Copy of the Complaint- first half
here is a copy of the Complaint as it was filed. I tried to copy it as good as i could, but there could be small typos'.
For a real copy, contact Sacramento Superior Court
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PETER M. HART, Esq. (California Bar No. 198691)
LAW OFFICES OF PETER M. HART
13952 Bora Bora Way, F-320
Marina Del Rey, CA 90292
Telephone: (310) 478-5789
Facsimile: (509) 561-6441
KENNETH H. YOON (California Bar No. 198443)
LAW OFFICES OF KENNETH H. YOON
One Wilshire Blvd., Suite 2200
Los Angeles, CA 90017
(213) 612-0988
(213) 947-1211 facsimile
Attorneys for Plaintiff Miles Maria
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SACRAMENTO
MILES MARIA, as an individual and on behalf of others similarly situated,
Plaintiffs,
vs.
APPLE COMPUTER, a California corporation; APPLE, INC., a California corporation; and DOES 1 through 50, inclusive,
Defendants. Case No.:
CLASS ACTION
COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF FOR:
(1) FAILURE TO PAY OVERTIME WAGES;
(2) VIOLATION OF LABOR CODE § 203;
(3) VIOLATION OF LABOR CODE § 226;
(4) UNFAIR BUSINESS PRACTICES (Violation of California Business & Professions Code §17200 et seq.).
DEMAND FOR JURY TRIAL
Plaintiff Miles Maria (hereinafter referred to as Plaintiff), hereby submit his Class Action Complaint against Defendants APPLE COMPUTER, INC. and APPLE, INC. and Does 1-20 (hereinafter collectively referred to as DEFENDANTS) on behalf of themselves and the class of others similarly situated current and former employees of DEFENDANTS for overtime wages owed, waiting time penalties, and penalties or damages for failure to keep accurate records, as follows:
INTRODUCTION
1. This class action is within the Courts jurisdiction under California Labor Code §§ 201-204, 226, 1194, and California Business and Professions Code § 17200, et seq., (Unfair Practices Act).
2. This complaint challenges systemic illegal employment practices resulting in violations of the California Labor Code and Business and Professions Code against employees of DEFENDANTS.
3. Plaintiff is informed and believes and based thereon alleges DEFENDANTS, joint and severally have acted intentionally and with deliberate indifference and conscious disregard to the rights of all employees in receiving all overtime wages due at the proper rate of overtime pay, all final wages due upon termination of employment, and in connection with DEFENDANTS failure to keep all proper pay roll records of Plaintiff and Class Members.
4. Plaintiff is informed and believes and based thereon alleges 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 the above stated rights and benefits.
5. The policies, practices and customs of defendants 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.
JURISDICTION AND VENUE
6. The Court has jurisdiction over the violations of the California Labor Code §§ 201-204, 226, 1194 and California Business and Professions Code § 17200, et seq., (Unfair Practices Act).
7. Venue is proper because the DEFENDANTS do business in Los Angeles County and the acts alleged herein took place in Sacramento County.
PARTIES
8. Plaintiff MILES MARIA was employed by DEFENDANTS until on or about May 2006 and has resided within the jurisdiction of this Court at all relevant times. Plaintiff was and is the victim of the policies, practices and customs of DEFENDANTS complained of in this action in ways that have deprived him of the rights guaranteed to him by California Labor Code §§ 201-204, 226, 1194, and California Business and Professions Code §17200, et seq., (Unfair Practices Act).
9. Plaintiff is informed and believes and based thereon alleges Defendants APPLE COMPUTER, INC. and APPLE, INC. (hereafter DEFENDANTS) was and are corporations doing business in the State of California with its principal place of business located in California that operate a retail stores and call centers in California and sell electronic and consumer products to the public.
10. Plaintiff is informed and believes and thereon alleges that at all times herein mentioned DEFENDANTS and DOES 1 through 20, are and were corporations, business entities, individuals, and partnerships, licensed to do business and actually doing business in the State of California.
11. As such, and based upon all the facts and circumstances incident to DEFENDANTS business in California, DEFENDANTS are subject to California Labor Code §§ 201-204, 226, 1194 and California Business and Professions Code § 17200, et seq., (Unfair Practices Act).
12. Plaintiff does not know the true names or capacities, whether individual, partner or corporate, of the DEFENDANTS sued herein as DOES 1 through 20, inclusive, and for that reason, said DEFENDANTS are sued under such fictitious names, and Plaintiff prays for leave to amend this complaint when the true names and capacities are known. Plaintiff is informed and believes and thereon alleges that each of said fictitious DEFENDANTS was responsible in some way for the matters alleged herein and proximately caused Plaintiff and members of the general public and class to be subject to the illegal employment practices, wrongs and injuries complained of herein.
13. 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 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.
14. Plaintiff is informed and believes and based thereon alleges 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 DEFENDANTS.
15. At all times herein mentioned, DEFENDANTS, and each of them, were members of, and engaged in, a joint venture, partnership and common enterprise, and acting within the course and scope of, and in pursuance of, said joint venture, partnership and common enterprise.
16. 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. 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
17. Definition: The named individual Plaintiff bring this action on behalf of himself and the class pursuant to California Code of Civil Procedure § 382. The Class consists of all DEFENDANTS past and present non-exempt employees of DEFENDANTS employed in California during the period from April 2003 to the present who did not have their rates of overtime pay properly recorded and did not have accurate wage statements; Plaintiff also alleges a Subclass of all past and present non-exempt call center employees of DEFENDANTS employed in California from April 2003 through the present.
18. 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, including payroll records. Plaintiff is informed and believes and based thereon alleges that DEFENDANTS failed to (a) pay to Plaintiff and the class all overtime wages owed at the proper rate of overtime pay, (b) pay to Plaintiff and the class all final wages upon termination of employment, (c) keep proper payroll records in violation of Labor Code § 226, and (d) engaged in Unfair Business Practices, all in violation of IWC Wage Order No 7-2001.
19. Adequacy of Representation: The named Plaintiff is fully prepared to take all necessary steps to represent fairly and adequately the interests of the class defined above. Plaintiffs attorneys are ready, willing and able to fully and adequately represent the class and individual Plaintiff. Plaintiffs attorneys have prosecuted and settled wage-and-hour class actions in the past and currently have a number of wage-and-hour class actions pending in California courts.
20. DEFENDANTS uniformly administered a corporate policy, practice of failing to (a) pay to Plaintiff and the class all overtime wages owed at the proper rate of overtime pay, (b) pay to Plaintiff and the class all final wages upon termination of employment, (c) keep proper payroll records in violation of Labor Code § 226, and (d) engaged in Unfair Business Practices, all in violation of IWC Wage Order No 7-2001.
21. Plaintiff is informed and believes and based thereon alleges that DEFENDANTS, in violation of California Labor Code §§ 201 to 204, and 1194, respectfully, had a consistent and uniform policy, practice of willfully failing to comply with Labor Code § 203. Plaintiff 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.
22. Common Question of Law and Fact: There are predominant common questions of law and fact and a community of interest amongst Plaintiff and the claims of the class concerning DEFENDANTS failure to (a) pay to Plaintiff and the class all overtime wages owed at the proper rate of overtime pay, (b) pay to Plaintiff and the class all final wages upon termination of employment, (c) keep proper payroll records in violation of Labor Code § 226, and (d) engaged in Unfair Business Practices, all in violation of IWC Wage Order No 7-2001.
23. Typicality: The claims of Plaintiff are typical of the claims of all members of the class. Plaintiff is a member of the Class and Subclass and has suffered the alleged violations of California Labor Code §§ 201-204, 226, 1194 and IWC Wage Order No. 7-2001.
24. The California Labor Code and upon which Plaintiff bases his 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.
25. The nature of this action and the format of laws available to Plaintiff 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 and 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.
26. 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.
27. Such a pattern, practice and uniform administration of corporate policy regarding illegal employee compensation described herein is unlawful and creates an entitlement to recovery by the Plaitiffs and the class identified herein, in a civil action, for the unpaid balance of the full amount unpaid overtime, meal and break period premiums, and vested vacation wages, including interest thereon, applicable penalties, reasonable attorneys fees, and costs of suit according to the mandate of California Labor Code §§ 226 and 1194 and Code of Civil Procedure § 1021.5.
28. Proof of a common business practice or factual pattern, which the named Plaintiff experienced and is representative of, will establish the right of each of the members of the Plaintiff class to recovery on the causes of action alleged herein.
29. 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.
FIRST CAUSE OF ACTION
FAILURE TO PAY OVERTIME WAGES
(AGAINST ALL DEFENDANTS BY PLAINTIFF)
30. Plaintiff re-alleges and incorporates by reference paragraphs 1 through 29 as though fully set for herein.
31. This cause of action is brought pursuant to Labor Code § 1194, et seq., which provides that employees are entitled to overtime wages and compensation for work performed, and provides a private right of action for failure to pay legal overtime compensation for overtime work performed.
32. At all times relevant herein, DEFENDANTS were required to compensate its non-exempt, hourly employees for all overtime hours worked at the appropriate rate of overtime pay pursuant to California Labor Code § 1194 and IWC Wage Order No. 7.
33. As a pattern and practice, DEFENDANTS regularly required their non-exempt employees including Plaintiff and members of the class to work more than 8 hours per work day or more than 12 hours per day without the proper payment of all overtime wages earned and without the payment of the proper rate of overtime wages. Plaintiff and class members were not compensated at the appropriate rate of pay for all hours they were subject to the control of DEFENDANTS, including all time they were suffered or permitted to work.
34. As a pattern and practice, DEFENDANTS regularly failed to include earned commissions and/or earned bonuses and/or other earned non-discretionary incentive pay into the regular rate when calculating and paying Plaintiff and DEFENDANTS other non-exempt California employees proper compensation for daily and weekly overtime hours worked at the appropriate overtime rate.
35. As a pattern and practice DEFENDANTS required their Call Center Employees employed in California during the class period to work off-the-clock at the beginning of their shifts and/or at the end of their shifts without the payment of overtime wages and/or overtime wages at the appropriate rate of pay.
36. Plaintiff is informed and believes and based thereon alleges that DEFENDANTS policy and practice of requiring overtime work and not paying for said work according to the overtime mandates of California law is, and at all times herein mentioned was in violation of California Labor Code § 1194 and California Industrial Welfare Commission wage order(s). DEFENDANTS employment policies and practices wrongfully and illegally failed to compensate Plaintiff and the class for overtime compensation earned as required by California law.
37. The conduct of DEFENDANTS and their agents and employees as described herein was oppressive, fraudulent and malicious, done in conscious disregard of Plaintiffs and class members rights, and done by managerial employees of DEFENDANTS. Plaintiff and class members are thereby entitled to an award of punitive damages against DEFENDANTS, in an amount appropriate to punish and make an example of DEFENDANTS, and in an amount to conform to proof.
38. Plaintiff is informed and believes and based thereon alleges that DEFENDANTS willfully failed to pay employees proper compensation for all overtime hours worked. Plaintiffs are informed and believe and based thereon allege that DEFENDANTS willful failure to provide all overtime wages due and owing them upon separation from employment results in a continued payment of wages up to thirty (30) days from the time the wages were due. Therefore, Plaintiff and other members of the class who have separated from employment are entitled to compensation pursuant to Labor Code § 203.
39. 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 Plaintiff in a civil action, for the unpaid balance of the full amount of overtime premiums owing, including interest thereon, penalties, attorneys fees, and costs of suit according to the mandate of California Labor Code § 1194, et seq.
