todd m. schneider, sbn 158253 joshua konecky, sbn 182897cases.gcginc.com/pdf/vil/complaint.pdf ·...

CONSOLIDATED FIRST AMENDED COMPLAINT Daniel Villalpando, et al. v. Exel Direct Inc., et al., Case Nos 3:12-cv-04137-JCS; 4:13-cv-03091-JCS

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Todd M. Schneider, SBN 158253 Joshua Konecky, SBN 182897 SCHNEIDER WALLACE COTTRELL KONECKY LLP 180 Montgomery Street, Suite 2000 San Francisco, CA 94104 Telephone: (415) 421-7100 Facsimile: (415) 421-7105 Ira Spiro, SBN 67641 Linh Hua, SBN 247419 SPIRO LAW CORP. 11377 W. Olympic Blvd., Fifth Floor Los Angeles, CA 90064 Telephone: (310) 235-2350 Facsimile: (310) 235-2351 Jeff Holmes, SBN 100891 BLANCHARD LAW GROUP, APC 3311 East Pico Blvd. Los Angeles, CA 90032 Telephone: (310) 396-9045 Facsimile: (970) 497-4922

Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

DANIEL VILLALPANDO, individually and on behalf of all others similarly situated,

Plaintiffs, vs. EXEL DIRECT INC.; DPWN HOLDINGS (USA), INC.; DEUTSCHE POST BETEILIGUNGEN HOLDING GMBH; EUROMARKET DESIGNS, INC. d/b/a CRATE & BARREL; OFFICE DEPOT, INC.; SEARS HOLDINGS CORPORATION; WILLIAMS-SONOMA, INC.; JC PENNEY COMPANY, INC.; LA-Z-BOY, INC.; RESTORATION HARDWARE HOLDINGS INC., D/B/A RESTORATION HARDWARE; IKEA, INC.

Defendants.

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Consolidated Cases: Case No. 3:12-cv-04137-JCS Case No. 4:13-cv-03091-JCS CLASS ACTION CONSOLIDATED FIRST AMENDED COMPLAINT

Case3:12-cv-04137-JCS Document65 Filed10/28/13 Page1 of 46


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TAFITI SHEKUR, individually and on behalf of all others similarly situated, Plaintiffs, vs. EXEL DIRECT INC.; DPWN HOLDINGS (USA), INC.; DEUTSCHE POST BETEILIGUNGEN HOLDING GMBH; EUROMARKET DESIGNS, INC. d/b/a CRATE & BARREL; OFFICE DEPOT, INC.; SEARS HOLDINGS CORPORATION; WILLIAMS-SONOMA, INC.; JC PENNEY COMPANY, INC.; LA-Z-BOY, INC.; RESTORATION HARDWARE HOLDINGS INC., D/B/A RESTORATION HARDWARE; IKEA, INC. Defendants.

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )



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I. INTRODUCTION

1. Plaintiffs Daniel Villalpando and Tafiti Shekur bring this class action on behalf of

themselves and other similarly situated individuals who have worked for Defendants as delivery

drivers (“Drivers”) in California at any time beginning June 14, 2008 (four years before the filing of

the original complaint in this matter) until resolution of these actions, and who have been classified

by Defendants as “independent contractors.” Throughout the relevant time period of this action,

Defendants have routinely been violating the following California Labor Code and California Code

of Regulations, by improperly categorizing Class Members, including Plaintiffs, as independent

contractors when they are, in fact, employees.

2. Plaintiffs, on their own behalf and on behalf of all Class Members, bring this action

pursuant to Labor Code §§ 201-203, 221, 222.5, 223, 226.8, 226.3, 226.7, 400-410, 450, 510, 512,

1182, 1174, 1194, 1197, 1197.1, and 2802; California Code of Regulations, Title 8 §11090 section 7

& 11-12; California Wage Order No. 1-2001 (8 Cal. Code Reg., § 11090); and Industrial Wage

Commission Wage (hereinafter “IWC”) Order No. 9. Specifically, Plaintiffs challenge Defendants’

policies of: (1) classifying Drivers as independent contractors instead of employees; (2) failing to

reimburse Plaintiffs and the Class for reasonable business expenses; (3) making deductions from

Plaintiffs’ and the Class’ wages; (4) requiring Plaintiffs and the Class to pay for pre-employment

medical and physical examinations; (5) coercing or compelling Plaintiffs and the Class to purchase

things of value from Defendants; (6) failing to provide, authorize, permit and/or make available meal

and rest periods to Plaintiffs and the Class as required by California law; (7) denying Plaintiffs and

the Class full compensation for all hours worked; (8) failing to pay Plaintiffs and the Class

minimum wage; (9) failing to pay Plaintiffs and the Class overtime and double time; (10) failing to

provide Plaintiffs and the Class with accurate, itemized wage statements; (11) failing to timely pay

Plaintiffs and the Class full wages upon termination or resignation; and (12) engaging in a pattern or

practice of willfully misclassifying employees as independent contractors. Plaintiffs seek

compensation, damages, penalties and interest to the full extent permitted by the Labor Code and

IWC Wage Orders.



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3. Plaintiffs, on behalf of themselves and all others similarly situated, also bring this

action pursuant to Business & Professions Code §§ 17200-17208 , for unfair competition due to

Defendants’ unlawful violations of the Labor Code and IWC Wage Orders. Plaintiffs, on behalf of

themselves and all others similarly situated, seek injunctive relief and restitution under §17203.

4. Plaintiffs, on behalf of themselves and all others similarly situated, also seek penalties

under the Labor Code Private Attorneys General Act of 2004 (PAGA). PAGA provides that any

civil penalty assessed and collected by by the Labor and Workforce Development Agency (LWDA)

for violations of applicable provisions of the California Labor Code may, as an alternative, be

recovered through a civil action brought by an aggrieved employee on behalf of himself and other

current or former employees pursuant to procedures outlined in California Labor Code Section

2699.3. On June 1, 2012, Plaintiff Shekur provided written notice by certified mail to the LWDA,

Defendant Exel Direct Inc., Sears Holdings Management Corp., Sears Logistics Services, Inc.,

Sears, Roebuck and Co., and Sears Outlet Stores, LLC, of the specific provisions of the California

Labor Code alleged to have been violated, including the facts and theories to support the alleged

violations. More than 33 days have passed since the mailing of Plaintiff’s letter, and Plaintiff has

not received a letter from the LWDA stating its intent to investigate his claims.

5. Plaintiffs, on behalf of themselves and all others similarly situated, also request

reasonable attorneys’ fees and costs pursuant to, inter alia, Labor Code §§ 225.5, 226, 226.7, 558,

1194, 1197, and 2802; and Code of Civil Procedure § 1021.5.

II. VENUE AND JURISDICTION

6. The case of Villalpando v. Exel Direct Inc., No. 12-cv-04137-JCS was originally filed

in the Superior Court of California, Alameda County, on June 14, 2012, naming Exel Direct and

Does 1-50 as the Defendants. On August 6, 2012, Defendant Exel Direct filed a petition for removal

in this Court premised on the Class Action Fairness Act (“CAFA”). On September 5, 2012, Plaintiff

filed a motion to remand to State Court. On November 11, 2012 the Court denied Plaintiffs’ motion

to remand, finding that there was federal diversity jurisdiction pursuant to CAFA.



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7. The case of Shekur v. Exel Direct Inc., No. 13-cv-03091-JCS was originally filed on

July 11, 2012, in the Superior Court, Sacramento County, naming Exel Direct and Does 1-50 as

Defendants. On April 9 2013, Defendants Exel Direct removed this case to the United States

District Court, Eastern District of California.

8. Pursuant to Fed. R. Civ. P. 42(a)(2), Plaintiffs and Defendants Exel Direct filed a Joint

Motion to Consolidate Related Cases in each case. The Court granted the motion on August 28,

2013.

9. Venue is proper in this judicial district pursuant to 28 U.S.C. §1398. Defendants

employ Class members and transact business in Alameda County.

III. PARTIES

A. Plaintiffs

10. Plaintiffs and all putative Class members as set forth below are current or former

Drivers of Defendants in California who are or were classified as “independent contractors” at any

time during the period beginning June 14, 2008 (four years before the filing of the original

complaint in this matter) to resolution of these actions.

11. Plaintiff Daniel Villalpando is a resident of Oakley, California in Contra Costa

County. Plaintiff worked as a Driver out of Defendant Exel Direct’s office, located in the warehouse

of Defendant Sears Holdings Corporation (“Sears”), in Sacramento, California, between

approximately September 2008 and December 2011.

12. Mr. Villalpando was employed by Defendants Exel Direct and/or jointly by

Defendants Exel Direct and Sears as a Driver and he held this same job position since he began

working for Defendants in September 2008. Mr. Villalpando’s agreement was terminated by

Defendants and/or jointly by Defendants Exel Direct and Sears, in December of 2011.

13. Plaintiff Tafiti Shekur is a citizen of the State of California, residing in Sacramento,

California. Plaintiff Shekur was employed by Defendants Exel Direct and/or jointly by Defendants

Exel Direct and Sears, as a Driver in 2011, in Sacramento County, California.



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B. Defendants

14. Defendants Exel Direct Inc., DPWN Holdings (USA), Inc., Deutsche Post

Beteiligungen Holding GmbH ( “Exel Direct”), are and at relevant times have been engaged in the

business of delivery services in the State of California. Exel Direct is a wholly owned entity of

Deutsche Post DHL and is part of the Supply Chain division of Deutsche Post DHL. Deutsche Post

DHL owns and operates under a number of different names and/or entities, which are headquartered

in Ohio, including, but not limited to, DHL Express (USA). Exel Direct Inc. and DHL Express

(USA), Inc. both have a registered agent at 818 W. Seventh Street, Los Angeles, California 90017.

15. Defendant Euromarket Designs, Inc., d/b/a Crate & Barrel (“Crate & Barrel”), is

wholly owned by Otto GmbH. Crate & Barrel is incorporated in Wilmington, Delaware, and is a

retailer of home furnishings. Crate & Barrel has sixteen (16) stores located in California. Defendant

Crate & Barrel engages Defendant Exel Direct in the delivery of products purchased in the Crate &

Barrel stores in California, in accordance with a standardized set of policies and procedures

implemented by Defendants Exel Direct, and/or jointly by Defendants Exel Direct and Crate &

Barrel. Through these policies and procedures, Defendants Exel Direct, and/or Defendants Exel

Direct and Crate & Barrel jointly, control the manner and means by which the Drivers perform their

work. Defendant Crate & Barrel is a joint employer with Defendant Exel Direct of the Drivers that

deliver merchandise for the Crate & Barrel stores in California.

16. Defendant Office Depot, Inc. is a Delaware corporation with its corporate

headquarters located in Boca Raton, Florida. Office Depot has numerous retail stores located in

California. Office Depot offers office supplies and home furnishings to customers throughout

California and the United States. Defendant Office Depot engages Defendants Exel Direct in the

delivery of products purchased in the Office Depot stores in California, in accordance with a

standardized set of policies and procedures implemented by Defendants Exel Direct, and/or jointly

by Defendants Exel Direct and Crate and Barrel. Through these policies and procedures, Defendants

Exel Direct, and/or Defendants Exel Direct and Office Depot jointly, control the manner and means

by which the Drivers perform their work. Defendant Crate & Barrel is a joint employer with



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Defendant Exel Direct of the Drivers that deliver merchandise for the Office Depot stores in

California.

17. Defendant Sears Holdings Corporation, d/b/a Sears, is incorporated in Delaware and

has its headquarters in Illinois. Sears is a retailer with stores throughout California and the United

States. Sears sells appliances, home furnishings, and other products directly to customers.

Defendant Sears engages Defendants Exel Direct in the delivery of products purchased in the Sears

stores in California, in accordance with a standardized set of policies and procedures implemented

by Defendants Exel Direct, and/or jointly by Defendants Exel Direct and Sears. Through these

policies and procedures, Defendants Exel Direct, and/or Defendants Exel Direct and Sears jointly,

control the manner and means by which the Drivers perform their work. Defendant Sears is a joint

employer with Defendant Exel Direct of the Drivers that deliver merchandise for the Sears stores in

California.

18. Defendant Williams-Sonoma, Inc. is incorporated in Delaware and has its

headquarters in San Francisco, California. Defendant Williams-Sonoma is a retailer of kitchen

appliances and home goods. Defendant Williams-Sonoma has multiple retail locations as well as its

headquarters in California. Defendant Williams-Sonoma engages Defendants Exel Direct in the

delivery of products purchased in the Williams-Sonoma stores in California, in accordance with a


by Defendants Exel Direct and Williams-Sonoma. Through these policies and procedures,

Defendants Exel Direct, and/or Defendants Exel Direct and Williams-Sonoma jointly, control the

manner and means by which the Drivers perform their work. Defendant Williams-Sonoma is a joint

employer with Defendant Exel Direct of the Drivers that deliver merchandise for the Williams-

Sonoma stores in California.

19. Defendant JC Penney Company, Inc. is incorporated in Delaware and headquartered in

Plano, Texas. JC Penney is a retailer engaged in the business of selling home furnishings, clothing,

and accessories to customers located in California and throughout the United States. Defendant JC

Penney engages Defendants Exel Direct in the delivery of products purchased in the JC Penney



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stores in California, in accordance with a standardized set of policies and procedures implemented

by Defendants Exel Direct, and/or jointly by Defendants Exel Direct and JC Penney. Through these

policies and procedures, Defendants Exel Direct, and/or Defendants Exel Direct and JC Penney

jointly, control the manner and means by which the Drivers perform their work. Defendant JC

Penney is a joint employer with Defendant Exel Direct of the Drivers that deliver merchandise for

the JC Penney stores in California.

20. Defendant LA-Z-BOY, Inc. is incorporated and headquartered in Michigan.

Defendant LA-Z-BOY is a retailer engaged in the business of selling furniture to customers

throughout California and the United States. Defendant LA-Z-BOY engages Defendants engages

Defendant Exel Direct in the delivery of products purchased in the LA-Z-BOY stores in California,

in accordance with a standardized set of policies and procedures implemented by Defendants Exel

Direct, and/or jointly by Defendants Exel Direct and LA-Z-BOY. Through these policies and

procedures, Defendants Exel Direct, and/or Defendants Exel Direct and LA-Z-BOY jointly, control

the manner and means by which the Drivers perform their work. Defendant LA-Z-BOY is a joint

employer with Defendant Exel Direct of the Drivers that deliver merchandise for the LA-Z-BOY

stores in California.

21. Defendant Restoration Hardware Holdings Inc., d/b/a Restoration Hardware

(“Restoration Hardware”) is incorporated in Wilmington, Delaware, headquartered in California,

and is a retailer of home furnishings. Restoration Hardware has multiple stores located in

California. Defendant Restoration Hardware engages Defendant Exel Direct in the delivery of

products purchased in the Restoration Hardware stores in California, in accordance with a


by Defendants Exel Direct and Restoration Hardware. Through these policies and procedures,

Defendants Exel Direct, and/or Defendants Exel Direct and Restoration Hardware jointly, control

the manner and means by which the Drivers perform their work. Defendant Restoration Hardware is

a joint employer with Defendant Exel Direct of the Drivers that deliver merchandise for the

Restoration Hardware stores in California.



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22. Defendant Ikea Inc., (“Ikea”) is incorporated in Wilmington, Delaware, headquartered

in the Netherlands, and is a retailer of home furnishings. Ikea has multiple stores located in

California. Defendant Ikea engages Defendant Exel Direct in the delivery of products purchased in

the Ikea stores in California, in accordance with a standardized set of policies and procedures

implemented by Defendants Exel Direct, and/or jointly by Defendants Exel Direct and Ikea.

Through these policies and procedures, Defendants Exel Direct, and/or Defendants Exel Direct and

Ikea jointly, control the manner and means by which the Drivers perform their work. Defendant

Ikea is a joint employer with Defendant Exel Direct of the Drivers that deliver merchandise for the

Ikea stores in California.

23. Defendants are or were the joint employers of Plaintiffs and the Class of employees

they seek to represent. Plaintiffs are informed and believe that each and every act and omission

alleged herein were performed by, and/or attributable to, all Defendants, each acting as agents and/or

employees, and/or under the direction and control of each of the other Defendants, and that said acts

and failures to act were within the course and scope of said agency, employment and/or direction

and control.

24. Plaintiffs are informed and believe that each of the Defendants is liable to Plaintiffs

and the Class as an “employer,” as that term is defined in Section 18 of the Labor Code, Wage Order

9, section 2(F) and Wage Order 14-2001, section 2(F). As employers of Plaintiffs and the Class

throughout the relevant time period, each of Defendants are either solely or jointly and severally

liable for back pay and other economic damages, including statutory penalties, owed to Plaintiffs

and the Class under common law and by statute.

IV. FACTUAL ALLEGATIONS

25. During the relevant time period of this action, Defendants have employed, and

continue to employ, Plaintiffs and other similarly situated individuals to provide delivery services

(“Drivers”).

26. Defendants require all prospective Drivers to fill out an application prior to

commencing work, which requests information such as employment history, driver’s license



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number, driving records from the DMV and MVR, credit check scores, background and criminal

checks, and personal references.

27. Defendants require prospective Drivers to undergo physical examinations and submit

to drug and alcohol tests prior to employment. Drivers must agree to continue to submit to drug and

alcohol testing whenever requested by Exel Direct throughout their employment. Drivers were, and

at all relevant times, have been required to pay for the costs of such examinations and tests, which

Defendants deduct directly from the Drivers’ payment.

28. Defendants require Drivers to obtain business licenses indicating their status as an

LLC or Corporation. Defendants assist Drivers in the completion of the paperwork and/or loan the

Drivers money to obtain a business license, which Defendants later deduct from Drivers’ weekly

payments.

29. Defendants require applicants to sign an “Independent Truckman’s Agreement”

(hereinafter “Agreement”) with no ability to negotiate the terms, but rather as a condition of

employment.

30. The Agreements are drafted exclusively by Defendants and/or its legal counsel.

31. The Agreement purports to classify Drivers as independent contractors so as to

conceal the true nature of the relationship between Defendants and their Drivers: that of employer

and employees. The Agreement is only in English, even though a large portion of the Drivers speak

only Spanish. Plaintiff Villalpando requested an Agreement in Spanish, but Defendants informed

him that such a version did not exist.

32. Although the Agreement states that it is effective for a period of one (1) year, it also

provides that it would remain in effect on a year-to-year basis unless either party terminates the

Agreement.

33. Defendants require Drivers to provide sixty (60) days written notice prior to

terminating their employment with Defendants, with or without cause. If Defendants terminate the

Agreement without cause, they have the right to transfer Drivers to another location. If Drivers do

not comply with the transfer, it would constitute a breach of the Agreement and Defendants could



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terminate the Agreement without notice. Additionally, Defendants retain the right to terminate

Drivers without notice if they fail to adhere to any part of the Agreement.

34. Defendants have required each Driver to execute an Equipment Lease Agreement

(hereinafter the “Lease”). Under the Lease, Drivers agree to provide Defendants with a delivery

vehicle (hereinafter the “Vehicle”).

35. The Drivers must purchase or lease the Vehicles from a third party or through

Defendants from a third party rental client. If a Driver leases a Vehicle through Exel Direct, then

Defendants deduct the leasing costs from the Drivers’ weekly payments.

36. All Vehicles used by Drivers must conform to specific criteria set forth by

Defendants, which includes the type, size, measurements, and color of Vehicle.

37. Defendants require Drivers’ Vehicles to be marked with several Exel Direct decals

and large decals of the Defendant retail companies on the sides and front of the Vehicle to identify

the Vehicles as affiliated with Defendants.

38. Defendants require that any equipment, including the Vehicles used throughout the

Drivers’ employment be used exclusively in work performed for Defendants. Drivers are unable to

use their Vehicles to provide any other type of delivery services.

39. Defendants furnish Drivers with additional equipment necessary to deliver the

merchandise, such as straps, hand trucks, pallet jacks and blankets, and then automatically deduct

their cost from Drivers’ weekly pay. Drivers are unable to deny the additional equipment, and are

told by Defendants that if they were to deny it, their agreement could be terminated.

40. Defendants require Drivers to attend training conducted by Defendants for a minimum

of two weeks. The training discusses how to drive the Vehicle, what speed to drive the Vehicle,

what subjects to discuss with the customer, exactly what to say to the customer, how to install

merchandise, and how to load and unload merchandise. Defendants require additional training when

a new product arrives. Defendants do not compensate Drivers for time spent at training.

41. Defendants control the amount that Drivers pay their assistants. Defendants require

Drivers to pay their assistants a minimum of one hundred dollars ($100.00) a day.



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42. Defendants conduct routine on-site evaluations of Drivers. A manager or an assistant

manager performs a surprise visit at one of the delivery locations of the Drivers and closely

evaluates the Drivers while they perform delivery and installation of the product(s).

43. Defendants prohibit Drivers from wearing uniforms bearing the name of another

business. Instead, Defendants select uniforms for the Drivers.

44. The Drivers’ uniform shirt is only available for purchase through Defendants. The

cost of the uniforms is deducted from the Drivers’ weekly pay.

45. Defendants require the Drivers and their assistants to adhere to strict appearance

requirements. Defendants require Drivers to wear a uniform, that their shirts be buttoned and tucked

in, to have well-groomed hair, be clean shaven, and have no visible tattoos or piercings.

46. Defendants have eligibility requirements for Drivers’ assistants. All assistants must

undergo criminal background checks, may not have been convicted of certain crimes that involve

violence, dishonesty or drug use, and may not use illegal drugs.

47. Defendants train Drivers on how to interact with customers. Defendants require

Drivers to follow a model dialogue when greeting the customers and at the end of the delivery

service, to make eye contact, and to refrain from shaking a female customer’s hand.

48. Defendants have strict protocols on how Drivers interact with Customers. For

example, Defendants do not permit Drivers to use the restroom at the customer’s house, or to accept

any type of food, water or any gratuity, despite Customers’ repeated offers.

49. Defendants rate drivers based on customers’ reviews. Defendants’ ratings of the

Drivers determine what routes Drivers receive. If a Driver receives a low score and does not

improve within two weeks, the Driver can be terminated.

50. Before each workday, Drivers are expected to report to Defendants’ office.

Defendants require Drivers to attend a meeting with management for approximately thirty minutes

or more, to discuss topics related to routes, customer service and Driver performance. After the

meeting, Drivers load the appliances into their Vehicles.



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51. Defendants require Drivers to return their delivery logs and all used appliances from

the Customers’ homes to the warehouse after completing all of their deliveries. Drivers are often

unable to complete their deliveries before the warehouse closes. As a result, Drivers have often been

required to return the next morning to drop off the customer’s old appliances, even if they were not

scheduled to work.

52. A Driver’s daily delivery route consists of multiple individual delivery locations.

Drivers work approximately 12-14 hours per day, and sometimes more, to complete routes assigned

by Defendants.

53. Defendants prohibit Drivers from using the Vehicles for delivery services independent

from the delivery services that they are required to provide for Exel Direct.

54. Defendants require Drivers to be available to make deliveries seven (7) days per week.

Defendants retain the right to order Drivers to work holidays and days after holidays (such as the

Friday after Thanksgiving). Failure to work such days has resulted in deductions, suspensions

and/or terminations of Drivers.

55. Drivers are required to ask Defendants for permission to take days off. However,

Defendants routinely deny Drivers’ requests for time off. If Drivers were to take a day off without

permission from Defendants, then the Drivers would be subject to termination of their Agreements

without cause.

56. Defendants assign delivery routes to Drivers that must be completed according to a

schedule. If the Driver could not complete or refuses to accept the assigned delivery route,

Defendants deduct the cost of another driver to perform the delivery route from the Driver’s

payment. Under Defendants’ policy, Drivers “will be responsible for any expense(s) incurred by the

Company in performing or having other parties perform the general duties for the Contractor when

he/she is unable or unwilling to perform the general duties prescribed in Section 1 of the

Independent Truckman’s Agreement.” Defendants require Drivers to deliver consumer items and

other related services necessary to serve Defendants’ customers when requested by Defendants.



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57. Defendants exercise complete control over the precise homes each driver services on a

given day. Defendants assign Drivers to a specific home delivery route. The Drivers are not

permitted to exchange assignments amongst themselves.

58. Defendants have exercised total control over the workload of the Drivers, including

the number of deliveries each Driver makes and the times of day when deliveries are made.

Defendants assign and schedule Drivers to two (2) hour delivery windows within which to deliver

appliances. If Drivers do not complete each delivery during the specified time window, Drivers are

subject to a deduction and/or termination of their Agreement.

59. Drivers are not permitted to allow persons who were not already pre-approved by

Defendants to assume their job duties, even temporarily.

60. Drivers are continuously evaluated regarding their adherence to Defendants’ standards

regarding the timing of pick-ups and deliveries, whether they were punctual for deliveries, the

number of deliveries made, whether they called in any anticipated delays to dispatch, whether they

called each customer thirty (30) minutes prior to delivery, and whether they honored special

customer requests or Defendants’ last-minute alterations to delivery schedules.

61. Defendants control when and how Drivers maintain the Vehicles. Defendants

routinely check the Vehicles’ condition. Defendants regularly inspect Vehicles, monitor

maintenance requirements, and deduct maintenance costs from the Driver’s weekly payments.

These costs include oil changes, new tires, and car washes.

62. Drivers are required to adhere to Defendants’ standards regarding the upkeep of their

Vehicle, such as cleanliness and organization of equipment, cleanliness and organization of the cab,

cleanliness of the truck bed, and cleanliness and condition of the decals. Defendants perform daily

inspections to ensure these requirements are met.

63. Defendants require Drivers to follow specific instructions as to how to load and

unload, and transport merchandise. Drivers are trained and evaluated by Defendants regarding their

adherence to Defendants’ approved delivery techniques, such as: the speed limit Drivers must stay

below, though it is lower than the legal requirements; Defendants’ method for strapping and



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unstrapping merchandise in the Vehicle; Defendants’ method for carrying the appliances;

Defendants’ method for completing “trip sheets;” Defendants’ method for carrying appliances inside

the customer’s home; and what equipment could be used to carry the appliance inside the customer’s

home.

64. Defendants require Drivers to complete a daily log, called a “trip sheet,” for each

delivery they make each day and obtain each customer’s signature on the trip sheet. Drivers are

instructed precisely as to how to complete the log. The drivers are required to return the log to

Defendants at the end of each business day.

65. Defendants require Drivers to call Defendant Exel Direct using the Driver’s personal

cellular telephone throughout the day for the following purposes, including, but not limited to: 1)

notifying customers thirty (30) minutes prior to arriving at the customer’s location; 2) reporting their

arrival and departure times; and 3) reporting potential delays or the inability to make regularly

scheduled deliveries. If Drivers do not follow any one of these delivery procedures, they are subject

to weekly pay deductions, unfavorable route schedules, or termination.

66. Drivers are not reimbursed for the cellular telephones despite their necessity as a

business expense for carrying out work assigned by Defendants.

67. Defendants require each Driver to “purchase” certain items, which are properly

Defendants’ business expenses, such as maintenance fees, drug and alcohol tests, background and

criminal checks, DMV and MVR records, service apparel and cleaning, vehicle washes, physical

examinations, and delivery supplies. All of these “purchases” are requested by Defendants, and

Defendants deduct an amount for each of these items from each Driver’s gross pay. The Drivers

cannot negotiate the amount that is deducted for each of Defendants’ business expenses. Thus,

Defendants operate under the façade that Drivers are paying for their own tools and equipment used

in the course of their supposed independent business, but in reality Defendants unlawfully require

Drivers to pay for the employer’s business expenses.

68. Defendants require Drivers to obtain specific types and levels of insurance. The

Drivers can purchase insurance through a third party, subject to certain requirements set forth by



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Defendants, or through the Company’s insurer, the cost of which Defendants deduct from Drivers’

weekly payments. If Drivers purchase insurance through Defendants, Defendants complete

insurance paperwork for Drivers and keep all documents returned by the Insurance Company

regarding the policy, without allowing Drivers to review them. Furthermore, if Drivers obtained

insurance through Defendants’ insurance program, Defendants’ charge an administration fee equal

to ten percent (10%) of the total insurance cost, which is deducted from the Drivers’ payment.

69. Defendants require Drivers to list Defendant Exel Direct as an additional insured

named on all liability coverage.

70. Defendants require Drivers to give and maintain a fifteen hundred dollar ($1,500.00)

bond. If Drivers are unable to pay the bond at the beginning of their employment, Defendants

deduct a certain amount from Drivers’ weekly payments to supplement the bond.

71. Defendants compensate Drivers according to a highly structured system that gives

Drivers no opportunity to exercise entrepreneurship or otherwise engage in the risks and rewards

associated with owning a business. Accordingly, Drivers are paid either a flat weekly rate or a set

commission, as determined by Defendants, with no opportunity to negotiate individually for a higher

rate or commission. Defendants told Plaintiffs that the flat rate paid per delivery was the equivalent

of the commission amount.

72. Defendants decide which method of payment will be utilized. Drivers have not been

able to choose the method of payment. Neither the amount of the weekly payment or commission is

negotiable; nor is the amount of various chargebacks that Defendants deduct from the Drivers’

weekly payments.

73. The Drivers’ weekly payments are directly deposited into their bank accounts.

Alternatively, if a Driver prefers to receive payment by check, a Driver is charged a fifteen dollar

($15.00) administration fee for each check, which Defendants deduct from the Drivers’ weekly

payments.

74. Plaintiffs are informed and believe and thereon allege that, through common policies

and practices collectively and individually, Defendants systematically engaged in an unlawful,



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unfair and fraudulent scheme designed to make the Drivers appear to be running independent

businesses, when in reality they are the employees of Defendants.

75. Defendants’ unlawful conduct has been, and continues to be widespread, repeated, and

willful throughout California. Defendants knew or should have known that their policies and

practices have been unlawful, unfair and/or fraudulent.

V. CLASS ALLEGATIONS

76. Proposed Class Definition. Plaintiffs bring causes of action One through Fourteen as

a class action on behalf of themselves and all others similarly situated pursuant to Federal Rule of

Civil Procedure 23(a) and (b)(3). The Class Plaintiffs seek to represent is composed of: “All

individuals who have provided delivery services for Defendants Exel Direct, while being classified

by Defendants as an independent contractor, at any time beginning June 14, 2008 (four years before

the filing of the original complaint in this matter) until resolution of these actions.”

77. Numerosity. The potential members of the Class as defined are so numerous that

joinder of all the members of the Class is impracticable. While the precise number of Class

members has not been determined at this time, Plaintiffs are informed and believe that Defendants

have employed over 300 persons classified as Independent Drivers since June 14, 2008. Joinder of

all members of the Class is therefore impracticable.

78. Common questions of law and fact. Common questions of law and/or fact exist as to

the members of the California Class and, in addition, common questions of law and/or fact

predominate over questions affecting only individual members of the California Class. The common

questions include the following:

(a) Whether Class Members are independent contractors or employees under applicable

law;

(b) Whether Defendants have the right to control the manner and means by which the

Drivers perform their work;

(c) Whether Defendants direct and/or supervise the work that the Drivers perform;



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(d) Whether Defendants’ policy manuals and handbooks instruct the Drivers on how to

conduct themselves and perform their work;

(e) Whether the Drivers use and receive forms and materials provided by Defendants;

(f) Whether the Drivers attend meetings conducted by Defendants regarding their work

assignments and performance;

(g) Whether Defendants assign the Drivers delivery schedules and routes;

(h) Whether Defendants exercise control, directly or indirectly, over Class Members’

work hours;

(i) Whether Defendants exercise control, directly or indirectly, over Class Members’

working conditions;

(j) Whether Defendants exercise control, directly or indirectly, over the kinds of trucks,

equipment and uniforms the Drivers use;

(k) Whether Drivers wear uniforms as specified by Defendants;

(l) Whether Defendants’ logos and/or names are affixed outside the delivery trucks used

by the Drivers and/or on the Drivers’ uniforms;

(m) Whether the Drivers need special skills or education to perform their work;

(n) Whether Defendants supply tools and equipment to the Drivers;

(o) Whether the Drivers’ work is part of the regular business of Defendants;

(p) The method by which Defendants pay the Drivers;

(q) Whether Defendants must approve a Driver’s use of helpers or second drivers

(r) Whether Defendants exercise control, directly or indirectly, over the terms by which

helpers and second drivers are paid and perform their job;

(s) Whether the Drivers’ tenure with the company is indefinite and/or whether the

contracts signed by the Drivers contain automatic renewal clauses and can be

terminated by either party;

(t) Whether the Class Members are entitled to compensation for the coerced purchases;



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(u) Whether the Class Members are entitled to be reimbursed for Defendants’ business

expenses and deductions;

(v) Whether Defendants pay Class Members overtime or double time wages for

performing work over eight (8) hours per day, over twelve (12) hours per day, and/or

over forty (40) hours per week;

(w) Whether Class Members are denied minimum wage by virtue of the length of the

routes Defendants assign in comparison to the compensation actually paid to them,

after the deductions Defendants make from the settlement payments and the other

expenses Class Members must pay out of their own pocket;

(x) Whether the routes Defendants assign to the Drivers are structured in a way that

deprives them of taking off duty meal and rest periods as required by applicable law;

(y) Whether Defendants authorize and permit rest periods as required by applicable law;

(z) Whether Class Members’ claims for failure to provide meal and rest periods are

preempted by the Federal Aviation Administration Authorization Act (FAAAA);

(aa) Whether the settlement statements provided to Class Members in connection with their

compensation contain all the elements mandated for accurate itemized wage

statements under Cal. Labor Code § 226(a);

(bb) Whether Class Members who have terminated their employment relationship with

Defendants are entitled to penalty wages for Defendants’ failure to timely pay all

outstanding amounts of compensation owed upon termination of the employment

relationship;

(cc) Whether Defendants’ conduct was willful;

(dd) Whether Defendants’ policies and practices have resulted in violation of one or more

of the Labor Code Provisions cited herein;

(ee) Whether Defendants’ policies and practices are unlawful, unfair and/or fraudulent

business practices in violation of California Business & Professions Code §§17200, et

seq.;



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(ff) The injunctive and/or monetary relief that Plaintiffs and the Class may be entitled to as

a result of the violations alleged herein.

79. Typicality. Plaintiffs’ claims are typical of the claims of the Class. Defendants’

common course of conduct in violation of law as alleged herein has caused Plaintiffs and the

proposed Class to sustain the same or similar injuries and damages. Plaintiffs’ claims are thereby

representative of and co-extensive with the claims of the proposed Class.

80. Adequacy. Plaintiffs are adequate representatives of the Class because their interests

do not conflict with the interests of the members of the class they seeks to represent. Plaintiffs have

retained counsel competent and experienced in complex class action litigation, and Plaintiffs intend

to prosecute this action vigorously. Plaintiffs and their counsel will fairly and adequately protect the

interests of members of the Class.

81. Superiority. The class action is superior to other available means for the fair and

efficient adjudication of this dispute. The injury suffered by each member of the Class, while

meaningful on an individual basis, is not of such magnitude as to make the prosecution of individual

actions against Defendants economically feasible. Individualized litigation increases the delay and

expense to all parties and the court system presented by the legal and factual issues of the case. By

contrast, the class action device presents far fewer management difficulties and provides the benefits

of single adjudication, economy of scale, and comprehensive supervision by a single court. Class

action treatment will allow those similarly situated persons to litigate their claims in the manner that

is most efficient and economical for the parties and the judicial system.

82. In the alternative, the Class may be certified because the prosecution of separate

actions by the individual members of the Class would create a risk of inconsistent or varying

adjudication with respect to individual members of the Class which would establish incompatible

standards of conduct for Defendants;

83. If each individual Class Member were required to file an individual lawsuit, the large

corporate Defendants would necessarily gain an unconscionable advantage because Defendants



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would be able to exploit and overwhelm the limited resources of each member of the Class with

Defendants’ vastly superior financial legal resources.

84. Requiring each individual Class Member to pursue an individual remedy would also

discourage the assertion of lawful claims by the Class Members who would be disinclined to pursue

against Defendants because of an appreciable and justifiable fear of retaliation and permanent

damage to their lives, careers and well-being.

85. An important public interest recognized by California substantive law will be served

by addressing the present ‘wage and hour’ suit as a class action. (“The prompt payment of wages

due [to] an employee is a fundamental policy of this state.” Belaire-West Landscaping Inc. v.

Superior Court (2007) 149 Cal.App.4th 554, 562, citing Phillips v. Gemini Moving Specialists

(1998) 63 Cal.App.4th 563, 571.

VI. CAUSES OF ACTION

FIRST CAUSE OF ACTION Failure to Pay Minimum Wages

California Labor Code §§ 1182.11, 1182.12, 1194, 1197, and 1197.1; IWC Wage Order No. 9; and Minimum Wage Order

(Against All Defendants)

86. Plaintiffs hereby reallege and incorporate by reference the paragraphs above as though

fully set forth herein.

87. Defendants have maintained policies and procedures which created a working

environment where Drivers are routinely compensated at a rate that is less than the statutory

minimum wage.

88. During the applicable statutory period, California Labor Code §§1182.11, 1182.12 and

1197, and the Minimum Wage Order were in full force and effect and required that Defendants’

California Drivers receive the minimum wage for all hours worked irrespective of whether

nominally paid on a piece rate, or any other bases, at the rate of eight dollars ($8.00) per hour

commencing January 1, 2008.



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89. “Hours worked” is the time during which an employee is subject to the control of an

employer, and includes all the time the employee is suffered or permitted to work, whether or not

required to do so.

90. California Labor Code §1194 states:

Notwithstanding any agreement to work for a lesser wage, any employee receiving less than the

legal minimum wage or the legal overtime compensation applicable to the employee is entitled to

recover in a civil action the unpaid balance of the full amount of this minimum wage or overtime

compensation, including interest thereon, reasonable attorney’s fees, and costs of suit.

91. Drivers regularly work twelve (12) to fourteen (14) hours per day, and sometimes

more. Drivers begin a typical workday by reporting to the office and/or warehouse to obtain their

routes, attend a morning meeting, and load their freight. This work is off-the-clock and may take as

long as two to three hours.

92. Drivers work tirelessly throughout the day into the night to comply with Defendants’

policies and met their expectations.

93. Defendants pay Drivers a fixed rate for each customer delivery; this is referred to as a

piece-rate payment schedule.

94. Working days are often lengthened by supervisors who order Drivers to redeliver on a

previously failed delivery attempt or wait at a delivery location if the customer misses their

appointment window. After completing their assigned routes, Defendants require their Drivers to

return to the warehouse to submit their delivery logs and drop off the customer’s old products.

Oftentimes the warehouse closes by the time Drivers finish deliveries. However, Defendants’ require

Drivers to return to the warehouse the following day to drop off delivery logs and the customer’s old

appliances. This is true, even if the Driver is not scheduled the following day. Consequently, the

time that Drivers are required to work off-the-clock is dramatically increased.

95. In addition to the long hours, there are a considerable amount of deductions made by

Exel to the Drivers’ paychecks. Deductions include items such as; 1) uniforms; 2) trucks; 3)

insurance; 4) damaged merchandise; 5) incomplete routes; 6) equipment/tools; 7) fines; 8) citations;

9) penalties; 10) drug/alcohol/criminal checks; 11) DMV/MVR Records; 12) in-home damage to



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customer property; 13) gas/fuel; 14) truck repairs; 15) truck decals; 16) paint; 17) logos; 18) vehicle

washes; 19) telephone for truck; 20) tires; 21) merchandise claims; 22) physical examinations; 23)

towing costs; 24) postage; 25) debit memos; 26) purchase orders; 27) promissory notes with interest;

28) administrative fees for processing interest; 29) routing and supervision; 30) overhead; 31)

customer relations; 32) order fulfillment; 33) Cash performance bond (if never returned); and 34)

paying for a helper out of the Driver’s pocket, among other things.

96. Drivers must also pay out of their own pocket for expenses necessarily and reasonably

incurred to perform their job. This includes the substantial costs of diesel and other driving related

costs, such as maintenance, licensing, permits, tolls, and the like.

97. Between the lengthy routes and work days, substantial deductions, and the need to pay

for other necessary costs out of their own pocket, Drivers often work for wages that fall below the

minimum wage.

98. Because of Defendants’ policies and practices with regard to compensating their

Drivers, Defendants have failed to pay minimum wages as required by law. Plaintiffs and members

of the Class frequently work time for which they are compensated below the statutory minimum, as

determined by the Industrial Welfare Commission.

99. Labor Code §1194.2 provides that, in any action under Section 1194 to recover wages

because of the payment of a wage less than minimum wage fixed by an order of the commission, an

employee shall be entitled to recover liquidated damages in an amount equal to the wages

unlawfully unpaid and interest thereon.

100. By failing to maintain adequate time records as required by California Labor Code

§1174(d) and IWC wage order No. 9, §7(A), Defendants have made it difficult to calculate the

minimum wage compensation due to Plaintiffs and all other similarly situated Drivers.

101. As a direct and proximate result of the unlawful acts and/or omissions of Defendants,

Plaintiffs and Class Members have been deprived of minimum wages in an amount to be determined

at trial, and are entitled to a recovery of such amount, plus liquidated damages, plus interest thereon,

attorneys’ fees, and costs of suit pursuant to Labor Code §§ 1194, 1194.2 and 1197.1.



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SECOND CAUSE OF ACTION Failure to Pay Overtime Compensation

California Labor Code §§ 510, 515.5, 1194, and 1198 et seq., and IWC Wage Order No. 9. (Against All Defendants)



103. Defendants have failed to pay Plaintiffs, and other members of the Class, overtime

compensation for the hours they worked in excess of the maximum hours permissible by law under

California Labor Code §§ 510 and 1198, and IWC Wage Order No. 9, §3. Plaintiffs and other

members of the Class are regularly required to work overtime hours.

104. California Labor Code §§ 510 and 1198, and IWC Wage Order No. 9, §3, provides

that employees in California shall not be employed more than eight (8) hours in any workday or

forty (40) hours in any workweek unless they receive additional compensation beyond their regular

wages in amounts specified by law.

105. By virtue of Defendants’ unlawful failure to pay additional, premium rate

compensation to Plaintiffs and Class Members for their overtime hours worked, Plaintiffs and Class

Members have suffered, and will continue to suffer, damages in amounts which are presently

unknown to them but which exceed the jurisdictional threshold of this Court and which will be

ascertained according to proof at trial.

106. By failing to maintain adequate time records as required by California Labor Code §

1174(d) and IWC wage order No. 9, § 7(A), Defendants have made it difficult to calculate the

compensation of overtime owed to Plaintiffs and the members of the Class, thereby permitting

Plaintiffs and Class Members to establish their overtime and double time wages based on just and

reasonable inferences and estimates.


Plaintiffs and Class Members have been deprived of overtime and double time compensation in an

amount to be determined at trial. Plaintiffs and other members of the class request recovery of

overtime and double time compensation according to proof, interest, attorney’s fees and costs of suit



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pursuant to California Labor Code §§1194(a), 554, 1194.3 and 1197.1, as well as the assessment of

any statutory penalties against Defendants, in a sum as provided by the California Labor Code

and/or other statutes.

THIRD CAUSE OF ACTION Failure to Pay for All Hours Worked in Violation of California Labor Code §§201, 202, 204, and 221-223

108. Plaintiffs reallege and incorporate the above paragraphs as though fully set forth

below.

109. California Labor Code §200 defines wages as “all amounts for labor performed by

employees of every description, whether the amount is fixed or ascertained by the standard of time,

task, piece, commission basis or other method of calculation.”

110. California Labor Code §§ 201 and 202 require an employer to pay all wages earned

but unpaid immediately upon the involuntary discharge of an employee or within seventy-two (72)

hours of an employee’s voluntary termination of employment.

111. California Labor Code §204 provides that employers must compensate employees for

all hours worked “twice during each calendar month, on days designated in advance by the employer

as the regular paydays.”

112. California Labor Code §§221-223 prohibit employers from withholding and deducting

wages, or otherwise artificially lowering the wage scale of an employee.

113. Defendants willfully have maintained and continue to maintain a policy of denying

Drivers any wages for an array of activities they must perform before and after hauling merchandise

and performing deliveries, yet over which Defendants exert substantial control in the performance

thereof. At all relevant times, Plaintiffs and the proposed Class have been required by Defendants to

work off-the-clock without compensation for the work they perform, including, but not limited to,

attending daily and other ongoing meetings with management; reviewing route assignments and

mapping destinations; responding to customer service assignments outside the initial routes; loading

and unloading trucks; filling out paperwork; carrying out order fulfillment duties; performing cross-

dock operations; performing inter-company transfers; and other uncompensated work.



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114. While Defendants do not compensate for these work activities, Defendants require

Plaintiffs to perform them and exercise control over the way they are performed.

115. The substantial time Drivers regularly spend on these work activities is compensable

working time and Defendants are required by law to pay the Drivers for it. Defendants’ failure to

compensate Drivers for this time results in the denial of wages for all hours worked in violation of

the Labor Code provisions cited herein.

116. Defendants have committed these acts knowingly and willfully, with the wrongful and

deliberate intention of withholding, deducting and reducing wages owed to Plaintiffs and the Class

for time spent on the aforementioned activities. As a proximate result of these violations,

Defendants have damaged Plaintiffs and the Class in amounts to be determined according to proof at

trial.

117. Plaintiffs and the Class are thus entitled to recover nominal, actual, compensatory, and

exemplary damages in amounts according to proof at time of trial. Defendants are liable to Plaintiffs

and the Class for unpaid compensation, penalties, interest and attorneys’ fees and costs as set forth

below.

FOURTH CAUSE OF ACTION Failure to Provide Meal Periods, or Compensation in Lieu Thereof

California Labor Code §§ 226.7 and 512; and Cal.Code Regs., Title 8 §11090 sections 7 & 11 (Against All Defendants)

118. Plaintiffs hereby reallege and incorporate by reference paragraphs 1 through 80 above

as though fully set forth herein.

119. California Labor Code §§ 226.7 and 512, and Title 8 of the California Code of

Regulations § 11090, section 11 require Defendants to provide meal periods to Plaintiffs and

members of the proposed Class. California Labor Code §§ 226.7 and 512, and Title 8 of the

California Code of Regulations § 11090, section 11 prohibit employers from employing an

employee for more than five hours without a meal period no less than thirty (30) minutes and for

more than ten (10) hours without a second meal period. Unless the employee is relieved of all duty



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during the thirty (30) minute meal period, the employee is considered “on-duty” and the meal or rest

period is counted as time worked.

120. Drivers regularly work twelve (12) to fourteen (14) hours in a day, sometimes even

more, without being provided a realistic opportunity to take a meal period during which they are

relieved of all duties. The quantity of deliveries, time needed to drive between deliveries, and

delivery windows mandated in the routes and manifests Defendants assign to the Drivers routinely

deprives the Drivers of an opportunity to stop driving and take an off duty meal period, while still

completing their routes in accordance with Defendants’ instructions and expectations. Defendants’

policy is for the Drivers to meet the delivery windows in a timely fashion and provide high customer

service. Given the way the routes are designed and arranged, this routinely does not permit Drivers

an opportunity to take off duty meal periods of at least 30 minutes by the fifth hour of work and

another off duty meal period of at least 30 minutes by the tenth hour of work.

121. Because of Drivers must deliver within the scheduled delivery time, Drivers often

must: 1) eat while they drive; 2) eat while they work; and/or 3) forego their meal period entirely

until after they completed their work.

122. Under both California Labor Code § 226.7(b) and Title 8 of the California Code of

Regulations § 11090, section 11, an employer who fails to provide a required meal period must, as

compensation, pay the employee one (1) hour of pay at the employee’s regular rate of compensation

for each workday that the meal period was not provided.

123. Title 8 of the California Code of Regulations §11090, section 7 requires the

Defendants to keep time records of meal periods in order to satisfy the requirements of California’s

meal period laws and regulations.

124. Despite these requirements, Defendants failed to perform their obligations to provide

Plaintiffs and Class Members off-duty meal periods. Defendants also have failed to pay Plaintiffs

and Class Members one (1) hour of pay for each off-duty meal period that they have been denied.

Defendants’ conduct described herein violates California Labor Code §§226.7 and 512 and Title 8 of

the California Code of Regulations §11090. Therefore, Plaintiffs and members of the putative Class



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are entitled to compensation for Defendants’ failure to provide, authorize and permit and/or make

available meal periods, plus interest, attorneys’ fees, expenses, and costs of suit pursuant to

California Labor Code §§226.7(b) and Title 8 of the California Code of Regulations §11090.

FIFTH CAUSE OF ACTION Failure to Provide Rest Periods, or Compensation in Lieu Thereof

California Labor Code §§ 226.7 and Cal.Code Regs., Title 8 § 11090 section 12 (Against All Defendants)



126. California Labor Code §226.7 and Title 8 of the California Code of Regulations §

11090, section 12 requires Defendants to authorize and permit rest periods to Plaintiffs and members

of the proposed Class at the rate of ten minutes net rest time per four hours or major fraction thereof.

127. Drivers regularly work twelve (12) to fourteen (14) hours in a day, sometimes even

more without being provided a realistic opportunity to rest for even ten minutes during a four hour

period or major fraction thereof. The quantity of deliveries, time needed to drive between deliveries,

and delivery windows mandated in the routes and manifests Defendants assign to the Drivers

routinely deprive the Drivers of an opportunity to stop driving and rest for 10 net minutes, while still

completing their routes in accordance with Defendants’ instructions and expectations. Defendants’

policy is for the Drivers to meet the delivery windows in a timely fashion and provide high customer

service. Given the way the routes are designed and arranged, this routinely does not permit Drivers

an opportunity to stop and rest for even 10 minutes during each 4 hour work period or major fraction

thereof. In addition, Defendants simply do nothing to authorize or permit rest periods, even if there

were an opportunity to take them.

128. Under both California Labor Code § 226.7 and Title 8 of the California Code of

Regulations §1190, section 12, an employer must pay an employee who was denied a required rest

period one (1) hour of pay at the employee’s regular rate of compensation for each workday that the

rest period was not provided.



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129. At all relevant times herein, Defendants failed to perform their obligations to

authorize and permit Plaintiffs and Class Members to take rest periods as set forth above.

Defendants also failed to pay Plaintiff and Class Members one (1) hour of pay for each rest period

they have been denied. Defendants’ conduct described herein violates California Labor Code §§

226.7 and Title 8 of the California Code of Regulations §11090. Therefore, Plaintiffs and members

of the putative Class are entitled to compensation for Defendants’ failure to provide, authorize and

permit and/or make available rest periods, plus interest, attorneys’ fees, expenses, and costs of suit

pursuant to California Labor Code §§ 226.7(b) and 1194, and Title 8 of the California Code of

Regulations § 11090.

SIXTH CAUSE OF ACTION Unlawful Deductions from Wages

California Labor Code §§ 204, 218, 218.6, 221, 223, and 400-410; California Civil Code §3287(a); IWC Wage Order No. 9; and

Title 8 C.C.R. §11090, Section 8. (Against All Defendants)



131. At all relevant times, Plaintiffs, and members of the Class, were employees covered by

Labor Code Section 204, Labor Code Section 221, and Wage Order 4-2001.

132. Pursuant to Labor Code Section 204, Labor Code Section 221, and Wage Order 4-

2001, Plaintiffs, and other members of the Class, were entitled to receive on regular paydays all

wages earned for the pay period corresponding to the payday without any deductions, except for

those legally permissible deductions authorized in writing or required by law. Furthermore,

Defendants violated California Labor Code section 223, which states, where any statute or contract

requires an employer to maintain the designated wage scale, it shall be unlawful to secretly pay a

lower wage while purporting to pay the wage designated by statute or by contract.

133. California Labor Code §§ 400-410 (“Employee Bond Law”) provides limited

circumstances in which an employer can exact a cash bond from its employees. These provisions are

designed to protect employees against the very real danger of an employer taking or

misappropriating employee funds held by the employer in trust.



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134. IWC wage order No. 9, §8, and Title 8 of the California Code of Regulations §11090,

Section 8, provides that the only circumstances under which an employer can make a deduction from

an employee’s wage are due to: 1) cash shortage; 2) breakage; or 3) loss of equipment if the

employer can show the shortage, breakage, or loss was the result of the employee’s gross negligence

or dishonest or willful act.

135. Under these statutes and California’s fundamental public policy protecting wages and

wage scales, employers cannot subject employees to unanticipated or unpredicted reductions in their

wages. Nor can they make employees the insurers of their employer’s business losses, or otherwise

pass the ordinary business losses of the company to the employee.

136. Defendants have violated California Labor Code §§ 221, 223, and 400-410, and IWC

wage order No. 9, §8, by unlawfully taking deductions from Plaintiffs and Class Members’

compensation to cover certain ordinary business expenses of Defendants, including but not limited

to claims for loss or damaged cargo, property damage claims, bodily injury claims, “merchandise

claims” granted to customers, costs of delivery services of a route if the Driver was unwilling to

perform a requested route, and fees charged associated with obtaining insurance through

Defendants’ insurance program. Said deductions were made by Defendants as part of a deliberate

subterfuge that has been designed, constructed, implemented and administered to circumvent the

clear prohibitions of California case law and Title 8 of the California Code of Regulations §11090.

137. Because Defendants have taken unlawful deductions from Drivers’ compensation,

they are liable to Plaintiffs and Class Members for the compensation that should be paid for, ‘but

for’ the unlawful deductions under California Labor Code §§221, 223 and 400-410, IWC Wage

Order No. 9, and Title 8 of the California Code of Regulations §11090. Pursuant to Labor Code

§218, Plaintiff, and other members of the Class, are entitled to recover the full amount of the wages

earned but not paid every pay period.

138. Pursuant to Labor Code §218.6 or Civil Code Section 3287(a), Plaintiff and other

members of the Class are entitled to recover pre-judgment interest on wages earned, but not paid

every pay period.



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139. As a result of Defendants’ unlawful deductions made from wages and refusal to pay

the Plaintiffs and Class Members, Defendants are liable for penalties, reasonable attorneys’ fees, and

costs of suit.

SEVENTH CAUSE OF ACTION Cost of Physical Examinations California Labor Code § 222.5




141. California Labor Code § 222.5 prohibits any person from withholding or deducting

from the compensation of any employee, or requiring any prospective employee or applicant for

employment to pay, any fee for, or cost of any pre-employment medical or physical examination

taken as a condition of employment.

142. Defendants have violated Labor Code §222.5 by requiring Plaintiffs and Class

Members to pay for drug and alcohol tests and physical examinations as a condition of their

employment.

143. Therefore, in accordance with California Labor Code § 222.5, Plaintiffs and members

of the putative Class are entitled to reimbursement, compensation for penalties, attorneys’ fees,

expenses, and costs of suit.

EIGHTH CAUSE OF ACTION Coerced Purchases

California Labor Code § 450 et seq. (Against All Defendants)



145. Labor Code §450 prohibits an employer or agent, or other person to compel or coerce

any applicant for employment or employee to purchase anything of value, including any fee of any

type to apply for employment; to receive or complete an application for employment; or for an

employer to provide, accept or process an application for employment.



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146. Defendants have violated Labor Code §450 by compelling and/or coercing Plaintiffs

and Class Members to patronize Defendants by requiring Plaintiff and Class Members to lease or

purchase moving equipment, delivery supplies, uniforms, cellular phones and other items directly

from Defendants and/or other companies.

147. Therefore, in accordance with California Labor Code §450, Plaintiffs and members of

the putative Class are entitled to reimbursement, compensation for penalties, attorneys’ fees,

expenses, and costs of suit.

NINTH CAUSE OF ACTION

Reimbursement of Business Expenses

California Labor Code §§2800, 2802, and 2804




149. California Labor Code § 2800 provides: “An employer shall in all cases indemnify his

employee for losses caused by the employer’s want of ordinary care.”

150. California Labor Code § 2802 provides “An employer shall indemnify his or her

employee for all necessary expenditures or losses incurred by the employee in direct consequence of

the discharge of his or her duties, or of his or her obedience to the directions of the employer, even

though unlawful, unless the employee, at the time of obeying the directions, believed them to be

unlawful.”

151. During the applicable statutory period, Plaintiffs and the Class Members incurred

necessary expenditures and losses in direct consequence of the discharge of their employment duties

and their obedience to the directions of Defendants, including but not limited to:

(a) Plaintiffs and Class Members have necessarily incurred expenditures for vehicle

rentals/leases, towing, diesel/gasoline, tires, vehicle maintenance, vehicle repairs, car

washes, and insurance in connection with their operation of the vehicles used to

perform home delivery services for Defendants. Defendants do not reimburse these

expenditures or losses to Plaintiffs and the Class Members.



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(b) Plaintiffs and Class Members have necessarily incurred pre-hire expenses such as

physical examinations, drug and alcohol tests, background and criminal checks, and

DMV and MVR Records of Drivers. Defendants refuse to hire Drivers unless they

incurred these expenses. Defendants do not reimburse these expenditures or losses to

Plaintiffs and the Class Members.

(c) Plaintiffs and the Class Members have necessarily incurred expenditures in connection

with delivery supplies required by Defendants for the Drivers to perform home

delivery services. Defendants do not reimburse these expenditures or losses to

Plaintiffs and the Class Members.

(d) Plaintiffs and the Class Members have necessarily incurred expenditures in connection

with cell phones used to communicate with Defendants and customers in order to

perform home delivery services for Defendants. Defendants have not reimbursed

these expenditures or losses to Plaintiffs and the Class Members.

(e) Plaintiffs and the Class Members have been required to purchase and contribute to

automobile insurance and occupational accident insurance to cover accidental injury to

them during the course and scope of their employment with Defendants, which

constitutes workers’ compensation insurance. Said deductions have violated

California Labor Code § 3751(a). Defendants have not reimbursed these expenditures

or losses to Plaintiffs and the Class Members.

152. Labor Code §2804 provides: “Any contract or agreement, express or implied, made by

any employee to waive the benefits of this article or any part thereof, is null and void, and this article

shall not deprive any employee or his personal representative of any right or remedy to which he is

entitled under the laws of this State.”

153. Defendants have failed to fully reimburse Plaintiffs and the members of the Class for

necessary business-related expenses and costs. Such expense-shifting practices are illegal in

California.



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154. Under California Labor Code §§ 2800 and 2802, Plaintiffs and the Class Members are

entitled to recover their unreimbursed expenditures and losses, interest thereon, attorney’s fees, and

costs of suit, in an amount to be proven at trial.

TENTH CAUSE OF ACTION Failure to Keep Accurate Payroll Records California Labor Code §§ 1174 & 1174.5




156. California Labor Code §1174 requires Defendants to maintain payroll records showing

the actual hours worked daily by Plaintiffs and the Class Members.

157. Defendants knowingly, intentionally, and willfully have failed to maintain payroll

records showing the actual hours worked by Plaintiffs and the Class Members as required by

California Labor Code §1174 and in violation of §1174.5. As a direct result of Defendants’ failure

to maintain payroll records, Plaintiffs and the Class Members have suffered actual economic harm as

they have been precluded from accurately monitoring the numbers of hours worked and thus seeking

all accrued minimum wage and overtime pay. As a direct and proximate result of the unlawful acts

and/or omissions of Defendants, Plaintiffs and the Class Members are entitled to recover damages in

an amount to be determined at trial and civil penalties, plus interest thereon, attorneys’ fees, and

costs of suit.

ELEVENTH CAUSE OF ACTION Failure to Furnish Accurate Wage Statements

California Labor Code § 226 (Against All Defendants)



159. At all material times set forth herein, California Labor Code §226(a) provides that

every employer furnish each employee with an accurate itemized wage statement, in writing,

showing nine pieces of information, including: 1) gross wages earned; 2) total hours worked by the



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employee; 3) the number of piece-rate units earned and any applicable piece rate if the employee is

paid on a piece rate basis; 4) all deductions, provided that all deductions made on written orders of

the employee may be aggregated and shown as one item; 5) net wages earned; 6) the inclusive dates

of the period for which the employee is paid; 7) the name of the employee and the last four digits of

his or her social security number or an employee identification number other than a social security

number; 8) the name and address of the legal entity that is the employer; and 9) all applicable hourly

rates in effect during the pay period and the corresponding number of hours worked at each hourly

rate by the employee. California Labor Code §226(e) provides that if an employer knowingly and

intentionally fails to provide a statement itemizing, inter alia, the total hours worked by the

employee, then the employee is entitled to recover the greater of all actual damages or fifty-dollars

($50.00) for the initial violation and one-hundred dollars ($100.00) for each subsequent violation, up

to a maximum of four-thousand dollars ($4,000.00).

160. Defendants knowingly, intentionally, and willfully have failed to furnish Plaintiffs and

Class Members with timely, accurate, itemized statements showing failure to list gross wages, total

hours worked, number of piece-rate units earned and any applicable piece rate, all deductions,

inclusive dates of pay period, name and last four digits of social security number or employee

identification number, and all applicable rates of pay as required by California Labor Code §226(a).

161. Specifically, Plaintiffs and the members of the Class have been injured by Defendants’

intentional violation of California Labor Code §226(a) because they have been denied both their

legal right to receive and their protected interest in receiving, accurate, itemized wage statements.

162. Plaintiffs and members of the Class have been injured as a result of having to bring

this action to attempt to obtain correct wage information following Defendants’ refusal to comply

with many of the mandates of California Labor Code and related laws and regulations. As a result,

Defendants are liable to Plaintiffs, and members of the Class, for the amounts, penalties, attorneys’

fees, and costs of suit provided by California Labor Code §226(e) and California Labor Code

§2699(a).



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163. Plaintiffs, on behalf of themselves and the proposed Class, request an assessment of

penalties as stated herein and other relief as described below.

TWELTH CAUSE OF ACTION Waiting Time Penalties

California Labor Code §§ 201-203 (Against All Defendants)



165. California Labor Code §201 requires an employer who discharges an employee to pay

all compensation due and owing to said employee immediately upon discharge. California Labor

Code §202 requires an employer to promptly pay compensation due and owing to said employee

within seventy-two (72) hours of that employee’s termination of employment by resignation.

California Labor Code §203 provides that if an employer willfully fails to pay compensation

promptly upon discharge or resignation, as required under California Labor Code §§201-202, then

the employer is liable for waiting time penalties in the form of continued compensation for up to

thirty (30) work days.

166. Plaintiffs and members of the Class have left their employment with Defendants

during the statutory period. Defendants have willfully failed and refused, and continue to willfully

fail and refuse, to timely pay minimum wages, overtime compensation and sums wrongfully

deducted from compensation to Plaintiffs and to all other proposed Class Members whose

employment with Defendants have ended or been terminated at any point during the statutory

period, as is required by California Labor Code §§201-202. As a result, Defendants are liable to

Plaintiffs and other formerly employed members of the proposed Class for waiting time penalties,

together with interest thereon, attorneys’ fees, and costs of suit, under California Labor Code §203.

167. Plaintiffs, on behalf of themselves and the proposed Class, request waiting time

penalties pursuant to California Labor Code §203 and as described below.



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THIRTEENTH CAUSE OF ACTION Willful Misclassification of Individual as Independent Contractor

California Labor Code § 226.8 (Against All Defendants)



169. Defendants intentionally and willfully characterized Plaintiffs and members of the

Class as independent contractors rather than employees in violation of Labor Code §226.8.

170. Defendants have been engaging in a pattern and practice of misclassifying employees

as independent contractors for their own financial benefit.


Plaintiffs and Class Members are entitled to recover damages in an amount to be determined at trial,

civil penalties, plus interest thereon, and attorneys’ fees, and costs of suit pursuant to Labor Code §

226.8.

172. Defendants have engaged in or are engaging in a pattern or practice of misclassifying

the Drivers, and Plaintiffs seek recovery for civil penalties of not less than ten thousand dollars

($10,000) and not more than twenty-five thousand dollars ($25,000) for each violation, in addition to

any other penalties or fines permitted by law.

FOURTEENTH CAUSE OF ACTION Unfair Competition and Unlawful Business Practices

California Business and Professions Code §§ 17200, et seq. (Against All Defendants)



174. California Business and Professions Code §17200 defines unfair competition to

include, “unlawful, unfair or fraudulent business practices.”

175. Moreover, Business and Professions Code §17203 provides that the Court may restore

to an aggrieved party any money or property acquired by means of unlawful and unfair business

practices. Plaintiffs seek a court order requiring an audit and accounting of the payroll records to

determine the amount of restitution of all unpaid wages owed to themselves and members of the

proposed Class, according to proof, as well as a determination of the amount of funds to be paid to



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current and former employees that can be identified and located pursuant to a court order and

supervision.

176. Plaintiffs and all proposed Class Members are “persons” within the meaning of

Business and Professions Code §17204 who have suffered injury in fact as a result of Defendants’

unfair competition, and who comply with the requirements of California Code of Civil Procedure

Section 382, as set forth above and, therefore, have standing to bring this claim for injunctive relief,

restitution, and other appropriate equitable relief.

177. Defendants’ have been committing, and continue to commit, acts of unfair competition

as defined by the Unfair Competition Law, by engaging in the unlawful, unfair and fraudulent

business practices and acts described in this Complaint, including, but not limited to:

(a) violations of California Labor Code §§ 1182.11 and 1182.12

(b) violations of California Labor Code § 1194

(c) violations of California Labor Code §§ 1197, 1197.1, 1198, Penal Code §§484 and

532

(d) violations of California Labor Code § 510

(e) violations of California Labor Code §§ 226.7 and 512

(f) violations of California Code Regulations, Title 8 § 11090 sections 7 & 11

(g) violations of California Code Regulations, Title 8 § 11090 section 12

(h) violations of California Labor Code §§ 204, 221-223 and 400-410

(i) violations of IWC Wage Order 4/2001

(j) violations of IWC Wage Order No. 9

(k) violations of California Labor Code § 222.5

(l) violations of California Labor Code § 450, et seq.

(m) violation of California Labor Code § 2802

(n) violations of California Labor Code §§ 1174 and 1174.5

(o) violations of California Labor Code §226

(p) violations of California Labor Code §§ 201-204



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(q) violations of California Labor Code §226.8

178. Plaintiffs reserve the right to identify additional unfair and unlawful practices by

Defendants as further investigation and discovery warrants.

179. As a result of its unlawful and/or unfair acts, Defendants have reaped and continue to

reap unfair benefits and illegal profits at the expense of Plaintiffs and proposed Class Members.

Defendants’ unlawful and/or unfair conduct has also enabled Defendants to gain an unfair

competitive advantage over law-abiding employers and competitors. Defendants should be enjoined

from this activity and made to restore to Plaintiffs and proposed Class Members their wrongfully

withheld wages, interest thereon, and related statutory penalties, pursuant to Business and

Professions Code §§ 17202 and 17203.

180. Plaintiff, on behalf of himself and the proposed Class, requests restitution of unpaid

wages, wage premiums, injunctive relief and other relief as described below.

FIFTEENTH CAUSE OF ACTION Statutory Penalties Pursuant to PAGA (Labor Code §§2699, et seq.)

(On behalf of All Aggrieved Employees)


fully set forth herein

182. At all times herein set forth, the Labor Code Private Attorneys General Act of 2004

(PAGA) was applicable to Plaintiff’s employment by Defendants.

183. At all times herein set forth, PAGA provides that any provision of law under the

California Labor Code that provides for a civil penalty to be assessed and collected by the Labor and

Workforce Development Agency (LWDA) for violations of the California Labor Code may, as an

alternative, be recovered through a civil action brought by an aggrieved employee on behalf of

himself and other current or former employees pursuant to procedures outlined in California Labor

Code Section 2699.3.

184. A civil action under PAGA may be brought by an “aggrieved employee,” who is any

person that was employed by the alleged violator and against whom one or more of the alleged

violations was committed.



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185. Plaintiffs were employed by Defendants and the alleged violations were committed

against them during their time of employment and they are, therefore, aggrieved employees.

Plaintiffs and other employees are “aggrieved employees” as defined by California Labor Code

section 2699(c) in that they are all current or former employees of Defendants, and one or more of

the alleged violations were committed against them.

186. Pursuant to California Labor Code section 2699.3, an aggrieved employee, including

Plaintiffs, may pursue a civil action arising under PAGA after the following requirements have been

met:

(a) The aggrieved employee shall give written notice by certified mail (hereinafter

“Employee’s Notice”) to the LWDA and the employer of the specific provisions of the

California Labor Code alleged to have been violated, including the facts and theories

to support the alleged violations;

(b) The LWDA shall provide notice (hereinafter “LWDA Notice”) to the employer and

the aggrieved employee by certified mail that it does not intend to investigate the

alleged violations within thirty (30) calendar days of the postmark date of the

Employee’s Notice. Upon receipt of the LWDA Notice, or if the LWDA Notice is not

provided within thirty-three (33) calendar days of the postmark date of the Employee’s

Notice, the aggrieved employee may commence a civil action pursuant to California

Labor Code Section 2699 to recover civil penalties in addition to any other penalties to

which the employee may be entitled.

187. On June 1, 2012 Plaintiff Shekur provided written notice by certified mail to the

LWDA and to certain Defendants of the specific provisions of the California Labor Code alleged to

have been violated, including the facts and theories to support the alleged violations.

188. More than 33 days have passed since the mailing of Plaintiff’s letter, and Plaintiff has

not received a letter from the LWDA stating an intent to investigate his claims against Defendants.



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189. Plaintiff has satisfied the administrative prerequisites under California Labor Code

Section 2699.3(a) to recover civil penalties against Defendants for violations of California Labor

Code stated above.

VII. PRAYER FOR RELIEF

WHEREFORE, Plaintiffs, on behalf of themselves and the proposed Class they seek to

represent in this action, requests the following relief:

a) That the Court determine that this action may be maintained as a class action under

Code of Civil Procedure § 382;

b) That the Plaintiffs be appointed as the representatives of the Class;

c) That counsel for Plaintiffs be appointed as Class Counsel;

d) That the Court find that Defendants have been in violation of applicable provisions of

the California Labor Code by failing to pay each member of the proposed Classes for

all hours worked, including minimum wage;

e) That the Court find that Defendants have been in violation of applicable provisions of

the California Labor Code §§510, 1194 et seq., and IWC Wage Order No. 9 by failing

to pay overtime wages to Plaintiffs and members of the Class;

f) That the Court find that Defendants have been in violation of California Labor Code

§§226.7 and 512 by failing to provide Plaintiffs and members of the Class with meal

periods and therefore owe compensation under California Labor Code §226.7(b) with

respect to violations of California Code of Regulations, Title 8 §11090, sections 7 and

11;

g) That the Court find that Defendants have been in violation of California Labor Code

§§226.7 by failing to authorize and permit rest periods for Plaintiffs and members of

the Class, and therefore owe compensation under California Labor Code §226.7(b)

with respect to violations of California Code of Regulations, Title 8 §11090, section

12;

h) That the Court find that Defendants have been in violation of California Labor Code



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§§ 221, 223 and 400-410, and IWC Wage Order No. 9 by making unlawful deductions

from Plaintiffs’ and the Class’ wages;

i) That the Court find that Defendants have been in violation of California Labor Code

§222.5 by requiring Drivers to pay for physical examinations, and drug and alcohol

tests as to Plaintiffs and the Proposed Class Members;

j) That the Court find that Defendants have been in violation of California Labor Code

§450, et seq. by compelling and/or coercing Drivers to purchase things of value as to

Plaintiffs and the proposed Class Members;

k) That the Court find that Defendants have been in violation of California Labor Code §

2802, by failing to reimburse the Plaintiff and the Class reasonable business expenses

and losses;

l) That the Court find that Defendants have violated the recordkeeping provisions of

California Labor Code §§ 1174 and 1174.5 as to Plaintiff and the Class;

m) That the Court find that Defendants have been in violation of California Labor Code §

226 by failing to timely furnish Plaintiffs and members of the Class with itemized

statements accurately showing the total hours worked, vacation benefits, bonus

benefits, and wages earned by each of them during each pay period;

n) That the Court find that Defendants have been in violation of California Labor Code

§§201 and 202 and therefore owe waiting time penalties under California Labor Code

§203 for willful failure to pay all compensation owed at the time of termination of

employment to Plaintiffs and other formerly employed members of the Class;

o) That the Court find that Defendants have been in violation of California Labor Code

§226.8 and therefore owe civil penalties under California Labor Code §226.8 and all

damages proximately caused by Defendants’ wrongful conduct of engaging in a

pattern or practice of willfully misclassifying delivery drivers as independent

contractors;

p) That the Court find that Defendants have committed unfair and unlawful business



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practices, in violation of California Business and Professions Code §17200, et seq., by

their violations of the Labor Code and Wage Orders as described above;

q) That the Court order an accounting of the payroll records or delivery logs to determine

what restitution is owed and to whom, pursuant to California Business and Professions

Code §17203;

r) That the Court find that Defendants’ violations of the California Labor Code described

herein have been willful;

s) That the Court award to Plaintiffs and the proposed Class Members restitution for the

coerced purchases and costs of the physical and medical examinations incurred by

Drivers, including interest thereon, liquidated damages and/or statutory penalties and

other statutory penalties in amounts subject to proof at trial;

t) That the Court award to Plaintiffs and the proposed Class Members restitution for the

reasonable business expenses and deductions incurred by Drivers, including interest

thereon, liquidated damages and/or statutory penalties and other statutory penalties in

amounts subject to proof at trial;

u) That the Court award to Plaintiffs and the proposed Class Members restitution for the

amounts of unpaid wages, including interest thereon, liquidated damages and/or

statutory penalties for failure to timely furnish accurate itemized wage statements, and

waiting time and other statutory penalties in amounts subject to proof at trial;

v) That Defendants be ordered and enjoined to pay restitution and penalties to Plaintiffs

and the proposed Class Members due to Defendants’ unlawful and/or unfair activities,

pursuant to Business and Professions Code §§17200-17205;

w) That Defendants further be enjoined to cease and desist from unlawful and/or unfair

activities in violation of Business and Professions Code §17200, pursuant to §17203;

x) That Plaintiffs and the Class be awarded reasonable attorneys’ fees and costs pursuant

to Labor Code §§ 203, 225.5, 226, 1194, 1197, and 2804, Code of Civil Procedure §

1021.5, and/or other applicable law;



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y) That the Court award any other relief this Court deems just, equitable, and proper; and

z) That these Defendants be ordered to refrain from retaliating against any Class

Members who are current employees.

aa) Penalties pursuant to California Labor Code Section § 2699(a) in the amount of one

hundred dollars ($100.00) for each violation per pay period for the initial violation and

two hundred dollars ($200.00) for each aggrieved employee per pay period for each

subsequent violation, plus costs and attorney’s fees for violation of California Labor

Code as alleged in this complaint;

bb) Any and all other applicable statutory penalties, as provided by law; and

cc) Any other and further relief the Court deems just and proper.

Respectfully submitted,

Dated: October 28, 2013

SCHNEIDER WALLACE

COTTRELL KONECKY LLP

By: /s/ Joshua Konecky

JOSHUA KONECKY

Attorney for Plaintiff Daniel Villalpando and the Proposed Class


SPIRO LAW CORP.

By: /s/ Linh Hua

LINH HUA

Attorney for Plaintiff Tafiti Shekur and the Proposed Class



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DEMAND FOR JURY TRIAL

Plaintiffs hereby demand a jury trial on all claims and issues for which Plaintiffs and the Class

are entitled to a jury.

Respectfully submitted,


SCHNEIDER WALLACE


By: /s/ Joshua Konecky

JOSHUA KONECKY

Attorney for Plaintiff Daniel Villalpando and the Proposed Class


SPIRO LAW CORP.

By: /s/ Linh Hua

LINH HUA

Attorney for Plaintiff Tafiti Shekur and the Proposed Class



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CERTIFICATE OF SERVICE

I hereby certify that on October 28, 2013 I electronically filed the above document with the

Clerk of the Court using the CM/ECF system, which sent notification of such filing to all counsel of

record.

Date: October 28, 2013 Respectfully submitted,

/s/ Joshua G. Konecky

Joshua G. Konecky (SBN 182897)

SCHNEIDER WALLACE


180 Montgomery Street, Suite 2000

San Francisco, California 94104

Telephone: (415) 421-7100

Facsimile: (415) 421-7105

[email protected]

Attorneys for Plaintiff and the Putative Class


todd m. schneider, sbn 158253 joshua konecky, sbn 182897cases.gcginc.com/pdf/vil/complaint.pdf ·...

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