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JAMES HAWKINS APLC
James R. Hawkins, Esq. (#192925)
Gregory Mauro, Esq. (#222239)
Michael Calvo, Esq. (#314986)
Ava Issary, Esq. (#342252)
Lauren Falk, Esq. (#316893)
9880 Research Drive, Suite Irvine, CA Tel.: (949) 387-Fax: (949) 387-Email: James@jameshawkinsaplc.com
Email: Greg@jameshawkinsaplc.com
Email: Michael@jameshawkinsaplc.com
Email: Ava@jameshawkinsaplc.com
Email: Lauren@jameshawkinsaplc.com
Attorneys for Plaintiffs ANGEL CALANGIAN, and JEEAN JOY ICATAR SANTIAGO on
behalf of the general public as private attorney general
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF ALAMEDA
ANGEL CALANGIAN AND JEEAN JOY
ICATAR SANTIAGO, on behalf of the general
public as private attorney general
Plaintiffs,
Case No.
PAGA REPRESENTATIVE ACTION
COMPLAINT PURSUANT TO THE
PRIVATE ATTORNEYS GENERAL ACT
(Labor Code §§ 2698 et seq).
v.
TESLA, INC., dba TESLA MOTORS, INC., a
Delaware Corporation; and DOES 1-50,
inclusive,
Defendants
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COMES NOW Plaintiffs ANGEL CALANGIAN and JEEAN JOY ICATAR SANTIAGO
(“Plaintiffs”), on behalf the general public and all non-exempt aggrieved employees, acting on
behalf of the California Attorney General as private attorney general, asserts claims against
Defendants TESLA, INC., dba TESLA MOTORS, INC.; and DOES 1-50, inclusive (collectively
“Defendants”) as follows:
I.
1.
INTRODUCTION
This is a representative action for recovery of penalties under the Private Attorneys
General Act of 2004 (“PAGA”), Cal. Lab. Code sections 2698 et seq. PAGA permits “aggrieved
employees” to bring a lawsuit as a representative action on behalf of the general public as private
attorney general and all other current and former aggrieved employees, to recover civil penalties
and address an employer’s violations of the California Labor Code.
2.
In this case, Defendants violated various provisions of the California Labor Code.
As set forth below, Defendants implemented policies and practices which led to unpaid wages
resulting from Defendant’s: (a) failure to pay wages including overtime, (b) failure to provide meal
periods for every work period exceeding more than ten (10) hours per day and failure to pay an
additional hour’s of pay or accurately pay an additional hour’s of pay in lieu of providing a meal
period; (c) failure to provide rest breaks for every four hours or major fraction thereof worked and
failure to pay an additional hour’s of pay or accurately pay an additional hour’s of pay in lieu of
providing a rest period; (d) failing to pay all wages earned and owed upon separation from
Defendant’s employ, (e) failing to provide accurate itemized wage statements, and (f) failure to
reimburse necessary business expenses, (g) for improper background checks, and (h) failure to
provide suitable seating. As a result Plaintiffs seeks penalties under Labor Code 2698, et. seq. on
behalf of the general public as private attorney general and all other aggrieved employees.
II.
3.
JURISDICTION AND VENUE
The California Superior Court has jurisdiction over this action pursuant to
California Constitution Article VI, Section 10, which grants the Superior Court “original
jurisdiction in all cases except those given by statute to other trial courts.” The statutes under which
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this action is brought do not give jurisdiction to any other court.
4.
This Court has jurisdiction over Defendants because, upon information and belief,
each Defendant either has sufficient minimum contacts in California, or otherwise intentionally
avails itself of the California market so as to render the exercise of jurisdiction over it by the
California Courts consistent with traditional notions of fair play and substantial justice.
5.
Venue as to each Defendant is proper in this judicial district pursuant to Code of
Civil Procedure section 395. Defendants are doing business throughout California, including but
not limited to Alameda County, and each Defendant is within the jurisdiction of this Court for
service of process purposes. The unlawful acts alleged herein have a direct effect on Plaintiffs
and all other aggrieved employees within the State of California. Defendants employ numerous
aggrieved employees in in the State of California.
6.
On information and belief, Defendants have conducted business within the State of
California during the purported liability period and continue to conduct business throughout the
State of California. The unlawful acts alleged herein have had a direct effect on Plaintiffs, and the
similarly situated non-exempt aggrieved employees within California.
7.
The California Superior Court also has jurisdiction in this matter because on
information and belief there are no federal questions at issue, as the issues herein are based solely
on California statutes and law, including the California Labor Code, the IWC Wage Orders, the
California Code of Civil Procedure, the California Civil Code, and the California Business and
Professions Code.
8.
On information and belief, during the statutory liability period and continuing to
the present ("liability period"), Defendant consistently maintained and enforced against
Defendant’s Non-Exempt Aggrieved Employees, among others, the following unlawful practices
and policies, in violation of California state wage and hour laws: (a) failure to pay wages including
overtime, (b) failure to provide meal periods for every work period exceeding more than ten (10)
hours per day and failure to pay an additional hour’s of pay or accurately pay an additional hour’s
of pay in lieu of providing a meal period; (c) failure to provide rest breaks for every four hours or
-3PAGA REPRESENTATIVE ACTION COMPLAINTPage 4
major fraction thereof worked and failure to pay an additional hour’s of pay or accurately pay an
additional hour’s of pay in lieu of providing a rest period; (d) failing to pay all wages earned and
owed upon separation from Defendant’s employ, (e) failing to provide accurate itemized wage
statements, and (f) failure to reimburse necessary business expenses, (g) for improper background
checks, and (h) failure to provide suitable seating.
9.
On information and belief, during the statutory liability period and continuing to
the present, Defendants have had a consistent policy of failing to provide its Non-Exempt
Employees within the State of California, including Plaintiffs, unfettered, uninterrupted, duty free
rest periods of at least (10) minutes per four (4) hours worked or major fraction thereof and failing
to pay such employees one (1) hour of pay at the employees regular rate of compensation for each
workday that the rest period is not provided, as required by California state wage and hour laws.
10.
On information and belief, during the statutory liability period and continuing to
the present, Defendants have had a consistent policy of failing to pay wages including overtime
wages for hours worked while subject to the control of Defendants.
11.
On information and belief, during the statutory liability period and continuing to
the present (rest and meal period liability period), Defendants have had a consistent policy of
requiring its Non-Exempt Employees within the State of California, including Plaintiffs, to work
at least five (5) and or ten (10) hours without a meal period and failing to pay or accurately pay
such employees one (1) hour of pay at the employees regular rate of compensation for each
workday that the meal period is not provided, as required by California state wage and hour laws.
12.
On information and belief, during the statutory liability period and continuing to
the present (rest and meal period liability period), Defendants have had a consistent policy of
requiring its Non-Exempt Employees within the State of California, including Plaintiffs, to work
in excess of four hours and or ten (10) hours without authorizing and permitting a rest period and
failing to pay or accurately pay such employees one (1) hour of pay at the employees regular rate
of compensation for each workday that the rest period is not authorized and permitted, as required
by California state wage and hour laws.
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13.
On information and belief, during the statutory liability period and continuing to
the present, Defendants have had a consistent policy of failing to timely pay wages upon
separation.
14.
On information and belief, during the statutory liability period and continuing to
the present, Defendants have failed to provide Plaintiffs and Aggrieved Employees accurate
itemized wage statements.
15.
On information and belief, during the statutory liability period and continuing to
the present, Defendants have failed to provide suitable seating to Aggrieved Employees.
16.
During the liability period, Defendants failed to provide reimburse necessary
business expenses incurred as a result of the discharge of Plaintiffs’s and Aggrieved Employees’
duties pursuant to Labor Code § 2802.
17.
Plaintiffs on behalf of the general public as private attorney general and all other
aggrieved employees bring this action pursuant to Labor Code 2698, et. seq. for violations
enumerated under 2699.5 as follows: sections 201-203, 510, 512, 558, 226, 226.3, 226.7, 226.3,
1174, 1174.5, 1175, 1194, 1197, 1197.1, 1198, 2802, 1024.5 and seeking penalties, interest,
attorneys’ fees and costs.
III.
PARTIES
A. Plaintiffs
18.
Plaintiffs, ANGEL CALANGIAN, was at all times relevant to this action, a resident
of California. Plaintiffs was employed by Defendants in approximately January 2022 as a Non-
Exempt Employee and worked during the liability period for Defendants’ as a Production
Associate/Battery Technician, until his separation from Defendants’ employ in approximately
June 2022. During Plaintiffs’s employment, Plaintiffs’s duties included but were not limited to,
assembling batteries.
19.
Plaintiffs, JEEAN JOY ICATAR SANTIAGO, was at all times relevant to this
action, a resident of California.
Plaintiffs was employed by Defendants in approximately
September 2021 as a Non-Exempt Employee and worked during the liability period for
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Defendants’ as a Tesla Advisor, until his separation from Defendants’ employ in approximately
October 2021. During Plaintiffs’s employment, Plaintiffs’s duties included but were not limited
to, clean Tesla’s vehicles, install license plates, confirm cars are in working order for delivery,
installed floormats, charged vehicles, speak with customers to confirm delivery, and delivery
vehicles to customers.
20.
As Defendants’ employee, Plaintiffs, and all other aggrieved employees were
regularly required to and subsequently suffered:
a) perform work subject to the control of the employer without being compensated all
wages including overtime, all in violation of California labor laws, regulations, and the
Industrial Welfare Commission Wage Order (“IWC”);
b) work without being permitted or authorized a minimum ten-minute rest period for
every four hours or major fraction thereof worked and not compensated one (1) hour of
pay at his regular rate of compensation for each workday that a rest period was not
provided, all in violation of California labor laws, regulations, and the Industrial
Welfare Commission Wage Orders (“IWC”);
c) work in excess of six and ten hours per day without being provided meal periods and
not compensated one (1) hour of pay at the regular rate of compensation for each
workday that a meal period was not provided, all in violation of California labor laws,
regulations, and the Industrial Welfare Commission Wage Orders (“IWC”);
d) not provided accurate itemized wage statements;
e) not reimbursed for business expenses;
f) for improper background checks; and
g) for not providing suitable seating.
21.
On information and belief, Defendants willfully failed to pay all earned
wages in the form regular wages and overtime wages, and meal and rest period premium wages,
to its Non-Exempt Employees and members of the Representative Group; nor have Defendants
returned to Plaintiffs or members of the Representative Group, upon or after separation from
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employment with Defendants, all wages earned and owing. Plaintiffs seeks penalties under Labor
Code 2698, et. seq. on behalf of the general public as private attorney general and all other
aggrieved employees.
B. Defendants
22.
Defendants TESLA, INC., dba TESLA MOTORS, INC., operates as an electric
vehicle manufacturer across the United States and in California. Plaintiffs estimates there are in
excess of 100 Non-Exempt Employees who work or have worked for Defendants over the last
year.
23.
Other than identified herein, Plaintiffs is unaware of the true names, capacities,
relationships and extent of participation in the conduct alleged herein, of the defendants sued as
DOES 1 through 50, but is informed and believes and thereon alleges that said defendants are
legally responsible for the wrongful conduct alleged herein and therefore sues these defendants by
such fictitious names. Plaintiffs will amend this complaint when their true names and capabilities
are ascertained.
24.
Plaintiffs is informed and believes and thereon alleges that each Defendant, directly
or indirectly, or through agents or other persons, employed Plaintiffs and other members of the
Representative Group , and exercised control over their wages, hours, and working conditions.
Plaintiffs is informed and believes and thereon alleges that each defendant acted in all respects
pertinent to this action as the agent of the other defendants, carried out a joint scheme, business
plan or policy in all respects pertinent hereto, and the acts of each defendant are legally attributable
to the other defendants.
IV.
25.
GENERAL ALLEGATIONS
At all times set forth herein, Defendants employed Plaintiffs and other persons in
the capacity of non-exempt positions, however titled, throughout the state of California.
26.
Plaintiffs is informed and believes Aggrieved Employees have at all times pertinent
hereto been Non-Exempt within the meaning of the California Labor Code and the implementing
rules and regulations of the IWC California Wage Orders.
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27.
Defendants employed Plaintiffs and Aggrieved Employees as a Non-Exempt
hourly paid employees during the liability period.
28.
Defendants continue to employ Non-Exempt Employees, however titled, in
California and implement a uniform set of policies and practices to all non-exempt employees, as
they were all engaged in the generic job duties of providing customer service for Defendants
electric vehicles.
29.
Plaintiffs is informed and believes, and thereon alleges, that Defendants are and
were advised by skilled lawyers and other professionals, employees, and advisors with knowledge
of the requirements of California’s wage and employment laws.
30.
On information and belief, during the relevant time frame, Plaintiffs and Aggrieved
Employees frequently worked well over eight (8) hours in a day and forty (40) hours in a work
week and worked approximately five (5)-day work weeks.
31.
Plaintiffs and Aggrieved Employees were not compensated for all time worked as
Plaintiffs and Aggrieved Employees as a result of off-the-clock work performed. For instance,
Plaintiffs and Aggrieved Employees were subjected to COVID questionnaires prior to clocking in
for their shifts. Plaintiffs and Aggrieved Employees used their personal cellphones to access the
COVID questionnaires which took approximately 2-4 minutes to complete. Plaintiffs and
Aggrieved Employees could only clock in after they completed the questionnaire. Plaintiffs and
Aggrieved Employees were not compensated for the off-the-clock work and which resulted in a
disproportionate underpayment of minimum and overtime wages.
32.
Plaintiffs and the Aggrieved Employees were regularly required to work shifts in
excess of five hours without being provided a lawful meal period and over ten hours in a day
without being provided a second lawful meal period as required by law.
33.
Indeed, during the relevant time, as a consequence of Defendants’ staffing and
scheduling practices, lack of coverage, work demands, and Defendants’ policies and practices,
Defendants frequently failed to provide Plaintiffs and the Aggrieved Employees timely, legally
complaint uninterrupted 30-minute meal periods on shifts over five hours as required by law.
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34.
Similarly, as a consequence of Defendants’ staffing and scheduling practices, lack
of coverage, work demands, and Defendants’ policies and practices, Defendants frequently failed
to provide Plaintiffs and the Aggrieved Employees legally compliant second meal periods on shifts
over ten hours as required by law.
35.
On information and belief, Plaintiffs and Aggrieved Employees did not waive their
rights to meal periods under the law.
36.
Plaintiffs and the Aggrieved Employees were not provided with valid lawful on-
duty meal periods.
37.
Despite the above-mentioned meal period violations, Defendants failed to
compensate Plaintiffs, and on information and belief, failed to compensate Aggrieved Employees,
one additional hour of pay at their regular rate as required by California law when meal periods
were not timely or lawfully provided in a compliant manner.
38.
Plaintiffs are informed and believe, and thereon alleges, that Defendants know,
should know, knew, and/or should have known that Plaintiffs and the other Aggrieved Employees
were entitled to receive premium wages based on their regular rate of pay under Labor Code §226.but were not receiving such compensation.
39.
In addition, during the relevant time frame, Plaintiffs and the Non-Exempt
Employees were systematically not authorized and permitted to take one net ten-minute paid, rest
period for every four hours worked or major fraction thereof, which is a violation of the Labor
Code and IWC wage order.
40.
Defendants maintained and enforced scheduling practices, policies, and imposed
work demands that frequently required Plaintiffs and Aggrieved Employees to forego their lawful,
paid rest periods of a net ten minutes for every four hours worked or major fraction thereof. Such
requisite rest periods were not timely authorized and permitted as a result of Defendants’ failure
to provide relief for Plaintiffs and Aggrieved Employees to take their lawfully required breaks.
41.
Defendants also did not permit Plaintiffs and Aggrieved Employees to leave the
premises during rest breaks as they would face reprimand if they did by Defendants’ management.
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42.
Despite the above-mentioned rest period violations, Defendants did not compensate
Plaintiffs, and on information and belief, did not pay Aggrieved Employees one additional hour of
pay at their regular rate as required by California law, including Labor Code section 226.7 and the
applicable IWC wage order, for each day on which lawful rest periods were not authorized and
permitted.
43.
Defendants also failed to provide accurate, lawful itemized wage statements to
Plaintiffs and the Aggrieved Employees in part because of the above specified violations. In
addition, upon information and belief, Defendants omitted an accurate itemization of total hours
worked, including premiums due and owing for meal and rest period violations, gross pay and net
pay figures from Plaintiffs and the Aggrieved Employees’ wage statements.
44.
Plaintiffs are informed and believe, and thereon alleges, that at all times herein
mentioned, Defendants knew that at the time of termination of employment (or within 72 hours
thereof for resignations without prior notice as the case may be) they had a duty to accurately
compensate Plaintiffs and Aggrieved Employees for all wages owed including minimum wages,
meal and rest period premiums, and that Defendants had the financial ability to pay such
compensation, but willfully, knowingly, recklessly, and/or intentionally failed to do so in part
because of the above-specified violations.
45.
On information and belief, during the relevant time frame, Defendants failed to
adequately reimburse Plaintiffs and Aggrieved Employees for business expenditures incurred for
the use of personal cellphones as Plaintiffs and Aggrieved Employees used their personal
cellphones to complete Defendants’ COVID questionnaires, call customers, and respond to work
emails. Such business expenditures incurred were incurred in direct consequence of Plaintiffs’s
and Aggrieved Employees’ duties pursuant to Labor Code § 2802.
46.
On information and belief, during the relevant time frame, Defendants engaged in
improper background checks in violation to Labor Code § 1024.5.
47.
Upon information and belief, Defendants failed to keep accurate records pursuant
to Labor Code § 1174.5.
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48.
Upon information and belief, Defendants also failed to provide suitable seating to
Plaintiffs Calangian and Aggrieved Employees as required by the applicable IWC-Wage Orders.
49.
Upon information and belief, Defendants knew and or should have known that it is
improper to implement policies and commit unlawful acts such as:
(a)
requiring employees to work four (4) hours or a major fraction thereof without
being provided a minimum ten (10) minute rest period and without compensating the employees
with one (1) hour of pay at the employees’ regular rate of compensation for each workday that a
rest period was not provided;
(b)
requiring employees to work in excess of five (5) hours or ten (10) hours per day
without being provided an uninterrupted thirty minute meal period and/or a second meal period,
and without compensating employees with one (1) hour of pay at the regular rate of compensation
for each workday that such a meal period was not provided;
(c)
failing to provide accurate itemized wage statements;
(d)
failing to timely pay Plaintiffs and Aggrieved Employees;
(e)
failing to reimburse expenses;
(f)
for improper background checks; and
(g)
for not providing suitable seating.
50.
In addition to the violations above, and on information and belief, Defendants knew
they had a duty to compensate Plaintiffs and Aggrieved Employees for the allegations asserted
herein, and that Defendants had the financial ability to pay such compensation, but willfully,
knowingly, recklessly, and/or intentionally failed to do so.
V.
REPRESENTATIVE CLAIMS
THE PRIVATE ATTORNEYS GENERAL ACT- LABOR CODE §§ 2698 et seq.
51.
Plaintiffs incorporates by reference and re-alleges each and every allegation
contained above, as though fully set forth herein.
52.
On October 14, 2022 Plaintiffs JEEAN JOY ICATAR SANTIAGO complied with
notice requirements pursuant to Labor Code section 2699.3.
A copy of the letter sent to the
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LWDA is attached hereto as Exhibit A, indicating that the LWDA and Defendants were put on
notice of the claims alleged here and that the notice requirement has been satisfied. On March
1,2023 Plaintiffs ANGEL CALANGIAN complied with notice requirements pursuant to Labor
Code section 2699.3.
indicating that the LWDA and Defendants were put on notice of the claims alleged here and that
the notice requirement has been satisfied. Sixty five days have passed and the LWDA has not
A copy of the letter sent to the LWDA is attached hereto as Exhibit B,
indicated intent to investigate the claims. Therefore, Plaintiffs may proceed with this action in a
representative capacity. The substance and violations set forth in this Complaint of which the
LWDA was provided timely notice, Plaintiffs has also sent a copy of this PAGA Representative
Action Complaint to the LWDA.
53.
Plaintiffs are aggrieved employees as defined in Labor Code Section 2699(a).
Plaintiffs bring this cause of action on behalf of all current and former California Non-Exempt
Employees of Defendants.
54.
Pursuant to Labor Code section 2699(a) Plaintiffs seek to recover civil penalties for
which Defendants are liable due to numerous Labor Code violations as set forth in this Complaint,
including without limitation Labor Code section 201-203, 226, 226.3, 226.7, 510, 558, 512, 1174,
1174.5, 1175, 1194, 1197, 1197.1, 1024.5, 2802, and, 2698 et seq., applicable IWC Wage Orders
and California Code of Regulations, Title 8, section 11000 et. seq.
55.
At all times relevant, Plaintiffs and all other aggrieved employees regularly
performed non-exempt work in excess of 50% of the time, and thus, were subject to the meal and
rest break requirements of the applicable IWC wage order and the Labor Code.
56.
Defendants violated Labor Code section 510, and 1194 by failing to accurately pay
overtime wages owed as discussed above for Defendants’ failure to account for the time it took
Plaintiffs and Aggrieved Employees to complete Defendants’ COVID questionnaires. Therefore,
Defendants violated section 510, and 1194 by not compensating its Non-Exempt Employees for
work performed in excess of eight hours (8) in a day or forty hours in a work week (40). Section
510 of the Labor Code codifies the right to overtime compensation at the rate of one and one-half
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times the regular rate of pay for all hours worked in excess of eight (8) hours in a day or forty (40)
hours in a work week and to overtime compensation twice the regular rate of pay for hours worked
in excess of twelve (12) hours in a day or in excess of eight (8) hours in a day on the seventh day
of work in a particular work week
57.
Defendants violated Labor Code section 200, 558, 1194, 1197, by failing to
accurately pay at least minimum wages due as a result Defendants’ failure to account for the time
it took Plaintiffs and Aggrieved Employees to complete Defendants’ COVID questionnaires offthe-clock.
58.
Defendants violated Labor Code sections 512 and 226.7 for failing to provide
timely, uninterrupted first and second meal periods and requiring unlawful on duty meal periods,
or compensation in lieu thereof. Pursuant to Labor Code section 512, no employer shall employ
an employee for a work period of more than five (5) hours without providing a meal break of not
less than thirty (30) minutes in which the employee is relieved of all of his or her duties. An
employer may not employ an employee for a work period of more than ten (10) hours per day
without providing the employee with a second meal period of not less than thirty (30) minutes,
except that if the total hours worked is no more than twelve (12) hours, the second meal period
may be waived by mutual consent of the employer and the employee only if the first meal period
was not waived.
59.
Defendants failed to provide Plaintiffs and all other aggrieved employees
uninterrupted duty free meal periods of not less than thirty (30) minutes. Defendants implemented
and enforced policies of on duty meal period practices which required employees to work during
their meal periods, to forego their meal periods, and/or to return to work from meal periods prior
to thirty (30) uninterrupted minutes. As a proximate result of the aforementioned violations,
Plaintiffs and all other aggrieved employees have been damaged in an amount according to proof
at time of trial.
60.
Plaintiffs, and on information and belief, all aggrieved employees, were
systematically not permitted or authorized to take ten minute rest periods for every four hours
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worked or major fraction thereof, which is a violation of the Labor Code and IWC wage order.
Plaintiffs and on information and belief, aggrieved employees, were not compensated with one
hour of wages for every day in which a rest period was missed or untimely as a result of
Defendants’ policies, practices, or work demands. By failing to authorize and permit a ten-minute
rest period for every four hours or major fraction thereof worked per day by its Non-Exempt
Employees, and by failing to provide compensation for such non-provided or shortened rest
periods, as alleged above, Defendants willfully violated the provisions of Labor Code sections
226.7, 512 and the applicable IWC Wage Order.
61.
Defendants also willfully violated Labor Code sections 201-203 by failing to
provide all owed wages at separation from employment. Labor Code sections 201 and 202 require
Defendants to pay their employees all wages due either at time of firing, or within seventy-two
(72) hours of voluntary separation, if not sooner. Section 203 of the Labor Code provides that if
an employer willfully fails to timely pay such wages the employer must, as a penalty, continue to
pay the subject employee’s wages until the back wages are paid in full or an action is commenced.
The penalty cannot exceed 30 days of wages.
62.
Plaintiffs and all other aggrieved employees who were separated from employment
are entitled to compensation for all forms of wages earned, including but not limited to
compensation regular and overtime wages, and for non-provided meal and rest periods, but to date
have not received such compensation, therefore entitling them to penalties under PAGA for
violations of Labor Code sections 201-203.
63.
On information and belief, Defendants willfully failed to pay all wages due and
owing upon separation from employment. These wages include regular and overtime wages, and
meal and rest period premiums.
64.
On information and belief, Defendants failed to provide accurate itemized wage
statements which failed to include all hours worked, including overtime, accurate accounting of,
the lawful meal and rest period premiums due and owing to Plaintiffs and the aggrieved employees,
and the address of the legal entity that is the employer pursuant to Labor Code section 226(a).
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65.
Pursuant to Labor Code section 226.3, any employer who violates subdivision (a)
of Section 226 shall be subject to a civil penalty in the amount of two hundred fifty dollars ($250)
per employee per violation in an initial citation and one thousand dollars ($1,000) per employee
for each violation in a subsequent citation, for which the employer fails to provide the employee a
wage deduction statement or fails to keep the records required in subdivision (a) of Section 226.
66.
Additionally, Defendants have no accurate records relating to aggrieved
employees’ work periods, meal periods, total daily hours worked, total hours worked per payroll
period and applicable pay rates, in violation of applicable Wage Orders. Similarly, Defendants
failed to maintain accurate records relating to hours worked daily in violation of Labor Code
sections 1174(d), 1174.5.
67.
Labor Code § 2802 requires Defendants to indemnify Plaintiffs and Aggrieved
Employees for necessary expenditures incurred in direct consequences of the discharge of his or
her duties. As a necessary part of employment, Plaintiffs and on information and belief Aggrieved
Employees, were not adequately reimbursed by Defendants for expenses related to all expenses
incurred as results of personal cell phone usage, which was incurred as a direct consequence of the
discharge of duties by Plaintiffs and Aggrieved Employees. Despite these realities of the job,
Defendants failed to provide reimbursements for the use of personal cell phones necessary to carry
out their job duties.
68.
Labor Code §2804 states in pertinent part: “Any contract or agreement, express or
implied, made by any employee to waive the benefits of this article or any part thereof is null and
void, and this article shall not deprive any employee or his or her personal representative of any
right or remedy to which he is entitled under the laws of this State.
69.
Labor Code section 1024.5 states in pertinent part: “(a) An employer or prospective
employer shall not use a consumer credit report for employment purposes unless the position of
the person for whom the report is sought is any of the following: (1) A managerial position; (2) A
position in the state Department of Justice; (3) That of a sworn peace officer or other law
enforcement position; (4) A position for which the information contained in the report is required
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by law to be disclosed or obtained; (5) A position that involves regular access, for any purpose
other than the routine solicitation and processing of credit card applications in a retail
establishment, to all of the following types of information of any one person; (A) Bank or credit
card account information; (B) Social security number; (C) Date of birth; (6) A position in which
the person is, or would be, any of the following; (A) A named signatory on the bank or credit card
account of the employer; (B) Authorized to transfer money on behalf of the employer;
(C) Authorized to enter into financial contracts on behalf of the employer; (7) A position that
involves access to confidential or proprietary information, including a formula, pattern,
compilation, program, device, method, technique, process or trade secret that (i) derives
independent economic value, actual or potential, from not being generally known to, and not being
readily ascertainable by proper means by, other persons who may obtain economic value from the
disclosure or use of the information, and (ii) is the subject of an effort that is reasonable under the
circumstances to maintain secrecy of the information; (8) A position that involves regular access
to cash totaling ten thousand dollars ($10,000) or more of the employer, a customer, or client,
during the workday.” None of these factors apply to Plaintiffs.
70.
Plaintiffs did not meet the requirements for a background check to be performed
by Defendants. As a result Defendants violated Labor Code § 1024.5.
71.
Wage Order 1-2001 states “All working employees shall be provided with suitable
seats when the nature of the work reasonably permits the use of seats.” Plaintiffs alleges that
Defendant failed to provide employees suitable seats while working even though the nature of the
work reasonably permitted the use of such seats.
72.
Defendant’ failure to provide suitable seats constitutes a violation of applicable
California laws and regulations, including Labor Code section 1198 and IWC Wage Order 1-2001.
73.
Labor Code section 1198 makes it unlawful to employ an employee under
conditions of labor that are prohibited by the applicable Wage Order. By failing to provide Plaintiff
Calangian and the other current and former aggrieved employees with suitable seats in violation
of Wage Order 1-2001, Defendant also violated Labor Code section 1198.
- 16 PAGA REPRESENTATIVE ACTION COMPLAINTPage 17
74.
As a result of Defendants' unlawful conduct, Plaintiffs and Aggrieved Employees
are entitled to penalties to the extent they were not paid at the prevailing wage rate for all hours
worked.
75.
Plaintiffs and the Representative Aggrieved Employees are entitled to recover
Penalties and attorneys’ fees and costs sunder Labor Code section 2698, et. seq.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs prays for judgment against Defendants, as follows:
1.
For penalties according to proof, pursuant to Labor Code §§ 2698 et seq.;
2.
For reasonable attorneys’ fees and costs; and
3.
For such other and further relief as the Court deems proper.
Dated: May 19,
JAMES HAWKINS APLC
By:
JAMES R. HAWKINS, ESQ.
GREGORY MAURO, ESQ.
MICHAEL CALVO, ESQ.
AVA ISSARY, ESQ.
LAUREN FALK, ESQ.
Attorneys for Plaintiffs ANGEL
CALANGIAN and JEEAN JOY ICATAR
SANTIAGO on behalf of the general public
as private attorney general
- 17 PAGA REPRESENTATIVE ACTION COMPLAINTPage 18 EXHIBIT APage 19 JAMES JH HAWKINS
A PROFESSIONAL LAW CORPORATION
9880 RESEARCH DRIVE, SUITE 200, IRVINE, CALIFORNIA TELEPHONE (949) 387-7200; FACSIMILE (949) 387-
October 14, Via LWDA Website
Labor and Workforce
Development Agency
Attn: PAGA Administrator
1515 Clay Street, Ste Oakland, CA http://www.dir.ca.gov/PrivateAttorneys-General-Act
Via Certified Mail
TESLA, INC.
dba TESLA MOTORS, INC.
Agent for Service of Process:
CT CORPORATION SYSTEM
330 N. Brand Blvd, Suite Glendale, CA Receipt No. 7021 1970 0000 9061
Re: AMENDED NOTICE PURSUANT TO LABOR CODE SECTIONS
2698, et seq.
To Whom It May Concern:
PLEASE TAKE NOTICE that plaintiffs DEMETRICE TALLEY and JEEAN
JOY ICATAR SANTIAGO, individually and on behalf of all similarly situated
representative aggrieved employees, gives NOTICE to commence and/or amend a civil
action pursuant to California Labor Code Sections 2698, et seq. Plaintiff hereby gives
written notice by certified mail to the Labor and Workforce Development Agency, and
TESLA, INC., dba TESLA MOTORS, INC., through its Agent for Service of Process
(CT Corporation System).
Plaintiff hereby attaches a copy of the Proposed First Amended PAGA
Representative Action Complaint to be filed in Los Angeles County Superior Court as
though fully set forth herewith and the Class Action Complaint filed in the Alameda
Superior Court, setting out the specific provisions of the Labor Code Plaintiff alleges
have been violated, including the facts and theories. All labor provisions in the Proposed
PAGA Representative Action Complaint alleged to have been violated pertain to all
entities and individuals named in the Complaints, even if not expressly specified.
Please advise within sixty (60) days of the post mark on this letter if the LWDA
intends to investigate these claims.Page 20 Thank you, and if you have any questions, please do not hesitate to contact me.
Very Truly Yours,
/s/Gregory Mauro
Enclosure: Proposed First Amended PAGA Representative Action Complaint
2Page 21 EXHIBIT BPage 22 JAMES JH HAWKINS
A PROFESSIONAL LAW CORPORATION
9880 RESEARCH DRIVE, SUITE 200, IRVINE, CALIFORNIA TELEPHONE (949) 387-7200; FACSIMILE (949) 387-
March 1, Via LWDA Website
Labor and Workforce
Development Agency
Attn: PAGA Administrator
1515 Clay Street, Ste Oakland, CA http://www.dir.ca.gov/PrivateAttorneys-General-Act
Via Certified Mail
TESLA, INC.
dba TESLA MOTORS, INC.
Agent for Service of Process:
CT CORPORATION SYSTEM
330 N. Brand Blvd, Suite Glendale, CA Receipt No. 7021 1970 0000 9061
Re: SECOND AMENDED NOTICE PURSUANT TO LABOR CODE
SECTIONS 2698, et seq.
To Whom It May Concern:
PLEASE TAKE NOTICE that plaintiffs DEMETRICE TALLEY, JEEAN JOY
ICATAR SANTIAGO, and ANGEL CALANGIAN individually and on behalf of all
similarly situated representative aggrieved employees, gives NOTICE to commence
and/or amend a civil action pursuant to California Labor Code Sections 2698, et seq.
Plaintiff hereby gives written notice by certified mail to the Labor and Workforce
Development Agency, and TESLA, INC., dba TESLA MOTORS, INC., through its
Agent for Service of Process (CT Corporation System).
Plaintiff hereby attaches a copy of the Proposed Second Amended PAGA
Representative Action Complaint to be filed in Los Angeles County Superior Court as
though fully set forth herewith and the Class Action Complaint filed in the Alameda
Superior Court, setting out the specific provisions of the Labor Code Plaintiff alleges
have been violated, including the facts and theories. All labor provisions in the Proposed
PAGA Representative Action Complaint alleged to have been violated pertain to all
entities and individuals named in the Complaints, even if not expressly specified.
Please advise within sixty (60) days of the post mark on this letter if the LWDA
intends to investigate these claims.Page 23 Thank you, and if you have any questions, please do not hesitate to contact me.
Very Truly Yours,
/s/Gregory Mauro
Enclosure: Proposed Second Amended PAGA Representative Action Complaint
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JAMES HAWKINS APLC
James R. Hawkins, Esq. (#192925)
Gregory Mauro, Esq. (#222239)
Michael Calvo, Esq. (#314986)
Ava Issary, Esq. (#342252)
Lauren Falk, Esq. (#316893)
9880 Research Drive, Suite 200
Irvine, CA 92618
Tel.: (949) 387-7200
Fax: (949) 387-6676
Email: James@jameshawkinsaplc.com
Email: Greg@jameshawkinsaplc.com
Email: Michael@jameshawkinsaplc.com
Email: Ava@jameshawkinsaplc.com
Email: Lauren@jameshawkinsaplc.com
Attorneys for Plaintiffs ANGEL CALANGIAN, and JEEAN JOY ICATAR SANTIAGO on
behalf of the general public as private attorney general
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF ALAMEDA
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ANGEL CALANGIAN AND JEEAN JOY
ICATAR SANTIAGO, on behalf of the general
public as private attorney general
Plaintiffs,
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Case No.
PAGA REPRESENTATIVE ACTION
COMPLAINT PURSUANT TO THE
PRIVATE ATTORNEYS GENERAL ACT
(Labor Code §§ 2698 et seq).
v.
TESLA, INC., dba TESLA MOTORS, INC., a
Delaware Corporation; and DOES 1-50,
inclusive,
Defendants
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COMES NOW Plaintiffs ANGEL CALANGIAN and JEEAN JOY ICATAR SANTIAGO
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(“Plaintiffs”), on behalf the general public and all non-exempt aggrieved employees, acting on
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behalf of the California Attorney General as private attorney general, asserts claims against
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Defendants TESLA, INC., dba TESLA MOTORS, INC.; and DOES 1-50, inclusive (collectively
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“Defendants”) as follows:
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I.
1.
INTRODUCTION
This is a representative action for recovery of penalties under the Private Attorneys
General Act of 2004 (“PAGA”), Cal. Lab. Code sections 2698 et seq. PAGA permits “aggrieved
employees” to bring a lawsuit as a representative action on behalf of the general public as private
attorney general and all other current and former aggrieved employees, to recover civil penalties
and address an employer’s violations of the California Labor Code.
2.
In this case, Defendants violated various provisions of the California Labor Code.
As set forth below, Defendants implemented policies and practices which led to unpaid wages
resulting from Defendant’s: (a) failure to pay wages including overtime, (b) failure to provide meal
periods for every work period exceeding more than ten (10) hours per day and failure to pay an
additional hour’s of pay or accurately pay an additional hour’s of pay in lieu of providing a meal
period; (c) failure to provide rest breaks for every four hours or major fraction thereof worked and
failure to pay an additional hour’s of pay or accurately pay an additional hour’s of pay in lieu of
providing a rest period; (d) failing to pay all wages earned and owed upon separation from
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Defendant’s employ, (e) failing to provide accurate itemized wage statements, and (f) failure to
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reimburse necessary business expenses, (g) for improper background checks, and (h) failure to
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provide suitable seating. As a result Plaintiffs seeks penalties under Labor Code 2698, et. seq. on
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behalf of the general public as private attorney general and all other aggrieved employees.
II.
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3.
JURISDICTION AND VENUE
The California Superior Court has jurisdiction over this action pursuant to
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California Constitution Article VI, Section 10, which grants the Superior Court “original
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jurisdiction in all cases except those given by statute to other trial courts.” The statutes under which
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this action is brought do not give jurisdiction to any other court.
4.
This Court has jurisdiction over Defendants because, upon information and belief,
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each Defendant either has sufficient minimum contacts in California, or otherwise intentionally
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avails itself of the California market so as to render the exercise of jurisdiction over it by the
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California Courts consistent with traditional notions of fair play and substantial justice.
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5.
Venue as to each Defendant is proper in this judicial district pursuant to Code of
Civil Procedure section 395. Defendants are doing business throughout California, including but
not limited to Alameda County, and each Defendant is within the jurisdiction of this Court for
service of process purposes. The unlawful acts alleged herein have a direct effect on Plaintiffs
and all other aggrieved employees within the State of California. Defendants employ numerous
aggrieved employees in in the State of California.
6.
On information and belief, Defendants have conducted business within the State of
California during the purported liability period and continue to conduct business throughout the
State of California. The unlawful acts alleged herein have had a direct effect on Plaintiffs, and the
similarly situated non-exempt aggrieved employees within California.
7.
The California Superior Court also has jurisdiction in this matter because on
information and belief there are no federal questions at issue, as the issues herein are based solely
on California statutes and law, including the California Labor Code, the IWC Wage Orders, the
California Code of Civil Procedure, the California Civil Code, and the California Business and
21
Professions Code.
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8.
On information and belief, during the statutory liability period and continuing to
23
the present ("liability period"), Defendant consistently maintained and enforced against
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Defendant’s Non-Exempt Aggrieved Employees, among others, the following unlawful practices
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and policies, in violation of California state wage and hour laws: (a) failure to pay wages including
26
overtime, (b) failure to provide meal periods for every work period exceeding more than ten (10)
27
hours per day and failure to pay an additional hour’s of pay or accurately pay an additional hour’s
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of pay in lieu of providing a meal period; (c) failure to provide rest breaks for every four hours or
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major fraction thereof worked and failure to pay an additional hour’s of pay or accurately pay an
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additional hour’s of pay in lieu of providing a rest period; (d) failing to pay all wages earned and
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owed upon separation from Defendant’s employ, (e) failing to provide accurate itemized wage
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statements, and (f) failure to reimburse necessary business expenses, (g) for improper background
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checks, and (h) failure to provide suitable seating.
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9.
On information and belief, during the statutory liability period and continuing to
the present, Defendants have had a consistent policy of failing to provide its Non-Exempt
Employees within the State of California, including Plaintiffs, unfettered, uninterrupted, duty free
rest periods of at least (10) minutes per four (4) hours worked or major fraction thereof and failing
to pay such employees one (1) hour of pay at the employees regular rate of compensation for each
workday that the rest period is not provided, as required by California state wage and hour laws.
10.
On information and belief, during the statutory liability period and continuing to
the present, Defendants have had a consistent policy of failing to pay wages including overtime
wages for hours worked while subject to the control of Defendants.
11.
On information and belief, during the statutory liability period and continuing to
the present (rest and meal period liability period), Defendants have had a consistent policy of
requiring its Non-Exempt Employees within the State of California, including Plaintiffs, to work
at least five (5) and or ten (10) hours without a meal period and failing to pay or accurately pay
such employees one (1) hour of pay at the employees regular rate of compensation for each
workday that the meal period is not provided, as required by California state wage and hour laws.
12.
On information and belief, during the statutory liability period and continuing to
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the present (rest and meal period liability period), Defendants have had a consistent policy of
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requiring its Non-Exempt Employees within the State of California, including Plaintiffs, to work
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in excess of four hours and or ten (10) hours without authorizing and permitting a rest period and
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failing to pay or accurately pay such employees one (1) hour of pay at the employees regular rate
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of compensation for each workday that the rest period is not authorized and permitted, as required
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by California state wage and hour laws.
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13.
On information and belief, during the statutory liability period and continuing to
2
the present, Defendants have had a consistent policy of failing to timely pay wages upon
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separation.
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14.
On information and belief, during the statutory liability period and continuing to
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the present, Defendants have failed to provide Plaintiffs and Aggrieved Employees accurate
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itemized wage statements.
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15.
On information and belief, during the statutory liability period and continuing to
the present, Defendants have failed to provide suitable seating to Aggrieved Employees.
16.
During the liability period, Defendants failed to provide reimburse necessary
business expenses incurred as a result of the discharge of Plaintiffs’s and Aggrieved Employees’
duties pursuant to Labor Code § 2802.
17.
Plaintiffs on behalf of the general public as private attorney general and all other
aggrieved employees bring this action pursuant to Labor Code 2698, et. seq. for violations
enumerated under 2699.5 as follows: sections 201-203, 510, 512, 558, 226, 226.3, 226.7, 226.3,
1174, 1174.5, 1175, 1194, 1197, 1197.1, 1198, 2802, 1024.5 and seeking penalties, interest,
attorneys’ fees and costs.
III.
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PARTIES
A. Plaintiffs
18.
Plaintiffs, ANGEL CALANGIAN, was at all times relevant to this action, a resident
21
of California. Plaintiffs was employed by Defendants in approximately January 2022 as a Non-
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Exempt Employee and worked during the liability period for Defendants’ as a Production
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Associate/Battery Technician, until his separation from Defendants’ employ in approximately
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June 2022. During Plaintiffs’s employment, Plaintiffs’s duties included but were not limited to,
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assembling batteries.
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19.
Plaintiffs, JEEAN JOY ICATAR SANTIAGO, was at all times relevant to this
27
action, a resident of California.
Plaintiffs was employed by Defendants in approximately
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September 2021 as a Non-Exempt Employee and worked during the liability period for
-5PAGA REPRESENTATIVE ACTION COMPLAINT
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Defendants’ as a Tesla Advisor, until his separation from Defendants’ employ in approximately
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October 2021. During Plaintiffs’s employment, Plaintiffs’s duties included but were not limited
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to, clean Tesla’s vehicles, install license plates, confirm cars are in working order for delivery,
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installed floormats, charged vehicles, speak with customers to confirm delivery, and delivery
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vehicles to customers.
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20.
As Defendants’ employee, Plaintiffs, and all other aggrieved employees were
regularly required to and subsequently suffered:
a) perform work subject to the control of the employer without being compensated all
wages including overtime, all in violation of California labor laws, regulations, and the
Industrial Welfare Commission Wage Order (“IWC”);
b) work without being permitted or authorized a minimum ten-minute rest period for
every four hours or major fraction thereof worked and not compensated one (1) hour of
pay at his regular rate of compensation for each workday that a rest period was not
provided, all in violation of California labor laws, regulations, and the Industrial
Welfare Commission Wage Orders (“IWC”);
c) work in excess of six and ten hours per day without being provided meal periods and
not compensated one (1) hour of pay at the regular rate of compensation for each
workday that a meal period was not provided, all in violation of California labor laws,
regulations, and the Industrial Welfare Commission Wage Orders (“IWC”);
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d) not provided accurate itemized wage statements;
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e) not reimbursed for business expenses;
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f) for improper background checks; and
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g) for not providing suitable seating.
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21.
On information and belief, Defendants willfully failed to pay all earned
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wages in the form regular wages and overtime wages, and meal and rest period premium wages,
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to its Non-Exempt Employees and members of the Representative Group; nor have Defendants
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returned to Plaintiffs or members of the Representative Group, upon or after separation from
-6PAGA REPRESENTATIVE ACTION COMPLAINT
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employment with Defendants, all wages earned and owing. Plaintiffs seeks penalties under Labor
2
Code 2698, et. seq. on behalf of the general public as private attorney general and all other
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aggrieved employees.
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B. Defendants
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Defendants TESLA, INC., dba TESLA MOTORS, INC., operates as an electric
vehicle manufacturer across the United States and in California. Plaintiffs estimates there are in
excess of 100 Non-Exempt Employees who work or have worked for Defendants over the last
year.
23.
Other than identified herein, Plaintiffs is unaware of the true names, capacities,
relationships and extent of participation in the conduct alleged herein, of the defendants sued as
DOES 1 through 50, but is informed and believes and thereon alleges that said defendants are
legally responsible for the wrongful conduct alleged herein and therefore sues these defendants by
such fictitious names. Plaintiffs will amend this complaint when their true names and capabilities
are ascertained.
24.
Plaintiffs is informed and believes and thereon alleges that each Defendant, directly
or indirectly, or through agents or other persons, employed Plaintiffs and other members of the
Representative Group , and exercised control over their wages, hours, and working conditions.
Plaintiffs is informed and believes and thereon alleges that each defendant acted in all respects
pertinent to this action as the agent of the other defendants, carried out a joint scheme, business
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plan or policy in all respects pertinent hereto, and the acts of each defendant are legally attributable
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to the other defendants.
IV.
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25.
GENERAL ALLEGATIONS
At all times set forth herein, Defendants employed Plaintiffs and other persons in
the capacity of non-exempt positions, however titled, throughout the state of California.
26.
Plaintiffs is informed and believes Aggrieved Employees have at all times pertinent
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hereto been Non-Exempt within the meaning of the California Labor Code and the implementing
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rules and regulations of the IWC California Wage Orders.
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27.
Defendants employed Plaintiffs and Aggrieved Employees as a Non-Exempt
hourly paid employees during the liability period.
28.
Defendants continue to employ Non-Exempt Employees, however titled, in
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California and implement a uniform set of policies and practices to all non-exempt employees, as
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they were all engaged in the generic job duties of providing customer service for Defendants
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electric vehicles.
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29.
Plaintiffs is informed and believes, and thereon alleges, that Defendants are and
were advised by skilled lawyers and other professionals, employees, and advisors with knowledge
of the requirements of California’s wage and employment laws.
30.
On information and belief, during the relevant time frame, Plaintiffs and Aggrieved
Employees frequently worked well over eight (8) hours in a day and forty (40) hours in a work
week and worked approximately five (5)-day work weeks.
31.
Plaintiffs and Aggrieved Employees were not compensated for all time worked as
Plaintiffs and Aggrieved Employees as a result of off-the-clock work performed. For instance,
Plaintiffs and Aggrieved Employees were subjected to COVID questionnaires prior to clocking in
for their shifts. Plaintiffs and Aggrieved Employees used their personal cellphones to access the
COVID questionnaires which took approximately 2-4 minutes to complete. Plaintiffs and
Aggrieved Employees could only clock in after they completed the questionnaire. Plaintiffs and
Aggrieved Employees were not compensated for the off-the-clock work and which resulted in a
disproportionate underpayment of minimum and overtime wages.
32.
Plaintiffs and the Aggrieved Employees were regularly required to work shifts in
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excess of five hours without being provided a lawful meal period and over ten hours in a day
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without being provided a second lawful meal period as required by law.
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33.
Indeed, during the relevant time, as a consequence of Defendants’ staffing and
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scheduling practices, lack of coverage, work demands, and Defendants’ policies and practices,
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Defendants frequently failed to provide Plaintiffs and the Aggrieved Employees timely, legally
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complaint uninterrupted 30-minute meal periods on shifts over five hours as required by law.
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34.
Similarly, as a consequence of Defendants’ staffing and scheduling practices, lack
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of coverage, work demands, and Defendants’ policies and practices, Defendants frequently failed
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to provide Plaintiffs and the Aggrieved Employees legally compliant second meal periods on shifts
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over ten hours as required by law.
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35.
On information and belief, Plaintiffs and Aggrieved Employees did not waive their
rights to meal periods under the law.
36.
Plaintiffs and the Aggrieved Employees were not provided with valid lawful on-
duty meal periods.
37.
Despite the above-mentioned meal period violations, Defendants failed to
compensate Plaintiffs, and on information and belief, failed to compensate Aggrieved Employees,
one additional hour of pay at their regular rate as required by California law when meal periods
were not timely or lawfully provided in a compliant manner.
38.
Plaintiffs are informed and believe, and thereon alleges, that Defendants know,
should know, knew, and/or should have known that Plaintiffs and the other Aggrieved Employees
were entitled to receive premium wages based on their regular rate of pay under Labor Code §226.7
but were not receiving such compensation.
39.
In addition, during the relevant time frame, Plaintiffs and the Non-Exempt
Employees were systematically not authorized and permitted to take one net ten-minute paid, rest
period for every four hours worked or major fraction thereof, which is a violation of the Labor
Code and IWC wage order.
40.
Defendants maintained and enforced scheduling practices, policies, and imposed
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work demands that frequently required Plaintiffs and Aggrieved Employees to forego their lawful,
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paid rest periods of a net ten minutes for every four hours worked or major fraction thereof. Such
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requisite rest periods were not timely authorized and permitted as a result of Defendants’ failure
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to provide relief for Plaintiffs and Aggrieved Employees to take their lawfully required breaks.
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41.
Defendants also did not permit Plaintiffs and Aggrieved Employees to leave the
premises during rest breaks as they would face reprimand if they did by Defendants’ management.
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42.
Despite the above-mentioned rest period violations, Defendants did not compensate
2
Plaintiffs, and on information and belief, did not pay Aggrieved Employees one additional hour of
3
pay at their regular rate as required by California law, including Labor Code section 226.7 and the
4
applicable IWC wage order, for each day on which lawful rest periods were not authorized and
5
permitted.
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43.
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Defendants also failed to provide accurate, lawful itemized wage statements to
Plaintiffs and the Aggrieved Employees in part because of the above specified violations. In
addition, upon information and belief, Defendants omitted an accurate itemization of total hours
worked, including premiums due and owing for meal and rest period violations, gross pay and net
pay figures from Plaintiffs and the Aggrieved Employees’ wage statements.
44.
Plaintiffs are informed and believe, and thereon alleges, that at all times herein
mentioned, Defendants knew that at the time of termination of employment (or within 72 hours
thereof for resignations without prior notice as the case may be) they had a duty to accurately
compensate Plaintiffs and Aggrieved Employees for all wages owed including minimum wages,
meal and rest period premiums, and that Defendants had the financial ability to pay such
compensation, but willfully, knowingly, recklessly, and/or intentionally failed to do so in part
because of the above-specified violations.
45.
On information and belief, during the relevant time frame, Defendants failed to
adequately reimburse Plaintiffs and Aggrieved Employees for business expenditures incurred for
21
the use of personal cellphones as Plaintiffs and Aggrieved Employees used their personal
22
cellphones to complete Defendants’ COVID questionnaires, call customers, and respond to work
23
emails. Such business expenditures incurred were incurred in direct consequence of Plaintiffs’s
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and Aggrieved Employees’ duties pursuant to Labor Code § 2802.
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27
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46.
On information and belief, during the relevant time frame, Defendants engaged in
improper background checks in violation to Labor Code § 1024.5.
47.
Upon information and belief, Defendants failed to keep accurate records pursuant
to Labor Code § 1174.5.
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48.
Upon information and belief, Defendants also failed to provide suitable seating to
Plaintiffs Calangian and Aggrieved Employees as required by the applicable IWC-Wage Orders.
49.
Upon information and belief, Defendants knew and or should have known that it is
improper to implement policies and commit unlawful acts such as:
(a)
requiring employees to work four (4) hours or a major fraction thereof without
being provided a minimum ten (10) minute rest period and without compensating the employees
with one (1) hour of pay at the employees’ regular rate of compensation for each workday that a
rest period was not provided;
(b)
requiring employees to work in excess of five (5) hours or ten (10) hours per day
without being provided an uninterrupted thirty minute meal period and/or a second meal period,
and without compensating employees with one (1) hour of pay at the regular rate of compensation
for each workday that such a meal period was not provided;
(c)
failing to provide accurate itemized wage statements;
(d)
failing to timely pay Plaintiffs and Aggrieved Employees;
(e)
failing to reimburse expenses;
(f)
for improper background checks; and
(g)
for not providing suitable seating.
50.
In addition to the violations above, and on information and belief, Defendants knew
they had a duty to compensate Plaintiffs and Aggrieved Employees for the allegations asserted
21
herein, and that Defendants had the financial ability to pay such compensation, but willfully,
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knowingly, recklessly, and/or intentionally failed to do so.
V.
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REPRESENTATIVE CLAIMS
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THE PRIVATE ATTORNEYS GENERAL ACT- LABOR CODE §§ 2698 et seq.
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51.
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Plaintiffs incorporates by reference and re-alleges each and every allegation
contained above, as though fully set forth herein.
52.
On October 14, 2022 Plaintiffs JEEAN JOY ICATAR SANTIAGO complied with
notice requirements pursuant to Labor Code section 2699.3.
A copy of the letter sent to the
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LWDA is attached hereto as Exhibit A, indicating that the LWDA and Defendants were put on
2
notice of the claims alleged here and that the notice requirement has been satisfied. On March
3
1,2023 Plaintiffs ANGEL CALANGIAN complied with notice requirements pursuant to Labor
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Code section 2699.3.
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indicating that the LWDA and Defendants were put on notice of the claims alleged here and that
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the notice requirement has been satisfied. Sixty five days have passed and the LWDA has not
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A copy of the letter sent to the LWDA is attached hereto as Exhibit B,
indicated intent to investigate the claims. Therefore, Plaintiffs may proceed with this action in a
representative capacity. The substance and violations set forth in this Complaint of which the
LWDA was provided timely notice, Plaintiffs has also sent a copy of this PAGA Representative
Action Complaint to the LWDA.
53.
Plaintiffs are aggrieved employees as defined in Labor Code Section 2699(a).
Plaintiffs bring this cause of action on behalf of all current and former California Non-Exempt
Employees of Defendants.
54.
Pursuant to Labor Code section 2699(a) Plaintiffs seek to recover civil penalties for
which Defendants are liable due to numerous Labor Code violations as set forth in this Complaint,
including without limitation Labor Code section 201-203, 226, 226.3, 226.7, 510, 558, 512, 1174,
1174.5, 1175, 1194, 1197, 1197.1, 1024.5, 2802, and, 2698 et seq., applicable IWC Wage Orders
and California Code of Regulations, Title 8, section 11000 et. seq.
55.
At all times relevant, Plaintiffs and all other aggrieved employees regularly
21
performed non-exempt work in excess of 50% of the time, and thus, were subject to the meal and
22
rest break requirements of the applicable IWC wage order and the Labor Code.
23
56.
Defendants violated Labor Code section 510, and 1194 by failing to accurately pay
24
overtime wages owed as discussed above for Defendants’ failure to account for the time it took
25
Plaintiffs and Aggrieved Employees to complete Defendants’ COVID questionnaires. Therefore,
26
Defendants violated section 510, and 1194 by not compensating its Non-Exempt Employees for
27
work performed in excess of eight hours (8) in a day or forty hours in a work week (40). Section
28
510 of the Labor Code codifies the right to overtime compensation at the rate of one and one-half
- 12 PAGA REPRESENTATIVE ACTION COMPLAINT
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1
times the regular rate of pay for all hours worked in excess of eight (8) hours in a day or forty (40)
2
hours in a work week and to overtime compensation twice the regular rate of pay for hours worked
3
in excess of twelve (12) hours in a day or in excess of eight (8) hours in a day on the seventh day
4
of work in a particular work week
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
57.
Defendants violated Labor Code section 200, 558, 1194, 1197, by failing to
accurately pay at least minimum wages due as a result Defendants’ failure to account for the time
it took Plaintiffs and Aggrieved Employees to complete Defendants’ COVID questionnaires offthe-clock.
58.
Defendants violated Labor Code sections 512 and 226.7 for failing to provide
timely, uninterrupted first and second meal periods and requiring unlawful on duty meal periods,
or compensation in lieu thereof. Pursuant to Labor Code section 512, no employer shall employ
an employee for a work period of more than five (5) hours without providing a meal break of not
less than thirty (30) minutes in which the employee is relieved of all of his or her duties. An
employer may not employ an employee for a work period of more than ten (10) hours per day
without providing the employee with a second meal period of not less than thirty (30) minutes,
except that if the total hours worked is no more than twelve (12) hours, the second meal period
may be waived by mutual consent of the employer and the employee only if the first meal period
was not waived.
59.
Defendants failed to provide Plaintiffs and all other aggrieved employees
21
uninterrupted duty free meal periods of not less than thirty (30) minutes. Defendants implemented
22
and enforced policies of on duty meal period practices which required employees to work during
23
their meal periods, to forego their meal periods, and/or to return to work from meal periods prior
24
to thirty (30) uninterrupted minutes. As a proximate result of the aforementioned violations,
25
Plaintiffs and all other aggrieved employees have been damaged in an amount according to proof
26
at time of trial.
27
28
60.
Plaintiffs, and on information and belief, all aggrieved employees, were
systematically not permitted or authorized to take ten minute rest periods for every four hours
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1
worked or major fraction thereof, which is a violation of the Labor Code and IWC wage order.
2
Plaintiffs and on information and belief, aggrieved employees, were not compensated with one
3
hour of wages for every day in which a rest period was missed or untimely as a result of
4
Defendants’ policies, practices, or work demands. By failing to authorize and permit a ten-minute
5
rest period for every four hours or major fraction thereof worked per day by its Non-Exempt
6
Employees, and by failing to provide compensation for such non-provided or shortened rest
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
periods, as alleged above, Defendants willfully violated the provisions of Labor Code sections
226.7, 512 and the applicable IWC Wage Order.
61.
Defendants also willfully violated Labor Code sections 201-203 by failing to
provide all owed wages at separation from employment. Labor Code sections 201 and 202 require
Defendants to pay their employees all wages due either at time of firing, or within seventy-two
(72) hours of voluntary separation, if not sooner. Section 203 of the Labor Code provides that if
an employer willfully fails to timely pay such wages the employer must, as a penalty, continue to
pay the subject employee’s wages until the back wages are paid in full or an action is commenced.
The penalty cannot exceed 30 days of wages.
62.
Plaintiffs and all other aggrieved employees who were separated from employment
are entitled to compensation for all forms of wages earned, including but not limited to
compensation regular and overtime wages, and for non-provided meal and rest periods, but to date
have not received such compensation, therefore entitling them to penalties under PAGA for
violations of Labor Code sections 201-203.
63.
On information and belief, Defendants willfully failed to pay all wages due and
23
owing upon separation from employment. These wages include regular and overtime wages, and
24
meal and rest period premiums.
25
64.
On information and belief, Defendants failed to provide accurate itemized wage
26
statements which failed to include all hours worked, including overtime, accurate accounting of,
27
the lawful meal and rest period premiums due and owing to Plaintiffs and the aggrieved employees,
28
and the address of the legal entity that is the employer pursuant to Labor Code section 226(a).
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1
65.
Pursuant to Labor Code section 226.3, any employer who violates subdivision (a)
2
of Section 226 shall be subject to a civil penalty in the amount of two hundred fifty dollars ($250)
3
per employee per violation in an initial citation and one thousand dollars ($1,000) per employee
4
for each violation in a subsequent citation, for which the employer fails to provide the employee a
5
wage deduction statement or fails to keep the records required in subdivision (a) of Section 226.
6
7
8
9
10
11
12
13
14
15
16
17
18
19
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66.
Additionally, Defendants have no accurate records relating to aggrieved
employees’ work periods, meal periods, total daily hours worked, total hours worked per payroll
period and applicable pay rates, in violation of applicable Wage Orders. Similarly, Defendants
failed to maintain accurate records relating to hours worked daily in violation of Labor Code
sections 1174(d), 1174.5.
67.
Labor Code § 2802 requires Defendants to indemnify Plaintiffs and Aggrieved
Employees for necessary expenditures incurred in direct consequences of the discharge of his or
her duties. As a necessary part of employment, Plaintiffs and on information and belief Aggrieved
Employees, were not adequately reimbursed by Defendants for expenses related to all expenses
incurred as results of personal cell phone usage, which was incurred as a direct consequence of the
discharge of duties by Plaintiffs and Aggrieved Employees. Despite these realities of the job,
Defendants failed to provide reimbursements for the use of personal cell phones necessary to carry
out their job duties.
68.
Labor Code §2804 states in pertinent part: “Any contract or agreement, express or
21
implied, made by any employee to waive the benefits of this article or any part thereof is null and
22
void, and this article shall not deprive any employee or his or her personal representative of any
23
right or remedy to which he is entitled under the laws of this State.
24
69.
Labor Code section 1024.5 states in pertinent part: “(a) An employer or prospective
25
employer shall not use a consumer credit report for employment purposes unless the position of
26
the person for whom the report is sought is any of the following: (1) A managerial position; (2) A
27
position in the state Department of Justice; (3) That of a sworn peace officer or other law
28
enforcement position; (4) A position for which the information contained in the report is required
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1
by law to be disclosed or obtained; (5) A position that involves regular access, for any purpose
2
other than the routine solicitation and processing of credit card applications in a retail
3
establishment, to all of the following types of information of any one person; (A) Bank or credit
4
card account information; (B) Social security number; (C) Date of birth; (6) A position in which
5
the person is, or would be, any of the following; (A) A named signatory on the bank or credit card
6
account of the employer; (B) Authorized to transfer money on behalf of the employer;
7
8
9
10
11
12
13
14
15
16
17
18
19
20
(C) Authorized to enter into financial contracts on behalf of the employer; (7) A position that
involves access to confidential or proprietary information, including a formula, pattern,
compilation, program, device, method, technique, process or trade secret that (i) derives
independent economic value, actual or potential, from not being generally known to, and not being
readily ascertainable by proper means by, other persons who may obtain economic value from the
disclosure or use of the information, and (ii) is the subject of an effort that is reasonable under the
circumstances to maintain secrecy of the information; (8) A position that involves regular access
to cash totaling ten thousand dollars ($10,000) or more of the employer, a customer, or client,
during the workday.” None of these factors apply to Plaintiffs.
70.
Plaintiffs did not meet the requirements for a background check to be performed
by Defendants. As a result Defendants violated Labor Code § 1024.5.
71.
Wage Order 1-2001 states “All working employees shall be provided with suitable
seats when the nature of the work reasonably permits the use of seats.” Plaintiffs alleges that
21
Defendant failed to provide employees suitable seats while working even though the nature of the
22
work reasonably permitted the use of such seats.
23
24
25
72.
Defendant’ failure to provide suitable seats constitutes a violation of applicable
California laws and regulations, including Labor Code section 1198 and IWC Wage Order 1-2001.
73.
Labor Code section 1198 makes it unlawful to employ an employee under
26
conditions of labor that are prohibited by the applicable Wage Order. By failing to provide Plaintiff
27
Calangian and the other current and former aggrieved employees with suitable seats in violation
28
of Wage Order 1-2001, Defendant also violated Labor Code section 1198.
- 16 PAGA REPRESENTATIVE ACTION COMPLAINT
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1
74.
As a result of Defendants' unlawful conduct, Plaintiffs and Aggrieved Employees
2
are entitled to penalties to the extent they were not paid at the prevailing wage rate for all hours
3
worked.
4
5
75.
Plaintiffs and the Representative Aggrieved Employees are entitled to recover
Penalties and attorneys’ fees and costs sunder Labor Code section 2698, et. seq.
6
7
8
9
10
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs prays for judgment against Defendants, as follows:
1.
For penalties according to proof, pursuant to Labor Code §§ 2698 et seq.;
2.
For reasonable attorneys’ fees and costs; and
3.
For such other and further relief as the Court deems proper.
11
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Dated: May 19, 2023
JAMES HAWKINS APLC
By:
JAMES R. HAWKINS, ESQ.
GREGORY MAURO, ESQ.
MICHAEL CALVO, ESQ.
AVA ISSARY, ESQ.
LAUREN FALK, ESQ.
Attorneys for Plaintiffs ANGEL
CALANGIAN and JEEAN JOY ICATAR
SANTIAGO on behalf of the general public
as private attorney general
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25
26
27
28
- 17 PAGA REPRESENTATIVE ACTION COMPLAINT
PDF Page 19
EXHIBIT A
PDF Page 20
JAMES JH HAWKINS
A PROFESSIONAL LAW CORPORATION
9880 RESEARCH DRIVE, SUITE 200, IRVINE, CALIFORNIA 92618
TELEPHONE (949) 387-7200; FACSIMILE (949) 387-6676
October 14, 2022
Via LWDA Website
Labor and Workforce
Development Agency
Attn: PAGA Administrator
1515 Clay Street, Ste 801
Oakland, CA 94612
http://www.dir.ca.gov/PrivateAttorneys-General-Act
Via Certified Mail
TESLA, INC.
dba TESLA MOTORS, INC.
Agent for Service of Process:
CT CORPORATION SYSTEM
330 N. Brand Blvd, Suite 700
Glendale, CA 91203
Receipt No. 7021 1970 0000 9061 2793
Re: AMENDED NOTICE PURSUANT TO LABOR CODE SECTIONS
2698, et seq.
To Whom It May Concern:
PLEASE TAKE NOTICE that plaintiffs DEMETRICE TALLEY and JEEAN
JOY ICATAR SANTIAGO, individually and on behalf of all similarly situated
representative aggrieved employees, gives NOTICE to commence and/or amend a civil
action pursuant to California Labor Code Sections 2698, et seq. Plaintiff hereby gives
written notice by certified mail to the Labor and Workforce Development Agency, and
TESLA, INC., dba TESLA MOTORS, INC., through its Agent for Service of Process
(CT Corporation System).
Plaintiff hereby attaches a copy of the Proposed First Amended PAGA
Representative Action Complaint to be filed in Los Angeles County Superior Court as
though fully set forth herewith and the Class Action Complaint filed in the Alameda
Superior Court, setting out the specific provisions of the Labor Code Plaintiff alleges
have been violated, including the facts and theories. All labor provisions in the Proposed
PAGA Representative Action Complaint alleged to have been violated pertain to all
entities and individuals named in the Complaints, even if not expressly specified.
Please advise within sixty (60) days of the post mark on this letter if the LWDA
intends to investigate these claims.
PDF Page 21
Thank you, and if you have any questions, please do not hesitate to contact me.
Very Truly Yours,
/s/Gregory Mauro
Enclosure: Proposed First Amended PAGA Representative Action Complaint
2
PDF Page 22
EXHIBIT B
PDF Page 23
JAMES JH HAWKINS
A PROFESSIONAL LAW CORPORATION
9880 RESEARCH DRIVE, SUITE 200, IRVINE, CALIFORNIA 92618
TELEPHONE (949) 387-7200; FACSIMILE (949) 387-6676
March 1, 2023
Via LWDA Website
Labor and Workforce
Development Agency
Attn: PAGA Administrator
1515 Clay Street, Ste 801
Oakland, CA 94612
http://www.dir.ca.gov/PrivateAttorneys-General-Act
Via Certified Mail
TESLA, INC.
dba TESLA MOTORS, INC.
Agent for Service of Process:
CT CORPORATION SYSTEM
330 N. Brand Blvd, Suite 700
Glendale, CA 91203
Receipt No. 7021 1970 0000 9061 4759
Re: SECOND AMENDED NOTICE PURSUANT TO LABOR CODE
SECTIONS 2698, et seq.
To Whom It May Concern:
PLEASE TAKE NOTICE that plaintiffs DEMETRICE TALLEY, JEEAN JOY
ICATAR SANTIAGO, and ANGEL CALANGIAN individually and on behalf of all
similarly situated representative aggrieved employees, gives NOTICE to commence
and/or amend a civil action pursuant to California Labor Code Sections 2698, et seq.
Plaintiff hereby gives written notice by certified mail to the Labor and Workforce
Development Agency, and TESLA, INC., dba TESLA MOTORS, INC., through its
Agent for Service of Process (CT Corporation System).
Plaintiff hereby attaches a copy of the Proposed Second Amended PAGA
Representative Action Complaint to be filed in Los Angeles County Superior Court as
though fully set forth herewith and the Class Action Complaint filed in the Alameda
Superior Court, setting out the specific provisions of the Labor Code Plaintiff alleges
have been violated, including the facts and theories. All labor provisions in the Proposed
PAGA Representative Action Complaint alleged to have been violated pertain to all
entities and individuals named in the Complaints, even if not expressly specified.
Please advise within sixty (60) days of the post mark on this letter if the LWDA
intends to investigate these claims.
PDF Page 24
Thank you, and if you have any questions, please do not hesitate to contact me.
Very Truly Yours,
/s/Gregory Mauro
Enclosure: Proposed Second Amended PAGA Representative Action Complaint
2
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