Gardner et al v. Shell Oil Company et al

Filing 132

ORDER Granting 131 Stipulation for Plaintiffs to File Third Amended Complaint for Settlement Purposes. Signed by Judge Claudia Wilken on 12/22/2011. (ndr, COURT STAFF) (Filed on 12/22/2011)

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JAY SMITH (CA Bar No. 166105)
(Email: [e-mail])
LINDA S. FANG (CA Bar No. 240245)
(Email: [e-mail])
GILBERT & SACKMAN
A LAW CORPORATION
3699 Wilshire Boulevard, Suite 1200
Los Angeles, California 90010
Tel: [phone], Fax: [phone]
RICHARD P. ROUCO (pro hac vice)
(Email: [e-mail])
QUINN, CONNOR, WEAVER, DAVIES & ROUCO
2700 Highway 280 East, Suite 380
Birmingham, Alabama 35223
Tel: [phone], Fax: [phone]

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Attorneys for Plaintiffs David Gardner, Steve Mattern,
Brian Cerri, and William Sullivan
ANGEL GOMEZ (CA Bar No. 74476)
(Email: [e-mail])
DEANNA BALLESTEROS (CA Bar No. 159079)
(Email: [e-mail])
EPSTEIN BECKER & GREEN, P.C.
1925 Century Park East, Suite 500
Los Angeles, California 90067-2506
Tel: [phone], Fax: [phone]

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Attorneys for Defendants Shell Oil Company, Shell Oil Products
Company LLC, and Equilon Enterprises LLC dba Shell Oil Products US

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA – OAKLAND DIVISION

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DAVID GARDNER, STEVE MATTERN, BRIAN
CERRE, and WILLIAM SULLIVAN, individually
and on behalf of all similarly situated current and
former employees,

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Plaintiffs,
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v.

Case No. C 09-05876 CW (DMR)
Assigned to the Honorable Claudia Wilken
STIPULATION AND PROPOSED ORDER
FOR PLAINTIFFS TO FILE THIRD
AMENDED COMPLAINT FOR
SETTLEMENT PURPOSES

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SHELL OIL COMPANY, SHELL OIL
PRODUCTS COMPANY LLC, and EQUILON
ENTERPRISES LLC dba SHELL OIL
PRODUCTS US and DOES 1 through 20,
inclusive,

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Defendants.
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Case No. C 09-05876 CW (DMR)
STIPULATION FOR PLAINTIFFS TO FILE THIRD AMENDED COMPLAINT FOR SETTLEMENT PURPOSES

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Pursuant to Local Rule 7-12 and Federal Rule of Civil Procedure 15, Plaintiffs David Gardner,

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Steve Mattern, Brian Cerri, and William Sullivan, and Defendant Equilon Enterprises LLC dba Shell Oil

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Products US (“SOPUS”) (collectively, “the Parties”), by and through their undersigned counsel, hereby

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stipulate as follows:

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WHEREAS, on November 17, 2009, Plaintiffs brought this action on behalf of current and former
shift employees who have worked at the Martinez refinery owned by SOPUS;

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WHEREAS, the Parties have reached a settlement in principle, which, in addition to current and

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former shift employees at the Martinez refinery, includes current and former employees of four additional

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work sites owned (or formerly owned) by SOPUS or owned (or operated) by two affiliated entities;

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WHEREAS, the Parties would like to amend the operative complaint in this action to expand the
definition of the putative class, as set forth above, and include the following parties and work sites:

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1.

Two additional defendants – CRI U.S. LP and Shell Pipeline Company LP;

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2.

Three additional plaintiffs – Mark Landre, Lawrence Long, and Cheri Davidson; and

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3.

Four additional work sites – the Los Angeles refinery, Carson Terminal facility, and two

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Criterion Catalyst plants.

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WHEREAS, the Parties agree to dismiss Shell Oil Company and Shell Oil Products Company

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LLC without prejudice and the dismissed and dismissing parties will bear their own attorneys’ fees and

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costs with regard to their claims against each other only; and

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WHEREAS, the Parties agree that it is in the interest of judicial economy and the preservation of

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the Parties’ resources to add these parties and putative class members to this action for the purposes of

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settlement.

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Case No. C 09-05876 CW (DMR)
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STIP. AND [PROPOSED] ORDER FOR PLAINTIFFS TO FILE THIRD AMENDED COMPLAINT FOR SETTLEMENT PURPOSES

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NOW, THEREFORE, the Parties agree and stipulate to request that the Court sign and enter the
attached Order permitting and directing the following actions:
1.

Plaintiffs shall be permitted to file a Third Amended Complaint in substantially the same

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form as attached hereto as Exhibit 1, within one week of an Order approving this

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stipulation;

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2.

Plaintiffs shall dismiss Shell Oil Company and Shell Oil Products Company LLC from the

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action without prejudice and the dismissed and dismissing parties will bear their own

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attorneys’ fees and costs with regard to their claims against each other only; and

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3.

Defendants shall respond to the third amended complaint within two weeks of the filing of
the third amended complaint.

IT IS SO STIPULATED.
Dated: December __, 2011

GILBERT & SACKMAN, A Law Corporation

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By:

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/s/ Linda S. Fang
Jay Smith
Linda S. Fang

Attorneys for Plaintiffs David Gardner, Steve Mattern, Brian
Cerri, and William Sullivan

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Dated: December __, 2011

EPSTEIN BECKER & GREEN, P.C.

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By:
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/s/ Angel Gomez
Angel Gomez

Attorneys for Defendants Shell Oil Company, Shell Oil
Products Company LLC, and Equilon Enterprises LLC dba
Shell Oil Products US

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[PROPOSED] ORDER
PURSUANT TO STIPULATION ON PAGES 1-2, ABOVE, IT IS SO ORDERED.
12/22/2011
Dated: ______________________________

____________________________________
Hon. Claudia Wilken
United States District Judge

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Case No. C 09-05876 CW (DMR)
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STIP. AND [PROPOSED] ORDER FOR PLAINTIFFS TO FILE THIRD AMENDED COMPLAINT FOR SETTLEMENT PURPOSES

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CERTIFICATE OF SERVICE

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I, Linda S. Fang, certify that on December 21, 2011, the foregoing document entitled:

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STIPULATION AND PROPOSED ORDER FOR PLAINTIFFS TO FILE
THIRD AMENDED COMPLAINT FOR SETTLEMENT PURPOSES

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was filed electronically in the Court’s ECF; thereby upon completion the ECF system automatically
generated a “Notice of Electronic Filing” (“NEF”) as service through CM/ECF to registered e-mail
addresses of parties of record in the case, in particular on the following:

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Angel Gomez
[e-mail]

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Deanna Ballesteros
[e-mail]

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I declare under penalty of perjury under the laws of the State of California that the foregoing is
true and correct. Executed on December 21, 2011, at Los Angeles, California.

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/s/ Linda S. Fang
Linda S. Fang

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Case No. C 09-05876 CW (DMR)
CERTIFICATE OF SERVICE

Exhibit 1

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JAY SMITH (CA Bar No. 166105)
(Email: [e-mail])
LINDA S. FANG (CA Bar No. 240245)
(Email: [e-mail])
GILBERT & SACKMAN
A LAW CORPORATION
3699 Wilshire Boulevard, Suite 1200
Los Angeles, California 90010
Tel: [phone]
Fax: [phone]

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RICHARD P. ROUCO (pro hac vice)
(Email: [e-mail])
QUINN, CONNOR, WEAVER, DAVIES & ROUCO
2700 Highway 280 East, Suite 380
Birmingham, Alabama 35223
Tel: [phone]
Fax: [phone]

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Attorneys for Plaintiffs David Gardner, Steve Mattern, Brian Cerri,
William Sullivan, Mark Landre, Lawrence Long, and Cheri Davidson

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Deleted: and

IN THE UNITED STATES DISTRICT COURT

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Deleted: e

FOR THE NORTHERN DISTRICT OF CALIFORNIA – OAKLAND DIVISION

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DAVID GARDNER, STEVE MATTERN, BRIAN
CERRI, WILLIAM SULLIVAN, MARK
LANDRE, LAWRENCE LONG, and CHERI
DAVIDSON individually and on behalf of all
similarly situated current and former employees,

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Plaintiffs,

Case No. C 09-05876 CW
Deleted: E

CLASS ACTION

Deleted: and

THIRD AMENDED CLASS ACTION
COMPLAINT FOR DAMAGES,
INJUNCTIVE RELIEF, RESTITUTION,
ATTORNEYS’ FEES, AND COSTS OF SUIT

Deleted: SECOND

v.
1.

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EQUILON ENTERPRISES LLC dba SHELL OIL
PRODUCTS US, SHELL PIPELINE COMPANY
LP, and CRI U.S. LP,

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Defendants.

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2.
3.

Failure to Provide Meal Periods (Lab.
Code §§ 226.7, 512);
Failure to Pay All Wages Due at the Time
of Termination (Lab. Code §§ 201, 202,
203);
Violation of the California Unfair
Competition Law (Bus. & Prof. Code
§ 17200 et seq.)

Deleted: SHELL OIL COMPANY, SHELL OIL
PRODUCTS COMPANY LLC, and
Deleted: and DOES 1 through 10, inclusive,

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INTRODUCTION
1.

Plaintiffs David Gardner, Steve Mattern, Brian Cerri, William Sullivan, Mark Landre,

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Lawrence Long, and Cheri Davidson (“Named Plaintiffs”) bring this action against Defendants Equilon

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Enterprises LLC dba Shell Oil Products US (“SOPUS”), Shell Pipeline Company LP (“Shell Pipeline”),

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and CRI U.S. LP (“Criterion”), alleging unfair business practices and violations of the California Labor

Deleted: Shell Oil Company, Shell Oil Products
Company LLC, and

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THIRD AMENDED CLASS ACTION COMPLAINT

Deleted: collectively, “Shell”, “Defendants”, or
“Shell Defendants” and other as of yet unnamed
Defendants

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Code. Named Plaintiffs bring this action individually and as a proposed class action on behalf of

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similarly situated current and former employees who have been employed by one or more of the

Deleted: Martinez, California

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Defendants at the oil refinery and distribution facilities located in or around Martinez, California

Deleted: facility

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(“Martinez refinery”), oil refinery and distribution facilities located in or around Wilmington, California

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(“Los Angeles refinery”), shipping and storage terminal facilities located in or around Carson, California

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(“Carson Terminal facility”), and two catalyst production plants located in or around Martinez and

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Pittsburg, California (collectively, “Criterion Catalyst plants”).

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2.

Named Plaintiffs seek class-wide relief under California law for Defendants’ breach of

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their legal obligations to provide meal periods and to pay all wages due at the time of termination,

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pursuant to California Labor Code §§ 201, 202, 203, 204, 226.3, 226.7, and 512, and California

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Industrial Welfare Commission Wage Order No. 1-2001 (“Wage Order 1-2001”), to employees at the

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Martinez refinery, Los Angeles refinery, Carson Terminal facility, and Criterion Catalyst plants.

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3.

Deleted: facility

Named Plaintiffs, suing on behalf of themselves, the putative class members, and the

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general public, also seek restitution and injunctive relief under California law for Defendants’ unlawful,

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unfair, and fraudulent business practices which have deprived their employees of their rights under

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California labor laws and regulations, in order to reduce its payroll costs and increase profits, in

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violation of applicable laws.

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THE PARTIES
4.

Named Plaintiff David Gardner is, and at all relevant times was, a competent adult

residing in the State of California.
5.

Named Plaintiff Steve Mattern is, and at all relevant times was, a competent adult

residing in the State of California.
6.

Named Plaintiff Brian Cerri is, and at all relevant times was, a competent adult residing

Deleted: Contra Costa County,

in the State of California.
7.

Named Plaintiff William Sullivan is, and at all relevant times was, a competent adult

residing in the State of California.
8.

Deleted: e

Named Plaintiff Mark Landre is, and at all relevant times was, a competent adult residing

in the State of California.
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THIRD AMENDED CLASS ACTION COMPLAINT

Deleted: Contra Costa County, California

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9.

Named Plaintiff Lawrence Long is, and at all relevant times was, a competent adult

residing in the State of California.
10.

Named Plaintiff Cheri Davidson is, and at all relevant times was, a competent adult

residing in the State of California.
11.

Named Plaintiffs are and have been employed by one or more of the Defendants within

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the State of California and are “employees” as defined in Wage Order 1-2001. Named Plaintiffs

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currently are or were employed by Defendants in California.

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12.

individuals (the “putative class members”) (collectively, “Plaintiffs”):

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All current and former shift employees of Defendants Equilon Enterprises LLC
dba Shell Oil Products US, Shell Pipeline Company LP, or CRI U.S. LP who
worked at least one 8- or 12-hour shift since April 25, 2004, at the Martinez
refinery or the Criterion Catalyst plants in Martinez or Pittsburg, California, or
who worked at least one 8- or 12-hour shift between April 25, 2004 and May 10,
2007 at the Los Angeles refinery, or who worked at least one 12-hour shift since
January 1, 2007, at the Carson Terminal facility.

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Named Plaintiffs bring this action individually and on behalf of the following class of

13.

Defendant SOPUS is a corporation doing business in California and is a “person” as

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defined by California Labor Code § 18 and by California Business and Professions Code § 17201.

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Defendant SOPUS is an “employer” as that term is used in the California Labor Code and Wage Order

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1-2001.

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14.

Defendant Shell Pipeline is a corporation doing business in California and is a “person”

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as defined by California Labor Code § 18 and by California Business and Professions Code § 17201.

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Defendant Shell Pipeline is an “employer” as that term is used in the California Labor Code and Wage

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Deleted: as shift employees at
Deleted: ’ facility located
Deleted: Martinez,
Deleted: Named Plaintiffs currently reside in the
State of California.
Deleted: Shell Oil Company, Shell Oil Products
Company LLC, and/or
Deleted: 8-hour, 10-hour,
Deleted: , or longer

Deleted: ¶
<#>Defendant Shell Oil Company is a corporation
doing business in California and is a “person” as
defined by California Labor Code § 18 and by
California Business and Professions Code
§
17201. Defendant Shell Oil Company is an
“employer” as that term is used in the California
Labor Code and Wage Order 1-2001.¶
<#>Defendant Shell Oil Products Company LLC is a
corporation doing business in California and is a
“person” as defined by California Labor Code § 18
and by California Business and Professions Code §
17201. Defendant Shell Oil Products LLC is an
“employer” as that term is used in the California
Labor Code and Wage Order 1-2001.¶

Order 1-2001.

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15.

Deleted: Equilon Enterprises LLC
Deleted: Equilon Enterprises LLC

Defendant Criterion is a corporation doing business in California and is a “person” as

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defined by California Labor Code § 18 and by California Business and Professions Code § 17201.

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Defendant Criterion is an “employer” as that term is used in the California Labor Code and Wage Order

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1-2001.

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16.

Defendant SOPUS has owned and/or operated the Martinez refinery, which includes an

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oil refinery and distribution facilities located in or around Martinez, California, from at least April 25,

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2004 to the present. Defendant SOPUS owned and/or operated the Los Angeles refinery, which includes

Deleted: The Shell
Deleted: s
Deleted: collectively
Deleted: facility

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THIRD AMENDED CLASS ACTION COMPLAINT

Deleted: , which are all

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an oil refinery and distribution facilities located in or around Wilmington, California, from at least April

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25, 2004 until May 10, 2007. Defendant Shell Pipeline has owned and/or operated the Carson Terminal

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facility located in or around Carson, California, from at least January 1, 2007 to the present. Defendant

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Criterion has owned and/or operated the Criterion Catalyst plants, located in Martinez and Pittsburg,

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California, from at least April 25, 2004 to the present.

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17.

Named Plaintiffs are informed and believe and thereupon allege that, at all relevant times,

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Defendants and each of them, directly or indirectly, or through an agent or any other person, employed

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and/or exercised control over the wages, hours, and/or working conditions of Named Plaintiffs and

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Deleted: Plaintiffs are ignorant of the true names
and capacities of Defendants sued herein as Does 1
thought 10, inclusive, and therefore sue these
Defendants by such fictitious names. Plaintiffs will
amend this Complaint to allege Doe Defendants’ true
names and capacities when ascertained.¶

putative class members, and that Defendants and each of them were the joint employers of Named

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Plaintiffs and putative class members and/or alter egos of each other.

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18.

Venue is proper based on the location of work performed by Defendants in Contra Costa

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County, the location of the Martinez refinery and the Criterion Catalyst plants in Contra Costa County,

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the performance of various contracts pertaining to working conditions at the Martinez refinery, Criterion

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Catalyst plants, and Carson Terminal facility by Defendants in Contra Costa County, as well as the

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location of the commission of the acts alleged herein in Contra Costa County. The relief requested is

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Deleted: Defendants’

within the jurisdiction of this Court.

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Deleted: facility

FACTUAL ALLEGATIONS

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19.

A class action complaint was filed against Defendant SOPUS and other defendants in Los

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Angeles County Superior Court on April 25, 2008, alleging the same unfair business practices and

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violations of the California Labor Code on behalf of a larger class, which included the narrower class

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proposed in this complaint. Class certification was denied in that case on August 21, 2009. Because the

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filing of the class action complaint equitably tolled the statute of limitations for members of the putative

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class in that case, the statutory period for this action runs from April 25, 2004, four years prior to the

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filing of the previous class action complaint in Los Angeles County Superior Court, to the present.

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20.

Between April 25, 2004 and the present, Defendants SOPUS and Criterion have

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employed Named Plaintiffs and putative class members as “shift employees” (as opposed to “day

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employees”) at the Martinez facility, Carson Terminal facility, and Criterion Catalyst plants. Defendant

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THIRD AMENDED CLASS ACTION COMPLAINT

Deleted: members
Deleted: in

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SOPUS also employed putative class members as “shift employees” (as opposed to “day employees”) at

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the Los Angeles refinery between April 25, 2004 and May 10, 2007.

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21.

Throughout the relevant statutory period, Defendants uniformly required Named

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Plaintiffs and putative class members to remain on duty throughout their shifts. Plaintiffs and putative

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class members are not, among other things, allowed to leave the work site during their shifts, and they

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are also required to remain in their work areas unless given specific permission to leave. Additionally,

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Named Plaintiffs and putative class members are required to perform work duties, monitor the operation

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of their units, and remain in communication with supervisors and other employees throughout their

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shifts.

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22.

Deleted: refinery
Deleted: units

Deleted: constant contact
Deleted: working in their unit

As a result, Defendants routinely fail to provide Named Plaintiffs and putative class

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members with uninterrupted, off-duty 30-minute meal periods for every work period in excess of five

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hours, as required by law.

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23.

Defendants do not have a policy or system for providing relief to Named Plaintiffs or

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putative class members so as to allow them to take uninterrupted 30-minute meal periods during which

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they are relieved of all duties.

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24.

Defendants do not pay Named Plaintiffs or putative class members an extra hour of

wages for each work day during which they are not provided a meal period.
25.

Defendants routinely fail to maintain complete and accurate payroll records for Named

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Plaintiffs and putative class members showing, inter alia, the gross and net wages earned or whether

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they are provided with or actually take meal periods.

Deleted: also

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26.

Defendants also routinely fail to timely pay all accrued wages and other compensation

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due to Plaintiff Sullivan and putative class members who have been terminated, resigned, or otherwise

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separated from employment with Defendants.

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CLASS ALLEGATIONS
27.

Deleted: employees

Named Plaintiffs seek, on their own behalf and on behalf of putative class members,

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unpaid wages owed as a result of Defendants’ failure to provide meal periods as required by law, plus all

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other benefits and relief provided by California’s labor laws and regulations based on sums withheld

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from them by Defendants, plus additional penalties as provided by statute. Named Plaintiffs also seek
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THIRD AMENDED CLASS ACTION COMPLAINT

Deleted: immediately
Deleted: and routinely fail to pay all accrued
wages and other compensation due within 72 hours
to putative class members who have resigned from
their employment with Defendants

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injunctive relief in the form of an order prohibiting Defendants from requiring their employees to work

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shifts in excess of five hours without providing an uninterrupted 30-minute meal period. Named

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Plaintiffs also seek restitution and disgorgement of all sums wrongfully obtained by Defendants through

Deleted: its

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their unfair business practices in violation of California Business and Professions Code sections 17200

Deleted: its

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et seq., to prevent Defendants from benefitting from their violations of law and/or acts of unfair

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competition. Such sums recovered under the Unfair Competition Law are equitable in nature and are not

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to be considered damages. This action is appropriate for class treatment pursuant to Federal Rule of

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Civil Procedure 23.

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28.

Deleted: Code of Civil Procedure section 382

The proposed class which Named Plaintiffs seek to represent is composed of all current

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and former shift employees of Defendants Equilon Enterprises LLC dba Shell Oil Products US, Shell

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Pipeline Company LP, or CRI U.S. LP who worked at least one 8- or 12-hour shift between April 25,

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2004 and September 30, 2011, at the Martinez refinery or the Criterion Catalyst plants in Martinez or

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Pittsburg, California, or who worked at least one 8- or 12-hour shift between April 25, 2004 and May

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10, 2007 at the Los Angeles refinery, or who worked at least one 12-hour shift between January 1, 2007

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and September 30, 2011 at the Carson Terminal facility. Named Plaintiffs also seek to represent the

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following subclass:

Deleted: Shell Oil Company, Shell Oil Products
Company LLC, and/or

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All former shift employees of Defendants Equilon Enterprises LLC dba Shell Oil
Products US, Shell Pipeline Company LP, or CRI U.S. LP who worked at least
one 8- or 12-hour shift since April 25, 2004, at the Martinez refinery or the
Criterion Catalyst plants in Martinez or Pittsburg, California, or who worked at
least one 8- or 12-hour shift between April 25, 2004 and May 10, 2007 at the Los
Angeles refinery, or who worked at least one 12-hour shift since January 1, 2007,
at the Carson Terminal facility and who, at any time between April 25, 2005 and
the present, were terminated, resigned, or otherwise separated from employment
with one or more of the Defendants and were not timely paid all wages due and
owing, pursuant to California Labor Code section 203. This subclass does not
include any employee at the Los Angeles refinery who continued employment at
the refinery after its acquisition by Tesoro in May 2007.

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29.

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The proposed class is estimated to include between 400 and 600 members. This proposed

Deleted: who worked 8-hour, 10-hour, 12-hour, or
longer shifts at the oil refinery located in Martinez,
California between April 25, 2004 and the time class
certification is granted.¶
Plaintiffs
Deleted: es of the above-described class
Deleted: a. All current and former shift
employees of Defendants Shell Oil Company, Shell
Oil Products Company LLC, and/or Equilon
Enterprises LLC dba Shell Oil Products US who
were not provided uninterrupted 30-minute meal
periods in
accordance with California Labor Code sections
226.7 and 512 and Industrial Welfare Commission
Wage Order 1-2001 section 11, between April 25,
2004 and the present.¶
¶
b.
Deleted: Shell Oil Company, Shell Oil Products
Company LLC, and/or
Deleted: or Criterion Catalysts & Technologies
L.P.
Deleted: 5

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class is so numerous that joinder of all such persons is impracticable and the disposition of their claims

Deleted: 4

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as a class will benefit the parties and the Court.

Deleted: discharged or resigned from employment
with

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Deleted: Shell
Deleted: the
Deleted: 2
Deleted: 5

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THIRD AMENDED CLASS ACTION COMPLAINT

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30.

There is a well-defined commonality of interest in the questions of fact and law involving

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and affecting the putative class members to be represented by Named Plaintiffs, in that all of these

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employees have been harmed by Defendants’ failure to provide meal periods as required by law.

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31.

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Common questions of fact and law involved in this action include the following:
a.

Whether Defendants failed to provide Named Plaintiffs and putative class

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members with meal periods in accordance with applicable California law because

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Deleted: Plaintiffs

they failed to relieve shift employees of all work duties;

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b.

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Whether Defendants failed to keep complete and accurate records of whether
meal periods were provided to Named Plaintiffs and putative class members in

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Deleted: Plaintiffs

accordance with applicable California law;

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c.

Whether Defendants failed to pay all wages due Named Plaintiffs and putative

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class members at the time of termination in accordance with applicable California

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Deleted: to shift employees

law;

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d.

Whether Defendants maintain or have maintained common policies that failed to

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properly compensate Named Plaintiffs and putative class members in accordance

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Deleted: Plaintiffs

with applicable California law;

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e.

Whether Defendants maintain or have maintained policies that adequately provide

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for meal periods in accordance with the requirements of applicable California

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law;

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f.

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Plaintiffs and putative class members are entitled to receive from Defendants; and

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g.

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What compensatory damages, injunctive relief, and other equitable relief Named

Whether Defendants’ policies and practices constitute unlawful or unfair business
practices under California’s Unfair Competition Law.

32.

The claims alleged by Named Plaintiffs herein encompass the challenged practices and

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common courses of conduct of Defendants and are typical of those claims which could be alleged by

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any member of the proposed class. Named Plaintiffs’ claims arise out of the alleged courses of conduct

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by Defendants and are based on the same legal theories as the claims of the putative class members. The

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legal issues as to which California laws are violated by such conduct apply equally to Named Plaintiffs
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THIRD AMENDED CLASS ACTION COMPLAINT

Deleted: Plaintiffs

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and putative class members. Further, the relief sought by Named Plaintiffs is typical of the relief which

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would be sought by each member of the proposed class if they were to file separate actions.

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33.

Named Plaintiffs are proper representatives of the proposed class because they will fairly

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and adequately represent and protect the interests of all putative class members and because there are no

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known conflicts of interest between Named Plaintiffs and any putative class members. Other current and

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former employees of Defendants are available to serve as class representatives if the Named Plaintiffs

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are found to be inadequate.

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34.

The prosecution of separate actions by individual members of the proposed class would

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create a risk of inconsistent and/or varying adjudications with respect to the individual members of the

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class, establishing incompatible standards of conduct for Defendants, and resulting in the impairment of

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putative class members’ rights and the disposition of their interests through actions to which they are not

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parties. This action is manageable as a class action because, compared with other methods such as

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intervention or the consolidation of individual actions, a class action is fairer and more efficient.

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35.

Common issues predominate with regard to the claims of Named Plaintiffs and putative

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class members in that all of their claims arise out of Defendants’ failure to provide meal periods as

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required by California law. A class action is superior to other available methods for the fair and efficient

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adjudication of this controversy because the putative class members have little or no interest in

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individually controlling the prosecution of separate actions and individualized litigation would increase

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the delay and expense to all parties and the court system. Furthermore, it is desirable to concentrate the

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litigation of the claims in this Court because the practices and procedures complained of occurred within

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this Court’s jurisdiction.

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36.

Finally, Named Plaintiffs have retained attorneys who are competent and experienced in

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class action litigation and they intend to prosecute this action vigorously. Therefore, the interests of

24

putative class members will be fairly and adequately protected by Named Plaintiffs and their counsel.

25

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8
THIRD AMENDED CLASS ACTION COMPLAINT

Deleted: Plaintiffs
Deleted: ’ claims

1

FIRST CAUSE OF ACTION

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FAILURE TO PROVIDE MEAL PERIODS

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(Lab. Code §§ 226.7, 512, Wage Order 1-2001)

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(By All Named Plaintiffs Against All Defendants)

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6

37.

Named Plaintiffs reallege and incorporate by reference paragraphs 1 through 36, above,

Deleted: Plaintiffs
Deleted: Plaintiffs
Deleted: 5

as though fully set forth herein.

7

38.

Labor Code section 512 and Wage Order 1-2001 require employers to provide employees

8

with a 30-minute meal period for every work period in excess of five hours. If an employee is not

9

relieved of all duty during the required meal periods, the employer must pay the employee for work

10

performed during those meal periods, plus an additional penalty of one hour’s wage for each day in

11

which the required meal periods were not provided. Lab. Code § 226.7; Wage Order 1-2001 § 11(C).

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39.

Named Plaintiffs and putative class members worked 12-hour shifts while employed by

13

Defendants and, therefore, they were entitled to at least two 30-minute meal periods per shift, during

14

Deleted: , or longer

period, Defendants have had a policy and/or practice of refusing and/or failing to provide their

16

Deleted: 8-hour, 10-hour,

which they must have been relieved of all duty. Wage Order 1-2001 §§ 2(G), 11(C). During the statutory

15

Deleted: Plaintiffs

employees with required meal periods.

Deleted: one or

17

40.

Named Plaintiffs and putative class members have not been provided all meal periods as

18

required by applicable law and seek to recover their unpaid wages for Defendants’ violations of the meal

19

period requirements of Labor Code section 226.7 and Wage Order 1-2001. As a result of Defendants’

20

unlawful practices, Named Plaintiffs and putative class members have lost money and property as

21

alleged above, in that they were required to work shifts of 12 hours without receiving their required meal

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periods. Further, Named Plaintiffs and putative class members were not compensated for having been

23

denied such meal periods. The extra hour of pay mandated by Labor Code section 226.7 and Wage

24

Order 1-2001 for missed meal periods is in the nature of wages and is for the purpose of compensating

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the employee for being required to work through his or her meal period. The additional wages to which

26

Named Plaintiffs and putative class members are entitled pursuant to this provision will be discernable

27

from Defendants’ records and will be proven at the time of trial.

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Deleted: Plaintiffs

9
THIRD AMENDED CLASS ACTION COMPLAINT

Deleted: Plaintiffs
Deleted: at least 8 hours, but usually at least
Deleted: Plaintiffs

Deleted: Plaintiffs

1
2
3

41.

Named Plaintiffs are entitled to an award of attorneys’ fees and costs of suit incurred in

bringing this action pursuant to Code of Civil Procedure section 1021.5.
WHEREFORE, Named Plaintiffs pray for judgment as set forth herein below.

4

SECOND CAUSE OF ACTION

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FAILURE TO PAY ALL WAGES DUE AT THE TIME OF DISCHARGE OR RESIGNATION

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(Lab. Code §§ 201-203)

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(By Named Plaintiff William Sullivan and All Similarly Situated Former Employees

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Deleted: Plaintiffs

Against All Defendants)

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10
11

42.

Named Plaintiffs reallege and incorporate by reference paragraphs 1 through 41, above,

Deleted: Plaintiffs
Deleted: 0

as though fully set forth herein.
43.

Labor Code sections 201 and 202 require an employer to pay its employees all wages due

12

within the time specified by law. Labor Code section 203 provides that if an employer willfully fails to

13

pay such wages when due, the employer must continue to pay the employees’ daily wages until the back

14

wages are paid in full or an action is commenced, up to a maximum of 30 days’ wages.

15

44.

Putative class members whose employment with Defendants has ceased are entitled to all

16

of their unpaid wages, including their premium wages for missed meal periods. To date, they have not

17

received such compensation and more than 30 days have passed since putative class members left

18

Defendants’ employ. As a consequence of Defendants’ willful failure to timely pay all wages due to

19

such putative class members, they are entitled to 30 days’ wages pursuant to Labor Code section 203.

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21
22

45.

Deleted: employees

Named Plaintiffs are entitled to an award of attorneys’ fees and costs of suit incurred in

bringing this action pursuant to Code of Civil Procedure section 1021.5.
WHEREFORE, Named Plaintiffs pray for judgment as set forth herein below.

23

THIRD CAUSE OF ACTION

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UNFAIR BUSINESS PRACTICE AND UNFAIR COMPETITION

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(Bus. & Prof. Code § 17200 et seq.)

26

(By All Named Plaintiffs Against All Defendants)

Deleted: Plaintiffs

27
28

46.

Named Plaintiffs reallege and incorporate by reference paragraphs 1 through 45, above,

as though fully set forth herein.
10
THIRD AMENDED CLASS ACTION COMPLAINT

Deleted: Plaintiffs
Deleted: Plaintiffs
Deleted: 4

1

47.

The California Unfair Competition Law, Business and Professions Code section 17200 et

2

seq. (“UCL”), defines unfair competition to include any unlawful, unfair, or fraudulent business act or

3

practice. The UCL “borrows violations” from other statutes and authorizes any person who has suffered

4

injury in fact and who has lost money or property as a result of such unfair business practices to bring an

5

action for relief under the statute. The UCL also provides that a court may enjoin acts of unfair

6

competition, issue declaratory and other equitable relief, and order restitution of money or property

7

acquired by means of such unfair competition.

8

48.

Beginning on an exact date unknown to Named Plaintiffs, but since at least April 25,

9

2004 to the present, Defendants have committed acts of unfair competition proscribed by Business and

10

Deleted: between
Deleted: and

Professions Code section 17200 et seq., including the acts and practices alleged herein. Defendants have

11

Deleted: Plaintiffs

engaged in unlawful and unfair business practices including, but not limited to, violations of:

12

a.

Labor Code § 204 (payment of wages);

13

b.

Labor Code §§ 226.7, 512 (meal periods); and

14

c.

California Industrial Welfare Commission Order No. 1-2001 (meal periods).

15

49.

Defendants’ violations of these laws, as well as violations of Labor Code sections 201-

16

203, for which only injunctive relief – and not restitution – may be sought, serve as unlawful predicate

17

acts that resulted in economic harm and injury in fact to Named Plaintiffs and putative class members

18

for purposes of the UCL and the remedies provided therein. As a direct and proximate result of the

19

aforementioned unfair business practices, Defendants have received and continue to hold ill-gotten gains

20

belonging to Named Plaintiffs and putative class members and Defendants have profited in that amount

21

from their unlawful practices.

22

50.

Deleted: Plaintiffs

Deleted: Plaintiffs

Business and Professions Code section 17203 provides that a court may restore to any

23

person in interest any money or property which may have been acquired by means of such unfair

24

competition and order disgorgement of all profits gained by operation of the unfair business practices.

25

Named Plaintiffs and putative class members are entitled to restitution pursuant to Business and

26

Professions Code sections 17203 and 17208 for all wages and other monies, excluding penalties

27

provided under the Labor Code, unlawfully withheld from them from April 25, 2004 to the present.

28

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11
THIRD AMENDED CLASS ACTION COMPLAINT

Deleted: Plaintiffs

1

Named Plaintiffs will, upon leave of the Court, amend this complaint to state such amounts when they

2

Deleted: Plaintiffs

are ascertained.

3

51.

Named Plaintiffs’ success in this action will enforce important rights affecting the public

4

interest and, in that regard, they sue individually and on behalf of other similarly situated employees of

5

Defendants. Named Plaintiffs seek and are entitled to unpaid wages, injunctive relief, and any other

6

Deleted: Plaintiffs

relief to which they are entitled under the UCL.

7

52.

Deleted: Plaintiffs

Defendants’ violations of the UCL are ongoing and will continue until and unless this

8

Court enters an injunction barring such violations. Named Plaintiffs therefore seek damages and

9

Deleted: Plaintiffs

injunctive relief pursuant to Business and Professions Code section 17203.

10
11

53.

Named Plaintiffs are entitled to an award of attorneys’ fees and costs of suit incurred in

bringing this action pursuant to Code of Civil Procedure section 1021.5.

12

WHEREFORE, Named Plaintiffs pray for judgment as set forth herein below.

13

Deleted: Plaintiffs

PRAYER FOR RELIEF

14

Named Plaintiffs pray for relief as follows:

15

1.

For an order certifying this action as a class action;

16

2.

For an award of all unpaid wages due to Named Plaintiffs and putative class members

Deleted: Plaintiffs

17

Deleted: Plaintiffs

during the statutory period as defined by the Court at the time of certification;

18

3.

For an award of one hour of pay at each employee’s regular rate of pay for each work day

19

during which they were not provided with an uninterrupted, off-duty 30-minute meal period for every

20

work period in excess of five hours during the statutory period as defined by the Court at the time of

21

certification;

22
23

4.

Deleted:
///

For an award of waiting-time penalties to Defendants’ former employees pursuant to

Labor Code section 203;

24

5.

For pre-judgment interest to the extent permitted by law;

25

6.

For an award of attorneys’ fees and costs incurred in the filing and prosecution of this

26

action, as provided by Code of Civil Procedure section 1021.5, and other applicable legal authorities;

27
28

7.

For declaratory and injunctive relief against Defendants’ unlawful business practices;

///
12
THIRD AMENDED CLASS ACTION COMPLAINT

Deleted: an injunction

1
2
3

8.

For an order to pay restitution to Named Plaintiffs and putative class members as a result

Deleted: Plaintiffs

of Defendants’ unlawful activities, pursuant to Business and Professions Code sections 17200-05; and

9.

For such other and further relief as the Court may deem just and proper.

4
5

Dated: __________________, 2011

Gilbert & Sackman, A Law Corporation

6
7
8
9

By: ______________________________
Linda S. Fang
Attorneys for Named Plaintiffs David Gardner,
Steve Mattern, Brian Cerri, William Sullivan, Mark
Landre, Lawrence Long and Cheri Davidson

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13
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15
16
17
18
19
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24
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13
THIRD AMENDED CLASS ACTION COMPLAINT

Deleted: Plaintiffs
Deleted: e
Deleted: and