CLASS ACTION COMPLAINT AND VARIOUS INDIVIDUAL CLAIMS FOR DAMAGES AND INJUNCTIVE RELIEF 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 BURTON F. BOLTUCH (SBN 070211) LAW OFFICES OF BURTON F. BOLTUCH 555 Twelfth Street, Suite 1440 Oakland, CA 94607-4046 Telephone: (510) 844-3415 Facsimile: (510) 444-3401 E-Mail: [email protected]Attorneys for Plaintiffs Dina Partridge, Jessica Rose, Marcie O’Brien, Danielle Firkins, Nicole Talbert Donoghue, Sunnie Heng, Sandra Sandoval and Sarah Peterson SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF ALAMEDA UNLIMITED JURISDICTION DINA PARTRIDGE; JESSICA ROSE; MARCIE O’BRIEN; DANIELLE FIRKINS; NICOLE TALBERT DONOGHUE; SUNNIE HENG; SANDRA SANDOVAL AND SARAH PETERSON, ON BEHALF OF THEMSELVES, ON BEHALF OF ALL OTHERS SIMILARLY SITUATED AND ON BEHALF OF THE GENERAL PUBLIC AS PRIVATE ATTORNEY GENERALS, Plaintiffs, vs. HOTT WINGS, INC.; DUBLIN WINGS, INC. dba HOOTERS OF DUBLIN; S.F. WINGS, INC. dba HOOTERS OF SAN FRANCISCO; FREMONT WINGS, INC. dba HOOTERS OF FREMONT; CAMPBELL WINGS, INC., dba HOOTERS OF CAMPBELL; NICK JOSEPH TRANI; SHIRLEY A. TRANI; JOHN NICHOLAS JOSEPH TRANI; CRAIG GUINES; DOUG KAPPY; DONALD SPECKHALS; AND DOES 1-100, Defendants. CASE NO. CLASS ACTION COMPLAINT AND VARIOUS INDIVIDUAL CLAIMS FOR DAMAGES AND INJUNCTIVE RELIEF CLASS CLAIMS: 1. Improper Tip Pooling (Lab. Code §§ 350 et seq.); 2. Failure to Provide Meal and Rest Periods (Lab. Code §§ 216, 218.5, 218.6, 225.5, 226.7, 512 and 558; and Sections 11 and 12 of Wage Order 5); 3. Failure to Indemnify Employees for All Necessary Expenditures or Losses Incurred, Including Failure to Provide or Maintain Uniforms and Clothing (Lab. Code §§ 216, 218.5, 218.6, 221, 225.5, 450 and 2802; Section 9A of Wage Order 5); 4. Failure to Pay Wages By Improperly Deducting for Cash Shortages and Customer Walk Outs (Lab. Code §§ 216, 218.5, 218.6,
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CLASS ACTION COMPLAINT AND VARIOUS INDIVIDUAL CLAIMS FOR DAMAGES AND INJUNCTIVE RELIEF
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BURTON F. BOLTUCH (SBN 070211) LAW OFFICES OF BURTON F. BOLTUCH 555 Twelfth Street, Suite 1440 Oakland, CA 94607-4046 Telephone: (510) 844-3415 Facsimile: (510) 444-3401 E-Mail: [email protected] Attorneys for Plaintiffs Dina Partridge, Jessica Rose, Marcie O’Brien, Danielle Firkins, Nicole Talbert Donoghue, Sunnie Heng, Sandra Sandoval and Sarah Peterson
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF ALAMEDA
UNLIMITED JURISDICTION
DINA PARTRIDGE; JESSICA ROSE; MARCIE O’BRIEN; DANIELLE FIRKINS; NICOLE TALBERT DONOGHUE; SUNNIE HENG; SANDRA SANDOVAL AND SARAH PETERSON, ON BEHALF OF THEMSELVES, ON BEHALF OF ALL OTHERS SIMILARLY SITUATED AND ON BEHALF OF THE GENERAL PUBLIC AS PRIVATE ATTORNEY GENERALS,
Plaintiffs, vs.
HOTT WINGS, INC.; DUBLIN WINGS, INC. dba HOOTERS OF DUBLIN; S.F. WINGS, INC. dba HOOTERS OF SAN FRANCISCO; FREMONT WINGS, INC. dba HOOTERS OF FREMONT; CAMPBELL WINGS, INC., dba HOOTERS OF CAMPBELL; NICK JOSEPH TRANI; SHIRLEY A. TRANI; JOHN NICHOLAS JOSEPH TRANI; CRAIG GUINES; DOUG KAPPY; DONALD SPECKHALS; AND DOES 1-100,
Defendants.
CASE NO.
CLASS ACTION COMPLAINT AND VARIOUS INDIVIDUAL CLAIMS FOR DAMAGES AND INJUNCTIVE RELIEF CLASS CLAIMS: 1. Improper Tip Pooling (Lab. Code §§ 350 et seq.); 2. Failure to Provide Meal and Rest Periods (Lab. Code §§ 216, 218.5, 218.6, 225.5, 226.7, 512 and 558; and Sections 11 and 12 of Wage Order 5); 3. Failure to Indemnify Employees for All Necessary Expenditures or Losses Incurred, Including Failure to Provide or Maintain Uniforms and Clothing (Lab. Code §§ 216, 218.5, 218.6, 221, 225.5, 450 and 2802; Section 9A of Wage Order 5); 4. Failure to Pay Wages By Improperly Deducting for Cash Shortages and Customer Walk Outs (Lab. Code §§ 216, 218.5, 218.6,
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221 and 225.5; and Section 8 of Wage Order 5); 5. Failure to Pay Wages Including Minimum Wage and Expenses (Lab. Code §§ 206, 510, 1182.11, 1182.12, 1185, 1194(a), 1194.2, 1197 and 2802; and Wage Order 5);6. Failure to Pay Reporting Time and Other Wages; Alteration of Time Records (Lab. Code §§ 206, 216, 226, 1185, 1194(a), 1194.2 and1197; and Wage Order 5); 7. Failure to Timely Pay Compensation Due and Owing, Including to Employees Who Are Terminated or Resigned (Lab. Code §§ 201-203, 206, 216, 218.5, 218.6, 256, 510 and 1199); 8. Unfair Business Practices (Bus. & Prof. Code §§ 17200-17208); 9. Embezzlement; 10. Conversion; 11. Unjust Enrichment; 12. Fraud; 13. Failure to Comply With Itemized Employee Wage Statement Provisions (Lab. Code §§ 206, 216, 226, 226.3, 1174, 1174.5 and 1175; and Section 7 of Wage Order 5) INDIVIDUAL CAUSES OF ACTION: 14. ROSE - Kin Care (Lab. Code §§ 233 and 234) 15. ROSE - Failure to Provide a Complete Copy of Records Regarding Compensation (Lab. Code §§ 226, 226.3, 226.6, 1174, 1175 and 1197.5) 16. ROSE - Failure to Timely Supply or Allow Inspection of Personnel File (Lab. Code §§ 432, 1198.5 and 1199) 17. ROSE -Violation of Constitutional Right to Privacy and Termination In Violation of Public
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Policy (CA Constitution) 18. ROSE – Violation of the Fair Employment and Housing Act (Gov. Code §§ 12900, et seq.) 19. O’BRIEN - Violation of the Fair Employment and Housing Act (Gov. Code §§ 12900, et seq.) 20. O’BRIEN - Violation of Constitutional Right to Privacy and Termination In Violation of Public (CA Constitution) 21. PARTRIDGE - Violation of Constitutional Right to Privacy and Termination In Violation of Public (CA Constitution) DEMAND FOR A JURY TRIAL
2802; and Sections 3, 4 and 5 of Wage Order 5: (a) to not compensate employees for expenses
incurred for work and for wages owed (including reporting time pay, minimum wage and/or
applicable overtime), including but not limited to reporting for work and/or for attendance at
various events at which the non-supervisory employees were subject to the control of HOTT
WINGS, DUBLIN HOOTERS, FREMONT HOOTERS, SF HOOTERS and/or CAMPBELL
HOOTERS and/or at which the employees were suffered or permitted to work by HOTT
WINGS, DUBLIN HOOTERS, FREMONT HOOTERS, SF HOOTERS and/or CAMPBELL
HOOTERS and/or (b) to alter the time records of employees.
62. Throughout the Liability Period, Plaintiffs and members of the Plaintiff Class
were not timely paid compensation due and owing, including but not limited to upon termination
or resignation, in violation of Labor Code Sections 201-203, 206, 216, 218.5, 218.6, 256, 510
and 1199.
63. Plaintiffs and the members of the Plaintiff Class are informed and believe, and
based thereon allege, that HOTT WINGS, DUBLIN HOOTERS, FREMONT HOOTERS, SF
HOOTERS and/or CAMPBELL HOOTERS and/or the INDIVIDUAL DEFENDANTS were
and are well aware of, or received employee complaints, that it is improper and in violation of
the Labor Code to not timely pay compensation due and owing, including but not limited to upon
termination or resignation.
64. Throughout the Liability Period, Plaintiffs and the members of the Plaintiff Class
were not provided accurate itemized employee wage statements in that, inter alia, the wage
statements falsely understated gross wages earned by failing to pay for all hours worked; falsely
understated the total hours worked by ignoring the total of hours actually worked; falsely
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understated the net wages earned by failing to pay for all hours worked; and /or falsely
understated the “number of hours worked at each hourly rate”.
65. Plaintiffs and the members of the Plaintiff Class are informed and believe, and
based thereon allege, that HOTT WINGS, DUBLIN HOOTERS, FREMONT HOOTERS, SF
HOOTERS and/or CAMPBELL HOOTERS were and are well aware of, or received employee
complaints, that it is improper and in violation of Labor Code Section 206, 216, 226, 226.3,
1174, 1174.5 and 1175 and of Section 7 of Wage Order 5 to knowingly and intentionally fail to
comply with the itemized employee statement provisions.
66. Defendants’ denial of legal compensation (including, but not limited to for tips,
rest periods, meal periods, uniforms and clothing and other expenses, reporting time pay,
applicable overtime, minimum wage and/or other wages) due to Plaintiffs, and to the members of
the Plaintiff Class, was deliberate, malicious, oppressive and showed a callous disregard for the
rights of Plaintiffs and the members of the Plaintiff Class who relied on Defendants to
compensate them fairly.
67. HOTT WINGS’, DUBLIN HOOTERS’, FREMONT HOOTERS’, SF
HOOTERS’ and/or CAMPBELL HOOTERS’ and/or the INDIVIDUAL DEFENDANTS’
maintaining of the “Slush Fund” sheets and of converting, embezzling or unjustly enriching
themselves from the tip pools was deliberate, malicious, oppressive and showed a callous
disregard for the rights of Plaintiffs and the members of the Plaintiff Class who relied on HOTT
WINGS, DUBLIN HOOTERS, FREMONT HOOTERS, SF HOOTERS and/or CAMPBELL
HOOTERS and/or on the INDIVIDUAL DEFENDANTS to not convert, embezzle or unjustly
enrich themselves from the tip pools.
68. The failure of HOTT WINGS, DUBLIN HOOTERS, FREMONT HOOTERS, SF
HOOTERS and/or CAMPBELL HOOTERS to provide meal and rest periods and to not pay the
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one (l) hour of wages in lieu thereof was deliberate, malicious, oppressive and showed a callous
disregard for the rights of Plaintiffs and the members of the Plaintiff Class who relied on HOTT
WINGS, DUBLIN HOOTERS, FREMONT HOOTERS, SF HOOTERS and/or CAMPBELL
HOOTERS to compensate them fairly.
69. The failure of HOTT WINGS, DUBLIN HOOTERS, FREMONT HOOTERS, SF
HOOTERS and/or CAMPBELL HOOTERS to pay for uniforms and clothing, failure to maintain
the uniforms and clothing and deducting for the cost of uniforms and clothing from the wages of
Plaintiffs and the member of the Plaintiff Class was deliberate, malicious, oppressive and
showed a callous disregard for the rights of Plaintiffs and the members of the Plaintiff Class who
relied on HOTT WINGS, DUBLIN HOOTERS, FREMONT HOOTERS, SF HOOTERS and/or
CAMPBELL HOOTERS to not so act.
70. The failure of HOTT WINGS, DUBLIN HOOTERS, FREMONT HOOTERS, SF
HOOTERS and/or CAMPBELL HOOTERS to pay for cash shortages and customer walkouts,
threatening to impose discipline upon, imposing discipline upon, requiring the payment for,
and/or deducting amounts from wages owing, for cash shortages and customer walk-outs, with
respect to Plaintiffs and members of the Plaintiff Class, was deliberate, malicious, oppressive and
showed a callous disregard for the rights of Plaintiffs and the members of the Plaintiff Class who
relied on HOTT WINGS, DUBLIN HOOTERS, FREMONT HOOTERS, SF HOOTERS and/or
CAMPBELL HOOTERS to not so act.
71. The failure of HOTT WINGS, DUBLIN HOOTERS, FREMONT HOOTERS, SF
HOOTERS and/or CAMPBELL HOOTERS to comply with the itemized employee wage
statement provisions, with respect to Plaintiffs and members of the Plaintiff Class, was
deliberate, malicious, oppressive and showed a callous disregard for the right of Plaintiffs and
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the members of the Plaintiff Class who relied on HOTT WINGS, DUBLIN HOOTERS,
FREMONT HOOTERS, SF HOOTERS and/or CAMPBELL HOOTERS to not so act.
72. The failure of HOTT WINGS, DUBLIN HOOTERS, FREMONT HOOTERS, SF
HOOTERS and/or CAMPBELL HOOTERS to pay for expenses incurred and for wages owed
(including but not limited to reporting time pay, applicable overtime and minimum wage),
including but not limited to reporting to work and for attendance at various events at which
Plaintiff and the members of the Plaintiff Class were subject to the control of HOTT WINGS,
DUBLIN HOOTERS, FREMONT HOOTERS, SF HOOTERS and/or CAMPBELL HOOTERS
and/or were suffered or permitted to work by HOTT WINGS, DUBLIN HOOTERS, FREMONT
HOOTERS, SF HOOTERS and/or CAMPBELL HOOTERS and/or the altering of time records
HOTT WINGS, DUBLIN HOOTERS, FREMONT HOOTERS, SF HOOTERS and/or
CAMPBELL HOOTERS was deliberate, malicious, oppressive and showed a callous disregard
for the rights of Plaintiffs and the members of the Plaintiff Class who relied on HOTT WINGS,
DUBLIN HOOTERS, FREMONT HOOTERS, SF HOOTERS and/or CAMPBELL HOOTERS
to pay compensate them fairly.
73. The failure of HOTT WINGS, DUBLIN HOOTERS, FREMONT HOOTERS, SF
HOOTERS and/or CAMPBELL HOOTERS to timely pay compensation due and owing,
including but not limited to upon termination or resignation of Plaintiffs and/or members of the
Plaintiff Class, was deliberate, malicious, oppressive and showed a callous disregard for the
rights of Plaintiffs and the members of the Plaintiff Class who relied on HOTT WINGS,
DUBLIN HOOTERS, FREMONT HOOTERS, SF HOOTERS and/or CAMPBELL HOOTERS
to compensate them timely and fairly.
74. The willful failure of HOTT WINGS, DUBLIN HOOTERS, FREMONT
HOOTERS, SF HOOTERS and/or CAMPBELL HOOTERS to pay compensation due Plaintiffs
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and the members of the Plaintiff Class (a) for tips that were improperly pooled with supervisors
and management; (b) for expenses for purchasing or maintaining uniforms and clothing; (c) for
the one (l) hour of pay for missed rest and meal periods; (d) for expenses incurred and for wages
(including reporting time pay, applicable overtime and minimum wage) owed for time worked;
(e) for improper payment for or deductions from wages for cash shortages and customer walk-
outs; and/or (f) for other sums owed, and these failures were deliberate, malicious, oppressive
and showed a callous disregard for the rights of Plaintiffs and the members of the Plaintiff Class
who relied on HOTT WINGS, DUBLIN HOOTERS, FREMONT HOOTERS, SF HOOTERS
and/or CAMPBELL HOOTERS to timely and fairly compensate them.
V. CLASS ACTION ALLEGATIONS
75. Plaintiffs bring this action on behalf of themselves and all others similarly situated
as a class action, pursuant to Section 382 of the Code of Civil Procedure, and on behalf of the
general public, pursuant to Business and Professions Code Sections 17200 et seq. Plaintiffs
seeks to represent a class composed of and defined as follows:
All persons who are employed or have been employed by HOTT WINGS, DUBLIN HOOTERS, FREMONT HOOTERS, SF HOOTERS and/or CAMPBELL HOOTERS as Hooters Girls, bartenders, hostesses, bus boys and/or in other non-supervisory capacities in the State of California who, within four (4) years of the filing of this Complaint, and who were (a) required to pool tips with HOTT WINGS, DUBLIN HOOTERS, FREMONT HOOTERS, SF HOOTERS and/or CAMPBELL HOOTERS and/or with supervisors and management of HOTT WINGS, DUBLIN HOOTERS, FREMONT HOOTERS, SF HOOTERS and/or CAMPBELL HOOTERS; (b) were not provided required rest and meal periods and/or were not paid one (l) hour of wages in lieu of missed rest and meal periods; (c) were required to take meal periods at unauthorized times and/or were not paid one (1) hour of wages for same; (d) were required to purchase and maintain uniforms and clothing and/or were required to have sums deducted from wages for the cost of the uniforms and clothing; (e) were threatened with and/or had discipline imposed or required to pay (or have sums deducted from wages) for cash shortages and/or customer walk-outs; (f) were not paid for expenses incurred and/or
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for wages (including, but not limited to, reporting time pay, applicable overtime and/or minimum wage) owed for time worked including reporting to work and/or working away from the primary location of work; (g) were not timely paid wages including, but not limited to, upon resignation and/or termination; (h) were not paid other wages and/or expenses incurred; (i) were not provided accurate itemized employee wage statements; (j) had time records altered; and/or (k) were subject to the embezzlement, conversion, fraud or other alleged acts as described in this Complaint.
76. Members of the class defined above are referred to as “Class Members” or
collectively as the “Plaintiff Class.”
77. Plaintiffs reserve the right under Rule 1855(b), California Rules of Court, to
amend or modify the class description with greater specificity or further division into subclasses
or limitation to particular issues.
78. This action has been brought and may properly be maintained as a class action
under the provisions of Section 382 of the Code of Civil Procedure because there is a well-
defined community of interest in the litigation and the proposed Class is easily ascertainable.
A. Numerosity
79. The Class Members as defined are so numerous that joinder of all the Class
Members is impracticable. While the precise number of Class Members has not been determined
at this time, Plaintiffs are informed and believe, and based thereon allege, that HOOTERS
currently employs, and throughout the Liability Period employed, hundreds if not thousands of
employees in the State of California, who are or have been affected by the policy of improper
pooling of tips with HOTT WINGS, DUBLIN HOOTERS, FREMONT HOOTERS, SF
HOOTERS and/or CAMPBELL HOOTERS and/or supervisors and management of HOTT
WINGS, DUBLIN HOOTERS, FREMONT HOOTERS, SF HOOTERS and/or CAMPBELL
HOOTERS; of not providing required rest and meal periods, of requiring meal periods to be
taken at unauthorized times and/or of not paying of one (l) hour of wages in lieu thereof; of
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requiring the purchase and maintenance and/or deducting from wages for the cost of uniforms
and clothing; of threatening and/or imposing discipline or requiring payment (and/or deducting
from wages) for cash shortages and/or customer walk-outs; of not compensating for expenses
incurred and/or for wages (including reporting time pay, applicable overtime and/or minimum
wage) owed for time worked, including reporting to work and/or working away from the primary
location of work; of not timely paying wages owed, including but not limited to upon resignation
and/or termination; of not complying with the itemized employees wage statement provisions; of
not paying waiting time, liquidated damages and/or other wages and penalties owed; and/or of
having time records altered.
80. Accounting for employee turnover throughout the Liability Period necessarily
increases this number substantially. Plaintiffs and members of the Plaintiff Class are informed
and believe, and based thereon allege, that the employment records of HOTT WINGS, DUBLIN
HOOTERS, FREMONT HOOTERS, SF HOOTERS and/or CAMPBELL HOOTERS will
provide information as to the number and location of all Class Members.
B. Commonality
81. There are questions of law and fact common to the Plaintiff Class that
predominates over any questions affecting only individual Class Members. These common
questions of law and fact include, without limitation:
a. Whether HOOTERS violated Labor Code Sections 350 et seq. or any
other applicable provisions of the Labor Code, the California Code of Regulations or Wage
Order 5 by pooling tips of Class Members with HOTT WINGS, DUBLIN HOOTERS,
FREMONT HOOTERS, SF HOOTERS and/or CAMPBELL HOOTERS and/or with
supervisors and management of HOTT WINGS, DUBLIN HOOTERS, FREMONT HOOTERS,
SF HOOTERS and/or CAMPBELL HOOTERS;
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b. Whether HOOTERS violated Sections 216, 218.5, 218.6, 225.5, 226.7,
512 and 558 or any other provisions of the Labor Code, the California Code of Regulations or
Sections 7, 11 and 12 of Wage Order 5 by failing to provide Class Members required rest and
meal periods, by requiring Class Members to take the meal period at unauthorized times and/or
by failing to pay Class Members one (l) hour of wages in lieu thereof;
1199 and 2802; the California Code of Regulations; and/or various sections of Wage Order 5,
which violations constitute a violation of fundamental public policy; and
l. Whether Plaintiff and the Members of the Plaintiff Class are entitled to
injunctive and/or other equitable relief pursuant to Business and Professions Code Sections
17200, et seq.
C. Typicality
82. The claims of the named Plaintiffs are typical of the claims of the Plaintiff Class.
Plaintiffs and all Class Members have sustained injuries and damages arising out of and caused
by HOOTERS and by the common course of conduct of HOOTERS and of the INDIVIDUAL
DEFENDANTS in violation of laws and regulations that have the force and effect of law and
statues as alleged herein.
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D. Adequacy of Representation
83. The named Plaintiffs will fairly and adequately represent and protect the interests
of the Plaintiff Class. Counsel for Plaintiffs is competent and experienced in litigating large
employment class actions.
E. Superiority of Class Action
84. A class action is superior to other available means for the fair and efficient
adjudication of this controversy. Individual joinder of all Class Members is not practicable and
questions of law and fact common to the Plaintiff Class predominate over any questions affecting
only individual Class Members. Each Class Member has been damaged and is entitled to
recovery by reason of the uniform illegal policies of HOTT WINGS, DUBLIN HOOTERS,
FREMONT HOOTERS, SF HOOTERS and/or CAMPBELL HOOTERS and, as applicable, of
the INDIVIDUAL DEFENDANTS.
85. Class action treatment will allow those similarly situated persons to litigate their
claims in the manner that is most efficient and economical for the parties and the judicial system.
Plaintiffs are unaware of any difficulties that are likely to be encountered in the management of
this action that would preclude its maintenance as a class action.
FIRST CAUSE OF ACTION
IMPROPER TIP COLLECTION, TAKING OR RECEIPT OF TIP INCOME/TIP POOLING
(CALIFORNIA LABOR CODE SECTIONS 350 et seq.)
PLAINTIFFS INDIVIDUALLY AND ON BEHALF OF THE PLAINTIFF CLASS AGAINST HOOTERS (HOTT WINGS, DUBLIN HOOTERS, FREMONT HOOTERS, SF HOOTERS and CAMPBELL HOOTERS)
86. Plaintiffs incorporate Paragraphs 1 though 85 above, as though fully set forth
herein.
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87. By requiring its non-supervisory employees to pool tips with supervisors and
management, as alleged above, HOTT WINGS, DUBLIN HOOTERS, FREMONT HOOTERS,
SF HOOTERS and/or CAMPBELL HOOTERS willfully violated the provisions of Labor Code
Sections 350 et seq. and failed to pay to its non-supervisory employees the tips that were
intended by customers of HOTT WINGS, DUBLIN HOOTERS, FREMONT HOOTERS, SF
HOOTERS and/or CAMPBELL HOOTERS as gratuities for Plaintiffs and the Plaintiff Class
they seek to represent.
88. For years, HOTT WINGS, DUBLIN HOOTERS, FREMONT HOOTERS, SF
HOOTERS and/or CAMPBELL HOOTERS and/or the INDIVIDUAL DEFENDANTS have
been systematically dipping into the “tip pools” of the employees at the various restaurants,
taking tips from its “Hooter Girls” and giving the money to the owners, upper level management,
supervisors and/or other statutorily defined “agents”.
89. HOTT WINGS, DUBLIN HOOTERS, FREMONT HOOTERS, SF HOOTERS
and/or CAMPBELL HOOTERS and/or the INDIVIDUAL DEFENDANTS have benefitted from
the unlawful tip pooling policy as herein described. Over the last four year period, HOTT
WINGS, DUBLIN HOOTERS, FREMONT HOOTERS, SF HOOTERS and/or CAMPBELL
HOOTERS and/or the INDIVIDUAL DEFENDANTS misappropriated a yet to be determined
sum from the tip pools to supplement the profits of its owners and wages of senior management
and supervisors.
90. The unlawful practices of HOTT WINGS, DUBLIN HOOTERS, FREMONT
HOOTERS, SF HOOTERS and/or CAMPBELL HOOTERS gives each of these entities an
unfair competitive advantage over restaurants that comply with California law and that do not
pay owners, supervisor or agents from the tip pools of non-supervisory employees.
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91. HOTT WINGS, DUBLIN HOOTERS, FREMONT HOOTERS, SF HOOTERS
and/or CAMPBELL HOOTERS, and/or SPECKHALS and/or the other INDIVIDUAL
DEFENDANTS control every aspect of the collection, retention and distribution of tip money at
DUBLIN HOOTERS, FREMONT HOOTERS, SF HOOTER and/or CAMPBELL HOOTERS,
including mandating how tips are collected, counted, logged, dropped and/or maintained in the
safe at each restaurant by an employee of HOTT WINGS, DUBLIN HOOTERS, FREMONT
HOOTERS, SF HOOTER and/or CAMPBELL HOOTERS and then distributed. Employees
have no discretion to deviate from these policies and procedures governing the collection,
retention and/or distribution of pooled tips.
92. California Labor Code Section § 351 states:
No employer or agent shall collect, take, or receive any gratuity or a part thereof that is paid, given to, or left for an employee by a patron, or deduct any amount from wages due an employee on account of a gratuity, or require an employee to credit the amount, or any part thereof, of a gratuity against and as a part of the wages due the employee from the employer. Every gratuity is hereby declared to be the sole property of the employee or employees to whom it was paid, given, or left for… 93. The definition of “gratuity” is defined at California Labor Code § 350(e)
which states:
“Gratuity” includes any tip, gratuity, money, or part thereof that has been paid or given to or left for an employee by a patron of a business over and above the actual amount due the business for services rendered or for goods, good, drink, or articles sold or served by the patron… 94. The purpose of these provisions is set forth in California Labor Code § 356
which provides that:
The Legislature expressly declares that the purpose of this article is to prevent fraud upon the public in connection with the practice of tipping and declares that this article is passed for a public reason and can not be contravened by a private agreement…
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95. As a result of the unlawful acts of HOTT WINGS, DUBLIN HOOTERS,
FREMONT HOOTERS, SF HOOTERS and/or CAMPBELL HOOTERS, Plaintiffs and the
Plaintiff Class they seek to represent have been deprived of gratuities/tips and other monies in
amounts to be determined at trial, and are entitled to recovery of such amounts, plus interest,
under Labor Code Sections 350 et seq.
96. WHEREFORE, Plaintiffs and the Plaintiff Class they seek to represent are
entitled to recover the tips improperly taken in amounts to be determined at trial, interest,
attorneys’ fees and costs of suit, and to the relief as described below.
SECOND CAUSE OF ACTION
FAILURE TO PROVIDE REST AND MEAL PERIODS OR PAY ONE HOUR OF ADDITIONAL WAGES IN LIEU THEREOF
(CALIFORNIA LABOR CODE §§ 216, 218.5, 218.6, 225.5, 226.7, 512 and 558 and
SECTIONS 11 and 12 of WAGE ORDER 5)
PLAINTIFFS INDIVIDUALLY AND ON BEHALF OF THE CLASS AGAINST HOOTERS
97. Plaintiffs incorporate Paragraphs 1 though 96 above, as though fully set forth
herein.
98. Plaintiffs and the Plaintiff Class they seek to represent, while in the employ of
HOTT WINGS, DUBLIN HOOTERS, FREMONT HOOTERS, SF HOOTERS and/or
CAMPBELL HOOTERS, worked for periods of more than five (5) hours without a duty-free
meal period of no less than thirty (30) minutes and were not provided full ten (10) minute rest
periods.
99. California Labor Code § 226.7 states:
a. No employer shall require any employee to work during any meal or rest period mandated by an applicable order of the Industrial Welfare Commission. b. If an employer fails to provide an employee a meal period or rest period in accordance with an applicable order of the Industrial Welfare Commission, the employer shall pay the employee one additional hour of pay at the employee’s
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regular rate of compensation for each work day that the meal or rest period is not provided.
100. Comparable requirements are also found in Wage Order 5. Section 11 of Wage
Order 5 states with regards to meal periods:
(A) No employer shall employ any person for a work period of more than five (5) hours without a meal period of not less than 30 minutes, except that when a work period of not more than six (6) hours will complete the day’s work the meal period may be waived by mutual consent of the employer and employee. Unless the employee is relieved of all duty during a 30 minute meal period, the meal period shall be considered an “on duty” meal period and counted as time worked. An “on duty meal period shall be permitted only when the nature of the work prevents an employee form being relieved of all duty and when by written agreement between the parties an on-the-job paid meal period is agreed to. The written agreement shall state that the employee may, in writing, revoke the agreement at any time. (B) If an employer fails to provide an employee a meal period in accordance with the applicable provisions of this Order, the employer shall pay the employee one(l) hour of pay at the employee’s regular rate of compensation for each work day that the meal period is not provided.
101. A similar provision is also contained at California Labor Code § 512(a) with
regards to meal periods:
a. An employer may not employ an employee for a work period of more than five (5) hours per day without providing the employee with a meal period of not less than thirty (30) minutes, except that if the total work period per day of the employee is no more than six (6) hours, the meal period may be waived by mutual consent of both the employer and employee. 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 not more than twelve (12) hours, the second meal period may be waived consent of the employer and the employee only if the first meal period was not waived. 102. HOTT WINGS, DUBLIN HOOTERS, FREMONT HOOTERS, SF HOOTERS
and/or CAMPBELL HOOTERS regularly required Plaintiff and Plaintiff Class to take the meal
period, to the extent a meal period was provided, at or near the beginning of the shift, in violation
of California Labor Code Sections 226.7 and 512.
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103. HOTT WINGS, DUBLIN HOOTERS, FREMONT HOOTERS, SF HOOTERS
and/or CAMPBELL HOOTERS violated California Labor Code §§ 226.7 and 512 by failing to
provide meal periods mandated by Labor Code § 226.7 and Section 11 of Wage Order 5, and/or
by failing to provide one (l) hour of additional wages at the employee’s regular rate of
compensation for each work day that the meal periods were not lawfully provided.
104. Section 12 of Wage Order 5 states with regards to rest periods:
(A) Every employer shall authorize and permit all employees to take rest periods, which insofar as practicable shall be in the middle of each work period. The authorized rest period time shall be based on the total hours worked daily at the rate of ten (10) minutes net rest time per four (4) hours or major fraction thereof. However, a rest period need not be authorized for employees whose total daily work time is less than three and one-half (3 ½) hours. Authorized rest period time shall be counted, as hours worked, for which there shall be no deduction from wages. (B) If an employer fails to provide an employee a rest period in accordance with the applicable provisions of this Order, the employer shall pay the employee one (1) hour of pay at the employee’s regular rate of compensation for each work day that the rest period is not provided. 105. HOTT WINGS, DUBLIN HOOTERS, FREMONT HOOTERS, SF HOOTERS
and/or CAMPBELL HOOTERS violated California Labor Code § 226.7 by failing to provide
rest periods mandated by Labor Code § 226.7 and Section 12 of Wage Order 5, and by failing to
provide one (l) hour of additional wages at the employees’ regular rate of compensation for each
work day that the rest periods were not lawfully provided.
106. Plaintiffs and, on information and belief, the Plaintiff Class and its Class
Members, did not voluntarily or willfully waive rest or meal periods. Any express or implied
waivers obtained from Plaintiffs or the Plaintiff Class were not willfully obtained or were not
voluntarily agreed to. HOTT WINGS, DUBLIN HOOTERS, FREMONT HOOTERS, SF
HOOTERS and/or CAMPBELL HOOTERS did not permit or authorize Plaintiffs and, on
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information and belief, the Plaintiff Class, to take meal and/or rest periods in accordance with
applicable law.
107. By failing to keep adequate time records required by Labor Code §§ 226 and
1174(d); or by altering time records, HOTT WINGS, DUBLIN HOOTERS, FREMONT
HOOTERS, SF HOOTERS and/or CAMPBELL HOOTERS injured Plaintiffs and the Plaintiff
Class and made it difficult to calculate the unpaid additional wages due Plaintiffs and the Class
Members.
108. As a result of the unlawful acts of HOTT WINGS, DUBLIN HOOTERS,
FREMONT HOOTERS, SF HOOTERS and/or CAMPBELL HOOTERS, Plaintiffs and the
Plaintiff Class have been deprived of additional wages.
109. WHEREFORE, Plaintiffs and the Plaintiff Class are entitled to recover the unpaid
additional wages in amounts to be determined at trial, penalties in amounts to be determined at
trial including but not limited to the civil penalties set forth in Labor Code Section 558 of Fifty
Dollars ($50) for each underpaid employee for each pay period for which the employee was
underpaid and One Hundred Dollars ($100) for each underpaid employee for each subsequent
violation per pay period, the interest, attorneys’ fees and costs of suit and to the relief as
described herein.
THIRD CAUSE OF ACTION
FAILURE TO INDEMNIFY EMPLOYEES FOR ALL NECESSARY EXPENDITURES OR LOSSES INCURRED, INCLUDING FAILURE TO PROVIDE
OR MAINTAIN UNIFORMS AND CLOTHING
(CALIFORNIA LABOR CODE §§ 216, 218.5, 218.6, 221, 225.5, 450 and 2802 and SECTION 9(A) of WAGE ORDER 5)
PLAINTIFFS INDIVIDUALLY AND ON BEHALF OF THE CLASS AGAINST HOOTERS
110. Plaintiffs incorporate Paragraphs 1 though 109 as though fully set forth herein.
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111. HOTT WINGS, DUBLIN HOOTERS, FREMONT HOOTERS, SF HOOTERS
and/or CAMPBELL HOOTERS failed to reimburse employees for expenses incurred in
acquiring and/or maintaining required uniforms and clothing and/or for necessary travel
expenses. The applicable uniform and equipment requirements for food and beverage service
employees are found in Section 9 of Wage Order 5. Further Labor Code § 2802 states that:
a. An employer shall indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties…. Subsection (c) of Labor Code § 2802 further states that “For purposes of this section, the terms “necessary expenditures or losses” shall include all reasonable costs, including, but not limited to, attorneys’ fees incurred ny the employee enforcing the rights granted by this section.”
112. Plaintiffs and the Plaintiff Class they seek to represent were required to pay for
uniforms and clothing, were required to maintain their uniforms and clothing beyond normal
washing, and/or were not reimbursed for costs incurred to purchase and/or to maintain uniforms
and clothing. Further, HOTT WINGS, DUBLIN HOOTERS, FREMONT HOOTERS, SF
HOOTERS and/or CAMPBELL HOOTERS often required Plaintiffs and the Plaintiffs Class they
seek to represent to pay for the cost of their uniforms and clothing via deductions owed to the
employees. As such, Plaintiffs and the Plaintiff Class they seek to represent seek reimbursement
for costs incurred and wages deducted in acquiring and maintaining their uniforms and clothing,
interest, costs of suit and attorneys’ fees pursuant to Labor Code Sections 216, 218.5, 218.6, 221,
225.5, 450 and 2802 and Section 9A of Wage Order 5.
113. WHEREFORE, Plaintiffs and the Plaintiff Class are entitled to reimbursement for
sums paid and for wages deducted, in amounts to be determined at trial, plus interest, costs of suit
and attorneys’ fees pursuant to §2802(c) and the other sections of the Labor Code referenced
above, and to the relief as described below.
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FOURTH CAUSE OF ACTION
FAILURE TO PAY WAGES BUY IMPROPERLY DEDUCTING FOR CASH SHORTAGES AND/OR CUSTOMER WALK-OUTS
(CALIFORNIA LABOR CODE §§ 216, 218.5, 218.6, 221 and 225.5; SECTION 8 OF WAGE
ORDER 5)
PLAINTIFFS INDIVIDUALLY AND ON BEHALF OF THE CLASS AGAINST HOOTERS
114. Plaintiffs incorporate Paragraphs 1 though 113 above, as though fully set forth
herein.
115. For at least four (4) years prior to the filing of this Complaint and through to the
Liability Period, HOTT WINGS, DUBLIN HOOTERS, FREMONT HOOTERS, SF HOOTERS
and/or CAMPBELL HOOTERS had a consistent policy of requiring its non-supervisory
employees, including Plaintiffs and the Plaintiff Class they seek to represent, to pay (and/or face
discipline), often via direct deductions from wages owed to the employees, for cash shortages
and/or customer walk-outs. As such, Plaintiffs and the Plaintiff Class they seek to represent such
reimbursement for wages deducted, sums paid directly, removal of discipline imposed, interest,
costs of suit and attorneys’ fees pursuant to Labor Code Sections 216, 218.5, 218.6, 221 and
225.5 and Section 8 of Wage Order 5.
116. WHEREFORE, Plaintiffs and Plaintiff Class are entitled to reimbursement for
lost wages and sums directly expended in amounts to be determined at trial, removal of
discipline imposed, interest, costs of suit and attorneys’ fees, and to the relief described below.
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FIFTH CAUSE OF ACTION
FAILURE TO PAY WAGES INCLUDING MINIMUM WAGES AND EXPENSES
(CALIFORNIA LABOR CODE §§ 206, 510, 1182.11, 1182.12, 1185, 1194(a), 1194.2, 1197 and 2802 and SECTION 4 of WAGE ORDER 5)
PLAINTIFFS INDIVIDUALLY AND ON BEHALF OF THE CLASS AGAINST HOOTERS
117. Plaintiffs incorporate Paragraphs 1 though 116 above, as though fully set forth
herein.
118. For at least four (4) years prior to the filing of this Complaint and through the
Liability Period, HOTT WINGS, DUBLIN HOOTERS, FREMONT HOOTERS, SF HOOTERS
and/or CAMPBELL HOOTERS had a consistent policy of not compensating its non-supervisory
employees, including Plaintiffs and the Plaintiff Class they seek to represent, for wages owed,
including reporting time pay, minimum wage and/or applicable overtime; for expenses incurred;
and/or for work performed, including for attendance at various HOOTERS-related events, such
as “Bikini Shoots”, at which the employees were subject to the control of HOOTERS and at
which the employees were “suffered or permitted” to work by HOOTERS. As such, Plaintiffs
and Plaintiff Class seek reimbursement for lost wages, liquidated damages, interest, costs of suit
and attorneys’ fees pursuant to Labor Code Section 2802 and Wage Order 5.
119. HOTT WINGS, DUBLIN HOOTERS, FREMONT HOOTERS, SF HOOTERS
and/or CAMPBELL HOOTERS failed to pay minimum wage “for all hours worked” in violation
of Labor Code Section 1182.11, 1182.12, 1185 and other provisions of the Labor Code and
Wage Order 5.
120. California Labor Code § 1197, entitled “Payment of Less Than Minimum Wage”
states:
The minimum wage for employees fixed by the commission is the minimum wage to be paid to employees, and the payment of a less wage than the minimum so fixed is unlawful.
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121. The applicable minimum wages for Plaintiff and the Plaintiff Class they
seek to represent is found in Section 4 of Wage Order 5, which states:
Every employer shall pay to each employee wages not less than seven dollars and fifty cents ($7.50) per hour for all hours worked, effective January 1, 2007 and not less than eight dollars ($8.00) per hour for all hours worked, effective January 1, 2008.
122. The minimum wage provisions of California Labor Code are enforceable
by private civil action pursuant to California Labor Code § 1194(a) which states:
Notwithstanding any agreement to work for a lesser wage, any employee receiving less than the minimum wage for the legal overtime compensation applicable to the employee is entitled to recover in an civil action the unpaid balance of the full amount of this minimum wage or overtime compensation, including interest thereon, reasonable attorneys’ fees and costs of suit. 123. As described in California Labor Code §§ 1185 and 1194.2, any such
action for wages incorporates the applicable wage order of the California Industrial
Welfare Commission.
124. California Labor Code § 1194.2 also provides for the following remedies:
In any action under Section 1194 … to recover wages because of the payment of a wage less than the minimum fixed by an order of the commission, an employee shall be entitled to recover liquidated damages in an amount equal to the wages unlawfully unpaid and interest thereon. 125. As such, Plaintiffs, individually and on behalf of the Plaintiff Class, may
bring this action for minimum wage and overtime, liquidated damages, interest, costs of
suit, and attorneys’ fees pursuant to § 1194(a).
126. WHEREFORE, Plaintiffs and the Plaintiff Class they seek to represent are
entitled to recover the unpaid minimum wages and liquidated damages in an amount
equal to the minimum wages unlawfully unpaid and in amounts to be determined at trial,
interest, reasonable attorneys’ fees and costs of suit, and to the relief described below.
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SIXTH CAUSE OF ACTION
FAILURE TO PAY REPORTING TIME WAGES AND OTHER WAGES; ALTERATION OF TIME RECORDS
PLAINTIFFS INDIVIDUALLY AND ON BEHALF OF THE CLASS AGAINST HOOTERS
127. Plaintiffs incorporate Paragraphs 1 through 126 above, as though fully set forth
herein.
128. HOTT WINGS, DUBLIN HOOTERS, FREMONT HOOTERS, SF HOOTERS
and/or CAMPBELL HOOTERS failed to pay reporting time wages to Plaintiffs and various
members of the Plaintiff Class they seek to represent by having non-supervisory employees
report to work and by sending these persons home and by having non-supervisory employees
comply with a work schedule that required them to report to work and work shifts of less then
two (2) hours on certain work days. Plaintiffs and the Plaintiff Class they seek to represent are
informed and believe, and thereon allege, that HOTT WINGS, DUBLIN HOOTERS,
FREMONT HOOTERS, SF HOOTERS and/or CAMPBELL HOOTERS had a policy of altering
time records of its non-supervisory employees to falsely hide the hours worked or that persons
reported to work.
129. The applicable reporting time pay requirements for Plaintiffs and the Plaintiff
Class they seek to represent is found in Section 5 of Wage Order 5, which states:
(a) Each workday an employee is required to report for work and does report, but is not put to work or is furnished less than half said employees usual or scheduled day’s work, the employee shall be paid for half the usual or scheduled day’s work, but in no event less than two (2) hours nor more than four (4) hours, at the employee’s regular rate of pay, which shall not be less than the minimum wage. (b) If an employee is required to report to work a second time in any one workday and is furnished less than two (2) hours of work on the second reporting,
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said employee shall be paid for two (2) hours at the employee’s regular rate of pay, which shall not be less than the minimum wage.
130. The definition of shift is defined in Wage Order 5 which states:
“Shift” means designated hours of work by an employee, with a designated beginning time and quitting time.
131. California Labor Code § 1197, entitled “Payment of Less Than Minimum Wage” states:
The minimum wage for employees fixed by the commission is the minimum wage to be paid to employees, and the payment of a less wage than the minimum so fixed is unlawful. 132. The minimum wage provisions of California Labor Code are enforceable by
private civil action pursuant to California Labor Code § 1194(a).
133. As described, in California Labor Code §§ 1185 and 1194.2, any such action
incorporates the applicable Wage Order. Section 1182.11 and 1182.12 discuss the minimum
wage.
134. California Labor Code § 1194.2 also provides for the following remedies:
In any action under Section 1193.6 or Section 1194 to recover wages because of the payment of a wage less than the minimum wage fixed by an order of the commission, an employee shall be entitled to recover liquidated damages in an amount equal to the wages unlawfully unpaid and interest thereon.
135. The Labor Code and Wage Order 5 also mandate applicable overtime.
136. Plaintiffs and the Plaintiff Class they seek to represent may bring this
action for minimum wage and overtime, liquidated damages, interest, costs of suit, and
attorneys’ fees pursuant to California Labor Code § 1194(a).
137. WHEREFORE, Plaintiffs and the Plaintiff Class they seek to represent are
entitled to recover the unpaid reporting time wages, and liquidated damages in an amount
equal to the wages unlawfully unpaid in amounts to be determined at trial, interest,
attorneys’ fees and costs of suit, and to the relief described below.
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SEVENTH CAUSE OF ACTION
FAILURE TO TIMELY PAY COMPENSATION DUE AND OWING TO EMPLOYEES, INCLUDING THOSE WHO ARE TERMINATED OR RESIGNED
PLAINTIFFS INDIVIDUALLY AND ON BEHALF OF THE CLASS AGAINST HOOTERS
138. Plaintiffs incorporate Paragraphs 1 though 137 above, and Paragraphs 199-216,
and 235-243, below, as though fully set forth herein.
139. HOOTERS, among other things, with respect to Plaintiffs and the Plaintiff Class
they seek to represent, were forced to work “off the clock” without the required compensation;
were not reimbursed for expenses incurred; were not provided rest periods of at least ten (10)
minutes per four (4) hours or major fraction thereof worked; were not paid one (l) hour of
additional wages at the non-exempt employees’ regular rate of compensation for each workday
that the rest period was not provided; were required to compensate HOOTERS for, have
deducted from wages owed for, or be disciplined for, cash shortages and customer walk-outs;
were required to work at least five (5) hours without a meal period or were required to take the
meal period at or near the beginning of the shift; were not paid one (l) hour of additional wages
at their regular rate of compensation for each workday that the meal period was not provided;
had collected from, taken from or did not receive gratuities given or intended by patrons for non-
exempt employees; were not reimbursed for business-related expenses, including but not limited
to the cost of the purchase and maintenance of uniforms and clothing or had deducted from their
wages for these costs; and/or were required to report to work and were not paid, at the
employee’s regular rate of pay and/or at the legal minimum, for time worked, including for work
away from the primary location of work.
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140. California Labor Code Section 201 states, in part:
a. If an employer discharges an employee, the wages earned and unpaid at the time of discharge are due and payable immediately…
141. Sections 201 and 202 of the California Labor Code require employers to pay its
employees all compensation due at time of termination, or under other circumstances, within 72
hours of cessation of employment. Section 203 of the Labor Code provides that if an employer
willfully fails to timely pay such compensation, the employer must continue to pay the subject
employees’ wages until the compensation is paid in full or an action is commenced. The penalty
cannot exceed thirty (30) days of wages. Section 256 of the Labor Code provides for a civil
penalty of up to thirty (30) days pay as waiting time.
142. California Labor Code Section 202(a) states:
If an employee not having a written contract for a definite period quits his or her employment, his or her wages shall become due and payable not later than 72 hours thereafter, unless the employee has given 72 hours previous notice of his or her intention to quit, in which case the employee is entitled to his or her wages at the time of quitting. Notwithstanding any other provision of law, an employee who quit without providing a 72-hour notice shall be entitled to receive payment by mail if he or she so requests and designates a mail address. The date of the mailing shall constitute the date of payment for purposes of the requirement to provide payment within 72 hours of the notice of quitting.
143. As described above, the failure of HOTT WINGS, DUBLIN HOOTERS,
FREMONT HOOTERS, SF HOOTERS and/or CAMPBELL HOOTERS to timely pay Plaintiffs
and the Plaintiff Class they seek to represent for all of their wages due for work performed and
this failure continued through the time at which Plaintiffs and the Plaintiff Class resigned and/or
were terminated from their employment with HOTT WINGS, DUBLIN HOOTERS, FREMONT
HOOTERS, SF HOOTERS and/or CAMPBELL HOOTERS, violating California Labor Codes
§§ 201 and 202.
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144. California Labor Code § 203 states, in part:
If an employer willfully fails to pay, without abatement or reduction, in accordance with Sections 201, 201.5, 202, and 205.5, any wages of an employee who is discharged or who quits, the wages of the employee shall continue as a penalty from the due date thereof at the same rate until an action therefore is commenced; but the wages shall not continue for more than 30 days… Suit may be filed for these penalties at any time before the expiration of the statute of limitations on an action for the wages form which the penalties arise. 145. The statute of limitation for an action for the wages at issue is four (4) years,
pursuant to California Business and Professions Code §17208. As noted above, HOOTERS
violated California Labor Code §§ 201 and 202 by failing to pay employees who quit and/or
were terminated all of the wages due pursuant to the timelines provided in those sections, and the
failure was willful and was not inadvertent or accidental.
146. Plaintiffs and the Plaintiff Class they seek to represent (a) are entitled to
compensation for all forms of wages earned as described above, including, but not limited to,
wages for work done “off the clock” and/or at hourly rates below the minimum wage, additional
wages for unprovided rest and meal periods and reporting time pay wages; and/or (b) are entitled
to compensation for failure to reimburse for necessary employee expenses, but to date have not
received such compensation, therefore entitling them to penalties pursuant to Labor Code § 203.
147. As alleged above, Plaintiffs and the Plaintiff Class they seek to represent are
entitled to compensation for improperly pooled tips, but to date have not received such
compensation.
148. As alleged above, Plaintiffs and the Plaintiff Class they seek to represent are
entitled to compensation for the failure to provide required rest and meal periods, for requiring
meal periods to be taken at unauthorized times or at or near the beginning of the shift and/or for
the failure to pay one (1) hour of wages in lieu thereof, but to date have not received such
compensation.
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149. As alleged above, Plaintiffs and the Plaintiff Class they seek to represent are
entitled to compensation for the failure to pay for the purchase and maintenance of the cost of
uniforms and clothing, and/or for deducting from wages the cost of uniforms and clothing, but to
date have not received such compensation.
150. As alleged above, Plaintiffs and the Plaintiff Class they seek to represent are
entitled to compensation for the threatening of and/or imposing discipline upon and/or for
requiring payment (or deducting from wages) for cash shortages and/or customer walk-outs, but
to date have not received such compensation.
151. As alleged above, Plaintiffs and the Plaintiff Class they seek to represent are
entitled to compensation for the failure to compensate for wages and expenses incurred for time
worked, including reporting time pay and/or for work away from the primary location of work,
but to date have not received such compensation.
152. As alleged above, Plaintiffs and the Plaintiff Class they seek to represent are
entitled to compensation for the failure to timely pay wages owed, including but not limited to
upon resignation and/or termination, but to date have not received such compensation.
153. As alleged above, Plaintiffs and the Plaintiff Class they seek to represent are
entitled to compensation for the failure to pay waiting time and/or other wages and penalties
owed, but to date have not received such compensation.
154. More than thirty (30) days have passed since Plaintiffs and members of the
affected Class Members of the Plaintiff Class have left the employ of HOTT WINGS, DUBLIN
HOOTERS, FREMONT HOOTERS, SF HOOTERS and/or CAMPBELL HOOTERS and, on
information and belief, have not timely received payment pursuant to Labor Code § 203. As a
consequence of the willful conduct of HOTT WINGS, DUBLIN HOOTERS, FREMONT
HOOTERS, SF HOOTERS and/or CAMPBELL HOOTERS in not paying for all earned wages
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and/or for all expenses incurred, Plaintiffs and certain Class Members are entitled to thirty (30)
work days of wages as a penalty under Labor Code Section 203, interest, attorneys’ fees and
costs of suit.
155. WHEREFORE, Plaintiffs and the Plaintiff Class they seek to represent are
entitled to recover, in amounts to be determined at trial, wages owed and up to thirty (30) days of
wages as a penalty, interest, attorneys’ fees and costs of suit, and to the relief as described below.
EIGHTH CAUSE OF ACTION
UNFAIR BUSINESS PRACTICES
(CALIFORNIA BUSINESS AND PROFESSIONS CODE §§ 17200 - 17208)
PLAINTIFFS INDIVIDUALLY AND ON BEHALF OF THE CLASS AGAINST HOOTERS
156. Plaintiffs incorporate Paragraphs 1 though 155 above, as though fully set forth
herein.
157. HOOTERS engaged in unlawful and unfair activity prohibited by Business and
Professions Code §§ 17200 et seq. The actions of HOTT WINGS, DUBLIN HOOTERS,
FREMONT HOOTERS, SF HOOTERS and/or CAMPBELL HOOTERS as alleged within this
Complaint, constitute unlawful and unfair business practice with the meaning of Business and
Professions Code §§ 17200 et seq.
158. The improper policy of HOTT WINGS, DUBLIN HOOTERS, FREMONT
HOOTERS, SF HOOTERS and/or CAMPBELL HOOTERS of requiring Class Members to pool
tips with supervisors and managers of HOTT WINGS, DUBLIN HOOTERS, FREMONT
HOOTERS, SF HOOTERS and/or CAMPBELL HOOTERS, of failing to provide required rest
and meal periods and/or pay of one (l) hour of wages in lieu thereof; of requiring meal periods to
be taken at unauthorized times and/or at or near the beginning of the shift and/or not paying one
(1) hour of wages in lieu thereof; of failing to pay for the cost and maintenance of uniforms and
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clothing and/or deducting the cost of the uniforms and clothing from wages; of threatening to
impose and/or imposing discipline upon, and/or by requiring payment from or deducting from
wages, for cash shortages and/or customer walk-outs; of failing to pay for expenses incurred
and/or for wages owed for work, including reporting to work and/or work away from the primary
location of work; of failing to timely pay all compensation due and owing, including at the time
or resignation and/or termination; of failing to comply with the itemized employee wage
statement provisions; and/or of altering time records all constitute unlawful activity prohibited by
Business and Professions Code Section, 17200 et seq., including, but not limited to Sections
17200, 17202, and 17203.
159. The actions of HOTT WINGS, DUBLIN HOOTERS, FREMONT HOOTERS,
SF HOOTERS and/or CAMPBELL HOOTERS in failing to pay Plaintiffs and the Plaintiff Class
in a lawful manner, as alleged in this Complaint, constitutes false, unfair, fraudulent and
deceptive business practices, and prejudices Plaintiffs and the Plaintiff Class they seek to
represent, within the meaning of Business and Professions Code Sections 17200, et. seq.
160. Plaintiffs and the Plaintiff Class are entitled to an injunction and to other equitable
relief against such unlawful practices in order to prevent future damage, for which there is no
adequate remedy at law, and to avoid a multiplicity of lawsuits. Plaintiffs bring this cause
individually and as members of the general public as a representative of all others subject to
HOOTERS’ unlawful acts and practices.
161. As a result of its unlawful acts, HOTT WINGS, DUBLIN HOOTERS,
FREMONT HOOTERS, SF HOOTERS and/or CAMPBELL HOOTERS have reaped and
continue to reap unfair profits and to be unlawfully enriched at the expense of Plaintiffs and the
Plaintiff Class they seek to represent. Pursuant to Business and Professions Code Sections
17202-17203, HOTT WINGS, DUBLIN HOOTERS, FREMONT HOOTERS, SF HOOTERS
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and/or CAMPBELL HOOTERS should be enjoined from these activities and made to disgorge
these ill-gotten gains and restore to Plaintiffs and the Plaintiff Class for the wrongfully withheld
tips; for the cost to purchase and/or to maintain uniforms and clothing; for the sums improperly
deducted from wages for the cost of uniforms and clothing; for the sums for not providing
required rest and meal periods and/or not paying one (l) hour of wages in lieu thereof; for the
sums for requiring meal periods to be taken at unauthorized times and/or at or near the beginning
of the shift and/or failing to pay one (1) hour of wages in lieu thereof; for the sums for
threatening to impose and/or imposing discipline, and/or for requiring payment or improperly
deducting from wages for cash shortages and/or customer walk-outs; for the sums for failing to
pay for expenses incurred and/or for wages owed for work, including for reporting to work
and/or for work away from the primary location of work; for sums for failing to timely pay all
compensation due and owing, including at the time of resignation and/or termination; for sums
for failing to comply with the itemized employee wage statement provisions; and/or for sums for
altering time records.
162. As a direct and proximate result of the unfair business practices of HOTT
WINGS, DUBLIN HOOTERS, FREMONT HOOTERS, SF HOOTERS and/or CAMPBELL
HOOTERS, Plaintiffs, individually and on behalf of all employees similarly situated, (a) are
entitled to equitable and injunctive relief, including full restitution, disgorgement and specific
performance of all compensation, including, but not limited to, payment for improperly pooled
tips, payment for cash shortages and/or customer walk-outs, payment of one (l) hour of wages
per day for failure to provide rest and meal periods, payment of one (1) hour of wages per day
for requiring meal periods to be taken at unauthorized times and/or at or near the beginning of
the shift, payment for failure to pay other wages (including reporting time, applicable overtime
and/or minimum wage), for payment for other expenses incurred and/or payment for failure to
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comply with itemized employee wage statement provisions, which have been unlawfully
withheld from Plaintiffs and members of the Plaintiff Class as a result of the business acts and
practices described herein and (b) are entitled to equitable and injunctive relief enjoining HOTT
WINGS, DUBLIN HOOTERS, FREMONT HOOTERS, SF HOOTERS and/or CAMPBELL
HOOTERS from failing to cease and desist from engaging in the practices described herein.
163. The illegal conduct alleged herein is continuing, and there is no indication that
HOTT WINGS, DUBLIN HOOTERS, FREMONT HOOTERS, SF HOOTERS and/or
CAMPBELL HOOTERS will not continue such activity into the future. If HOTT WINGS,
DUBLIN HOOTERS, FREMONT HOOTERS, SF HOOTERS and/or CAMPBELL HOOTERS
are not enjoined from the conduct set forth in this Complaint, HOTT WINGS, DUBLIN
HOOTERS, FREMONT HOOTERS, SF HOOTERS and/or CAMPBELL HOOTERS will
continue to require Class Members to pool tips with supervisors and management, will continue
to fail to pay Class Members all compensation due upon cessation of employment, will continue
to fail to provide Class Members with required rest and meal periods or one (l) hour of pay per
day in lieu thereof, will continue to require Class Members to take meal periods at unauthorized
times including at or near the beginning of the shift, will continue to fail to provide Class
Members with uniforms and clothing, will continue to fail to maintain the uniforms and clothing
of Class Members, will continue to impose discipline and/or threaten to impose discipline upon
Class Members and/or to require Class Members to pay for and/or have deducted from wages for
cash shortages and/or customer walk-outs, will continue to fail to compensate Class Members for
wages (including reporting time, applicable overtime and/or minimum wage) and expenses, will
continue to fail to comply with itemized employee wage statement provisions and/or will
continue to alter time records.
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164. Plaintiffs further request that the Court issue a preliminary and permanent
injunction prohibiting HOTT WINGS, DUBLIN HOOTERS, FREMONT HOOTERS, SF
HOOTERS and/or CAMPBELL HOOTERS from requiring Plaintiffs and the Plaintiff Class to
pool tips with supervisors and management, from failing to pay Plaintiffs and the Plaintiff Class
all compensation due upon cessation of employment, from failing to provide Plaintiffs and the
Plaintiff Class with rest and meal periods or one (l) hour of wages per day in lieu thereof, from
requiring Plaintiffs and the Plaintiff Class to take meal periods at unauthorized times including at
or near the beginning of the shift and/or from failing to pay one (1) of wages per day in lieu
thereof, from failing to provide Plaintiffs and the Plaintiff Class uniforms and clothing and/or
from failing to maintain the uniforms and clothing, from requiring payment from Plaintiffs and
the Plaintiff Class for and/or deducting from their wages for the cost of uniforms and clothing,
from threatening to impose and/or from imposing discipline on Plaintiffs and the Plaintiff Class
and/or from requiring payment from and/or deducting from the wages of Plaintiffs and the
Plaintiff Class for cash shortages and/or customer walk-outs, from failing to fully and timely
compensate for wages (including reporting time, applicable overtime and/or minimum wage)
and/or for expenses incurred, from failing to comply with the itemized employee wage statement
provisions and/or from failing to keep accurate time records.
165. As described above, HOOTERS has violated the following California laws, by
various actions, including, but not limited to:
• violating California Labor Code §§ 201-203 and other provisions of the Labor Code by failing to pay all wages earned and unpaid at the time of certain Class Members’ termination of employment from HOOTERS; • violating California Labor Code § 202 by failing to pay all wages earned and unpaid within seventy-two (72) hours of the time of quitting by certain Class Members’ resignation of employment with HOOTERS;
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• violating California Labor Code § 206 by failing to pay, without condition and within the time set by the applicable statutory provisions, all wages, or parts thereof, conceded by HOOTERS to be due; • violating California Labor Code § 216 by willfully refusing to pay wages due and payable after demand was made while having the ability to pay, and by falsely denying the amount or validity thereof, or that the same is due, with intent to secure for itself any discount upon such indebtedness, and with intent to annoy, harass, oppress, hinder, delay, or defraud, the Class Members to whom such indebtedness is due; • violating California Labor Code § 226 by failing to provide Class Members with accurate wage statements and by altering time records of Class Members; • committing a misdemeanor in violation of California Labor Code §§ 216 and 226.6 by knowingly and intentionally violating the provisions of California Labor Code § 226 and of other sections of the Labor Code; • violating California Labor Code § 226.7 by requiring Class Members to work during meal and rest periods mandated by Wage Order 5 and failing to provide said Class Members one (l) hour additional wages at the non-exempt employee’s regular rate of compensation for each work day that the meal or rest period is not provided; • violating California Labor Code § 510 by failing to compensate Class Members at the rate of no less than one and one-half (1 ½) times the regular rate of pay for an employee for all work in excess of eight (8) hours in one workday and any work in excess of 40 hours in any workweek and the first eight (8) hours worked on the seventh day of work in any one workweek, and by failing to compensate Class Members at the rate of no less than twice the regular rate of pay for an employee for work in excess of twelve (12) hours in one (l) day and any work in excess of eight (8) hours on any seventh day of a workweek; • violating California Labor Code § 512 by failing to provide Class Members with a meal period of not less than thirty (30) minutes for every work period of more than five (5) hours per day and by not providing Class Members with a second meal period of not less than thirty (30) minutes for a work period of more than ten (10) hours per day; • violating California Labor Code §§ 1182.11, 1182.12, 1185 and 1197 by failing to pay at least the minimum wage for all hours worked by Class Members; • violating California Labor Code § 1194 by failing to pay minimum and/or overtime wages for all hours worked by Class Members; • violating California Labor Code § 1194.2 by failing to liquidated damages for failure to pay minimum wages for all hours worked by Class Members; • violating California Labor Code § 350 et seq. by withholding gratuities and improperly pooling the tips of Class Members;
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• violating California Labor Code § 2802 by failing to indemnify the Class Members for all necessary expenditure or losses incurred in direct consequence of the discharge of their duties and their obedience to the direction of HOOTERS; • violating of Wage Order 5 by failing to pay reporting time wages for each workday a Class Member was required to report to work and did report to work, but was not put to work or was furnished less than half said employee’s usual or scheduled day’s work, but in no event for less than two (2) hours nor more than four (4) hours, at the employee’s regular rate of pay reporting time wages; and • violating California Labor Code § 226 by failing to comply with the itemized employee wage statement provisions and by altering time records of Class Members.
166. The activities of HOTT WINGS, DUBLIN HOOTERS, FREMONT HOOTERS,
SF HOOTERS and/or CAMPBELL HOOTERS also constitute unfair practices in violation of
Business and Professions Code §§ 17200 et seq. because the practices of HOTT WINGS,
DUBLIN HOOTERS, FREMONT HOOTERS, SF HOOTERS and/or CAMPBELL HOOTERS
violate the above noted laws, and/or an established public policy and/or the practices are
immoral, unethical, oppressive, unscrupulous and substantially injurious to Plaintiff, the Plaintiff
Class they seek to represent and the public and cause Plaintiffs and the Plaintiff Class a loss of
money or property.
167. WHEREFORE, Plaintiffs and the Plaintiff Class they seek to represent are
entitled to the injunctive relief and the disgorgement described above, interest, costs of suit,
attorneys’ fees, and to the relief described below.
NINTH CAUSE OF ACTION
EMBEZZLEMENT
PLAINTIFFS INDIVIDUALLY AND ON BEHALF OF THE CLASS AGAINST HOOTERS
AND THE INDIVIDUAL DEFENDANTS
168. Plaintiffs incorporate Paragraphs 1 though 167 above, as though fully set forth
herein.
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169. By requiring non-supervisory employees, including Plaintiffs and the Plaintiff
Class they seek to represent, to pool tips with supervisors and management, as alleged above,
HOTT WINGS, DUBLIN HOOTERS, FREMONT HOOTERS, SF HOOTERS and/or
CAMPBELL HOOTERS and/or the INDIVIDUAL DEFENDANTS, willfully embezzled for
their own personal use, or for the use of other persons or entities, various sums of Plaintiffs and
of the Plaintiff Class they seek to represent.
170. As a result of the unlawful acts of HOTT WINGS, DUBLIN HOOTERS,
FREMONT HOOTERS, SF HOOTERS and/or CAMPBELL HOOTERS and/or of the
INDIVIDUAL DEFENDANTS, Plaintiffs and the Plaintiff Class they seek to represent have
been deprived of gratuities/tips in amounts to be determined at trial, and are entitled to recovery
of such amounts, plus interest.
171. Plaintiffs and the Plaintiff Class they seek to represent are informed and believe,
and based thereon allege, that HOTT WINGS, DUBLIN HOOTERS, FREMONT HOOTERS,
SF HOOTERS and/or CAMPBELL HOOTERS and/or the INDIVIDUAL DEFENDANTS
continue to retain some or all of said property, thereby entitling Plaintiffs and the Plaintiff Class
to injunctive relief.
172. Each of these acts were done willfully and maliciously with oppression and with
fraud, by HOTT WINGS, DUBLIN HOOTERS, FREMONT HOOTERS, SF HOOTERS and/or
CAMPBELL HOOTERS and/or by the INDIVIDUAL DEFENDANTS, with the deliberate
intent to injure Plaintiffs and the Plaintiff Class, for the financial gain of HOTT WINGS,
DUBLIN HOOTERS, FREMONT HOOTERS, SF HOOTERS and/or CAMPBELL HOOTERS
and/or the INDIVIDUAL DEFENDANTS, entitling Plaintiffs and the Class members, in
addition to actual damages, to punitive damages, as defined in Civil Code Section 3294.5, to
make an example of and to punish HOTT WINGS, DUBLIN HOOTERS, FREMONT
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HOOTERS, SF HOOTERS and/or CAMPBELL HOOTERS and/or the INDIVIDUAL
DEFENDANTS.
173. WHEREFORE, Plaintiffs and the Plaintiff Class they seek to represent request the
relief as described below.
TENTH CAUSE OF ACTION
HOOTERS AND INDIVIDUAL DEFENDANTS FOR CONVERSION
PLAINTIFFS INDIVIDUALLY AND ON BEHALF OF THE CLASS AGAINST HOOTERS
AND THE INDIVIDUAL DEFENDANTS
174. Plaintiffs and the Class Members re-allege and incorporate by reference
Paragraphs 1 though 173 above, as though fully set forth herein.
175. By engaging in the acts described above, HOTT WINGS, DUBLIN HOOTERS,
FREMONT HOOTERS, SF HOOTERS and/or CAMPBELL HOOTERS wrongfully took
possession of property, including money, belonging to Plaintiffs and the Plaintiff Class they seek
to represent, without permission or authorization, and retained, altered or converted some or all
of the said property.
176. By engaging in the acts described above, INDIVIDUAL DEFENDANTS
wrongfully took possession of property, including money, belonging to Plaintiffs and the
Plaintiff Class they seek to represent without permission or authorization, and retained, altered or
converted some or all of the said property.
177. As a direct and proximate result of the decision of HOTT WINGS, DUBLIN
HOOTERS, FREMONT HOOTERS, SF HOOTERS and/or CAMPBELL HOOTERS and/or of
the INDIVIDUAL DEFENDANTS to retain and convert the property belonging to Plaintiffs and
to the Plaintiff Class and to convert it for their own use, benefit and financial gain, HOTT
WINGS, DUBLIN HOOTERS, FREMONT HOOTERS, SF HOOTERS and/or CAMPBELL
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HOOTERS and/or the INDIVIDUAL DEFENDANTS have caused Plaintiffs and the Plaintiff
Class to suffer damages in an amount to be proven at trial.
178. Plaintiff and the Plaintiff Class they seek to represent are informed and believe,
and based thereon allege, that HOTT WINGS, DUBLIN HOOTERS, FREMONT HOOTERS,
SF HOOTERS and/or CAMPBELL HOOTERS and/or the INDIVIDUAL DEFENDANTS
continue to retain some or all of said property, thereby entitling Plaintiffs and the Plaintiff Class
to injunctive relief.
179. Each of these acts were done willfully and maliciously with oppression and fraud
by HOTT WINGS, DUBLIN HOOTERS, FREMONT HOOTERS, SF HOOTERS and/or
CAMPBELL HOOTERS and/or by the INDIVIDUAL DEFENDANTS, with the deliberate
intent to injure Plaintiffs and the Plaintiff Class, for the financial gain of HOTT WINGS,
DUBLIN HOOTERS, FREMONT HOOTERS, SF HOOTERS and/or CAMPBELL HOOTERS
and/or the INDIVIDUAL DEFENDANTS, entitling Plaintiffs and the Class Members, in
addition to actual damages, to punitive damages, as defined in Civil Code Section 3294.5, to
make an example of and to punish HOTT WINGS, DUBLIN HOOTERS, FREMONT
HOOTERS, SF HOOTERS and/or CAMPBELL HOOTERS and/or the INDIVIDUAL
DEFENDANTS.
180. Plaintiffs and the Plaintiff Class labored for and were subject to the control of
HOTT WINGS, DUBLIN HOOTERS, FREMONT HOOTERS, SF HOOTERS and/or
CAMPBELL HOOTERS, and were permitted and/or required to suffer work, all for the benefit
of HOTT WINGS, DUBLIN HOOTERS, FREMONT HOOTERS, SF HOOTERS and/or
CAMPBELL HOOTERS. By engaging in the act described above, HOTT WINGS, DUBLIN
HOOTERS, FREMONT HOOTERS, SF HOOTERS and/or CAMPBELL HOOTERS illegally
converted to their own use the lawful wages of non-exempt employees, including by unlawfully
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requiring them to work “off the clock” and/or without compensation; by failing to provide rest
and meal periods without compensating non-exempt employees one (l) hour’s pay for each
instance such periods were not provided and converting these sums to their own use; by failing to
reimburse non-exempt employees for expenses incurred on behalf of HOTT WINGS, DUBLIN
HOOTERS, FREMONT HOOTERS, SF HOOTERS and/or CAMPBELL HOOTERS and
converting these sums to their own use; by converting to their own use the tips intended by
customers to be given to non-supervisory employees and/or by the other acts as herein alleged.
181. As a result of the unlawful acts of HOTT WINGS, DUBLIN HOOTERS,
FREMONT HOOTERS, SF HOOTERS and/or CAMPBELL HOOTERS and/or of the
INDIVIDUAL DEFENDANTS, Plaintiffs and the Plaintiff Class they seek to represent have
been deprived of sums in amounts to be determined at trial, and are entitled to recovery of such
amounts, plus interest and statutory penalties thereon, attorneys’ fees, and costs, pursuant to
Labor Code Sections 200 et seq., 500 et seq., 1100 et seq., and/or other provisions of California
law.
182. Each of these acts were done willfully and maliciously with oppression and fraud
by HOTT WINGS, DUBLIN HOOTERS, FREMONT HOOTERS, SF HOOTERS and/or
CAMPBELL HOOTERS and/or by the INDIVIDUAL DEFENDANTS, with the deliberate
intent to injure Plaintiffs and the Plaintiff Class, for the financial gain of HOTT WINGS,
DUBLIN HOOTERS, FREMONT HOOTERS, SF HOOTERS and/or CAMPBELL HOOTERS
and/or the INDIVIDUAL DEFENDANTS, entitling Plaintiffs and the Class Members, in
addition to actual damages, to punitive damages, as defined in Civil Code Section 3294.5, to
make an example of and to punish HOTT WINGS, DUBLIN HOOTERS, FREMONT
HOOTERS, SF HOOTERS and/or CAMPBELL HOOTERS and/or the INDIVIDUAL
DEFENDANTS.
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183. WHEREFORE, Plaintiffs and the Plaintiff Class they seek to represent request the
relief as described below.
ELEVENTH CAUSE OF ACTION
UNJUST ENRICHMENT
PLAINTIFFS INDIVIDUALLY AND ON BEHALF OF THE CLASS AGAINST HOOTERS
AND THE INDIVIDUAL DEFENDANTS
184. Plaintiffs and the Class Members re-allege and incorporate by reference
Paragraphs 1 though 183 above, as though fully set forth herein.
185. By engaging in the acts described above, HOTT WINGS, DUBLIN HOOTERS,
FREMONT HOOTERS, SF HOOTERS and/or CAMPBELL HOOTERS and/or the
INDIVIDUAL DEFENDANTS have and continue to benefit from their wrongdoing and have
been unjustly enriched by reaping the benefits of their unlawful activities, all to the damage and
irreparable harm of Plaintiffs and of the Plaintiff Class they seek to represent.
186. The circumstances are such that it would be inequitable for HOTT WINGS,
DUBLIN HOOTERS, FREMONT HOOTERS, SF HOOTERS and/or CAMPBELL HOOTERS
and/or the INDIVIDUAL DEFENDANTS to retain the benefits received from the actions
described above without repaying the lost value to Plaintiffs and to the Plaintiff Class.
187. WHEREFORE, Plaintiffs and the Plaintiff Class they seek to represent request the
relief as described below.
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TWELFTH CAUSE OF ACTION
FRAUD
PLAINTIFFS INDIVIDUALLY AND ON BEHALF OF THE CLASS AGAINST HOOTERS
AND THE INDIVIDUAL DEFENDANTS
188. Plaintiffs incorporate by reference Paragraphs 1 through 187 above, as though
fully set forth herein.
189. Plaintiff and Plaintiff Class are informed and believe, and based thereon allege
that, by engaging in affirmative acts and representations designed to conceal and prevent
Plaintiffs and the Plaintiff Class they seek to represent from discovering the acts alleged herein,
HOTT WINGS, DUBLIN HOOTERS, FREMONT HOOTERS, SF HOOTERS and/or
CAMPBELL HOOTERS and/or the INDIVIDUAL DEFENDANTS committed fraudulent acts,
including but not limited to:
a. affirmatively misrepresenting the circumstances of the tip pooling and to
whom the tip pools would be distributed to induce Plaintiffs and the Plaintiff
Class to continue to contribute to the tip pools and to not arouse suspicion
concerning the acts of supervisors and management to share in the tip pools;
b. affirmatively misrepresenting that all of the tip pools were being paid to
non-exempt employees, when such was not true, to induce Plaintiffs and the
Plaintiff Class to continue to contribute to the tip pools and by taking affirmative
measures to conceal the theft;
c. affirmatively misrepresenting the circumstances for which wages and
expense reimbursements were owed to induce Plaintiff and the Plaintiff Class to
continue to work without proper compensation for wages and expenses; and
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d. affirmatively misrepresenting that time records were accurate and that no
other wages and expenses were due and owing to Plaintiffs and the Plaintiffs
Class when such was not the case and by taking affirmative measures to conceal
their actions;
The misrepresentations made by HOTT WINGS, DUBLIN HOOTERS, FREMONT HOOTERS,
SF HOOTERS and/or CAMPBELL HOOTERS and/or the INDIVIDUAL DEFENDANTS were
material in that they were made with the intent to induce Plaintiffs and the Plaintiff Class to rely
on the misrepresentations.
190. The reliance by Plaintiffs and the Plaintiff Class on these fraudulent
misrepresentations of HOTT WINGS, DUBLIN HOOTERS, FREMONT HOOTERS, SF
HOOTERS and/or CAMPBELL HOOTERS and/or of the INDIVIDUAL DEFENDANTS was
reasonable. Plaintiff and the Plaintiff Class are informed and believe, and based thereon allege,
that HOTT WINGS, DUBLIN HOOTERS, FREMONT HOOTERS, SF HOOTERS and/or
CAMPBELL HOOTERS and/or the INDIVIDUAL DEFENDANTS intended on doing harm to
Plaintiffs and the Plaintiff Class, acted in coordinated and surreptitious fashion to carryout their
plan and/or went to extraordinary lengths to conceal their malfeasance. The trust of Plaintiffs
and of the Plaintiff Class in HOTT WINGS, DUBLIN HOOTERS, FREMONT HOOTERS, SF
HOOTERS and/or CAMPBELL HOOTERS and/or the INDIVIDUAL DEFENDANTS was
justifiable, as was their belief that HOTT WINGS, DUBLIN HOOTERS, FREMONT
HOOTERS, SF HOOTERS and/or CAMPBELL HOOTERS and/or the INDIVIDUAL
DEFENDANTS were honest and not working against the interests of the Plaintiff and the
Plaintiff Class.
191. As a proximate result of the actions alleged herein, HOTT WINGS, DUBLIN
HOOTERS, FREMONT HOOTERS, SF HOOTERS and/or CAMPBELL HOOTERS and/or the
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INDIVIDUAL DEFENDANTS caused Plaintiffs and the Plaintiff Class to suffer damages in an
amount to be proven at trial. The acts of fraud of HOTT WINGS, DUBLIN HOOTERS,
FREMONT HOOTERS, SF HOOTERS and/or CAMPBELL HOOTERS and/or of the
INDIVIDUAL DEFENDANTS were committed with oppression and/or malice and/or with the
deliberate intent to injure Plaintiffs and the Plaintiff Class, to improve the business of HOTT
WINGS, DUBLIN HOOTERS, FREMONT HOOTERS, SF HOOTERS and/or CAMPBELL
HOOTERS and/or for the financial gain of HOTT WINGS, DUBLIN HOOTERS, FREMONT
HOOTERS, SF HOOTERS and/or CAMPBELL HOOTERS and/or the INDIVIDUAL
DEFENDANTS, thereby entitling Plaintiffs and the Plaintiff Class, in addition to actual
damages and to attorneys’ fees and costs in an amount to be proven at trial, to punitive damages
as defined in Civil Code Section 3294.5, to damages to make an example of and to punish HOTT
WINGS, DUBLIN HOOTERS, FREMONT HOOTERS, SF HOOTERS and/or CAMPBELL
HOOTERS and/or the INDIVIDUAL DEFENDANTS.
192. WHEREFORE, Plaintiffs and the Plaintiff Class they seek to represent request the
relief as described below.
THIRTEENTH CAUSE OF ACTION
FAILURE TO COMPLY WITH ITEMIZED EMPLOYEE WAGE STATEMENT PROVISIONS
(CALIFORNIA LABOR CODE §§ 206, 216, 226, 226.3, 1174, 1174.5 and 1175 AND
SECTION 7 OF WAGE ORDER 5)
PLAINTIFFS INDIVIDUALLY AND ON BEHALF OF THE CLASS AGAINST HOOTERS
193. Plaintiffs incorporate by reference Paragraphs 1 through 192 above, as though
fully set forth herein.
194. California Labor Code Section § 226(a) states:
Every employer shall, semimonthly or at the time of each payment of wages, furnish each of his or her employees, either as a detachable part of the check, draft, or
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voucher paying the employee’s wages, or separately when wages are paid by personal check or cash, an accurate itemized statement in writing showing (l) gross wages earned, (2) total hours worked by the employee, except for any employee whose compensation is solely based on a salary and who is exempt from payment of overtime under subdivision (a) of Section 515 or any applicable order of the Industrial Welfare Commission, …(4) all deductions, provided that all deductions made on written orders of the employee may be aggregated and shown as one item, (5) net wages earned, (6) the inclusive dates of the period for which the employee is paid, (7) the name of the employee and his or her social security number except that by January 1, 2008, only the last four digits of his or her social security number or an employee identification number other than a social security number may be shown on the itemized statement, (8) the name and address of the legal entity that is the employer, and (9) all applicable hourly rates in effect during the pay period and the corresponding number of hours worked at each hourly rate by the employee. The deductions made from payments of wages shall be recorded in ink or other indelible form, properly dated, showing the month, day and year and a copy of the statement or a record of the deductions hall be kept on file by the employer for at least three (3) years at the place of employment or at a central location within the State of California.
195. HOOTERS failed to provide “accurate itemized statements” to Plaintiff and the
Plaintiff Class they seek to represent because the wage statements, inter alia:
a. falsely understated the gross wage earned by not including the portion of tips taken by supervisors and senior management;
b. falsely understated the gross wages earned by failing to pay for all hours
worked;
c. falsely understated the gross wages earned by failing to pay for uniforms and clothing and the maintenance of uniforms and clothing or by deducting these cost from the gross wages;
d. falsely understated the total hours worked by ignoring the total number of
hours actually worked;
e. falsely understated the gross wages earned by deducting from wages or requiring payment for cash shortages and customer walk-outs; and
f. falsely understated the net wages earned by failing to pay for all hours
worked.
196. California Labor Code § 226(e) and (g) provide for the remedy for the violations
described above. Respectfully, these provisions state:
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(e) An employee suffering injury as a result of a knowing and intentional failure by an employee to comply with subdivision (a) is entitled to recover the greater of all actual damages or fifty dollars ($50) for the Initial pay period in which a violation occurs and one hundred dollars ($100) per employee for each violation in a subsequent pay period, not exceeding an aggregate penalty of four thousand dollars ($4,000), and is entitled to an award of costs and reasonable attorneys’ fees.
(g) An employee may also bring an action for injunctive relief to ensure
compliance with this section, and is entitled to an award of costs and reasonable attorneys’ fees.
197. In addition, Section 1174 of the California Labor Code, and Section 7 of Wage
Order 5 require HOOTERS to maintain and preserve, in a centralized location, among other
items, records showing the names and addresses of all employees employed, payroll records
showing the hours worked daily by and the waged paid to its employees. Plaintiff and the
Plaintiff Class they seek to represent are informed and believe, and based thereon allege, that
HOOTERS created a uniform practice of knowingly and intentionally failing to comply with
Labor Code § 1174. HOOTERS’ failure to comply with Labor Code § 1174 is unlawful
pursuant to Labor Code §1175. When an employer fails to keep such records, employees may
establish the hours worked solely by their testimony and the burden of overcoming such
testimony shifts to the employer.
198. By failing to keep adequate time records required by Labor Code §§ 226 and
1174, HOTT WINGS, DUBLIN HOOTERS, FREMONT HOOTERS, SF HOOTERS and/or
CAMPBELL HOOTERS injured Plaintiffs and the Plaintiff Class and made it difficult to
calculate the unpaid wages due Plaintiffs and the members of the Plaintiff Class and therefore,
Plaintiffs and each Class Member so injured is entitled up to Four Thousand Dollars ($4,000) in
penalties and to the penalties as set for in Labor Code Section 226.3.
199. WHEREFORE, Plaintiffs and the Plaintiff Class are entitled to Labor Code
penalties in an amount to be determined at trial not to exceed Four Thousand Dollars ($4,000)
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per Class Member, penalties in an amount to be determined at trial pursuant to Labor Code
Section 226.3, costs of suit, attorneys’ fees and injunctive relief per California Labor Code §
226(g) and to the relief described below.
VII. INDIVIDUAL CAUSES OF ACTION
A. JESSICA ROSE
FACTUAL BACKGROUND
200. Plaintiff ROSE incorporates Paragraphs 1 through 199 above, as though fully set
forth herein.
201. ROSE was employed by DUBLIN HOOTERS and, on information and belief, by
HOTT WINGS, from on or about June 2, 2008 to July 16, 2008. At all relevant times throughout
ROSE’s employment, SPECKHALS was the General Manager of DUBLIN HOOTERS.
SPECKHALS frequently inquired of ROSE concerning ROSE’s personal life and SPECKHALS
commented that SPECKHALS was upset that ROSE was not “sharing” information about
ROSE’s non-work related activities and personal plans.
202. ROSE felt uncomfortable and harassed as a result of SPECKHALS’s ongoing
demands and inquiries and felt that it was an invasion of ROSE’s right to privacy about non-
work related activities.
203. On or about July 12, 2008, ROSE informed her manager, Ryan, that ROSE
needed to take time off work to care for her infant daughter. ROSE was told that ROSE could
have the time off from work. On ROSE’s next scheduled day of work, July 13, SPECKHALS
called ROSE into his office and told ROSE to not work that day because ROSE had not reported
to work and had not contacted SPECKHALS on his personal cell telephone. ROSE informed
SPECKHALS that ROSE had been granted permission to take off. SPECKHALS told ROSE
that to get time off, ROSE had to personally contact SPECKHALS on his cell telephone.
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SPECKHALS told ROSE to punch out and go home. ROSE was not paid “show-up” pay and
lost wages and tips for the day.
204. On or about July 14, 2008, DUBLIN HOOTERS and, on information and belief,
HOTT WINGS terminated ROSE’s employment by failing and refusing to schedule ROSE to
work and by failing and refusing to place ROSE on the work schedule.
205. DUBLIN HOOTERS failed to timely provide ROSE with her final paycheck in
violation of Sections 201, 202, 203, 206, 216, 218.5, 218.6, 225.5, 226 and other provisions of
the Labor Code.
206. ROSE is informed and believes, and based thereon alleges, that the termination
was in retaliation for ROSE exercising ROSE’s statutory rights for time off, for ROSE’s
rejection of SPECKHALS’ attempts to violate ROSE’s rights to privacy and for ROSE’s
rejection of SPECKHALS’ advances.
207. Just prior to ROSE’s termination, ROSE had asked for time off from work to care
for ROSE’s child and ROSE had received permission to do. Thus, DUBLIN HOOTERS and, on
information and belief, HOTT WINGS, had de facto granted ROSE permission to be off of work
pursuant to the California Kin Care law, Labor Code Sections 233-234. The time off was
granted, but when ROSE took the day off, ROSE was then disciplined.
208. Prior to ROSE’s termination, ROSE had informed SPECKHALS that ROSE
objected to the intrusion by SPECKHALS of ROSE’s right to privacy, a right protected by
Article I, Section 1 of the California Constitution, in that ROSE did not want SPECKHALS
questioning ROSE about ROSE’s personal activities, ROSE did not want to share ROSE’s non-
work related activities with SPECKHALS and ROSE did not want to acquiesce to
SPECKHALS’ advances.
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209. ROSE is informed and believes, and based thereon alleges, that ROSE’s
termination was based, in whole or in part, on ROSE asserting ROSE’s right to take time off
from work, on ROSE invoking her right to privacy and/or on ROSE refusing to acquiesce to
SPECKHALS’ advances and, therefore, the termination was wrongful and in violation of public
policy and in violation of the California Government Code and California Labor Code.
210. Commencing on August 27, 2008, in writing, ROSE requested the right to inspect
the personnel records that DUBLIN HOOTERS and HOTT WINGS maintains relating to
ROSE’s performance or to any grievance concerning ROSE and requested the right, within
twenty-one (21) calendar days, to have a complete copy of ROSE’s records regarding ROSE’s
compensation as set forth in Labor Code Section 226.
211. DUBLIN HOOTERS and, on information and belief, HOTT WINGS failed to
timely make the contents of these personnel records available to ROSE as mandated by Labor
Code § 1198.5.
212. More than twenty-one (21) calendar days have elapsed from the date of the
request for compensation records and DUBLIN HOOTERS failed to timely comply with Labor
Code Section 226.
213. Based on the failure to permit ROSE to inspect or copy records within the twenty-
one (21) calendar day period, ROSE is entitled to recover a penalty of Seven Hundred Fifty
Dollars ($750), as well as injunctive relief to ensure compliance and an award of reasonable
attorneys’ fees and costs.
214. On or about April 15, 2009, ROSE filed a Complaint of Discrimination with the
California Department of Fair Employment and Housing (“DFEH”) against DUBLIN
HOOTERS, HOTT WINGS and SPECKHALS, Case No. E200809M1341-00 rsc, 01 rsc and 02-
rsc, respectively. Notice of Case Closure as to all three Complaints were issued on or about
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April 21, 2009 entitling ROSE to bring a civil lawsuit. All three complaints alleged, inter alia,
unlawful acts based on ROSE’s sex and in retaliation for ROSE’s engaging in a protected
activity or requesting a protected leave or accommodation
215. The DFEH Complaints alleged improper termination, layoff, harassment,
impermissible non-work related inquiries, failure to prevent discrimination or retaliation and
retaliation.
216. ROSE has lost wages and benefits, suffered emotional distress and suffered other
general and special damages.
217. ROSE is informed and believes, and thereon alleges, that the actions of HOTT
WINGS and DUBLIN HOOTERS were willful, deliberate and done with malice and oppression,
entitling ROSE, in addition to actual damages, to punitive damages, as defined by Civil Code
Section 3294.5, to make an example of and to punish HOTT WINGS, DUBLIN HOOTERS and
SPECKHALS.
FOURTEENTH CAUSE OF ACTION
KIN CARE
(CALIFORNIA LABOR CODE §§ 233 and 234)
ROSE AGAINST HOTT WINGS AND DUBLIN HOOTERS
218. ROSE re-alleges and incorporates by reference Paragraphs 1 through 217 above,
as though fully set forth herein.
219. WHEREFORE, ROSE requests lost wages, tips and benefits, reinstatement,
injunctive relief reinstating ROSE to ROSE’s former job, interest, attorneys’ fees and costs of
suit.
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FIFTEENTH CAUSE OF ACTION
FAILURE TO PROVIDE A COMPLETE COPY OF RECORDS REGARDING COMPENSATION
of suit, attorneys’ fees, for general special and punitive damages and to the relief described
below.
PRAYER
WHEREFORE, Plaintiffs Dina Partridge, Jessica Rose, Marcie O’Brien, Danielle Firkins,
Nicole Talbert Donoghue, Sunnie Heng, Sandra Sandoval and Sarah Peterson, on behalf of
themselves, on behalf of all others similarly situated and on behalf of the General Public as
Private Attorneys generals, pray for judgment as follows:
1. For the relief described above at the end of each Cause of Action;
2. For attorneys’ fess and costs of suit;
3. For interest on all sums from the date the sums were due;
4. For any Cause of Action for which the illegal conduct resulted in payment of less
than minimum wage or non-payment of applicable overtime, recovery of wages and statutory
penalties in amounts according to proof at trial;
5. As to Causes of Action 1 through 13:
a. That the Court determines that these causes of action may be maintained
as a class action with the named PLAINTIFFS (Dina Partridge, Jessica Rose, Marcie O’Brien,
Danielle Firkins, Nicole Talbert Donoghue, Sunnie Heng, Sandra Sandoval and Sarah Peterson)
appointed as class representatives;
b. That the Court name the attorneys for PLAINTIFFS appearing on the
above caption as class counsel;
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c. For compensatory and liquidated damages, as applicable for a cause of
action, in amounts according to proof at trial, with interest thereon;
d. For economic and/or special damages, as applicable for a cause of action,
in amounts according to proof at trial, with interest thereon;
6. As to the First Cause of Action:
For recovery of tips improperly taken by or distributed to HOTT WINGS, DUBLIN
HOOTERS, FREMONT HOOTERS, SF HOOTERS and/or CAMPBELL HOOTERS and/or
the INDIVIDUAL DEFENDANTS, in amounts according to proof at trial, with interest thereon;
7. As to the Second Cause of Action:
a. For recovery of unpaid wages, including as applicable overtime wages and
minimum wages, plus an additional one (l) hour of pay for each work day that the rest or meal
period was not provided or that the meal period was mandated to be taken at or near the
beginning of the shift in amounts according to proof at trial;
b. For recovery of liquidated damages and penalties, according to proof at
trial, for the alteration or falsification of time records;
c. For recovery of One Hundred Dollars ($100) for each initial violation and
Two Hundred Dollars ($200) for each subsequent violation or for any willful or intentional
violation;
8. As to the Third Cause of Action:
a. For recovery of wages deducted and any costs incurred by direct payment
for acquiring and maintaining uniforms and clothing in amounts according to proof at trial;
b. For recovery of One Hundred Dollars ($100) for each initial violation and
Two Hundred Dollars ($200) for each subsequent violation or for any willful or intentional
violation;
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9. As to the Fourth Cause of Action:
a. For removal of any discipline imposed;
b. For recovery of One Hundred Dollars ($100) for each initial violation and
Two Hundred Dollars ($200) for each subsequent violation or any for willful or intentional
violation;
10. As to the Fifth Cause of Action:
For recovery of unpaid minimum wages and for liquidated damages, in an amount equal
to wages unlawfully unpaid, in amounts according to proof at trial;
11. As to the Sixth Cause of Action:
a. For recovery of unpaid minimum wages, reporting time pay and legal
overtime compensation, and for liquidated damages, as applicable, in an amount equal to wages
unlawfully unpaid, in amounts according to proof at trial;
b. For recovery of unpaid reporting time wages.
12. As to the Seventh Cause of Action:
a. For the recovery set forth above with respect to Causes of Action One
through Six, inclusive;
b. For up to thirty (30) days of wages as a penalty.
13. As to the Eighth Cause of Action:
a. That HOTT WINGS, DUBLIN HOOTERS, FREMONT HOOTERS, SF
HOOTERS and/or CAMPBELL HOOTERS be found to have engaged in unfair competition in
violation of Sections 17200, et seq. of the California Business and Professions Code;
b. That HOTT WINGS, DUBLIN HOOTERS, FREMONT HOOTERS, SF
HOOTERS and/or CAMPBELL HOOTERS be ordered and enjoined to make restitution to the
Plaintiff Class due to the unfair competition of HOTT WINGS, DUBLIN HOOTERS,
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FREMONT HOOTERS, SF HOOTERS and/or CAMPBELL HOOTERS, including ordering
disgorgement of the wrongfully-obtained revenues, earnings, profits and/or compensation,
pursuant to California Business and Professions Code Sections 17203 and 17204;
c. That HOTT WINGS, DUBLIN HOOTERS, FREMONT HOOTERS, SF
HOOTERS and/or CAMPBELL HOOTERS be enjoined from continuing the illegal course of
conduct, as alleged herein;
d. That HOTT WINGS, DUBLIN HOOTERS, FREMONT HOOTERS, SF
HOOTERS and/or CAMPBELL HOOTERS further be enjoined to cease and desist from unfair
competition in violation of Sections 17200, et seq. of the California Business and Professions
Code;
e. That the Court temporarily, preliminarily and permanently enjoin HOTT
WINGS, DUBLIN HOOTERS, FREMONT HOOTERS, SF HOOTERS and/or CAMPBELL
HOOTERS and all persons or entities acting in concert with them, whether directly or indirectly,
from engaging in any of the illegal conduct alleged herein;
f. That the Court, as part of its injunctive order, direct HOTT WINGS,
DUBLIN HOOTERS, FREMONT HOOTERS, SF HOOTERS and/or CAMPBELL HOOTERS
and/or the INDIVIDUAL DEFENDANTS, and all persons or entities acting in concert with
them, directly or indirectly, to affirmatively and immediately do the following:
(i) account for and pay to Plaintiffs and the Plaintiff Class all gains,
profits and/or savings derived from their illegal conduct;
(ii) disgorge all monies that Plaintiffs and the Plaintiff Class paid to
HOTT WINGS, DUBLIN HOOTERS, FREMONT HOOTERS, SF HOOTERS and/or
CAMPBELL HOOTERS and/or the INDIVIDUAL DEFENDANTS for the time period that
HOTT WINGS, DUBLIN HOOTERS, FREMONT HOOTERS, SF HOOTERS and/or
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CAMPBELL HOOTERS and/or the INDIVIDUAL DEFENDANTS breached their duties owed
to Plaintiffs and the Plaintiff Class and all monies received as a result of those breaches;
(iii) to pay Plaintiffs and the Plaintiff Class all damages sustained as a
result of the unlawful acts;
(iv) return to Plaintiffs and the Plaintiff Class any and of all of the stolen
property;
(v) pay the attorneys’ fees and all other costs of the action incurred by
Plaintiffs and the Plaintiff Class;
(vi) Pay prejudgment and post judgment interest at the maximum legal
rate, provided for by the laws of California, as applicable, as an element of damages which
Plaintiffs and the Plaintiff Class suffered as a result of the wrongful and illegal acts of HOTT
WINGS, DUBLIN HOOTERS, FREMONT HOOTERS, SF HOOTERS and/or CAMPBELL
HOOTERS and/or the INDIVIDUAL DEFENDANTS;
(vii) Pay restitution to Plaintiffs and the Plaintiff Class for all Claims for
Relief for which restitution is authorized;
14. As to the Ninth Cause of Action:
a. For recovery of the sums embezzled in amounts according to proof at trial;
b. For recovery of general, special and punitive damages;
c. For injunctive relief as set forth above with respect to the Eighth Cause of
Action;
15. As to the Tenth Cause of Action:
a. For recovery of the sums converted in amounts according to proof at trial;
b. For recovery of general, special and punitive damages;
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c. For injunctive relief as set forth above with respect to the Eighth Cause of
Action;
16. As to the Eleventh Cause of Action:
a. For recovery of the sums that were retained and unjustly taken in amounts
according to proof at trial;
b. For recovery of general, special and punitive damages;
c. For injunctive relief as set forth above with respect to the Eighth Cause of
Action;
17. As to the Twelfth Cause of Action:
a. For recovery of the sums taken by fraud in amounts according to proof at
trial;
b. For recovery of general, special and punitive damages;
c. For injunctive relief as set forth above with respect to the Eighth Cause of
Action;
18. As to the Thirteenth Cause of Action:
a. For recovery of a sum not to exceed Four Thousand Dollars ($4,000) per
individual;
b. For injunctive relief to ensure compliance with Labor Code Section 226;
19. As to the Fourteenth Cause of Action:
a. For recovery of lost wages, tips and benefits;
b. For reinstatement of ROSE to her former position with no loss of
seniority;
c. For injunctive relief to enforce the reinstatement;
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20. As to the Fifteenth Cause of Action:
a. For injunctive relief to enforce ROSE’s right to the documents;
b. For recovery of the sum of Seven Hundred Fifty Dollars ($750);
21. As to the Sixteenth Cause of Action:
a. For the recovery of One Thousand Dollars ($1000);
b. for injunctive relief to enforce ROSE’s rights regarding ROSE’s personnel
file;
22. As to the Seventeenth Cause of Action:
a. For recovery of lost wages, tips and benefits;
b. For reinstatement of ROSE to her former position with no loss of
seniority;
c. For injunctive relief to enforce the reinstatement;
d. For recovery of emotional distress damages, according to proof at trial;
e. For injunctive relief to enforce ROSE’s right to privacy and to enjoin
DUBLIN HOOTERS, HOTT WINGS and SPECKHALS from interfering with these rights;
f. For general, special and punitive damages;
23. As to the Eighteenth Cause of Action:
a. For recovery of lost wages, tips and benefits;
b. For reinstatement of ROSE to her former position with no loss of
seniority;
c. For injunctive relief to enforce the reinstatement and to enjoin additional
violations of the FEHA;
d. For recovery of emotional distress damages according to proof at trial;
e. For general, special and punitive damages;
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24. As to the Nineteenth Cause of Action:
For recovery of lost wage and wages of up to thirty (30) days;
25. As to the Twentieth Cause of Action:
a. For recovery of lost wages, tips and benefits;
b. For reinstatement of O’BRIEN to her former position with no loss of
seniority;
c. For injunctive relief to enforce the reinstatement and to enjoin additional
violations of the FEHA;
d. For recovery of emotional distress damages, according to proof at trial;
e. For general, special and punitive damages;
26. As to the Twenty-One Cause of Action:
a. For recovery of lost wages, tips and benefits;
b. For reinstatement of O’BRIEN to her former position with no loss of
seniority;
c. For injunctive relief to enforce the reinstatement and to enjoin further
violations of the FEHA;
d. For recovery of emotional distress damages, according to proof at trial;
e. For injunctive relief to enforce O’BRIEN’s right to privacy and to enjoin
DUBLIN HOOTERS, HOTT WINGS and SPECKHALS from interfering with these rights;
f. For recovery of general, special and punitive damages;
27. As to the Twenty-Second Cause of Action:
a. For recovery of lost wages, tips and benefits;
b. For reinstatement of PARTRIDGE to her former position with no loss of
seniority;
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c. For injunctive relief to enforce the reinstatement and to enjoin additional
violations of the FEHA;
d. For recovery of emotional distress damages, according to proof at trial;
e. For injunctive relief to enforce PARTRIDGE’s right to privacy and to
enjoin DUBLIN HOOTERS, HOTT WINGS and SPECKHALS from interfering with these
rights;
f. For recovery of general, special and punitive damages;
28. For such other and further relief as the Court deems just and proper; and
29. For entry of judgment in favor of Plaintiffs and Members of the Plaintiff Class against
HOTT WINGS, DUBLIN HOOTERS, FREMONT HOOTERS, SF HOOTERS and/or
CAMPBELL HOOTERS and/or the INDIVIDUAL DEFENDANTS on all Claims for Relief.
LAW OFFICES OF BURTON F. BOLTUCH Dated: May 28, 2009 By: ____________________________________ Burton F. Boltuch (SBN 070211)
Attorneys for Plaintiffs Dina Partridge, Jessica Rose, Marcie O’Brien, Danielle Firkins,
Nicole Talbert Donoghue, Sunnie Heng, Sandra Sandoval and Sarah Peterson, on behalf of themselves, on behalf of all others similarly situated and on behalf of the General Public as Private Attorneys General
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DEMAND FOR JURY TRIAL
Plaintiffs and Members of the Plaintiff Class hereby demand trial of their claims by jury to the
extent authorized by law.
Respectfully submitted, LAW OFFICES OF BURTON F. BOLTUCH
Dated: May 28, 2009 By: ____________________________________ Burton F. Boltuch (SBN 070211)
Attorneys for Plaintiffs Dina Partridge, Jessica Rose, Marcie O’Brien, Danielle Firkins,
Nicole Talbert Donoghue, Sunnie Heng, Sandra Sandoval and Sarah Peterson, on behalf of themselves, on behalf of all others similarly situated and on behalf of the General Public as Private Attorneys General