Class Complaint

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CLASS ACTION COMPLAINT

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7. UNFAIR COMPETITION (Business and Professions Code §§ 17200 et seq.)

JURY TRIAL DEMANDED Plaintiffs KATHERINE PAGE and ASJA SEVER, as individuals and on behalf of

others similarly situated (hereinafter referred to separately as “Page” or “Sever,” or jointly as

“Plaintiffs”), hereby submit their Class Action Complaint against Defendants GRUPPO

CHIARELLO LLC, a California limited liability company (“GRUPPO CHIARELLO”);

SERRA HOSPITALITY GROUP, LLC, a California limited liability company (“SERRA”);

MICHAEL CHIARELLO, an individual; and DOES 1 through 50, inclusive, (hereinafter

referred to collectively as “Defendants”) on behalf of themselves, and the class of others

similarly situated, as follows:

INTRODUCTION

1. This class action arises out of the work experience of Page and Sever and all similarly

situated employees and similarly aggrieved employees of GRUPPO CHIARELLO and/or

SERRA who worked at COQUETA, a restaurant located on Pier 5 in San Francisco, California,

between approximately April 2013 and the present.

2. This class action is within the Court’s jurisdiction under California Labor Code,

California Business and Professions Code § 17200, et seq., (Unfair Practices Act) and the

applicable wage order(s) issued by the Industrial Welfare Commission (“IWC”) including IWC

Wage Order No. 5.

3. This complaint challenges systemic illegal employment practices resulting in

violations of the California Labor Code, Business and Professions Code and applicable IWC

wage orders against employees of Defendants.

4. Plaintiffs are informed and believe and based thereon allege that Defendants, jointly

and severally, have acted intentionally and with deliberate indifference and conscious disregard

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to the rights of all employees in receiving all lawful wages for all hours worked and lawful meal

and rest periods.

5. Plaintiffs are informed and believe and based thereon allege that Defendants have

engaged in, among other things a system of willful violations of the California Labor Code,

Business and Professions Code and applicable IWC wage orders by creating and maintaining

policies, practices and customs that knowingly deny employees: (a) all wages due for all hours

employees were suffered and permitted to work, including by manipulating employees’ time

clocks and time sheets to unlawfully deduct time from hours worked, (b) lawful overtime

compensation, (c) lawful meal and rest breaks, (d) tip income; (e) accurate, itemized wage

statements, (f) lawful expense reimbursements, and (g) required payments into employee health

funds. The policies, practices and customs of Defendants, as described above and below, have

resulted in unjust enrichment of Defendants and an unfair business advantage over businesses

that routinely adhere to the strictures of the California Labor Code, Business and Professions

Code and applicable IWC wage orders.

JURISDICTION AND VENUE

6. The Court has jurisdiction over the violations of the California Labor Code,

California Business and Professions Code § 17200, et seq., (Unfair Practices Act) and the

applicable wage order(s) issued by the Industrial Welfare Commission including IWC Wage

Order No. 10 claims alleged herein.

7. Venue is proper because Defendants are located within San Francisco County.

PARTIES

8. Plaintiffs were victims of the policies, practices and customs of Defendants

complained of in this action in ways that have deprived them of the rights guaranteed to them by

California Labor Code, California Business and Professions Code § 17200, et seq., (Unfair

Practices Act) and the applicable wage order(s) issued by the Industrial Welfare Commission

including IWC Wage Order No. 5. Defendants employed Plaintiffs at all times relevant to this

complaint.

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9. Plaintiff KATHERINE PAGE was employed with Defendants from approximately

April 1, 2013 through mid-March 2016. PAGE was employed as a server at COQUETA, a San

Francisco restaurant operated and managed by all Defendants named herein at all times relevant

to the events described in this complaint.

10. Plaintiff ASJA SEVER was employed with Defendants from approximately April 1,

2014 through mid-March 2016. SEVER was also employed as a server at COQUETA, a San

Francisco restaurant operated and managed by all Defendants named herein at all times relevant

to the events described in this complaint.

11. On information and belief, Defendant SERRA, a California limited liability company,

is doing business at Pier 5, The Embarcadero, San Francisco, California, 94111. Plaintiffs

provided services as employees to Defendant SERRA at the COQUETA restaurant located in

San Francisco, California.

12. On information and belief, Defendant GRUPPO CHIARELLO, a California limited

liability company, is doing business at Pier 5, The Embarcadero, San Francisco, California,

94111. Plaintiffs are informed and believe and thereon allege that they provide services as

employees to Defendant GRUPPO CHIARELLO at the COQUETA restaurant located in San

Francisco, California.

13. On information and belief, Defendant MICHAEL CHIARELLO was at all relevant

times mentioned herein the President and Owner of GRUPPO CHIARELLO and SERRA, and a

resident of the State of California. CHIARELLO owns and/or operates several local businesses

including but not limited COQUETA, where Plaintiffs and class members worked. On

information and belief, CHIARELLO controlled and regulated the working conditions, hours

worked, and payment of wages for Plaintiffs and all class members. Upon timely amendment of

this Complaint as a matter of right, Plaintiffs will assert a claim against CHIARELLO, GRUPPO

CHIARELLO, and SERRA for Violations of Labor Code 2699 et seq. (Private Attorneys

General Act).

14. Plaintiffs are informed and believe and thereon allege that at all times herein

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mentioned Defendants and DOES 1 through 50, are and were corporations, business entities,

individuals, and partnerships, licensed to do business and actually doing business in the State of

California. Defendants GRUPPO CHIARELLO, SERRA and/or CHIARELLO own, operate,

and manage the COQUETA restaurant in San Francisco, California, among other restaurants in

the San Francisco Bay Area. As such, and based upon all the facts and circumstances incident to

Defendants’ business in California, Defendants are subject to California Labor Code, California

Business and Professions Code § 17200, et seq., (Unfair Practices Act) and the applicable wage

order(s) issued by the Industrial Welfare Commission including IWC Wage Order No. 10.

15. Plaintiffs do not know the true names or capacities, whether individual, partner or

corporate, of the Defendants sued herein as DOES 1 through 50, inclusive, and for that reason,

said Defendants are sued under such fictitious names, and Plaintiffs pray leave to amend this

complaint when the true names and capacities are known. Plaintiffs are informed and believe

and thereon allege that each of said fictitious Defendants was responsible in some way for the

matters alleged herein and proximately caused Plaintiffs and members of the class to be subject

to the illegal employment practices, wrongs and injuries complained of herein.

16. Plaintiffs are informed and believe and based thereon allege that Defendants

GRUPPO CHIARELLO and SERRA share common ownership and common management.

Further, Plaintiffs are informed and believe and based thereon allege that Defendants are a single

employer for purposes of liability because of interrelation of operations, common management,

centralized control of labor relations, and common ownership or financial control. Plaintiffs are

informed and believe and based thereon allege that there is such a unity of interest and ownership

between Defendants that their separate personalities no longer exist, and that an inequitable

result would follow if they were not all liable. Plaintiffs are informed and believe and based

thereon allege that Defendants jointly employed them and the class members.

17. At all times herein mentioned, each of said Defendants participated in the doing

of the acts hereinafter alleged to have been done by the named Defendants; and furthermore, the

Defendants, and each of them, were the agents, servants and employees of each of the other

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Defendants, as well as the agents of all Defendants, and at all times herein mentioned, were

acting within the course and scope of said agency and employment.

18. Plaintiffs are informed and believe and based thereon allege that at all times

material hereto, each of the Defendants named herein was the agent, employee, alter ego and/or

joint venturer of, or working in concert with each of the other co-Defendants and was acting

within the course and scope of such agency, employment, joint venture, or concerted activity.

To the extent said acts, conduct, and omissions were perpetrated by certain Defendants, each of

the remaining Defendants confirmed and ratified said acts, conduct, and omissions of the acting

Defendant.

19. At all times herein mentioned, Defendants, and each of them, were members of,

and engaged in, a joint venture, partnership and common enterprise, and were acting within the

course and scope of, and in pursuance of, said joint venture, partnership and common enterprise.

20. At all times herein mentioned, the acts and omissions of various Defendants, and

each of them, concurred and contributed to the various acts and omissions of each and all of the

other Defendants in proximately causing the injuries and damages as herein alleged.

21. At all times herein mentioned, Defendants, and each of them, ratified each and

every act or omission complained of herein. At all times herein mentioned, the Defendants, and

each of them, aided and abetted the acts and omissions of each and all of the other Defendants in

proximately causing the damages as herein alleged.

CLASS ACTION ALLEGATIONS

22. Definition: The named individual Plaintiffs bring this action on behalf of

themselves and the class pursuant to California Code of Civil Procedure § 382 and is consistent

with Fed. R. Civ. P. Rules 23(a), (b)(1), (b)(2), and (b)(3). The class is defined as: “All current

and former non-exempt employees who were employed by Defendants GRUPPO CHIARELLO

and/or SERRA and worked at COQUETA in San Francisco within the last four years up to the

time that class certification is granted.” A subclass is defined as “All current and former non-

exempt service employees who were employed by Defendants GRUPPO CHIARELLO and/or

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SERRA and worked at COQUETA in San Francisco within the last four years up to the time that

class certification is granted.”

23. Numerosity: The members of the class are so numerous that joinder of all

members would be impractical, if not impossible. The identity of the members of the class is

readily ascertainable by review of Defendants’ records. Plaintiffs are informed and believe and

based thereon allege that: (a) Defendants have a policy and practice of failing to pay employees

wages for all hours worked by them; (b) Defendants have a policy and practice of failing to pay

overtime compensation to non-exempt employees who work over eight hours in a workday; (c)

Defendants manipulate employees’ time clocks and time sheets to unlawfully deduct time from

hours worked, to avoid the payment of overtime compensation and minimum wages for all hours

worked; (d) Defendants unlawfully require a subclass of employees to pool their tips with

kitchen staff; (e) Defendants fail to provide lawful meal breaks; (f) Defendants fail to authorize

and permit employees to take lawful rest breaks; (g) class members are not provided with

accurate itemized wage statements; (h) class members are not reimbursed for all expenses

incidental to the discharge of their duties; (i) Defendants fail to make required payments into

employee health funds; and (j) class members are not paid all wages at the separation of

employment.

24. Adequacy of Representation: The named Plaintiffs are fully prepared to take all

necessary steps to fairly and adequately represent the interests of the class defined above.

Plaintiffs’ attorneys are ready, willing and able to fully and adequately represent the class and the

individual Plaintiffs.

25. Defendants uniformly administered a company policy, practice and/or custom that

caused: (a) class members not to be paid wages for all hours they worked, including time

deducted by Defendants by manipulating employees’ time clocks and time sheets to unlawfully

deduct time from hours worked; (b) class members not to be paid overtime compensation; (c)

class members not to be provided with lawful meal breaks; (d) subclass members are required to

pool their tips with kitchen staff; (e) class members not to be authorized and permitted to take

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lawful rest breaks; (f) class members not to be provided with accurate itemized wage statements;

(g) class members not to receive reimbursements for expenses incidental to the discharge of their

duties; (h) class members not to receive required contributions to employee health funds; (i) class

members to not be paid all wages due at separation of employment. Plaintiffs are informed and

believe and based thereon allege that this conduct is accomplished with the advance knowledge

and designed intent to willfully withhold appropriate wages for work performed by class

members. Defendants uniformly administered a corporate policy, practice and/or custom of not

paying members of the class for all hours worked and not providing lawful meal and rest breaks.

26. Plaintiffs are informed and believe and based thereon allege that Defendants, in

violation of California Labor Code §§ 201 and 202, et seq., respectfully, had a consistent and

uniform policy, practice and custom of willfully failing to comply with Labor Code §§ 226.7 and

1194, and 1198. Plaintiffs and other members of the class did not secret or absent themselves

from Defendants, nor refuse to accept the earned and unpaid wages from Defendants.

Accordingly, Defendants are liable for waiting time compensation for the unpaid wages to

separated employees pursuant to California Labor Code § 203.

27. As a pattern and practice, in violation of the aforementioned labor laws and wage

orders, Defendants did not maintain adequate records, and/or altered records pertaining to when

Plaintiffs and the members of the class began and ended each work period, meal period, the total

daily hours worked, and the total hours worked per pay period and applicable rates of pay in

violation of California Labor Code § 1174.

28. Common Question of Law and Fact: There are predominant common questions

of law and fact and a community of interest amongst Plaintiffs and the claims of the class

concerning whether: (a) Defendants fail to pay employees minimum wages for actual hours

worked, including by manipulating employees’ time clocks and time sheets to unlawfully deduct

time from hours worked; (b) Defendants fail to pay overtime compensation when non-exempt

employees work over eight hours in a workday; (c) Defendants unlawfully require subclass

employees to pool their tips with kitchen staff; (d) Defendants fail to provide lawful meal breaks;

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(e) Defendants fail to authorize and permit employees to take lawful rest breaks; (f) class

members are not provided with accurate itemized wage statements; (g) class members do not

receive reimbursements for expenses incidental to the discharge of their duties; (h) class

members do not receive required contributions to employee health funds; (i) class members are

not paid all wages due at separation of employment; (j) Defendants’ employment policies and

practices wrongfully and illegally failed to compensate Plaintiffs and the other members of the

class as required by California law.

29. Typicality: The claims of Plaintiffs are typical of the claims of all members of

the class. Each Plaintiff is a member of the class and has suffered the alleged violations of the

California Labor Code and California Industrial Welfare Commission wage orders including

IWC Wage Order No. 5, described herein.

30. The California Labor Code and Wage Order provisions upon which Plaintiffs

base their claims are broadly remedial in nature. These laws and labor standards serve an

important public interest in establishing minimum working conditions and standards in

California. These laws and labor standards protect the average working employee from

exploitation by employers who may seek to take advantage of superior economic and bargaining

power in setting onerous terms and conditions of employment.

31. The nature of this action and the format of laws available to Plaintiffs and

members of the class identified herein make the class action format a particularly efficient and

appropriate procedure to redress the wrongs alleged herein. If each employee were required to

file an individual lawsuit, the corporate Defendants would necessarily gain an unconscionable

advantage since it would be able to exploit and overwhelm the limited resources of each

individual plaintiff with their vastly superior financial and legal resources. Requiring each class

member to pursue an individual remedy would also discourage the assertion of lawful claims by

employees who would be disinclined to file an action against their former and/or current

employer for real and justifiable fear of retaliation and permanent damage to their careers at

subsequent employment.

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32. The prosecution of separate actions by the individual class members, even if

possible, would create a substantial risk of: (a) inconsistent or varying adjudications with respect

to individual class members against the Defendants and which would establish potentially

incompatible standards of conduct for the Defendants, and/or (b) adjudications with respect to

individual class members which would, as a practical matter, be dispositive of the interest of the

other class members not parties to the adjudications or which would substantially impair or

impede the ability of the class members to protect their interests. Further, the claims of the

individual members of the class are not sufficiently large to warrant vigorous individual

prosecution considering all of the concomitant costs and expenses.

33. Proof of a common business practice or factual pattern, of which the named

Plaintiffs experienced, is representative and will establish the right of each of the members of the

plaintiff class to recovery on the causes of action alleged herein.

34. The plaintiff class is commonly entitled to a specific fund with respect to the

compensation illegally and unfairly retained by Defendants. The plaintiff class is commonly

entitled to restitution of those funds being improperly withheld by Defendants. This action is

brought for the benefit of the entire class and will result in the creation of a common fund.

FACTUAL ALLEGATIONS RELEVANT TO CAUSES OF ACTION

35. Defendants’ operation of COQUETA restaurant in San Francisco, California is

marred with rampant wage and hour violations. These Labor Code violations include: the willful

refusal to pay employees wages for all hours worked and overtime wages for all overtime hours

worked; the routine, systematic denials of meal and rest breaks to employees; the deliberate

falsification of time and attendance records; the issuance of false wage statements; the failure to

reimburse employees for expenses incidental to the discharge of their duties; the failure to pay

into required employee health funds.

36. Defendants failed to pay non-exempt workers employed by them minimum wages

for all hours worked, as required by Labor Code §§ 200 et seq. Defendants ran such a poorly

functioning establishment that Plaintiffs and class members routinely were required to work

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multiple ten-hour and double shifts each week. However, on a routine and systematic basis,

Defendants surreptitiously changed employee timesheets, so that the timesheets falsely reflected

the amount of hours that Plaintiffs and class members actually worked. Without notifying

Plaintiffs or class members, Defendants’ managers manipulated the time records without their

authorization, and unlawfully deducted hours from their timesheets, such that Plaintiffs and class

members were not paid minimum wages for all hours they actually worked. In addition,

Defendants made unlawful deductions from subclass employee’s earned nightly tips.

37. In addition to their failure to pay minimum wages for all hours actually worked,

Defendants’ unscrupulous and unlawful time deduction policies resulted in a failure to pay

Plaintiffs and class members overtime wages in violation of Labor Code § 510. By deceitfully

deducting hours from their timesheets, Defendants failed to pay overtime compensation to

Plaintiffs and class members who worked over eight hours in a workday, or forty hours in a

workweek. Defendants deliberately falsified employee time records to avoid paying Plaintiffs

and class members overtime compensation that they rightfully earned. Defendants have no

lawful Alternative Workweek schedule in place which would allow them to only pay overtime

compensation when non-exempt employees work over ten hours in a shift.

38. In addition, Plaintiffs and class members were routinely denied the opportunity to

take meal periods and rest breaks. Plaintiffs and class members worked for periods of more than

four (4) hours without a rest period of ten (10) minutes, and for periods of more than five (5)

hours without a meal period of thirty (30) minutes. Defendants routinely required Plaintiffs and

class members to work through their rest breaks. Even though Plaintiffs and class members

clocked out for their meal periods, Defendants’ managers required Plaintiffs and class members

to perform work while they were clocked out, such as running food, putting away wine

deliveries, stocking, and running personal errands for Defendants’ managers. When employees

worked double shifts, Defendants denied them their right to take an additional meal period.

Defendants falsified employee time records to make it appear as though Plaintiffs and class

members were given a meal period, when in reality they worked through their meal period.

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39. Defendants also failed to furnish Plaintiffs and class members with wage

statements that contained all nine pieces of information required by Labor Code § 226.

Defendants’ furnished Plaintiffs and class members with paystubs that neglected to accurately

state: proper total hours, including overtime hours, worked by Plaintiffs and all similarly situated

employees, accurate gross wages earned, all applicable hourly rates and the corresponding

number of hours worked by Plaintiffs and all similarly situated employees at each rate. Because

Defendants unscrupulously altered the time sheets of Plaintiffs and class members, Defendants’

wage statements contained false and inaccurate information.

40. Defendants also failed to reimburse employees for all work-related expenses, as

required by Cal. Labor Code § 2802. Among other things, Defendants routinely required

Plaintiffs and class members to pay for the dry-cleaning of their work clothing and to purchase

incidental items for Defendants’ managers. Plaintiffs and class members were not reimbursed

for expenses that were incidental to the discharge of their employment duties, or incurred at the

direction of their employer.

41. Defendants also failed to make certain payments into an employee health care fund,

in violation of Labor Code § 227. Defendants agreed to make certain payments into a health

services account for the benefit of employees, and were required to make minimum payments in

accordance with local ordinances. Nonetheless, Defendants failed to make the required

payments for Plaintiffs and class members.

42. Defendants also required servers to pool and share tips with other employees not in

the line of service, including kitchen employees in violation of Labor Code § 350 et seq.

FIRST CAUSE OF ACTION

BY PLAINTIFFS ON BEHALF OF THEMSELVES AND CLASS FOR FAILING TO

PAY WAGES FOR ALL HOURS WORKED

(Against Defendants Gruppo Chiarello and Serra)

43. Plaintiffs re-allege and incorporate by reference each and every allegation set

forth in the preceding paragraphs.

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44. This cause of action is brought pursuant to Labor Code § 200 et seq., which

provides that employees are entitled to wages and compensation for work performed, and

provides a private right of action for failure to pay wages and compensation for said work

performed. Labor Code § 1194 entitles a plaintiff to recover unpaid wages. Labor Code §

1194.2 entitles a plaintiff to recover liquidated damages in an equal amount for unpaid minimum

wages.


orders, Plaintiffs are informed and believe and based thereon allege that Defendants did not

properly maintain records pertaining to when Plaintiffs and the putative class took their meal

periods, the total daily hours worked, and the total hours worked per pay period and applicable

rates of pay in violation of California Labor Code §1174.

46. Such a pattern, practice and uniform administration of corporate policy regarding

illegal employee compensation as described herein is unlawful and creates an entitlement to

recovery by Plaintiffs in a civil action, for the unpaid balance of the full amount of straight time

compensation and minimum wage owing, including interest thereon, penalties, reasonable

attorneys’ fees, and costs of suit according to the mandate of California Labor Code §1194, et

seq.

47. Defendants’ wrongful and illegal conduct in failing to provide class members

with minimum wage payments in accordance with Labor Code § 1194 and IWC Wage Order No.

10 despite the clear legal obligation to do so, unless and until enjoined and restrained by order of

this court, will cause great and irreparable injury to Plaintiffs and all members of the class in that

the Defendants will continue to violate these California laws, represented by labor statutes and

wage orders, unless specifically ordered to comply with same. This expectation of future

violations will require current and future employees to repeatedly and continuously seek legal

redress in order to gain compensation to which they are entitled under California law. Plaintiffs

have no other adequate remedy at law to insure future compliance with the California labor laws

and wage orders alleged to have been violated herein.

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SECOND CAUSE OF ACTION

BY PLAINTIFFS ON BEHALF OF THEMSELVES AND CLASS FOR FAILING TO

PAY OVERTIME WAGES FOR ALL OVERTIME HOURS WORKED




49. This cause of action is brought pursuant to Labor Code § 510 et seq., which

provides that employees are entitled to be compensated: (a) at the rate of no less than one and

one-half times the regular rate of pay for any work in excess of eight hours in one workday or

forty hours in any one workweek, and (b) at the rate of no less than twice the regular rate of pay

for work in excess of twelve hours in one day. Labor Code § 1194 et seq., provides a private

right of action for failure to pay overtime wages and compensation for said work performed.

Labor Code § 1194 entitles a plaintiff to recover unpaid wages. Labor Code § 1194.2 entitles a

plaintiff to recover liquidated damages in an equal amount for unpaid minimum wages.



properly maintain records pertaining to when Plaintiffs and the putative class took their meal

periods, the total daily hours worked, and the total hours worked per pay period and applicable

rates of pay in violation of California Labor Code §1174.

51. Such a pattern, practice and uniform administration of corporate policy regarding

illegal employee compensation as described herein is unlawful and creates an entitlement to

recovery by Plaintiffs in a civil action, for the unpaid balance of the full amount of overtime

wages and compensation owing, including interest thereon, penalties, reasonable attorneys’ fees,

and costs of suit according to the mandate of California Labor Code §1194, et seq.


with overtime wage payments in accordance with Labor Code § 1194 and IWC Wage Order No.

10 despite the clear legal obligation to do so, unless and until enjoined and restrained by order of

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this court, will cause great and irreparable injury to Plaintiffs and all members of the class in that

the Defendants will continue to violate these California laws, represented by labor statutes and

wage orders, unless specifically ordered to comply with same. This expectation of future

violations will require current and future employees to repeatedly and continuously seek legal

redress in order to gain compensation to which they are entitled under California law. Plaintiffs

have no other adequate remedy at law to insure future compliance with the California labor laws

and wage orders alleged to have been violated herein.

THIRD CAUSE OF ACTION

BY PLAINTIFFS ON BEHALF OF THEMSELVES AND THE CLASS

FOR FAILURE TO PROVIDE MEAL BREAKS




54. Defendants failed in their affirmative obligation to ensure that all of their

employees, including Plaintiffs and other members of the class, were actually relieved of all

duties, not performing any work, and free to leave the premises during meal periods. Plaintiffs

and the class were suffered and permitted to work through legally required meal breaks. As

such, Defendants are responsible for paying premium compensation for missed meal periods

pursuant to Labor Code § 226.7 and IWC Wage Order No. 5 § 11(B). Defendants shall pay each

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

workday that the meal break was not provided.

55. Plaintiffs and class members regularly worked in excess of five (5) hours per day

and accordingly had a right to take a 30-minute meal period each day they worked in excess of

five (5) hours.

56. As a pattern and practice, Defendants regularly required employees to work

through their meal periods without proper compensation. Defendants did staff employees in

such a manner and at such posts that would make it impossible for these employees to take their

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meal period. This policy of requiring employees to work through their legally mandated meal

periods is a violation of California law.


willfully failed to pay employees who were not provided the opportunity to take meal breaks the

premium compensation set out in Labor Code § 226.7 and IWC Wage Order No. 5 § 11(B).



properly maintain records pertaining to when Plaintiffs began and ended each meal period in

violation of California Labor Code §1174 and § 7 of the applicable IWC Wage Order(s).

59. Such a pattern, practice and uniform administration of corporate policy as

described herein is unlawful and creates an entitlement to recovery by the Plaintiffs and the class

identified herein, in a civil action, for the unpaid balance of the unpaid premium compensation

pursuant to Labor Code § 226.7 and IWC Wage Order No. 5 § 11(B), including interest thereon,

penalties, reasonable attorneys’ fees, and costs of suit according to the mandate of California

Labor Code § 1194.


with the opportunity to take meal breaks and to provide premium compensation in accordance

with Labor Code §§ 226.7 and 512 and IWC Wage Order No. 5 § 11(B) despite the clear legal

obligation to do so, unless and until enjoined and restrained by order of this court, will cause

great and irreparable injury to Plaintiffs and all members of the class in that the Defendants will

continue to violate these California laws, represented by labor statutes and wage orders, unless

specifically ordered to comply with same. This expectation of future violations will require

current and future employees to repeatedly and continuously seek legal redress in order to gain

compensation to which they are entitled under California law. Plaintiffs have no other adequate

remedy at law to insure future compliance with the California labor laws and wage orders

alleged to have been violated herein.

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FOURTH CAUSE OF ACTION

BY PLAINTIFFS ON BEHALF OF THEMSELVES

AND CLASS FOR DENIAL OF LAWFUL REST BREAKS




62. Defendants affirmatively prevented Plaintiffs and class members from taking

legally mandated rest breaks. As such, Defendants are responsible for paying premium

compensation for missed rest periods pursuant to Labor Code § 226.7 and IWC Wage Order No.

5 § 12(B). Defendants shall pay each affected employee one (1) hour of pay at the employee’s

regular rate of compensation for each workday that the rest break was not provided.

63. Plaintiffs and class members regularly worked in excess of three and half (3 ½)

hours per day. Defendants’ policies and practices prevented Plaintiffs and class members from

enjoying their right to a ten (10) minute rest period in the middle of each four (4) hour work

period.

64. As a pattern and practice, Defendants regularly required employees to work

through rest periods. Defendants and Defendants’ supervisors assigned work, scheduled shifts,

and staffed worksites in a manner that did not allow Plaintiffs and class members to regularly

take rest periods.


willfully failed to pay employees who were not provided the opportunity to take rest breaks the

premium compensation set out in Labor Code § 226.7 and IWC Wage Order No. 5 § 12(B).

66. Such a pattern, practice and uniform administration of corporate policy as

described herein is unlawful and creates an entitlement to recovery by the Plaintiffs and the class

identified herein, in a civil action, for the unpaid balance of the unpaid premium compensation

pursuant to Labor Code § 226.7 and IWC Wage Order No. 5 § 12(B), including interest thereon,

penalties, reasonable attorneys’ fees, and costs of suit according to the mandate of California

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Labor Code § 1194.

67. Defendants’ wrongful and illegal conduct in failing provide class members with

the opportunity to take rest breaks and to provide premium compensation in accordance with

Labor Code §§ 226.7 and 512 and IWC Wage Order No. 5 § 12(B) despite the clear legal

obligation to do so, unless and until enjoined and restrained by order of this court, will cause

great and irreparable injury to Plaintiffs and all members of the class in that the Defendants will

continue to violate these California laws, represented by labor statutes and IWC wage orders,

unless specifically ordered to comply with same. This expectation of future violations will

require current and future employees to repeatedly and continuously seek legal redress in order

to gain compensation to which they are entitled under California law. Plaintiffs have no other

adequate remedy at law to insure future compliance with the California labor laws and wage

orders alleged to have been violated herein.

FIFTH CAUSE OF ACTION

BY PLAINTIFFS ON BEHALF OF THEMSELVES AND THE CLASS FOR

VIOLATION OF LABOR CODE § 226


68. Plaintiffs re-allege and incorporate by reference each and every allegation set forth in

the preceding paragraphs.

69. Plaintiffs and all similarly situated employees have been harmed as described herein:

(a) class members were not paid all minimum wages; (b) class members were not paid all

overtime compensation; (c) Defendants unlawfully require subclass employees to pool their tips

with kitchen staff; (d) class members were not provided with lawful meal breaks; (e) class

members were not authorized and permitted to take lawful rest breaks; (f) class members were

not paid all wages due at separation of employment.

70. As a pattern and practice, Defendants failed to furnish Plaintiffs and all similarly

situated employees, either semimonthly or at the time of each payment of wages, either as a

detachable part of the check or separately, an accurate, itemized statement in writing showing

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gross wages earned, total hours worked, and the applicable hourly rates and corresponding

number of hours worked by Plaintiffs and all similarly situated employees at each rate.

71. Defendants willfully and intentionally failed to provide Plaintiffs and all similarly

situated employees with accurate, itemized statements, to show on such itemized statements the

proper total hours, including overtime hours, worked by Plaintiffs and all similarly situated

employees in that it required or suffered them to work and failed to pay wages to them for all

hours worked. Defendants willfully and intentionally failed to show accurate gross wages

earned, total hours worked by Plaintiffs and all similarly situated employees, and all applicable

hourly rates and the corresponding number of hours worked by Plaintiffs and all similarly

situated employees at each rate.

72. As such, Plaintiffs and all similarly situated employees are entitled to payment from

Defendants of the greater of actual damages or $50 for the initial pay period in which the

violation occurred and $100 for each subsequent violation, up to a maximum of $4000, pursuant

to Labor Code § 226, as well as reasonable attorneys’ fees and costs of suit.

SIXTH CAUSE OF ACTION

BY PLAINTIFFS ON BEHALF OF THEMSELVES AND

THE CLASS FOR VIOLATION OF LABOR CODE § 2802




74. Labor Code § 2802 requires an employer to indemnify employees for all necessary

expenditures or losses incurred in direct consequence of the discharge of an employee’s duties,

or based on the directions of the employer.

75. Plaintiffs and all similarly situated employees have been harmed because Defendants

required them to incur expenditures and losses for materials and services related to the discharge

of their duties or a result of instructions given to them, and willfully and intentionally failed to

reimburse the employees for all such expenditures and losses.

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76. As such, Plaintiffs and all similarly situated employees are entitled to recover the

unpaid balance of all such unreimbursed expenditures and losses, including interest thereon,

penalties, including those available under Labor Code § 558, reasonable attorneys’ fees, and

costs of suit according to the mandate of California Labor Code § 1194.

SEVENTH CAUSE OF ACTION

BY PLAINTIFFS ON BEHALF OF THEMSELVES AND THE CLASS FOR

VIOLATIONS OF BUSINESS AND PROFESSIONS CODE § 17200 ET SEQ.




78. Defendants engage and continue to engage in the following unfair business

practices in California: (a) class members were not lawfully paid for all hours worked; (b) class

members were not paid overtime compensation for all hours worked; (c) class members were not

provided with lawful meal breaks; (d) class members were not authorized and permitted to take

lawful rest breaks; (e) subclass employees were required to pool tips and share the tip pool with

employees not in the line of service.

79. Defendants’ utilization of such unfair business practices constitutes unfair

competition and provides an unfair advantage over Defendants’ competitors.

80. Plaintiffs seek, on their own behalf, on behalf of other members of the class

similarly situated, full restitution of monies, as necessary and according to proof, to restore any

and all monies withheld, acquired and/or converted by the Defendants by means of the unfair

practices complained of herein.

81. Plaintiffs seek on their own behalf, and on behalf of other members of the class

similarly situated, an injunction to prohibit Defendants from continuing to engage in the unfair

business practices complained of herein.

82. The restitution includes the equivalent of all unpaid wages for hours worked

whether it be straight-time or overtime; all unpaid premium compensation mandated by Labor

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Code § 226.7 and IWC Wage Order No. 10 § 11(B) and 12(B), including interest thereon.

83. The acts complained of herein occurred within the last four years preceding the

filing of the complaint in this action.

84. Plaintiffs are informed and believe and on that basis allege that at all times herein

mentioned Defendants have engaged in unlawful, deceptive and unfair business practices, as

proscribed by California Business and Professions Code § 17200 et seq., including those set

forth herein above thereby depriving Plaintiffs and other members of the class the minimum

working condition standards and conditions due to them under the California laws and Industrial

Welfare Commission wage orders as specifically described therein.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs on their own behalf and on the behalf of the members of the

class and all aggrieved employees, pray for judgment as follows:

1. For an order certifying the proposed class and subclass;

2. For consequential damages according to proof;

3. For liquidated damages according to proof pursuant to Labor Code § 1194.2;

4. For waiting time wages according to proof pursuant to California Labor Code § 203;

5. For consequential damages according to proof as set forth in California Labor Code §

226.7 and IWC Wage Order No. 5 § 11(B) related to meal breaks;

6. That Defendants be ordered to show cause why they should not be enjoined and ordered

to comply with the applicable Labor Code provisions and California Industrial Welfare

Commission wage orders related to minimum wage compensation, overtime

compensation, meal breaks and record keeping for Defendants’ employees related to

same; and for an order enjoining and restraining Defendants and their agents, servants

and employees related thereto;

7. For consequential damages according to proof as set forth in California Labor Code §

226.7 and IWC Wage Order No. 5 § 12(B) related to rest breaks;


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to comply with the applicable California Industrial Welfare Commission wage orders

related to rest breaks; and for an order enjoining and restraining Defendants and their

agents, servants and employees related thereto;

9. For restitution to Plaintiffs and other similarly effected members of the class of all funds

unlawfully acquired by Defendants by means of any acts or practices declared by this

Court to be violative of the mandate established by California Business and Professions

Code § 17200 et seq.;

10. For an injunction to prohibit Defendants to engage in the unfair business practices

complained of herein;

11. For an injunction requiring Defendants to give notice to persons to whom restitution is

owing of the means by which to file for restitution;

12. For actual damages or statutory penalties according to proof as set forth in California

Labor Code § 226 and IWC Wage Order No. 5 § 7(B) related to record keeping;


to comply with the applicable California Industrial Welfare Commission wage orders

related to record keeping for Defendants’ employees related to same; and for an order

enjoining and restraining Defendants and their agents, servants and employees related

thereto;

14. For civil penalties pursuant to Labor Code § 2699(f) and (g) for each aggrieved

employee per pay period for each subsequent violation

15. For pre-judgment interest as allowed by California Labor Code §§ 218.5 or 1194 and

California Civil Code § 3287;

16. For reasonable attorneys’ fees, expenses and costs as provided by California Labor

Code §§ 226, 1194, 2699 or Code of Civil Procedure § 1021.5; and,

17. For such other and further relief the court may deem just and proper.

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Documents

Class Complaint