintiffs are not included in the privateaction, the author will amendthebill as follows(at page3, lines 11-13): “An aggrieved employee may recoverthecivil penalty described in subdivision(b)in a civil action filed on behalf of himself or herself or ethers other current or former employees for whom evidence of a violation was developed duringthetrial or at settlementof the action.” (d) To conform its attorney’s fees provision with similar provisions in existinglaw,the authorwill amendthebill to delete the phrase “in wholeor in part” from the provision allowing attorney's fees to be awarded toa prevailing plaintiff (at page 3, lines 13-14). Marshalls RUN 007 (8 00 ) 66 6- 19 17 if L E G I S L A T I V E I N T E N T S E R V I C E SB 796 (Dunn) Page 8 Support: American Federation ofState, County and Municipal Employees (AFSCME); California Conference Boardof the Amalgamated Transit Union; California Council of Machinists; California Independent Public Employees Legislative Council; California State Pipe Trades _ Council; California State Association of Electrical Workers; California Teamsters; Engineers andScientists of California, Local 20; Hotel Employees, Restaurant EmployeesInternational Union; Professional and Technical Engineers, Local 21; Protection & Advocacy, Inc.; Region 8 States Council of the United Food & Commercial Workers; Western States Council of Sheet Metal Workers Opposition: Associated General Contractors of California; California Apartment Association; California Chamber of Commerce; California Employment Law Council; California Landscape Contractors Association; California Manufacturers and Technology Association; Civil Justice Association of California (CJAC); Construction Employers’ Association; Motion Picture Association of America; Orange County Business Council HISTORY Source: California Labor Federation AFL-CIO; CRLA Foundation ~ Related Pending Legislation: None Known Prior Legislation: AB 2985 (Committee on Labor and Private Employment) (Ch. 662, Stats. of 2002) (requires Labor and Workforce Development Agency to contract with independentresearch organization to study mosteffective ways to enforce wage and hour laws, andto identify all available state and federal Tesources available for enforcement; completed study to be submitted to Legislature by December31, 2003) Prior Vote: Senate Labor & Industrial Relations Committee 5-3 SNSeOeaEEEob Sh OE ahpoh Marshalls RJN 008 (8 00 ) 66 6- 19 17 yf L E G I S L A T I V E I N T E N T S E R V I C E 4, 0" Date of Hearing: July 9, 2003 ASSEMBLY COMMITTEE ON LABOR AND.EMPLOYMENT ' Paul Koretz, Chair SB 796 (Dunn) — As Amended: July 2, 2003 SENATE VOTE: 21-14 SUBJECT: Employment. SUMMARY: Establishes an alternative "private attorney general” system for labor lawenforcementthat allows employeesto pursue civil penalties for employmentlaw violations.Specifically, this bill enacts the "Labor Code Private Attorneys General Act of2004" which: 1) Establishes a civil penalty where oneis not specifically provided under the Labor Code of$100 for each aggrieved employee per pay period foran initial violation, and $200 for eachaggrieved employeesper payperiod for subsequent violations. The penalty would be $500per violation for a violator whois not an employer. 2) Authorizes aggrieved employeesto sue to recovercivil penalties under the Labor Code inan action brought on behalf ofhimself or herself and other current or former employeesagainst whom oneor moreofthe alleged violations was committed. However, no privateaction may be maintained where the Labor and Workforce Development Agency (LWDA)or any ofits subdivisionsinitiates proceedings against the alleged violator on the same factsand theoriesandunderthe same sectionorsectionsofthe LaborCode. 3) Defines an "aggrieved employee"as "any person who was employedbythe allegedviolatorand against whom one or moreofthe alleged violations was committed." 4) Providesthat civil penalties recovered against a person that employs one or moreemployeesshall be distributed as follows: 50% to the General Fund, 25% to the Labor andWorkforce Development Agency (LWDA)for employer and employee education, and 25%to the aggrieved employees. Civil penalties recovered against persons that do not employone or more employeesare to be divided evenly between General Fund and the LWDA. 5) Providesfor the award ofreasonable attorney's fees and costs to an aggrieved employeewhoprevails in such an action. EXISTING LAW 1) Authorizes the LWDA(comprisedofthe DepartmentofIndustrial Relations, theEmployment Development Department, the Agricultural Labor Relations Board, and theWorkforce Investment Board)to assess and collect civil penalties for violations ofthe_ Labor Code, where specified. 2) Authorizes an individual employeeto file a claim with the Labor Commissionerallegingthat his or her employerhas violated specified provisionsofthe law, and to sue theemployerdirectly for damages, reinstatement, and other appropriate relief. LIS - 9 Marshalls RJN 009 (8 00 ) 66 6- 19 17 J f L E G I S L A T I V E I N T E N T S E R V I C E % a u ¢ SB 796 Page 2 3) Authorizes the Attorney General and other public prosecutors to seek appropriate injunctiverelief andfile criminal charges against employers for criminal violations of the Labor Code,where specified. ; 4) Further provides that any person acting foritself, its members, or the general public, maysue to enjoin any unlawful, unfair, or fraudulent businessact or practice, and to recover restitution and other appropriate remedies. FISCAL EFFECT: This measure was approvedby the Senate Appropriations Committeepursuant to Senate Rule 28.8. COMMENTS:Generally, civil enforcementstatutes allow civil penalties to be recovered only byprosecutors, not by privatelitigants. Private plaintiffs who have been damagedbya statutoryviolation usually are restricted to traditional damagesuits, or where damagesare difficult toprove,to "statutory damages"in a specified amountor range. The Labor Codeis enforced by the LWDAandits various subordinate entities, which mayassessand collect civil penalties for specified violations ofthe code. Some Labor Code sections alsoprovide for criminal sanctions, which may be obtained through actions by the Attorney Generaland otherpublic prosecutors. The State of Labor Law Enforcementin California sitolatef Laborw Enio ce ent inCa ifornia Atissuein this bill is the appropriate role of employeesin protecting their rights under the Labor_Codewhenthegovernmententitymandated t enforcetheLaborCodeisunableto-do so ~adequately due to budgetary and staff constraints. Thebill's intent languagestates that "adequatefinancing ofessential labor law enforcementfunctions is necessary to achieve maximumcompliance with state labor laws"and that [s]taffing levels for state labor law enforcementagencies have,in general, declined overthe last decade and are likely to fail to keep up with thegrowth of the labor market in the future.” In 2001, the Assembly Committee on Labor and Employment conducted hearings regarding theeffectiveness and efficiency ofthe enforcement ofwage and hour laws by the DepartmentofIndustrial Relations (DIR). The committee reported thatin fiscal year 2001-2002, theLegislature appropriated over $42 million to the Division of Labor Standards Enforcement(DLSE)within DIR for the enforcementofover 300 laws under its jurisdiction. The DIR'sauthorized staff numbered over 460, makingit the largest state labor law enforcement organization in the country. Nevertheless, evidence indicated that the DIR was failing to effectively enforce labor lawviolations. Estimates ofthe size of California's “underground economy” — businesses operatingoutside the state's tax andlicensing requirements — ranged from 60 to 140billion dollars a year,representing a tax loss to the state ofthreeto six billion dollars annually. Further, a U.S.Department of Labor study ofthe garment industry in Los Angeles, which employs over 100,000workers, estimated the existence of over 33,000 serious and ongoing wageviolations by thecity's garment industry employers, but that DIR was issuing fewer than 100 wagecitations peryear forall industries throughoutthestate. Marshalls RJN 010 (8 00 ) 66 6- 19 17 #/ LE GI SL AT IV E IN TE NT SE RV IC E s o f . 2 SB 796 Page 3 Moreover, evidence demonstrates that the resources dedicatedto labor law enforcementhave notkept pace with the growth ofthe economyin California. California's enforcement agencies areresponsible for protecting the legal rights of over 17 million California workers and regulatingalmost 800,000 private establishments,in addition to all the public sector workplacesin thestate(U.S. Census Bureau 1999). However, accordingto a recent study, the resourcesavailable to thelabor enforcement divisions remain below the levels ofthe mid-1980s, (Bar-Cohen, Limor andDeana Milam Carillo. "Labor Law Enforcementin California, 1970-2000." The State ofCalifornia Labor. (2002), p. 135). According to the same study, between 1980 and 2000California's workforce grew 48 percent, while DLSE's budgetary resources increased only 27percent and Cal/OSHA's actually decreased 14 percent. Similarly, DLSE and Cal/OSHAstaffing levels have decreased 7.6 percent and 10.8 percent, respectively, over the last twodecades. As a resultofthe legislative hearings discussed above, the Legislature enacted AB 2985(Assembly Committee on Labor and Employment), Chapter 662, Statutes of 2002, requiring theLWDAto contract with an independentresearch organization to study the enforcement ofwageand hour laws,andto identify state and federal resourcesthat maybeutilized to enhanceenforcement. The completed studyis to be submitted to the Legislature by December 31, 2003, Arguments in Support: The co-sponsors ofthe measure, the California Labor Federation, AFL-CIO andthe CaliforniaRural Legal Assistance (CRLA) Foundation, arguethatthis bill will address inadequacies inlabor law enforcementin two major ways. First, this bill assigns nominal civil fine amounts tothe large number of LaborCodeprovisionswhich urrentlycarrycriminal.butnot civil,penalties. Second, it authorizes the filing ofcivil actions to recover existing and newcivilpenalties by aggrieved workers acting as private attorneys general. Thesponsorsstate that many Labor Code provisions are unenforced because they are punishableonly as criminal misdemeanors, with no civil penalty or other sanction attached. Sincedistrictattorneys tendto direct their resourcesto violent crimes and other public priorities, Labor Codeviolationsrarely result in criminal investigations and prosecutions, The CRLA Foundationcitesthe resurgence ofviolations of Labor Code prohibitions against the “company store," as anexample of the need forthis bill. This occurs, for example, when the employer coerces theemployee to purchase goodsatthatstore. Currently,violations ofthese code sections aremisdemeanors butnocivil penalty is attached. The CRLA Foundation notesthatthe bill'sproposed penalty structure is "nominal" and is based on existing provisions of the Labor Code. Proponents also contendthatthestate's current inability to enforce labor laws effectively is dueto inadequate staffing and the continued growth ofthe underground economy. Thisinability,coupled with the state's severe budgetary shortfall requires a creative solution that will help thestate crack down onlabor law violators. Therefore, private actions to enforce the provisions ofthe Labor Codeare necessary to ensure compliance with the law. In addition, the sponsorsclaim that recent hiring freezes and elimination of vacant positionsannouncedin response to the budgetcrisis may dramatically impact the LWDAanditsenforcementactivities. Marshalls RJN 011 (8 00 ) 66 6- 19 17 4 / L E G I S L A T I V E I N T E N T S E R V I C E a k % SB 796 Page 4 Arguments in Opposition: Opponents contend thatthis bill tips the balanceoflabor law protection in disproportionate favorto the employee to the detrimentofalready overburdened employers. Several employer groups,including the California Chamber of Commerce,cite the factthat employeesare entitled toattorney's fees and costs ifthey prevail in their action underthis bill, yet similar attorney's feesandcosts are not provided for prevailing employers. Additionally, opponents cite the fact thatthere is no requirement imposed upon employeespriorto filing civil action such as preliminaryclaim filing with the Labor Commissioner. . Opponents also expresses concern thatthis bill will encourageprivate attorneys to "act asvigilantes" pursuing frivolous violations on behalf of different employees. Opponents liken thedangerofthebill to recent alleged abuse of Business and Professions Code Section § 17200.Representative of this sentiment is the California Landscape Contractors Association, who notes: [This bill] will create an entirely new litigation arena that will encourage employees, particularly employees who were terminated or subject to a disciplinary action,to file retaliatory claims against their employer. As we have seen with similar causes ofaction under Section 17200..., innocent businesseswill be pressuredto settle these claims becauseofthe high cost of defense and the relatively small amounts involved. Opponents also contendthat California already has a formal administrative procedure to handlethese type ofclaims under the Labor Codethat is both economical andefficient. / Relationship Between SB 796 andthe "Unfair CompetitionLaw" (UCL): As discussed above, some opponents have expressed concern about the relationship between thisbill and the "Unfair Competition Law" (UCL), Section 17200,et seq., ofthe Business andProfessions Code. As reported in press accounts and further illuminated by a jointlegislativehearing conductedearlier this year by the Senate and Assembly Committees on Judiciary, therehavebeenallegations ofabuse ofthe UCL by certain law firmsandindividual attorneys. In lightof the recent attention focused on the UCL,a brief discussion ofthat law's relationshipto thisbill, and the arguments thereto on both sides, is warranted here. California law has contained a statute prohibiting "unfair" practicesin competition sincethefirstCivil Code was enacted in 1872. Numerous amendmentsto the UCLandcaselaw interpretingits provisions have provided broad and expansive protections to California consumers to preventbusinesses from using unfair practicesto gain advantage over competitors. Based on theunderlying premise that such anti-competitive behavior creates an unfair playingfield to thedetriment of consumers, the law has since been used to protect consumers from instances ofunfair, unlawful or fraudulent behavior. Although the UCLpermits private actionsto enjoin unlawful business acts, the sponsorsassertthatit is an inadequate tool for correcting Labor Code violations. First, the UCL only permitsprivate litigants to obtain injunctive relief and restitution, which the sponsorclaim is not asufficient deterrent to labor law violations. Second, since the UCL does not award attorney'sfees to a prevailing plaintiff, few aggrieved employees can afford to bring an action to enjoin the -violations. Finally, sponsors assert that since most employeesfear they will be fired or subject to Marshalls RJN 012 4¢ / LE GI SL AT IV E IN TE NT SE RV IC E (8 00 ) 66 6- 19 17 SB 796 Page 5 hostile treatmentifthey file complaints against their employers, they are discouraged frombringing UCLactions. Opponents, on the other hand, argue that this measure,ifenacted, will result in abusesimilar tothat alleged involving the UCL. For example, the Civil Justice Association of California (CJAC)arguesthat this bill will expose businesses to frivolous lawsuits and create a new litigation actions haveresulted in an excessive amountofmeritless, fee-motivated lawsuits. Allowingsuch "bounty hunter" provisions will increase costs to businessesofall sizes, and add thousandsofnew cases to California's already over-burdened civil court system. Similarly, the California Motor Car Dealers Association, writing in opposition to the bill, states,“a private enforcementstatute in the hands of unscrupulous lawyers is a recipe for disaster," The sponsors are mindful ofthe Tecent, well-publicized allegations ofprivate plaintiffs abuse ofthe UCL,and have attempted to craft a private right of action thatwill not be subject to suchabuse, pointing to amendments takenin the Senate to clarify thebill's intended scope. First,unlike the UCL,this bill would not openup private actions to persons who suffered no harmfrom the alleged wrongful act. Instead,private suits for Labor Code violations could only bebrought by an "aggrieved employee" — an employee ofthe alleged violator against whom thealleged violation was committed. Second,a private action underthis bill would be broughtby the employee "on behalf ofhimselfor herself and other currentor formeremployees"— that is, fellowemployees also harmedbythe -----~allegedviolation —instead of “on behalfofthe general public,"as private suits are brought underthe UCL. Third, the proposed civil penalties are relatively low. Most ofthe penalty recover would bedivided between the LWDA (25 percent) and the General Fund (50 percent), and the remaining25 percent would be divided between all identified employees aggrieved by the violation, insteadof being retained by a single plaintiff. The sponsors contend thatthis distribution ofpenalties .would discourageany potential plaintiff from bringing suit over minor violations in order tocollect a "bounty"in civil penalties. Finally, the bill provides that no private action may be brought when the LWDA or anyofitssubdivisionsinitiates proceedingsto collect penalties on the same factsor theories under thesame code provisions. Related Legislation: AB 276 (Koretz) of2003 increases various civil penalties underthe Labor Code, many of whichhave not been increased for decades. AB 276is currently pendingbefore the Senate Committeeon LaborandIndustrial Relations. REGISTERED SUPPORT/ OPPOSITION: Support Marshalls RJN 013 (8 00 ) 66 6- 19 17 if L E G I S L A T I V E I N T E N T S E R V I C E “ 4 California Conference Board ofthe Amalgamated Transit Union California Conference ofMachinists California Independent Public Employees. Legislative Council: .California Labor Federation, AFL-CIO _ California Pipe Trades Council California Rural Legal Assistance Foundation California State Association ofElectrical Workers California Teamsters Public Affairs Council Engineers andScientists ofCalifornia, Local 20 Hotel Employees, Restaurant EmployeesInternational Union Peace Officers Research Association of California (PORAC) Professional and Technical Engineers, Local 21 Region 8 States Council of United Food & Commercial WorkersSierra Club California Western States Council of Sheet Metal Workers Opposition Alliance ofAmerican Insurers Associated Builders and Contractors of California Association of California Water Agencies California Apartment Association California Chamber ofCommerce California Landscaper Contractors Association California Manufacturers & Technology Association __ California Motor Car DealersAssociation California Restaurant Association Civil Justice Association of California Motion Picture Association ofAmerica, California Group WineInstitute Analysis Prepared by: Ben Ebbink/L. & E./ (916) 319-2091 Marshalls RJN 014 (8 00 ) 66 6- 19 17 L E G I S L A T I V E I N T E N T S E R V I C E o k a ! EXHIBIT 1 LEGISLATIVE INTENT SERVICE,INC. 712 Main Street, Suite 200, Woodland, CA 95695 (800) 666-1917 * Fax (530) 668-5866 + www.legintent.com DECLARATION OF FILOMENA M. YEROSHEK I, Filomena M. Yeroshek, declare: I am an attorney licensed to practice before the courts of the State of California, State Bar No. 125625, and am employed by Legislative Intent Service, Inc. a company specializing in researching the history andintentoflegislation. Under my direction and the direction of other attorneysonstaff, the research staff of Legislative Intent Service, Inc. undertook to locate and obtainall documents relevant to the enactment of Senate Bill 796 of 2003. Senate Bill 796 was approvedby the Legislature and was enacted as Chapter 906 of the Statutes of 2003. The following list identifies all documents obtainedbythestaff of ~ LegislativeIntent Service, Inc: on Senate Bill 796of2003. Alt listed documents have been forwarded with this Declaration except as otherwise noted in this Declaration. All documents gathered by Legislative Intent Service, Inc. and all copies forwarded with this Declaration are true and correct copies ofthe originals located by Legislative Intent Service, Inc. In compiling this collection, the staff of Legislative Intent Service, Inc. operated under directions to locate and obtainall available material onthebill. SENATEBILL 796 OF 2003: 1. All versions of Senate Bill 796 (Dunn-2003); 2. Procedural history of Senate Bill 796 from the 2003-04 Senate Weekly History; 3. Analysis of Senate Bill 796 prepared for the Senate Committee on Laborand Industrial Relations; 4. Material from the legislative bill file of the Senate Committee on LaborandIndustrial Relations on Senate Bill 796; 5. Analysis of Senate Bill 796 prepared for the Senate Committee on Judiciary; 6 Material from thelegislative bill file of the Senate Committee on Judiciary on Senate Bill 796; Page 1 of 2 Marshalls RJN 015 7. Third Reading analysis of Senate Bill 796 prepared by the Office of Senate Floor Analyses; 8. Material from the legislative bill file of the Office of Senate Floor Analyses on Senate Bill 796; 9. Analysis of Senate Bill 796 prepared for the Assembly Committee on Labor and Employment; 10. Material from thelegislative bill file of the Assembly Committee on Labor and Employment on Senate Bill 796; 11. Analysis of Senate Bill 796 prepared for the Assembly Committee on Judiciary; 12. Material from the legislative bill file of the Assembly Committee on Judiciary on Senate Bill 796; 13. Analysis of Senate Bill 796 prepared for the Assembly Committee on Appropriations; 14. Material from the legislative bill file of the Assembly Committee on Appropriations on Senate Bill 796; 15. Two Third Reading analyses of Senate Bill 796 prepared by the Assembly Committee on Labor and Employment; 16. Unfinished Business analysis of Senate Bill 796 prepared by the Office of Senate Floor Analyses; 17. Material from thelegislative bill file of Senator Joe Dunn on Senate Bill 796; 18. Post-enrollment documents regarding Senate Bill 796; 19. Press Release #L03:194 issued by the Office of the Governor ~ ... -On-October 12,2003 to announcethat Senate Bill 796 had been signed; 20. “Senate OKs ConsumerPrivacy Bill” from the Los Angeles Times, May 30, 2003, obtained from http://www.latimes.com. I declare under penalty of perjury under the lawsofthe State of California that the foregoingis true and correct. Executed this 14" day of January, 2008 at Woodland, California. FILOMENA M. YEROSHEK W:\WDOCS\SNATBILL\sb\796\00038167.DOC Page 2 of 2 Marshalls RJN 016 EXHIBIT B Date ofHearing: June 16, 2004 ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT Paul Koretz, Chair SB 1809 (Dunn) — As Amended: May 26, 2004 SENATEVOTE: 21-13 SUBJECT: Employment. SUMMARY: Amendsthe "Labor Code Private Attomeys General Act of2004," enacted pursuant to SB 796 (Dunn), Chapter # 906, Statutes of 2003. Specifically, this bill: 1) ?rovides that a civil penalty for any violation of a posting or notice requirementofthe ‘Labor Code may only be recovered the Labor and Workforce Development Agency {LWDA)or any ofits subordinate agencies or employees. 2) States thattrial courts have the discretion to award less than the maximum civil penalty available under current law when to do otherwise would be unfair, arbitrary and capricious, — or confiscatory, would be whoily disproportionate to any discernible and legitimate legislative goal, and would demonstrably overbalance and outweigh the goals of “yunishment, regulation, and deterrence. 3) Requires an individual, prior to bringing a civil action, to report the alleged violation in writing to the LWDAandrequires that, within 15 calendar daysofthe report, nostate 2uforcement action has commenced. An individual would be required to file with any civil action a certification stating that he or she has complied with these requirements. 4) Specifies that these amendmentsto the provisions ofexisting law shall apply to anycivil action brought pursuant to this section that is filed on or after, or is pending on, the effective date ofthe amendments. EXISTING LAW establishesan alternative "private attorney general" system for labor law enforcementthat allows employees to pursue civil penalties for employment law violations. Specifically, existing law: 1) Establishes a civil penalty where one is not specifically provided under the Labor Code of $100 for each aggrieved employee per pay periodfor an initial violation, and $200 for each aggrieved employee per pay period for subsequent violations. The penalty is $500 per v.olation where the violator does not employany employeesat the time oftheviolation. 2) Authorizes an "aggrieved employee"to recover civil penalties under the. Labor Code in an action brought on behalf ofhimselfor herself and other current or former employees against whom one or more ofthe alleged violations was committed. 3). Defines an "aggrieved employee" as any person who was employedbythe alleged violator and against whom oneor more ofthe alleged violations was committed. LIS-7 ° : . “ a ! L E G I S L A T I V E I N T E N T S E R V I C E (8 00 ) 6 6 6 - 1 9 1 7 Marshalls RJN 017 4) Providesthat no private right ofaction may be maintained where the LWDAoranyofits subdivisions cites the alleged violator on the same facts and theories and under the same setion or sections of the Labor Code,orinitiates specified proceedings. 5) Specifies that where the LWDAor anyofits subdivisions has discretion to assess a civil penalty, a court may exercise the same discretion with respect to civil penalties established by SB 796. 6) Providesthat the civil penalties recovered against a person that employs one or more eniployees shall be distributed as follows: 50% to the General Fund, 25% to the LWDAfor employer and employee education, and 25% to the aggrieved employees. Civil penalties recovered against person that do not employ any employees are to be divided evenly between the General Fund and the LWDA. ‘7) Providesfor the award ofreasonable attorney's fees and costs to an aggrieved employee who svails in acivil action. 8) Specifies that these provisionsoflaw are notintendedto affect the exclusive remedy - provided by the workers' compensation provisionsofexisting law. FISCAL EFFECT: Unknown GovemorinOctober. Thelegislation went into effect on January 1, 2004. The co-sponsorsof. SB 756,the California Labor Federation, AFL-CIO and the California Rural Legal Assistance Founcation (CRLAF), argued that the bill would address inadequaciesin labor law enforcement in two major ways. First, the bill assigned civil fine amounts to the large number of Labor Code provisions, which previously carried criminal fines, but not civil penalties. Second, it authorized the filing ofcivil actions to recover existing and new civil penalties by aggrieved workers acting as private attorneys general. Argurnents in Support Proponents ofthis measure, including its sponsor, CRLAF,arguethat last year's SB 796 was a result of an acknowledgmentonthe part ofthe Governor and the Legislature that enforcement staffofthe state labor law enforcement agencies had fallen drastically behind the growth in the labor force and would continue to worsen with the state budget crisis. Rather than turn a blind eye tcward labor law enforcement, SB 796 was enacted, which allows employees to seekredress directly when the state has not doneso on their behalf. According to supporters, today the budget picture is even worse and SB 796isstill good policy. Proponents ofthis measure state that this bill addresses an issue raised by opponents of SB 796 whoasserted that it provided no discretion to reduce the penalties under the law and that significant inadvertent violations could lead to astronomical penalties. This bill gives clear indicetion to trial courts that they havediscretion to award less than the maximum civil penalty _ available under statute whento do otherwise would be unfair, arbitrary and oppressive, or confiscatory. In addition, this bill eliminates the ability of aggrieved employeesto recover civil penalties for violations of "posting" or “notice” provisions ofthe Labor Code, while preserving. the right ofthe LWDAandits subordinate agencies and employees to assess and collect civil (8 00 ) 6 6 6 - 1 9 1 7 Marshalls RUN 018 SB 1809" Page 3 penalties for these violations. Finally,this bill establishes a mechanism to notify the LWDA of _ the al.eged violation, and gives the LWDAtimeto issuea citation with respectto that alleged violation. CRLAF also points outthat the original provisions of SB 796, which remain unchenged bythis bill, specify that no private right ofaction may be maintained where the LWDAoranyofits subdivisions cites the alleged violator on the samefacts and theories and under the samesection or sections ofthe Labor Code,orinitiates specified proceedings. CRLAF states that, although it supports state labor posting lawsand also believes that existing case Jaw precludes large mandatory civil penalty awards,it agrees that the carefully crafted amendments to SB 796 made bythis bill are improvements which deserve to be signed into law. Argu:nents in Opposition Opponents, including the Califommia Chamber ofCommerce and the Civil Justice Association of California, generally argue that this bill is an inadequate attempt to address the lawsuit abuses already associated with SB 796 and that, in reality, this bill does nothing to lessen the opportunities made possible by SB 796 for “bounty hunting"private attorneys to sue employers. Instend, opponents ofthis measure continue to advocate forthe repeal ofSB 796in its entirety. Specifically, opponents argue that the amendmentregarding posting and notice is a superficial . improvement because the provision does no morethan to direct the paymentofthefine solely to the LWDA and the state general fund, instead ofthe plaintiff. Further, the opponents argue that adjust the enormouscivil fines imposedby SB 196, due to the manyfindings a court would have to mike in order to justify such a reduction. Finally, opponents arguethat the notice provisions are far too abbreviated andthat subsequentprovisionsofthe bill take away anyreliefthat that review might have provided. Opponents argue that 15 calendar days is an insufficient amountof | time for the LWDA to commencethe required state enforcement action, and therefore this provision does nothing to ensure that fee-seeking attorneys are prevented from abusing the prov:sions of SB 796. Committee Staff Comment: The authorindicates that he is currently drafting additional amendments to significantly limit the applicability ofSB 796. The authorstates that he will be prepared to present and discuss those amendments bythetime this bill is heard in the Assembly Judiciary Committee. ; REGISTERED SUPPORT/ OPPOSITION: Support American Federation of State, County and Municipal Empioyees Calijomia Labor Federation, AFL-CIO Calijornia Rural Legal Assistance Foundation United Nurses Associations of California/Union ofHealth Care Professionals Oppvsition American Electronics Association Asscciated General Contractors $4 ! LE GI SL AT IV E IN TE NT SE RV IC E. (8 00 ) 6 6 6 - 1 9 1 7 Marshalls RJN 019 Association of California Insurance Companies Automotive Repair Coalition Blue Cross of California Califomia Apartment Association Califormia Association ofHealth Facilities California Association of Sheet Meta] & Air Conditioning Contractors, National Association California Automotive Wholesalers Coalition California Bankers Association California Business Properties Association California Business Roundtable Califormia Farm Bureau Federation California Grocers Association California Healthcare Association California Landscape Contractors Association California League ofFood Processors California Manufacturers & Technology Association Califomia Restaurant Association Califomia Service Station & Automotive Repair Association Civil Justice Association ofCalifornia , Consulting Engineers & Land Surveyors ofCalifomia LumberAssociation of California & Nevada Miller Brewing Company OrangeCounty Citizens ‘AgainstLawsuit Abuse Analysis Prepared by: Ben Ebbink / L. & E. / (916) 319-2091 Marshalls RJN 020 SENATE RULES COMMITTEE SB 1809 Office of Senate Floor Analyses 1020 N Street, Suite 524 (916) 445-6614 Fax: (916) 327-4478 UNFINISHED BUSINESS Bill No: SB 1809 Author: Dunn (D) Amended: 7/27/04 Vote: 27 - Urgency SENATE LABOR & INDUST. RELATIONS COMMITTEE: 7-1, 4/28/04 AYES: Alarcon, Dunn, Figueroa, Kuehl, Margett, McClintock, Romero NOES: Oller (8 00 ) 6 6 6 - 1 9 1 7 SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8 SENATE FLOOR: 21-13, 5/26/04 AYES: Alarcon, Bowen, Burton, Cedillo, Chesbro, Dunn,Escutia, Figueroa, Florez, Karnette, Kuehl, Murray, Ortiz, Perata, Romero, Scott, ‘Soto, Speier, Torlakson, Vasconcellos, Vincent NOES: Aanestad, Ackerman, Ashburn, Battin, Brulte, Denham, Hollingsworth, Johnson, Margett, McPherson, Morrow,Oller, Poochigian NO VOTE RECORDED: Alpert, Ducheny, Machado, McClintock, Sher, Vacancy 44 ! LE GI SL AT IV E IN TE NT SE RV IC E o e a n e s a e- ASSEMBLY FLOOR:79-0, 7/28/04 - See last page for vote SUBJECT: Labor CodePrivate Attorneys General Act of 2004 SOURCE: — CaliforniaRural Legal Assistance Foundation DIGEST: | This bill significantly amends “The Labor Code Private Attorneys General Act of 2004” [SB 796 (Dunn), Chapter 906, Statutes of2003], by enacting specified procedural and administrative requirements that LIS - 6 SAA CONTINUED Marshalls RJN 021 SB 1809 Page 2 must be metprior to bringing a private action to recovercivil penalties for Labor Codeviolations. Assembly Amendments delete the prior version, however, the subject remains the same. Asit left the Senate, the bill amended the Act to (1) clarify that a court has discretion to award less than the maximum civil penalty, and (2) eliminate the ability of employeesto recovercivil penalties for violation of “posting”or “notice” provisions. ANALYSIS: Existing law allows employeesto bring civil actions against their employers to recoverpenalties for violations of the Labor Codeif the LWDA,orits subordinate agencies or employees do not do so. LWDA enforcementactions have primacy overanyprivate enforcementefforts undertaken pursuantto this act. Anypenalties recovered by an aggrieved employee mustbe distributed as follows: 50 percent to the General Fund, 25 percent to LWDAfor employer education and 25 percent to the aggrieved employees. Thisbill significantly amends “The Labor CodePrivate Attomeys General _ Act of 2004” by enacting specified procedural and administrative requirements that must be metprior to bringing a private action torecover civil penalties for Labor Code violations. Specifically, this bill: Serious Labor Code Violations. Establishes a new procedure that an aggrieved employee must follow prior to bringing a civil action to recover penalties for enumerated, serious Labor Codeviolations (including, but not limited to, violations of wage andhour, overtime, child labor, agricultural, entertainment and garmentindustry labor laws, and public works laws). 1. The aggrieved employee mustprovide written notice of the violation to the Labor and Workforce Development Agency and employer. The Labor Agency has 30 daysto decideif it will investigate the violation. 2. Ifthe Labor Agency decidesto investigate the alleged violation, it must notify the employerandthe aggrieved employee within 33 days. Within 120 daysofthat decision, the Labor Agency may investigate the alleged violation and issue any appropriatecitation. 3. Ifthe Labor Agencyfails to act, the aggrieved employee may pursue a civil action pursuant to SB 796. CONTINUED SFA-¢ Marshalls RJN 022 (8 00 ) 6 6 6 - 1 9 1 7 ¥/ LE GI SL AT IV E IN TE NT SE RV IC E SB 1809 Page 3 Notice and Cure Procedures for Other Labor Code Violations. Establishes Notice and Cure provisionsfor those Labor Codeviolations not enumerated in paragraph (1) above, nor subject to the Cal-OSHAprovisions specified in the health and safety violations section below. 1. ._For the aggrieved employee to dispute that theallegedviolationhasbeen The aggrieved employee must give written notice to the Labor Agency and the employerofthe alleged violation. The employer may curethe alleged violation within 33 days and give written notice to the employee and the Labor Agencyif the alleged violation is cured. If the alleged violationis cured,nocivil action pursuant to SB 796 may commence. If the alleged violation is not cured within the 33-day period, the aggrieved employee may commencea civil action pursuant to SB 796. ( 80 0) 6 6 6 - 1 9 1 7 cured, the employee must provide written notice to the employer andthe Labor Agency. Within 17 days the Labor Agency must review the actions of the employer and provide written notice of whether the alleged violation has been cured. If the Labor Agency determinesthat the alleged violation has not been curedor if the agencyfails to provide timely or any notification, the aggrieved employee mayproceed with a civil action pursuant to SB 796. If the agency has determinedthatthe alleged violation has been cured, but the employeestill disagrees, the employee may appealthat determination to the superior court. 4/ LE GI SL AT IV E IN TE NT SE RV IC E Y , No employer may avail himselfor herself of the Notice and Cure provisions more than three times in a 12-month period for the same violation or violationscontainedin the notice, regardless of the location of the worksite. Health and Safety (Cal-OSHA)Violations. Establishes a new procedure that an aggrieved employee mustfollow priorto initiating a civil action to recoverpenalties for violations of Labor Codeprovisions pertaining to occupational safety and health (Cal-OSHA), other than sections that are CONTINUED -9F4°3 Marshalls RUN 023 SB 1809 Page 4 specifically enumeratedin the serious Labor Code violations section above. 1. The aggrieved employee must give written notice to the Division of Occupational Safety and Health (DOSH)within the State Department of Industrial Relations(DIR)and the employerofthe alleged violation. 2. DOSH mustinspectorinvestigate the alleged violation pursuant to. existing provisions oflaw. 3. IfDOSHissuesa citation, no civil action pursuant to SB 796 may commence. 4. If, by the endofthe period for inspection or investigation, DOSHfails to issue a citation and the employeedisputesthat decision, the employee may challenge the decision in the superior court. If the court finds that DOSHshould have issued a citation and orders DOSHtoissue a citation, then no civil action pursuantto SB 796 may commence. (8 00 ) 6 6 6 - 1 9 1 7 5. IfDOSHfails to inspect orinvestigate the alleged violation within the period specified in existing Iaw, the Notice and Cure provisions outlined above apply to the determination of the alleged violation. 6. Requires superior court review of any proposedsettlement ofalleged safety in employmentviolations to ensure that they are at least as effective as the protections or remedies provided in federal andstate law. Judicial Discretion Over Award Amounts. Authorizes a court to award a lesser amount than the maximumcivil penalty amountallowed ifto do otherwise would result in an award thatis “unjust, arbitrary and oppressive, or confiscatory.” if L E G I S L A T I V E I N T E N T S E R V I C E e . o n 0 w a n e ? Exemption for Minor Violations. Providesthat no action underSB 796 may be brought for anyviolation of a posting, notice, agency reporting,or filing requirementexcept wherethefiling or reporting requirement involves mandatory payroll or workplaceinjury reporting. Prohibition on Retaliation. Prohibits an employer from retaliating against any employee that brings a civil action under SB 796 in the form of discharge or any mannerofdiscrimination. sFAY CONTINUED Marshalls RUN 024 Way Luv Page 5 Funding. Appropriates $150,000 from the General Fundin the current year for implementation. Urgency. Is an urgency measure and applies retroactively to January 1, 2004 (the date SB 796 was enacted). Comments The California Rural Legal Assistance Foundation,the bill’s sponsor, argue that last year’s enactment of SB 796, (Dunn), Chapter 906, Statutes of 2003, was a result of the Governor and the Legislature acknowledging that enforcementstaff of the state labor law enforcement agencies had fallen drastically behind the growth in the labor force and would continueto worsen with the state budget crisis. Rather than turn a blind eye toward labor law enforcement, SB 796 was enacted, which allows employees to seek redress directly when the state has not done so on their behalf. SB 1809is a result of an agreement reached between the Labor Agency, businessand labor representatives. SB 1809improves SB 796 by allowing the Labor Agencyto act first on more “serious” violations such as wage and hour violations and give employers an opportunity to cure less serious . ~ violations.The billprotects businesses fromshakedown lawsuits, yet ensuresthat labor laws protecting California’s working men and women are enforced — either through the Labor Agencyor through the courts. (8 00 ) 6 6 6 - 1 9 1 7 Background. SB 796 established an alternative “private attorneys general” system for labor law enforcement that allows employeesto pursuecivil penalties for employmentlaw violations. SB 796 established a civil penalty where one wasnotspecifically provided under the Labor Code of$100 for each aggrieved employee per pay period for an initial violation, $200 for each aggrieved employee per pay period for subsequentviolations, and $500 per violation where the violator did not employ any employeesat the time of the violation. o “ a LE GI SL AT IV E IN TE NT SE RV IC E e o =2 ,% a g e SB 796 authorizes an aggrieved employeeto recover civil penalties plus reasonable attorney’s fees and costs in an action brought on behalfof himself or herself and other current or former employees against whom one or moreofthe alleged violations was committed. SB 796 provides that no private right of action may be maintained where the Labor Agencycites the alleged violator on the samefacts and theories and under the samesection or sections of the Labor Code,or initiates specified proceedings. CONTINUED Marshalls RJN 025 SB 1809 Page 6 Thecivil penalties and private right of action established by SB 796 were intended to improve Labor Code enforcement. Under prior law, many Labor Code violations were punishable only as misdemeanors, with nocivil penalty or other sanction attached. Sincedistrict attorneys tend to direct their resources to violent crimes and other public priorities, Labor Code violationsrarely resulted in criminal investigations and prosecutions. Rationale. Business groups andothers opposed to SB 796 arguethatit tips the balanceoflabor law protection in disproportionate favor of employees, — by encouraging private attorneysto act as bounty hunters pursuingfrivolous violations on behalfof employees, in the same mannerin which Section 17200 of the Business and Professions Code has been abused. This bill significantly amendsthe provisions of SB 796 by enacting specified procedural and administrative requirements that must be met prior to bringing a private action to recovercivil penalties. Moreover,this bill. provides that noaction shall be brought for a posting, notice, agency reporting,or filing requirement, except as specified. (8 00 ) 6 6 6 - 1 9 1 7 This bill also expands judicial review ofSB 796 claims by requiring courts to review and approve any penalties soughtas part of a proposedsettlement agreement, and those portions of settlements concerning violations ofhealth and safety laws. In addition, courts are authorized to award a lesser amount if to do so otherwiseresults in an award thatis unjust, arbitrary and oppressive, or confiscatory. if L E G I S L A T I V E I N T E N T S E R V I C E FISCAL EFFECT: Appropriation: Yes Fiscal Com.: Yes Local: No J, Appropriates $150,000 from the General Fund to the Labor Agencyto ontimplementthis act. The Labor Agencyindicatesthatits costs likely will "e exceed this amount, andit will redirect resources as necessary to accomplish the purposesofthis act. Modifies the civil penalty distribution formula under SB 796 that applies in cases where the employer employs one or more employees, as follows: 1. Increases the amountdistributed to the Labor Agency for enforcement and education from 25 percent to 75 percent, and adds a continuous appropriation for these purposes. SFA. 6 CONTINUED Marshalls RJN 026 SB 1809 Page 7 2. Eliminates the distribution of 50 percentof these civil penalties to the General Fund. 3. Retains the current distribution of 25 percent of these civil penalties to the aggrieved employees. Modifies the civil penalty distribution formula under SB 796 that applies in cases where the employer employs does not employ one or more employees, as follows: 1. Increases the amountdistributed to the Labor Agency for enforcement and education from 50 percent to 100 percent, and adds a continuous appropriation for these purposes. 2. Eliminates the distribution of 50 percent of these civil penalties to the General Fund. (8 00 ) 6 6 6 - 1 9 1 7 (The Labor Agencyreports that most civil actions brought to date underSB 796 have been settled out of court, where these civil penalty distributions formulas do not apply. To date, the Labor Agency has only received distribution of civil penalty revenues, totaling less than $100.) SUPPORT: (Verified 7/28/04) American Federation of Television and Radio Artists California Chamber of Commerce California Conference Board of the Amalgamated TransitUnion California Conference ofMachinists California Federation of Teachers California Labor Federation California Manufacturers and Technology Association California Restaurant Association California Rural Legal Assistance Foundation California Teamsters Public Affairs Council Engineers and Scientists of California Hotel Employees, Restaurant Employees International Union Jockeys’ Guild Professional and Technical Engineers, Local 21 Region 8 States Council of the United Food & Commercial Workers s d L E G I S L A T I V E I N T E N T S E R V I C E h e SFA-7 CONTINUED Marshalls RUN 027 SB 1809 Page 8 ASSEMBLY FLOOR: AYES: Aghazarian, Bates, Benoit, Berg, Bermudez, Bogh, Calderon, Campbell, Canciamilla, Chan, Chavez, Chu, Cogdill, Cohn, Corbett, Correa, Cox, Daucher, Diaz, Dutra, Dutton, Dymally, Firebaugh, Frommer, Garcia, Goldberg, Hancock, Harman, Haynes, Jerome Horton, Shirley Horton, Houston, Jackson, Keene, Kehoe, Koretz, La Malfa, La Suer, Laird, Leno, Leslie, Levine, Lieber, Liu, Longville, Lowenthal, Maddox, Maldonado, Matthews, McCarthy, Montanez, Mountjoy, Mullin, Nakanishi, Nakano, Nation, Negrete McLeod, Oropeza, Pacheco, Parra, Pavley, Plescia, Reyes, Richman, Ridley-Thomas, Runner,Salinas, Samuelian, Simitian, Spitzer, Steinberg, Strickland, Vargas, Wesson, Wiggins, Wolk, Wyland, Yee, Nunez NO VOTE RECORDED: Maze NC:mel 7/29/04 Senate Floor Analyses SUPPORT/OPPOSITION: SEE ABOVE xeek ENDPD *eee SFA-8 Marshalls RJN 028 (8 00 ) 6 6 6 - 1 9 1 7 g f L E G I S L A T I V E I N T E N T S E R V I C E es % EXHIBIT 2 LEGISLATIVE INTENT SERVICE,INC. 712 Main Street, Suite 200, Woodland, CA 95695 (800) 666-1917 * Fax (530) 668-5866 * www.legintent.com DECLARATION OF FILOMENA M. YEROSHEK I, Filomena M. Yeroshek, declare: I am an attorney licensed to practice before the courts ofthe State of California, State Bar No. 125625, and am employedby Legislative Intent Service, Inc., a company specializing in researching thehistory andintentoflegislation. Under mydirection and the direction of other attorneysonstaff, the research staff of Legislative Intent Service, Inc. undertook to locate and obtainall documents relevant to the enactment of Senate Bill 1809 of 2004. Senate Bill 1809 was approved by the Legislature and was enacted as Chapter 221 of the Statutes of 2004. The followinglist identifies all documents obtainedbythestaff of ~~~ Legislative Intent Service, Inc. on Senate Bill1809of2004.All isteddocuments have been forwarded with this Declaration except as otherwise noted in this Declaration. All documents gathered by Legislative Intent Service, Inc. and all copies forwarded with this Declaration are true and correct copies of the originals located by Legislative Intent Service, Inc. In compiling this collection, the staff of Legislative Intent Service, Inc. operated under directions to locate and obtainall available material on the bill. SENATEBILL 1809 oF 2004: 1. All versions of Senate Bill 1809 (Dunn-2004); 2. Procedural history of Senate Bill 1809 from the 2003-04 Senate Weekly History; 3. Analysis of Senate Bill 1809 prepared for the Senate Committee on Labor and Industrial Relations; 4. Material from the legislative bill file of the Senate Committee on Labor and Industrial Relations on Senate Bill 1809; 5. Five Third Reading analyses of Senate Bill 1809 prepared by the Office of Senate Floor Analyses; 6. Material from the legislative bill file of the Office of Senate Floor Analyses on Senate Bill 1809; Page | of 2 Marshalls RJN 029 7. Analysis of Senate Bill 1809 prepared for the Assembly Committee on Labor and Employment; 8. Material from the legislative bill file of the Assembly Committee on Labor and Employmenton Senate Bill 1809; 9, Analysis of Senate Bill 1809 prepared for the Assembly Committee on Judiciary; 10. Material from the legislative bill file of the Assembly Committee on Judiciary on Senate Bill 1809; 11. Analysis of Senate Bill 1809 prepared for the Assembly Committee on Appropriations; 12. Material from the legislative bill file of the Assembly Committee on Appropriations on Senate Bill 1809; 13. Third Reading analysis of Senate Bill 1809 prepared by the Assembly Committee on Labor and Employment; 14. Two Unfinished Business analyses of Senate Bill 1809 prepared by the Office of Senate Floor Analyses; 15. Material from the legislative bill file of Senator Dunn on Senate Bill 1809; 16. Post-enrollment documents regarding Senate Bill 1809 - (Governor Schwarzenegger’s legislative files are currently not available to the public.); 17. Excerpts regarding Senate Bill 1809 from the Senate Daily Journal, July 27", 29, and August 19, 2004; 18. All versions of Assembly Bill 2181 (Campbell-2004); --49,All-versions-ofAssemblyBiH 3002-(Housten-2004); . --.-. ----. = 20. All versions of Senate Bill 1861 (Ashburn-2004); 21. All versions of Assembly Bill 2650 (Bates-2004). I declare under penalty of perjury under the laws of the State of California that the foregoingis true and correct. Executed this 14" day of January, 2008 at Woodland, California. FILOMENA M. YEROSHEK W:AWDOCS\SNATBILL\sb\1809\00045650.DOC Page 2 of 2 Marshalls RJN 030 EXHIBIT C 0 oe Y A W e a w H r | w e e e e e i e e e =— |— |— = l l R B X R R S R P R B B R E SF S e T D A B R E E H A S NO SUMMONSISSUED NAVA LAW FIRM, APC César H. Nava, Esq., State Bar # 188549 300 Esplanade Drive,Suite 900 Oxnard, California 93030 Telephone: he 981-3912 Facsimile: (805) 522-6436 CULLEN & ASSOCIATES, APC Paul T. Cullen, Esq., State Bar# 193575 225 South Lake Avenue, 9" Floor FILED LOS ANGELES SUPERIORCOURT JUL 0 7 2006 Pasadena, CA 91101-3005 Telephone: Facsimile: 626) 744-9125 (636) 744-9436 aA. CLARKE, CLERK L.ADEPUTY SUPERIOR COURT OF THE STATE OFCALIFORNIA IN AND FOR THE COUNTY OF LOS ANGELES SEBASTIAN RODRIGUEZ,and JOSE LUIS MOSQUEDAonbehalf ofthemselves andall others similarly situated, CASENo.: BC321310 Assignedfor all oses to Honorable Pau Caos Dept34 INC., a California Corporation; and DOES1-50, inclusive, Defendants | W N N E P O O R N O S Plaintiffs, SECOND AMENDED CLASS ACTION COMPLAINTFOR: (1) FAILURE TO PAY WAGES DUE BELAIRE-WEST LANDSCAPE, AND OWING (CAL. LABOR CODE§510); (2) VIOLATION OF MEAL & REST PERIOD REQUIREMENTS,CAL. LABOR COD $12 AND 226.7; (3) VIOLATION OF CAL. BUSINESS AND PROFESSIONS CODE §§ 17200 et seg. (4) FAILURE TO PAY PREVAILING WAGES FOR PUBLIC WORKS; (5) VIOLATION OF LABOR CODE§ 203 (6) BREACH OF WRITTEN CONTRACT: 7) ACCOUNTING; AND 8) RECOVERY OF UNPAID IMUM WAGES Complaint Filed: September 10, 2004 DEMAND FOR JURY TRIAL ! Second Amended Complaint Marshalls RJN 031 oO o O o N D D A B R W D N Y B N R R B R B R N B S S T A R E S H S S Plaintiffs, SEBASTIAN RODRIGUEZ, and JOSE LUIS MOSQUEDAherein referred to as “Plaintiffs,” individually and on behalf ofall others similarly situated pursuantto leave of court, hereby submit their Second Amended Complaint, bolding the portions of text that have been added,andthey allege as follows: GENERAL ALLEGATIONS 9. This is a class action brought against Defendants, and each ofthem, on behalfofa collective class ofall persons employed by Defendants, and each ofthem, in the position of“Landscaper”in the State of California (or persons with the equivalent position howevertiled) who were not paid wages pursuantofCalifornia law prior and subsequentto the date this action was filed. 10. This action alleges that Defendants, and each of them:(1) improperly and in violation ofCalifornia state law failed to pay wages due and owingto their “Landscapers”in violation of, inter alia, California Labor Code sections 512, 226.7 and subsections 3, 11, and 12 ofthe applicable California Industrial Welfare Commission to pay compensation to former employeesin violation of California Labor Code 203; (4) failed to pay prevailing wages in breach or written contract and statutory law. Plaintiffs also assert that Defendants, and each ofthem, had the clear ability to pay such wages as are/were due and owingtothe Plaintiffs and members ofthe Plaintiff Class, but deliberately chose not to pay such wages in consciousdisregard ofthe Plaintiffs’ and the Class’ rights, thus entitling Plaintiffs and the putative Plaintiff Class to an award of exemplary and punitive damages,to the extent the same exceed any statutory penalties imposed upon Defendants attimeoftrial, pursuant to Marshall v. Brown (1983) 141 C2.App.3d 408. qi 11. This action seeks relief for the unremedied violations of California law insluding,inter alia: (2)damages and/or restitution, as appropriate, to Plaintiffs and to the Class mbers, for non-paymentof the wages due them pursuant to both contract and California1law, includinginterest thereon; E N E 2 Second Amended Complaint Marshalls RJN 032 Orders; (2) violatedCaliforniaBusiness andProfessions Code 17200,et. seq:;(3)failed| oO o o e S D H A B R W D N Y — e n B N E R K R B R H R B S e K A A E A E S E H K A S {b) damages and/or penalties for Plaintiffs and Class Members whoserecords of ours worked have not been properly maintained and/or furnished in conformity with California law; (c) implementation of other equitable and injunctiverelief, includinginter alia, an injunction prohibiting Defendants, and each ofthem, from continuing to: 1) fail to pay wages to “Landscapers”as required under California Labor ode sections 512, and subsections 3, 11 and 12 ofthe applicable Industrial Welfare Commission Orders; (2) fail to pay compensation all compensation due to their “Landscaper” employees at the time ofthe termination of their employmentin violation of California Labor Codesections 293; and (3) convert the wagesoftheir “Landscaper” employees for their own use and benefit; (d) attorney fees and costs asProvided by statute and/or applicable case law including, but not limited to California Labor Code sections 218.5 and 1194; and, California Code of Civil Procedure 1021.5 (e) such otherreliefas the court deemsjust and proper. 12. This class-action lawsuit for damages and equitablerelief is founded upon Code, Industrial Welfare Commission Wage Orders whichare set forth in the California Code of Regulations, and the California Business and Professions Code. 13. Venueis proper in Los Angelcs County because Defendants operate and conduct business in Los Angeles County where Defendants havefailed to pay Plaintiffs and Class Members wages in violation of California law. Plaintiffs and the Class Members have suffered damages and will continue to suffer the same harm as the Representative Plaintiffs, SEBASTIAN RODRIGUEZ,and JOSE LUIS MOSQUEDA as a result ofDefendants, and each oftheir wrongful conduct unless thereliefrequested herein is granted. , 9 14. Defendant BELAIRE-WEST LANDSCAPE, INC.("Defendant’) is, and at Greievant times mentioned herein was, a corporation organized and existing underthe laws ofthe State ofCalifornia and doing business within the State of California, adthorized to do and doing business in the County of Los Angeles. 3 Second Amended Complaint Marshalls RJN 033 California state lawincluding,butnotlimited to, violations ofthe CaliforniaLabor =| __ o O f e Y N D H Y D P R W W H N — we t m m a e s t a t e 15. Plaintiffs and the putative Plaintiff Class members were and are employed as “Landscapers”(or the equivalent), by Defendants, and each ofthem, and work in Los Angeles County, Ventura County, and various other counties in the State of California. 16. Plaintiff, SEBASTIAN RODRIGUEZ,is a resident of Kern County, California and was employed by Defendants as a “Landscaper,” from August 11, 2003 to on or about, November 22, 2003. He brings this action in his individual capacity on behalfof himself, and on behalfofall other “Landscapers” similarly situated pursuantto California Code of Civil Procedure section 382, and, pursuant to California Business and Professions Code 17200et. seq., and on behalf of the general public. 17. Plaintiff, JOSE LUIS MOSQUEDAis a resident of Kern County, California and was employed by Defendants as a “Landscaper” from September, 2003 to on or about November 22, 2003. He brings this action in his individual capacity on behalf ofhimself, and on behalfofall other “Landscapers”, similarly situated pursuantto California Code ofCivil Procedure section 382, and pursuantto California Business and |Professions Code 17200et. seq., and on behalfofthe general public. 18. Thetrue names and capacities ofthe Defendants sued herein as DOES 1 through 50, inclusive, whether individual, corporate, associate or otherwise, are unknown to Plaintiffs, who therefore sue such Defendants by their fictitious names pursuantto California Code of Civil Procedure section 474. Plaintiffs are informed andbelieve that each ofthe Doe Defendantsare liable to Plaintiffs under the same theories and causes of action as set forth in this complaint. Plaintiffs are informed and believe and thereon allege that the DOE Defendants are California residents. Plaintiffs will amendthis complaint to show such true names and capacit'es when the same have beenascertained. 9 19. Plaintiffs are informed andbelieve and thereon allege that each ofthe Disfendants herein was at all times relevant hereto, the agent, employee, servant, répresentative or alter ego ofthe remaining Defendants, and was acting,at least in part, within the course and scope ofsuch relationship. 20. Atall times mentioned, Defendants, and each ofthem, were members of, 4 Second Amended Complaint Marshalls RUN 034 u o S e N Y D O A F& F | H N H — D R m e m e e t 2 S 2 P R S e S ® ® and engagedin, ajoint venture, partnership and commonenterprise, and acting within the course and scopeof, and in pursuit of, said joint venture, partnership and common enterprise. 21. Atall times herein mentioned, Defendants, and each of them,ratified each and every act or omission complained of herein. At all times mentioned, the Defendants, and each ofthem, aided and abetted the acts and omissionsofeach and all of the other Defendants and proximately caused the damagesas alleged herein. 22. Defendants, and each ofthem, through their agents and employees(not including the Plaintiffs or members ofthe putative PlaintiffClass), established and carried out a policy whichviolated, inter alia, California Labor Code sections 203, 512, 226.7, 1198; Subsections 11, and 12 ofthe applicable Industrial Welfare Commission Orders; the Federal Davis Bacon Act; and the Wage Hour andSafety Act of1962 in that Plaintiffs, members ofthe putative Plaintiff Class were not paid overtime according to California law for time that they were required, permitted, or suffered to work including hoursdevoted to work during their statutory lunch and break periods. 23. Defendants, and each ofthem, through their agents and employees (not including the Plaintiffs or members of putative Plaintiff Class), consistently required their employees on public works projects to work in excess of eight (8) hours in a day and forty (40) hours in a work week, while limiting the pay therefor to a maximum of eight (8) hours in a day, forty (40) hours in a work week, and by making adherence to this practice a requirement for continued employment with Defendant. 24. It is the public policy ofthe United States ofAmerica, as expressed in the Federal Davis Bacon Act and Wage Hours and Safety Act of1962, that public works en be paid the prevailing wage, and overtime pay for hours worked in excess of t (8) hours in a day, and forty (40) in a work week. © 25. It is the public policy of the State of California, as expressed in Labor Code sions 510 et seq. and the State Prevailing Wage Lawsfor Public Works, that eniployees including those working on state public works projects be paid at the 5 Second Amended Complaint Marshalls RJN 035 O o B A N DB D W H S& S W D Y P — e e W w N Y = & 14 prevailing rate for eight (8) hours ofwork per day, and forty (40) hours per week, and compensatedata rate no less than one and one-halftimes the basic rate pay, for hours in excessofeight (8) hours per day, and forty (40) hours per week. 26. Asa result ofthe actions ofDefendants, and each ofthem, Plaintiffs and members ofthe putative PlaintiffClass suffered damages, including lost pay and wages. 27. These violations of law were committed knowingly and willfully by Defendants, and each ofthem, with full actual and/or constructive knowledgeofthe law cited herein. 28. Because the Defendants, and each ofthem,hadthe clear ability to comply with the law by paying the wages due, including overtime premiumpay,to the Plaintiffs and members putative Plaintiff Class, the actions ofthe Defendants, and each ofthem, were malicious and oppressive warranting an award ofpunitive and/or exemplary damages to deter other employers from engaging in similar such conduct. 29. The duties and responsibilities ofthe “Landscapers” were/arevirtually identical from region to region, area to area, and employee to employee within the State ofCalifornia. Further, any variation in job activities between the different individuals are legally insignificant vis-a-vis the issues presented by this action since the central facts are that Plaintiffs and members of the Putative Class were obligated to and/or did perform work for the Defendants, and each ofthem,without the appropriate compensation (A) for hours worked (both regular and overtime), and (B) hours worked through required meal and rest periods (or premium compensationin lieu of foregone meal and rest periods as required by California law). 30. The Plaintiffs and numerous members ofthe putative Plaintiff Class are ngw former employees of theDefendants, and vach of them. They comprise the Section 23 Subclass. At the time the employment ofmembers ofthe Section 203 Subclass was téfminated, Defendants, and each ofthem, failed to pay said Section 203 Subclass rigmbers all wages due and owingthem,including, but not limited to, basic prevailing wage for public works, overtime, double time, and premium pay for foregone meal 6 Second Amended Complaint Marshalls RJN 036 O o NM A HW B® W H e G bm Ee is B R B P R V B R B B R S S I E EI ! | and/or rest periods. Plaintiffs, members ofthe Section 203 Subclass did not secret or absent themselves from Defendants nordid they refuse to accept the earned but unpaid wages from Defendants. Accordingly, Defendants are liable to the Section 203 Subclass for waiting time penalties for all unpaid wages pursuant to California Labor Code § 203. N CLASS ACTION ALLEGATIONS working fi e t ithi jor t filing of this Co int i i i i i time thi tion i tified I 32. The members ofthe Class, and subclass(es) as defined hereinbelow,are so numerousthatjoinder ofall members would be impractical, if not impossible. The identity of the members ofthe Class and subclass(es) is readily ascertainable by review of Defendants’ records including butnot limited to records required by subsection 7 ofthe applicable Industrial Welfare Commission Orders. Further, the subject matter ofthis action both as to factual matters andas to matters of law,is such that there are questions of law and fact commonto the Class that predominate over questions affecting only individual members. ; Z 33. The California Labor Code and Wage Order provisions upon which Eresonatv Plaintiffs base their claims are broadly remedialin nature. These laws aéli laborstandards serve an importantpublic interest in establishing minimum working 9 conditions and standards in California. These laws andlabor standards protect the 7 Second Amended Complaint Marshalls RJN 037 O o o N DB D Y M F f | ] N Y = p e r m e t t e V N R R B R B R N R S S D R R T S S B S average working employee from exploiiation by employers who mayseek to take advantage ofsuperior economic and bargaining powerin setting onerous terms and conditions ofemployment. The nature ofthis action and the format oflaws available to Representative Plaintiff and the Class make the class action formata particularly efficient and appropriate procedure to redress the wrongsalleged herein. Further, this case involves a large corporate employer and a large number of individual employees with manyrelatively small claims. If each employee were required to file an individual lawsuit, the corporate Defendants would necessarily gain an unconscionable advantage since they would beable to exploit and overwhelm the limited resources ofeach individual Plaintiff and Class memberwith their vastly superior financial and legal resources. Requiring each memberofthe Class to pursue an individual remedy would also discourage the assertion of lawful claims by employees, who would be disinclined to file an action against their former and/or current employerfor real and justifiable fear of retaliation and permanent damageto their careers at their current or subsequent 34. The prosecution of separate actions by the individual Class Members, even if possible, would create a substantialrisk of (1) inconsistent or varying adjudications with respectto individual Class Members against the Defendants and which would establish potentially incompatible standards of conductfor the Defendants, and/or (2) adjudications with respect to individual Class Members which would, as a practical matter, be dispositive ofthe interests ofthe other Class Members notparties to the adjudications or which would substantially impair or impedethe ability of the Class Members to protecttheir interests. Further, the claims ofthe individual members ofthe s are notsufficiently large to warrant vigorous individual prosecution consideringall ofthe concomitant costs and expenses. © 35. Such pattern, practice and uniform administration of corporate policy refarding employee compensation as describedherein is unlawful and creates an entitlement to recovery by the Plaintiffs and the Class, in a civil action, for the unpaid 8 Second Amended Complaint Marshalls RUN 038 O o f o N D U H B P W H P Y = — w e e s P R R e P R R P B B R B S E R B A U I A B A E B E H A S balance ofthe full amountofthe pay, including interest thereon, waiting time penalties, reasonable attorney’s fees and costs of suit according to the mandates of California Labor Code 1194. 36. Plaintiffs, by proving the existence ofthe commonbusiness pattern and/or practices complainedofherein, will be able to establish not only their own right to recover damages,butalso the right of each of the members ofthe putative Plaintiff Class to recovery damages as well. 37. Members ofthe putative Plaintiff Class share a commonright to the establishmentofa specific fund to compensate them fully for the unlawful employment practices complainedofherein. The Plaintiff Class also share a common right to restitution and disgorgement ofthose fundsimproperly withheld by Defendants. Accordingly,this action is brought for the benefit ofthe entire Class, and Plaintiffs seek the the creation of a commonfund for the aforesaid purposes. 38. There is a well-defined community ofinterest in the questions of law and ||fact invotvedaffectingparties to berepresented.Thequestionsoflawandfact~ commonto the Class predominate over questions that may affect individual Class Members,and they includethe following: (a) whether Defendants were required by law to pay overtimeto . “Landscapers” who are not exempt under California Labor Code section 515 or subsection 3 of the applicable Industrial Welfare Commission Orders for time worked in excess of 8 hoursPer day, 40 hours per week. and for the time “Landscapers” worked for Defendants and were not paid; (b) whether“Landscapers” received pay due and owing pursuant to Labor ode section 226.7, and subsections 11 and 12 ofthe applicable Industrial Welfare Commission Orders; (c) whether Defendants implemented and engagedin a systematic business practice of failing to pay “Landscapers” wages according to California law forall ours worked; d) whether, upon recognizing their legal obligation to pay wages pursuantto Califomia lawto members ofthe Clase Defendants paid a wanes and overtime actually due; (c) whether Defendants failed to keep, maintain or furnish accurate records of the actual hours worked by “Landscapers” as required by subsection 7 of the applicable Industrial Welfare Commission Orders; K U N E C O O K N O 2 9 Second Amended Complaint Marshalls RJN 039 o f o Y N DB D U H B B W N Y — t e e e e t k W Y N — G S y o N Y N M N Y N Y Y S T t h l = (f) whether Defendants failed to pay prevailing wages for work on public works; (g) whether Defendants failed to maintain any other records and/or other evidencerelevantto the claimsasserted in this litigation; (h) whether Defendants willfully failed to pay all wages due and owingtoall “Landscapers” whose employment with Defendants was terminated; @ whether the systematic acts andpractices of Defendants, and each ofthem, as jeged herein violated, inter alia, California Labor Codesections 201, 202, 203, 7, 510, 512, 1174, 1194, 1198, Industrial Welfare Commission Orders and the California Business and Professions Codesection 17200,et seq.; and, (j) whether Plaintiffs and members ofthe Plaintiff Class are entitled to seek recovery of compensation pursuant to Cal. Labor Code § 558, and,if so, for what time period(s). 39. The Representative Plaintiffs’s claims are typical of the claims ofthe entire Class, because the Representative Plaintiffs and other members of the Class-Action Class in the position of “Landscaper” routinely were requested, required and permitted to work in excess ofeight (8) hours in one day and forty (40) hours in one work week, without ‘|| theappropriate compensation, as required by California LaborCode section 510 and subsections 3 and 4 of the applicable Industrial Welfare Commission Orders. Moreover, - their claims are typical because ofthe uniform duties, responsibilities, and pay scheme imposed upon Plaintiffs and all members ofthe putative Plaintiff Class by the Defendants, and each ofthem. 40. further illustration ofhow the representative Plaintiffs’ claims are typical arises from the fact that Plaintiffs and other members ofthe Plaintiff Class in the position of“Landscaper” routinely worked withouttimely being afforded breaks and/or meal periods as required by California Labor Code section 512 and subsections 11 and 12 of tHe applicable Industrial Welfare Commission Orders. They also were not compensated fkthe Defendants’ failure to provide the same pursuantto California Labor Code sdbtion 226.7, and subsection 4 ofthe applicable Industrial Welfare Commission Orders. in, this was andis due to the Defendants’ choice to uniformity allocate the same diifies and responsibilities to all membersofthe putative Plaintiff Class and to fail and/or 10 Second Amended Complaint Marshalls RUN 040 refuse pay them in an uniform manner that violates California law. 41. Plaintiffs’ claimsare also typical, because like all other membersofthe putative Plaintiff Class herein, because Plaintiffs held the position of“Landscaper” and routinely worked on public works without being paid the required prevailing wages as required by State Prevailing Wage Lawsfor Public Works for all hours worked on such public works. 42. The Representative Plaintiffs will fairly and adequately represent and protectthe interests of the Class in that they have no disabling conflicts ofinterest that wouldbe antagonistic to the other membersofthe Class. The Representative PlaintiffsO o O o n N B A A B P W Y N H — — O o have retained counsel who are competentin the prosecutionofclassactionlitigation, and — — in overtime wageclassactionlitigation. _ t N 43. The Representative Plaintiffs and members ofthe Class haveall similarly suffered irreparable harm and damagesas a result ofDefendants, and each oftheir, — m > W w unlawful and wrongful conduct. Defendants’ systematic failure to retain accurate ~TS |records ofhours worked by “Landscapers”and as required by law makes Class treatment 16]! especially appropriate. This action will provide substantial benefits to both the Class and 17}} the public since, absent this action, Defendants’ unlawful conduct will continue 18 unremedied and uncorrected. 19 FIRST CAUSE OF ACTION 20] (Failure to Pay Wages Due And Owing. California Labor Codesection 510 and subsection 3 of the applicable Industrial Welfare Commission Orders) 21 » 44. Plaintiffs incorporate by reference the allegations contained in Paragraphs 33 1 through 43 ofthis Complaintas if fully set forth herein. 4 @ 45. California Labor Code 510 and subsection 3 ofthe applicable Industrial4 , Welfare Commission Orders provide in relevant part as follows: 5 8 Eight hours of labor constitutes a day’s work. Any work in excess ofeight 26]| © hours in one workdayand any work in excess of 40 hours in anyone tt workweek and the first eight hours worked on the seventh day ofwork in 27) = any one workweek shall be compensated at he rate of notless than one and = one-halftimes the regular rate of pay for an employee. Any work in excess 28 of 12 hours in one day shall be compensatedatthe rate ofnot less than li Second Amended Complaint Marshalls RJN 041 O o O o n N D N D H F R | W H Y p e e k m m t m t e m m e e t B S R R R P E O R F S E S S A A H E B E H E S twice the regular rate ofpay for an employee. In addition, any workin compensatedattherateofnolleethantwice leropalasTake Gtpay of an than onerateofoverdmecompeusatagnancrdertyglcalatetheamount10 be paid to an employeefor any hour ofovertime work. 46. During all relevant periods, Defendants, and each ofthem,suffered or permitted Plaintiffs, members of the Representative Class and Class-Action Class Members to work in excess ofeight (8) hours per day and to work in excess offorty (40) hours per week. 47. During all relevantperiods, Plaintiffs’ and other Landscapers’ duties were generally restricted to manual labor; thus, their job positions were not exempt from overtime compensation. 48. During all relevant periods, Defendants, and each ofthem, suffered or permitted Plaintiffs, the members ofthe putative PlaintiffClass to work a substantial number ofhours on a nearly daily basis “off the clock.” 49. _ Despite actual and/or constructive knowledgeof Californialaw, —__ Defendants and each of them,havewillfully refused, and continue to refuse, to pay Plaintiffs and putative Plaintiff Class members the pay they are owed. 50. In failing to compensate Plaintiffs and the putative Plaintiff Class for the wages due and owing pursuantto, interalia, California Labor Code sections 510 and 558, Defendants, and each of them,acted maliciously, oppressively, despicably, with the wrongful intention of causing injury and hardship to Plaintiffs and the Class Members by reaping economicgain at Plaintiffs’ and the putative Plaintiff Class’ expense,in willful and conscious disregard of their statutory and regulatory right to overtime compensation. SECOND CAUSE OF ACTION (Violation of Meal & Rest Period Requirements, California Labor Code §§ 512 and 226.7 and Subsections 11 And 12 of the applicable Industrial Welfare Commission Wage Orders. & P O O R I O Sb 51. Plaintiffs incorporate by reference the allegations contained in Paragraphs lighrough 43 of this Complaintas if fully set forth herein. 12 Second Amended Complaint Marshalls RJN 042 12 $2. Industrial Welfare Commission Orders providein relevantpart: (a) (b) (c) (d) 53. provides: (b) 54. herein, Defendants, and each ofthem, have engaged in a systematic businesspolicy and/or practice not to furnish Plaintiffs and membersof the putative Plaintiff Class meal Periods andrest periods as required by California law. (See National Steel and Shipbuilding Company v. Superior Court, 2006 WL147520 (Cal.App. 4" Dist.) & 55. 9 . vgilfully refused to compensate the Plaintiffs and members ofthe putative Plaintiff Class with the pay duc and owing as required by California Labor Code sections 226.7 and 512 __(@) _ Every employer shall authorize and permitall employees to take rest California Labor Code section 512 and subsection 11 ofthe applicable An employer may not employ an employee for a work period of more than five (5) hours per without providing the employee with a meal period of notless than 30 minutes,... . An employer may not employ an employee for awork period of more than ten (10) hours per day without providing the employee with a second mealperiod ofnot less than 30 minutes, ... Unlessthe employee is relieved ofall duty during the 30 minute meal period, the meal period shall be considered an “on duty” meal period and counted as time worked... . if an employer fails to provide an employee a meal period in accordance with the applicableprovision of this order, the employer shall pay the employee one (1) hour ofpay at the em loyee’s regular rate compensation for each workday that the meal period is not provided. Subsection 12 of the applicable Industrial Welfare Commission Orders 7v ‘practi shallbein the middie of each work period. The authorized rest period time shall be based on the total hours worked daily at the rate often (10) minutes net rest time per four (4) hours or majorfraction thereof. If an employerfails to provide an employee a rest period in accordance with the applicable provisions ofthis order, the employer shall pay the employee one (1) hourofpayat the employee’sregular rate of compensation for each workday that the rest period is not provided. From a period of four (4) years priorto the filing of the initial complaint Moreover, Defendants, and each ofthem, have systematically failed and/or 13 Second Amended Complaint Marshalls RUN 043 O o O o N W A O H F& F W Y N H — B N R R P R R P B S V R B V S S P T R A E S H S S and subsections 11 and 12 ofthe applicable Industrial Welfare Commission Orders(i.e., one hourper day per lunch period and one hour per dayfor rest periods). 56. In failing to compensate Plaintiffs and the Class Members the pay due and owing pursuant to Ca, Labor Code section 512 and subsections 11 and 12 of the applicable Industrial Welfare Commission Orders as alleged herein, Defendants, and eachofthem,acted maliciously, oppressively, despicably, with the wrongfulintention of causing injury and hardshipto Plaintiffs and the Class Membersby reaping economic gain at Plaintiffs’ and the Plaintiff Class’ expense,in willful and conscious disregard of their statutory and regulatory right to pay due and owing. 57. Furthermore,Plaintiffs and Class‘Members are entitled to the relief requested below. THIRD CAUSE OF ACTION (Violation of Business and Professions Code 17200 et seq.) 58. Plaintiffs incorporate by referencethe allegations contained in paragraphs1 ' through 50,68 through 74,and78through 87ofthis Comiplaintasiffully set forth herein. 59. Defendants, and each of them, have engaged and continue to engage in unfair business practices in California by practicing, employing andutilizing the employmentpolicy offailing to pay Plaintiffs, members of the Representative Class and Class-Action Class Members employment compensation as required by the California law cited herein. 60. Defendants,’ and each oftheir, utilization of such unfair business practices constitutes unfair competition and provides an unfair advantage over Defendants’ competitors. 4 61. Plaintiffs seek on their own behalf, and on behalfofthe Representative Gass, and on behalf ofthe general public,full restitution and disgorgementofall eiiployment compensation wrongfully withheld, as necessary and according to proof, to restore any and all monies withheld, acquired and/or converted by the Defendants by 14 Second Amended Complaint Marshalls RJN 044 w o 2 N H O H P e Ww W W H — e t m e B N R R PRP B R B R R P B S B T k e & RA A A E B A H S EZ S ®@ ¢ @ means ofthe unfair and unlawful practices complained ofherein. The restitution and disgorgementrequested includes all wages earned and unpaid, includinginterest thereon. The acts complained ofherein occurred, at least in part, within the last four (4) years preceding the filing ofthe Complaintin this action and continue to the present. 62. Plaintiffs are informed and believe and onthatbasis allege that at all times herein mentioned Defendants, and each ofthem, have engaged in unlawful, deceptive and unfair business practices, as proscribed by California Business and Professions Code 17200 et seq., by depriving Plaintiffs and the members ofthe Representative Class of the minimum working condition standards due to them underthe California Labor Code and applicable Industrial Welfare Commission wage orders as identified herein. 63. Business and Professions Code 17200, et seq., prohibits acts of unfair competition which shall mean and include any unlawful, unfair or fraudulent business act or practice. Under California law, wages unlawfully withheld from an employee constitutes an unfair business act entitling the Plaintiffs and the members ofthe Plaintiff | Classtoa restitution remedy authorized by section 17203. Plaintiffs, the Plaintiff Class, and the general public are therefore entitled to the reliefrequested below. 64. Defendants, and eachofthem, are “persons”as defined under Business and Professions Code § 17021. 65. Eachofthe directors, officers, and/or agents ofDefendants are equally responsible for the acts ofthe other directors, officers, employees and/or agents as set forth in Business & Professions Code § 17095. 66. Defendants provide services to the public in California as defined in Business & Professions Code §§17022 and 17024. 5 67. Plaintiffs are informed and believe, and based thereon allege, that Difendants, and each ofthem,haveintentionally and improperly suffered Plaintiffs and ’mbers ofthe putative Plaintiff Class to work without proper compensation therefor, ingiuding compensation for regular hours worked (i.e. work “off the clock”), overtime work (i.e. work in excess ofeight (8) hours per day and/orforty (40) hours per week), 15 Second Amended Complaint Marshalls RJN 045 o o o o n DT D A R m B H O D O e a B N R R R P E B E B R H E B R B R S S F e D A B I S B H B S and work through mandatory rest and meal periods. 68. Plaintiffs are informed and believe, and based thereon allege, that Defendants have under-reported tofederal andstate authorities wages earned by the Class Members and, therefore, have underpaid state and federal taxes, employer matching funds, unemployment premiums, Social Security, Medicare, and Workers’ Compensation premiums. The aforesaid conduct subjects Defendants to sanctions, and fines andis actionable under Business & Professions Code §§17000 seq., and 17200 et seq. 69. Plaintiffs are informedand belicve, and based thereonallege, that Defendants, and each oftheir failure to pay all such wages as are/were due and owing was intentional. 70. Plaintiffs are informed andbelieve, and based thereon allege, that Defendants, in order to secure an advantage over Defendant’s competitors in violation of Business & Professions Code §17043,instructed and directed theirdirectors,officers,_ employees, and/or agents to intentionally and unlawfully avoid paymentofwagesforall hours worked by Plaintiffs and the putative plaintiff Class, which wages are due(a) pursuantto California law as set forth hereinabove and (b) pursuant to the clauses in multiple public works contracts, subject to which muchofthe labor by Plaintiffs and the putative Plaintiff Class was performed, and ofwhich Plaintiffs and the members ofthe putative PlaintiffClass were identified/named andintended third party beneficiaries as set forth hereinbelow. 71. The victims ofthese unfair business practices include, but are not limited to fe Class Members, competing businesses in the State of California, and the general public. & 72. Plaintiffs are informed and believe, and based thereonallege, that Dafendants, by committing the above-described acts, deceived the public by unlawfully d&priving their employees ofwages,thus injuring their employees who are members of the community. 16 Second Amended Complaint Marshalls RJN 046 O o f F N D A B R W S Y Y b e m B N R R R B B R R E B S S e A A a A R E H = S 73. Thefailure to properlypay wages is punishable bystatutory fines for each violation pursuant to Business & Professions Code § 17100, and otherstatues. The acts constitute a continuing and ongoing unlawful activity prohibited by Business and Professions Code §§17000,et seq., and justify the issuance ofan injunction. All remedies are cumulative pursuant to Business and Professions Code § 17025. 74. Pursuant to Business & Professions Code §§17200 and 17203,plaintiffs and membersofthe general public are entitled to restitution ofall funds wrongfully not paid by Defendants to the Class Members, together with interest, penalties, attorney fees and costs. Plaintiffs are also entitled to an injunction prohibiting Defendants from requiring their employees to work without compensating those employeesforall hours worked. Plaintiffs further seek the appointmentofa receiver, as necessary, to oversee the restitution of all wages, includinginterest thereon, sought herein. FOURTH CAUSE OF ACTION (Failure to Pay Prevailing Wages For Public Works) 75. Plaintiffs re-allege and incorporate each and every oneofthe allegations contained in the preceding paragraphs ofthis Complaint as though fully set forth herein. 76, Plaintiffs are informed and believe and thereon allege that the projects upon which Plaintiffs and members ofthe putative Plaintiff Class worked as employees were the subject of various public works contracts to which Defendants and various state, county and/or local public entities were signatories. 71. Plaintiffs are informed and believe and thereonallege that the public works contracts, subject to which they worked, require(d) paymentfor hours worked at certain pecdetermined prevailing wages, pursuantto, inter alia the State Prevailing Wage Laws J Public Works, the Federal Davis Bacon Act and the Wage Hours and Safety Act of Bp. It is well established that California's prevailing wage Jaw is a minimum wagelaw, and that, as such, Plaintiffs herein havea private statutory right to sue pursuantto, inter alia, . Labor Code § 1194. (Road Sprinkler Fitters Union vy. C & G Fire Sprinklers, Inc. (2002) 102 Cal.App.4th 765, 778-779. Also, like overtime compensation (Earley v. 17 Second Amended Complaint Marshalls RJN 047 O o e o H N DB D U H B h W Y N H — — = e w e H N — & Superior Court, 79 Cal.App.4th, 1420, 1430), the prevailing wage law serves the important public policy goals of protecting employees on public works projects, competing union contractors and the public. (Lusardi Construction v. Aubry, (1992) 1 Cal.4th at pp. 976 , at 985, 987.) The duty to pay prevailing wages is mandated by statute and is enforceable independent of an express contractual agreement. (Cal. Labor Code §§ 1771, 1774-1775; Lusardi, supra, | Cal.4th at pp. 986-987.) Because the prevailing wagelaw is a minimum wage law mandated bystatute and serves important public policy goals, Labor Code § 1194 provides an employee with a private statutory right to recover unpaid prevailing wages from an employer who fails to pay that minimum wage. Road Sprinkler Fitters Union, supra 102 Cal.App.4th at 779. 78. Plaintiffs are further informed and believe and thereon allege that Defendants agreed to provide services to such state, county and/or local public entities as either prime contractors or subcontractors pursuant to such public works contracts, which services included the laborofPlaintiffs and the putative Plaintiff Class herein. 79. Defendants, for whom the presently named defendants were subcontractors on said contracts (i.e. Does 5 to 15), and the sureties for the contractors and subcontractors on said contracts (i.e. Does 16 to 50), each had an independent duty pursuant to Labor Code §§1770 et seq. to pay Plaintiffs and the PlaintiffClass herein prevailing wages and overtime, as applicable, and for all work performed by Plaintiffs on said public works projects, which duty they breached with respectto the Plaintiffs herein. 80. Dueto the aforesaid breach(es) cf the statutory duty by Defendants, and each of them,Plaintiffs are entitled to damages and penalties for nonpaymentofall such wages due and awingat the prevailing wagerate, to the extent permitted by commonlawandstatute, and atording to proofat timeoftrial. g 81. Defendants willfully, fraudulently and maliciously, failed to pay Plaintiffs and Plaintiff Class members the pre-determined prevailing wages, becausethey notonly kalew the amounts that were due, but also had the clear ability to pay the same,as the contract pursuant to which they were working paid Defendants sufficient revenues with 18 Second Amended Complaint Marshalls RUN 048 1 which to pay said prevailing wages. Accordingly, Defendants are liable for the 2 difference betweenthe actual pay andthe appropriate prevailing wages andare also 3 subject to punitive damagesfor willful failure to pay the same. 4 FIFTH CAUSE OF ACTION 5 (Penalties Pursuant To California Labor Code Sections 201 and 203) 64 by SEBASTIAN RODRIGUEZ,and JOSE LUIS MOSQUEDAAgainstall Defendants 7 82. Plaintiffs incorporate by reference the allegations contained in paragraphs| 8 through 70 of this Complaintas if fully set forth herein. 9 83. Plaintiffs and members of the Section 203 Subclass described hereinabove 10 were discharged by Defendants or voluntarily quit within three (3) years prior to the 11} filing ofthe initial Complaint herein. The Defendants,in violation ofCalifornia Labor 12 Code sections 203 ef seq. had a consistent and uniform policy, practice and procedure of 13 willfully failing to pay the earned and unpaid wages ofall such former employees as 14 described herein above according to amendment, orproof. IS}84.PlaintiffsandClassMembersdidnot secret or absentthemselves from 16 Defendants norrefuse to accept the earned and unpaid wages from Defendants. 17|| Accordingly, Defendants are liable for waiting time penalties for the unpaid wages 18 pursuant to California Labor Codesection 203. 19 SIXTH CAUSE OF ACTION 20 (Breach of Written Contract) 2185. Plaintiffs re-allege and incorporate each and every oneofthe allegations 22 contained in the preceding paragraphs of this Complaint as thoughfully set forth herein. 231 86. Plaintiffs are informed and believe and thereon allege that Defendants, who are 24 the current and/or past employers ofPlaintiffs and the Plaintiff Class, agreed to provide 25 drvices to such state, county and/orlocal public entities as either prime contractors or 26 Scontractors pursuant to such written public works contracts, which services included 27 ie laborofPlaintiffs herein. 28 87. Plaintiffs and the Plaintiff Class have fully performedall obligations to the 19 Second Amended Complaint Marshalls RJN 049 Defendants pursuantto the contracts, except as for such obligations the Plaintiffsi and Plaintiff Class were prevented orlegally excused from performing. 88. Plaintiffs do not presently possess copies of said contracts; however, the sameare believed to be in the possession of the Defendants herein. 89. Plaintiffs are informed andbelieve and thereon allege that each such contract contains a provision obligating the Defendant employers,the sureties for the contractors and subcontractors on said contracts (i.e. Does 16 to 50), and the prime contractors for whom Defendant employers weresubcontractors on said contracts (i.e. Does 5 to 15), to oO o oO o NH N D H D H S P W w K N pay Plaintiffs herein prevailing wages and applicable overtimefor all hours worked on such contracts as intended, named and/oridentified third-party beneficiaries of said public works contracts. — n o = & S 90. Plaintiffs are informed andbelieve and thereon allege that the Defendant employers, the sureties for the contractors and subcontractors on said contracts, and the — p e > W w prime contractors for whom Defendant employers were subcontractors on said contracts, ~~1S] eachmateriallybreached its contractualdutyto pay saidprevailing wagesandovertime. | 16/91. Asa direct consequence ofsuch breach(es), Plaintiffs have suffered foreseeable 17 damages in an amountto be provedat timeoftrial. 18 SEVENTH CAUSE OF ACTION 19 (For an Accounting) 20/92. Plaintiffs re-allege and incorporate each and every one ofthe allegations 21 contained in the preceding paragraphsofthis Complaint as though fully set forth herein. 22} 93. Plaintiffs and members ofthe putative Plaintiff Class are owed wages and 23 penalties as describe hereinabove. 24 3. Plaintiff s do not know the precise amountofthe compensation dueto the 25 Plaintiffs and thePlaintiff Class. However, upon informationandbelief, Plaintiffs allege 26 tat Defendants, and each ofthem, possess records from which the amount of 27 mpensation due and owingto each ofthe Plaintiffs herein can be determined. 28 95. The amountofstatutory interest and penalties owed to each ofthe Plaintiffs is 20 Second Amended Complaint Marshalls RJN 050 o w S& S K N D H O H S& F W W Y H = p m e n t B N R P R B R R B R N R B S S A K R B A E T B T S A S based on the amount ofcompensation owedto Plaintiffs by Defendants. This amount can only be determined by an accounting ofbooks and recordsin the possession of Defendants, and each ofthem. . NINTH CAUSE OF ACTION RECOVERY OF UNPAID MINIMUM WAGES (On Behalf of the Minimum WageClass) (Against All Defendants) 96. Plaintiff incorporates by reference and realleges each and every one of the allegations contained in the preceding paragraphs of this Complaint as though fully set forth herein. 97. Failure of an employerto payits employees the minimum wagefixed by the California Labor Commissionviolates, inter alia Labor Code §1197. 98. During the Relevant Time Period, Defendants required the members of the Minimum WageClass to remain under Defendants’ control without paying | therefor,resultedmembersoftheMinimumWageearningtess-|-- ~~ than the legal minimum wagein the State of California. 99. Defendants’ pattern and practice of uniformly administering a corporate policy, whereby Defendants’ failed to pay the legal minimum wage to the members of the Minimum WageClass, violates Labor Code §1194(a). 100. Accordingly, the members of the Minimum WageClass seek to recover, pursuant to Labor § 1194(a) the unpaid balanceof the minimum wages owed them,calculated as the difference between the straight time compensation paid and | the applicable minimum wage,including interest thereon. 11. Plaintiff further seeks liquidated damages pursuant to Labor Code 94.2(a) on the straight-time portion of uncompensated hours ofwork (not igfluding the overtime portion thereof) in an amount equal to the wages unlawfully uapaid andinterest thereon. 162. Plaintiff further seeks, as a consequence of Defendants’ non-payment of ‘21 Second Amended Complaint Marshalls RJN 051 Do Oo HN DH HW B& B W N — BR O BR D m e e e minimum wages, penalties pursuant to the applicable [WC Wage Orderat §20(A). 103. Plaintiff also seeks all legal remedies available for Defendants’ willful non- payment of minimum wages,including but notlimitedto: a. Interest pursuant to Labor Code §§218.6 and 1194(a), Civil Code §§ 3287 and §3289; b. Reasonable attorneys’ fees dnd costs of suit pursuant to Labor Code §§218.5 and §1194; c Damages and/or penalties pursuant to Labor Code §558(a); and, d. Punitive damages, because Defendants knew such wages were due and owingto Plaintiff and the Plaintiff Class, Defendants had the clear ability to pay said wages, and the willful non-paymentof said wages was oppressive and malicious. As such, Defendants actions warrant an awardofpunitive and exemplary damages against Defendants. PRAYER FOR RELIEF 1. An Ordercertifying that this action as a class action, designated named Plaintiffs as representatives ofall others similarly situated, and designating the law firms representingplaintiffs as class counsel. 2. Compensatory, liquidated, and statutory damages, penalties and restitution, as appropriate and available under each causeofaction, in an amountto be proved attrial; 3. Exemplary and punitive damages, as appropriate and available pursuant to California Civil Code section 3294 and Business and Professions Code section 17082; 4. An Order imposing an asset freeze in constructive trust of Defendants, and each oftheir, ill-gotten gains, and enjoining Defendants from failing and refusing to disgorge all monies acquired by meansofany act or S i n t C O O K N O > practice declared by this Court to constitute unlawful, unfair or fraudulent 22 Second Amended Complaint Marshalls RJN 052 0 Oo 4M ND HW B w NH — p e e p e e e t R P N R R R B B R B S e B e A R B K R E S B E A S W E N E O C O K M I O Db acts or practices; 5. That Defendants be ordered to show cause why they should not be enjoined and ordered to comply the applicable California Industrial Welfare Commission wageorders related to payment of employment compensation and record keeping for Defendants’ employees whoare engaged in work without a meal or break period and for more than 10 hours per day; 6. Forrestitution to Plaintiffs and othersimilarly affected members ofthe general public (and disgorgement from Defendants) ofall funds unlawfully acquired by Defendants by meansofany acts or practices declared bythis Court to be violative of the California Labor Code, Industrial Welfare Commission Wage Orders, State Prevailing Wage Lawsfor Public Works, Califomia Business and Professions Code 17200et seq.; 7. For punitive and exemplary damages; ~~Forpre-judgmentpost-judgment interest as allowedbyCalifornia~~] Labor Codesections 218.6 and 1194 and California Civil Code sections 3287(b) and 3289; . 9. For reasonable attorney’s fees, expenses and costs as provided by California Labor Codesections 218.5, 1194(a), subsection 20 ofthe applicable Industrial Welfare Commission Orders, and California Code of Civil Procedure section 1021.5; 10. Penalties pursuant to California Labor Codesection 203. 11. An order requiring Defendants to show cause, if any they have, why they should not be enjoined from failing to pay their “Landscapers”all wages due and owing under California law; 12. For a permanent injunction, enjoining Defendants, and each ofthem, and their agents, servants, and employees, andall persons acting under,in concert with or for them from failing to pay their employees all wages due 23 Second Amended Complaint Marshalls RUN 053 O o O o S I A U H S B W Y H N = B R e e e e e e t m e e k B S R a A S B B B S S E a e r A A D R E S S E S PE NE L C O O M N O D DEMAND FOR JURY TRIAL DATED: July 6, 2006 THE CULLEN LAWFIRM, APC FAWork\Clients\Rodriguez, Sebastian 1295-01\Pleadings\Second Amended COMPLAINT Belaire.wpd and owing;for costs ofsuit herein incurred; 13. For an accounting,under administration ofPlaintiffs and/or a receiver and subject to Court review, to determine the amountto be returned by Defendants, and the amountsto be refunded to members ofthe Classes whoare owed monies by Defendants; and 14. Such other and further relief as the Court deems just and proper. Plaintiffs hereby demandtrial oftheir and the Class’ claims by jury to the extent permitted by law. B y PAUL T. CULLEN r Attomeys for Plaintiff 24 Second Amended Complaint Marshalls RJN 054 Do o N A HW & Y N & — - O 12 R A N E D O N O B o e y g PROOFOFSERVICE I am employed in the County of Los Angeles, State of Califomia. I am overthe age of 18 years and nota party to the within action. My business address is 29229 Canwood Street, #208, Agoura Hills, CA 91301. On July 6, 2006, I served the foregoing SECOND AMENDED COMPLAINTonthe followinginterested parties in this action: Atkinson, Andelson, Loya, Rudd & Romo A Professional Corporation Robert R. Roginson, Esq. Christopher S. Milligan, Esq. 17871 Park Plaza Drive, #200 Cerritos, CA 90703-8597 NAVALAW FIRM, APC César H. Nava, Esq. 300 Esplanade Drive, Suite 900 Oxnard, California 93030 VIA MAIL - CCP §§ 1013(a), 2015.5 |[X] By placinga true copythereofenclosed in a sealed envelope(s), addressed as above, and placing each for collection and mailing on that date following ordinary business practices. I am readily familiar with my firm's business practice ofcollection and processing of correspondencefor mailing with the United States Postal Service and correspondence placed for collection and mailing would be deposited with the United States Postal Service at Los Angeles, California, with postage thereon fully prepaid, that same day in the ordinary course of business. [X] (State) I declare under penalty ofperjury underthe laws ofthe State ofCalifornia that the foregoing is true and correct. Executed on July 6, 2006 at Agoura Hills, California.) CO. LZ Moe peepee - 2 {docament| iguea, Sebastian 1295-0117 Marshalls RJN 055 EXHIBIT 3 DECLARATION OFKobeto “Keene s I, Cas_, declare: 1. I am a courier for Nationwide Legal, LLC. I have personal knowledge ofthe facts stated herein, andif called as a witness, I could and would testify competently thereto. 2. I currently work out of Nationwide Legal, LLC’s Los Angeles, California office, located at 1609 James M. Wood Blvd., Los Angeles, California 90015. 3 On #3 , 2016 upon the request of counsel for Real Party in Interest, Marshalls of CA, LLC (“Marshalls”), I went to the Superior Court of the State of California, County of Los Angeles, in Los Angeles, California to locate documents relating to Sebastian Rodriguez and Jose Luis Mosqueda on behalf of themselves and all other similarly situated v. Belaire-West Landscape, Inc., Superior Court of the State of= =~ California, County ofLos Angeles, Case No. BC321310. 4. I pulled the requested documents from the Superior Court’s files, made true and exact copies of those documents, and sent copies to Marshalls’ counsel. Those documents included a copy of the Second Amended Class Action Complaint filed in Sebastian Rodriguez and Jose Luis Mosqueda on behalf of themselves and all other similarly situated v. Belaire-West Landscape, Inc., Case No. BC321310, on July 7, 2006. 5. Attached as Exhibit C to Marshalls’ Request for Judicial Notice is a true and correct copy of the Second Amended Class Action Complaintfiled in Sebastian Rodriguez and Jose Luis Mosqueda on behaif of themselves and all other similarly situated v. Belaire-West Landscape, Inc., Superior Court of the State of California, County ofLos Angeles, Case No. BC321310, on July 7, 2006. Marshalls RJN 056 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this 16th day of February, 2016, at Los Angeles, California. Firmwide: 138647387.1 0: Marshalls RJN 057 EXHIBIT D o O o n O D o O f F W N A h e e | 15 @ e . FILED LOS ANGRLES SUPERIOR COURT SEP 13 2006 JOHN A. CLARKE, CLERK QY RENE VILLARREAL, DEPUTY SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES SEBASTIAN RODRIGUEZ, and JOSE LUIS Case No. BC 321310 MOSQUEDAon behalf of themselves and all others similarly situated, RULING ON SUBMITTED MATTER; PLAINTIFFS’ MOTION TO COMPEL Plaintiffs, DEFENDANT BELAIRE TO v. PROVIDE THE NAMES, ADDRESSES AND TELEPHONE |BELAIRE-WESTLANDSCAPE,INC.,a| FCLASS| California Corporation; and DOES 4-50, MEMBERS inclusive, Date: July 31, 2006, August 21, Defendants. 2006, September1, 2006 Time: 8:30 a.m. Place: Department 34 Paul Gutman, Judge Onvarious dates, culminating on September 1, 2006, the court heard and considered the submissions by Plaintiffs Sebastian Rodriguez and Jose Luis Mosqueda through their counsel Cesar H. Nava, Esq. and Paul T. Cullen, Esq., opposed by Robert R. Roginson, Esq. on behalf of Defendant Belaire-West Landscape,Inc. Essentially, the remaining unresolved issue was the contentof a letter proposed to be sentto all former and current employees of Defendant Belaire-West Landscape, Inc. Each side submitted proposed forms of their respectiveletters. -t- RULING ON SUBMITTED MATTER Marshalls RJN 058 o o n O o O K R W D Y = s k k k k & O N M | = O& O Because a class determination cannot be realistically made until all parties involved in the lawsuit have had an opportunity to investigate their claims and defenses, the class representatives need the ability to contact absent class members. These are the very people they seek to represent. They seekto obtain relevantinformation on the merits of their claims. This court can only interfere with this right when the record showsthat any such contact by the Plaintiffs with absent class membersreflects an actual or threatened abuse. This court is also mindful that any orderlimiting the right of a party to communicate with potential class members must be narrowly drawn so as to eliminate the potential for abuse without unreasonably restricting the right to communicate. The court has not been presented with any evidenceof any actualorthreatened abuse which wouldjustify denial of precertification notice to absent class members. Each party to this lawsuit having submitted what they consider to be adequate notice and both parties having submitted what may well be characterized as a “joint” submission, the court still is called uponto resolve whether any such proposed communication to absent class members = = o a “n N O O 18 : m i r u t h . a t M Th y : n i s a , ! Do n R E S O c o should provide for any class member affirmatively to opt out of providing his/her address and telephone numberto Plaintiffs’ attorney or whether any such absent employee (current or former) must affirmatively consent to having his/her address and telephone number be provided. The consequence offailing to optin, thatis, failing affirmatively to give permission to havehis/her address and telephone numberprovided would result in the name, address and telephonenumbernot being provided whereasif a current or former employee does not wish his/her name and addressto be providedto Plaintiffs’ attorney then it mustbe affirmatively so stated in which eventit will not be provided. Having reviewed the prospective notices provided by each party, the court finds that the proposed notice identifies the petitioners’ counsel and requests class members’ assistancein investigating the case; makesclearthat potential class members are under no obligation to contact Plaintiffs’ counsel; tells potential class members that Belaire-West Landscape,Inc.orits attorney may want to contact them; provides contactinformation for -2- RULING ON SUBMITTED MATTER Marshalls RJN 059 PG.sac:raj:mt 2 Rodriguez.rul 9/12/06 Is la IR la a a IN IB GB w i e W i e a p w D w N I e w h |Landscape, Inc. modified o : defense counsel in case a class member wishes to assist the defense: advises class members that they are underno obligation to talk to defense counsel; advises class members that Belaire-West Landscape,Inc. may notretaliate against them foreither refusing to assist Belaire-Westorfor assisting Plaintiffs and, finally, accurately sets forth the contentionsof the parties. Having considered the parties’ res i i notice and having balanced the potential for abuse against Plaintiffs’ights fullyto investigate their claims and the rights ofprivacy of the potential classmembers, he ou tisatisfiedtha the form of notice to be seni to the putative Class Membersinsure nd effectiv lyli tth otenti Therefore, the court orders that the proposed notice to current and formerRelaire-West employees regarding disclosure of contactinformation submitted by Plaintiffs undercovof their letter to the court dated August 30, 2006. isto be sent all current former landscaping employees of BelaieWest LandscapeInc._by-defendant Belair Wes The second to last sentence on the proposed letter whichreads“You arlsound no obligation to provide information to or discuss thismatter withBelaire-West oranyfi agents or attorneys” has to be augmented iti i “ employer maynotretaliate against you in anywafor providing refusing t provide i r < ” Dated: & \ (3 eb PAUL'GUTMAN ~ of the Superior Court 3. RULING ON SUBMITTED MATTER Marshalls RUN 060 EXHIBIT 4 DECLARATION or _}V| anio’as L, Marte ResSs , declare: 1. I am a courier for Nationwide Legal, LLC. I have personal knowledgeofthe facts stated herein, and if called as a witness, I could and wouldtestify competently thereto. 2. I currently work out of Nationwide Legal, LLC’s Los Angeles, California office, located at 1609 James M. Wood Blvd., Los Angeles, California 90015. 3. On 4 + , 2016 upon the request of counsel for Real Party in Interest, Marshalls of CA, LLC (“Marshalls”), I went to the Superior Court of the State of California, County of Los Angeles, in Los Angeles, California to locate documents relating to Sebastian Rodriguez and Jose Luis Mosqueda on behalf of themselves and all other similarly ~~ “situatedBelaire-WestLandscape, Inc.,SuperiorCourt ofthe State-of——- ———-— California, County ofLos Angeles, Case No. BC321310. 4. I pulled the requested documents from the Superior Court’s files, made true and exact copies of those documents, and sent copies to Marshalls’ counsel. Those documents included a copy of the Ruling on Submitted Matter; Plaintiffs’ Motion to Compel Defendant Belaire To Provide The Names, Addresses, and Telephone Numbers of Putative Class Members,filed in Sebastian Rodriguez and Jose Luis Mosqueda on behaif of themselves and all other similarly situated v. Belaire-West Landscape, Inc., Case No. BC321310, on September 13, 2006. Marshalls RJN 061 5. Attached as Exhibit D to Marshalls’ Request for Judicial Notice is a true and correct copy of the Ruling on Submitted Matter; Plaintiffs’ Motion to Compel Defendant Belaire To Provide The Names, Addresses, and Telephone NumbersofPutative Class Members, Sebastian Rodriguez and Jose Luis Mosqueda on behalfof themselves andall other similarly situated v. Belaire-West Landscape, Inc., Superior Court of the State of California, County of Los Angeles, Case No. BC321310, filed on September 13, 2006. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this 16th day of February, 2016, at ’ Firmwide: 1386496 13.2 053070.1156 Marshalls RUN 062 PROOF OF SERVICE I am employed in San Francisco County, California. I am over the age of eighteen years and not a party to the within-entitled action. My business address is 650 California Street, 20th Floor, San Francisco, California 94108.2693. I am readily familiar with this firm’s practice for collection and processing of correspondence for mailing with the United States Postal Service. On February 16, 2016, I placed with this firm at the above address for deposit with the United States Postal Service a true and correct copy of the within document(s): REAL PARTY IN INTEREST MARSHALLSOF CA, LLC'S ANSWERBRIEF ON THE MERITS REAL PARTY IN INTEREST MARSHALLSOF CA, LLC'S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF ANSWER BRIEF ON THE MERITS; MEMORANDUMOFPOINTS AND AUTHORITIES; DECLARATION OF AMY TODD-GHER; PROPOSED ORDER in a sealed envelope, postage fully paid, addressed as follows: Jennifer Grock, Esq. Attorneysfor Plaintiff Brian Van Vleck, Esq. Albert Ebo VAN FLECK TURNER & WALLER LLP 6310 San Vicente Blvd., Suite 430 Los Angeles, CA 90048 Glenn A. Danas, Esq. Robert Drexler, Esq. Liana Carter, Esq. Stan Karas, Esq. Ryan Wu, Esq. CAPSTONE LAW APC 1840 Century Park East, Suite 450 Los Angeles, CA 90067 Clerk Court of Appeal Second Appellate District Division Seven Ronald Reagan State Building 300 S. Spring Street 2nd Floor, North Tower Los Angeles, CA 90013 Clerk Los Angeles County Superior Court 111 North Hill Street Los Angeles, CA 90012 Hon. William F. Highberger Los Angeles County Superior Court Central Civil West Courthouse 600 South Commonwealth Avenue Los Angeles, CA 90005 Attorney General Appellate Coordinator Office of the Attorney General Consumer Law Section 300 S. Spring Street Los Angeles, CA 90013-1230 District Attorney's Office County of Los Angeles 320 West Temple Street, #540 Los Angeles, CA 90012 Attorneysfor Plaintiffand Appellant Michael Williams Court of Appeal Case No. B259967 Superior Court ofLos Angeles County: Respondent — Ce Civil Case No. BC503806 Superior Court ofLos Angeles County: Respondent Civil Case No. BC503806 Following ordinary business practices, the envelope was sealed and placed for collection and mailing on this date, and would, in the ordinary course of business, be deposited with the United States Postal Service on this date. I declare that I am employedin the office of a memberofthe bar of this court at whose direction the service was made. Executed on February 16, 2016, at San Francisco, California. DuLe Linda K. Camanio Firmwide:138657421.1 053070.1156
