2 ALEXANDER KRAKOW + GLICK LLP FILED Marvin E. Krakow (State Bar No. 812) (:IVII- h TRAL D!VI5 CN J Michael S. Morrison (State Bar No. 205320) 401 Wilshire Boulevard, Suite 00 Santa Monica, California 90401 1ZSEP201P I: 49 3 T: 3 394 0888 1 F: 3 394 0811 4 E: mkrakow@akgllp. com; mmorrison@akgllp. com SAN DIEGO COUNTY. CA 5 7 8 9 Attorneys for Plaintiffs GREG PALOMARES and JESUS BALLESTEROS, individually and on behalf of all others similarly situated Additional Counsel for Plaintiffs and the Class Listed Below SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN DIEGO 11 GREG PALOMARES and JESUS CASE NO. 37-2012-004201-CU-MT-CTL 12 BALLESTEROS, individually and on behalf of all others similarly situated, CLASS ACTION 13 COMPLAINT FOR DAMAGES: Plaintiffs, 14 1. FAILURE TO PAY OVERTIME V. COMPENSATION (CAL. LABOR 15 CODE 14); 1 17 AT&T MOBILITY SERVICES LLC, a 2. FAILURE TO PAY FOR ALL Delaware limited liability company; and HOURS WORKED AND MIN. WAGE VIOLATIONS (CAL. LABOR DOES 1 through, inclusive, CODE 21, 14, 14.2 & 17); 18 Defendants. 3. FAILURE TO PAY MEAL AND REST PERIOD COMPENSATION (CAL. LABOR CODE 22.7 & 512); 20 4. WAITING TIME PENALTIES (CAL. LABOR CODE 203); 21 5. VIOLATION OF CAL. LABOR CODE 204; 22. FAILURE TO PROVIDE 23 ACCURATE ITEMIZED STATEMENTS (CAL. LABOR CODE 22); 24 7. CONVERSION; AND 25 8. UNFAIR BUSINESS PRACTICES (CAL. BUS. AND 2 PROF. CODE 17200 ET SEQ.) DEMAND FOR JURY TRIAL -1-
LAW OFFICES OF THOMAS W. FALVEY THOMAS W. FALVEY, SBN 5744 J.D. HENDERSON, SBN 23577 301 North Lake Avenue, Suite 800 Pasadena, California 911 Telephone: (2) 795-0205 Fax: 2.795.309 WUCETICH & KOROVILAS LLP JASON M. WUCETICH (STATE BAR NO. 222113) jason@wukolaw.com DIMITRIOS V. KOROVILAS (STATE BAR NO. 247230) dimitri@wukolaw.com 222 North Sepulveda Boulevard, Suite 2000 El Segundo, CA 90245 Telephone: (3) 335-2001 Facsimile: (3) 34-5201 20-2-
1 2 3 4 Plaintiffs Greg Palomares and Jesus Ballesteros ("PLATINTIFFS"), individually and on behalf of all others similarly situated, and the general public, complains and alleges on information and belief the following against defendant AT&T Mobility Services LLC ("AT&T") and DOES 1 through (collectively "DEFENDANTS"): INTRODUCTION 1. This case arises out of AT&T's systemic, company-wide unlawful treatment of PLAINTIFFS and similarly situated employees which they wrongfully classified and/or continue to classify as being exempt from overtime compensation under wage and hour protections incorporated into California law. AT&T Mobility Services LLC is the second-largest wireless voice and data carrier in the United States by subscribers (after Verizon). The company, which 11 12 accounts for about 40% of parent AT&T's business, provides a full range of wireless voice, messaging, and data services to consumer and enterprise customers. AT&T owns and operates AT&T's wireless stores throughout California which sell AT&T Mobility Services LLC's products. 2. PLAINTIFFS and all other similarly situated employees are employed by AT&T as Retail Sales Managers ("RSM") at AT&T's wireless stores. AT&T classifies RSMs as being exempt from state and federal laws with respect to the payment of overtime and other requirements employers are required to provide to non-exempt employees. AT&T has not been relieved of their legal obligation to pay overtime and provide other Labor Code protections to 20 21 22 23 24 25 2 PLAINTIFFS and all other similarly situated RSMs. RSMs are working forepersons who sell products to consumers, but AT&T does not pay RSMs commissions based on a percentage of the price of the product sold, and most of the duties performed by RSMs are indistinguishable from that of AT&T's non-exempt sales representatives. AT&T exercises complete control over the RSMs' daily activities, leaving them little or no discretion as to how they spend their time. For instance, AT&T requires RSMs to be on the sales floor at least 80% of the time, and many sales transactions can only be completed by RSMs. AT&T is fully aware that they have not been relieved of their legal obligation to pay overtime and provide other protections of the Labor Code to RSM employees, as evidenced in part by the fact that AT&T already settled a class action -3-
1 2 3 lawsuit alleging AT&T failed to pay RSMs overtime wages as required by law. Indeed, PLAINTIFFS are informed and believe, and thereon allege, that AT&T classified RSM's as nonexempt after the class action lawsuit and paid them on an hourly basis. A few short years ago, however, likely due to the pressures of the worsening economy, PLAINTIFFS are informed and believe, and thereon allege, that AT&T reclassified the RSM workforce as exempt. AT&T's violations of the law as described herein were willful and done according to AT&T's established policies and procedures. 3. PLAINTIFFS bring this action under California overtime statutes and regulations and California's unfair competition laws. More specifically, PLAINTIFFS assert that they and the class members are entitled to unpaid wages, including unpaid overtime wages, compensation for missed meal and rest periods, and all applicable statutory damages and penalties. PARTIES 13 14 15 1 17 18 20 21 22 23 24 25 2 4. PLAINTIFF Greg Palomares resides in San Diego County, California. PLATINIFF worked for AT&T as an RSM during the applicable statute of limitations period at a number of stores in San Diego County. Throughout his employment with AT&T, PLAINTIFF was misclassified as salaried exempt from state and federal overtime laws. 5. PLAINTIFF Jesus Ballesteros resides in San Diego County, California. PLATINIFF worked for AT&T as an RSM during the applicable statute of limitations period at a number of stores in San Diego County. Throughout his employment with AT&T, PLAINTIFF was misclassified as salaried exempt from state and federal overtime laws.. Defendant AT&T Mobility Services LLC is a limited liability company organized and existing under the laws of the state of Delaware. PLAINTIFFS are informed and believe, and thereon allege, that AT&T Mobility's corporate headquarters are located at 25 Lenox Park Boulevard NE, Suite 5D4, Atlanta, Georgia, 303. 7. The true names and capacities, whether individual, corporate, associated or whatever else, of the defendants sued herein as DOES 1 through, inclusive, are currently unknown to PLAINTIFFS, who therefore sues these defendants by such fictitious names under Code of Civil Procedure 474. PLAINTIFFS are informed and believe, and thereon allege, that -4-
1 2 each of the Defendants designated as DOES 1 through, inclusive, is legally responsible in some manner for the unlawful acts alleged herein. PLAINTIFFS will seek leave of court to 3 amend this Complaint to allege the true names and capacities of the defendants designated as 4 DOES 1 through when their identities become known. 8. PLAINTIFFS are informed and believe and thereon allege that each defendant was a parent, agent, subsidiary, affiliated entity and/or alter ego of each other defendant, and acted in all respects pertinent to this agent in concert and carried out a joint scheme, business plan, or policy in all respects regarding the unlawful acts alleged herein. 9. Section 2 of the applicable California Industrial Wage Commission ("IWC") Order defines an "employer" as any "person as defined in Section 18 of the Labor Code, who directly or indirectly, or through an agent or any other person, employs or exercises control over the wages, hours or working conditions of any person." PLAINTIFFS are informed and believe and, based thereon, allege that AT&T, directly or indirectly, or acting through the agency of each other, employ or exercise control over the wages, hours or working conditions of PLAINTIFFS and the members of the class defined below. Furthermore, on information and belief, a centralized payroll and accounting system is used to pay the wages of PLAINTIFFS and the rest of the members of the class at all of AT&T's locations. Specifically, AT&T pays the wages and other benefits of all class members and direct and control, with the assistance of or through the agency of the other named Defendants, the terms and conditions of all class members' employment. 20 Accordingly, AT&T is deemed the employers of PLAINTIFFS and the rest of the class. 21 JURISDICTION 22. This Court has general personal jurisdiction over Defendant AT&T Mobility 23 Services LLC because, at all relevant times, AT&T Mobility Services LLC has had systematic 24 and continuous contacts with the State of California. Though organized under Delaware law and 25 based in Georgia, AT&T Mobility Services LLC is registered to do business in California with 2 the California Secretary of State and operates numerous stores throughout California, including many within San Diego County. Furthermore, this Court has specific personal jurisdiction over AT&T Mobility because the claims in this action all stem from AT&T Mobility Services LLC's -5-
specific contacts with the State of California - namely, its employment of PLAINTIFFS and numerous other California store managers. 11. The San Diego Superior Court has jurisdiction of this action because the individual claims of members of the Class herein are under the seventy-five thousand dollar ($75,000) 5 7 8 9 I1 12 13 14 jurisdictional threshold for Federal Court. Plaintiff Greg Palomares and Plaintiff Jesus Ballesteros each waive seeking more than seventy-five thousand dollars ($75,000) as to their respective individual amounts in controversy. Furthermore, the aggregate amount in controversy is less than five million dollars ($5,000,000). PLAINTIFFS further waive seeking more than five million dollars ($5,000,000) regarding the aggregate amount in controversy for the class claims alleged herein. This case also raises no federal questions. 12. Venue is proper in the county of San Diego in accordance with Code of Civil Procedure 395(a) because the alleged wrongs occurred in this county. CLASS ACTION ALLEGATIONS 13. PLAINTIFFS bring this action on behalf of themselves and all others similarly situated as a class action pursuant to California Code of Civil Procedure 382 and on behalf of the following class (referred to as the "PLAINTIFF CLASS"). The PLAINTIFF CLASS is composed of and defined as follows: All Retail Sales Managers ("RSM") in AT&T's districts encompassing the greater San Diego metropolitan area, including the North, Central and South Districts of San Diego County, California who work(ed) for AT&T MOBILITY SERVICES LLC at any time within four years prior to the initiation of this action until the present. (hereinafter "the CLASS"). 14. PLAINTIFFS reserve the right under California Rule of Court 3.75 to amend or modify the class description with greater particularity or further division into subclasses or limitation to particular issues. 15. This action has been brought and may be maintained as a class action under California Code of Civil Procedure Section 382 because there is a well-defined community of interest in the litigation and the proposed class is easily ascertainable, as described further below: A. Numerosity: The potential members of the class as defined are so numerous that joinder of all members of the class is impracticable. While --
the precise number employees has not been determined, the membership of the entire class is unknown to PLAINTIFFS at this time; however, it is readily ascertainable via inspection of the personnel records and other documents maintained by AT&T. 5 7 8 9 11 12 13 14 15 1 17 18 B. Commonality: There are questions of law and fact common to the PLAINTIFFS and the PLAINTIFF CLASS that predominate over any questions affecting only the individual members of the class. The common questions of law and fact include, but are not limited to, the following: (1) Whether AT&T denied PLAINTIFFS and the PLAINTIFF CLASS all of the wages, including overtime wages, to which they were entitled pursuant to the California Labor Code, the California Industrial Welfare Commission's ("IWC") Wage Orders, and all other applicable Employment Laws and Regulations; (2) Whether AT&T failed to provide PLAINTIFFS and members of the PLAINTIFF CLASS with meal and rest periods as required by law; (3) Whether AT&T failed to provide PLAINTIFFS and members of the PLAINTIFF CLASS with accurate itemized statements; (4) Whether AT&T owes PLAINTIFFS and the PLAINTIFF CLASS waiting time penalties pursuant to California Labor Code 203; (5) Whether AT&T violated California Labor Code 204 by failing to pay all wages earned in a timely manner; () Whether AT&T engaged in unfair business practices under 17200 of the California Business and Professions Code; (7) Whether AT&T acted with, malice, oppression and fraud thereby justifying the award of punitive and exemplary damages; and (8) The effect upon and the extent of damages suffered by the PLAINTIFF CLASS and the appropriate amount of compensation. -7-
C. T icali. The claims of PLAINTIFFS are typical of the claims of the PLAINTIFF CLASS. PLAINTIFFS and all other similarly situated employees sustained injuries and damages arising out of and caused by AT&T's common course of conduct in violation of statutes, as well as 5 regulations that have the force and effect of law, as alleged herein. D. Adequacy of Representation. PLAINTIFFS will fairly and adequately represent the interests of the PLAINTIFF CLASS. Counsel who represent PLAINTIFFS are experienced and competent in litigating employment class actions. E. Superiority of Class Action. A class action is superior to other available means for the fair and efficient adjudication of this controversy. Individual joinder of all Plaintiffs is not practicable, and questions of law and fact 13 14 15 1 17 18 20 21 22 23 24 25 2 common to Plaintiffs predominate over any questions affecting only individual Plaintiffs. PLAINTIFFS and the PLAINTIFF CLASS have been damaged and is entitled to recovery by reason of AT&T's illegal policies or practices of failing to compensate PLAINTIFFS properly. 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. 1. The nature of this action and the nature of the laws available to the PLAINTIFF CLASS make the class action format a particularly efficient and appropriate procedure to afford relief to the PLAINTIFF CLASS. Further, this case involves a corporate employer and a large number of individual employees possessing claims with common issues of law and fact. 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 its 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 pursue an action against their present -8-
1 2 3 4 5 7 8 9 and/or former employer for an appreciable and justifiable fear of retaliation and permanent damage to their careers at present and/or subsequent employment. Proof of a common business practice or factual pattern, of which the named PLAINTIFFS experienced, is representative of the class mentioned herein and will establish the right of each of the members of the class to recovery on the claims alleged herein. 17. The prosecution of separate actions by the individual class members, even if possible, would create: (a) a substantial risk of inconvenient or varying verdicts or adjudications with respect to the individual class members against the defendants herein; and/or (b) legal determinations with respect to individual class members which would, as a practical matter, be dispositive of the other class members' claims who are not parties to the adjudications and/or would substantially impair or impede the ability of 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 attending thereto. PLAINTIFFS are unaware of any difficulties that are likely to be encountered in the management of this action that would preclude its maintenance as a class action. FACTS COMMON TO ALL CAUSES OF ACTION 18. PLAINTIFFS and members of the PLAINTIFF CLASS were employed as Retail 18 Sales Managers, or RSMs, at AT&T's AT&T Wireless Stores in California. PLAINTIFFS and members of the PLAINTIFF CLASS were classified as salaried exempt from state and federal overtime laws throughout their employment with AT&T. However, it is clear that neither PLAINTIFFS nor members of the PLAINTIFF CLASS meet the requirements for any exemption from state and federal overtime laws.. In particular, PLAINTIFFS and members of the PLAINTIFF CLASS did not and do not perform exempt work at least 51% of the time in the performance of their job duties. Although given the title of "manager", the vast majority of work performed by PLAINTIFFS and members of the PLAINTIFF CLASS was and is not managerial in nature and is virtually indistinguishable from work performed by lower level, non-exempt employees. According to AT&T's written policies, RSMs are required to spend 80% of their work time on the sales floor, -9-
where their duties include, but are not limited to: (1) greeting customers; (2) pre-screening customers in order to direct them to the appropriate sales representative; (3) assisting in direct sales with customers; (4) closing out certain sales of AT&T products, such as U-Verse; (5) merchandising (i.e. setting up displays for products and putting up banners); and () making sure the store looked presentable (e.g. wiping down screens and counters and picking up trash). In addition to their duties on the sales floor, RSMs are also responsible for performing such nonexempt tasks as: (1) taking inventory; (2) picking up products from other stores that are not in stock at their store; and (3) participating in conference calls regarding sales. 20. The time RSMs spend performing truly exempt work is minuscule when compared to their non-exempt duties. Moreover, RSMs do not: (a) (b) (c) carry out major assignments in conducting the operations of the business; perform work that affects business operations to a substantial degree; have the authority to commit the employer in matters that have financial impact; (d) have the authority to waive or deviate from established policies and procedures without prior approval; (e) (f) (g) (h) have the authority to negotiate or bind the company on significant matters; provide consultation or expert advice to management; participate in long-term planning business objectives; investigate and resolve matters of significance on behalf of management; nor (i) represent the company in handling complaints, arbitrating disputes or resolving grievances. 21. Ultimately, AT&T's deliberate misclassification of PLAINTIFFS and the 25 2 PLAINTIFF CLASS results in substantial savings and benefits to themselves at the expense of their employees. --
1 2 3 FIRST CAUSE OF ACTION FAILURE TO PAY OVERTIME COMPENSATION (CALIFORNIA LABOR CODE SECTION 14) By PLAINTIFFS in their individual capacities and in their capacities as representatives of all similarly situated members of the PLAINTIFF CLASS against AT&T. 22. PLAINTIFFS reallege and incorporate, by reference, as though fully set forth herein, the allegations contained in each of the preceding paragraphs. 8 9 11 12 13 14 15 1 17 18 20 21 22 23. AT&T required PLAINTIFFS and members of the PLAINTIFF CLASS to work more than eight (8) hours per day, twelve (12) hours per day, and/or forty (40) hours per week. 24. AT&T failed to fully compensate PLAINTIFFS and members of the PLAINTIFF CLASS for all wages earned, including overtime wages. 25. PLAINTIFFS are informed and believe, and thereon allege that the failure of AT&T to fully compensate PLAINTIFFS and the PLAINTIFF CLASS for all wages earned and overtime work was willful, purposeful, and unlawful and done in accordance with the policies and practices of AT&T's operations. 2. As a proximate cause of the aforementioned violations, PLAINTIFFS and the PLAINTIFF CLASS have been damaged in an amount according to proof at time of trial, but in an amount in excess of the jurisdictional minimum of this Court. PLAINTIFFS and the PLAINTIFF CLASS are entitled to recover the unpaid balance of wages owed, penalties, including penalties available pursuant to California Labor Code Section 558, plus interest, reasonable attorney fees and costs of suit according to the mandate of California Labor Code, 14, et. seq. 23 24 25 2-11-
SECOND CAUSE OF ACTION FAILURE TO PAY FOR ALL HOURS WORKED AND MINIMUM WAGE VIOLATIONS (LABOR CODE SECTIONS 21, 14, 14.2 and 17) By PLAINTIFFS in their individual capacities and in their capacities as representatives of all similarly situated members of the PLAINTIFF CLASS against AT&T. 7 8 9 11 12. PLAINTIFFS reallege and incorporate, by reference, as though fully set forth herein, the allegations contained in the paragraphs set forth above.. PLAINTIFFS brings this action to recover unpaid compensation for all hours worked, defined by the applicable IWC Wage Order as the time during which an employee is subject to the control of the employer, including all the time the employee is suffered or permitted to work, whether or not required to do so. 29. AT&T failed to compensate PLAINTIFFS and the PLAINTIFF CLASS for labor performed in excess of 40 hours in a week. AT&T's conduct violates, inter alia, Labor Code sections 21, 14 and 17. 30. PLAINTIFFS are informed and believe, and thereon allege that the failure of AT&T to fully compensate PLAINTIFFS and the PLAINTIFF CLASS for all wages earned was willful, purposeful, and unlawful and done in accordance with the policies and practices of AT&T's operations. AT&T knew or should have known that PLAINTIFFS and the PLAINTIFF CLASS were working these hours. 31. As a proximate cause of the aforementioned violations, PLAINTIFFS and the PLAINTIFF CLASS have been damaged in an amount according to proof at time of trial, but in 22 23 24 25 2 an amount in excess of the jurisdictional minimum of this Court. PLAINTIFFS and the PLAINTIFF CLASS are entitled to recover the unpaid balance of wages owed, plus interest on that amount, liquidated damages pursuant to Labor Code section 14.2, and penalties. PLAINTIFFS and the PLAINTIFF CLASS are also entitled to recover reasonable attorney fees and costs of suit pursuant to Labor Code, ' 14, et. seq. -12-
THIRD CAUSE OF ACTION FAILURE TO PAY MEAL AND REST PERIOD COMPENSATION (CALIFORNIA LABOR CODE SECTIONS 22.7 AND 512) By PLAINTIFFS in their individual capacities and in their capacities as representatives of all 5 7 8 9 11 12 13 14 15 1 17 18 similarly situated members of the PLAINTIFF CLASS against AT&T. 32. PLAINTIFFS reallege and incorporate, by reference, as though fully set forth herein, the allegations contained in the paragraphs set forth above. 33. AT&T failed to provide PLAINTIFFS and members of the PLAINTIFF CLASS with uninterrupted, work-free 30-minute meal periods for shifts in excess of five (5) hours worked and to compensate them for these missed meal periods as required by law. 34. AT&T, throughout PLAINTIFFS' employment with AT&T, failed to give PLAINTIFFS rest breaks as required by law and failed to compensate them for missed rest breaks. 35. PLAINTIFFS are informed and believe, and thereon allege that the failure of AT&T to provide meal and rest breaks and to compensate PLAINTIFFS and the PLAINTIFF CLASS for these missed meal and rest breaks was willful, purposeful, and unlawful and done in accordance with the policies and practices of AT&T's operations. 3. As a proximate cause of the aforementioned violations, PLAINTIFFS and members of the PLAINTIFF CLASS have been damaged in an amount according to proof at time of trial, but in an amount in excess of the jurisdictional minimum of this Court. PLAINTIFFS and the PLAINTIFF CLASS are entitled to recover the unpaid balance of wages owed, penalties, including penalties available pursuant to California Labor Code Sections 22, 22.7 and 558, plus interest, reasonable attorneys' fees and costs of suit according to the mandate of California Labor Code, 218.5 and 14, et. seq. - 13-
1 2 3 4 FOURTH CAUSE OF ACTION WAITING TIME PENALTIES (CALIFORNIA LABOR CODE 203) By PLAINTIFFS in their individual capacities and in their capacities as representatives of all similarly situated members of the PLAINTIFF CLASS against AT&T. 37. PLAINTIFFS reallege and incorporate, by reference, as though fully set forth herein, the allegations contained in the paragraphs set forth above. 38. Pursuant to California Labor Code 201, if an employer discharges an employee, the wages earned and unpaid at the time of the discharge are due and payable immediately. Pursuant to California Labor Code 202, if an employee quits his or her employment, the wages earned and unpaid at the time of the discharge are due and payable within seventy-two (72) hours of the resignation. 39. PLAINTIFFS and members of the PLAINTIFF CLASS were either terminated by AT&T or have resigned from their employment with AT&T. To this day, neither PLAINTIFFS nor members of the PLAINTIFF CLASS have received the wages and other compensation they rightfully earned. 17 18 20 21 22 23 24 25 2 40. AT&T, and each of them, willfully refused and continue to refuse to pay PLAINTIFFS and members of the PLAINTIFF CLASS all wages earned, including overtime compensation, in a timely manner, as required by California Labor Code 203. PLAINTIFFS therefore request restitution and penalties as provided by California Labor Code 203. FIFTH CAUSE OF ACTION VIOLATION OF LABOR CODE 204 By PLAINTIFFS in their individual capacities and in their capacities as representatives of all similarly situated members of the PLAINTIFF CLASS against AT&T. 41. PLAINTIFFS reallege and incorporate, by reference, as though fully set forth herein, the allegations contained in the paragraphs set forth above. 42. During the Class period, Labor Code 204 applied to AT&T's employment of PLAINTIFFS and the PLAINTIFF CLASS. At all times relevant hereto, Labor Code section 204-14-
1 2 3 4 5 7 8 9 provided that all wages earned by any employee, such as PLAINTIFFS and members of the PLAINTIFF CLASS, in any employment between the 1st and 15th days, inclusive, of any calendar month, other than those wages due upon termination of an employee, are due and payable between the 1th and 2th day of the month during which the work was performed. Furthermore, at all times relevant hereto, Labor Code section 204 provided that all wages earned by any employee, such as PLAINTIFFS and members of the PLAINTIFF CLASS, in any employment between the 1th and the last day, inclusive, of any calendar month, other than those wages due upon termination of an employee, are due and payable between the 1st and th day of the following month. 43. During the class period, AT&T failed to pay PLAINTIFFS and members of the 11 PLAINTIFF CLASS wages for all hours worked. 12 44. During the class period, AT&T failed to pay PLAINTIFFS and members of the 13 PLAINTIFF CLASS for all wages earned, and, therefore violated Labor Code section 204. 14 Accordingly, PLAINTIFFS and members of the PLAINTIFF CLASS are entitled to recover all 15 damages, penalties and other remedies available for violation of Labor Code section 204. 1 SIXTH CAUSE OF ACTION 17 FAILURE TO PROVIDE ACCURATE ITEMIZED STATEMENTS 18 (CALIFORNIA LABOR CODE 22) By PLAINTIFFS in their individual capacities and in their capacities as representatives of all 20 similarly situated members of the PLAINTIFF CLASS against AT&T. 21 45. PLAINTIFFS reallege and incorporate, by reference, as though fully set forth 22 herein, the allegations contained in the paragraphs set forth above. 23 4. AT&T failed to provide PLAINTIFFS and members of the PLAINTIFF CLASS 24 with accurate itemized statements as required by Cal. Labor Code 22. 25 47. PLAINTIFFS and the PLAINTIFF CLASS have been injured by AT&T's 2 intentional failure to provide accurate itemized statements in that PLAINTIFFS and the PLAINTIFF CLASS will be required to spend more time and greater expense reconstructing their hours worked to determine the wages owed. - 15-
1 48. PLAINTIFFS are informed and believe and thereon allege that AT&T knowingly 2 and intentionally provided inaccurate and incomplete payroll records. As a result, PLAINTIFFS 3 and members of the PLAINTIFF CLASS are entitled to recover the greater of all actual damages 4 and are also entitled to an award of costs and reasonable attorneys' fees. 5 SEVENTH CAUSE OF ACTION CONVERSION 7 (CALIFORNIA CIVIL CODE 333 AND 3294) 8 By PLAINTIFFS in their individual capacities and in their capacities as representatives of all 9 similarly situated members of the PLAINTIFF CLASS against AT&T. 49. PLAINTIFFS reallege and incorporate, by reference, as though fully set forth 11 herein, the allegations contained in the paragraphs set forth above. 12 50. As alleged above, AT&T wrongfully withheld earned wages and other monies 13 from PLAINTIFFS and members of the PLAINTIFF CLASS. In particular, AT&T failed to pay 14 PLAINTIFFS and members of the PLAINTIFF CLASS all wages they earned pursuant to the 15 applicable Employment Laws and Regulations. 1 51. At all relevant times, AT&T had and continues to have a legal obligation imposed 17 by statute to pay PLAINTIFFS and members of the PLAINTIFF CLASS all earned wages and 18 other compensation due to them. Such wages and compensation belonged to PLAINTIFFS and members of the PLAINTIFF CLASS at the time the labor and services were provided to AT&T, 20 and, accordingly, such wages and compensation are the property of PLAINTIFFS and members 21 of the PLAINTIFF CLASS, not AT&T. 22 52. AT&T knowingly and intentionally failed to pay PLAINTIFFS and members of 23 the PLAINTIFF CLASS all wages earned. Instead, AT&T converted PLAINTIFFS' and 24 members of the PLAINTIFF CLASS's rightfully earned wages and converted them to AT&T's 25 own use and benefit. 2 53. PLAINTIFFS and members of the PLAINTIFF CLASS have been injured by AT&T's intentional conversion of such wages and compensation. PLAINTIFFS and the PLAINTIFF CLASS are entitled to immediate possession of all amounts converted by AT&T, -1-
1 2 3 4 5 with interest, as well as any and all profits that DEFENDANTS acquired by their unlawful conversion. 54. AT&T's actions constituting conversion were oppressive, malicious, and fraudulent, and were concealed by AT&T, and each of them, from the named PLAINTIFFS and PLAINTIFF CLASS as hereinbefore alleged. PLAINTIFFS and members of the PLAINTIFF CLASS have been injured by AT&T's oppressive, malicious, intentional and fraudulent actions, entitling PLAINTIFFS and the PLAINTIFF CLASS to punitive and exemplary damages. EIGHTH CAUSE OF ACTION UNFAIR BUSINESS PRACTICES (CALIFORNIA BUSINESS AND PROFESSIONS CODE SECTION 17200, ET SEQ.) By PLAINTIFFS in their individual capacities and in their capacities as representatives of all similarly situated members of the PLAINTIFF CLASS against AT&T. 55. PLAINTIFFS reallege and incorporate, by reference, as though fully set forth herein, the allegations contained in the paragraphs set forth above. 5. AT&T's violations of the Employment Laws and Regulations, as alleged herein, include, among other things: (1) AT&T's failure and refusal to pay all wages, including overtime wages, earned by PLAINTIFFS and the PLAINTIFF CLASS pursuant to AT&T's illegal pay practices described above; (2) AT&T's willful and deliberate failure to provide meal and rest periods as required by law; and (3) AT&T's wrongful withholding and conversion of wages and compensation due to PLAINTIFFS and the PLAINTIFF CLASS. The aforementioned violations constitute unfair business practices in violation of the Unfair Competition Law, California Business & Professions Code Section 17200, et seq. 23 24 25 2 57. As a result of AT&T's unfair business practices, AT&T has reaped unfair benefits and illegal profits at the expense of PLAINTIFFS, the PLAINTIFF CLASS and members of the public. AT&T should be compelled to restore such monies to PLAINTIFFS and the PLAINTIFF CLASS. 58. AT&T's unfair business practices entitle PLAINTIFFS and the PLAINTIFF CLASS to seek preliminary and permanent injunctive relief, including but not limited to, orders -17-
that the AT&T account for and restore to PLAINTIFFS and the PLAINTIFF CLASS the compensation unlawfully withheld from them. PRAYER FOR RELIEF WHEREFORE, PLATINTIFFS pray, on behalf of themselves and all others similarly situated, for relief and judgment against DEFENDANTS, as follows: 1. That the Court determines that Causes of Action 1-8 may be maintained as a class action; 2. For general and compensatory damages, according to proof, 9 11 12 3. For restitution of all monies due to PLAINTIFFS and the PLAINTIFF CLASS and disgorgement of profits from the unlawful business practices of AT&T; 4. For waiting time penalties pursuant to California Labor Code 203; 5. For penalties pursuant to California Labor Code 22, 558 and all other applicable Labor Code and/or Employment Laws and Regulations;. For interest accrued to date; 7. For costs of the suit incurred herein; 8. For punitive damages and exemplary damages, according to proof; 9. For attorneys' fees and costs pursuant to California Labor Code 's 218.5, 18 22, 14, and 298 et seg. ;. For such other and further relief that the Court may deem just and proper; and -18-
I 11. For an aggregate total recovery for the claims alleged herein, excluding interest and costs, in an amount that is less than five million dollars (S5,000.000). Plaintiff Greg Palomares and Plaintiff Jesus Ballesteros waive seeking more than seventy-five thousand dollars 4 5 ($75,000) as to their respective individual claims alleged herein. Moreover, Plaintiff Greg Palomares and Plaintiff Jesus Ballesteros further waive seeking more than five million dollars ($5,000,000) regarding the aggregate amount in controversy for the class claims alleged herein. 7 8 9 12 li 14 15 1 17 18 20 21 22 2; 24 Dated: September 1 >. 2012 WU CCTICII & KOROVILAS LLP JASON M. WUCh:TICH Att me, for Plaintiffs Greg Palmoares and Jesus Bal eras, individually and on behalf of all others similarly situated 2 --
I PLAINTIFFS' DEMAND FOR JURY TRIAL Plaintiffs, for themselves and all others similarly situated. hereby demand a trial by jury on all issues of fact or law so triable. 4 Dated: September 1 3. 2012 WUCETICH & KOROVILAS LLP 7 8 JASON M. WUCETICH Atto nev for Plaintiffs Greg Palomares and Jesus Ball _ Bros, individually and on behalf of all others similarly situated 12 14 15 1 17 18 20 21 2; 24 25 2-20-