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suffered, and permitted Plaintiffs to regularly work in excess of forty hours per week
without paying them overtime wages of one-and-one-half their regular rate of pay;

17. By not paying overtime wages in compliance with the FLSA, Defendants violated the
rights of Plaintiffs under the FLSA;

18. As a direct and proximate cause of Defendants failure to pay overtime wages under
the FLSA, Plaintiffs incurred compensatory damages in the form of lost overtime
compensation;

19. Defendants willfully and intentionally, and with reckless disregard of their
responsibilities under the FLSA, and without good cause, failed to pay Plaintiffs their
overtime compensation, and thus Defendants are liable to Plaintiffs for liquidated
damages in an amount equal to their lost overtime wages pursuant to 29 U.S.C.
§216(b);

20. Plaintiffs have been compelled to retain an attorney to bring this action for relief and
are entitled to an award of reasonable attorney fees pursuant to 29 U.S.C. §216(b).

WHEREFORE, Plaintiffs pray for judgment as set forth below;

SECOND CAUSE OF ACTION
(Violation of California Labor Code Sections 510- Non Payment of Overtime)

21. Plaintiffs re-allege and incorporate the allegations of paragraphs 1- 20 as if fully set
forth herein;

22. During the last 3 years, Plaintiffs employment was subject to California Labor Code
Section 510, et. al, and the applicable Wage Orders promulgated by the California
Industrial Welfare Commission pursuant to Labor Code Section 1173, which require
all covered employees to be paid overtime for work performed in excess of forty
hours per week and eight hours per day, unless specifically exempted by the law;

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Defendants are in competition with, and who were in compliance with California
wage and hour laws;

46. As a direct and proximate cause of Defendants statutory violations, the rights of the
Plaintiffs under the law were violated, causing them to incur general damages in the
form of unpaid and lost wages to which they are legally entitled;

47. Defendants were aware of the existence and requirements of the state and federal
wage and hour laws, and willfully, knowingly, and intentionally failed to pay
Plaintiffs overtime pay and provide meal and rest breaks. Plaintiffs herein seek
restitution of such compensation pursuant to the Business and Professions Code
§17203;

WHEREFORE, Plaintiffs prays for judgment as set forth below.

SIXTH CAUSE OF ACTION
(Labor Code Private Attorneys General Act of 2004)

48. Plaintiffs re-allege and incorporates those allegations 1-47, as if fully stated herein;

49. Plaintiffs and those persons similarly situated to Plaintiffs are aggrieved employees as
defined in California Labor Code section 2699(c), for the following Labor Code
violations committed by Defendants, and are entitled to penalties for each plaintiff
and similarly situated person of $100 per pay period for the initial violation and $200
per Plaintiff and similarly situated person for each subsequent pay period violation,
for the following violations;

50. Labor Code Section 204b — Plaintiffs Hector De Leon and Carlos Cisneros, and other
similarly situated persons, are due overtime within the statutory period. Labor Code
Section 2046 was violated because the aggrieved persons were paid on a weekly basis
and were not paid for all wages earned during the pay period. Each of the aggrieved

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29.

30.

31.

32.

33.

34,

THIRD CAUSE OF ACTION
(Meal and Rest Breaks
Labor Code §§ 226.7, 512)
Plaintiffs re-allege and incorporate the allegations of paragraphs 1-28 as if fully stated
herein;
At all times relevant herein, Plaintiffs employment with Defendants was governed by
the California Labor Code and applicable Wage Orders promulgated by the California
Industrial Welfare Commission;
During the period three years prior to the filing of the complaint, Plaintiffs routinely
worked more than eight hours per day and over forty hours per week, yet Defendants
never offered Plaintiffs meal breaks nor mandatory ten minute rest breaks, and
compelled Plaintiffs to work through those meal and rest break periods;
By requiring Plaintiffs to work through the mandated meal and rest breaks,
Defendants violated Plaintiffs’ rights under Labor Code Section 226.7;
As a direct and proximate cause of Defendants failure to provide the mandated meal
and rest breaks under the California Labor Code and Wage Orders, Plaintiffs have
incurred compensatory damages in the form of lost meal and rest break premiums in
amounts to be proven at trial;
Defendants were aware of the existence and requirements of California Labor Code

Sections 226.7 and 512 and the Wage Orders, and Defendants willfully, knowingly,

and intentionally failed to provide Plaintiffs with the mandatory meal and rest breaks;

WHEREFORE, Plaintiffs pray for judgment as set forth below.

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23. At all times relevant herein, Plaintiffs regularly worked in excess of forty hours per
week and/or in excess of eight hours per day. Plaintiffs were not paid the required
overtime rate;

24. During the last 3 years, Defendants knowingly and willfully caused, suffered and
permitted Plaintiffs to regularly work in excess of forty hours per week and/or eight
hours per day without paying them the required overtime rate;

25. By not paying Plaintiffs overtime wages in compliance with California law,
Defendants violated Plaintiffs’ rights under the law, specifically California Labor
Code Section 510;

26. As a direct and proximate cause of Defendants’ failure to pay proper overtime wages
under the California Labor Code and Wage Orders, Plaintiffs have incurred
compensatory damages in the form of lost overtime compensation in amounts to be
proven at trial;

27. Defendants were aware of the existence and requirements of the California Labor
Code Section 510 and the Wage Orders, and willfully, knowingly and intentionally
failed to pay Plaintiffs the overtime compensation due them at the time their
employment ended;

28. Plaintiffs have been compelled to retain an attorney for the purpose of redress of the
Labor Code violations and is entitled to an award of attorneys fees and pre-judgment
interest pursuant to California Labor Code Section 1194(a), and other applicable
Code sections;

WHEREFORE, Plaintiffs pray for judgment as set forth below.

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FIFTH CAUSE OF ACTION
(For Restitution of Unpaid Overtime Wages
In Violation of California’s Unfair Trade Practices Act
Business and Profession Code Sections 17200, et seq.)

42. Plaintiffs re-allege and incorporate those allegations of paragraphs 1-41, as if fully

43.

45.

stated herein;

At all times relevant herein, Plaintiffs employment with Defendants was governed by
the California Labor Code and applicable Wage Orders promulgated by the California
Industrial Welfare Commission and the FLSA, which require all employees to be paid
overtime for work performed in excess of forty hours per week or eight hours per day
unless specifically exempted by the law. Pursuant to the California Labor Code and
Applicable Wage Orders, Defendants were required to provide meal and rest breaks

to its employees;

. During 4’years prior to filing the complaint, Defendants were subject to the California

Unfair Trade Practices Act (California Business and Professions Code Section

§17000 et seq.). Defendants violated the Unfair Trade Practices Act, by inter alia,

failure to pay Plaintiffs overtime pay and provide meal and rest breaks; and pay a
minimum wage;

During 4 years prior to filing the complaint, Defendants wrongfully obtained monies
in the form of overtime wages and equivalent employee meal and rest break hours
that inured to Plaintiffs. By doing so, Defendants violated California Unfair Trade
Practices Act, Business and Professions Code §17200, et seq. by committing acts
prohibited by the California Labor Code and applicable California Wage Orders, in

order to give Defendants a competitive advantage over businesses with whom

De Leon, et al v. Mastria Incorporated, et al
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ROBERT DAVID BAKER, INC.
Robert David Baker, Esq. (87314)
80 South White Road

San Jose, CA 95127

Telephone: (408) 251-3400
Facsimile: (408) 251-3401
rbaker@rdblaw.net

Attorney for Plaintiffs
HECTOR DE LEON; CARLOS CISNEROS

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA.

HECTOR DE LEON; CARLOS CISNEROS,
on behalf of themselves and those similarly
situated individuals,

Plaintiffs,
vs.

MASTRIA INCORPORATED; NELLO
MASTRIA,

Defendants.

CASE NUMBER:

COMPLAINT FOR DAMAGES AND
DEMAND FOR JURY TRIAL:

1.) Violation of FLSA, section 207 (overtime
wages);

2.) Violation of California Labor Code § 510;
3.) Violation of Labor Code §§ 226.7, 512 (meal
and rest break)

4.) Violation of Labor Code § 201 (wages at
termination)

5.) For Restitution of Unpaid Wages in Violation
of California Unfair Trade Practices Act under
Business and Professions Code §§ 17200, et seq.
6.) For Violations of PAGA.

Plaintiffs, Hector De Leon and Carlos Cisneros, and on behalf of those similarly situated

individuals allege as follows:

JURISDICTION AND VENUE

This action is brought pursuant to 29 U.S.C. A. §§ 201, et seq., and this court has

jurisdiction pursuant to 29 U.S.C.A. § 216(b) and the doctrine of pendent and supplemental

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53.

54.

55.

56.

Labor Code Section 510 — Plaintiffs Hector De Leon and Carlos Cisneros, and other
similarly situated persons, worked in excess of eight hours per day and in excess of
forty hours per week in any work week, and were not paid overtime compensation;
Labor Code Section 512 — Plaintiffs Hector De Leon and Carlos Cisneros, and other
similarly situated persons, were denied meal periods during the term of their
employment in compliance with Labor Code section 512;

Labor Code Section 1174(d) — Plaintiffs Hector De Leon and Carlos Cisneros, and
other similarly situated persons, were subject to Mastria Incorporated’s failure to keep
payroll records showing the hours worked daily and the wages paid to each aggrieved
person, by virtue of the failure to include overtime hours worked;

Plaintiffs will mail the required notification to the Labor and Workforce Development
Agency and will amend this complaint to allege the declination of the Labor
Workforce Development Agency to investigate the above claims.

WHEREFORE, Plaintiffs pray for judgment as set forth below;

PRAYER FOR RELIEF

WHEREFORE, the Plaintiffs pray for judgment against the Defendants and demand as

follows:

1.

Award Plaintiffs economic and compensatory damages for unpaid overtime wages,
meal and rest break premiums and other pecuniary losses in amounts to be proven at
trial;

Award to Plaintiffs pre-judgment interest of 10% on the amounts due under the
California Labor Code;

Award to Plaintiffs liquidated damages according to the FLSA;

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persons earned overtime during each week they worked and were not paid for that
overtime on the regular pay date for such weekly-paid employee falling during the
following week. Moreover, each weekly-paid aggrieved person performed work
during each calendar week of their employment and subsequent to the regular payday,
and intermittently were not paid on or before seven days after the regular pay day of
the aggrieved person for such weekly-paid person falling during the following week;

51. Labor Code Section 226 — Plaintiffs Hector De Leon and Carlos Cisneros, and other
similarly situated persons, received an itemized statement as required by Labor Code
section 226, which was inaccurate for the following reasons:

1, Each statement of each aggrieved person was inaccurate because it did not set
forth the “gross wages” because overtime hours were not calculated and included in
the “gross wage;”

2. Each itemized statement of each aggrieved person was inaccurate because it did

not set forth the “net wages,” because overtime hours were not calculated and

included in the “net wage;

3. Each itemized statement for each aggrieved person does not set forth the number

of hours worked because it does not state the overtime hours worked;

52. Labor Code Section 226.7 — Plaintiffs Hector De Leon and Carlos Cisneros, and other
similarly situated persons, during the term of their employment, worked in excess of
eight hours per day and were not provided a rest or recovery period as mandated by

Labor Code Section 512, or were required to work during the rest or recovery period;

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i

FOURTH CAUSE OF ACTION
(Failure to Pay Wages Upon Termination
Labor Code §§ 201, 202, 203)

35. Plaintiffs re-allege and incorporate those allegations of paragraphs 1-34, as if fully
stated herein;

36. Defendants are subject to Labor Code Sections 201, 202, and 203, which provide that
upon discharge or layoff the subject employee is subject to immediate payment within
a reasonable amount of time not to exceed 72 hours;

37. Defendants failed to make immediate payment to Plaintiffs upon discharge;

38. By not paying Plaintiffs immediate terminating wages upon discharge, Defendants
violated Plaintiffs’ rights under Labor Code Section 201;

39. As a direct and proximate cause of Defendants failure to pay immediate
compensation due under California Labor Code Section 201, Plaintiffs have incurred
compensatory damages in the form of lost wages, in an amount to be proven at trial;

40. Defendants were aware of the existence of the requirement of immediate payment
pursuant to California Labor Code Section 201, and willfully, knowingly, and
intentionally failed to pay Plaintiffs the immediate payment upon termination or
layoff;

41, Plaintiffs have been required to retain an attorney for the purposes of redress of the
Labor Code Violations set forth herein and are entitled to an award of attorney fees
and pre-judgement interest pursuant to California Labor Code Section 1194(a), and
other applicable Labor Code sections.

WHEREFORE, Plaintiffs pray for judgment as set forth below.

De Leon, et al v. Mastria Incorporated, et al
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12.

13.

businesses by depriving hourly workers of overtime compensation, and therefore
Plaintiffs are bringing this action as a class action pursuant to the Fair Labor
Standards Act, 29 U.S.C. § 216(b) to address this uniform company policy and
practice regarding the unlawful plan and scheme affecting those similarly situated
individuals;
The unlawful plan and scheme employed by Defendants consisted of Defendants
withholding hours from Plaintiffs’ weekly hours worked in order that the daily and
weekly hours of work would not exceed eight hours per day and forty hours per week,
so that Defendants would not have to pay Plaintiffs overtime. At times subsequent to
the check paid by Defendants to Plaintiffs for a particular weekly payroll, Defendants
would pay Plaintiffs by cash or check a portion of the hours that Defendants had
withheld from the weekly hours worked.
FIRST CAUSE OF ACTION
(Violation of Fair Labor Standards Act — Overtime Compensation
29 U.S.C. § 207)

Plaintiffs incorporate those paragraphs 1 through 12, inclusive, as if fully set forth

hereinafter;

14. At all times relevant herein, Plaintiffs were covered pursuant to the provisions of the

15.

Fair Labor Standards Act of 1938, as amended, 29 U.S.C. A. § 201, et seg. (“FLSA”).
Defendants were employers within the meaning of the 29 U.S.C.A. § 203(d);
29 U.S.C.A. § 207 requires all covered employees to be paid overtime for work

performed in excess of forty hours per week, unless specifically exempted by law;

16. Although Plaintiffs were not exempt from overtime compensation during their

employment with Defendants, and although Defendants had full knowledge of their
duty to pay overtime compensation to Plaintiffs, Defendants knowingly caused,
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9.

otherwise ignores the corporate separateness between himself and Mastria
Incorporated;
Plaintiffs are informed and believe that each employee, agent, or manager of
Defendants personally participated, directed, authorized, and ratified the conduct set
forth hereinafter. The conduct of these individuals was done in the course and scope
of their agency and employment with Defendants;
Plaintiffs allege that those individuals similarly situated to themselves were subject to
a plan, and policy of Defendants that deprived them of their lawfully earned overtime
compensation;

SUBSTANTIVE ALLEGATIONS
Plaintiffs, Hector De Leon and Carlos Cisneros, began working at Mastria
Incorporated more than four years prior to the filing of this complaint;
Plaintiffs performed painting duties that were non-exempt duties under both
California and Federal wage and hour law;
From on or after the date of their hire, Plaintiffs were required to work in excess of
eight hours per day and/or forty hours per week without overtime compensation;
During their employment with Defendants, Plaintiffs’ hourly rate was set by union
contract;

During all times relevant herein, Plaintiffs were denied meal breaks and rest breaks;

10. During all times relevant herein, Plaintiffs were not subject to an exemption from

overtime compensation pursuant to California or Federal law;

11. Plaintiffs are informed and believe that Defendants had a plan and scheme, whereby

they would increase their profits and gain competitiveness over similarly situated

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jurisdiction pursuant. Pursuant to 29 U.S.C. A § 216(b), Plaintiffs bring this action on behalf of

themselves and those similarly situated individuals (hereinafter “Plaintiffs”.

1.

Plaintiffs, Hector De Leon and Carlos Cisneros, are individuals who have their place
of residence in the Northern District of California;

Defendant Mastria Incorporated is a California Corporation, with its principal place
of business in Santa Clara County, California. Plaintiffs are informed and believe that
Nello Mastria is an individual, residing in the Northern District of California, who is
the principal and sole and controlling stockholder in Defendant Mastria Incorporated,
hereinafter collectively referred to as (“Defendants”). Plaintiffs are informed and
believe that Mastria Incorporated, is the alter ego of Defendant Nello Mastria, and
that Mastria Incorporated was formed, among other reasons, to defraud workers like
Plaintiffs by erecting a corporate shield to protect Defendant Nello Mastria’s
wrongful conduct. Mastria Incorporated is not properly capitalized to respond in
damages to workers’ wage complaints such as Plaintiffs herein. There is such a unity
of interests between Mastria Incorporated and Defendant Nello Mastria that it would
be unfair and inequitable to honor the corporate shield in the instant case because the
result would be to fraudulently deprive Plaintiffs in this action of money lawfully
owing to them due to their earnest labors, and such a result would be unequitable.
There is a unity of interest and ownership between Mastria Incorporated and
Defendant Nello Mastria such that the separate personalities of the corporation and
the individual no longer exist, inter alia, to wit: money and assets are comingled
between Nello Mastria and Mastria Incorporated; the formalities of the corporate

structure are disregarded by Defendant Nello Mastria; Defendant Nello Mastria

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. Award to Plaintiffs restitution of unpaid overtime and meal and rest break premiums,

inter alia, pursuant to California Business and Professions Code §17203 in amounts to

be proven at trial;

. Award to Plaintiffs compensation pursuant to Labor Code Section 201, for the failure

of Defendants to make immediate payment of wages due on discharge or layoff;

. Enter an order certifying Plaintiffs and other similarly situated persons pursuant to the

Labor Code Private Attorneys General Act of 2004, for the violations of the labor

code as set forth in the sixth cause of action, and attendant attorney fees;

. Enter an order certifying this action as an FLSA collective class action based on the

class of hourly employees who worked for Defendants within the past four years, and

who were entitled to overtime compensation pursuant to 29 U.S.C. § 207;

. Enter a permanent injunctive order against Defendants ensuring compliance with

California Labor Code and Wage Orders and the FLSA;

. An order holding Defendant Nello Mastria liable for all damages incurred by

Plaintiffs;

10. For reasonable attorney’s fees pursuant to California Labor Code §1194(a) and the

FLSA;

11, Award Plaintiffs their costs of suit herein;

12. Grant such other and further relief as this Court may deem appropriate.

PLAINTIFFS DEMAND A JURY TRIAL ON ALL CAUSES

Dated: February 7, 2017

/S/.

Robert David Baker, Esq.

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