7.

UNFAIR COMPETITION (Business

and Professions Code 17200 et seq.)

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JURY TRIAL DEMANDED

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Plaintiffs KATHERINE PAGE and ASJA SEVER, as individuals and on behalf of

others similarly situated (hereinafter referred to separately as Page or Sever, or jointly as

Plaintiffs), hereby submit their Class Action Complaint against Defendants GRUPPO

CHIARELLO LLC, a California limited liability company (GRUPPO CHIARELLO);

SERRA HOSPITALITY GROUP, LLC, a California limited liability company (SERRA);

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MICHAEL CHIARELLO, an individual; and DOES 1 through 50, inclusive, (hereinafter

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referred to collectively as Defendants) on behalf of themselves, and the class of others

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similarly situated, as follows:

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INTRODUCTION
1. This class action arises out of the work experience of Page and Sever and all similarly
situated employees and similarly aggrieved employees of GRUPPO CHIARELLO and/or
SERRA who worked at COQUETA, a restaurant located on Pier 5 in San Francisco, California,
between approximately April 2013 and the present.

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2. This class action is within the Courts jurisdiction under California Labor Code,
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California Business and Professions Code 17200, et seq., (Unfair Practices Act) and the
applicable wage order(s) issued by the Industrial Welfare Commission (IWC) including IWC
Wage Order No. 5.
3. This complaint challenges systemic illegal employment practices resulting in
violations of the California Labor Code, Business and Professions Code and applicable IWC
wage orders against employees of Defendants.

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4. Plaintiffs are informed and believe and based thereon allege that Defendants, jointly

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and severally, have acted intentionally and with deliberate indifference and conscious disregard

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CLASS ACTION COMPLAINT

to the rights of all employees in receiving all lawful wages for all hours worked and lawful meal

and rest periods.

5. Plaintiffs are informed and believe and based thereon allege that Defendants have

engaged in, among other things a system of willful violations of the California Labor Code,

Business and Professions Code and applicable IWC wage orders by creating and maintaining

policies, practices and customs that knowingly deny employees: (a) all wages due for all hours

employees were suffered and permitted to work, including by manipulating employees time

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clocks and time sheets to unlawfully deduct time from hours worked, (b) lawful overtime
compensation, (c) lawful meal and rest breaks, (d) tip income; (e) accurate, itemized wage
statements, (f) lawful expense reimbursements, and (g) required payments into employee health
funds. The policies, practices and customs of Defendants, as described above and below, have

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resulted in unjust enrichment of Defendants and an unfair business advantage over businesses
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that routinely adhere to the strictures of the California Labor Code, Business and Professions
Code and applicable IWC wage orders.
JURISDICTION AND VENUE

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6. The Court has jurisdiction over the violations of the California Labor Code,
California Business and Professions Code 17200, et seq., (Unfair Practices Act) and the

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applicable wage order(s) issued by the Industrial Welfare Commission including IWC Wage

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Order No. 10 claims alleged herein.

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7. Venue is proper because Defendants are located within San Francisco County.

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PARTIES

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8. Plaintiffs were victims of the policies, practices and customs of Defendants

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complained of in this action in ways that have deprived them of the rights guaranteed to them by

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California Labor Code, California Business and Professions Code 17200, et seq., (Unfair

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Practices Act) and the applicable wage order(s) issued by the Industrial Welfare Commission

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including IWC Wage Order No. 5. Defendants employed Plaintiffs at all times relevant to this

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complaint.

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CLASS ACTION COMPLAINT

9. Plaintiff KATHERINE PAGE was employed with Defendants from approximately

April 1, 2013 through mid-March 2016. PAGE was employed as a server at COQUETA, a San

Francisco restaurant operated and managed by all Defendants named herein at all times relevant

to the events described in this complaint.

10. Plaintiff ASJA SEVER was employed with Defendants from approximately April 1,

2014 through mid-March 2016. SEVER was also employed as a server at COQUETA, a San

Francisco restaurant operated and managed by all Defendants named herein at all times relevant

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to the events described in this complaint.

11. On information and belief, Defendant SERRA, a California limited liability company,
is doing business at Pier 5, The Embarcadero, San Francisco, California, 94111. Plaintiffs
provided services as employees to Defendant SERRA at the COQUETA restaurant located in

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San Francisco, California.
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12. On information and belief, Defendant GRUPPO CHIARELLO, a California limited

liability company, is doing business at Pier 5, The Embarcadero, San Francisco, California,
94111. Plaintiffs are informed and believe and thereon allege that they provide services as
employees to Defendant GRUPPO CHIARELLO at the COQUETA restaurant located in San
Francisco, California.
13. On information and belief, Defendant MICHAEL CHIARELLO was at all relevant

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times mentioned herein the President and Owner of GRUPPO CHIARELLO and SERRA, and a

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resident of the State of California. CHIARELLO owns and/or operates several local businesses

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including but not limited COQUETA, where Plaintiffs and class members worked. On

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information and belief, CHIARELLO controlled and regulated the working conditions, hours

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worked, and payment of wages for Plaintiffs and all class members. Upon timely amendment of

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this Complaint as a matter of right, Plaintiffs will assert a claim against CHIARELLO, GRUPPO

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CHIARELLO, and SERRA for Violations of Labor Code 2699 et seq. (Private Attorneys

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General Act).

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14. Plaintiffs are informed and believe and thereon allege that at all times herein

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CLASS ACTION COMPLAINT

mentioned Defendants and DOES 1 through 50, are and were corporations, business entities,

individuals, and partnerships, licensed to do business and actually doing business in the State of

California. Defendants GRUPPO CHIARELLO, SERRA and/or CHIARELLO own, operate,

and manage the COQUETA restaurant in San Francisco, California, among other restaurants in

the San Francisco Bay Area. As such, and based upon all the facts and circumstances incident to

Defendants business in California, Defendants are subject to California Labor Code, California

Business and Professions Code 17200, et seq., (Unfair Practices Act) and the applicable wage

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order(s) issued by the Industrial Welfare Commission including IWC Wage Order No. 10.
15.

Plaintiffs do not know the true names or capacities, whether individual, partner or

corporate, of the Defendants sued herein as DOES 1 through 50, inclusive, and for that reason,
said Defendants are sued under such fictitious names, and Plaintiffs pray leave to amend this

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complaint when the true names and capacities are known. Plaintiffs are informed and believe
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and thereon allege that each of said fictitious Defendants was responsible in some way for the
matters alleged herein and proximately caused Plaintiffs and members of the class to be subject
to the illegal employment practices, wrongs and injuries complained of herein.
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Plaintiffs are informed and believe and based thereon allege that Defendants

GRUPPO CHIARELLO and SERRA share common ownership and common management.

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Further, Plaintiffs are informed and believe and based thereon allege that Defendants are a single

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employer for purposes of liability because of interrelation of operations, common management,

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centralized control of labor relations, and common ownership or financial control. Plaintiffs are

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informed and believe and based thereon allege that there is such a unity of interest and ownership

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between Defendants that their separate personalities no longer exist, and that an inequitable

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result would follow if they were not all liable. Plaintiffs are informed and believe and based

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thereon allege that Defendants jointly employed them and the class members.

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17.

At all times herein mentioned, each of said Defendants participated in the doing

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of the acts hereinafter alleged to have been done by the named Defendants; and furthermore, the

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Defendants, and each of them, were the agents, servants and employees of each of the other

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CLASS ACTION COMPLAINT

Defendants, as well as the agents of all Defendants, and at all times herein mentioned, were

acting within the course and scope of said agency and employment.

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Plaintiffs are informed and believe and based thereon allege that at all times

material hereto, each of the Defendants named herein was the agent, employee, alter ego and/or

joint venturer of, or working in concert with each of the other co-Defendants and was acting

within the course and scope of such agency, employment, joint venture, or concerted activity.

To the extent said acts, conduct, and omissions were perpetrated by certain Defendants, each of

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the remaining Defendants confirmed and ratified said acts, conduct, and omissions of the acting
Defendant.
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At all times herein mentioned, Defendants, and each of them, were members of,

and engaged in, a joint venture, partnership and common enterprise, and were acting within the

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course and scope of, and in pursuance of, said joint venture, partnership and common enterprise.
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20.

At all times herein mentioned, the acts and omissions of various Defendants, and

each of them, concurred and contributed to the various acts and omissions of each and all of the
other Defendants in proximately causing the injuries and damages as herein alleged.
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At all times herein mentioned, Defendants, and each of them, ratified each and

every act or omission complained of herein. At all times herein mentioned, the Defendants, and

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each of them, aided and abetted the acts and omissions of each and all of the other Defendants in

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proximately causing the damages as herein alleged.

CLASS ACTION ALLEGATIONS

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22.

Definition: The named individual Plaintiffs bring this action on behalf of

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themselves and the class pursuant to California Code of Civil Procedure 382 and is consistent

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with Fed. R. Civ. P. Rules 23(a), (b)(1), (b)(2), and (b)(3). The class is defined as: All current

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and former non-exempt employees who were employed by Defendants GRUPPO CHIARELLO

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and/or SERRA and worked at COQUETA in San Francisco within the last four years up to the

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time that class certification is granted. A subclass is defined as All current and former non-

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exempt service employees who were employed by Defendants GRUPPO CHIARELLO and/or

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CLASS ACTION COMPLAINT

SERRA and worked at COQUETA in San Francisco within the last four years up to the time that

class certification is granted.

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Numerosity: The members of the class are so numerous that joinder of all

members would be impractical, if not impossible. The identity of the members of the class is

readily ascertainable by review of Defendants records. Plaintiffs are informed and believe and

based thereon allege that: (a) Defendants have a policy and practice of failing to pay employees

wages for all hours worked by them; (b) Defendants have a policy and practice of failing to pay

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overtime compensation to non-exempt employees who work over eight hours in a workday; (c)
Defendants manipulate employees time clocks and time sheets to unlawfully deduct time from
hours worked, to avoid the payment of overtime compensation and minimum wages for all hours
worked; (d) Defendants unlawfully require a subclass of employees to pool their tips with

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kitchen staff; (e) Defendants fail to provide lawful meal breaks; (f) Defendants fail to authorize
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and permit employees to take lawful rest breaks; (g) class members are not provided with
accurate itemized wage statements; (h) class members are not reimbursed for all expenses
incidental to the discharge of their duties; (i) Defendants fail to make required payments into
employee health funds; and (j) class members are not paid all wages at the separation of
employment.
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Adequacy of Representation: The named Plaintiffs are fully prepared to take all

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necessary steps to fairly and adequately represent the interests of the class defined above.

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Plaintiffs attorneys are ready, willing and able to fully and adequately represent the class and the

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individual Plaintiffs.

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25.

Defendants uniformly administered a company policy, practice and/or custom that

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caused: (a) class members not to be paid wages for all hours they worked, including time

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deducted by Defendants by manipulating employees time clocks and time sheets to unlawfully

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deduct time from hours worked; (b) class members not to be paid overtime compensation; (c)

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class members not to be provided with lawful meal breaks; (d) subclass members are required to

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pool their tips with kitchen staff; (e) class members not to be authorized and permitted to take

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CLASS ACTION COMPLAINT

lawful rest breaks; (f) class members not to be provided with accurate itemized wage statements;

(g) class members not to receive reimbursements for expenses incidental to the discharge of their

duties; (h) class members not to receive required contributions to employee health funds; (i) class

members to not be paid all wages due at separation of employment. Plaintiffs are informed and

believe and based thereon allege that this conduct is accomplished with the advance knowledge

and designed intent to willfully withhold appropriate wages for work performed by class

members. Defendants uniformly administered a corporate policy, practice and/or custom of not

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paying members of the class for all hours worked and not providing lawful meal and rest breaks.
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Plaintiffs are informed and believe and based thereon allege that Defendants, in

violation of California Labor Code 201 and 202, et seq., respectfully, had a consistent and
uniform policy, practice and custom of willfully failing to comply with Labor Code 226.7 and

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1194, and 1198. Plaintiffs and other members of the class did not secret or absent themselves
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from Defendants, nor refuse to accept the earned and unpaid wages from Defendants.
Accordingly, Defendants are liable for waiting time compensation for the unpaid wages to
separated employees pursuant to California Labor Code 203.
27.

As a pattern and practice, in violation of the aforementioned labor laws and wage

orders, Defendants did not maintain adequate records, and/or altered records pertaining to when

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Plaintiffs and the members of the class began and ended each work period, meal period, the total

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daily hours worked, and the total hours worked per pay period and applicable rates of pay in

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violation of California Labor Code 1174.

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28.

Common Question of Law and Fact: There are predominant common questions

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of law and fact and a community of interest amongst Plaintiffs and the claims of the class

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concerning whether: (a) Defendants fail to pay employees minimum wages for actual hours

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worked, including by manipulating employees time clocks and time sheets to unlawfully deduct

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time from hours worked; (b) Defendants fail to pay overtime compensation when non-exempt

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employees work over eight hours in a workday; (c) Defendants unlawfully require subclass

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employees to pool their tips with kitchen staff; (d) Defendants fail to provide lawful meal breaks;

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CLASS ACTION COMPLAINT

(e) Defendants fail to authorize and permit employees to take lawful rest breaks; (f) class

members are not provided with accurate itemized wage statements; (g) class members do not

receive reimbursements for expenses incidental to the discharge of their duties; (h) class

members do not receive required contributions to employee health funds; (i) class members are

not paid all wages due at separation of employment; (j) Defendants employment policies and

practices wrongfully and illegally failed to compensate Plaintiffs and the other members of the

class as required by California law.

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29.

Typicality: The claims of Plaintiffs are typical of the claims of all members of

the class. Each Plaintiff is a member of the class and has suffered the alleged violations of the
California Labor Code and California Industrial Welfare Commission wage orders including
IWC Wage Order No. 5, described herein.

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30.

The California Labor Code and Wage Order provisions upon which Plaintiffs

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base their claims are broadly remedial in nature. These laws and labor standards serve an
important public interest in establishing minimum working conditions and standards in
California. These laws and labor standards protect the average working employee from
exploitation by employers who may seek to take advantage of superior economic and bargaining
power in setting onerous terms and conditions of employment.
31.

The nature of this action and the format of laws available to Plaintiffs and

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members of the class identified herein make the class action format a particularly efficient and

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appropriate procedure to redress the wrongs alleged herein. If each employee were required to

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file an individual lawsuit, the corporate Defendants would necessarily gain an unconscionable

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advantage since it would be able to exploit and overwhelm the limited resources of each

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individual plaintiff with their vastly superior financial and legal resources. Requiring each class

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member to pursue an individual remedy would also discourage the assertion of lawful claims by

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employees who would be disinclined to file an action against their former and/or current

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employer for real and justifiable fear of retaliation and permanent damage to their careers at

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subsequent employment.

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CLASS ACTION COMPLAINT

32.

The prosecution of separate actions by the individual class members, even if

possible, would create a substantial risk of: (a) inconsistent or varying adjudications with respect

to individual class members against the Defendants and which would establish potentially

incompatible standards of conduct for the Defendants, and/or (b) adjudications with respect to

individual class members which would, as a practical matter, be dispositive of the interest of the

other class members not parties to the adjudications or which would substantially impair or

impede the ability of the class members to protect their interests. Further, the claims of the

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individual members of the class are not sufficiently large to warrant vigorous individual
prosecution considering all of the concomitant costs and expenses.
33.

Proof of a common business practice or factual pattern, of which the named

Plaintiffs experienced, is representative and will establish the right of each of the members of the

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plaintiff class to recovery on the causes of action alleged herein.
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34.

The plaintiff class is commonly entitled to a specific fund with respect to the

compensation illegally and unfairly retained by Defendants. The plaintiff class is commonly
entitled to restitution of those funds being improperly withheld by Defendants. This action is
brought for the benefit of the entire class and will result in the creation of a common fund.
FACTUAL ALLEGATIONS RELEVANT TO CAUSES OF ACTION

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35. Defendants operation of COQUETA restaurant in San Francisco, California is

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marred with rampant wage and hour violations. These Labor Code violations include: the willful

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refusal to pay employees wages for all hours worked and overtime wages for all overtime hours

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worked; the routine, systematic denials of meal and rest breaks to employees; the deliberate

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falsification of time and attendance records; the issuance of false wage statements; the failure to

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reimburse employees for expenses incidental to the discharge of their duties; the failure to pay

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into required employee health funds.

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36.

Defendants failed to pay non-exempt workers employed by them minimum wages

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for all hours worked, as required by Labor Code 200 et seq. Defendants ran such a poorly

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functioning establishment that Plaintiffs and class members routinely were required to work

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CLASS ACTION COMPLAINT

multiple ten-hour and double shifts each week. However, on a routine and systematic basis,

Defendants surreptitiously changed employee timesheets, so that the timesheets falsely reflected

the amount of hours that Plaintiffs and class members actually worked. Without notifying

Plaintiffs or class members, Defendants managers manipulated the time records without their

authorization, and unlawfully deducted hours from their timesheets, such that Plaintiffs and class

members were not paid minimum wages for all hours they actually worked. In addition,

Defendants made unlawful deductions from subclass employees earned nightly tips.

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37. In addition to their failure to pay minimum wages for all hours actually worked,
Defendants unscrupulous and unlawful time deduction policies resulted in a failure to pay
Plaintiffs and class members overtime wages in violation of Labor Code 510. By deceitfully
deducting hours from their timesheets, Defendants failed to pay overtime compensation to

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Plaintiffs and class members who worked over eight hours in a workday, or forty hours in a
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workweek. Defendants deliberately falsified employee time records to avoid paying Plaintiffs
and class members overtime compensation that they rightfully earned. Defendants have no
lawful Alternative Workweek schedule in place which would allow them to only pay overtime
compensation when non-exempt employees work over ten hours in a shift.
38. In addition, Plaintiffs and class members were routinely denied the opportunity to

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take meal periods and rest breaks. Plaintiffs and class members worked for periods of more than

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four (4) hours without a rest period of ten (10) minutes, and for periods of more than five (5)

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hours without a meal period of thirty (30) minutes. Defendants routinely required Plaintiffs and

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class members to work through their rest breaks. Even though Plaintiffs and class members

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clocked out for their meal periods, Defendants managers required Plaintiffs and class members

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to perform work while they were clocked out, such as running food, putting away wine

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deliveries, stocking, and running personal errands for Defendants managers. When employees

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worked double shifts, Defendants denied them their right to take an additional meal period.

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Defendants falsified employee time records to make it appear as though Plaintiffs and class

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members were given a meal period, when in reality they worked through their meal period.

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CLASS ACTION COMPLAINT

39.

Defendants also failed to furnish Plaintiffs and class members with wage

statements that contained all nine pieces of information required by Labor Code 226.

Defendants furnished Plaintiffs and class members with paystubs that neglected to accurately

state: proper total hours, including overtime hours, worked by Plaintiffs and all similarly situated

employees, accurate gross wages earned, all applicable hourly rates and the corresponding

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number of hours worked by Plaintiffs and all similarly situated employees at each rate. Because
Defendants unscrupulously altered the time sheets of Plaintiffs and class members, Defendants
wage statements contained false and inaccurate information.
40. Defendants also failed to reimburse employees for all work-related expenses, as

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required by Cal. Labor Code 2802. Among other things, Defendants routinely required
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Plaintiffs and class members to pay for the dry-cleaning of their work clothing and to purchase
incidental items for Defendants managers. Plaintiffs and class members were not reimbursed
for expenses that were incidental to the discharge of their employment duties, or incurred at the
direction of their employer.
41. Defendants also failed to make certain payments into an employee health care fund,

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in violation of Labor Code 227. Defendants agreed to make certain payments into a health

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services account for the benefit of employees, and were required to make minimum payments in

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accordance with local ordinances. Nonetheless, Defendants failed to make the required

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payments for Plaintiffs and class members.

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42. Defendants also required servers to pool and share tips with other employees not in
the line of service, including kitchen employees in violation of Labor Code 350 et seq.

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FIRST CAUSE OF ACTION

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BY PLAINTIFFS ON BEHALF OF THEMSELVES AND CLASS FOR FAILING TO

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PAY WAGES FOR ALL HOURS WORKED

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(Against Defendants Gruppo Chiarello and Serra)

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43.

Plaintiffs re-allege and incorporate by reference each and every allegation set

forth in the preceding paragraphs.

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CLASS ACTION COMPLAINT

44.

This cause of action is brought pursuant to Labor Code 200 et seq., which

provides that employees are entitled to wages and compensation for work performed, and

provides a private right of action for failure to pay wages and compensation for said work

performed. Labor Code 1194 entitles a plaintiff to recover unpaid wages. Labor Code

1194.2 entitles a plaintiff to recover liquidated damages in an equal amount for unpaid minimum

wages.

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45.

As a pattern and practice, in violation of the aforementioned labor laws and wage

orders, Plaintiffs are informed and believe and based thereon allege that Defendants did not
properly maintain records pertaining to when Plaintiffs and the putative class took their meal

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periods, the total daily hours worked, and the total hours worked per pay period and applicable
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rates of pay in violation of California Labor Code 1174.

46.

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Such a pattern, practice and uniform administration of corporate policy regarding

illegal employee compensation as described herein is unlawful and creates an entitlement to

recovery by Plaintiffs in a civil action, for the unpaid balance of the full amount of straight time

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compensation and minimum wage owing, including interest thereon, penalties, reasonable

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attorneys fees, and costs of suit according to the mandate of California Labor Code 1194, et

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seq.

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47.

Defendants wrongful and illegal conduct in failing to provide class members

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with minimum wage payments in accordance with Labor Code 1194 and IWC Wage Order No.

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10 despite the clear legal obligation to do so, unless and until enjoined and restrained by order of

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this court, will cause great and irreparable injury to Plaintiffs and all members of the class in that

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the Defendants will continue to violate these California laws, represented by labor statutes and

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wage orders, unless specifically ordered to comply with same. This expectation of future

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violations will require current and future employees to repeatedly and continuously seek legal

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redress in order to gain compensation to which they are entitled under California law. Plaintiffs
have no other adequate remedy at law to insure future compliance with the California labor laws
and wage orders alleged to have been violated herein.

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CLASS ACTION COMPLAINT

SECOND CAUSE OF ACTION

BY PLAINTIFFS ON BEHALF OF THEMSELVES AND CLASS FOR FAILING TO

PAY OVERTIME WAGES FOR ALL OVERTIME HOURS WORKED

(Against Defendants Gruppo Chiarello and Serra)

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48.

Plaintiffs re-allege and incorporate by reference each and every allegation set

forth in the preceding paragraphs.

49.

This cause of action is brought pursuant to Labor Code 510 et seq., which

provides that employees are entitled to be compensated: (a) at the rate of no less than one and
one-half times the regular rate of pay for any work in excess of eight hours in one workday or
forty hours in any one workweek, and (b) at the rate of no less than twice the regular rate of pay

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for work in excess of twelve hours in one day. Labor Code 1194 et seq., provides a private
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right of action for failure to pay overtime wages and compensation for said work performed.
Labor Code 1194 entitles a plaintiff to recover unpaid wages. Labor Code 1194.2 entitles a
plaintiff to recover liquidated damages in an equal amount for unpaid minimum wages.
50.

As a pattern and practice, in violation of the aforementioned labor laws and wage

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orders, Plaintiffs are informed and believe and based thereon allege that Defendants did not

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properly maintain records pertaining to when Plaintiffs and the putative class took their meal

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periods, the total daily hours worked, and the total hours worked per pay period and applicable

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rates of pay in violation of California Labor Code 1174.

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51.

Such a pattern, practice and uniform administration of corporate policy regarding

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illegal employee compensation as described herein is unlawful and creates an entitlement to

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recovery by Plaintiffs in a civil action, for the unpaid balance of the full amount of overtime

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wages and compensation owing, including interest thereon, penalties, reasonable attorneys fees,

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and costs of suit according to the mandate of California Labor Code 1194, et seq.

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52.

Defendants wrongful and illegal conduct in failing to provide class members

with overtime wage payments in accordance with Labor Code 1194 and IWC Wage Order No.
10 despite the clear legal obligation to do so, unless and until enjoined and restrained by order of

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CLASS ACTION COMPLAINT

this court, will cause great and irreparable injury to Plaintiffs and all members of the class in that

the Defendants will continue to violate these California laws, represented by labor statutes and

wage orders, unless specifically ordered to comply with same. This expectation of future

violations will require current and future employees to repeatedly and continuously seek legal

redress in order to gain compensation to which they are entitled under California law. Plaintiffs

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have no other adequate remedy at law to insure future compliance with the California labor laws
and wage orders alleged to have been violated herein.

THIRD CAUSE OF ACTION

BY PLAINTIFFS ON BEHALF OF THEMSELVES AND THE CLASS

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FOR FAILURE TO PROVIDE MEAL BREAKS

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(Against Defendants Gruppo Chiarello and Serra)

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53.

Plaintiffs re-allege and incorporate by reference each and every allegation set

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forth in the preceding paragraphs.

54.

Defendants failed in their affirmative obligation to ensure that all of their

employees, including Plaintiffs and other members of the class, were actually relieved of all
duties, not performing any work, and free to leave the premises during meal periods. Plaintiffs
and the class were suffered and permitted to work through legally required meal breaks. As

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such, Defendants are responsible for paying premium compensation for missed meal periods

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pursuant to Labor Code 226.7 and IWC Wage Order No. 5 11(B). Defendants shall pay each

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affected employee one (1) hour of pay at the employees regular rate of compensation for each

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workday that the meal break was not provided.

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55.

Plaintiffs and class members regularly worked in excess of five (5) hours per day

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and accordingly had a right to take a 30-minute meal period each day they worked in excess of

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five (5) hours.

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56.

As a pattern and practice, Defendants regularly required employees to work

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through their meal periods without proper compensation. Defendants did staff employees in

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such a manner and at such posts that would make it impossible for these employees to take their

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CLASS ACTION COMPLAINT

meal period. This policy of requiring employees to work through their legally mandated meal

periods is a violation of California law.

57.

Plaintiffs are informed and believe and based thereon allege that Defendants

willfully failed to pay employees who were not provided the opportunity to take meal breaks the

premium compensation set out in Labor Code 226.7 and IWC Wage Order No. 5 11(B).

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58.

As a pattern and practice, in violation of the aforementioned labor laws and wage

orders, Plaintiffs are informed and believe and based thereon allege that Defendants did not
properly maintain records pertaining to when Plaintiffs began and ended each meal period in
violation of California Labor Code 1174 and 7 of the applicable IWC Wage Order(s).
59.

Such a pattern, practice and uniform administration of corporate policy as

described herein is unlawful and creates an entitlement to recovery by the Plaintiffs and the class

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identified herein, in a civil action, for the unpaid balance of the unpaid premium compensation
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pursuant to Labor Code 226.7 and IWC Wage Order No. 5 11(B), including interest thereon,
penalties, reasonable attorneys fees, and costs of suit according to the mandate of California
Labor Code 1194.
60.

Defendants wrongful and illegal conduct in failing to provide class members

with the opportunity to take meal breaks and to provide premium compensation in accordance

19

with Labor Code 226.7 and 512 and IWC Wage Order No. 5 11(B) despite the clear legal

20

obligation to do so, unless and until enjoined and restrained by order of this court, will cause

21

great and irreparable injury to Plaintiffs and all members of the class in that the Defendants will

22

continue to violate these California laws, represented by labor statutes and wage orders, unless

23

specifically ordered to comply with same. This expectation of future violations will require

24

current and future employees to repeatedly and continuously seek legal redress in order to gain

25

compensation to which they are entitled under California law. Plaintiffs have no other adequate

26

remedy at law to insure future compliance with the California labor laws and wage orders

27

alleged to have been violated herein.

28

16
CLASS ACTION COMPLAINT

FOURTH CAUSE OF ACTION

BY PLAINTIFFS ON BEHALF OF THEMSELVES

AND CLASS FOR DENIAL OF LAWFUL REST BREAKS

(Against Defendants Gruppo Chiarello and Serra)

5
6

61.

forth in the preceding paragraphs.

7
8
9
10
11

62.

Defendants affirmatively prevented Plaintiffs and class members from taking

legally mandated rest breaks. As such, Defendants are responsible for paying premium
compensation for missed rest periods pursuant to Labor Code 226.7 and IWC Wage Order No.
5 12(B). Defendants shall pay each affected employee one (1) hour of pay at the employees
regular rate of compensation for each workday that the rest break was not provided.

12
13

Plaintiffs re-allege and incorporate by reference each and every allegation set

63.

Plaintiffs and class members regularly worked in excess of three and half (3 )

hours per day. Defendants policies and practices prevented Plaintiffs and class members from

14
enjoying their right to a ten (10) minute rest period in the middle of each four (4) hour work
15
16
17
18
19
20
21

period.
64.

As a pattern and practice, Defendants regularly required employees to work

through rest periods. Defendants and Defendants supervisors assigned work, scheduled shifts,
and staffed worksites in a manner that did not allow Plaintiffs and class members to regularly
take rest periods.
65.

Plaintiffs are informed and believe and based thereon allege that Defendants

22

willfully failed to pay employees who were not provided the opportunity to take rest breaks the

23

premium compensation set out in Labor Code 226.7 and IWC Wage Order No. 5 12(B).

24

66.

Such a pattern, practice and uniform administration of corporate policy as

25

described herein is unlawful and creates an entitlement to recovery by the Plaintiffs and the class

26

identified herein, in a civil action, for the unpaid balance of the unpaid premium compensation

27

pursuant to Labor Code 226.7 and IWC Wage Order No. 5 12(B), including interest thereon,

28

penalties, reasonable attorneys fees, and costs of suit according to the mandate of California

17
CLASS ACTION COMPLAINT

1
2

Labor Code 1194.

67.

Defendants wrongful and illegal conduct in failing provide class members with

the opportunity to take rest breaks and to provide premium compensation in accordance with

Labor Code 226.7 and 512 and IWC Wage Order No. 5 12(B) despite the clear legal

obligation to do so, unless and until enjoined and restrained by order of this court, will cause

great and irreparable injury to Plaintiffs and all members of the class in that the Defendants will

continue to violate these California laws, represented by labor statutes and IWC wage orders,

8
9
10
11

unless specifically ordered to comply with same. This expectation of future violations will
require current and future employees to repeatedly and continuously seek legal redress in order
to gain compensation to which they are entitled under California law. Plaintiffs have no other
adequate remedy at law to insure future compliance with the California labor laws and wage

12
orders alleged to have been violated herein.
13
FIFTH CAUSE OF ACTION

14
15

BY PLAINTIFFS ON BEHALF OF THEMSELVES AND THE CLASS FOR

VIOLATION OF LABOR CODE 226

16
17
18
19
20

(Against Defendants Gruppo Chiarello and Serra)

68. Plaintiffs re-allege and incorporate by reference each and every allegation set forth in
the preceding paragraphs.
69. Plaintiffs and all similarly situated employees have been harmed as described herein:

21

(a) class members were not paid all minimum wages; (b) class members were not paid all

22

overtime compensation; (c) Defendants unlawfully require subclass employees to pool their tips

23

with kitchen staff; (d) class members were not provided with lawful meal breaks; (e) class

24

members were not authorized and permitted to take lawful rest breaks; (f) class members were

25

not paid all wages due at separation of employment.

26

70. As a pattern and practice, Defendants failed to furnish Plaintiffs and all similarly

27

situated employees, either semimonthly or at the time of each payment of wages, either as a

28

detachable part of the check or separately, an accurate, itemized statement in writing showing

18
CLASS ACTION COMPLAINT

gross wages earned, total hours worked, and the applicable hourly rates and corresponding

number of hours worked by Plaintiffs and all similarly situated employees at each rate.

71. Defendants willfully and intentionally failed to provide Plaintiffs and all similarly

situated employees with accurate, itemized statements, to show on such itemized statements the

proper total hours, including overtime hours, worked by Plaintiffs and all similarly situated

6
7
8
9

employees in that it required or suffered them to work and failed to pay wages to them for all
hours worked. Defendants willfully and intentionally failed to show accurate gross wages
earned, total hours worked by Plaintiffs and all similarly situated employees, and all applicable
hourly rates and the corresponding number of hours worked by Plaintiffs and all similarly

10
situated employees at each rate.
11
12
13
14
15

72. As such, Plaintiffs and all similarly situated employees are entitled to payment from
Defendants of the greater of actual damages or $50 for the initial pay period in which the
violation occurred and $100 for each subsequent violation, up to a maximum of $4000, pursuant
to Labor Code 226, as well as reasonable attorneys fees and costs of suit.

16

SIXTH CAUSE OF ACTION

17

BY PLAINTIFFS ON BEHALF OF THEMSELVES AND

18

THE CLASS FOR VIOLATION OF LABOR CODE 2802

19

(Against Defendants Gruppo Chiarello and Serra)

20
21

73. Plaintiffs re-allege and incorporate by reference each and every allegation set forth in
the preceding paragraphs.

22

74. Labor Code 2802 requires an employer to indemnify employees for all necessary

23

expenditures or losses incurred in direct consequence of the discharge of an employees duties,

24

or based on the directions of the employer.

25

75. Plaintiffs and all similarly situated employees have been harmed because Defendants

26

required them to incur expenditures and losses for materials and services related to the discharge

27

of their duties or a result of instructions given to them, and willfully and intentionally failed to

28

reimburse the employees for all such expenditures and losses.

19
CLASS ACTION COMPLAINT

76. As such, Plaintiffs and all similarly situated employees are entitled to recover the

unpaid balance of all such unreimbursed expenditures and losses, including interest thereon,

penalties, including those available under Labor Code 558, reasonable attorneys fees, and

costs of suit according to the mandate of California Labor Code 1194.

SEVENTH CAUSE OF ACTION

BY PLAINTIFFS ON BEHALF OF THEMSELVES AND THE CLASS FOR

VIOLATIONS OF BUSINESS AND PROFESSIONS CODE 17200 ET SEQ.

(Against Defendants Gruppo Chiarello and Serra)

9
10
11
12
13

77. Plaintiffs re-allege and incorporate by reference each and every allegation set forth in
the preceding paragraphs.
78.

Defendants engage and continue to engage in the following unfair business

practices in California: (a) class members were not lawfully paid for all hours worked; (b) class
members were not paid overtime compensation for all hours worked; (c) class members were not

14
15
16
17
18
19
20

provided with lawful meal breaks; (d) class members were not authorized and permitted to take
lawful rest breaks; (e) subclass employees were required to pool tips and share the tip pool with
employees not in the line of service.
79.

Defendants utilization of such unfair business practices constitutes unfair

competition and provides an unfair advantage over Defendants competitors.

80.

Plaintiffs seek, on their own behalf, on behalf of other members of the class

21

similarly situated, full restitution of monies, as necessary and according to proof, to restore any

22

and all monies withheld, acquired and/or converted by the Defendants by means of the unfair

23

practices complained of herein.

24

81.

Plaintiffs seek on their own behalf, and on behalf of other members of the class

25

similarly situated, an injunction to prohibit Defendants from continuing to engage in the unfair

26

business practices complained of herein.

27
28

82.

The restitution includes the equivalent of all unpaid wages for hours worked

whether it be straight-time or overtime; all unpaid premium compensation mandated by Labor

20
CLASS ACTION COMPLAINT

Code 226.7 and IWC Wage Order No. 10 11(B) and 12(B), including interest thereon.

2
3

83.

The acts complained of herein occurred within the last four years preceding the

filing of the complaint in this action.

84.

Plaintiffs are informed and believe and on that basis allege that at all times herein

mentioned Defendants have engaged in unlawful, deceptive and unfair business practices, as

proscribed by California Business and Professions Code 17200 et seq., including those set

forth herein above thereby depriving Plaintiffs and other members of the class the minimum

8
9

working condition standards and conditions due to them under the California laws and Industrial
Welfare Commission wage orders as specifically described therein.

10

PRAYER FOR RELIEF

11

WHEREFORE, Plaintiffs on their own behalf and on the behalf of the members of the

12
class and all aggrieved employees, pray for judgment as follows:
13
14
15
16
17
18

1.

For an order certifying the proposed class and subclass;

2.

For consequential damages according to proof;

3.

For liquidated damages according to proof pursuant to Labor Code 1194.2;

4.

For waiting time wages according to proof pursuant to California Labor Code 203;

5.

For consequential damages according to proof as set forth in California Labor Code
226.7 and IWC Wage Order No. 5 11(B) related to meal breaks;

19
20

6.

That Defendants be ordered to show cause why they should not be enjoined and ordered

21

to comply with the applicable Labor Code provisions and California Industrial Welfare

22

Commission wage orders related to minimum wage compensation, overtime

23

compensation, meal breaks and record keeping for Defendants employees related to

24

same; and for an order enjoining and restraining Defendants and their agents, servants

25

and employees related thereto;

26

7.

27
28

For consequential damages according to proof as set forth in California Labor Code
226.7 and IWC Wage Order No. 5 12(B) related to rest breaks;

8.

That Defendants be ordered to show cause why they should not be enjoined and ordered

21
CLASS ACTION COMPLAINT

to comply with the applicable California Industrial Welfare Commission wage orders

related to rest breaks; and for an order enjoining and restraining Defendants and their

agents, servants and employees related thereto;

9.

For restitution to Plaintiffs and other similarly effected members of the class of all funds

unlawfully acquired by Defendants by means of any acts or practices declared by this

Court to be violative of the mandate established by California Business and Professions

Code 17200 et seq.;

10. For an injunction to prohibit Defendants to engage in the unfair business practices

complained of herein;

10

11. For an injunction requiring Defendants to give notice to persons to whom restitution is

11

owing of the means by which to file for restitution;

12
12. For actual damages or statutory penalties according to proof as set forth in California
13
Labor Code 226 and IWC Wage Order No. 5 7(B) related to record keeping;

14

13. That Defendants be ordered to show cause why they should not be enjoined and ordered

15

to comply with the applicable California Industrial Welfare Commission wage orders

16

related to record keeping for Defendants employees related to same; and for an order

17

enjoining and restraining Defendants and their agents, servants and employees related

18

thereto;

19

14. For civil penalties pursuant to Labor Code 2699(f) and (g) for each aggrieved

20

employee per pay period for each subsequent violation

21

15. For pre-judgment interest as allowed by California Labor Code 218.5 or 1194 and

22

California Civil Code 3287;

23

16. For reasonable attorneys fees, expenses and costs as provided by California Labor

24
25

Code 226, 1194, 2699 or Code of Civil Procedure 1021.5; and,

26

17. For such other and further relief the court may deem just and proper.

27

//

28

//

22
CLASS ACTION COMPLAINT