SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO | Document Scanning Lead Sheet ‘Sep-11-2018 11:38 am Case Number: CGC-15-547878 Filing Date: Sep-11-2015 11:35 Filed by: DAVID YUEN Juke Box: 001 Image: 05071770 COMPLAINT ROBERT GOLLNICK VS. UBER TECHNOLOGIES INC., LP ET AL | 001005071770 Instructions: Please place this sheet on top of the document to be scanned.BY FAX Aree Mbbera takaNea ce Miia Re hres ao satnckss 8 ‘TELEPHONE NO: ‘45. $6 2555 raxno: 415-568-2556 srronney Fo8 pane Plaitift ode Sour LED SUPERIOR COURT OF CaLIFORWA,couNTY oF SAN FRANCISCO. SBS seer sooress: 400 McAlister Street SEP 112015 carvmozrcooe: San Francisco, CA 94102 THE ‘CASE NAME: Golinick, et al. v. Uber Technologies Inc., LP, et al. ‘CIVIL CASE COVER SHEET ‘Complex Case Designation Untied] Lmtd i couner ) sointer GES ‘demanded demanded is | Filed with first appearance by defendant leceeds $25,000) $25,000 orless)| (Cal Rules of Cour, rule 3.402) _| oe ‘ems 1-8 boow rust be completed (se insulins on 9g0 2) fix Check one box below forthe case ype that best describes this case: fut Ton ‘Sontect Provkslonly Complex Cv Lieton ‘ta a ‘reach of contacwaranty (06) (Ga Rulon of Cou re 3400-3403) ‘Unered motors 46) Fue 3740 cotectene Oe) =] Anttagn opto (02) ‘Other PUPDIWD (Personal Injury/Property ‘Other covlections (08) construction defect (10) amegerongtut Dest) Ton Ineuanea cveage (18) a] Masato 4) TE asbestos (4) 1 omer conse 7) secure ttgaton 28) Prati 20 fren team Madea! apace ( Crinent domaine nwrene at © oner Purnia (2a) condemnaton (4) Sees rowsonahy compik case ax PUPOMD (Oban Tor 1) era even (29) inate uineas ont buses pact (or) tert propery 2) a sara Unit Detain 1 enercement ot amert (2) Dara (13) ea Commerc 1 ancelaneovs Chi Complaint a Fraud (16) J Resigentiot (32) CO reoen Intelecual property (19) To ngs 2) TF otner complaint (nt spscited above) (42) Professional negligence (25) at Review Miscolianeous Civil Petition Other non-PUPDIWD tort (25) o eee 7 J Partnership and corporate governance (21) Joymert jon atten ot : ‘Wrongful termination (96) TS) wert of mandate (02) a (oot soecied o [71 other employ ea O°) otter just review (36) 2 Thigcase L—1'is Lz Tenst complex under ue 3400 ol the Calforia Rules af Cour io ca a conplex mak he actors requiing exceptional judicial management a.) Large number of separately represented parties —_d. [_] Large number of witnesses . [1] Extensive motion practice raising diffcutt or novel e. [__] Coordination with related actions pending in one or more courts Issues that wil be time-consuming to resolve in other counties, states, or counties, or ina federal court [J Substantial amount of documentary evidence +t. 71 substantial postjudgment judicial supervision Remedies sought (check al that apply): a7] monetary b. C7] nonmonetary; dectaratary or injunctive relief ¢ LZ Jpunitve ‘Number of causes of action (specify): SIX (6) Thiscase [_Jis (ZJisnot _aciass action suit. ‘there are any known related cases, fle and serve a notice of related case. p80 form CHOI) Date: 9/10/15 Mark E. Burton, Jr. TR ROTICE «+ Plain must file this cover sheet wih the fst paper fled in the action or proceeding (except smal claims cases or cases fied Under the Probate Code, Family Code, or Welfare and Insitulons Code). (Cal. Rules of Cour, rule 3.220.) Fallure to file may resut In sanctions «+ Fig this cover sheet in adcition to any cover sheet required by local cour cule thi ease fs complex undor rule 3 400 et 809, ofthe Calfomia Rules of Court, you must serve a copy of this cover sheet on all ‘other partes fo the action or proceeding. + Unlees thie ie collections caee under rule 3.740 or a complex case, this cover sheet willbe used for statistical purposes: a Givi CASE COVER SHEET SeSUMMONS (CITACION JUDICIAL) NOTICE TO DEFENDANT: (AVISO AL DEMANDADO) UBER TECHNOLOGIES INC., LP AND DOES 1-20, inclusive YOU ARE BEING SUED BY PLAINTIFF: (LO ESTA DEMANDANDO EL DEMANDANTE): ROBERT GOLLNICK, ESE aT aT a RE ATP TS a TT = a0 ADEA DN at i nora olga seen ton repr ia cot nde 02 ee enn a ene ee Tay Fg Sar es hay emeeper ego pcegr pelape ut oo Senin attain ten ae Preserny elas a esrar oe freee ae ee Soon ee at ea eran te ina ee amor ala eco men Sey Seria aoe nee ee ae ae el ce ee er Sa LF rept lel ei Aor Then Se eee ciate a a tee nena er nate Cee oa Senay ae Pd cetera cette toetareerat ee eek tore ao Scouts on any sottoment or abtraon award of $1,000 o more in GM case, The cour len must be pak bate the court wil dlls he ese, TAVISOI La hen demandeco. Sine responds dentro de 0 das, core puede deca Su conan escuchar eu Version. Le fe nfomacion@ ‘ontinvecon Tae 20 DIAS DE CALENDARIO después de quel entrequen este. ction y papel logles para presenter une respuesta por escrito on esta cate y hacer que 0 entregue una cops al Jomandenta Une carla o ure lamade aetna noe potogen. Su respuesta por esc one ue esr tn formato og corecto soa gue presen su caso or a coe. Es poste que hae un formule que Usted puede veer pare Su respuesta edo encontrar ests formlaros do la cote y més informacion on ol Centro de Ayude de las Cores de Calfonia (wer, score ca go), a a bibtotece 3 eyes de sv cond 0 en la corte quo le quode mde coco. Sno puede pag le cts do presantacén, pido a secrtoo Ga ae {ue e dB un fomularo de axencén ce pogo de cuales! presenta su respuesta ome, puede pardarac8s0 por cumplimlano le crt le oara qtr eu evle, dro ybienes sin mas edvotorcta. ‘Hay os reuists logales. Es recomendabie que lame a un abogado inmeditament. Sino coroce aun abogedo, puede lamar aun servic de remisién wabogados. Sino puede pagar «un abagado, vs posble que cup con os reuisos par cblenersoricosloglesgratutos de un ‘rograma de servos gales sn es do cre. Puede ance esto grupos an nes do lu ona to wed de Calorie Legal Services, {re lavtelocafora.rg), ene! Cento de Ayu de las Cartes de Calon, (war. sucoie.ca gov) 0 poniéndose en contacto can la corto aegio do sbogados eal AVISO: Por, core Gane corcho a reclamar Ie cuotes bs casos exetos por mponer un gravanen ‘rater recyperectén do 510,000 6 msde valor recbiss mestanto un acuer © una cancoson de bbraje enn caso de Gare cl. Tine QUe ‘gar al ravamon do la Gato antes do qua la corte pueda Gececher al casa Bin den a ete, geerys- bat 78 Superior Court of California, County of San Francisco, 400 McAllist Street, San Francisco, CA 94102 ‘The name, address, and telephone number of plaints attomey, or plaintiff without an attorney. i: (Elnombré, fa dreccin y e! nimero de (eléforo del abogado ae! demandanta,o del demandante que no tone abogado, 0s): Mark E. Burton, Jr., Audet & Partners, LLP, 711 Van Ness Avenue, Suite 500, San Francisco, CA 9410; DATE: SOS , -, Deputy ae SEP 112015 CLERK OF THE COURSE’ 2.) "Gav w.vuEw aes (For proof of sane of ils summons, use Proof of Sanice of Summons (form POS-O10)) TV itrega de esta citation use el formulano Proot of Service of Summons, (POS-010)). NOTICE TO THE PERSON SERVED: You ae cored (onl aon eval end 2 Fas the person sued under the fictitious name of (specify) 3, C2) on behait of (specify: under: CZ] ccP 416.10 (corporation) J ccP 416.60 (minor) (cop 416.20 (defunct corporation) [=] CCP 416.70 (conservatee) [= CCP 416.40 (association or partnership) [—] CCP 416.90 (authorized person) oO A other (specify): 4. I by peeona detvery on (te — — vy personal delivery on (date): rt SS ae SUMMONS cocaine tan feyMARK E. BURTON, JR. (SBN 178400) AUDET & PARTNERS, LLP 711 Van Ness Avenue, Suite 500 San Francisco CA 94102. Telephone: 415,568,2555 Facsimile: 415.568.2556 mburton@audetlaw.com FI L ein Sac Attorneys for Plaintiff SEP 11 2018 CLERK OF THE * uy Crk SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO, UNLIMITED JURISDICTION ROBERT GOLLNICK, CoA O-4 5-547878 Plaintiff, COMPLAINT FOR VIOLATIONS OF vs, ‘THE CALIFORNIA LABOR CODE §§ 200-203, 226, 226.3, 226.7, 510, 512, UBER TECHNOLOGIES INC., LP AND 517, 1194, 1198, INDUSTRIAL DOES 1-20, inclusive, WELFARE COMISSION WAGE ORDER No. 4, BUSINESS AND Defendants. PROFESSIONS CODE §17200 et seq., AND CCP § 1021.5 DEMAND FOR JURY TRIAL Plaintiff brings this action against Defendants, UBER TECHNOLOGIES INC., and DOES 1-20 (collectively “DEFENDANTS” or “Defendants”) and alleges on information and belief as follows: INTRODUCTION Plaintiff worked for Defendants’ by driving passengers for hire for Defendant. Defendants misclassify Plaintiff as an independent contractor, when in fact he is an employee and/or agent of Defendants. He brings this action for violations, damages, and violations 1 ‘COMPLAINT FOR DAMAGES FOR VIOLATIONS OF CALIFORNIA LABOR CODE, INDUSTRIAL WELFARE COMISSION WAGE ORDER No. 4, CALIFORNIA LABOR CODE "AND BUSINESS AND PROFESSIONS CODE §§ 17200, et seq., and CCP § 1021.5.pursuant to California Labor Code §§ 200-203, 226, 226.3, 226.7, 510, 512, 517, 1194, 1198, Industrial Welfare Commission Wage Order No. 4, Business and Professions Code §17200 et seq., and CCP § 1021.5. 2. Defendants advertise jobs described as UberX Drivers requiring no skills or experience beyond a driver's license, vehicle, and insurance. A typical posting for the job! explains “Using your own car to drive with Uber, is a newer opportunity that has only been’ around since 2012. Despite this, it's growing the fastest because of the great earning potential and flexible schedule.” 3. Defendants’ website described its service, “Uber is your on-demand private driver. 4. Defendants’ develop, market and operate car services that include the Uber| mobile app, which allows consumers with smartphones to submit a trip request. This request is then routed to nearby UberX drivers one of whom accepts the ride request. After accepting a request the driver then uses the driver’s own vehicle to meet a passenger at a designated pick up point and transports that passenger to the designated drop-off point. The driver is paid weekly by Uber. Customers are unable to tip the driver through the app and Defendants discourage tipping: “Our current policy is that there is no tip with Uber. The Uber experience means not having to reach for a wallet at the end of a ride. As a result, we message to riders that tipping is not required - we never want riders to feel obligated 10 pay extra at the end of Uber trips. if a client offers a tip, please remind them that tipping is not necessary with Uber. New riders may ‘not know about the tipping policy, and could feel cheated if they later learn that tipping was not required.” 5. Previously, Defendants stated that its drivers made $6 per hour more than an| average taxi driver. Defendants stated that the median driver in New York City was making] $90,000 a year in “business income,” but this number is misleading as it fails to include basic costs like gasoline, maintenance, car insurance, health insurance, payroll taxes and the car itself. 2 ‘COMPLAINT FOR DAMAGES FOR VIOLATIONS OF CALIFORNIA LABOR CODE, INDUSTRIAL WELFARE COMISSION WAGE ORDER No. 4, CALIFORNIA LABOR CODE ‘AND BUSINESS AND PROFESSIONS CODE §§ 17200, et seg., and CCP § 1021.5.ul 12 13 4 15 16 7 18 19 20 2 22 23 24 2s a7 28 Further, such an estimate neglects to mention how many hours one has to work in order to make the stated $90k. 6. Uber extracts a large commission from its drivers. This percentage is increasing, Tn a new pilot program in San Francisco, a small percentage of new UberX drivers will pay a 30% “commission” on their first 20 rides in a week, 25% on their next 20 rides, and then 20% ‘on any rides beyond that. Defendants impose the commissions and rates on drivers subject to change at their discretion. 7. Plaintiff operates no distinct business of his own, has no specialized skills, and is, supervised by Defendants through detailed technological tracking of his work, including but not limited to specific routes, hours worked, amounts made, miles driven, tolls paid, the imposition| ofa “safety fee”, ratings by customers and termination at their discretion. 8. Defendants failed to keep records of the total hours Plaintiff actually worked and drove and failed to record meal and rest breaks. 9. Defendants also failed to pay full wages when due, pay full wages on discharge, provide accurate, itemized wage stubs and pay minimum wages as required by law. 10. Defendants saved vast sums of money by not paying for Plaintiffs’ overtime labor, expenses and payroll taxes, allowing them to reap enormous profits to expand their| business nationwide and Internationally. 11, In fact and pursuant to California law, Plaintiff is properly considered an ‘employee for the following reasons: ‘A. The agreement between Defendants and Plaintiff provides, in relevant part: Defendant] is engaged in the business of providing lead generation to the ‘Transportation Provider comprised of requests for transportation service made by individuals using Uber Technologies, Inc.'s mobile application ("Users") ‘Through its license of the mobile application ..., [Defendant] provides a platform for Users to connect with independent Transportation Providers. You shall be entitled to accept, reject, and select among the Requests received via the Service. You shall have no obligation to [Defendant] to accept any Request. Following acceptance of a Request, however, you must perform the Request in 3 ‘COMPLAINT FOR DAMAGES FOR VIOLATIONS OF CALIFORNIA LABOR CODE, INDUSTRIAL WELFARE COMISSION WAGE ORDER No. 4, CALIFORNIA LABOR CODE ‘AND BUSINESS AND PROFESSIONS CODE §§ 17200, ef seq., and CCP § 1021.5.Seoweraunwn rt 12 13 4 15 16 17 18 19 20 2 23 24 2s 26 27 28 accordance with the User's specifications. Failure to provide promised services on an accepted Request shall constitute a material breach of this Agreement, and may subject you to damages. You understand that for liability reasons, Users may prohibit the transport of individuals other than themselves during the performance of a Request. If you accept a Request subject to such a prohibition, you agree to allow only the User, and any individuals authorized by User inside your vehicle during performance of a Request, ‘You agree to faithfully and diligently devote your best efforts skills and abilities to comply with the job parameters and User specifications relating to any Request accepted by you. You agree that you shall maintain a vehicle that is a model approved by the, Company. Any such vehicle shall be no more than ten (10) model years old and shall be in good operating condition. Prior to execution of this Agreement, you shall provide to the Company a description of each vehicle and a copy of the vehicle registration for each vehicle(s) you intend to use to provide service under this Agreement. You agree to notify the Company of any change in your fleet by submitting to the Company an updated description and vehicle registration for any previously unidentified vehicle to perform services under this Agreement. The purpose of this provision is to enable the Company to determine whether your equipment meets industry standards. In exchange for accepting and fully performing on a Request, you shall be paid an agreed upon Service Fee for your completion of that Request .... You acknowledge that there is no tipping for any transportation services that you provide pursuant to the receipt of a Request.... You understand that the aim of advertising and marketing to the effect that there is no need to leave a tip is ultimately to increase the number of Requests you receive through the Service and Software. You agree that the existence of any such advertising or marketing does not entitle you to any payment beyond the payment of Service Fees as Provided in this Agreement. ‘The Company shall electronically remit payment of Service Fees to you consistent with Company's practices, as set forth in the Service Fee Schedule, In the event the User cancels a Request after you arrive at the designated pick-up location or does not show after you have waited at least 10 minutes, the User is subject to a cancellation fee. The amount of the cancellation fee will be as 4 ‘COMPLAINT FOR DAMAGES FOR VIOLATIONS OF CALIFORNIA LABOR CODE, INDUSTRIAL WELFARE COMISSION WAGE ORDER No. 4, CALIFORNIA LABOR CODE, AND BUSINESS AND PROFESSIONS CODE §§ 17200, er seq, and CCP § 1021.5.eer aneen 10 u n 1B 4 15 16 7 18 19 20 21 2 23 26 27 28 specified in the Service Fee Schedule, Notwithstanding the foregoing, you acknowledge and agree that, in the Company's sole discretion, a User's cancellation fee may be waived, in which case you will have no entitlement to any such fee. You shall not allow any other person, including any employee, agent, or subcontractor, to access the Service to accept transportation request using the Device or the Driver ID. You acknowledge and agree that this Agreement only enables you, not any other person, to access the Services and Software, and to use the Device and the Driver ID to receive requests for transportation services. Company will also issue identification and password keys (each, a "Driver ID") to the Transportation Provider to enable you to access the Service. You will ensure the security and confidentiality of each Driver ID. ONLY YOU may use the Driver ID. Sharing your Driver ID with someone else constitutes a material breach of this Agreement. ONLY YOU may use the Device to accept requests for transportation services. Allowing someone else to use the Device to accept requests for transportation services constitutes a material breach of this Agreement. The Company's approval and authorization of a Driver may be conditioned upon terms and conditions including, without limitation, a requirement that such Driver, at his own cost and expense, undergo the Company's screening process and attend the Company's informational session regarding the use of Uber's mobile application. The Company reserves the right to withhold or revoke its approval of this Agreement, whether by default or otherwise, the Device, to which you acknowledge is and at all times will remain the property of the Company, ‘much be retuned to the Company. B. Defendants perform background and DMV checks on prospective Transportation| Providers. Defendants require that the Transportation Provider submit a California Driver's License, a Social Security Number, personal address, bank information, and proof of insurance. C. Defendants maintain quality control procedures for both the Transportation Provider and the passenger. Both parties are encouraged to rate each other with stars, with one star being a bad experience and five being the best experience. A Transportation Provider must maintain a star rating of 4.6 or greater. If the rating falls below that level, 5 ‘COMPLAINT FOR DAMAGES FOR VIOLATIONS OF CALIFORNIA LABOR CODE, INDUSTRIAL WELFARE COMISSION WAGE ORDER No. 4, CALIFORNIA LABOR CODE ‘AND BUSINESS AND PROFESSIONS CODE §§ 17200, et seq., and CCP § 1021.5.Oe 0 oe 10 rT 12 B 14 15 16 7 18 19 20 2 23 24 25 26 27 28 Defendants will the application off for that Transportation Provider. The same is true for passengers. D. Where the question arises as to whether an independent contractor or| ‘employment relationship exists, there is an inference of "employment" if personal services ‘are performed as opposed to business services. In making such a determination, the California Supreme Court in $.G. Borello & Sons, Inc. v. Dept. of Industrial Relations (1989) 48 Cal.3d 342, established the following factors for consideration: ‘© Whether the person performing services is engaged in an occupation or business distinct from that of the principal; ‘© Whether or not the work is a part of the regular business of the principal or alleged employer; © Whether the principal or the worker supplies the instrumentalities, tools, and the place for the person doing the work; © The alleged employee's investment in the equipment or materials required by his or her task or his or her employment of helpers; ‘* Whether the service rendered requires a special skill; + The kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the principal or by a specialist without supervision; ‘+ The alleged employee's opportunity for profit or loss depending on his or her ‘managerial skill; ‘© The length of time for which the services are to be performed; The degree of permanence of the working relationshi The method of payment, whether by time or by the job and ‘©. Whether or not the parties believe they are creating an employer-employee relationship may have some bearing on the question, but is not determinative this this is a question of law based on objective tests. E, _ In Yellow Cab Cooperative v. Workers Compensation Appeals Board (1991) 226 Cal.App.3d 1288, the Court found that workers were employees based on circumstances very similar to those of the instant matter. The Court held: “Although some of the factors in this case can be indicative of the workers being, independent contractors, the overriding factor is that the persons performing the 6 ‘COMPLAINT FOR DAMAGES FOR VIOLATIONS OF CALIFORNIA LABOR CODE, INDUSTRIAL WELFARE COMISSION WAGE ORDER No. 4, CALIFORNIA LABOR CODE ‘AND BUSINESS AND PROFESSIONS CODE §§ 17200, ef seq., and COP § 1021.5.Soamyraununea n 12 13 4 15 16 7 18 19 20 21 2 23 24 25 26 27 28 work are not engaged in occupations or businesses distinct from that of [Defendants]. Rather, their work is the basis for (Defendants'] business. [Defendants] obtain the clients who are in need of delivery services and provides the workers who conduct the service on behalf of [Defendants]. In addition, even though there is an absence of control over the details, an employee employer relationship will be found if the [Defendants] retain pervasive control over the operation as a whole, the worker's duties are an integral part of the operation, and the nature of the work makes detailed control unnecessary.” F. The Borello court found that it was not necessary that a principal exercise complete control over a worker's activities in order for that worker to be an employee. "The minimal degree of control that the employer exercised over the details of the work was not considered dispositive because the work did not require a high degree of skill and it was an integral part of the employer's business. The employer was thus determined to be exercising all necessary control over the operation as a whole.” (Borello, supra, 48 Cal.3d at pp. 355- 360.) G. By obtaining the clients in need of the service and providing the workers to conduct it, Defendants retained all necessary control over the operation as a whole. The party seeking to avoid liability has the burden of proving that persons whose services he has. retained are independent contractors rather than employees. In other words, there is a presumption of employment. (Labor Code § 3357; Borello, supra, at pp. 349, 354.) H. Ownership of the vehicle used to perform the work may be a much less important factor in industries other than transportation, Even under the traditional, pre-Borello, ‘common law standard, a person making pizza deliveries was held to be an employee of the pizzeria, notwithstanding the fact that the delivery person was required to provide his own car and pay for gasoline and insurance. (Toyota Motor Sales v. Superior Court (1990) 220 Cal. App.3d 864, 876.) I. "The modern tendency is to find employment when the work being done is an integral part of the regular business of the employer, and when the worker, relative to the ‘employer, does not furnish an independent business or professional service." (Borello, supra, at p. 357.) Plaintiff's work was integral to Defendants’ business. Defendants are in 71 INT FOR DAMAGES FOR VIOLATIONS OF CALIFORNIA LABOR CODE, INDUSTRIAL WELFARE COMISSION WAGE ORDER No. 4, CALIFORNIA LABOR CODE ‘AND BUSINESS AND PROFESSIONS CODE §§ 17200, et seq., and CCP § 1021.5.Cer auneune 10 i 12 1B 4 15 16 7 18 19 20 2 22 23 25 26 27 28 business to provide transportation services to passengers. Plaintiff did the actual transporting of those passengers. Without drivers such as Plaintiff, Defendants’ business would not exist. J. Defendants are involved in every aspect of the operation. Defendants vet prospective drivers, who must provide to Defendants their personal banking and residence information, as well as their Social Security Number. Drivers cannot use Defendants’ application unless they pass Defendants’ background and DMV checks. K. Defendants control the tools the drivers use; for example, drivers must register their cars with Defendants, and none of their cars can be more than ten years old. Defendants refer to "industry standards” with respect to drivers’ cars, however, it is unclear as to what industry, other than the "taxi" industry, Defendants are referring. Defendants monitor the Transportation Drivers’ approval ratings and terminate their access to the. application if the rating falls below a specific level (4.6 stars). L. Noone other than Defendants’ approved and registered drivers are allowed to use Defendants’ intellectual property. Drivers do not pay Defendants to use their intellectual Property. M. The passengers pay Defendants a set price for the trip, and Defendants, in turn, pay their drivers a non-negotiable service fee. If a passenger cancels a trip request after the driver has accepted it, and the driver has appeared at the pick-up location, the driver is not guaranteed a cancellation fee. Defendants alone have the discretion to negotiate this fee with the passenger. Defendants discourage drive from accepting tips because it would be| counterproductive to Defendants’ advertising and marketing strategy. N. Plaintiffs! car and his labor were his only assets. Plaintiffs work did not entail any "managerial" skills that could affect profit or loss. Aside from his car, Plaintiff had no investment in the business. Defendants provided the iPhone application, which was essential to the work. But for Defendants’ intellectual property, Plaintiff would not have been able to, perform the work. a ‘COMPLAINT FOR DAMAGES FOR VIOLATIONS OF CALIFORNIA LABOR CODE, INDUSTRIAL WELFARE COMISSION WAGE ORDER No. 4, CALIFORNIA LABOR CODE AND BUSINESS AND PROFESSIONS CODE §§ 17200, ei seq., and CCP § 1021.5.Cer nneun 10 u 12 1B 14 15 16 7 18 19 20 a 22 23 24 25, 26 2 28 12, Plaintiff seeks compensation for all hours worked; all penalties, liquidated) damages, and other damages permitted by law; restitution and or disgorgement of all benefits obtained by Defendants from their unlawful business practices; injunctive and declaratory relief; punitive damages, all forms of equitable relief permitted by law; and reasonable attorneys’ fees. and costs. VENUE 13. Venue is proper in this County because Defendants are headquartered in this county. PLAINTIFFS 14, Plaintiff Gollnick was employed by Defendants as a Driver in San Francisco. DEFENDANTS 15. Plaintiff does not know the true names and/or capacities, whether individual, partners, or corporate, of the Defendants sued herein as DOES 1-20, inclusive, and for that reason sue said Defendants under fictitious names and prays leave to amend the complaint to insert said true names and capacities in the appropriate paragraphs herein, when Plaintiffs ascertain said true names and capacities. Plaintiffs are informed and believe and thereon allege that said Defendants and each of them are responsible in whole or in part for Plaintiffs’ damages as alleged herein, 16, At all times herein mentioned, Defendants, and each of them, were the agents, alter egos, servants, joint venturers, or employees for each other, and acted with the consent of| hishher said Co-Defendants, and acted within the course, purpose and scope of said agency, service or employment and said conduct was ratified by Defendants, and each of them. 17. Defendants are covered entities or employers within the meaning of the California Labor Code, and Wage Order 4 is applicable in this case. 18. Defendants, in acting as set forth herein, acted with fraud, malice, oppression and a conscious disregard for the Driver’s rights and safety who accordingly Plaintiff requests that the trier of fact, in the exercise of sound discretion, award additional damages for the sake of 9 ‘COMPLAINT FOR DAMAGES FOR VIOLATIONS OF CALIFORNIA LABOR CODE, INDUSTRIAL WELFARE COMISSION WAGE ORDER No. 4, CALIFORNIA LABOR CODE AND BUSINESS AND PROFESSIONS CODE §§ 17200, ef seq., and CCP § 1021.Cer aneun 10 u 12 13 4 15 16 7 18 19 20 2 2B 4 25 26 27 2B example and for the purpose of punishing the Defendants, and each of them, for their conduct, in an amount sufficiently large to be an example to others and deter the Defendants, and each of them, and others from engaging in similar conduct in the future. The aforesaid wrongful conduct was done with the advance knowledge, authorization, and/or ratification of an officer, director, and/or managing agent of Defendants. FIRST CLAIM FOR RELIEF (Failure to Pay Overtime Cal. Wage Order No. 4; Cal. Labor Code §§510, 1194, 1197 and SF Minimum Wage Ordinance) 19. Plaintiff re-alleges and incorporates by reference the allegations in the preceding paragraphs as if fully alleged herein. 20. California law, including Industrial Welfare Commission Order No. 4-2001 (Wage Order No. 4-2001) of the California Industrial Welfare Commission and the California Labor Code Sections 510 (1.5 times regular rate of pay over 8 hours a day or 40 hours a week, 2 times regular rate over 12 hours a day and over 8 hours on any 7 day of a workweek), 1194, and 1197, require Defendants to pay at least the legal minimum wage for all hours actually worked and to pay overtime compensation when due to all non-exempt employees for all hours worked over forty (40) per week, or over eight per day. 21. Plaintiffs are non-exempt employees and are entitled to be paid proper| compensation for all hours worked, including overtime hours worked. 22, Defendants did not compensate Plaintiff for time worked, including but not limited to, compensation for all hours worked over forty (40) per week or over eight per day in carrying out his duties as a Driver. 23, As a direct and proximate result of Defendants’ unlawful conduct, as set forth herein, Plaintiff has sustained damages, including loss of earings for hours worked and for overtime hours worked on behalf of Defendants in an amount to be established at trial, prejudgment interest, and costs and attomeys’ fees, pursuant to statute and other applicable law. 10 ‘COMPLAINT FOR DAMAGES FOR VIOLATIONS OF CALIFORNIA LABOR CODE, INDUSTRIAL WELFARE COMISSION WAGE ORDER No. 4, CALIFORNIA LABOR CODE "AND BUSINESS AND PROFESSIONS CODE §§ 17200, et seq., and CCP §'1021.5.wee wa anewn 10 u 12 B 4 15 16 7 18 19 20 2 23 24 2s 26 a7 28 24. Plaintiff is entitled to $50 per day for every violation of the SF Minimum Wage Ordinance. SECOND CLAIM FOR RELIEF (Failure to Pay Full Wages When Due Under Labor Code §200 et seq., §§1194 and 1198) 25. Plaintiff re-alleges and incorporates by reference the allegations in the preceding, paragraphs as if fully alleged herein, 26. By failing to compensate Plaintiff for all time worked and wages owed at least twice monthly, Defendants have and continue to violate Labor Code Section 204, which requires employers, including Defendants, to pay their employees their full wages when due at east twice a month. 27. By failing to compensate Plaintiff as required by California law at any time during the previous four or more years pursuant the applicable statute of limitation and tolling provisions, Defendants also have willfully failed to make timely payment of the full wages due, at the time they terminated employment with Defendants; and thereby Defendants have violated ‘Labor Code Section 202 (Payment within 72 hours of termination). 28. Pursuant to Labor Code Section 1194, Plaintiff is entitled to recover from Defendants all unpaid wages to which they are entitled, plus pre- and post-judgment interest thereon and reasonable attomeys’ fees and costs incurred in prosecuting this action, 29. Pursuant to Labor Code Section 203, Plaintiff is also entitled to recover waiting time penalties (30 days of pay following end of employment). THIRD CLAIM FOR RELIEF (California Record-Keeping Provisions, Cal, Labor Code §§ 226, 1174, 1174.5) 30. Plaintiff re-alleges and incorporates by reference the allegations in the preceding [paragraphs as if fully alleged herein. 31. Defendants knowingly and intentionally failed to provide timely, accurate, itemized wage statements including, inter alia, hours worked, to Plaintiff as required by Labor b ‘COMPLAINT FOR DAMAGES FOR VIOLATIONS OF CALIFORNIA LABOR CODE, INDUSTRIAL WELFARE COMISSION WAGE ORDER No. 4, CALIFORNIA LABOR CODE ‘AND BUSINESS AND PROFESSIONS CODE §§ 17200, ef seq., and CCP § 1021.5.wee wa aneen 10 u 12 1B 4 15 16 7 18 19 20 2 22 23 25 26 27 28 Code Section 226(a) and the IWC Wage Order. Such failure caused injury to Plaintiff by, among other things, impeding them from knowing the amount of wages to which they are and| ‘were entitled. At all times relevant herein, Defendants have failed to maintain records of hours ‘worked by Plaintiff as required under Labor Code Section 1174(4). Pursuant to Labor Code §226 Plaintiff is entitled to fifty dollars ($50) for the initial pay period in which the violation occurred and one hundred dollars ($100) for each violation in a subsequent pay period, not to exceed an aggregate penalty of four thousand dollars ($4,000), and is entitled to an award of| costs and reasonable attomey’s fees. 32. Plaintiff is not an “exempt” employee under the California Labor Code or Wage Order 4, 33. Plaintif'is entitled to and seeks injunctive relief requiring Defendants to comply ‘with Labor Code Sections 226(a) and 1174(d), and further seek all actual and statutory damages available for these violations under Labor Code Sections 226(e) and 1174.5. 1174 (requirement to keep records of hours worked and paid), 1174.5 ($500 penalty for failure to keep records). FOURTH CLAIM FOR RELIEF (Failure to Provide Meal & Rest Breaks in Violation of Cal. Labor Code §226.7) 34. Plaintiff re-alleges and incorporates by reference the allegations in the preceding paragraphs as if fully set forth herein, 35. At all relevant times, Plaintiff was deprived of rest and meal breaks, in violation| of California Labor Code Section 226.7. 36. Plaintiff were not “exempt” employees under the California Labor Code or Wage Order 4. 37. Defendants knew or should have known that Plaintiff was working without lunch | land rest breaks and were not compensated for this time. Defendants’ failure to compensate Plaintiff for rest and lunch breaks was systematic, willful, knowing and intentional. 38. Plaintiff has been damaged by Defendants’ intentional and knowing refusal to compensate them for work performed during their rest and lunch breaks and seek compensation R ‘COMPLAINT FOR DAMAGES FOR VIOLATIONS OF CALIFORNIA LABOR CODE, INDUSTRIAL WELFARE COMISSION WAGE ORDER No. 4, CALIFORNIA LABOR CODE AND BUSINESS AND PROFESSIONS CODE §§ 17200, er seq, and CCP § 1021.5.Seerauraon n 12 13 4 15 16 7 18 19 20 21 2 23 24 25 26 27 28 ‘and penalties for all missed breaks in accordance with Califomia Labor Code Section 226.7, along with appropriate damages (one additional hour of pay for each meal and rest break’ missed), injunctive relief and attorneys’ fees and costs. FIFTH CLAIM FOR RELIEF Failure to Reimburse for Business Expenses, Cal. Labor Code §2802) 39, Plaintiff re-alleges and incorporates by reference the allegations in the preceding] paragraphs as if fully set forth herein. 40. The conduct of Defendants, as alleged herein, violated California Labor Code §2802 41. California Labor Code, section 2802, provides that employers must reimburse employees for all reasonable and necessary expenses incurred in carrying out the lawful directions of the employer. 42. Atall relevant times, Plaintiff incurred work related expenses. These expenses included, but were not limited to, the costs of purchase or lease of vehicles; maintenance, fuel, insurance, car washes, tolls and other vehicle operating costs; cell phone expenses, such as text messaging and electronic message service costs; GPS costs; uniform expenses; and costs of| tools and equipment necessary to perform services. These costs were incurred by Plaintiff in direct consequence of the discharge of his duties. Defendants also required Plaintiff to pay for any damage to vehicles. Plaintiff incurred these necessary and substantial expenses and losses as a direct result performing their j 43. Defendants have failed and fail to indemnify or in any manner reimburse Plaintiff for the incurred necessary expenditures and losses. Defendants’ misclassification of Plaintiff as an independent contractor and requiring Plaintiff to pay expenses and costs incurred in direct consequence of the discharge of their duties for Defendants and/or in obedience of| Defendants’ directions is in violation of Cal. Labor Code §2802. 44. Asa direct and proximate result of Defendants’ conduct, Plaintiff suffered losses according to proof, including prejudgment interest pursuant to Cal. Labor Code §2802, 3 ‘COMPLAINT FOR DAMAGES FOR VIOLATIONS OF CALIFORNIA LABOR CODE, INDUSTRIAL WELFARE COMISSION WAGE ORDER No. 4, CALIFORNIA LABOR CODE [AND BUSINESS AND PROFESSIONS CODE §§ 17200, et seq., and CCP § 1021.5.Ce wane en 10 u 12 iB 4 15 16 7 18. 19 20 2 2 23 24 25 26 21 28 subdivision (b), and costs and attorneys’ fees pursuant to Cal. Labor Code §2802, subdivision (©), in the prosecution of this action 45. Plaintiff prays for relief as requested below. SIXTH CLAIM FOR RELIEF (California Unfair Competition Law, Cal. Bus. & Prof. Code §17200 et seq.) 46. Plaintiff re-alleges and incorporates by reference the allegations in the preceding paragraphs as if fully set forth herein. 47. The conduct of Defendants, as alleged herein, violated the California Unfair Competition Law (“UCL”), California Business and Professions Code Section 17200, et seq. 48. Plaintiff alleges that the unfair and unlawful business practices complained of| herein are and were the regular business practice of Defendants. 49. Through Defendants’ failures to pay legally required wages when due, to provide itemized statements of hours worked with payments of wages, to reimburse Plaintiff for expenses they incurred at the direction of Defendants, to pay the employer's portion of FICA| taxes that the putative class members paid, and other conduct alleged herein, Defendants have| violated numerous specific provisions of state and federal law and have engaged in, and Jcontinues to engage in, unlawful and unfair business practices in violation of the UCL, depriving Plaintiff of rights, benefits, and privileges guaranteed to all employees under law, and hhas caused Plaintiff to suffer injury in fact and to lose money. 50. Plaintiff is informed and believes, and based upon such information and belief| allege, that by engaging in the unfair and unlawful business practices complained of herein, Defendants were able to lower their labor costs and thereby obtain a competitive advantage over law-abiding employers and businesses with which it competes. 51. The harm to Plaintiff in being wrongfully denied lawfully earned wages, reimbursement for business expenses and paying the employer's portion of FICA taxes that the putative class members paid outweighs the utility, if any, of Defendants’ policies or practices “4 ‘COMPLAINT FOR DAMAGES FOR VIOLATIONS OF CALIFORNIA LABOR CODE, INDUSTRIAL WELFARE COMISSION WAGE ORDER No. 4, CALIFORNIA LABOR CODE ‘AND BUSINESS AND PROFESSIONS CODE §§ 17200, eseq., and CCP § 1021.5.wear aneun 10 u R 13 14 15 16 7 18 19 20 2 2 24 25 26 27 28 and, therefore, Defendants’ actions described herein constitute an unfair business practice or act within the meaning of the UCL. 52. California Business and Professions Code Section 17203 provides that the Court | may restore to an aggrieved party any money or property acquired by means of unlawful and! ‘unfair business practices. Under the circumstances alleged herein, it would be inequitable and result in a miscarriage of justice for Defendants to continue to retain the property of Plaintiff. Therefore, Plaintiff is entitled to restitution of the unfair benefits obtained and disgorgement of | Defendants’ ill-gotten gains. Plaintiff seeks restitution and damages of all unpaid wages, reimbursement for business expenses, and for the employer's portion of FICA taxes that the putative class members paid, owing to them, according to proof, as well as all other available| equitable relief. 53. Injunctive relief pursuant to California Business and Professions Code Section 17203 is necessary to prevent Defendants from continuing to engage in unfair business practices as alleged in this Complaint. Defendants and/or persons acting in concert with Defendants have done, are now doing, and will continue to do or cause to be done, the illegal acts alleged in this Complaint, unless restrained and enjoined by this Court. Unless the relief prayed for below is granted, a multiplicity of actions will result. Plaintiff has no plain, speedy, or adequate remedy at law, for reasons which include but are not limited to the following: (a) it is difficult to measure the amount of monetary damages that would compensate Plaintiff and others for| Defendants’ wrongful acts; and (b) in any event, pecuniary compensation alone would not! afford adequate and complete relief, The continuing violation of law by Defendants will cause Jereat and irreparable damage to Plaintiff and others unless Defendants are immediately restrained from committing further illegal acts. 54, Plaintiff herein takes up enforcement of these laws and lawful claims. There is a| financial burden incurred in pursuing this action. Therefore Plaintiff seeks recovery of| attorneys’ fees and costs of this action to be paid by Defendants, as provided by the UCL and 15 ‘COMPLAINT FOR DAMAGES FOR VIOLATIONS OF CALIFORNIA LABOR CODE, INDUSTRIAL WELFARE COMISSION WAGE ORDER No. 4, CALIFORNIA LABOR CODE, ‘AND BUSINESS AND PROFESSIONS CODE §§ 17200, e seq, and CCP § 1021.5Cwm ranean 10 uw 2 1B 14 15 16 7 18 19 20 2 22 23 24 25 26 a7 28 |Califomia Labor Code Section 218, 218.5, and 1194, and California Code of Civil Procedure | Section 1021.5. PRAYER FOR RELIEF WHEREFORE, Plaintiff prays for relief as follows: ‘A. A declaratory judgment that the policies and practices complained of| herein are unlawful under the laws of California; B. Appropriate equitable and injunctive relief to remedy Defendants’ violations of the laws of California, including but not necessarily limited to an order enjoining Defendants from continuing their unlawful policies and practices; C. An award of damages, statutory penalties, and restitution to be paid by Defendants according to proof; D. General damages according to proof; E, _ Pre-Judgment and Post-Judgment interest, as provided by law; F. Such other injunctive and equitable relief as the Court may deem just and proper; G. _Attomeys’ fees and costs of suit, including expert fees and fees pursuant to California Labor Code Section 218.5 and 1194, California Code Civil Procedure Section 1021.5, and other applicable laws; H. Punitive damages. DEMAND FOR JURY TRIAL Plaintiff hereby demands a jury trial on all causes of action and claims to which a right to jury trial exists. 6 ‘COMPLAINT FOR DAMAGES FOR VIOLATIONS OF CALIFORNIA LABOR CODE, INDUSTRIAL WELFARE COMISSION WAGE ORDER No. 4, CALIFORNIA LABOR CODE "AND BUSINESS AND PROFESSIONS CODE §§ 17200, et seq,, and CCP § 1021.5.cera neun 10 12 13 14 1s 16 17 18 19 20 2 23 24 25 26 27 28 [Dated this September 10, 2015 0 \& PARTNERS, LLP E. Burton. 221 Main Street, Suite 1460 ‘San Francisco, CA 94105 Telephone: 415.568.2555, Facsimile: 415.568.2556 Attorneys for Plaintiffs ‘COMPLAINT FOR DAMAGES FOR VIOLATIONS OF CALIFORNIA LABOR CODE, INDUSTRIAL WELFARE COMISSION WAGE ORDER No. 4, CALIFORNIA LABOR CODE ‘AND BUSINESS AND PROFESSIONS CODE §§ 17200, ef seq., and CCP § 1021.5,