Gordo Complaint

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ASSIGNED FOR ALL FLRPOSES "70:

1 IUDGE BRAD STLIGMSN
Pana, DEPARTMEST 23
le
v SECOND AMENDED CLASS ACTION
7 COMPLAINT FOR DECLARATORY
GORDO TAURI ZINC, acalifomia | ANDISTUNCLIVE RELIER DAMAGES,
Vs || Comoration dba Gordo “ques GORDO | RESTITUTION, AND CIVIL,
1 || TAQUERIA 22 ING “aeatnmin PENALTIES
1 || Conperaton dbs Conis-usuerar GORDO.
ap | SRUPRIA INC, Caloris DEMAND FOR JURY TRIAL

| Conporation ab Govan Tajr, GOR

ay || 7SGUERIAS, INC. aCaltorwe

21 | anperaton da tiard Taquores GORE

op, || EAQUERIA 5, INC. uCaliorna
onperatige di Gunde Taquercs DICK

ay || VARAGAMt on indisidual ter Gordo
Taguerin: MANUEL HERNANDEZ,

24 indidua Ubu Garde Tagger and DOES
JONE trougs TEM inch ve,

Complaint Filed: Decemhs- 16,2016

264 Delonas,

_ . ne Noe RULER?
SEDORD AMENDED C4953 ACTION Conia | FORLACERRATORY ANS RIURETIV
IRECIEF. DAMAGES, KENLIUUTION, AND CIVi- PERAL TES
Plaintiff JOSE MARTINEZ ("Plait"), on behalf of himself and all cers similarly
ciusted, complains and alleges as follows:
L ANTRODUCTION

1, Porsuant to California Code of Civil Procedure section 382, Plant brings this
class and representative action for wage and hcur claims on behalf of himself and all other
simitarlyinuated non-exempt hourly employees. including prep cooks, line cooks, burrito-enakers,
and aishovashers, who auc paid on an hourly basis (ellectively "Class Members” or the “Clsss")
uremly or formerly employed in California by Defendants GORDO TAQUERIA il, INC, a
| Catioenis corporation dba Gordo Tequetia (Clear Strut, San Francisoo); GORDO TAQUERIA
42, INC.,» Culifnaia corporation dba Gordo Taguecia Pb Avenue, San Francisee); GORDO
TAQUERIA #3, INC, a California corporation dba Gordo Taqueria (Sola Avenue, Albany);
GORDO TAQUERIA #5, INC, a California corporation dra Gordo Taqueria (College Aven,
Berkeiey); GORDO TAQUERIA #6, INC, # California corporation dba Gordo Taqueria (Geary
Boulevard, San Feancisoo); DICK YAMAGAMM, au individual dbs Gordo Taqueria (Telograph
Avenue, Berkeley; MANUEL FERNANDIZ, an individual dba Gardo Tagutria (Telegraph
Avenue, Berkeley and DOES 1-10 inolosive (collectively, "Defendants"

2. Defendants own and operate, an

limes relevant this Complaint owned and
parsed, various Mesian
under the fictidous busines name of Gordo Taqueria. Defendants at, anda al times relevant to
his Complaint were, employers eovcted by the California Labor Code and Tndustiol Welfare
Commission Wage Order 5 (Wage Order 5°.

cura thet i Zaguerias, in Alarmed und San Francinco counties

3. Duringall ime periods relevent Ue this Complain, commencing of eas four)
yeas prior to the filing ofthis action on December 16,2016 and continuing on though the preseut
abe “Cass Period”), Defendants have had a practice of distributing Plaintif’s and Class Members’
employee tips atthe end ofthe calendar yer, or periodically afew tines throughout the calendar
yeu. In addition, Defendants have had a prutie of requiring PluintT und Class Members to pol
al eps camed throvghout tho year and chen unlawfully dividing the pooled tps in an arbtary
fashion. In dition, Defendants have regulary failed to dismibute all ips eamed to only

1 age No RGISEA2T7T

‘SECOND AMENDED CLASS ACTION CONFLAINT FOR GECLARATORY AND DUUNCTIVE RELIEF,
‘DAMAGES, RESTITETION, aND CIVIL PENALTIES
eanployes inthe “chain of sevice” and ave hada prctoe oF unlawly using tps to pay for
omc expense,

4, Defenlant regula sequize and, a times relevant othe Compl, reqaiced
Plant and Clas Members to work over cight (8) hour in a day andor ever forty 40) hoursina
seek endior sven consecutive days. Until approximately Febmuy 2015, Defend 0 py
Pinta Class Member the overtone nd doubletime aes ruined by Califa aw
Funes, during the Class Period, up to and ineluding the proscat, Defendants have assigned Class
Momibers to work indifferent ection, and have pi Clasa Merb separate checks in
order to avoid ovenime compencation requirements,

uring he Clas Peri, upto and ncluing he presen, Defendants have filed to
provide Pini and Class Meabers who work over ten 10) hours in a day with # sod of,
ocinsrpod 30 minute meu period. Furr, Defeodan's regal il and at times relevant 0
ese Complain, eile to authorize and permit Flin and Clara Meribers to take oTF dy
oninirraptel O-minute rs periods, Moreover, Deendants regularly fi, and times elevant to
tbe Complaint, aed to provide Psiifa and Clase Members with the premium wages due fo the
rise mel period and et periods

6 Defeats regularly imerfere, and times elevan wo the Complain, have
eeefered with Plains and Class Members ability ot sick day, siilety, Defendant fl
and, time relevant othe Complain, have filed to provide Paint and Class Members with
Psd sick leave as equine by California av.

7. Defendants tave commited aditonal wage and Rou violations, inciuding, but uot
ited to, ite ro py all wages due upon seprtion from employment (0) Seto Frio
acc wage latent a (0) [ile Co msitin equied pao rend showing the actual
hours wexked cach day by Plain and Class Members

& This clas action acer violations of California's Labor Code, Wage Oedee 3,
Business al Profewions Coe, nd Pevms Auomey General Ac, x well ws mela Gor
conversion, aising from Defendants unlasful conde, including but not mite to (5) ilurot0
timely and propery disuibue tps; (ofllureto pay overtime, andor doubletime wages forall

2 ase Nos RGISEA27T7

'BECOND AMENDED CLASS ACTION COMPLAINT FOR DECLARATORY AND INTENCTIVE RELL,
DAMAGES, RESTITUTION, AND CIVIL PENALTIES
verime hour worked (culo to pay el wages, including tps and ovestime pay, de upon
separation ftom employment; (failure to provide a second 30-minute meal period on days in
which more than 10 hous re worked: 6) Failure to authorize and permit |O—minuts ret peri,
( iwoaforence with the right t take sick days and indore to pay sick leaves ig) failure to fumish
in roquired payroll eonnds, Plain on bah
of bimsclf md the silanly situated, seeks back wages, waiting time and other civil penalties,

accurate wage statements and (i) failure to ms

compensatory darzages. rstntion, intr hereon. ijometve and declaratory elie, nd atomey
fees and costs
JL JURISDICTION AND VENUE
9. This court hasjurstction ave dhe claims alleged herein pusuaat 0 California
shor Code § 1194 and the Califirn Constitution, Anicle VI, § 10, Jurslietion is further prope
in this out becuse Plt

ira all arise under the favs of the State of California, and all

patios to this action are Califor esiders.

10. Venue isproperin the Coumty of Alameda, pursuant to California Code of Civil
Procedore § 395.5. Plaintifwus employed by and performed work tor Defendants in Alameda
County, Californie, during the time period relevant to his Complaint. Defendants maintain aies,
wancuc business, nd have agents i Alameda County, and Defendants ae otuerwise within this
Court's jurisdiction for puposes af service of process.

1, PARTIES

11. PlintieCJose Martine, al all mes relevant fo this Complain, resided in Coote
[Costa County, Calfomia. Paint was cmployed as a dishwasher and prep cook by Defends
fiom approximately December 2013 to December 2015. Plaintft worked at Defendants College
Avene, Bethel location.

12, Plauifis infourned end betioves and thercon alleges that Gordo Taqueria isan
integrated enterprise operating a chain of fastfood Mexican restauranc, inluding but not imited

4 Defendant Gordo Taqueria #1, ne, « Culilornia corporation, located at 2252

main, 94126 (Gordo Taqueria #1”),

‘Clemeut Steet, San Francisco, Cali

3 ane Na: RGI6E42777
‘SECOND AMENDED CLABS ACTION COMPLAINT FOR DECLARATORY AND IUUNCTIVE RELIEF,
‘DAMAGES, RESTITULION, AND CIVIL PENALTIES
‘bo. Defendant Gordo Taqueria %, lc, Califor corporation, located at 123008
Avenue, San Prancisca, Calfoma, 94122 (“Gordo Taqueria #2");
¢ Defeedant Gordo Taqueria #3, Ins. California comporaton, located at 1423
Solano Avenue, Albany, California, 94706 ("Gordo Taqueria #3):
44. Defendant Gonde Taqueria #5, Ine, California comoraton, located at 2989
College Avenue, Berkeley, California, 94705 (“Gordo Taqueia #5);
6. Defendant Gordo Taquorin #6, Te, a California comoraton, locited at $450
Geary Boulevard, San Francisco, California, 94121¢ Gordo Taquaria #6");
£ Defendants Dick Viregur’ und Manuel Hemande, doing business ax Gordo
‘Taqueria #7, located at 2404 Telegraph Avenue, Berkeley, California, 94720
(Gordo Taqueria)
‘The entities and individuals namod sbove fn paragraphs (3) through (D above are
collectively refered to as “Govdo Taqueria”
13, Upon information and belief, Defeodant Varnagami, an individual, esi in San

Francisco County Califoria, Defendant Yamagamlis the CEO, President Incorporatr, and
| Ageat of Scrvice for Gordo Taqueria #1, Gordo Taqueria #2, Gondo Taqueria #3, Gordo Taqueria
#5, and Gordo Taqueria #6, Defendaut Yamagam is also the CFO for Gordo Taqueria #2 and
| Gordo Taquecin 46, and refesto hime osu mujarstockbulder” for Gord Taqueria and
[Gordo Taqueria #2, Hc was tho registered co-owner ofthe fctious business name Gonto Tague
#7 from 2010 to 2015, whem the gisation expired. Defendant Yamegami controls and is
intimately involved in the day-to-day opertions of Gordo Taqueria and both determined and
‘notuutethe unlawful woge and hous practices alleged herein,

14, Upon information and belief, Defendant Remander, an individual, resides in Cont
Costa County, alifomi, Defendant Hemandez ia te Secret for Gordo "taquena #1, Gord
Taqueria #2, Gondo Taqueria ¥3, Gordo Taqueria #5, and Gordo Taqueria #6, Defendant
Fiemuntee is lvo tue CFO for Gordo Taguesia #1, Gardo Tequesa #3, and Gordo Taguaria #5, He|
wos the regitredcu-owner ofthe titiouy business name Gono Taqueria #7 from 2010 to 2015,
sven the repivraion expired. Defendant Hernander controls and is intimately involved inthe day

4 ane Na: RGIGEIT7T
"SECOND AMENDED CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF,
‘DAMAGES, RESTITUTION, AND CIVIL PENALTIES
dy operons of Gordo Taqesia and bth detemuined and insite tho une wag rd
tour practices eyed bern

1S, Plutffisingored and belsves and hereon alleges hat Defendants have been
syseamatiselly and onntonpusly doing busieas in Clon, Defendans oe, an tall tises
relevant otis Compleer were, employers covered by the Coliforia Labor Code and Ways Order
5

16, PlainiFis firmed and belioves tht Dofondens we joint employes, operating at
sm incegroted enterprise, and re the alt egos of ene ane.

17, Defendants DOES 1-10 are persons o entities whose tue ames unl capa ere
| resenily unkows to Plan, who therefore sues thet by such fictions names. Plsiatifis
infoxmed ant blioves, and on tha bass slog, that cach ofthe fctousy-wamed Defendants
perpetrated some ol of the yrongfl acs alleged herein is responsible in ome manne forthe
mars alleged hersn, and is joie and severally able to Pin. Plan i aren his
Complaint allege the te names and capitis cf te DOK Deans when scorn
Plains Suber informed une believes, nd alleges hereon, tha at ll evanttimes, DOE
Detendans have held exccutive positions with Defendants, andar have acted on behalf of
Defendants hy sxerising deibon-making esponsibility fr and by establishing unlawful wage and
nour practices polices for Nefndaes, Pini infor and hsieves, and that basin
slleges, hata limes relevant this Complaint, DOE Detendaas, and cach of them, acted 38a
cxploye of Plsnti andthe Class Member, define below, within the definition ofthe California
Tabor Codeand Wage Onder, Pins informed and believes, and on thet basis alsa, that
DOE Defendants are join. employers, working us joint enteprive with and ane teller egos uf
Defendant

IV. FACTUAL ALLEGATIONS

18, PMainifand Class Members are cunent and former noz-exeiprheusly employees,
cutng pep wouks, line couks, burtmakers und shwasher, wit Ue mucning of the
Califia Labor Crde, the implementing roles nd regulations ofthe Wage Order 3, andr ether
applicable aw.

5 aye Na. RGIGRA2777

‘SECOND AMENDED CLASS ACTION COMPLAINT FOR DECLARATORY AND INFUNCTIVE RELIEF
"DAMAGES, RESTITUTION, AND CIVIL PENALTIES
19, During the Claw Period, Defendants violated, and continue to violate, Labor Code §
351 by () fang to dist ips to cmpleyocs for upto year 2) dstibutng pooled fps to
employees who are not in he “chan of service” (3) alin to distbte al emed tps to
employees, by, for example, using tips 0 pay for business expenecs, auch as nual company
partes; and (4) filing 0 keep socurae reccrds of ell Gps receive.

20, During the Clos Period, Defendants violated California's wage and hour laws by
having» policy ond practice of requiring Maint and Class Members to work over eight (8) hours
— an sometimes even over telve (12) hows —in a day andor ony (40) hours na workweek or
seventh consecutive day and failing to pay Plaats and Class Members the required overtime
premium rate of pay for all hours worked over eich (8) hams in day unr fory (£0) hours in
a workweek, as well asthe frst eight (8) hours worked onthe seventh consecutive day of workin
|» workweck and the requited double-Gme premitim rte of pty for ll hours worked beyond
vefve (12) hours ina workdey andor beyond the ist eight (8) hours worked on the seventh
consecutive day of work in @ workweek. Furtemnote, ding the Clas Period, Defeadants have
uad x poliey and practice of scheduling Claes Member to work a differen. Gordo Taqueria
cations ina pay period and providing employees with separate checks foreach location worked 10
ssid the acerul of weekly overtime anor doubletime hours end the payment ofthe rere
overtime andor doutletime compensetion

21. using de Class Period, Defendants have had apoicy and practic of failing to
provide Pini and Class Members with second off-duty. uninterupied meal peviod on days in
which Plait nd Class Members work more than ten (10) hours in violation of Calfomia ta
Further, Defendants have filed lo inform Plein ane Class Members of ther right o these sccond|
dty-five, minterrpted mesl periods. Moreover Defendants have failed to pay Plaintiff and Class
Members the required prensum pay for day in which second meal periods were not provided.

22. During the Cass Period, Defendants have had a policy an prantce offing to
| perianal auhosie Plants ond Clans Members with 10-minute offty,wnilemaptc eat
ocak for very four (4) hours or major faction thorcof worked in violation of Califomia las.
| Befendants have filed to inform Plaintif’ and Class Members of thee right to these off dy,

6 Case Kos ROISHATTT
‘SECOND AMENDED CLASS ACTION COMPLAINT FOR DECLARATORY AND INJONCTIVE RELIEF,
TDANAGES, HESTITCTION, AND CTVIL PENALTIES
unintemuple res periods. Moreover, Delendauts have filed to pay PlaintfF and Class Members
te required precisa pay for days in which rel periods were neither permitted or authorized,

23, During the Class Period, Defendants have had « policy and precios of interfeing
with Plaintiff snd Class Members" ability n take a sick day, filing to provide notice w Plaintiff
snd Clase Members of thet right to paid sick leave ~ much less prowide them with pid wick
leave, denpite Plaintif and Class Members meeting the various requirements (L.. length of
employment, temporal, geographic, not covered by a collective bargaining sgrccmant, ofc.) for
psi sick days under sate law. Rather Defendants have required Plaimtffand Class Members fo
fond replacement vorkers when they arc sick and have nol compensated them for ime ken off
due to iTInets or medical reulment andor providing care of assistance 1 a covered family
member, in violation of sate law

24, Dusing the Class Period, Defendants have had a policy and pracice of not
compensating Plaintiff and Class Members for ll eamed wages, including wages tbr overtime and
pululies, due either upon tetnnation or with 72 hours ofan unnoticed quit

25, During the Class Period, Defendants have hed a policy and practic of falling to
fumish Plain and Class Members wit

accurate wage statements, as theic wage statements do
ot accurately ref all hors worked orth applicable wage zs paid, and therefore do not
sccurately reflect the grossa not wages cared.

26. During he Class Period, Defendants have had a policy and practice of not keeping
basic required payroll end time records showing the actual hours worked ar emount of ips earned
cach day by Plaintiff and Class Merbess,

27, Plant teges hal thee ats ud les we lege hein wee duly
peformed by and atuibtabe tall Defendants enh ating asa succesto, eget ire
employes, indirect eaployer,imezratedsoterise andor under the direction and conte ofthe
cers, xorpl a speniullywleged olherwise, Said acs and floes act ere within the
seope of much agency andlor emplaymenl, ad ech Defendumtpactivipaed in, approved andlor
fed the unlawful ats and omissions bythe ether Defendants complained of herein.

Whenever and wherever reforcuse is tiade in this Complaint te any act by @ Defendant ot

2 ‘Casa No.: RGGRAZTI?

‘SECOND AMENDED CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF,
‘DAMAGES. RESTITUTION, AND CIVIL PENALTIES
Defendants, such allogations an roference shall niso be deemed to meun the acly und failures to
uct of each Defend weting inividually, jointly. ad/or severally,

28, Pleintffs allege thet Defendants Vornagura und Hemumder.are joint ownees,
directors, officers, and‘or manoging agents of each Gordo Taqueria location. Dofendants
Yexnagami and Hemandes. are actively involved in the day-to-day management of the restaurants
and exercise ight contol over their operations, As sus, they are personally lible forthe Wee
Order and Laber Code vilutions cited herein under Labor Code § 588.

Y._ CLASS ALLEGATIONS

29, Pleinibrings this action individoally and om behalf of el other siilaty-snosted
non-exempt hovrly eapleyocs, eluding prep cocks, line eno, burrtp-makers and dishwashers,
who are currently employed or were formerly employed by Defendants in California at any time
during the Css Pood,

30. Plaintiffs eloims are brought and may propety be maintained asa elas ation
l under Califomia Code of Civil Procedure § 362, because there isa well-defined community of
sce mony tne Class with respect othe clans asseted herein aud the proposed Classis easily
ascertainable.

31. Agvenaiuabilisy and Numcrosins The members of the Class are suficiently
momerous thas joinder ofall members is improcticable, During the Class Period, Defeadants have
employed Class Members to work a ther sx (6) restaurant locations in Alamesia County and Sen
Francisoo Couny. Plainti¥is informed and believes, and on that basis alleges, zhat Defendants
have employed approximately 140 Class Members at their restaurant focations during the Clas
Period, and that curent employees are members of the Class s defined herein, In addition, the
lav includes former employees employed by Defendants during the Class Period and unkswwn,
eure employees whe will besome employed by Defendants us Class Members prior Class
certification, The names and addresses of the Class Meabers are available from Defendants
ing techniques and a fem of

notice siailar to those customarily used in classaction lawsuit of this nature

hNotoe ean be provided to che Class Mertens vie fist class ma

32, Commonality: There are questions of law and fact common tothe Class tht are

8 ye No: ROLSEA2TI

‘SECOND ARTIDGD GLASS ACTION COMPLAINT FOR GECLARATORY AND NIUNCTIVERELIER,
‘DAMAGES, RESTITUTION, AND CIVIL FENALTIES
answerable on a common basis and these qnastions predominate over individual questions, The

questions of law and fact common tothe Clas include, without limitation:

2. Whether Defendants have had a paliey and practice of filing to distribute gratuites
‘tw ermplayees by no later than the next reyulaepoylay in violavon of Labor Code §
351;

‘b. Whether Defendants have hat a policy and practice of distributing pooled ips 10
employees who ace notin the “chain of service” in violation of Labor Cede § 351;

Whether Defendants have hada policy and proctie oF improperly using pooled tip
to pay foe business expenses, in violation of Labor Code § 351;

4d. Whether Defendants have hnd a poliey and practice of filing to pay Plaintiff and
‘Class Members avertime compensation forall hours worked in excess af eight (8)
‘hours in a day or forty (40) hours in a worksveek ar on the frst eight (8) hours of al
seventh consecutive workday and double-time compensation for all hours worked
inexcess of twelve (12) ina day or after eight (8) hours on the seventle
eanseculive workday, in violation of Laboe Code § 510 and Wage Onder 5 §§ 3,5

Whether Defendants have had a poliey and practic of only providing one meal
period per workday even when requiring Plaacffand Class Members to work,
more than ten (10) hous ia day. dhereby fling to provide the Paint and Class
“Members with « second meal period, in violaion of California's Wage Order 5 §

1 und Labor Code §§ 226.7 and 512;

Whether Defendanis have had policy and practice af nat aulhorizing or
permitting Plainti and Clas Merabers lo take 10-minute res periods for every
‘our (4) hours oF major faction thereo. in violation of Wage Order 5 § 12 and
Labor Code §§ 226.7:

& Whether Defendants have had a poliey and practice of inteftring with Plain
and Class Members’ ability to take a sick doy, ailing to provide notie to Plainte?
and Clase Mentbers of their right (a paid sick leave — much less provide them with]

9 ase No RGIGEA2T7?

‘SECOND AMENDED CLASS ACTION COMPLAINT FOR DECLARATORY AND INTUNCTIVE RELIEF,

‘DAMAGES, RESTITUTION, AND CIVIL PENALTIES