West Coast Storm Inc Class Action Lawsuit For Failure To Pay Wages, Overtime, Prevailing Wages On Public Works And Allow Rest Breaks Rialto, California

CHARLES ZYLMAN et al v. WEST COAST STORM INC et al

Case Number:

BC482359

Search PacerACE Group party(s): Westchester Fire Insurance CompanyOpposing Party:

Charles Zylman

Court Type:

State

State Court:

California.Supeior Court (Los Angeles County)

State Court URL:

http://www.lasuperiorcourt.org/

Status:

open

Complaint: CHARLES ZYLMAN et al v. WEST COAST STORM INC et al ComplaintDocket: CHARLES ZYLMAN et al v. WEST COAST STORM INC et al Docket

 "VI. FIRST CAUSE OF ACTION
FAILURE TO PAY WAGES AND OVERTIME
California Labor Code 510,1194, et seq., 1189,1811 and 1815 By Plaintiffs For Themselves and the Class Against Defendant WEST COAST and DOES 1 through 50 42. Plaintiffs re-allege and incorporate by reference each and every allegation set forth in the preceding paragraphs. 43. California Labor Code 510 provides in relevant part: Any work in excess of eight hours in one workday and any work in excess of 40 hours in any one workweek and the first eight hours worked on the seventh day of work in any one workweek shall be compensated at the rate of no less than one and one-half times the regular rate of pay for an employee. Any work in excess of 12 hours in one day shall be compensated at the rate of no less than twice the regular rate of pay for an employee. In addition, any work in excess of eight hours on a seventh day of a workweek shall be compensated at the rate of no less than twice the regular rate of pay of an employee . .. 44. California Labor Code 1194 provides in relevant part that: "any employee receiving less than the minimum wage or the legal overtime compensation applicable to the employee is entitled to recover in a civil action the unpaid balance of the full amount of this minimum wage or overtime compensation, including interest thereon, reasonable attorney's fees, and costs of suit." 45. Labor Code 1198 provides in relevant part, "the employment for longer hours than those fixed by the order or under conditions of labor prohibited by the order is unlawful." ICW Order No 16-2001 (3)(A)(1) provides in relevant part: Employees shall not be employed more than eight (8) hours in any workday or more than 40 hours in any workweek unless the employee receives one and one-half (1 Vi) times such employee's regular rate of pay for all hours worked over 40 hours in the workweek. Eight (8) hours of labor constitutes a day's work. Employment beyond eight (8) hours in any workday or more than six (6) days in any workweek is permissible provided the employee is compensated for such overtime at not less than: (a) One and one-half (1 Vi) times the employee's regular rate of pay for all hours worked in excess of eight (8) hours up to an including 12 hours in any workday, and for the first (8) hours worked on the seventh (7th) consecutive day of work in a workweek; and (b) Double the employee's regular rate of pay for all hours worked in excess of 12 hours in any workday and for all hours worked in excess of eight (8) hours on the seventh (7l) consecutive day of work in a workweek. 46. Labor Code 1811 provides, "The time of service of any workman employed upon public work is limited and restricted to 8 hours during any one calendar day, and 40 hours during any one calendar week, except as hereinafter provided for under Section 1815." Section 1815 provides in relevant part that "work performed by employees of contractors in excess of 8 hours per day, and 40 hours during any one week, shall be permitted upon public work upon compensation for all hours worked in excess of 8 hours per day at not less than 11/2 times the basic rate of pay." 47. As alleged herein, Defendants failed to properly compensate Plaintiffs for working off-the-clock, and overtime. Plaintiffs did not receive compensation for all hours worked over eight per day or forty per week, including working various Saturdays and Sundays. 48. In addition, California Labor Code 226(a) provides in relevant part that: "Every employer shall... furnish each of his or her employees . . . an itemized statement in writing showing . . . total hours worked by the employee . . . and all applicable hourly rates in effect during the pay period and the corresponding number of hours worked at each hourly rate by the employee." 49. California Labor Code 226(b) then provides in relevant part: "Any employee suffering injury as a result of a knowing and intentional failure by an employer to comply with subdivision (a) shall be entitled to recover the greater of all actual damages or fifty dollars ($50) for the initial pay period in which a violation occurs and one hundred dollars ($100) per employee for each violation in a subsequent pay period, not exceeding an aggregate penalty of four thousand dollars ($4,000) and shall be entitled to an award of costs and reasonable attorney's fees." 50. By their actions alleged above, Defendants violated the provisions of California Labor Code 226, 510, 1194, et seq., 1198, and 1815 and are therefore liable to Plaintiffs for the damages caused. As a result of the unlawful acts of Defendants, Plaintiffs have been deprived of overtime compensation in amounts to be determined at trial, and are entitled to injunctive relief and recovery of such amounts, including interest thereon, attorney's fees, costs, and penalties.
 VII. SECOND CAUSE OF ACTION
FAILURE TO PAY PREVAILING WAGES ON PUBLIC WORKS
California Labor Code 1194,1771,1774 et seq, By Plaintiffs For Themselves and the Public Works Subclass Against Defendant WEST COAST and DOES 1 through 50 51. Plaintiffs re-allege and incorporate by reference each and every allegation set forth in the preceding paragraphs. 52. At all times mentioned herein, Defendants were subject to the minimum wage requirements pursuant to Labor Code 1194 and to California's Prevailing Wage Law pursuant to Labor Code 1771 et seq., regarding work undertaken in execution of public contracts. Pursuant to Labor Code 1194, Defendants had a duty to pay Plaintiffs not less than the minimum required hourly rate of pay and legal overtime wage for their work on the Project. Pursuant to Labor Code 1771 and 1774, Defendants had a duty to pay Plaintiffs not less than the general prevailing rate of per diem wages, and not less than the general prevailing rate of per diem wages for holiday and overtime work. 53. The per diem wages and prevailing wages required to be paid pursuant to Labor Code 1194, 1771 and 1774 are set forth in annual and semi-annual bulletins published by the California Department of Industrial Relations. 54. Plaintiffs were paid less than the minimum required general prevailing rate of per diem wages for their work as required by Labor Code 1194, 1771 and 1774. Plaintiffs were paid a fraction of the required pay rate. 55. As alleged herein as a result of Defendants' violation of statutory duties, as more fully set forth above, Plaintiffs were damaged in an amount above the jurisdictional limits of this court. Plaintiffs seek the difference between the required prevailing wage rate for each hour worked and the amount actually paid. Pursuant to Labor Code section 1194.2, Plaintiffs seek liquidated damages for failure to pay minimum wage. Plaintiffs' audits and investigations are continuing, however, the amounts claimed are above the jurisdictional minimum requirements of this court. Plaintiffs will seek leave of court to amend this Complaint according to proof at the time of trial. 56. As a result of the unlawful acts of Defendants, Plaintiffs have been deprived of compensation in amounts to be determined at trial, and are entitled to injunctive relief and recovery of such amounts, including interest thereon, attorney's fees, costs, and penalties.
VIII. THIRD CAUSE OF ACTION
FAILURE TO ALLOW MEAL BREAKS PURSUANT TO LABOR CODE 226.7
By Plaintiffs For Themselves and the Class Against Defendant WEST COAST and DOES 1 through 50 57. Plaintiffs re-allege and incorporate by reference each and every allegation set forth in the preceding paragraphs. 58. Labor Code 226.7 requires an employer to pay an additional hour of compensation for each meal period the employer fails to provide. Employees are entitled to a meal period of at least thirty (30) minutes per five (5) hour work period. Plaintiffs and the class consistently worked over five (5) hour shifts. Pursuant to the Code, Plaintiffs and the class are entitled to a meal period
of not less than thirty (30) minutes prior to exceeding five (5) hours of employment. 59. Defendants failed to provide Plaintiffs and others with timely meal breaks of not less than thirty (30) minutes as required by the Labor Code during the relevant class period. 60. Pursuant to Labor Code 226.7, Plaintiffs and the class are entitled to damages in an amount equal to one (1) hour of wages per missed meal break, in a sum to be proven at trial.

 IX. FOURTH CAUSE OF ACTION
FAILURE TO ALLOW REST BREAKS PURSUANT TO LABOR CODE 226.7
By Plaintiffs For Themselves and the Class Against Defendant WEST COAST and DOES 1 through 50 61. Plaintiffs re-allege and incorporate by reference each and every allegation set forth in the preceding paragraphs. 62. Labor Code 226.7 requires an employer to pay an additional hour (1) of compensation for each rest period the employer fails to provide. Employees are entitled to a paid ten (10) minute rest break for every four (4) hours worked. Plaintiffs and the class consistently worked over four (4) hours per shift with no rest breaks. 63. Defendants failed to provide Plaintiffs and others with rest breaks of not less than ten (10) minutes as required by the Labor Code during the relevant class period. 64. Pursuant to Labor Code 226.7, Plaintiffs and the class are entitled to damages in an amount equal to one (1) hour of wages per missed rest break, in a sum to be proven at trial. X. FIFTH CAUSE OF ACTION VIOLATION OF LABOR CODE SECTION 226(a)
By Plaintiffs For Themselves and the Class Against Defendant WEST COAST and DOES 1 through 50 65. Plaintiffs re-allege and incorporate by reference each and every allegation set forth in the preceding paragraphs. 66. Section 226(a) of the California Labor Code requires defendants to itemize in wage statements all deductions from payment of wages and to accurately report total hours worked by Plaintiffs and the members of the proposed class. Defendants have knowingly and intentionally failed to comply with Labor Code 226(a) on each and every wage statement that should have been provided to Plaintiffs and members of the proposed class. 67. IWC Wage Orders 4-2001(7), 4-2000(7), 4-1998(7) require defendants to maintain time records showing, among others, when the employee begins and ends each work period, meal periods, split shift intervals and total daily hours worked in an itemized wage statements, and must show all deductions from payment of wages, and accurately report total hours worked by Plaintiffs and the members of the proposed class. 68. An employee suffering injury as a result of a knowing and intentional failure by an employer to comply with Labor Code 226(a) is entitled to recover the greater of all actual damages or fifty dollars ($50) for the initial pay period in which a violation occurs and one hundred dollars ($100) per employee for each violation in a subsequent pay period, not exceeding an aggregate penalty of four thousand dollars ($4,000), and is entitled to an award of costs and reasonable attorney's fees. XI. SIXTH CAUSE OF ACTION
WAITING TIME PENALTIES UNDER LABOR CODE 203,203.5
By Plaintiffs For Themselves and the Class Against Defendant WEST COAST and DOES 1 through 50 69. Plaintiffs re-allege and incorporate by reference each and every allegation set forth in the preceding paragraphs. 70. Numerous members of the class including Plaintiffs are no longer employed by Defendants. They were either fired or quit defendants employ. 71. The Defendants' failure to pay wages, as alleged above was willful in that Defendants and each of them knew wages to be due but failed to pay them, thus entitling Plaintiffs and the class to penalties under Labor Code 203, which provides that an employee's wages shall continue as a penalty until paid for a period of up to thirty (30) days from the time they were due. 72. Defendants have failed to pay Plaintiffs and others a sum certain at the time of tennination or within seventy-two (72) hours of their resignation, and have failed to pay those sums for thirty (30) days thereafter. Pursuant to the provisions of Labor Code 203, Plaintiffs and members of the class are entitled to a penalty in the amount of Plaintiffs' and others daily wage multiplied by thirty (30) days.

XII. SEVENTH CAUSE OF ACTION
UNFAIR COMPETITION PURSUANT TO BUSINESS & PROFESSIONS CODE 17200
By Plaintiffs For Themselves and the Class Against Defendant WEST COAST and DOES 1 through 50 73. Plaintiffs re-allege and incorporate by reference each and every allegation set forth in the preceding paragraphs. 74. This is a Representative Private Attorney General Action and Class Action for Unfair Business Practices. Plaintiffs, CHARLES ZYLMAN, ORLANDO ALLEN, ROMARICO LOPEZ and MARK GUERRERO, on behalf of themselves, the general public, and on behalf of others similarly situated, brings this claim pursuant to Business & Professions Code 17200, et seq. The conduct of all Defendants as alleged in this Complaint has been and continues to be unfair, unlawful, and harmful to Plaintiffs, the general public, and the class. Plaintiff seeks to enforce important rights affecting the public interest within the meaning of C.C.P. 1021.5. 75. Plaintiffs are "persons" within the meaning of Business & Professions Code 17204, and therefore has standing to bring this cause of action for injunctive relief, restitution, and other appropriate equitable relief. 76. Business & Profession Code 17200, et seq. prohibits unlawful and unfair business practices. 77. Wage and hour laws express fundamental public policies. Providing employees with compensation and breaks are fundamental public policies of this State and of the United States. Labor Code 90.5(a) articulates the public policies of this State to enforce vigorously minimum labor standards, to ensure that employees are not required or permitted to work under substandard and unlawful conditions, and to protect law-abiding employers and their employees from competitors who lower their costs by failing to comply with minimum labor standards. 78. Defendants have violated statutes and public policies. Through the conduct alleged in this Complaint, Defendants, and each of them, have acted contrary to these public policies, have violated specific provisions of the Labor Code, and have engaged in other unlawful and unfair business practices in violation of Business & Profession Code 17200, et seq., depriving Plaintiffs, and all persons similarly situated, and all interested persons of rights, benefits, and privileges guarantees to all employees under law. 79. Defendants' conduct, as alleged hereinabove, constitutes unfair competition in violation of 17200 et. seq. of the Business & Professions Code. 80. Defendants by engaging in the conduct herein alleged, by not providing proper compensation, either knew or in the exercise of reasonable care should have known that the conduct was unlawful. As such it is a violation of 17200 et. seq. of the Business & Professions Code. 81. Asa proximate result of the above mentioned acts of Defendants, Plaintiffs and others similarly situated have been damaged in a sum as may be proven. 82. Unless restrained by this Court, Defendants will continue to engage in the unlawful conduct as alleged above. Pursuant to Business & Professions Code this Court should make such orders or judgments, including the appointment of a receiver, as may be necessary to prevent the use or employment, by Defendants, their agents or employees, of any unlawful or deceptive practice prohibited by the Business & Professions Code, and/or, including but not limited to, disgorgement of profits which may be necessary to restore Plaintiffs and the class members to the money Defendants have unlawfully failed to pay.

XIII. EIGHTH CAUSE OF ACTION
RECOVERY OF WAGES AND PENALTIES UNDER STATUTORY PAYMENT BONDS
By Plaintiffs For Themselves and the Public Works Subclass Against Defendant WEST COAST, WESTCHESTER and DOES 51 through 100 83. Plaintiffs re-allege and incorporate by reference each and every allegation set forth in the preceding paragraphs. 84. Plaintiffs are informed and believe that contemporaneously with the execution of the contracts for public works projects where one or more of the Plaintiffs and Class Members worked, the Defendant Sureties, (identified as DOES 1-50) issued payment bond(s) for the purpose of complying with Civil Code Sections 3096 and 3247 through 3252, which were thereafter filed with and approved by the Awarding Body and/or its agents. The bonds were statutory bonds and provided that if the contractor, or any of their subcontractors, failed to pay for any work or labor performed on one or more of the respective public works projects, or for skill or services provided to one or more of the respective public works projects, that the surety on the bond would pay the same. 85. Plaintiffs are informed and believe that on or about July 12, 2011, Defendant WESTCHESTER issued at least one payment bond for the Los Angeles County Catch Basin Retrofit Phase 5 project for the purpose of complying with Civil Code Sections 3096 and 3247 through 3252, which were thereafter filed with and approved by the County of Los Angeles and/or its agents. A copy of the payment bond is attached to this Complaint as Exhibit A. 86. Plaintiffs are unaware of the surety and bond number for every payment bond for the public works projects at issue and will amend the complaint to ascertain the same. Plaintiffs and Class Members seek recovery against any and all payment bonds as allowed by law, whether known or unknown, within the applicable statutes of limitations. 87. As a further condition of the payment bonds, the sureties and each of them, promised and agreed to pay for all unpaid labor, skill or services on the respective public works projects at issue, for all laborers of every class on the respective public works projects at issue, and for reasonable attorneys' fees to be fixed by the court in case suit was brought on the bond. 88. In addition, the Sureties are liable for penalties arising out of the nonpayment of required wages, including but not limited to penalties under Labor Code 203 and 203.5. 89. There is now due, owing and unpaid wages and penalties for labor performed on one or more of the respective public works projects at issue by the Plaintiffs and Class Members. Plaintiffs and class members seek as damages the difference between the amount paid and the legal minimum wage and all available penalties. Plaintiffs' audit and investigation are continuing, however, the amounts claimed are above the jurisdictional minimum requirements of this court. As a result of the unlawful acts of Defendants, Plaintiff and class members have been deprived of wages and penalties in amounts to be determined at trial, and are entitled to recovery of such amounts, plus interest thereon, attorneys' fees, and costs."