`
`Case 5:22-cv-02642 Document 1 Filed 04/29/22 Page 1 of 31
`
`STAN S. MALLISON (Bar No. 184191)
`StanM@TheMMLawFirm.com
`HECTOR R. MARTINEZ (Bar No. 206336)
`HectorM@TheMMLawFirm.com
`TANIA FONSECA (Bar. No. 309927)
`Tfonseca@TheMMLawFirm.com
`MALLISON & MARTINEZ
`1939 Harrison Street, Suite 730
`Oakland, California 94612-3547
`Telephone: (510) 832-9999
`Facsimile: (510) 832-1101
`
`Attorneys for Plaintiffs
`
`
`IN THE UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`
`
`GELACIO LOPEZ and PATRICIA LIRA,
`individually and acting in the interest of other
`current and former employees,
`
`
`
`
`
`
`Plaintiffs,
`
`
`vs.
`
`
`GEMA BERRY FARMS, INC.
`a California Corporation; IVAN LOPEZ, an
`individual; and DOES 1 through 20, inclusive,
`
`
`
`Defendants.
`
`Case No.
`
`CLASS ACTION COMPLAINT FOR:
`
`1. Migrant and Seasonal Agricultural
`Worker Protection Act (AWPA);
`2. Failure to Provide Rest and Meal Periods
`or Pay Additional Wages in Lieu
`Thereof;
`3. Failure to Pay Minimum Wages;
`4. Failure to Pay Rest & Recovery and
`Other Nonproductive Time Separate
`From Piece-rate Compensation;
`5. Failure to Pay Overtime Premium
`Wages;
`6. Failure to Indemnify Employee for All
`Necessary Expenditures or Losses
`Incurred;
`7. Failure to Give Notice of Sick Leave and
`Provide Paid Sick Leave;
`8. Knowing and Intentional Failure to
`Comply with Itemized Employee Wage
`Statement Provisions
`9. Violation of Unfair Competition Law,
`Cal. Bus. & Prof. Code §§17200 et seq.
`
`REPRESENTATIVE NON-CLASS
`CLAIM
`10. Penalties Pursuant to the California
`Private Attorneys General Act, Labor
`Code §§2698 et seq.
`
`DEMAND FOR JURY TRIAL
`
`
`
`
`
`CLASS ACTION COMPLAINT – DEMAND FOR JURY TRIAL
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`29
`30
`31
`
`
`
`

`

`
`
`Case 5:22-cv-02642 Document 1 Filed 04/29/22 Page 2 of 31
`
`1.
`Plaintiffs GELACIO LOPEZ and PATRICIA LIRA, collectively referred to as
`"PLAINTIFFS", brings this action against GEMA BERRY FARMS, INC., IVAN LOPEZ, and
`DOES 1 through 20, inclusive, collectively “DEFENDANTS,” individually and on behalf of all other
`similarly situated individuals employed under common circumstances and facts. The allegations
`made in this complaint are based on knowledge of PLAINTIFFS GELACIO LOPEZ and PATRICIA
`LIRA, except those allegations made on information and belief, which are based on the investigation
`of their counsel.
`NATURE OF THE ACTION
`I.
`2.
`This is a Class Action pursuant to Federal Rule of Civil Procedure 23, and a collective
`action pursuant to the Migrant and Seasonal Agricultural Workers Protection Act (the “AWPA”).
`PLAINTIFFS brings this action on behalf of a class of workers currently or formerly employed by
`DEFENDANTS in California. PLAINTIFFS seeks to vindicate the rights afforded to workers under
`the AWPA, California law, including the California Labor Code and Wage Orders, and California’s
`unfair competition law (“UCL”), California Business & Professions Code sections 17200 et seq.
`3.
`This action arises out of the failure of DEFENDANTS’ failure to pay seasonal
`agricultural workers who harvest strawberries (“Field Workers”) all the wages owed to them due to
`unlawfully deducting the first box of picked strawberries from Field Workers who are late to work
`as a punitive and retaliatory measure; failing to pay for rest and recovery periods and other
`nonproductive time separate from any piece-rate compensation; failing to provide Field Workers
`with proper meal periods and second rest periods. As a result, DEFENDANTS fail to pay non-
`exempt Field Workers, including PLAINTIFFS and the Class, all wages owed to them upon
`discharge (including seasonal layoffs) or resignations in conformance with California law.
`4.
`DEFENDANTS have employed PLAINTIFFS and the Class directly and are sued as
`joint employers, agents and/or alter egos. DEFENDANTS are also sued as “persons,” pursuant to
`Labor Code §§ 558, 558.1, 18, and 2699 et seq., who violated or caused to be violated the Labor
`Code and other regulations governing wages, hours and conditions of employment. Liability under
`Labor Code §§558, 18, and 2699 et seq. does not require that DEFENDANTS be employers.
`4.
`PLAINTIFFS further alleges that DEFENDANT IVAN LOPEZ and is a “person
`
`
`
`- 2 -
`CLASS ACTION COMPLAINT – DEMAND FOR JURY TRIAL
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`29
`30
`31
`
`

`

`
`
`Case 5:22-cv-02642 Document 1 Filed 04/29/22 Page 3 of 31
`
`acting on behalf of an employer” within the meaning of Labor Code § 558.1 who violated or caused
`to be violated California Labor Code §§ 203, 226, 226.2 226.7, 1194, and 2802, as well as the
`provisions “regulating minimum wages or hours and days of work” as enumerated in IWC Wage
`Order 14. As such, Defendant IVAN LOPEZ may be held liable as an employer for such violations
`sustained by PLAINTIFFS and the Class that occurred after January 1, 2016, pursuant to Labor Code
`§ 558.1.
`5.
`PLAINTIFFS are ignorant of the true names or capacities of the DEFENDANTS sued
`herein under the fictitious names of DOES ONE through TWENTY, inclusive, and therefore sues
`those Defendants under such fictitious names. PLAINTIFFS will amend this complaint to allege the
`true names or capacities of these Defendants once they have been ascertained.
`6.
`PLAINTIFFS are informed and believes and thereon alleges that each DEFENDANT
`is responsible in some manner for the occurrences herein alleged, and that the damages herein alleged
`were actually and proximately caused by each DEFENDANT’S conduct.
`7.
`The core violations PLAINTIFFS alleges against DEFENDANTS for themselves,
`and the Class are: (1) failure to provide rest and meal periods or appropriately compensate employees
`in lieu thereof; (2) failure to pay minimum and premium overtime; (3) failure to pay compensate
`Field workers for rest and recovery period and other nonproductive time separate from any piece-
`rate compensation; (4) failure to reimburse employees for necessary expenses; (5) failure to pay all
`wages owed upon separation from employment; (6) and failure to provide accurate, itemized wage
`statements. Additional derivative violations are described below.
`8.
`DEFENDANTS have refused to pay the wages due and owed to PLAINTIFFS and
`Class members under the express provisions of the California Labor Code, which in turn has resulted
`in additional Labor Code violations entitling PLAINTIFFS and the Class to prompt payment of
`wages and penalties.
`9.
`PLAINTIFFS bring the final cause of action as a representative – non class – claim
`pursuant to the California Labor Code Private Attorneys General Act (“PAGA”), Labor Code
`§§2698 et seq. The PAGA does not require class certification in order to confer workforce-wide
`relief, provided that the administrative requirements are met. PLAINTIFFS have complied with the
`
`
`
`- 3 -
`CLASS ACTION COMPLAINT – DEMAND FOR JURY TRIAL
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`29
`30
`31
`
`

`

`
`
`Case 5:22-cv-02642 Document 1 Filed 04/29/22 Page 4 of 31
`
`PAGA’s prerequisite administrative requirements and, as such, now has a substantive right to stand
`in the shoes of the State of California and bring a PAGA enforcement action to recover penalties for
`the State and all current and former employees of DEFENDANTS, including PLAINTIFFS. As such,
`PLAINTIFFS wishes to pursue the PAGA claim as a non-class, representative claim, as expressly
`authorized by the plain language of the Act. In the alternative, however, PLAINTIFFS can pursue
`the PAGA claim as a class action.
`10.
`PLAINTIFFS, for themselves and the Class, also seek injunctive relief requiring
`DEFENDANTS to comply with all applicable California labor laws and regulations in the future and
`preventing DEFENDANTS from engaging in and continuing to engage in unlawful and unfair
`business practices. PLAINTIFFS also seeks declaratory relief enumerating DEFENDANTS’
`violations so that the DEFENDANTS and the general public will have clarity and guidance with
`regards to DEFENDANTS’ future employment practices.
`PARTIES
`II.
`11.
`PLAINTIFF GELACIO LOPEZ is a California resident. He was employed as a non-
`exempt Field Worker by DEFENDANTS at GEMA BERRY FARMS, INC. located in Salinas,
`California between February/March 2017, and December 2021. PLAINTIFF GELACIO LOPEZ is
`an aggrieved employee, within the meaning of the PAGA, who has been subjected to the violations
`and unlawful employment practices described herein, and who, as a result, has suffered injury in fact
`and has lost money or property.
`12.
`PLAINTIFF PATRICIA LIRA is a California resident. She was employed as a non-
`exempt employee by DEFENDANTS at GEMA BERRY FARMS, INC., located in Salinas,
`California between February/March 2001, and December 2021. PLAINTIFF PATRICIA LIRA is
`an aggrieved employee, within the meaning of the PAGA, who has been subjected to the violations
`and unlawful employment practices described herein, and who, as a result, has suffered injury in fact
`and has lost money or property.
`13.
`The following allegations as to DEFENDANTS are made on information and belief,
`and are likely to have evidentiary support after a reasonable opportunity for further investigation or
`discovery.
`
`
`
`- 4 -
`CLASS ACTION COMPLAINT – DEMAND FOR JURY TRIAL
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`29
`30
`31
`
`

`

`
`
`Case 5:22-cv-02642 Document 1 Filed 04/29/22 Page 5 of 31
`
`14.
`On information and belief, DEFENDANT GEMA BERRY FARMS, INC. is a
`California corporation that operates a strawberry farm business, employing PLAINTIFFS and the
`Class of non-exempt employees PLAINTIFFS seek to represent in this lawsuit. DEFENDANT
`GEMA BERRY FARMS, INC. does business in Salinas, California. The agent for service of process
`is Ivan Lopez located at 4316 Hartfield Court Westlake Village, CA 91361 but also works at the
`Salinas California location. Defendant GEMA BERRY FARMS, INC. is also liable under Labor
`Code § 558.1 for all violations that occurred after January 1, 2016.
`15.
`On information and belief, Defendant IVAN LOPEZ is a person who violated or
`caused the violations of the California Labor Code and provisions regulating hours and days of work
`as detailed in the applicable Industrial Welfare Commission Order. At all relevant times, IVAN
`LOPEZ has been an owner, director, and/or managing agent for GEMA BERRY FARMS, INC. who
`has had complete authority over all labor policies and practices, including those resulting in
`violations as described in this complaint; and he has actively violated or caused the violations alleged
`herein. Defendant IVAN LOPEZ is also liable under Labor Code § 558.1 for all violations that
`occurred after January 1, 2016.
`16.
`PLAINTIFFS are ignorant of the true names or capacities of the DEFENDANTS sued
`herein under the fictitious names DOES 1 through 20, inclusive, and therefore sues such Defendants
`under fictitious names. PLAINTIFFS will amend this complaint to allege the true names or capacities
`of these DEFENDANTS once they have been ascertained. PLAINTIFFS are informed and believe
`and thereon alleges that each DEFENDANT is responsible in some manner for the occurrences
`herein alleged, and that the damages herein alleged were actually and proximately caused by each
`DEFENDANT’S conduct.
`17.
`PLAINTIFFS are informed and believes and thereon alleges that at all times
`mentioned herein, DEFENDANTS, including Does, were acting as the agent of every other
`DEFENDANT, and all acts alleged to have been committed by any DEFENDANT were committed
`on behalf of every other Defendant; and, at all times mentioned herein, each alleged act was
`committed by each Defendant and/or agent, servant, or employee of each DEFENDANT, and each
`Defendant directed, authorized or ratified each such act. PLAINTIFFS are informed and believes
`
`
`
`- 5 -
`CLASS ACTION COMPLAINT – DEMAND FOR JURY TRIAL
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`29
`30
`31
`
`

`

`
`
`Case 5:22-cv-02642 Document 1 Filed 04/29/22 Page 6 of 31
`
`and thereon alleges that each DEFENDANT, including Does, was the agent, employee,
`coconspirator, business affiliate, subsidiary, parent entity, owner and/or joint venturer of each other
`Defendant; and, in causing the injuries herein alleged, each DEFENDANT was acting at least in part
`within the course and scope of such agency, employment, conspiracy, joint employership, alter ego
`status, and/or joint venture, and with the permission and consent of each of the other Defendants.
`JURISDICTION AND VENUE
`III.
`18.
`This Court has subject matter jurisdiction based on federal question jurisdiction
`pursuant to 28 U.S.C. § 1331 and 29 U.S.C. § 1854, covering claims arising under the Migrant and
`Seasonal Agricultural Worker Protection Act (“AWPA”), 29 U.S.C. § 1801 et seq.
`19.
`This Court has supplemental jurisdiction over the California state law and contract
`claims under 28 U.S.C. § 1367, because these claims are so related to the federal claims that they
`form part of the same case and controversy under Article III of the U.S. Constitution.
`20.
`This Court is empowered to grant declaratory relief pursuant to 28 U.S.C. § 2201.
`21.
`This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §
`1331 as it arises from violations of the Migrant and Seasonal Agricultural Worker Protection Act,
`29 U.S.C.A. § 1801 et seq.
`22.
`This Court has supplemental jurisdiction over the state law claims pursuant to 28
`U.S.C. § 1367(a), because these claims are so closely related to the federal law wage and hour claims
`that they form part of the same case or controversy under Article III of the United States Constitution.
`This Court is empowered to grant declaratory relief pursuant to 28 U.S.C. § 2201.
`23.
`Venue is proper in the United States District Court for the Northern District of
`California because the alleged unlawful employment practices were committed within Salinas
`California.
`FACTUAL ALLEGATIONS
`IV.
`24.
`This is a Class Action pursuant to Rule 23 of the Federal Rules of Civil Procedure to
`vindicate the rights afforded the class by the AWPA, California Labor Code and California Business
`and Professions Code §§ 17200 et seq., and is brought on behalf of PLAINTIFFS and a Class
`comprised of all current and former non-exempt employees of DEFENDANTS. The claims of this
`
`
`
`- 6 -
`CLASS ACTION COMPLAINT – DEMAND FOR JURY TRIAL
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`29
`30
`31
`
`

`

`
`
`Case 5:22-cv-02642 Document 1 Filed 04/29/22 Page 7 of 31
`
`b.
`
`c.
`
`lawsuit spring from a pattern of EMPLOYER misconduct and wrongdoing that is a characteristic of
`the labor system utilized by DEFENDANTS, where unpaid and improperly paid labor, as alleged
`herein, is a common business practice, and where the employer externalizes the cost of business
`expenditures upon DEFENDANTS’ employees. DEFENDANTS’ actions in this case demonstrate a
`systematic disregard for the rights afforded to PLAINTIFFS and the Class under California wage
`and hour law. The following paragraphs detail specific violations of law giving rise to this action.
`25.
`For at least four years prior to the filing of this action and through to the present
`(liability period for the UCL cause of action), DEFENDANTS have maintained and enforced against
`PLAINTIFFS and the Class the following unlawful practices and policies in violation of California
`wage and hour laws, including but not limited to:
`a.
`failing to pay rest and recovery period and other nonproductive time separate
`from any piece-rate compensation;
`failing to document on itemized statements the total hours of compensable
`rest and recovery periods and nonproductive time, the rate of compensation,
`and the gross wages paid for those periods and time during the pay period.
`failing to provide Class members, including PLAINTIFFS, rest periods of at
`least (10) minutes per four (4) hours worked, or major fraction thereof, and
`failing to pay such employees one (1) hour of additional wages at the
`employees’ regular rate of compensation for each workday that the rest period
`was not provided, in violation of California law and public policy;
`requiring Class members, including PLAINTIFFS, to work at least five (5)
`hours without a timely, thirty-minute, uninterrupted meal period, and failing
`to pay such employees one (1) hour of additional wages at the employees’
`regular rate of compensation for each workday that the meal period was not
`provided, in violation of California law and policy;
`failing to pay minimum and overtime premium wages to PLAINTIFFS and
`the Class by providing piece-rate compensation and deducting the first box of
`picked strawberries from Field Workers who are late to work as a punitive
`
`c.
`
`d.
`
`
`
`- 7 -
`CLASS ACTION COMPLAINT – DEMAND FOR JURY TRIAL
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`29
`30
`31
`
`

`

`g.
`
`h.
`
`i.
`
`
`
`Case 5:22-cv-02642 Document 1 Filed 04/29/22 Page 8 of 31
`
`e.
`
`f.
`
`and retaliatory measure.
`failing to provide Class members, including PLAINTIFFS, with accurate
`itemized wage statements in violation of California law and public policy;
`failing to reimburse Class members, including PLAINTIFFS, for expenses
`incurred purchasing gloves to carry out their job duties, in violation of
`California law and public policy;
`failing to pay to Class members, including PLAINTIFFS, all wages owed
`including those for rest and meal periods, rest and recovery time and all piece
`rate work, as detailed above upon separation from employment – whether
`voluntary or not – in violation of California law and policy;
`failing to create or maintain accurate time-keeping records for Class members,
`including PLAINTIFFS, resulting in failure to accurately pay wages owed and
`provide accurate itemized wage statements, in violation of California law and
`public policy; and
`engaging in unfair competition in violation of the UCL, Bus. & Prof. §§17200
`et seq., as a result of failing to pay wages owed and generate and maintain
`accurate records as described above.
`26.
`On information and belief, DEFENDANTS were on notice of the improprieties
`alleged and/or has intentionally, deliberately, and willfully carried out these unlawful and unfair
`business practices.
`27.
`DEFENDANTS have made it difficult to account with precision for the unlawfully
`withheld wages due to PLAINTIFFS and the Class during all relevant times herein, because
`DEFENDANTS did not fully implement and preserve a record-keeping method to accurately record
`all hours worked and wages earned by its employees, or manipulated such record-keeping method
`for DEFENDANTS’ advantage, in violation of California Labor Code §§226 and 1174(d), and
`Industrial Welfare Commission Wage Order 14.
`28.
`PLAINTIFFS alleges that DEFENDANTS are liable to them and the Class for the
`violations described herein as employers and/or “persons” who violated the Labor Code and IWC
`
`
`
`- 8 -
`CLASS ACTION COMPLAINT – DEMAND FOR JURY TRIAL
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`29
`30
`31
`
`

`

`
`
`Case 5:22-cv-02642 Document 1 Filed 04/29/22 Page 9 of 31
`
`regulations or caused such violations. Labor Code §§558 & 2698 et seq.
`CLASS ACTION ALLEGATIONS
`V.
`29.
`PLAINTIFFS bring this action on behalf of themselves and all similarly situated
`workers pursuant to the Federal Rules of Civil Procedure 23 because there is a well-defined
`community of interest in the litigation and the proposed class is easily ascertainable. PLAINTIFFS
`seek to represent the following class:
`
`All persons who are employed or have been employed by DEFENDANTS in the State
`of California who, within four (4) years of the filing of this Complaint, have worked
`as non-exempt employees.
`30.
`On information and belief, the legal and factual issues are common to and affected
`all Class Members. PLAINTIFFS reserves the right to amend or modify the class description with
`greater specificity or further division into subclasses or limitation to particular issues.
`A. Numerosity
`
`31.
`The potential members of the Class as defined are so numerous that joinder of all the
`members of the Class is impracticable. While the precise number of Class Members has not been
`determined, PLAINTIFFS are informed and believe that DEFENDANTS during the relevant time
`periods likely employed more than one hundred Field Workers at any given time in California who
`are, or have been, affected by DEFENDANTS’ unlawful practices as alleged herein. With turnover,
`the size of the class could potentially exceed hundreds, if not thousands, of members.
`32.
`Upon
`information and belief, PLAINTIFFS alleges
`that DEFENDANTS’
`employment records would provide information as to the number and location of all Class Members.
`Joinder of all members of the proposed Class is not practicable.
`B. Commonality
`33.
`There are questions of law and fact common to the Class predominating over any
`questions affecting only individual Class Members. These common questions of law and fact
`include, without limitation:
`a.
`Whether DEFENDANTS violated §§ 17200 et seq. of the Business and
`Professions Code by the violation of California labor laws;
`
`
`
`- 9 -
`CLASS ACTION COMPLAINT – DEMAND FOR JURY TRIAL
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`29
`30
`31
`
`

`

`
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`29
`30
`31
`
`Case 5:22-cv-02642 Document 1 Filed 04/29/22 Page 10 of 31
`
`b.
`
`c.
`
`d.
`
`e.
`
`f.
`
`g.
`
`h.
`
`i.
`
`Whether DEFENDANTS violated the California Labor Code and Wage
`Orders as a result of the allegations described in this complaint;
`Whether DEFENDANTS violated the California Labor Code and Wage
`Orders by compensating PLAINTIFFS and other Class Members at hourly
`wage rates below (1) the minimum wage rate and (2) double minimum wage
`rate;
`Whether DEFENDANTS violated the California Labor Code and Wage
`Orders by compensating PLAINTIFFS and other Class Members at rates
`below the required overtime rate;
`
`Whether DEFENDANTS violated the California Labor Code and Wage
`Orders by failing to schedule and provide lawful rest periods or discouraging
`PLAINTIFFS and Class Members from taking them, while failing to
`compensate said employees for missed rest periods, and failing to pay
`premium wages in lieu thereof, in violation of California law;
`Whether DEFENDANTS violated the California Labor Code and Wage
`Orders by failing to provide lawful meal periods or discouraging
`PLAINTIFFS and Class Members from taking them, and failing to pay
`premium wages in lieu thereof, in violation of California law;
`Whether DEFENDANTS violated the California Labor Code and Wage
`Orders by failing to pay PLAINTIFFS and other Class Members for rest and
`recovery period and other nonproductive time separate from any piece-rate
`compensation;.
`Whether DEFENDANTS violated the California Labor Code and Wage
`Orders by failing to, among other things, maintain accurate records of
`PLAINTIFFS and other Class Members’ earned wages, work periods, hours
`worked and wages earned;
`Whether DEFENDANTS violated the California Labor Code and Wage
`Orders by failing to pay all earned wages due and/or premium wages due and
`
`- 10 -
`CLASS ACTION COMPLAINT – DEMAND FOR JURY TRIAL
`
`

`

`
`
`Case 5:22-cv-02642 Document 1 Filed 04/29/22 Page 11 of 31
`
`j.
`
`k.
`
`owing at the time that the employment of any Class Members, including
`PLAINTIFFS, ended;
`Whether DEFENDANTS violated the California Labor Code and Wage
`Orders by failing to,
`indemnify PLAINTIFFS and other Class Members for
`
`all necessary business expenditures, including glove expenses; and
`Whether PLAINTIFFS and other Class Members are entitled to restitution,
`wages, statutory penalties, premium wages, declaratory, injunctive and
`declaratory relief, attorneys’ fees, interest, and costs, and other relief pursuant
`to California Labor Code and Wage Orders, Business and Professions Code
`§§17200 et seq.
`
`34.
`The potential members of the Class as defined are so numerous that joinder of all the
`members of the Class.
`35.
`There are no individualized factual or legal issues for the court to resolve that would
`prevent this case from proceeding as a class action.
`C. Typicality
`36.
`The claims of the named PLAINTIFFS are typical of the claims of the Class.
`PLAINTIFFS and all members of the Class sustained injuries and damages arising out of and caused
`by DEFENDANTS’ common course of conduct in violation of California laws, regulations, and
`statutes as alleged herein.
`D. Adequacy of Representation
`37.
`PLAINTIFFS will fairly and adequately represent and protect the interests of the
`members of the Class. PLAINTIFFS has no interests which are adverse to the Class. Counsel who
`represent PLAINTIFFS is competent and experienced in litigating large employment class actions.
`E. Superiority of Class Action
`38.
`A class action is superior to other available means for the fair and efficient
`adjudication of this controversy. Individual joinder of all Class Members is not practicable, and
`questions of law and fact common to the Class predominate over any questions affecting only
`individual members of the Class. Each member of the Class has been damaged and is entitled to
`recovery by reason of DEFENDANTS’ unlawful policy and/or practices described herein.
`39.
`Class action treatment will allow those similarly situated persons to litigate their
`
`
`
`- 11 -
`CLASS ACTION COMPLAINT – DEMAND FOR JURY TRIAL
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`29
`30
`31
`
`

`

`
`
`Case 5:22-cv-02642 Document 1 Filed 04/29/22 Page 12 of 31
`
`claims in the manner that is most efficient and economical for the parties and the judicial system.
`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.
`VI. CLAIMS FOR RELIEF
`
`
`
`FIRST CLAIM FOR RELIEF
`
`VIOLATION OF THE MIGRANT AND SEASONAL AGRICULTURAL WORKER
`PROTECTION ACT (AWPA)
`29 U.S.C.A. § 1801 ET SEQ.
`(AGAINST ALL DEFENDANTS)
`
`40.
`PLAINTIFFS re-allege and incorporates the allegations of the above paragraphs as if
`fully stated herein.
`41.
`DEFENDANTS intentionally violated PLAINTIFFS’ and the Class’ rights under
`AWPA by:
`
`a. providing false and misleading information regarding the terms and
`conditions of employment of PLAINTIFFS, in violation of 29 U.S.C. §
`1831(e);
`b. violating the terms of the working arrangement made with PLAINTIFFS in
`California, in violation of 29 U.S.C. § 1832(c); these working arrangements
`are contained in the IWC Wage Orders which are required to be and, actually
`are posted and communicated by DEFENDANTS to PLAINTIFFS as
`required by the IWC Wage Orders;
`c. failing to pay wages when due for unpaid regular and overtime hours worked,
`for missed or non-compliant meal and rest periods in violation of 29 U.S.C. §
`1832(a).
`d. failing to provide workers with accurate itemized written statements which
`include the correct number of hours worked; the correct total pay period
`earnings; and the correct net pay, in violation of 29 U.S.C. § 1831(c).
`42.
`PLAINTIFFS allege that DEFENDANTS communicated the terms of employment
`with the Class by posting IWC Wage Orders on the job site which enumerated specific obligations
`of the employer with regard to working conditions required by state law, and in particular with regard
`to: the payment of minimum wages; payment of overtime premium wages; recording keeping
`requirements; provision of meal periods; provision of rest periods; and application of penalties. The
`
`
`
`- 12 -
`CLASS ACTION COMPLAINT – DEMAND FOR JURY TRIAL
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`29
`30
`31
`
`

`

`
`
`Case 5:22-cv-02642 Document 1 Filed 04/29/22 Page 13 of 31
`
`DEFENDANTS also communicated a regular and overtime wage rate to employees in a variety of
`ways. This regular and overtime wage rate was not complied with due to the underpayments
`described in this complaint. These terms constituted the communicated working arrangement with
`these employees, which was systemically violated.
`43.
` For each violation of AWPA, each Class Member is entitled to recover his or her
`actual damages or up to $500 per violation in statutory damages. 29 U.S.C. § 1854.
`44. WHEREFORE, PLAINTIFFS and the Class request relief as described herein and
`
`below.
`
`
`
`SECOND CLAIM FOR RELIEF
`FAILURE TO PROVIDE COMPENSATION FOR REST AND RECOVERY AND OTHER
`NONPRODUCTIVE TIME SEPARATE FROM ANY PIECE-RATE COMPENSATION
`CALIFORNIA LABOR CODE §§226.2
`(AGAINST ALL DEFENDANTS)
`
`PLAINTIFFS incorporate all preceding paragraphs as though fully set forth herein.
`45.
`46.
`PLAINTIFFS and, on information and belief, the Class were compensated on a piece-
`rate basis during all pay periods.
`47.
` PLAINTIFFS and, on information and belief, the Class were not compensated for
`rest and recovery periods and other nonproductive time separate from any piece-rate compensation.
`48.
`DEFENDANTS failed to include on itemized statements, the total hours of
`compensable rest and recovery periods, the rate of compensation, and gross wages paid for those
`periods during the pay period.
`49.
`DEFENDANTS failed to include on itemized statements, the total hours of other
`nonproductive time, the rate of compensation, and gross wages paid for that time during the pay
`period.
`50.
`DEFENDANTS failed to compensate PLAINTIFFS and on information and belief,
`the Class, for rest and recovery periods at a regular hourly rate no less than the higher of an average
`hourly rate, or the applicable minimum wage.
`California Labor Code §226.7 states:
`51.
`
`(a) For employees compensated on a piece-rate basis during a pay
`period, the following shall apply for that pay period:
`
`(1) Employees shall be compensated for rest and recovery periods and
`other nonproductive time separate from any piece-rate compensation.
`
`
`
`- 13 -
`CLASS ACTION COMPLAINT – DEMAND FOR JURY TRIAL
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`29
`30
`31
`
`

`

`
`
`Case 5:22-cv-02642 Document 1 Filed 04/29/22 Page 14 of 31
`
`(2) The itemized statement required by subdivision (a) of Section
`226 shall, in addition to the other items specified in that subdivision,
`separately state the following, to which the provisions of Section
`226 shall also be applicable:
`
`(A) The total hours of compensable rest and recovery periods, the rate
`of compensation, and the gross wages paid for those periods during
`the pay period.
`
`for other
`for employers paying compensation
`(B) Except
`nonproductive time in accordance with paragraph (7), the total hours
`of other nonproductive time, as determined under paragraph (5), the
`rate of compensation, and the gross wages paid for that time during
`the pay period.
`
`(3)(A) Employees shall be compensated for rest and recovery periods
`at a regular hourly rate that is no less than the higher of:
`
`(i) An average hourly rate determined by dividing the total
`compensation for the workweek, exclusive of compensation for rest
`and recovery periods and any premium compensation for overtime, by
`the total hours worked during the workweek, exclusive of rest and
`recovery periods.
`
`(ii) The applicable minimum wage.
`52.
`By failing to keep adequate time records required by §§226.2 of the Labor Code,
`DEFENDANTS have injured PLAINTIFFS and the Class and made it difficult to calculate rest and
`recovery and nonproductive time compensation due to PLAINTIFFS and the Class.
`53.
`As a result of the unlawful acts of DEFENDANTS, PLAINTIFFS and the Class have
`been deprived of wages in amounts to be determined at trial, and are entitled to recovery of such
`amounts, plus interest and penalties thereon, attorneys' fees, and costs, under Labor Code §§203,
`226, 226.7, 512, 1194, and Wage Order 14.
`54. WHEREFORE, PLAINTIFFS and the Cl